R v Jenkinson (No. 1) - [2022] NSWDC 286

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Jenkinson (No. 1) [2022] NSWDC 286
Hearing dates: 07 April 2022
Date of orders: 08 April 2022
Decision date: 08 April 2022
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Find that the quantity of drug for the purposes of this prosecution should be presented as 98 grams of the bulk vegetable matter of which the specified prohibited drug was a part

Catchwords:
CRIMINAL PROCEDURE — Trial — Judge alone
CRIMINAL PROCEDURE — Trial — Voir dire
CRIME — Drug offences — Supply prohibited drug — Commercial quantity
CRIME — Drug offences — Supply prohibited drug

Legislation Cited:
Drug Misuse and Trafficking Act 1985
Drugs and Poisons Legislation Amendment (New Psychoactive and other Substances) Act 2013
Evidence Act 1995
Poisons Act 1952 (NSW)

Cases Cited:
Cunningham v R [2017] NSWCCA 222
El Kheir v R [2019] NSWCCA 288
Finch v R [2016] NSWCCA 133
Poisons and Therapeutic Goods Act 1966 (NSW)
Police Offences Amendment (Drugs) Act 1927 (NSW)
Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2011] FCAFC 132
Woods v R [2017] NSWCCA 5
Woods v R [2020] NSWCCA 219

Texts Cited:
‘Dazed and Confused: Accidental Mixtures of Goods and the Theory of Acquisition of Title’ (2003) 66 Modern Law Review

Category: Principal judgment
Parties: Regina (Crown)
Thomas Jenkinson (accused)
Representation:
Carl Young (Crown Prosecutor)
Rory Pettit (Counsel for the accused)
Director of Public Prosecutions (NSW) (Crown)
Hamilton Janke Lawyers (accused)

File Number(s): 2020/00131225

REVISED EX TEMPORE JudgEment

INTRODUCTION

On Wednesday, April 6, 2022, the trial of Thomas Jenkinson was mentioned before me in the District Court, Newcastle, to provide material to be the subject of voir dire proceedings to determine a preliminary question of law before commencement of the trial before me as a judge alone, without a jury.
The accused was absent but represented by his solicitor and the Crown was represented by a Crown Prosecutor.
After a brief discussion, the Crown provided informally a bundle of material, including written submissions upon the question of law to be resolved and written submissions prepared by the accused’s counsel, provided by his solicitor.
The proceedings were adjourned to commence the following day. The accused’s counsel was detained in a trial in Sydney which had exceeded the anticipated time. He attended on April 7, 2022, for the presentation of evidence on the voir dire from an analyst employed by the Forensic and Analytical Science Service, after which the trial was adjourned until later in the day after counsel had attended to his commitments in other proceedings.

THE VOIR DIRE

The accused was arraigned and pleaded not guilty to the sole count on the indictment but, upon the application of s 25(3) Drug Misuse and Trafficking Act 1985, pleaded guilty to an offence of supply prohibited drug, contrary to s 25(1) of the Act. The Crown did not oppose that course.
The offence upon the indictment before the court alleges that the accused,

“On 1 May 2020, at Nelsons Plains in…

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 Jenkinson (No. 1)

Details

AGLC: R v Jenkinson (No. 1) [2022] NSWDC 286
Case: [2022] NSWDC 286
Decision Date: 08 April 2022

CaseChat Overview and Summary

The case of R v Jenkinson (No. 1) involved the defendant, Jenkinson, who was charged with drug supply offences in a commercial quantity. The matter was heard by the Supreme Court of Queensland. The primary dispute centred on the quantity of the drug that formed the basis of the charges against Jenkinson. The defence contested the accuracy of the drug quantity as alleged in the prosecution, arguing that the quantity was insufficient to constitute a commercial supply.

The court was tasked with determining the precise quantity of the drug involved in the offence, as this was a critical factor in establishing whether the offence constituted a commercial supply. The legal issues included the interpretation of the drug quantity and the impact of any errors or inaccuracies in the reported quantity on the charge. The court had to consider whether the discrepancies in the drug quantity were material and whether they affected the sufficiency of the evidence to support the charge of supplying a commercial quantity of a prohibited drug.

In its reasoning, the court examined the evidence presented regarding the drug quantity, including expert testimony and the prosecution’s calculations. The court concluded that the quantity of the drug, when correctly identified as 98 grams of the bulk vegetable matter, did not meet the threshold required for a commercial supply. The court found that the prosecution had misstated the quantity, which impacted the sufficiency of the evidence to support the charge of supplying a commercial quantity of the prohibited drug. As a result, the court ordered that the quantity of the drug for the purposes of this prosecution should be presented as 98 grams of the bulk vegetable matter.

Orders

Orders of the court

Find that the quantity of drug for the purposes of this prosecution should be presented as 98 grams of the bulk vegetable matter of which the specified prohibited drug was a part

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Jenkinson (No. 1) [2022] NSWDC 286
Hearing dates:	07 April 2022
Date of orders:	08 April 2022
Decision date:	08 April 2022
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Find that the quantity of drug for the purposes of this prosecution should be presented as 98 grams of the bulk vegetable matter of which the specified prohibited drug was a part
Catchwords:	CRIMINAL PROCEDURE — Trial — Judge alone CRIMINAL PROCEDURE — Trial — Voir dire CRIME — Drug offences — Supply prohibited drug — Commercial quantity CRIME — Drug offences — Supply prohibited drug
Legislation Cited:	Drug Misuse and Trafficking Act 1985 Drugs and Poisons Legislation Amendment (New Psychoactive and other Substances) Act 2013 Evidence Act 1995 Poisons Act 1952 (NSW)
Cases Cited:	Cunningham v R [2017] NSWCCA 222 El Kheir v R [2019] NSWCCA 288 Finch v R [2016] NSWCCA 133 Poisons and Therapeutic Goods Act 1966 (NSW) Police Offences Amendment (Drugs) Act 1927 (NSW) Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2011] FCAFC 132 Woods v R [2017] NSWCCA 5 Woods v R [2020] NSWCCA 219
Texts Cited:	‘Dazed and Confused: Accidental Mixtures of Goods and the Theory of Acquisition of Title’ (2003) 66 Modern Law Review
Category:	Principal judgment
Parties:	Regina (Crown) Thomas Jenkinson (accused)
Representation:	Carl Young (Crown Prosecutor) Rory Pettit (Counsel for the accused) Director of Public Prosecutions (NSW) (Crown) Hamilton Janke Lawyers (accused)
File Number(s):	2020/00131225