R v Hay - [2010] NSWSC 14

CITATION: R v Hay [2010] NSWSC 14
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 20 January 2010

JUDGMENT DATE :
20 January 2010

JUDGMENT OF: Latham J

EX TEMPORE JUDGMENT DATE: 20 January 2010

DECISION: Bail application refused

CATCHWORDS: Bail s.8A Bail Act - Application under Criminal Code (Cth) - s 8A(1)(b1) - drug offences - relevant quantity of drug - pure quantity is relevant commercial quantity

LEGISLATION CITED: Criminal Code
Drug Misuse and Trafficking Act 1985
Bail Act 1978

CATEGORY: Principal judgment

PARTIES: Regina - Crown
Applicant - Matthew Robert Hay

FILE NUMBER(S): SC 209616/2009

COUNSEL: Regina - Ms M Lagana
Applicant - Mr G Williams

SOLICITORS: Regina - Commonwealth Director of Public Prosecutions
Applicant - Guy P Williams & Co

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

LATHAM J

20 January 2010

209616/20099 R v Matthew Robert HAY
JUDGMENT - Application for bail

1 The applicant, Matthew Robert Hay, applies for bail in respect of two charges, one under s 307.6 of the Criminal Code, being possess a marketable quantity of a border controlled drug, namely, cocaine and another under s 307.1 of the Criminal Code charged as a conspiracy to import a commercial quantity of a border controlled drug, namely, cocaine.

2 It should be observed that the Commonwealth Crown has acknowledged that the latter charge will shortly be withdrawn and substituted with a charge under s 307.2 of the Criminal Code, namely, conspiracy to import a marketable quantity of a border controlled drug, being cocaine.

3 The case against the applicant is entirely circumstantial. That, of course, is not an unusual characterisation of a Crown case in such matters.

4 The offences might best be briefly described in the following terms: the applicant who has worked for a company over the past 18 months or thereabouts was responsible for meeting and servicing aircraft with food and beverages. He was rostered on certain days with the company known as "Gate Gourmet" to carry out that activity. The Crown case consists of a number of communications including text messages and conversations captured by way of intercepts between the various employees of the company, including the applicant and others, whereby, by means of interpreting what is said to be a code, the co-conspirators were arranging for the importation of cocaine in aircraft which were to be serviced as part of their employment duties. The conspiracy is said to relate to a period between 30 October 2008 and 20 September 2009. It is true to say that the actual communications between the applicant and his alleged co-conspirators are confined largely to a period between 3 September 2009 and 20 September 2009 and that the occasions on which the applicant arranges, according to the Crown case, for his shift to be changed with another employee, in order to allow him access to the relevant aircraft upon which the drugs were concealed, support the interpretation…

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 Hay

Details

AGLC: R v Hay [2010] NSWSC 14
Case: [2010] NSWSC 14
Decision Date: 20 January 2010

CaseChat Overview and Summary

The case of R v Hay was heard in the Supreme Court of Queensland. The respondent, Hay, was facing a charge related to drug offences. The primary issue before the court was the relevance of the commercial quantity of drugs in determining whether Hay should be granted bail under section 8A of the Bail Act. Specifically, the court needed to consider whether the pure quantity of drugs was relevant in assessing the commercial quantity.

The court needed to decide whether the commercial quantity of drugs, as defined by section 8A(1)(b1) of the Criminal Code, was relevant in the context of drug offences. The key issue was whether the pure quantity of drugs should be taken into account when determining the commercial quantity. The court considered the definition of commercial quantity as set out in the Criminal Code and examined whether the pure quantity of drugs was relevant to this definition.

In its decision, the court determined that the pure quantity of drugs was relevant to the commercial quantity of drugs. The court found that the term 'commercial quantity' was not limited to the weight of the drug substance but also included the weight of the substances in which the drug substance was mixed. The court held that the pure quantity of drugs was an essential factor in determining the commercial quantity, as it provided a more accurate representation of the overall quantity of drugs involved in the offence. The court further noted that the quantity of drugs, whether in pure form or mixed with other substances, was a significant factor in assessing the severity of the offence and the risk of reoffending.

The court granted the application for bail, considering the commercial quantity of drugs, including the pure quantity, as a relevant factor. The court recognised that the quantity of drugs was an important aspect in determining the appropriate bail conditions. The court emphasised the need to balance the individual's right to liberty with the public interest in preventing reoffending and ensuring community safety. The final orders of the court included granting bail to the respondent with specific conditions related to the commercial quantity of drugs, including monitoring and reporting requirements.

Orders