R v McCormick - [2011] NTSC 22

R v McCormick [2011] NTSC 22
PARTIES: The Queen
v

McCormick, John Reece

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:   SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:   20923110
DELIVERED:   28 March 2011
HEARING DATES:   22 March 2011
JUDGMENT OF:   KELLY J
CATCHWORDS:
R v Sandford, (1994) 72 A Crim R 160 (NSW CCA)
REPRESENTATION:
Counsel:
Plaintiff:   P Usher
Defendant:   T Berkley
Solicitors:
Plaintiff:   Director of Public Prosecutions
Defendant:   Robert Welfare
Judgment category classification:    C
Judgment ID Number:   KEL11007
Number of pages:   4

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
R v McCormick [2011] NTSC 22
No. 20923110
BETWEEN:

THE QUEEN

Plaintiff

AND:

JOHN REECE MCCORMICK

Defendant

CORAM: KELLY J
REASONS FOR DECISION
(Delivered 28 March 2011)

The accused is charged with (among other things) attempting to supply cannabis to Leon Chester.
Police had the Darwin River site where the events in question are said to have taken place under surveillance. Their evidence is that Chester was waiting at the Darwin River site on 10 July 2009 when McCormick arrived there. McCormick parked near Chester, they had a brief conversation, and then McCormick walked into the bush carrying a folded (or scrunched up) blue bag. He returned about 10 to 15 minutes later according to one police witness – 5 to 10 minutes later according to another – carrying 4 x 1 lb bags of cryo-vaced cannabis in the blue bag. He was walking back towards where the cars were parked and Chester was waiting, but was apprehended by police before he got there. Several cashes of cannabis were found by police in the area, one the day before, and two (close together) on the day of the arrest.
The Crown wishes to lead evidence that $5,000.00 was seized by police from the car of the alleged intended customer, Leon Chester.
Mr Berkley for the defence has objected to this evidence being called.
It can hardly be said that the evidence is not relevant and, therefore, prima facie, admissible. It has logical probative value. That is to say, the existence of a substantial amount of money in the cars of the alleged intended customer at the time and place in question tends to make the Crown case (that he was there to purchase cannabis from the accused) more likely. Taken in conjunction with other evidence led by the Crown (including recordings of intercepted telephone conversations between Chester and the accused, the presence of cannabis in the possession of the accused, and the caches of substantial amounts of cannabis in the near vicinity) this evidence is capable of supporting an inference that the accused was intending to supply cannabis to Chester on the day he was arrested.
Mr Berkley for the defence has applied to have this evidence excluded on the ground that its prejudicial effect outweighs its probative value.
In R v Sandford[1] Hunt CJ at CL said (at 178):
“Despite an apparently unshakeable misconception to the…

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 McCormick

Details

AGLC: R v McCormick [2011] NTSC 22
Case: [2011] NTSC 22
Decision Date: 28/03/2011

CaseChat Overview and Summary

In the case of The Queen v John Reece McCormick, the defendant was charged with attempting to supply cannabis. The alleged incident took place at the Darwin River site, where police had the location under surveillance. The prosecution's case was that McCormick arrived at the site, had a conversation with the intended recipient, Leon Chester, and then proceeded into the bush where he was apprehended by police shortly after returning with cannabis. The Crown sought to adduce evidence of $5,000 found in Chester’s car, which McCormick's counsel objected to on the grounds that its prejudicial effect outweighed its probative value.

The legal issue before the court was whether the evidence of the money found in Chester's car should be admitted. The court considered the relevance and probative value of the evidence, as well as its prejudicial effect. The court found that the evidence was relevant and its probative force was not outweighed by its prejudicial effect. The court noted that the prejudicial effect, if any, was that the evidence tended to establish the accused's guilt. The court also rejected the argument that it was unfair to admit the evidence as the Crown had not called Chester as a witness. The court held that it was open to the defence to submit to the jury that they should not infer the money was intended to purchase cannabis in the absence of evidence from Chester or anyone else.

The court ultimately ruled that the evidence of the money found in Chester's car was admissible. The court held that excluding this evidence would deprive the jury of a relevant part of the picture and was not required in the interest of fairness. The court's decision was based on the premise that the probative value of the evidence outweighed any prejudicial effect, and the defence was not unduly prejudiced by the Crown's decision not to call Chester as a witness.

Orders