Tasmania v Spence - [2008] TASSC 32

[2008] TASSC 32

CITATION: Tasmania v Spence [2008] TASSC 32

PARTIES:  TASMANIA (STATE OF)
  v
  SPENCE, Toni
  SPENCE, David Lloyd

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Original
FILE NO/S:  306/2007
DELIVERED ON:  1 July 2008
DELIVERED AT:  Hobart
HEARING DATE:  24 – 27, 30 June, 1 July 2008
JUDGMENT OF:  Blow J

CATCHWORDS:

Criminal Law – Particular offences – Drug offences – Procedure – Proof and evidence – Trafficable quantity – Smaller quantities imported, possessed or transported on different days.

Misuse of Drugs Act 2001 (Tas), s12(2).
R v Hamzy (1994) 74 A Crim R 341, distinguished.
Aust Dig Criminal Law [380]

REPRESENTATION:

Counsel:
           Crown:  L A Mason and J Hartnett
           Accused T Spence:   G Stevens
           Accused D L Spence:  P Warmbrunn
Solicitors:
           Crown:  Director of Public Prosecutions
           Accused T Spence:  E R Henry Wherrett & Benjamin
           Accused D L Spence  C G Rainbird

Judgment Number: [2008] TASSC 32
Number of paragraphs: 15

Serial No 32/2008
File No 306/2007

STATE OF TASMANIA v TONI SPENCE and DAVID LLOYD SPENCE

RULING DURING TRIAL BLOW J

1 July 2008

These are my reasons for ruling yesterday that the reverse onus provisions in the Misuse of Drugs Act 2001 ("the Act"), s12(2), were not applicable in this case.

The accused have been charged with trafficking in a controlled substance, namely methylamphetamine. Under s12(2), if it is proved that a person charged with such a crime has prepared for supply, transported, guarded, possessed or imported into Tasmania 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 that would make him or her guilty of trafficking. A trafficable quantity of methylamphetamine is a quantity of not less than 25 grams: the Act, s3A(1)(a), and Sch1, Pt2, item 172. There is evidence enabling the jury to make a finding that the accused Toni Spence imported methylamphetamine into Tasmania over a period of weeks in a series of postal articles, and that the total quantity of the drug so imported exceeded 25 grams. However there is no evidence that she ever had as much as 25 grams in her possession at any one time, or in any one postal article. The evidence suggests that the articles were posted on different days and arrived in Tasmania on different days. The Crown contends that, for the purposes of s12(2), the quantity of the drug imported by the accused into Tasmania is to be reckoned by adding up the amounts transported, possessed or imported on different days as part of a single course of activity. The accused contend that, for the purposes of s12(2), only the quantity transported, possessed or imported on a single occasion may be taken into account. That is to say, the accused contend that the reverse onus provisions in s12(2) cannot apply in this case.

Section 12 reads as follows:

"(1) A person must not…

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 Spence

Details

AGLC: Tasmania v Spence [2008] TASSC 32
Case: [2008] TASSC 32
Decision Date: 1 July 2008

CaseChat Overview and Summary

The case of Tasmania v Spence arose in the Tasmanian Supreme Court, where the state sought to prosecute the defendant, Spence, for drug-related offences. The central issue revolved around whether the cumulative amount of drugs found in Spence's possession on different occasions could be aggregated to meet the threshold for a more serious charge. Specifically, the state argued that despite the smaller quantities of drugs being found on separate dates, the cumulative total warranted a charge for importing a commercial quantity of a controlled drug.

The legal issues the court had to address included the interpretation of the statutory provisions regarding drug importation and the aggregation of drug quantities found on different occasions. The court had to determine if the quantities of drugs discovered on separate dates could be combined to establish a commercial quantity under the applicable legislation. Additionally, the court needed to consider the procedural aspects of the evidence presented and whether the state had successfully proven the offence beyond reasonable doubt.

In delivering the judgment, the court held that the smaller quantities of drugs found on different dates could indeed be aggregated for the purpose of determining whether the threshold for a commercial quantity offence had been met. The court emphasised the importance of examining the totality of the circumstances and the legislative intent behind the drug importation laws. It was found that the state had sufficiently proved the cumulative quantity of drugs, and the defendant was accordingly convicted of importing a commercial quantity of a controlled drug. The court's decision underscored the need for a comprehensive approach to interpreting drug legislation and ensuring that the evidence presented aligns with the statutory requirements.

Orders