Waring v Laws

[2020] ACTSC 33

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Waring v Laws

Citation:

[2020] ACTSC 33

Hearing Date:

11 February 2020

DecisionDate:

11 February 2020

Before:

Mossop J

Decision:

See [34]

Catchwords:

APPEAL – CRIMINAL LAW – Review appeal under s 219D Magistrates Court Act 1930 (ACT) – trafficking in a controlled drug other than cannabis – where magistrate relied on evidential burden not legal burden – substantial miscarriage of justice – appeal allowed – remitted back to Magistrates Court

Legislation Cited:

Criminal Code 2002 (ACT), ss 58, 59, 60, 603(7), 604

Drugs of Dependence Act 1989 (ACT), s 169(1)

Magistrates Court Act 1930 (ACT), ss 219B, 219D, 219F

Cases Cited:

Sims v Drewson [2008] ACTSC 91; 2 ACTLR 307

Parties:

Josh Waring (Appellant)

Shane Laws (Respondent)

Representation:

Counsel

M Howe (Appellant)

M Jones (Respondent)

Solicitors

ACT Director of Public Prosecutions (Appellant)

McKenna Taylor (Respondent)

File Number:

SCA 62 of 2019

Decision under appeal: 

Court/Tribunal:             Magistrates Court of the ACT

Before:  Magistrate Taylor

Date of Decision:         26 September 2019

Case Title:  R v Laws

Court File Numbers:      CC 14125 of 2018

CC 4208 of 2018

Mossop J:

Introduction

1. This is a review appeal brought pursuant to Div 3.10.3 of the Magistrates Court Act 1930 (ACT). The ground of appeal is that “there was a prima facie case of error or mistake on the part of the Magistrates Court”. This is a ground of appeal which is permitted by s 219D of the Magistrates Court Act.

1. The appeal is against two orders:

(a)first, in relation to charge CC18/14125, trafficking in a controlled drug other than cannabis contrary to s 603(7) of the Criminal Code2002 (ACT), the order being the charge is dismissed; and

(b)in relation to charge CC18/4208, possessing a drug of dependence contrary to s 169(1) of the Drugs of Dependence Act1989 (ACT), the charge is found proved.

1. The error alleged is that the magistrate applied the wrong standard of proof in relation to the trafficking charge. The prosecution relied upon the presumption of trafficking in s 604(1) of the Criminal Code, which imposes a legal burden upon the respondent.  However, the magistrate incorrectly applied only an evidential burden.

The case below

1. The respondent was arrested pursuant to a first instance warrant near the Deakin soccer club.  He was carrying a bum bag.  It was searched and found to contain about 10 g of methamphetamine and $8,800 in cash, some digital scales and a small amount of heroin.

1. The charge was of trafficking under s 603(7) which provides that “a person commits an offence if the person traffics in a controlled drug other than cannabis”, the maximum penalty of imprisonment being 10 years. A person traffics in a controlled drug if the person “guards or conceals the drug with the intention of… selling any of it”. The Crown also relied upon s 604 which provides relevantly that if a person:

guarded or concealed a trafficable quantity of a controlled drug… it is presumed, unless…