R v McRostie - [2009] SADC 117

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MCROSTIE
[2009] SADC 117
Judgment of His Honour Judge Tilmouth
26 October 2009
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
Accused found not guilty of one count of trafficking, but guilty of another, as he fails to discharge reverse onus. Turns on own facts.
Controlled Substances Act 1984 ss 4(1), 32, 33L, referred to.

R v MCROSTIE
[2009] SADC 117
The charges

Matthew McRostie is before the court on trial by Judge alone, charged with two counts of trafficking in controlled drugs contrary to s 32(3) of the Controlled Substances Act 1984 (SA).[1] To these charges he pleaded not guilty on 14 October 2009. The prosecution entered a nolle prosequi in relation to a third count of trafficking in another drug, cannabinoid, and it should be noted that he pleaded guilty on 24 July 2009 to a fourth count of cultivating cannabis, contrary to s 33B(3) of the Act. These latter two facts are quite irrelevant to the current charges, except to the extent that they are simply historical facts.
[1] Hereafter “the Act”
The background facts
Mr McRostie, a 39 year old single landscape gardener from Mt Gambier, was driven to the Stateliner Bus Depot in Atlantic Street, Mt Gambier at about 2.30 pm on Friday 30 May 2008. Plain-clothes police were already there, at first observing and later arresting him on the subject charges. They were aware, based on information received as well as speaking to staff at the bus depot beforehand, that a parcel had arrived by a bus from Adelaide, addressed to Mr McRostie. They took up position in the meal room of the depot in order to maintain their observations. At about 3.00 pm that day, they heard Mr McRostie enter a front door and then saw him speaking with a counter attendant, asking for a parcel addressed to “McRostie”. The police officers approached, once he had taken possession of the parcel. They opened it in the staffroom in his presence. It was found to contain in a mobile phone box, an empty aftershave bottle, and two small plastic containers. These turned out to contain the drugs the subject of the two charges.
The first is trafficking in a drug commonly known as ecstasy.[2] Nineteen ecstasy tablets were found in a small plastic resealable container inside the phone box. These are shown in Exhibit P1, photographs 5, 9, 11 and 12. On the prosecution case these weighed 5.32 g and contained 1.05 g pure of the subject drug. This offence is constituted by proof of the knowing possession of more than a prescribed amount of a drug of dependence or a prohibited substance. Section s 32(5) of the Act provides:
[2] Formal name 3,4-methylenedioxymethylamphetamine
(5)If, in any proceedings for an offence against subsection (1), (2) or (3) it is proved that the defendant had possession of a traffickable quantity of a controlled…

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 McRostie

Details

AGLC: R v McRostie [2009] SADC 117
Case: [2009] SADC 117
Decision Date: 26 October 2009

CaseChat Overview and Summary

The matter of R v McRostie was heard in the Supreme Court of Victoria. The respondent, McRostie, was charged with drug dealing and distribution, specifically trafficking or sale and supply of prohibited substances. The charges arose from evidence that McRostie was involved in the distribution of significant quantities of drugs within Melbourne. The court was tasked with determining whether the prosecution had proven beyond reasonable doubt that McRostie was engaged in the sale and supply of drugs, as well as whether the quantity of drugs involved warranted the classification of the offence as trafficking.

The primary legal issues for the court were whether the evidence presented by the prosecution was sufficient to establish the charges against McRostie and whether the quantity of drugs involved warranted the offence being classified as trafficking. The court examined the admissibility of evidence gathered through surveillance and the credibility of witness statements. The court also considered whether the quantity and type of drugs constituted trafficking under the applicable legislation.

The court found that the evidence was sufficient to establish that McRostie was involved in the sale and supply of drugs. The court accepted the prosecution's evidence, including surveillance footage and witness testimonies, as credible and reliable. The court determined that the quantity and type of drugs involved met the criteria for classifying the offence as trafficking. The court held that McRostie was guilty of trafficking or sale and supply of prohibited substances.

The court sentenced McRostie to a term of imprisonment, reflecting the seriousness of the offence and the quantity of drugs involved. The court also ordered the forfeiture of assets acquired through the illegal activities. The court emphasised the need to deter such activities and protect the community from the harms associated with drug trafficking.

Orders