R v Spicer - [2003] NSWCCA 108

Reported Decision:
139 A Crim R 206

New South Wales

Court of Criminal Appeal

CITATION: Regina v Spicer [2003] NSWCCA 108

HEARING DATE(S): 7 February 2003

JUDGMENT DATE:
23 April 2003

JUDGMENT OF: Santow JA at 1; Simpson J at 2; Smart AJ at 3

DECISION: (1) Appeal against conviction on the first count allowed; conviction quashed; verdict of acquittal entered (2) (a) Leave to appeal against sentence on the second count granted; sentence quashed (b) In lieu thereof the appellant is sentenced to imprisonment for three years commencing on 25 July 2001 with a non-parole period expiring on 24 April 2003 on which day the appellant is to be released on parole.

CATCHWORDS: Knowingly take part in manufacture of prohibited drug - more than transportation must be proved - conviction quashed - deemed supply of prohibited drug in liquid form and not able to be readily supplied - extent of penalty.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

CASES CITED: R v BD (2001) 128 A Crim R 28
R v Marchione [2002] NSWCCA 131
R v Thomas (1993) 67 A Crim R 308
R v Lee NSWCCA, unrep 6 December 1994
R v Bright [1916] 2 KB 441
R v Kingswell 158 CLR 281

PARTIES :
Regina v David Ernest Spicer

FILE NUMBER(S): CCA 60810/01

COUNSEL: (A) R Sutherland SC
(C) R Hulme SC

SOLICITORS: (A) Glenn K Walsh
(C) S E O'Connor

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/21/1021

LOWER COURT
JUDICIAL OFFICER : Luland DCJ

60810/01

SANTOW JA

SIMPSON J

SMART AJ

Wednesday, 23 April 2003

Regina v. David Ernest SPICER

JUDGMENT

1. SANTOW JA: I agree with Smart AJ.

2. SIMPSON J: I agree with Smart AJ.

3. SMART AJ: David Ernest Spicer appeals against his conviction of on about 30 June 2000 knowingly taking part in the manufacture of not less than the commercial quantity of a prohibited drug (methylamphetamine). He does not seek to disturb his conviction of on about 30 June 2000 supplying not less than the commercial quantity of a prohibited drug (methylamphetamine), an instance of “deemed supply”. He also seeks leave to appeal against the sentences imposed, namely concurrent sentences for each offence of 4 years with a non-parole period of 2 years 6 months.

The Crown Case

4. Around 9 am on 30 June 2000 the appellant went to the home of DS and asked to borrow her Nissan Bluebird sedan so he could move some furniture. Early on 1 July 2000 she attended the Penrith Police Station and saw various items on the front and back seats in her car. Those items were not there when she lent the car to the appellant. She had had no discussion with the appellant about fixing the clutch of her car.

5. About 11 pm on 30 June 2000 the appellant was stopped by police for a random breath test while driving DS' vehicle along Devlin Road, Londonderry. The appellant got out of…

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 Spicer

Details

AGLC: Regina v Spicer [2003] NSWCCA 108
Case: [2003] NSWCCA 108
Decision Date: 23 April 2003

CaseChat Overview and Summary

The case of R v Spicer involved the defendant, Spicer, who was charged with knowingly participating in the manufacture of a prohibited drug. The case was heard in the Supreme Court of Victoria. Spicer appealed against his conviction, arguing that the prosecution had not proved that he had participated in the manufacture of the drug, as opposed to merely transporting it. The appeal focused on the distinction between manufacturing a drug and transporting it, with Spicer's defence centred on the idea that his role was limited to transportation rather than actual manufacture.

The court was required to decide whether the prosecution had adequately proven that Spicer had knowingly taken part in the manufacture of a prohibited drug, beyond just transporting it. The legal issue was whether the evidence presented was sufficient to establish that Spicer had participated in the actual manufacturing process, as opposed to merely being involved in transportation. The court had to consider the distinction between the two activities, particularly in the context of drug laws which impose harsher penalties for manufacturing compared to transportation.

In its reasoning, the court found that the prosecution had not provided sufficient evidence to prove that Spicer had knowingly participated in the manufacture of the prohibited drug. The evidence did not establish that Spicer had taken part in the actual manufacturing process, and the court concluded that his involvement was limited to transportation. Consequently, the conviction was quashed, and Spicer was deemed to have supplied the drug in liquid form, which could not be readily supplied. The court emphasised the importance of proving the specific nature of the defendant's involvement in drug-related activities, as the penalties for manufacturing are significantly harsher than for transportation. The court also noted that the extent of the penalty would need to be reconsidered in light of the quashed conviction.

The final orders of the court included the quashing of Spicer's conviction for knowingly participating in the manufacture of a prohibited drug, and a direction that the appropriate penalty for the deemed supply of the drug in liquid form be determined. The court's decision highlighted the importance of clearly distinguishing between manufacturing and transporting prohibited substances, and the need for the prosecution to provide compelling evidence to support the specific nature of the defendant's involvement in drug-related activities.

Orders