R v Jenkinson (No. 2)

[2022] NSWDC 287

District Court

New South Wales

Medium Neutral Citation:

R v Jenkinson (No. 2) [2022] NSWDC 287

Hearing dates:

07 & 08 April 2022

Date of orders:

08 April 2022

Decision date:

08 April 2022

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Find the accused guilty of the sole count on the indictment

Catchwords:

CRIME — Drug offences — Supply prohibited drug

CRIME — Drug offences — Supply prohibited drug — Commercial quantity

CRIMINAL PROCEDURE — Trial — Judge alone

CRIMINAL PROCEDURE — Trial — Judge alone — Reasons of trial judge

Legislation Cited:

Criminal Procedure Act 1986

Drug Misuse and Trafficking Act 1985

Drug Misuse and Trafficking Act 1985

Cases Cited:

Fleming v R (1998) 197 CLR 250

Category:

Principal judgment

Parties:

Regina (Crown)
Thomas Jenkinson (accused)

Representation:

Carl Young (Crown Prosecutor)
Rory Pettit (Counsel for the accused)

Director of Public Prosecutions (NSW) (Crown)
Hamilton Janke Lawyers (accused)

File Number(s):

2020/00131225

REVISED EX TEMPORE JudgEment

INTRODUCTION

1. In this matter, the sole issue in the trial was agitated on the voir dire. I gave my judgement and my decision earlier today, upholding the Crown’s position regarding the quantity of the drug and its form, satisfying the definition of “admixture” in s 4 Drug Misuse and Trafficking Act 1985. This bare summary is not intended to be, in any way, in place of the far lengthier reasons and my ultimate decision delivered ex tempore.

THE TRIAL

2. The accused has been rearraigned for the purposes of the judge alone trial. Exhibit A in the proceedings is the election notice, signed by the accused and on behalf of the Crown. There is no further evidence to be adduced in the trial. The Crown tendered the agreed statement of facts, signed by and on behalf of the parties; that is exhibit B. The Crown also tendered certain items from the voir dire exhibit A; they have become exhibit C; and there is the evidence given by Timothy Hudson in the voir dire, now exhibit D, and by Dr Michael Robertson, which is now exhibit E.

PRINCIPLES

3. Notwithstanding the way this trial has proceeded, I am obliged by s 133(2) and s 133(3), Criminal Procedure Act 1986 and by authority, Fleming v R (1998) 197 CLR 250, to turn my mind to the relevant principles of law to the extent that they are to be applied to the facts that are at present before me.

4. I note the accused pleaded not guilty to the charge upon which he has presented on the indictment but guilty to the statutory alternative available by force of s 25(3) Drug Misuse and Trafficking Act 1985.

5. The document confirming that the parties would like the matter to proceed as a trial before a judge alone, which includes the consent given by the Crown, mandates that I must proceed accordingly.

6. The period of 28 days has not elapsed since the filing of the document, which was signed on 23 March 2022, however, I have discretion to continue with the trial as a judge alone trial. There is no good reason why I should not, in the circumstances. The parties are ready to proceed. It would incur greater expense were the matter to be remitted to the list to be handed to another judge to resume 28 days from 28 March 2022.

7. Both parties agree that I should continue as trial judge.

8. There was little, if any, controversy in the evidence that was presented on behalf of the parties. The issues that were raised will be more relevant to questions that might arise upon the assessment of what the appropriate sentence is, and I will no doubt, have submissions made by both the Crown and on behalf of the accused in due course.

9. The material before me clearly establishes the offence with which the accused is charged. All the elements of the offence, having possession of the drug for the purposes of supply, are established by the evidence before me. There is no challenge to the evidence that has been presented by way of the agreed statement of facts. As I said, the only issue in the trial has been about whether the quantity of the drug is to be assessed according to the drug in its pure form or as part of the vegetative material in which it was found.

10. I have not overlooked that the burden of proof is upon the Crown to prove guilt beyond reasonable doubt; that is, to prove the offence and all the elements of the offence. By pleading guilty to the alternative available to the accused, the issue of supply is established.

11. I remind myself of the care required if I am to draw inferences from the direct evidence of any facts. I note the accused has not given evidence in the trial. He bears no burden because of that. The onus of proof rests upon the Crown and I cannot use the fact that he did not give evidence in any way adverse to the accused in the determination of this matter.

12. I note that the accused declined the opportunity to participate in an interview with the police when he was arrested. Again, he bears no burden because of that. He was exercising the right that we all enjoy as members of our democracy in declining to answer questions if that is the decision that he wished to make.

13. The question of character has not been raised but it would have little role to play, one way or another in this trial

14. I do not need to turn my mind to the essential elements. As I said, the sole issue in the trial is about the quantity of the prohibited drug in the form in which it was found and I have resolved that question on the voir dire.

VERDICT

15. Accordingly, I find the accused guilty of the sole count on the indictment, expressed in the following terms, that he,

“On 1 May 2020, at Nelsons Plains in the State of New South Wales, did supply a prohibited drug, namely psilocybin, in an amount of 98 grams, being an amount which was not less than the commercial quantity for that prohibited drug.”

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