R v McKenzie - [1999] TASSC 54

[1999] TASSC 54

CITATION: R v McKenzie [1999] TASSC 54

PARTIES:  R
  v
  McKENZIE, Ronald Leslie

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  458/1998
DELIVERED ON:  17 May 1999
DELIVERED AT:  Hobart
HEARING DATES:  12 - 16 April 1999
JUDGMENT OF:  Wright J

CATCHWORDS:

Criminal Law - Jurisdiction practice and procedure - Judgment and punishment - Sentence - Fact finding and evidence - Factual basis for sentence - Verdict - Sentence to be consistent with jury verdict - Special questions partially answered by jury - Effect.

Criminal Code 1924 (Tas), s381(c), (3) and (4).
Efionayi v Efionayi (1995) 16 Cr App R 380, applied.
R v Gill 52/1989, followed.
Walsh v Tattersall (1996) 188 CLR 77; Taylor v R 4/1997; Hill v R [1999] TASSC 29; Young (1990) 12 Cr App R 279; Dowdall and Smith (1992) 13 Cr App R 441, considered.

REPRESENTATION:

Counsel:
             Appellant:  T L McDermott
             Respondent:  L A Mason
Solicitors:
             Appellant:  T L McDermott
             Respondent:  Director of Public Prosecutions

Judgment Number: [1999] TASSC 54
Number of Paragraphs: 21

Serial No 54/1999
File No 458/1998

THE QUEEN v RONALD LESLIE McKENZIE

RULING AT TRIAL WRIGHT J

17 May 1999

The jury returned a unanimous verdict of guilty on a single count of trafficking. They were also asked to answer certain questions, but it became apparent on my questioning the foreman, that they were only unanimous in answering question 1(a) which they answered in the affirmative. As to question 1(b), and question 2, all that can be said is that there was no unanimous opinion expressed. The questions were in the following form:

"questions for the jury
(tcc s383(1)(c), (3) and (4))
1 Do you find that the accused was in possession:

(a) of 42 sachets containing methyl amphetamine on 30 January 1998

yes/no

(b) of a large sachet containing approximately 133.4 grams of powder, including methyl amphetamine found at 17 Delwood Drive on 30 January 1998

yes/no

2 Do you find that the accused supplied methyl amphetamine to other persons on any (and, if so, which) of the following dates:

14.10.97
22.10.97
24.10.97
27.10.97
11.11.97
15.1.98
30.1.98
yes/no

NB The jury is not obliged to make any of these findings."

A sentencing judge is required to impose sentence upon a version of facts which is consistent with the jury verdict but which is otherwise in accordance with such matters and circumstances as he finds to be established beyond reasonable doubt, based upon his perception and evaluation of the evidence (R v Gill 52/1989).

The jury verdict in the present case, taken in conjunction with the answer to question 1(a), indicates that the jury has found, at the very least, that the accused had possession of 42 sachets of methyl amphetamine and, on the basis of this possession, they have almost certainly inferred that he had it in his possession for the purpose of trafficking when he was apprehended by the police on 30 January 1998. However, I do…

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 McKenzie

Details

AGLC: R v McKenzie [1999] TASSC 54
Case: [1999] TASSC 54
Decision Date: 17 May 1999

CaseChat Overview and Summary

Ronald Leslie McKenzie was convicted of trafficking in methyl amphetamine, and the case was brought before the Supreme Court of Tasmania for sentencing. The jury returned a unanimous verdict of guilty on a single count of trafficking but failed to reach a unanimous agreement on specific questions regarding additional quantities of methyl amphetamine and the dates of supply. The court was required to determine whether the unresolved questions should impact the sentencing process and if the judge could make findings on these matters for the purpose of sentencing.

The court examined the legal principles surrounding the jury's role and the judge's ability to make findings for sentencing purposes. It was noted that while the jury's verdict must be considered, the judge is required to impose a sentence consistent with the jury's verdict but can rely on other established facts. The court rejected the defence's argument that the unresolved questions should disadvantage the accused and allow the most favourable version of facts from the defence's perspective. Instead, the court determined that each case must be assessed on its own facts and that the judge could make findings on unresolved issues for sentencing purposes, provided it was consistent with the jury's verdict.

The court found the accused to be in possession of 42 sachets of methyl amphetamine for the purpose of trafficking and also in possession of a large quantity of methyl amphetamine found at his residence for the same purpose. However, the court was unable to find beyond reasonable doubt that the accused was selling methyl amphetamine on the specific dates mentioned in the unresolved questions. The court ultimately decided to make its own findings on these matters to impose an appropriate sentence.

The court ordered the accused to serve a sentence of imprisonment, taking into account the findings made by the judge and the jury's verdict. The specific details of the sentence were not provided in the extract.

Orders