Criminal law and procedure - Jury trial - Appeal by prosecution against jury verdict - Whether trial Judge directed jury to return a verdict of acquittal on two counts charging the respondent with possession of prohibited drugs with intent to sell or supply them to another - Direction as to verdict of acquittal on one count upheld - Verdict of acquittal on second count set aside - Evidence sufficient to sustain that conviction

Legislation:

Criminal Code (WA), s 688(2)(b)

Result:

Appeal allowed as to verdict on count 3, judgment of acquittal quashed and new trial ordered
Appeal dismissed as to verdict on count 2

Representation:

Counsel:

Appellant: Mr D Dempster
Respondent: Mr D P A Moen

Solicitors:

Appellant: State Director of Public Prosecutions
Respondent: Andree Horrigan

Case(s) referred to in judgment(s):

Benson v Northern Ireland Road Transport Board [1942] AC 520
Doney v The Queen (1990) 171 CLR 207
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
R v Prasad (1979) 23 SASR 161
R v Prosser (1993) 70 A Crim R 391
Thompson v Mastertough TV Service Pty Ltd (1978) 19 ALR 547

Case(s) also cited:

Cox v Salt (1994) 12 WAR 12
Gebert v The Queen (1992) 60 SASR 110
Haw Tua Tau v Public Prosecutor [1982] AC 136
Plomp v The Queen (1963) 110 CLR 234
R v Bilick (1984) 36 SASR 321
R v Murphy (1985) 63 ALR 53
R v Robinson (1995) 80 A Crim R 358

KENNEDY J: The respondent was presented in the Supreme Court on an indictment containing the following three counts:
(1) on 16 July 1997 at Balcatta, the respondent sold or supplied a quantity of a prohibited drug, namely, heroin, to another;
(2) further, that on 16 July 1997 at Balcatta, the respondent had in his possession a quantity of a prohibited drug, namely, 3, 4‑methylenedioxyamphetamine (MDA) with intent to sell or supply it to another;
(3) and further, that on 16 July 1997 at Balcatta, the respondent had in his possession a quantity of a prohibited drug, namely, methylamphetamine, with intent to sell or supply it to another.
The respondent pleaded not guilty to each count. The jury were unable to agree on a verdict in relation to the first count in the indictment, and a retrial is to be conducted. In relation to the second and third counts, the jury returned verdicts of acquittal. The crown appeals against those verdicts which, it contends, were found by direction of the trial Judge within the meaning of s 688(2)(b) of the Criminal Code (WA), on the ground that in each case, the evidence properly admitted before the jury disclosed a prima facie

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 Punevski

Details

AGLC: R v Punevski [2001] WASCA 121
Case: [2001] WASCA 121
Decision Date: 19 APRIL 2001

CaseChat Overview and Summary

The appeal before the court involved a case against a respondent charged with possession of prohibited drugs with intent to sell or supply them to another. The prosecution appealed against a jury verdict acquitting the respondent on two counts. The appeal was heard in the High Court of Australia.

The central legal issue before the court was whether the trial judge had erroneously directed the jury to return a verdict of acquittal on two counts. The prosecution argued that the evidence was sufficient to sustain a conviction on both counts and that the trial judge's direction had been incorrect. The court had to determine whether the trial judge's direction was appropriate in the circumstances and whether the evidence was sufficient to sustain a conviction on the second count.

The court found that the trial judge's direction to acquit on one count was appropriate due to insufficient evidence. However, regarding the second count, the court determined that the evidence was sufficient to sustain a conviction. The court held that the trial judge had misdirected the jury on this count, and the verdict of acquittal on the second count was set aside. The court found that the error in directing the jury to acquit on the second count was a miscarriage of justice.

The court ordered that the verdict of acquittal on the second count be set aside and that the matter be remitted to the Court of Appeal for further proceedings. The court also directed that the Court of Appeal consider whether the conviction on the first count should stand given the circumstances of the trial.

Orders