The Queen v Winchcombe and Park

Case [2018] NTSC 70

CITATION:The Queen v Winchcombe and Park [2018] NTSC 70

PARTIES:THE QUEEN

v

WINCHCOMBE, Janelle Kaye

&

PARK, Ilho

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT exercising Territory jurisdiction

FILE NO:21749337 & 21749339

DELIVERED:  9 October 2018

HEARING DATE:  24 August 2018

JUDGMENT OF:  Blokland J

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – WHETHER TENDENCY EVIDENCE ADMITTED.

Evidence of a previous episode of supply Schedule 1 drug with indicia of supply – whether tendency established in respect of elements of current offending – whether evidence could rationally affect to a significant degree the proof of a fact in issue – whether probative value of proposed evidence outweighs its prejudicial effect – whether proposed tendency relevant to conduct of persons other than accused – tendency evidence not admitted.

Evidence (National Uniform Legislation) Act (NT) 2011 (NT) ss 97, 101
Misuse of Drugs Act (NT) ss 5A(1), 7(A)(1)

Donahue v Tasmania [2016] TASCCA 17; Gjonaj v The Queen [2018] NTSC 13; Hughes v The Queen [2017] HCA 20; IMMv TheQueen (2016) 257 CLR 300; Papakosmas v The Queen (1999) 196 CLR 297; The Queen v Bauer [2018] HCA 40; The Queen v Hiko [2018] NTSC 35; The Queen v Lock (1997) A Crim R 356; The Queen v Lockyer (1996) 89 A Crim R 457; R v Lumsden [2003] NSWCCA 83; The Queen v McKerlie [2016] NTSC 37; The Queen v Perner [2017] NTSC 23, referred to.

REPRESENTATION:

Counsel:

Prosecutor:J Ibbotson

Defendant (Winchcombe):           J Tippett QC

Defendant (Park):  F Kepert

Solicitors:

Prosecutor:Office of the Director of Public Prosecutions

Defendant (Winchcombe):           Maleys Barristers and Solicitors

Defendant (Park):  Northern Territory Legal Aid Commission

Judgment category classification:  B

Judgment ID Number:  BLO1812

Number of pages:  20

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Winchcombe & Park [2018] NTSC 70

(21749337 & 21749339)

BETWEEN:

THE QUEEN

AND:

JANELLE KAYE WINCHCOMBE

AND:

ILHO IAN PARK

CORAM:   BLOKLAND J

REASONS FOR RULING

(Delivered 9 October 2018)

Background

  1. Janelle Winchcombe and Ilho Park are to stand trial for different offences arising out of the same incident, charged against the Misuse of Drugs Act. Count 1 on the indictment charges Janelle Winchcombe with supplying Ilho Park a commercial quantity of methamphetamine, a Schedule 1 drug, contrary to s 5A(1) of the Misuse of Drugs Act. Count 2 alleges she supplied a commercial quantity of a Schedule 1 drug, methamphetamine, to unknown persons, contrary to s 5A(1) of the Misuse of Drugs Act. Count 3 charges that Ilho Park possessed a traffickable quantity of the same Schedule 1 drug, methamphetamine, contrary to s 7A(1) of the Misuse of Drugs Act. All three counts are alleged to have been committed on 18 October 2017.

  2. The Crown has served a Tendency Notice pursuant to s 97(1) of the Evidence (National Uniform Legislation) Act (“UEA”) with respect to both accused. Argument was heard on 24…

Continue reading The Queen v Winchcombe and Park

Sign in free to access the full text

Details
AGLC
The Queen v Winchcombe and Park [2018] NTSC 70
Case
[2018] NTSC 70
Decision Date

CaseChat Overview and Summary

The case of The Queen v Winchcombe and Park involved two defendants, Janelle Winchcombe and Ilho Park, who were facing charges related to the supply of methamphetamine. The central dispute in the case centered around the admissibility of tendency evidence, specifically whether prior instances of drug supply could be used to establish a pattern of behavior relevant to the current charges. The case was heard and decided in the relevant Australian court.

The primary legal issue before the court was whether the proposed tendency evidence, which involved a previous episode of drug supply by Winchcombe, was admissible under the relevant provisions of the Evidence Act. The court had to determine if the evidence could rationally affect the proof of a fact in issue to a significant degree, and if its probative value outweighed its prejudicial effect. Additionally, the court needed to decide if the tendency evidence was relevant to the conduct of persons other than the accused.

The court carefully examined the proposed tendency evidence and concluded that it did not meet the criteria for admissibility. The evidence of a prior drug supply episode was deemed insufficient to establish a tendency in respect of the elements of the current offending. The court found that the probative value of the proposed evidence did not outweigh its prejudicial effect, and thus, the evidence was not admissible. Consequently, the tendency evidence was not admitted in the trial.

The court's decision effectively limited the scope of evidence that could be presented by the prosecution in proving the charges against Winchcombe and Park, potentially impacting the strength of the Crown's case. The final orders of the court reflected the exclusion of the contested tendency evidence from the trial.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Exhibit 1 on the voir dire contains the relevant prosecution brief, including witness statements. Counsel for the Crown, Mr Ibbotson has carefully taken the Court through those materials. The statements of both lay witnesses from the Argus Hotel, some CCTV footage and photos of both accused at the hotel, along with the statements of attending police giving their observations of persons and things in room 202 would seem, on the face of it, to have the capacity to prove the case. This is, of course, looking at the evidence without challenges that are anticipated on behalf of the accused. More details tending to support the Crown case are given in the statements beyond what has been summarised above; however, it is not necessary for current purposes to set out the further details of the content of the proposed evidence. The proposed tendency evidence against Janelle Winchcombe The importance from the Crown’s perspective of the proposed tendency evidence is that it is likely that Janelle Winchcombe will deny she was in possession of a commercial quantity of methamphetamine and will deny supplying methamphetamine to Ilho Park or any other person. The Tendency Notice states the tendency sought to be proved is the tendency of Janelle Winchcombe to act in a particular way, namely, to engage in the supply of methamphetamine and to obtain money from the supply of methamphetamine. The particular state of mind sought to be proved is a willingness and interest in being involved in the supply of methamphetamine. The evidence relied on to prove the asserted tendency is as follows: the certificate of conviction and agreed Crown facts following a plea of guilty on 5 July 2017[1] to two counts of supplying less than a commercial quantity of a Schedule 1 dangerous drug (methamphetamine), alternatively the sentencing remarks of Southwood J on the same date or, if necessary, the foundational evidence substantiating the agreed facts. In my view there is no issue with the cogency of the proposed evidence. Either of the methods of proof outlined would be sufficient to prove the relevant facts. The date of the offending for both counts was 6 January 2017. It is not the bare convictions that are sought to be adduced as tendency evidence, but particular aspects of the offending revealed in the Crown facts, including Ms Winchcombe being contacted by a buyer with a message: “Or $3500 + G”, the presence of cash ($3,455), ledgers detailing a sale and money owed to her, possession of clip seal bags, scales and pipes, and recorded conversations of 6 January 2017 that clearly reveal drug transactions and possession on that date.[2] The Crown submits the proposed evidence is relevant to the facts in issue, in particular whether Janelle Winchcombe supplied Ilho Park with methamphetamine, whether Ilho Park possessed a traffickable quantity of methamphetamine, whether Janelle Winchcombe possessed a commercial quantity of methamphetamine and whether the Crown can rebut any innocent explanation for the presence of Janelle Winchcombe’s fingerprint on the clip seal bag containing 3.47 grams of methamphetamine on the kitchen bench.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.