R v SH

Case [2014] NSWCCA 218 15 October 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v SH [2014] NSWCCA 218
Hearing dates: 8 September 2014
Decision date: 15 October 2014
Before: Macfarlan JA at [1];
Fullerton J at [40];
Hamill J at [41]
Decision:
Appeal dismissed.

Catchwords:
CRIMINAL LAW - appeal under s 107 Crimes (Appeal and Review) Act 2001 (NSW) against directed acquittal - respondent found in possession of cardboard containing unascertained quantity of prohibited drug (lysergide) - charged with supply of not less than large commercial quantity of prohibited drug - weight of cardboard containing lysergide exceeded that required for large commercial quantity - whether evidence capable of establishing elements of offence when weight of lysergide not established - whether cardboard an "admixture" within s 4 of Drug Misuse and Trafficking Act 1985 (NSW) - "question of law alone" - question posed by ground of appeal does not arise - appeal dismissed
CRIMINAL LAW - appeal under s 107 Crimes (Appeal and Review) Act 2001 (NSW) against directed acquittal - application by Crown during respondent's address for leave to amend ground of appeal - application refused - relevant considerations identified
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 107
Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 4, 25, 29, 43, Sch 1
Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175
Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126
Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389
Davern v Messel [1984] HCA 34; 155 CLR 21
Fletcher International Exports Pty Ltd v Lott [2010] NSWCA 63
Green v The United States 355 US 184 (1957)
HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292
Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390
Landsman v Director of Public Prosecutions [2013] NSWCA 369
OV v Members of the Board of the Wesley Mission Council [2010] NSWCA 155; 79 NSWLR 606
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Carroll [2010] NSWCCA 55; 77 NSWLR 45
R v JW [2010] NSWCCA 49; 77 NSWLR 7
R v PL [2009] NSWCCA 256; 199 A Crim R 199
R v R2 (1990)19 NSWLR 513
Richards v Cornford (No 3) [2010] NSWCA 134
Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397
Williams v The Queen [1986] HCA 88; 161 CLR 278
Category: Principal judgment
Parties: Regina (Appellant)
SH (Respondent)
Representation: Counsel:
N Williams (Appellant)
G Bashir (Respondent)
Solicitors:
S Kavanagh, Solicitor for Public Prosecutions (Appellant)
Legal Aid NSW (Respondent)

File Number(s): 2013/43895
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2014-06-02 00:00:00

Before:

Jeffreys DCJ

File Number(s):

2013/43895

Judgment

MACFARLAN JA: This is an appeal by the Crown under s 107 of the Crimes (Appeal…

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 SH

Details

AGLC: R v SH [2014] NSWCCA 218
Case: [2014] NSWCCA 218
Decision Date: 15 October 2014

CaseChat Overview and Summary

The appeal before the court involved the respondent, SH, who had been found in possession of a cardboard containing an unascertained quantity of the prohibited drug lysergide. The respondent was charged with supplying not less than a large commercial quantity of a prohibited drug, an offence under the Drug Misuse and Trafficking Act 1985 (NSW). The weight of the cardboard containing the lysergide exceeded the threshold required for a large commercial quantity. The central issue before the court was whether the evidence was capable of establishing the elements of the offence when the exact weight of the lysergide was not established and whether the cardboard could be considered an "admixture" within the meaning of section 4 of the Act.

The court examined whether the question posed by the ground of appeal constituted a question of law alone. It determined that the question did not arise as it required the court to make findings of fact that were not made at the trial. The court held that the appeal did not present a question of law alone and dismissed the appeal. Additionally, the court considered an application by the Crown for leave to amend the ground of appeal during the respondent's address. The court identified relevant considerations and refused the application.

The court's decision was based on the understanding that the appeal did not involve a question of law alone but required factual determinations that were not made during the trial. The court emphasised that the weight of the lysergide and the nature of the cardboard as an admixture were factual matters that needed to be established before the appeal could proceed on a legal basis. The court's refusal to amend the ground of appeal highlighted the importance of adhering to procedural rules and the necessity for clear and precise grounds of appeal.

Orders