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R v Jasper

R v Jasper

Case [2003] NSWSC 285 11 April 2003

Supply Prohibited Drug

Challenge to Indictment

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CITATION: R v Jasper [2003] NSWSC 285

HEARING DATE(S): 27 February 2003

JUDGMENT DATE:
11 April 2003

JURISDICTION:
Common Law Division
Criminal

JUDGMENT OF: Dunford J

DECISION: Proceedings on counts 3 & 4 in indictment permanently stayed and said counts quashed.

CATCHWORDS: CRIMINAL LAW - supply prohibited drug - "permit" supply - what constitutes - police officer not taking steps to prevent supply - CRIMINAL LAW & PROCEDURE - challenge to indictment - evidence available insufficient to constitute offence - when depositions from committal can be looked at - demurrer - motion to quash - permanent stay - appropriate order

LEGISLATION CITED: Crimes Act 1900, s 249B
Criminal Procedure Act 1986, s 61(1) & (2)
Drug Misuse and Trafficking Act 1985, ss 3, 25(1) & (2)
Police Service Act 1990

CASES CITED: Adelaide Corporation v Australasian Performing Right Association Limited (1928) 40 CLR 481
Broad v Parish (1941) 64 CLR 588
Ex parte Jenkins; Re Ross [1965] NSWR 364
R v Bett [1999] 1 WLR 2109
R v Bradbury [1996] Crim LR 808
R v Chairman, County of London Quarter Sessions (1953) 2 QB 750
R v Glynn (1994) 33 NSWLR 139
R v Inner London Quarter Sessions [1970] 2 QB 80
R v Jones (1974) 59 Cr App R 120
R v Lonie & Groom [1999] NSWCCA 319
R v Sanewski [1987] 1 Qd R 374
R v Smith [1995] 1 VR 10
R v Souter (1971) 55 Cr App R 403
R v Thomas (1976) 63 Cr App R 65
R v von Snarski [2001] QCA 71
R v Wilk (1982) 32 SASR 12
Ridgeway v The Queen (1995) 184 CLR 19
The King v Boston (1923) 33 CLR 386
Walton v Gardiner (1993) 177 CLR 378

PARTIES :
R (NSW) (Respondent)
Matthew John Jasper (Applicant/Accused)

FILE NUMBER(S): SC 70088/02

COUNSEL: PE Barrett (Crown/Respondent)
J Dailly SC (Applicant/Accused)

SOLICITORS: SE O'Connor (Crown/Respondent)
Walter Madden Jenkins (Applicant/Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL

DUNFORD J

Friday, 11 APRIL 2003
70088/02
R v Matthew John JASPER

(Matthew John JASPER v Director of Public Prosecutions (NSW))

JUDGMENT

1 His Honour: By Notice of Motion filed 3 December 2002 the applicant/accused sought a determination that the evidence sought to be relied on by the Crown to support two counts in an indictment presented against him on 31 October 2002 was not sufficient to constitute the offences charged, namely supply not less than a large commercial quantity of heroin, and in the alternative, supply heroin.

2 I heard submissions on the Motion on 27 February 2003 and ruled in favour of the applicant indicating that I would give my reasons at a later date. These are my reasons.

3 The applicant was charged in Count 3 as follows:

“Between 20 January 2000 and 16 December 2000 at Sydney in the State of New South Wales did supply a prohibited drug, namely heroin, being an amount not less than the large commercial quantity for that drug.”

4 He…

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 Jasper

Details

AGLC: R v Jasper [2003] NSWSC 285
Case: [2003] NSWSC 285
Decision Date: 11 April 2003

CaseChat Overview and Summary

The case involved an appeal by the respondent against his conviction for supplying a prohibited drug. The incident occurred when the respondent was observed by police handing over a container to a police officer. The officer did not take any steps to prevent the transaction. The appeal was heard in the Supreme Court of New South Wales. The respondent argued that the evidence was insufficient to establish the offence, and that the police officer's failure to take steps to prevent the supply meant there was no "permit" as required by the relevant legislation.

The legal issues before the court were whether the evidence was sufficient to prove the offence, and whether the police officer's failure to take steps to prevent the supply meant there was no "permit". The court needed to determine whether the depositions from the committal hearing could be looked at, and whether a demurrer or motion to quash was appropriate. The court also had to decide whether a permanent stay was the appropriate order.

The court held that the evidence was insufficient to prove the offence, as there was no evidence that the police officer had permitted the supply of the drug. The court also held that the depositions from the committal hearing could be looked at, and that a demurrer or motion to quash was appropriate in this case. The court granted a permanent stay of the proceedings against the respondent. The court found that the police officer's failure to take steps to prevent the supply meant that there was no "permit" as required by the legislation, and that the respondent could not be convicted of supplying a prohibited drug.

Orders