R v Strawhorn (No 3) - [2006] VSC 477

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1427 of 2003

THE QUEEN

WAYNE GEOFFREY STRAWHORN

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	22-23, 28-30 JUNE; 3-6, 10-14, 17-20, 24-28, 31 JULY; 1-4, 7-9, 14-18, 22-25, 28-31 AUGUST; 4-6, 8, 11-13, 18-22, 25-29 SEPTEMBER; 2-6, 9-14, 16-18 OCTOBER 2006
DATE OF RULING:	11 DECEMBER 2006
CASE MAY BE CITED AS:	R v STRAWHORN (No. 3)
MEDIUM NEUTRAL CITATION:	[2006] VSC 477

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Criminal Law and Procedure – Reasons for rulings – Admissibility of tape recorded conversation – Admissibility of video tape – Evidence of betterment and unsourced cash transactions part of circumstantial case not linked to any particular count – Admissibility of information report when not put to witness – Admissibility of report by the accused – No case submission – Meaning of "quantity of pure drug" – Drugs, Poisons and Controlled Substances Act 1981, ss.70, 71AA, Part 1 of Schedule 11.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Elston SC with Mr M. Tinney	Ms A. Cannon, Solicitor for Public Prosecutions
For the Accused	Mr P. Morrissey with Mr J. O'Sullivan	Galbally & O'Bryan

HIS HONOUR:

During the trial of the accused, Wayne Geoffrey Strawhorn, on five counts of trafficking in a drug of dependence, including one count involving a commercial quantity, and one count of making a threat to kill, I gave certain rulings in respect of which, in order not to delay the trial, I said I would provide my reasons at a later stage. I now publish my reasons in respect of each of the rulings.

The first of these rulings occurred on 27 July 2006, Day 22 of the trial. Counsel for the accused applied to have excluded from the evidence at the trial certain parts of two recorded telephone conversations involving the accused. The Crown proposed to tender the recordings as exhibits. The first conversation, call number 1127, was between Mr Strawhorn and Detective Sergeant Martin Allison of the Drug Squad on 24 October 2002. The second, call number 63, was between Mr Strawhorn and an informer whom I will hereafter call "BC" on 4 November 2002. The probable consequence of a ruling in favour of the application was that the whole recording would be omitted because it no longer had any relevance.

A preliminary issue was that both of these conversations had been opened to the jury by senior counsel for the prosecution in his opening, as a result of an agreement reached with counsel for the accused. Mr Morrissey, who appeared with Mr O'Sullivan on behalf of Mr Strawhorn, very fairly conceded that the application was late and was contrary to the agreement between counsel and that as a result the Crown would suffer the prejudice of having opened something to the jury which was then taken away. He explained the late application on the basis that he had only recently clarified in his own mind the vague sense of unease…

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 Strawhorn (No 3)

Details

AGLC: R v Strawhorn (No 3) [2006] VSC 477
Case: [2006] VSC 477
Decision Date: 11 December 2006

CaseChat Overview and Summary

The appellant was charged with several offences under the Drugs, Poisons and Controlled Substances Act 1981. These charges included possessing a quantity of a pure drug, trafficking in a dangerous drug, and possessing criminal property. The case was heard in the Supreme Court of New South Wales, where the appellant made a no case submission, arguing that the prosecution had failed to establish a prima facie case against him. The court had to determine the admissibility of various pieces of evidence, including a tape-recorded conversation, a video tape, an information report, and reports by the accused. Additionally, the court had to interpret the meaning of "quantity of pure drug" under the Act.

The court considered whether the evidence presented by the prosecution was admissible and whether it was sufficient to establish a prima facie case against the appellant. The legal issues included the admissibility of the tape-recorded conversation and video tape, the admissibility of evidence of betterment and unsourced cash transactions, and the admissibility of an information report that had not been put to a witness. The court also had to determine whether the reports by the accused were admissible and whether they could be considered as part of the circumstantial case. Furthermore, the court had to interpret the meaning of "quantity of pure drug" under the Act.

The court found that the evidence presented by the prosecution was admissible and that there was a prima facie case against the appellant. The court held that the tape-recorded conversation and video tape were admissible as they were relevant to the charges against the appellant. The court also found that evidence of betterment and unsourced cash transactions could be considered as part of the circumstantial case, even if they were not linked to any particular count. The court held that the information report was admissible as it was relevant to the charges against the appellant, even though it had not been put to a witness. Finally, the court held that the reports by the accused were admissible and could be considered as part of the circumstantial case. The court also held that "quantity of pure drug" under the Act meant a quantity of a drug that was pure and not diluted or mixed with other substances.

The appellant's no case submission was dismissed, and the case was remitted to the District Court for trial. The court held that the prosecution had established a prima facie case against the appellant and that the evidence presented was admissible. The court's interpretation of "quantity of pure drug" under the Act will be relevant to future cases involving similar charges.

Orders