AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 19 April 2004

R v Roberts, R v Schumacher

[2004] NSWSC 325

Drugs
CRIMINAL LAW AND PROCEDURE

Citation: R v Roberts, R v Schumacher [2004] NSWSC 325
Court: Supreme Court of New South Wales
Date: 19 April 2004
Judge(s): Howie J

Background

Two accused, Roberts and Schumacher, faced a joint charge of supplying methylamphetamine in an amount not less than the large commercial quantity under s 25(2) of the Drug Misuse and Trafficking Act 1985. The charge covered conduct allegedly occurring between March 1997 and September 2001 in the Newcastle area. The Crown's case rested substantially on the evidence of two indemnified witnesses, who described a sustained drug-supply operation during that period.

The defence case, while not concluded at the time of this ruling, accepted some involvement in supply but limited it to the period March 2001 to September 2001. Roberts gave evidence that the accused were primarily drug users, and that any supply was small-scale, casual, and connected to their own drug use rather than a commercial operation.

A question arose mid-trial as to whether any viable alternative count should be left to the jury, given the significant gap between the Crown's version of events and the account advanced by the accused.

  • Whether a viable alternative and lesser count arose on the evidence, such that it ought to be left to the jury
  • Whether the common law alternative count of supply simpliciter remained available under the Drug Misuse and Trafficking Act 1985, despite the Act prescribing certain statutory alternatives
  • Whether the trial judge had an obligation to leave an alternative count even where neither party had sought one
  • Whether any procedural unfairness or prejudice to the accused arose from raising the alternative count at this stage of the trial

Decision

Howie J drew on the Court of Criminal Appeal's recent decision in R v King [2004] NSWCCA 20 to identify the governing principles. A trial judge is required to leave a viable lesser alternative count to the jury in the interests of justice, regardless of whether either party has sought such a count. The judge should not leave alternatives that are trivial in context, that arise unfairly late, or where the real issue is identity rather than the degree of the offence. However, where the alternative is genuinely supported by the evidence and fairness demands it, the obligation to leave it exists.

On the specific argument that the Drug Misuse and Trafficking Act 1985 had displaced the common law alternative of supply simpliciter, Howie J rejected that submission. The Act provides statutory alternatives for some offences, but it could not be inferred from this that Parliament intended to abolish a common law procedure operating in an accused person's favour. A very strong inference would be required to find such an implied repeal, and no such inference was available.

On the facts, the evidence of Roberts himself, together with the telephone intercept material, provided a viable factual foundation for a finding of supply simpliciter. The accused had not been taken by surprise: the alternative arose directly from evidence already before the jury, including Roberts's own testimony. There was no procedural prejudice in leaving the count. Howie J also noted that failing to leave the alternative could produce an unjust outcome: if acquitted on the major count, the accused might later rely on autrefois acquit to resist any further charge of supply in the relevant period.

The Crown conceded that the statutory intermediate alternative (supply of a commercial quantity) had no viable factual basis on the evidence as it stood. Accordingly, the only counts to go to the jury were the charged offence of supplying a large commercial quantity and the common law alternative of supply simpliciter.

Orders Made

  • The common law alternative count of supply simpliciter was to be left to the jury.

Key Takeaways

  • A trial judge has an obligation to leave a viable lesser alternative count to the jury in the interests of justice, even where neither the Crown nor the defence has sought such a count.
  • Under R v King [2004] NSWCCA 20, the obligation does not extend to trivial alternatives, to alternatives raised unfairly after addresses, or to cases where the real contest is one of identity rather than the degree of offending.
  • The Drug Misuse and Trafficking Act 1985 does not displace the common law alternative of supply simpliciter: the existence of statutory alternatives for certain offences does not support an inference that Parliament intended to abolish a common law procedure operating in an accused's favour.
  • Procedural fairness is a relevant consideration, but no unfairness arose here because the alternative count emerged directly from evidence already before the jury, including the accused's own testimony.
  • Failing to leave a viable alternative count carries real consequences: an acquittal on the primary charge without an alternative could, depending on circumstances, preclude future prosecution on a lesser charge through pleas such as autrefois acquit.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) and s 25(2)

Cases
- R v King [2004] NSWCCA 20
- R v Cameron [1983] 2 NSWLR 66