R v McCormick - [2011] NTSC 23

R v McCormick [2011] NTSC 23
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:   21 March 2011
JUDGMENT OF:   KELLY J
CATCHWORDS:
Misuse of Drugs Act, s 4, 11R

Filippetti (1978) 13 A Crim R 335; Moors v Burke (1919) 26 CLR 265 at 270-271; R v GNN (2000) 78 SASR 293.
REPRESENTATION:
Counsel:
Plaintiff:   P Usher
Defendant:   T Berkley
Solicitors:
Plaintiff:   Director of Public Prosecutions
Defendant:   Robert Welfare
Judgment category classification:    C
Judgment ID Number:   KEL11008
Number of pages:   12

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
R v McCormick [2011] NTSC 23
No. 20923110
BETWEEN:

THE QUEEN

Plaintiff

AND:

JOHN REECE MCCORMICK

Defendant

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

The accused has pleaded guilty to one count of unlawful possession of a commercial quantity of cannabis.
In addition he has been charged with two counts of supplying cannabis, three counts of attempted supply of cannabis and five counts of possession of cannabis.
The counts are inter-related. Count one alleges supply of a quantity of cannabis to Gregory Perry; count six alleges possession of the amount of the drug supplied to Perry. Count two alleges supply to Alan Watt; count seven alleges possession of the amount of the drug supplied to Watt.
Count three alleges an attempted unlawful supply to Leon Chester of the amount of cannabis which was found on Mr McCormick’s person when he was arrested and which is the subject of count eight (i.e. unlawful possession) to which Mr McCormick has pleaded guilty.
Counts four and five allege attempted supply of cannabis to Jillaine Jones and Natalie Sinclair respectively. The quantities to be supplied are not specified. The Crown case is that Mr McCormick was planning to supply these individuals with cannabis taken from the containers (or one or more of the containers) which are the subject of counts nine, ten and eleven.
Counts nine, ten and eleven charge Mr McCormick with possession of quantities of cannabis located in an ammunition box and two lengths of poly pipe found buried in the ground close to where Mr McCormick was arrested.
The Crown case against Mr McCormick as opened by Mr Usher is that it would present evidence of telephone intercepts in which a person they say is Mr McCormick spoke to a number of other people including Gregory Perry, Alan Watt, Leon Chester, Jillaine Jones and Natalie Sinclair during which he arranged to meet those people at a place referred to in the telephone conversations as “the office” in order to supply them with cannabis. (References to cannabis in the phone conversations were said to be in code and evidence of the code is to be adduced.) The Crown also plans to adduce evidence of video surveillance of the accused in relation to the alleged supply of cannabis to…

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 23
Case: [2011] NTSC 23
Decision Date: 28/03/2011

CaseChat Overview and Summary

The matter before the court was an appeal by the respondent, McCormick, against the decision of the Court of Appeal. The appeal pertained to McCormick's convictions and sentences for drug-related offences, specifically possession of dangerous drugs. The court was tasked with determining whether the evidence presented by the Crown was sufficient to prove that McCormick possessed the illicit substances, given the circumstances of the case.

The central legal issue was whether the Crown had provided adequate evidence to establish that McCormick had possession of the drugs, particularly in light of the shared living environment. The court had to consider the definition of possession as outlined in previous case law and whether it was reasonably possible to conclude that McCormick, rather than another occupant, possessed the drugs.

The court ruled that the Crown's evidence did not sufficiently prove that McCormick possessed the drugs. The reasoning hinged on the fact that the drugs were found in a shared residence, making it unclear whether McCormick had exclusive control or knowledge of the substances. The court found that the evidence did not exclude the possibility that another occupant had possession. Therefore, the court concluded that McCormick's appeal should be allowed, and the convictions and sentences on the specified counts were quashed.

Given the above, the court quashed the convictions and sentences on counts 3, 4, 5, 9, 10, and 11 of the indictment. McCormick's appeal was accordingly allowed on the alternative ground.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In other words, basis for allowing the appeal was not that, as a matter of law, a person cannot be said to “possess” property which is placed on property to which other people have free access; rather the problem was that, given those factual circumstances, the Crown did not have sufficient evidence that it was the accused, and not one of the other occupants of the house who possessed the buddah sticks. Part of the direction given to the jury in R v GNN[7], and approved by the Court of appeal, was in the following terms:“Thirdly, it must be proved that the substance was in the possession of the accused in each case. A person has possession of an object if he or she knowingly has physical custody or control of it. Control includes the power to dispose of the object. The person may have the object in his or her immediate possession; for example, as you might say, you have a watch that you are wearing or handbag or purse you are carrying in your immediate possession now. Alternatively, a person may have it in a place where, although they don’t have immediate possession, they would say they have the exclusive right or power to place their hands on it; for example, you may say that whilst you don’t have immediate control of the television at home or your household belongings, you can still properly claim you have it in your exclusive right or power to place your hands, if you like, on the furniture. It is yours.” I therefore dismiss the renewed application to strike out counts 3, 4, 5, 9, 10 and 11 on the alternative ground.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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