R v Henderson (No 2) - [2020] ACTSC 147

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Henderson (No 2)
Citation:	[2020] ACTSC 147
Hearing Dates:	2 – 5 June 2020
DecisionDate:	5 June 2020
Before:	Elkaim J
Decision:	See [118]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judge Alone Trial – Traffic in controlled drug other than cannabis – possession of property suspected of being proceeds of crime – drive while licence suspended – circumstantial case – whether the accused had actual knowledge of the presence of the drug – reasonable conclusion inconsistent with guilt – verdict
Legislation Cited:	Crimes Act 1900 (ACT) s 114C Criminal Code 2002 (ACT) s 603(7) Criminal Code Regulation 2005 (ACT) sch 1 Evidence Act 2011 (ACT) ss 18, 160 Public Health Act 1997 (ACT) s 135A Road Transport (Driver Licensing) Act 1999 (ACT) s 32(2) Supreme Court Act 1933 (ACT) s 68B
Cases Cited:	Filipetti v The Queen (1978) 13 A Crim R 335
Parties:	The Queen (Crown) Grant Mathew Henderson (Accused)
Representation:	Counsel S McFarland (Crown) C Watson (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Accused)
File Number:	SCC 221 of 2019; SCC 222 of 2019

ELKAIM J:

This is a judge alone trial pursuant to s 68B of the Supreme Court Act 1933 (ACT).

The accused is facing one count in an indictment dated 27 September 2019. The charge alleges that on 13 October 2018, the accused trafficked in a controlled drug other than cannabis, namely cocaine (CC12729/2018), in contravention of s 603(7) of the Criminal Code 2002 (ACT).

There are also two transfer charges, firstly that he was in possession of property suspected of being proceeds of crime (CC12730/2018) and secondly that he drove a motor vehicle while his licence was suspended (CC12731/2018). For convenience, I will refer to the three offences as Charges 1 (trafficking), 2 (proceeds of crime) and 3 (suspended licence) respectively.

The accused pleaded ‘not guilty’ to the three charges.

There are some basic matters I should state before I look at the case in any detail.

The Crown must prove its case beyond reasonable doubt. The accused is presumed to be innocent. Suspicion and probability must play no part. As long as there is a reasonable doubt, the accused must be found not guilty.

The Crown does not have to prove the truth of each fact that is asserted in its case. However, it must prove each legal element of the charge beyond reasonable doubt.

The facts that I find must be based on the evidence; that is, the evidence given by the witnesses and that are contained in any exhibits. In addition, in assessing the evidence, I must apply my common sense. I must do so with an open and unbiased mind, hearing the evidence clinically and dispassionately and not letting emotion enter into the decision-making process.

I must also remind myself of the principles involved with deciding a case based on circumstantial evidence.

Circumstantial evidence can be contrasted with direct evidence. Direct…

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 Henderson (No 2)

Details

AGLC: R v Henderson (No 2) [2020] ACTSC 147
Case: [2020] ACTSC 147
Decision Date: 5 June 2020

CaseChat Overview and Summary

In this case, the respondent, Henderson, was charged with trafficking in a controlled drug other than cannabis, possession of property suspected of being proceeds of crime, and driving while his licence was suspended. The case was heard by the Supreme Court of South Australia, presided over by the Honourable Justice Gilmour. The respondent was tried by a judge alone, without a jury.

The central legal issue the court had to address was whether the circumstantial evidence presented by the prosecution was sufficient to establish beyond reasonable doubt that Henderson had actual knowledge of the presence of the drug in the vehicle he was driving. The court also considered whether the evidence was consistent with his guilt.

Justice Gilmour concluded that the evidence presented by the prosecution did not establish beyond reasonable doubt that Henderson had actual knowledge of the presence of the drug. The court found that the circumstantial evidence was not sufficient to exclude every reasonable hypothesis other than guilt. Consequently, the respondent's verdict of not guilty was upheld.

As a result of the court's findings, the appeal against the respondent's conviction was dismissed, and the appeal against his sentence was allowed. The matter was remitted to the Magistrates Court for the respondent to be sentenced in accordance with the law.

Orders

Orders of the court

See [118]

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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