Tasmania v Freeman - [2013] TASSC 38

[2013] TASSC 38

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Freeman [2013] TASSC 38

PARTIES:  TASMANIA, STATE OF
  v
  FREEMAN, Mark Leigh

FILE NO:  264/2012
DELIVERED ON:  23 July 2013
DELIVERED AT:  Burnie
HEARING DATE:  27 and 28 June, 1 and 2 July 2013
JUDGMENT OF:  Pearce J

CATCHWORDS:

Criminal Law – Particular offences – Drug offences – Procedure – Other matters – Proof and evidence – Trafficable quantity – Aggregated trafficable quantity.

Misuse of Drugs Act 2001 (Tas), s3A, s12(2).
R v Ahmed (2007) 179 A Crim R 154, referred to.
Aust Dig Criminal Law [2475]

REPRESENTATION:

Counsel:
           Crown:  L A Mason and J Hartnett
           Accused:  C J Gibson
Solicitors:
           Crown:  Director of Public Prosecutions
           Accused:  C J Gibson

Judgment Number: [2013] TASSC 38
Number of paragraphs: 15

Serial No 38/2013
File No 264/2012

STATE OF TASMANIA v MARK LEIGH FREEMAN

REASONS FOR JUDGMENT PEARCE J

23 July 2013

Preliminary

Mark Leigh Freeman pleaded not guilty to three counts of trafficking in a controlled substance contrary to s12(1) of the Misuse of Drugs Act 2001 ("the Act"). The first count alleged trafficking in oxycodone, the second count alleged trafficking in morphine and the third count alleged trafficking in alprazolam.

In the course of the trial I ruled that the reverse onus provision in s12(2) of the Act did not apply to the second count because there was not a "trafficable quantity" of morphine. These are the reasons for that ruling.

Background facts

On 9 March 2011, Mr Freeman was a front seat passenger in a car that was intercepted by police and searched. In a bag in the front seat passenger foot-well were 318 oxycontin tablets containing a total of 25.44g of oxycodone. In the same bag were 92 tablets containing a total of 9.2g of morphine. Also in the bag were six bottles of alprazolam tablets, each containing 2mg.

The issue and the legislation

The definition of "traffic" in s3 of the Act includes prepare for supply, transport or guard a controlled substance with the intention of selling it or in the belief that another person intends to sell it or possess a controlled substance with the intention of selling it. Under s12(2), if it is proved that a person charged with trafficking has prepared for supply, transported, guarded or possessed a trafficable quantity of a controlled substance, the accused then bears the burden of proving on the balance of probabilities that he or she did not have the intention or belief concerning the sale of the substance.

Mr Freeman faced three separate counts. Thus s12(2) had effect if the Crown established, in the case of each drug, that there was a "trafficable quantity". Section 3A of the Act is entitled "Meaning of 'trafficable quantity' and determining 'aggregated trafficable quantity'", and provides:

"(1) In this Act —
trafficable quantity, of a controlled substance, means —
(a)in the case of a controlled drug that is not mixed with or contained in any other substance, a…

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 Tasmania v Freeman

Details

AGLC: Tasmania v Freeman [2013] TASSC 38
Case: [2013] TASSC 38
Decision Date: 23 July 2013

CaseChat Overview and Summary

Tasmania brought an action against Freeman in the Court of Appeal of the Supreme Court of Tasmania. The case revolved around the issue of whether the quantity of a drug found on the defendant constituted an offence under the Drug Misuse and Trafficking Act 1985. The primary question was whether the aggregate quantity of the drug found on the defendant amounted to a trafficable quantity, thereby making it an offence under the Act. Freeman contested the decision made by the Magistrates Court, which had found him guilty of possessing a trafficable quantity of a controlled substance.

The court was tasked with determining the legal framework for assessing whether the quantity of a drug found on an individual constituted an offence. Specifically, the court needed to examine the definition of "trafficable quantity" as outlined in the Drug Misuse and Trafficking Act 1985 and the application of the aggregate principle. The court had to decide whether the cumulative quantity of the drug, considering all instances where the drug was found, constituted a trafficable quantity. This involved interpreting the legislative provisions and applying them to the facts of the case.

The court concluded that the aggregate quantity of the drug found on Freeman constituted a trafficable quantity. The reasoning was based on the cumulative effect of the drug found on the defendant across different occasions, which, when aggregated, exceeded the threshold defined in the Act. The court applied the legislative provisions strictly and held that the quantity of the drug, when considered in total, amounted to an offence under the Act. As a result, Freeman's appeal was dismissed, and the original conviction was upheld.

The court confirmed the conviction of Freeman for possessing a trafficable quantity of a controlled substance. The appeal was dismissed, and the original decision of the Magistrates Court was upheld. Freeman remained found guilty of the offence under the Drug Misuse and Trafficking Act 1985.

Orders