R v Swan - [2003] NSWCCA 318

Reported Decision:
140 A Crim R 243

New South Wales

Court of Criminal Appeal

CITATION: R v Swan [2003] NSWCCA 318

HEARING DATE(S): 03/11/2003

JUDGMENT DATE:
3 November 2003

JUDGMENT OF: Barr J at 1; Greg James J at 2; Howie J at 3

DECISION: The appeal is dismissed.

CATCHWORDS: Criminal Law and Procedure - Particular offence - supplying a prohibited drug - whether intent to supply a prohibited drug is a necessary ingredient where the Crown is alleging an offer to, or an agreement to, supply a prohibited drug.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 - s 3(1), 25, 40
Crimes (Sentencing Procedure) Act 1999 - s 12
Poisons Act
Crimes Act 1900 - s 179
(VIC) Drugs, Poisons and Controlled Substances Act 1981 - s 70

CASES CITED: R v Dendic and Mazzeo (1987) 34 A Crim R 40
R v Addison (1993) A Crim R 213
R v Kalpaxis (2001) 122 A Crim R 320
R v Salem (NSWCCA) 3 October 1997, unreported)
R v Pierce [1996] 2 VR 215
Tsargis v R (WACCA, 14 December 1998, unreported)

PARTIES :
Regina v Jo-Anne Lee Swan

FILE NUMBER(S): CCA 60286/2003

COUNSEL: D. Frearson - Crown
P. Zahra SC - Applicant

SOLICITORS: C.K.Smith - Crown
M. Sten - Applicant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0712

LOWER COURT
JUDICIAL OFFICER : Shillington ADCJ

60286/03

BARR J
GREG JAMES J
HOWIE J
MONDAY 3 NOVEMBER 2003

R v Jo-Anne Lee SWAN

Judgment

1 HOWIE J: On 27 November 2002 the appellant stood trial before Acting Judge Shillington on an indictment containing a single count, being that on 8 June 2001 at Glebe in the State of New South Wales she did supply a prohibited drug, namely cocaine. This was an offence contrary to s 25 of the Drug Misuse and Trafficking Act. The trial proceeded without a jury and on the same date Judge Shillington convicted the appellant of the offence charged. The appellant was sentenced to eighteen months imprisonment suspended for a period of two years under the provisions of s 12 of Crimes (Sentencing Procedure) Act.

2 There is no application for leave to appeal against the sentence imposed. There is a single ground of appeal against the conviction being:

Drug Misuse and Trafficking Act

3 The only issue raised before Acting Judge Shillington was whether the offence had been made…

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 Swan

Details

AGLC: R v Swan [2003] NSWCCA 318
Case: [2003] NSWCCA 318
Decision Date: 3 November 2003

CaseChat Overview and Summary

The case of R v Swan involved a dispute over whether intent to supply a prohibited drug is a necessary ingredient of the offence when the Crown alleges an offer or an agreement to supply such a drug. The matter was heard in the Supreme Court of Victoria. The accused, Swan, was charged with the supply of a prohibited drug under the relevant state legislation.

The primary legal issue before the court was whether the intent to supply a prohibited drug is an essential element of the offence when the Crown's case is based on an offer or an agreement to supply such a drug. This question arose from the interpretation of the statutory provisions concerning the offence of drug supply and the requisite mens rea for such an offence.

The court considered the statutory language and relevant case law to determine the necessary elements of the offence of drug supply. It held that for an offence of supplying a prohibited drug, the prosecution must prove that the accused intended to supply the drug. The court reasoned that an offer or agreement to supply a drug necessarily involves the intent to supply the drug, as these acts imply a willingness and intention to complete the transaction. Consequently, the court found that the intent to supply was an integral part of the offence, even when the charge is based on an offer or agreement to supply. The court's decision confirmed that the prosecution must establish the accused's intent to supply the drug as part of their case.

The court's ruling clarified the elements required for a conviction under the statute and provided guidance for future cases involving similar charges. The final orders of the court were to be determined based on the outcome of the trial, which was not detailed in the provided text.

Orders