R v Galway - [2014] NSWDC 1

District Court

New South Wales

Medium Neutral Citation: R v Galway [2014] NSWDC 1
Hearing dates: 25, 26, 27, 30 September 2013; 1, 2, 3, 4, 8, 9, 10, October 2013
Decision date: 28 January 2014
Before: Neilson J
Decision:
In respect of count 1 - not guilty.
In respect of count 1A - not guilty.
In the alternative, pursuant to s 24(1) of the Drug Misuse and Trafficking Act 1985, on the charge that between 22 November 2008 and 26 November 2008 at Grose Wold in the State of New South Wales the Accused did knowingly take part in the manufacture of a prohibited drug, namely methylamphetamine - guilty.
In respect of count 4 - not guilty.
In respect of count 5 - not guilty.
In respect of count 6 - not guilty.
In respect of count 6A - not guilty.
In respect of count 7 - not guilty.
In respect of count 7A - not guilty

Catchwords: CRIMINAL LAW - Manufacture large commercial quantity of prohibited drugs - Expose child to manufacture of prohibited drug - Methylamphetamine - 3,4 MDMA
CRIMINAL LAW - Supply commercial quantity of prohibited drug - Deemed supply - Knowledge of possession required - Ketamine
CRIMINAL LAW - Possession of prescribed precursor - Intention of Accused regarding prescribed precursor - Pseudoephedrine
CRIMINAL LAW - Available alternative of statutory count
EVIDENCE - Evidence of witness criminally concerned
Legislation Cited: Evidence Act 1995
Drug Misuse and Trafficking Act 1985.
Firearms Act 1996
Weapons Prohibition Act 1998
Cases Cited: Davies v DPP [1954] AC 378
DPP v Brooks [1974] AC 862
He Kaw Teh v The Queen (1985) 157 CLR 523
R v Chai (1992) 27 NSWLR 153
Category: Principal judgment
Parties: Regina (Crown)
Leslie David Bernard Galway (Accused)
Representation: P McGrath (Crown)
G Wendler (Accused)
W Chan (Accused)
Director of Public Prosecutions (Crown)
Van Houten Lawyers (Accused)

File Number(s): 2008/066133 2009/248133
Publication restriction: No

Judgment

On 18 September 2013 the Accused elected to be tried by judge alone. On 20 September 2013 Blanch J, CJDC directed that the Accused be so tried. On 25 September 2013 the Crown presented to me an amended indictment on which the Accused was arraigned. That indictment contained ten counts, although they were not so numbered. The Accused pleaded "guilty" to two counts (those numbered 2 and 3). Those were offences contrary to Firearms Act 1996 s 7(1) (count 2) and to the Weapons Prohibition Act 1998 s 7(1) (count 3). To the remaining charges the Accused pleaded "not guilty". It has become my responsibility therefore to determine whether the Accused is guilty or not guilty of those charges and of any alternative statutory counts.

The charges

The charges to which the Accused pleaded "not guilty" are these:

Count 1:

Between 1 January 2008 and 27 November 2008 at Grose Wold in the State of New South Wales, manufactured a prohibited drug, namely methylamphetamine, in an amount not less than the large commercial quantity applicable to that prohibited drug and exposed…

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 Galway

Details

AGLC: R v Galway [2014] NSWDC 1
Case: [2014] NSWDC 1
Decision Date: 28 January 2014

CaseChat Overview and Summary

The defendant in this case was prosecuted on several counts related to drug manufacturing and supply. The charges included manufacturing a large commercial quantity of prohibited drugs, exposing a child to the manufacture of these drugs, and possessing a precursor substance with intent to manufacture a prohibited drug. The court also considered counts regarding the supply of a commercial quantity of a prohibited drug and possession of a prescribed precursor. The case was heard in a higher court in Australia.

The court had to determine whether the defendant knowingly participated in the manufacture of methylamphetamine, whether he exposed a child to this manufacture, and if he had the requisite knowledge and intent regarding possession of the precursor substance. Additionally, the court needed to decide whether the defendant was aware of the possession of a commercial quantity of ketamine and if he had supplied it. Another issue was whether evidence from a criminally involved witness could be used.

The court found the defendant not guilty on most counts, including the primary charge of manufacturing methylamphetamine. However, it found him guilty of knowingly taking part in the manufacture of methylamphetamine under an alternative statutory count. The court concluded that the defendant's knowledge and intent regarding the precursor substance and other counts were not proven beyond reasonable doubt. As a result, the court acquitted the defendant on several counts while convicting him under the statutory alternative for manufacturing methylamphetamine.

The court ordered that the defendant be found not guilty on counts 1, 1A, 4, 5, 6, 6A, 7, and 7A. However, the court found him guilty on count 1 under the statutory alternative. No further orders were made.

Orders

Orders of the court

In respect of count 1 - not guilty.

In respect of count 1A - not guilty.

In the alternative, pursuant to s 24(1) of the Drug Misuse and Trafficking Act 1985, on the charge that between 22 November 2008 and 26 November 2008 at Grose Wold in the State of New South Wales the Accused did knowingly take part in the manufacture of a prohibited drug, namely methylamphetamine - guilty.

In respect of count 4 - not guilty.

In respect of count 5 - not guilty.

In respect of count 6 - not guilty.

In respect of count 6A - not guilty.

In respect of count 7 - not guilty.

In respect of count 7A - not guilty

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Galway [2014] NSWDC 1
Hearing dates:	25, 26, 27, 30 September 2013; 1, 2, 3, 4, 8, 9, 10, October 2013
Decision date:	28 January 2014
Before:	Neilson J
Decision:	In respect of count 1 - not guilty. In respect of count 1A - not guilty. In the alternative, pursuant to s 24(1) of the Drug Misuse and Trafficking Act 1985, on the charge that between 22 November 2008 and 26 November 2008 at Grose Wold in the State of New South Wales the Accused did knowingly take part in the manufacture of a prohibited drug, namely methylamphetamine - guilty. In respect of count 4 - not guilty. In respect of count 5 - not guilty. In respect of count 6 - not guilty. In respect of count 6A - not guilty. In respect of count 7 - not guilty. In respect of count 7A - not guilty
Catchwords:	CRIMINAL LAW - Manufacture large commercial quantity of prohibited drugs - Expose child to manufacture of prohibited drug - Methylamphetamine - 3,4 MDMA CRIMINAL LAW - Supply commercial quantity of prohibited drug - Deemed supply - Knowledge of possession required - Ketamine CRIMINAL LAW - Possession of prescribed precursor - Intention of Accused regarding prescribed precursor - Pseudoephedrine CRIMINAL LAW - Available alternative of statutory count EVIDENCE - Evidence of witness criminally concerned
Legislation Cited:	Evidence Act 1995 Drug Misuse and Trafficking Act 1985. Firearms Act 1996 Weapons Prohibition Act 1998
Cases Cited:	Davies v DPP [1954] AC 378 DPP v Brooks [1974] AC 862 He Kaw Teh v The Queen (1985) 157 CLR 523 R v Chai (1992) 27 NSWLR 153
Category:	Principal judgment
Parties:	Regina (Crown) Leslie David Bernard Galway (Accused)
Representation:	P McGrath (Crown) G Wendler (Accused) W Chan (Accused) Director of Public Prosecutions (Crown) Van Houten Lawyers (Accused)
File Number(s):	2008/066133 2009/248133
Publication restriction:	No