R v Nchucki

[2017] ACTSC 287

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Nchucki

Citation:

[2017] ACTSC 287

Hearing Dates:

7-8 March 2017, 18-19 April 2017, 7-8 August 2017

DecisionDate:

3 October 2017

Before:

Robinson AJ

Decision:

See [116]-[118]

Catchwords:

CRIMINAL LAW ––  STAY OF PROCEEDINGS –– application for stay – abuse of process – human rights – prosecutorial discretion – no relevant unfairness

DRUG OFFENCES – Judge-Alone Trial – Supply – Onus of Proof – legal burden of proving that accused did not have possession of the controlled drug with intention of selling – whether articles matched statutory description – search warrants – admissions of fact – accused’s drug use – value of drugs – security concerns –other items found to reasonably be regarded as supporting inference – evidence of the accused – must not speculate about what evidence a person may or may not have given if called by the accused to give evidence – may be many reasons for the telling of a lie apart from the realisation of guilt – accused has not discharged burden of proving he had the drugs in his possession other than with the intention of selling – hand-held electronic devices – convicted on four counts to which the accused pleaded not guilty – convicted on count to which accused pleaded guilty

Legislation Cited:

Criminal Code 2002 (ACT) ss 59(c), 601(2), 604(1)(d)

Criminal Code Regulation 2005 (ACT) s 9, Schedule 1
Evidence Act 2011 (ACT) s 70
Human Rights Act 2004 (ACT)
Prohibited Weapons Act 1996 (ACT)
Supreme Court Act 1933 (ACT) s 68

Cases Cited:

Dyers v The Queen [2002] HCA 45; 210 CLR 285

Edwards v R (1993) 178 CLR 193
Jones v Dunkel (1959) 101 CLR 298
Radi v R [2010] NSWCCA 265
R v Corish [2006] SASC 369; 96 SASR 207
R v Lane [2011] NSWCCA 157; 221 A Crim R 309
R v Nguyen [2010] SASCFC 23; 108 SASR 66
Steinberg v FCT (1975) 134 CLR 640

Zoneff v R [2000] HCA 28; 200 CLR 234

Parties:

The Queen (Crown)

Mohamed Nchucki (Accused)

Representation:

Counsel

Ms Campbell (Crown)

Mr J Pappas (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Ben Aulich & Associates (Accused)

File Numbers:

SCC 172 of 2016; SCC 174 of 2016

ROBINSON AJ:

1. Upon arraignment before me, Mr Mohamed Nchucki, the accused, pleaded not guilty to the following counts in the indictment preferred against him. I set out these counts with some paraphrasing.

·Count 1 – That on 26 November 2014 at Canberra in the Australian Capital Territory he trafficked in a controlled drug other than cannabis namely cocaine;

·Count 2 – That on 26 November 2014 at Canberra in the Australian Capital Territory he trafficked in a controlled drug other than cannabis namely MDMA;

·Count 3 – That on 26 November 2014 at Canberra in the Australian Capital Territory he trafficked in a controlled drug other than cannabis namely methylamphetamine;

·Count 4 – That on 26 November 2014…