R v McCoy - [2001] NSWCCA 255

Reported Decision:
51 NSWLR 702
123 A Crim R 81

New South Wales

Court of Criminal Appeal

CITATION: R v McCOY [2001] NSWCCA 255

FILE NUMBER(S): CCA 60426 of 2000

HEARING DATE(S): 4 July 2001

JUDGMENT DATE:
4 July 2001

PARTIES :

Regina
Robert Ellis McCoy

JUDGMENT OF: Giles JA at 1; Hulme J at 2; Adams J at 20

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/1072

LOWER COURT JUDICIAL
OFFICER : Shillington DCJ

COUNSEL : Crown: MC Grogan
Appellant: P Byrne SC

SOLICITORS: Crown: SE O'Connor
Appellant: Kremmer Townsend

DECISION: Appeal allowed; Conviction squashed; Verdict of acquittal entered

- 1 -IN THE COURT OF

CRIMINAL APPEAL

CCA 60426/00

GILES JA

HULME J

ADAMS J

4 July 2001

REGINA v Robert Ellis McCOY

JUDGMENT

1 GILES JA: I agree with Hulme J.

__________

2 HULME J: On 3 April 2000, the Appellant was convicted before His Honour Judge Shillington and a jury of a charge -

“that he between 1 December 1995 and 30 June 1996 … did knowingly take part in the manufacture of a prohibited drug, namely methylamphetamine.”

3 Despite the extent of the period encompassed by the charge, the matter was put to the jury on the basis of activities being carried on at, and just prior to, the time of the Appellant’s arrest on 13 June 1996. This makes it unnecessary for this Court to consider whether the Appellant was involved in the manufacture, which apparently occurred, of methylamphetamine on other occasions or, as will be seen, on another basis.

4 On 9 June 2000, he was sentenced to imprisonment for a period of 1 year such sentence being suspended upon the Appellant entering a good behaviour bond for a term of 1 year.

5 The Appellant appealed on 3 grounds:

1. The learned trial Judge erred in failing to direct the jury to find the appellant not guilty at the close of the Crown case.

2. The learned trial Judge erred in determining that the evidence was capable of proving the offence charged notwithstanding that there was evidence to establish that the offence was incapable of being committed by the appellant in the manner alleged.

3. The verdict of guilty is unreasonable, cannot be supported having regard to the evidence or otherwise represents a miscarriage of justice.

6 At the conclusion of the hearing of the appeal the Court ordered that the appeal be allowed, the appellant’s conviction quashed, and a verdict of acquittal entered, with reasons to be published at a later date. There are my reasons for concurring in those orders.

Grounds 1 and 2

7 These grounds may be considered together. The foundation for them lies in the fact that the undisputed evidence in the trial was that the chemicals in fact being used in the course of an attempt to produce methylamphetamine were incapable of leading to that result. Apparently, the nature of the chemicals had been misrepresented to those whom the Appellant was said…

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 McCoy

Details

AGLC: R v McCoy [2001] NSWCCA 255
Case: [2001] NSWCCA 255
Decision Date: 4 July 2001

CaseChat Overview and Summary

The case of R v McCoy involved an appeal against a conviction for knowingly taking part in the manufacture of a prohibited drug, specifically methylamphetamine, between 1 December 1995 and 30 June 1996. The conviction was made in the District Court, presided over by Judge Shillington, and was subsequently appealed to the New South Wales Court of Criminal Appeal. The appellant, Robert Ellis McCoy, was sentenced to a one-year imprisonment, suspended upon the condition of entering a good behaviour bond for a term of one year. The appeal was based on three grounds: the trial judge's failure to direct the jury to find McCoy not guilty at the close of the Crown case, the trial judge's determination that the evidence was capable of proving the offence charged, and the unreliability of the guilty verdict given the evidence.

The legal issues that the Court of Criminal Appeal had to decide were primarily whether the appellant could be found guilty of the offence of knowingly taking part in the manufacture of a prohibited drug when the chemicals used in the process were incapable of producing the drug in question. This issue hinged on the interpretation of the relevant provisions of the Drug Misuse and Trafficking Act 1985, particularly the definitions of 'manufacture' and the circumstances under which one could be said to take part in such a process. The appeal also raised questions about the impact of impossibility on criminal liability within the context of drug manufacturing offences.

The Court of Criminal Appeal, in its judgment, found that the appellant's conviction could not stand as the evidence demonstrated that the chemicals used in the alleged manufacturing process were incapable of producing methylamphetamine. The Court reasoned that for an offence of knowingly taking part in the manufacture of a prohibited drug to be established, there must be a process of manufacture of the drug in which the offender participates. In this case, the process as presented to the jury—the one underway at and just prior to the appellant's arrest—was always impossible due to the inappropriateness of the chemicals used. This meant that the appellant's actions, however genuine his belief, did not constitute a step in the process of manufacturing methylamphetamine. The Court concluded that while the appellant might have been involved in an attempt to manufacture the drug, he was not guilty of the offence as charged. The appeal was allowed, the conviction was quashed, and a verdict of acquittal was entered.

Orders