R v Sarlija (No 2)

[2015] ACTSC 295

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Sarlija (No 2)

Citation:

[2015] ACTSC 295

Hearing Date:

21 September 2015

DecisionDate:

22 September 2015

Before:

Murrell CJ

Decision:

Guilty of the offence of trafficking in a controlled drug other than cannabis, namely heroin.

Not guilty of the offence of possessing a prohibited weapon without authority to do so.

Category:

Principal Judgment

Catchwords:

CRIMINAL LAW – Judge alone trial – particular offences – trafficking in a controlled drug other than cannabis – possessing a prohibited weapon without authority

Legislation Cited:

Criminal Code 2002 (ACT) ss 600, 601, 602(e), 603(7), 604, 632

Prohibited Weapons Act 1996 (ACT) ss 3A(1), 3A(3), 3B, 4A(1), 5, 17(1), sch 1, Dictionary
Supreme Court Act 1933 (ACT) s 68B

Criminal Code Regulation 2005 (ACT) reg 5, sch 1

Parties:

The Queen (Crown)

Benjamin Mark Sarlija (Accused)

Representation:

Counsel

Mr G Mansfield (Crown)

Mr J Robertson (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Sharman Lynch Solicitors (Accused)

File Number:

SCC 257 of 2014

MURRELL CJ:

1. In accordance with s 68B of the Supreme Court Act1933 (ACT), the accused elected to be tried by a judge alone and his legal practitioner certified that he had received advice and made the election freely.

1. The accused pleaded not guilty to the charges that on 20 June 2014 at Canberra he:

(a)trafficked in a controlled drug other than cannabis, namely heroin, contrary to s 603(7) of the Criminal Code 2002 (ACT). The maximum penalty is 10 years’ imprisonment and/or a substantial fine.

(b)possessed a prohibited weapon, namely a knuckle-duster, when he was not authorised to do so, contrary to s 5 of the Prohibited Weapons Act 1996 (ACT). The maximum penalty is five years’ imprisonment and/or a substantial fine.

1. The prosecution relies upon s 604 of the Criminal Code, which creates the presumption that, unless the contrary is proved, a person who possesses the trafficable quantity of a controlled drug has an intention to sell the drug.

1. The trafficable quantity for heroin is 5g and the commercial quantity is 2.5kg.

Separate Charges

1. I am aware that the two charges are being tried together as a matter of convenience. I must consider each charge separately and return a separate verdict of guilty or not guilty on each charge.

Right to Silence

1. When questioned by police, the accused answered some questions but declined to answer others. When questioned by police, an accused person is entitled to remain silent. Consequently, I draw no adverse inference against the accused on the basis that he exercised the right to silence and declined to answer some questions.

Onus and Standard of Proof

1. I am aware that the prosecution has the task of proving the guilt of the accused beyond reasonable doubt. The accused is presumed to be not guilty of each charge unless the prosecution proves him guilty beyond reasonable doubt in relation to that charge. As long as I have a reasonable doubt about his guilt on a charge, I…