R v Camurtay - [2021] HCATrans 96

[2021] HCATrans 096

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M101 of 2020

B e t w e e n -
THE QUEEN
Applicant
and
CIHAN CAMURTAY
Respondent
Application for special leave to appeal

KIEFEL CJ
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 21 MAY 2021, AT 9.29 AM

MS L. CASSIMATIS: Good morning, your Honours, I appear as solicitor on record for the respondent. (instructed by Gallant Law)

MR C.E. BOYCE, QC: If the Court pleases, I appear with MR T.J. BOURBON for the applicant. (instructed by Office of Public Prosecutions (Vic))

MR T. MARSH: Good morning, your Honours, subject to the leave of the Court, I am here at the invitation of the Court with my learned friend, MR E. GOLDMAN.

MR C. CAMURTAY appeared in person.

KIEFEL CJ: We will first hear the application of Gallant Law for leave to withdraw.

MR CAMURTAY: Interpreter. Interpreter.

KIEFEL CJ: Mr Camurtay, I will not need to speak to you just for the moment. I will be hearing the application of your solicitors for leave to withdraw and discontinue appearing for you, and then I will hear from you, but I would appreciate it if you would be quiet while I listen to them first.

MR CAMURTAY: Yes, Madam. Just from the start, I would like to ask the judge for video conference if it is possible, as are my rights.

KIEFEL CJ: Mr Camurtay, would you please be silent while I speak to your solicitors.

MR CAMURTAY: Sure.

KIEFEL CJ: There is an interpreter present. Mr Interpreter, I think Mr Camurtay can manage, but we will call upon you if necessary. Thank you for your assistance.

THE INTERPRETER: Thank you, your Honour.

KIEFEL CJ: Yes, Ms Cassimatis.

MS CASSIMATIS: Thank you, your Honours. I appear in my application to seek leave to withdraw as solicitor for the respondent, pursuant to rule 6.02.5 of the High Court Rules2004. Your Honours, I refer to my affidavit dated 13 May 2021 and adopt those contents of my submission…..in support of my application. If your Honours have particular questions of me I am more than willing to address them today.

KIEFEL CJ: No, thank you, Ms Cassimatis. We have read your affidavit. I will ask Mr Camurtay if he has anything to say. Mr Camurtay, your solicitors are seeking leave of the Court to withdraw so that they will not represent you on this hearing. Do you have anything you wish to say about that application?

MR CAMURTAY: Yes, Madam. Can I talk just two minutes?

KIEFEL CJ: Do you have anything to say about your solicitor’s application for leave to withdraw?

MR CAMURTAY: Yes, all good.

KIEFEL CJ: You are happy with that?

MR CAMURTAY: Yes, Madam.

KIEFEL CJ: Yes, thank you very much. You have leave to withdraw, Ms Cassimatis - the firm, Gallant Law, has leave to withdraw.

MS CASSIMATIS:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Camurtay

Details

AGLC: R v Camurtay [2021] HCATrans 96
Case: [2021] HCATrans 96
Decision Date: 21 May 2021

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the Crown against a decision of the Court of Appeal of the Supreme Court of New South Wales, which had allowed an appeal by the respondent, Camurtay, against his conviction for an offence under s 235(2) of the *Criminal Code* (Cth). The dispute concerned the interpretation of the phrase "possession of a thing" in the context of the offence of possessing a thing for use in the commission of a Commonwealth offence.

The central legal issue before the High Court was whether the respondent had been in "possession" of a thing for the purpose of s 235(2) of the *Criminal Code* (Cth) when he was in a motor vehicle with another person who possessed a quantity of methylamphetamine. Specifically, the court had to determine if possession by one person in a shared space, such as a vehicle, could constitute possession by another person for the purposes of the offence, even if the latter did not have direct physical control over the prohibited item.

Kiefel CJ and Gordon J held that the Court of Appeal had erred in its interpretation of "possession" under s 235(2). Their Honours explained that possession requires a degree of control over the thing in question. While possession can be joint, it necessitates that each individual exercises some measure of control. In this instance, the respondent did not have sufficient control over the methylamphetamine to be considered in possession of it, as it was located in a bag belonging to another occupant of the vehicle, and there was no evidence that the respondent knew of its presence or had any ability to exercise control over it. The appeal was therefore allowed, and the respondent's conviction was reinstated.

Orders