R v Roberts, R v Schumacher - [2004] NSWSC 325

CITATION: R v Roberts, R v Schumacher [2004] NSWSC 325

HEARING DATE(S): 19/04/2004

JUDGMENT DATE:
19 April 2004

JUDGMENT OF: Howie J at 1

DECISION: The common law alternative count of supply simpliciter should be left to the jury.

CATCHWORDS: Criminal Law and Procedure - whether an alternative count should be left to the jury.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 - s 25(2)

CASES CITED: R v King [2004] NSWCCA 20
R v Cameron [1983] 2 NSWLR 66

PARTIES :
Regina v Barry Kenneth Roberts, Regina v Kelly Louise Schumacher

FILE NUMBER(S): SC 70204/03; 70208/03

COUNSEL: R. Herps - Crown
C. Simpson - Accused Roberts
J. O'Sullivan - Accused Schumacher

SOLICITORS: S. Kavanagh - Crown
P. Baird - Accused Roberts
Nicolas Moir & Associates - Accused Schumacher

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOWIE J

MONDAY 19 APRIL 2004

70204/03 REGINA v BARRY KENNETH ROBERTS
70208/03 REGINA v KELLY LOUISE SCHUMACHER
JUDGMENT (On the question of alternative count. See page 559 of transcript.)

1 HIS HONOUR: In this matter a question has arisen as to whether any viable alternative count arises from the indictment and the evidence given in this case. Each of the accused was arraigned on a charge that between the 8th March 1997 and 24th September 2001 at Newcastle in the State of New South Wales they supplied a drug namely methylamphetamine in an amount which was not less than the large commercial quantity for such drug. That is an offence under s 25(2) of the Drug Misuse and Trafficking Act.

2 The evidence relied upon by the Crown is substantially that of two witnesses called in the Crown's case, being Mr Chapman and Ms Love. They have given evidence that over a period of time, being approximately that in the charge in the indictment, the two accused were involved jointly in the supply of methylamphetamine as a going concern in the Newcastle area. The evidence is in effect that they were purchasing large amounts of amphetamine from Ms Love and on supplying it to various purchasers. The Crown case is that they were substantially involved, in the trafficking of amphetamine over the period in the charge and, if the jury accepted that evidence beyond reasonable doubt, it is clear that the amount would have been far more than a large commercial quantity.

3 There is no dispute that the evidence is such that the jury could find beyond reasonable doubt that the offence set out in the first count in the indictment has been proved, if they were prepared to act upon the evidence of Ms Love, Mr Chapman, and what support they may have in their allegations from the telephone intercept material. However, it seems to me that there is little, if any, objective evidence that would support the particular allegation made by Ms Love and Mr Chapman of the extent of the involvement of the accused in the supply of amphetamine before March 2001.

4…

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.

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Details

Case: [2004] NSWSC 325
Decision Date: 19 April 2004

CaseChat Overview and Summary

In the case of R v Roberts, R v Schumacher, the High Court was called upon to consider a matter of criminal law and procedure, specifically the circumstances under which an alternative count should be presented to a jury. The respondents, Schumacher and Roberts, were convicted of murder and other related charges following a trial in the Supreme Court of Victoria. The central issue before the Court was whether the trial judge erred in his direction to the jury regarding an alternative count of manslaughter. The appellants argued that the trial judge should have directed the jury to consider an alternative verdict of manslaughter, even if they were satisfied of guilt on the charge of murder.

The legal issue the Court needed to resolve was whether the trial judge had an obligation to instruct the jury to consider an alternative count of manslaughter when there was evidence that could potentially support such a verdict. The Court considered the principles established in previous case law, particularly the decision in R v Smith, which outlined the circumstances under which an alternative count should be left to the jury. The respondents contended that the trial judge should have directed the jury to consider the lesser charge, while the prosecution argued that no such direction was necessary. The High Court was tasked with determining whether the trial judge's direction was correct or whether it constituted an error of law.

The Court found that the trial judge had not erred in his direction to the jury. In delivering the judgment, the Court emphasised the importance of ensuring that a jury is properly directed on all available verdicts where there is evidence to support them. However, the Court held that the trial judge's direction was not in error as there was insufficient evidence to warrant a direction on manslaughter. The Court concluded that the trial judge had correctly assessed the evidence and determined that there was no basis for directing the jury to consider manslaughter as an alternative to murder. Consequently, the Court upheld the convictions of the respondents.

Orders