The Queen v Himbert

[2015] ACTSC 6

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

The Queen v Himbert

Citation:

[2015] ACTSC 6

Hearing Dates:

6 May, 8 and 9 December 2014

DecisionDate:

2 February 2015

Before:

Burns J

Decision:

The offence of trafficking in a controlled drug other than cannabis is proved.

Category:

Principal Judgment

Catchwords:

CRIMINAL LAW – Particular Offences – drug offences – offence of trafficking in a controlled drug other than cannabis – judge alone trial – offence proved.

JURISDICTION, PRACTICE AND PROCEDURE – Jurisdiction - whether case should be dismissed for want of jurisdiction – whether requisite geographical nexus exists.

EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – whether standard for admission of voice identification evidence is the same as visual identification evidence under s 135 of the Evidence Act 2011 (ACT) – held voice identification evidence is held to the general provisions of admissibility under the Evidence Act 2011 (ACT) – held that evidence not excluded by s 135 Evidence Act 2011 (ACT).

Legislation Cited:

Criminal Code 2002 (ACT) Part 2.7; ss 602 (c), 602 (d), 602 (e), 603 (7)

Criminal Code Regulation 2005 (ACT) Schedule 1; r 5
Evidence Act 2011 (ACT) Parts 3.9, 3.11; ss 135, 56
Health Act 1937 – 1976 (QLD) s 130
Misuse of Drugs Act 1971 (UK) s 5 (3)
Misuse of Drugs Act 1972 (Bermuda) ss 5, 6
Supreme Court Act 1933 (ACT) ss 68B, 68C (1), 68C (2), 68C (3)

Cases Cited:

R v Adler (2000) 52 NSWLR 451

R v Hussain (Shabbir) [2010] 2 Cr. App. R. 11
R v Madigan [2005] NSWCCA 170
Seymour v The Queen [2007] UKPC 59
Williams v R (1978) 140 CLR 591

Parties:

The Queen (Crown)

Nathan Gerhard Himbert (Defendant)

Representation:

Counsel

Mr Williamson (Crown)

Mr Masters (Defendant)

Solicitors

Director of Public Prosecutions (Crown)

Legal Aid ACT (Defendant)

File Number:

SCC 163 of 2013

Burns J:

Background

1. The accused, Nathan Gerhard Himbert, was arraigned on 6 May 2014 on an indictment dated 12 November 2013 containing one count alleging that on 14 October 2012 at Canberra in the Australian Capital Territory he trafficked in a controlled drug other than cannabis, namely methamphetamine. To this count he entered a plea of not guilty. By an election dated 29 November 2013 the accused elected to be tried by judge alone. The provisions of s 68B of the Supreme Court Act1933 (ACT) permit the accused, in the present case, to elect to be tried by a judge alone. In such a trial, a judge may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury: s 68C (1). A judgment in criminal proceedings tried by a judge alone must include the principles of law applied by the judge and the findings of fact on which the judge relied: s 68C (2). In these proceedings, if a Territory law…