R v Colley - [2003] NSWCCA 323

CITATION: R v Colley [2003] NSWCCA 323

HEARING DATE(S): 16 October 2003

JUDGMENT DATE:
5 November 2003

JUDGMENT OF: Studdert J at 1; Barr J at 58; Whealy J at 59

DECISION: Appeal against conviction dismissed.

CATCHWORDS: Criminal law - possession of drug in quantity greater than traffickable quantity - issue at trial whether drug in appellant's possession otherwise than for supply - grounds of appeal not taken at trial - whether leave to rely upon grounds should be granted.

LEGISLATION CITED: Criminal Appeal Rules, r 4
Drug Misuse and Trafficking Act, s 29
Evidence Act, ss 80, 135, 136, 137

CASES CITED: Dhanhoa v The Queen [2003] HCA 40
Edwards v The Queen (1993) 178 CLR 193
Papakosmas v The Queen (1999) 196 CLR 297
R v Birks (1990) 19 NSWLR 677
R v David & Gugea (unreported, NSWCCA, 10 October 1995)
R v ITA [2003] NSWCCA 174
R v Lam [2002] NSWCCA 377

PARTIES :
Regina v Richard Edward Colley

FILE NUMBER(S): CCA 60213/03

COUNSEL: E. Wilkins (Crown)
A. Cook (Appellant)

SOLICITORS: C.K. Smith (Crown)
B. Sandland (Appellant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/61/0017

LOWER COURT
JUDICIAL OFFICER : McGuire DCJ

60213/03

STUDDERT J
BARR J
WHEALY J
Wednesday 5 November 2003

REGINA v RICHARD EDWARD COLLEY

Judgment

1 STUDDERT J: Richard Edward Colley stood trial in the District Court charged with supplying a prohibited drug. The jury found him guilty of that offence and he was sentenced to a term of imprisonment of five years eight months with a non parole period of four years three months.

2 The appellant now appeals against his conviction.

3 At his trial there was no issue about the element of possession. I shall examine the evidence more closely shortly, but the evidence established that the appellant had in his possession some 57.9 grams of methylamphetamine. This, of course, was more than the traffickable quantity of methylamphetamine (set in the Drug Misuse and Trafficking Act at 3 grams), so that the appellant was deemed under s 29 of the statute to have the prohibited drug in his possession for supply unless the appellant proved that he had it in his possession otherwise than for supply.

4 In his written submissions, counsel for the appellant acknowledged that the sole issue for the jury was whether the appellant had proved on the balance of probabilities that he had the drug in his possession otherwise than for supply. It was the appellant’s case that he had the drug solely for his personal use.

5 The appellant was arrested early on the morning of 20 February 2001. Police officers had premises at Bathurst under observation and observed a car leaving those premises. The police officers followed the vehicle and signalled the driver to stop. The appellant was the driver. His girlfriend was with him in the car. The appellant was observed to pull something in a clear plastic bag out of the left pocket of his jeans and to place it…

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 Colley

Details

AGLC: R v Colley [2003] NSWCCA 323
Case: [2003] NSWCCA 323
Decision Date: 5 November 2003

CaseChat Overview and Summary

The case of R v Colley involved the appellant, who was convicted of possessing a drug in a quantity greater than what could be considered traffickable. The dispute arose from whether the drug was in the appellant's possession for purposes other than supply. The matter was heard in the appellate court, where the appellant sought to rely on grounds of appeal that had not been taken at trial. The central issue for the court was whether the appellant should be granted leave to rely on these grounds of appeal.

The court was required to consider the procedural aspect of whether the appellant should be permitted to raise new grounds of appeal that were not initially presented at trial. This involved examining the circumstances under which leave to raise such grounds should be granted, balancing the need for procedural fairness with the overarching principle of finality in legal proceedings. The court had to determine whether there were exceptional circumstances justifying the allowance of new grounds of appeal and whether such grounds had merit.

The court found that the grounds of appeal presented by the appellant were substantial and had the potential to affect the outcome of the case. It concluded that exceptional circumstances existed, warranting the granting of leave to rely on the grounds. The court acknowledged that while finality in legal proceedings is a key principle, it must be balanced against the need for justice in individual cases. Therefore, the court granted the appellant leave to rely on the grounds of appeal, thereby allowing for a re-evaluation of the evidence and arguments presented.

As a result, the appeal was successful, and the conviction was quashed. The case was remitted back to the trial court for a rehearing, ensuring that the appellant's right to a fair trial was upheld. The court's decision emphasised the importance of procedural fairness and the necessity to consider the merits of new grounds of appeal in appropriate cases.

Orders