R v Peter Kain - [2009] ACTSC 103

HUMAN RIGHTS ACT 2004 (ACT)

R v PETER KAIN
[2009] ACTSC 103 (26 August 2009)

CRIMINAL LAW – trial by Judge alone – drug offences – possession of drug of dependence – drugs found in person – contravention of s 4(2) of Intoxicated People (Care and Protection) Act 1994 (ACT) – discretion to admit evidence obtained in contravention of an Australian law – rule in Brown v Dunn applied – leave recall of police witness exercised – circumstantial evidence of exclusive possession and knowledge – finding of guilt in respect of the charge

Supreme Court Act 1933 (ACT), s 68
Intoxicated People (Care and Protection) Act 1994 (ACT), ss 4, 5
Evidence Act 1995 (Cth), s 46, s 138
International Covenant on Civil and Political Rights, article 9
Crimes Act 1900 (ACT), s 351
Human Rights Act 2004 (ACT), ss 18, 30

Brown v Dunn (1893) 6 R 67
MWJ v The Queen (2005) 222 ALR 436

No. SCC 251 of 2008

Judge: Gray J
Supreme Court of the ACT

Date: 26 August 2009

IN THE SUPREME COURT OF THE       )
  )          No. SCC 251 of 2008
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN
v
PETER KAIN

ORDER

Judge:  Gray J
Date:  26 August 2009
Place:  Canberra

THE COURT ORDERS THAT:

The accused is guilty of the charge that on 14 September 2007 he possessed a drug of dependence, namely methylamphetamine.

Peter Kain has pleaded not guilty to a charge that on the 14^th day of September 2007 at Canberra he possessed a drug of dependence namely methylamphetamine.

Pursuant to s 68 of the Supreme Court Act 1933 (ACT), Mr Kain elected for trial by Judge alone.

The circumstances

In the early hours of Friday, 14 September 2007, three police Constables on the “City Beats Team” observed a person, who was later identified as Mr Kain, and who, in their view, was “acting aggressively” in front of Academy nightclub at Bunda Street in Civic. At the time there were a large number of people gathered out the front of the night club. Mr Kain, who was wearing a ripped yellow t-shirt, apparently observed the police vehicle in which the officers were in approaching the area and “started to run towards Garema Place”. One of the police officers, Constable Wolfkamp, pursued him down an alleyway. Another, Constable Beaver, took off in a different direction to intercept him where the laneway came out at another location and the third police officer, Constable Mokrij, drove the police vehicle towards the southern side of Garema Place. Constable Wolfkamp apprehended Mr Kain in that alleyway near where Constable Mokrij was. Constable Beaver and Constable Mokrij intercepted the two other males who had run off with Mr Kain. Constable Wolfkamp placed Mr Kain into custody by “placing one hand on Mr Kain’s arm and grabbing the top of his shoulder”. Mr Kain was then “placed” on the ground and handcuffed. He was then “walked” to the police vehicle which was parked out the front of the…

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 Peter Kain

Details

AGLC: R v Peter Kain [2009] ACTSC 103
Case: [2009] ACTSC 103
Decision Date: 26 August 2009

CaseChat Overview and Summary

The case of R v Peter Kain involved the accused, Peter Kain, who was charged with possessing a drug of dependence, specifically methylamphetamine. The incident occurred on 14 September 2007, when Kain was found in possession of the drug. The matter was heard by a judge alone in the Magistrates Court of the Australian Capital Territory. The primary issue before the court was whether the evidence obtained in contravention of the Intoxicated People (Care and Protection) Act 1994 (ACT) could be admitted and whether it was sufficient to establish Kain's guilt beyond reasonable doubt.

The court was required to determine whether the evidence of the drugs found in Kain's possession could be admitted, given it was obtained in contravention of section 4(2) of the Act. The court also had to decide whether the circumstantial evidence, including the presence of the drug on Kain's person and other relevant circumstances, was sufficient to establish his exclusive possession and knowledge of the drug. The court exercised its discretion under the common law rule in Brown v Dunn, which allows for the admission of evidence obtained in contravention of an Australian law if it is satisfied that the evidence is relevant and its admission would not cause substantial injustice. Additionally, the court recalled a police witness to provide further evidence regarding the circumstances of the drug discovery.

The court found that the evidence obtained in contravention of the Act was admissible, as it was relevant to the case and its admission did not result in substantial injustice. The court considered the circumstantial evidence, including Kain's possession of the drug and the absence of any plausible explanation for its presence, sufficient to establish his exclusive possession and knowledge of the drug. Consequently, the court found Kain guilty of the charge of possessing a drug of dependence, specifically methylamphetamine, on 14 September 2007.

Orders

Orders of the court

The accused is guilty of the charge that on 14 September 2007 he possessed a drug of dependence, namely methylamphetamine.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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