Citation: Jackwitz v R; Franklin v R [2006] NSWCCA 419
Court: New South Wales Court of Criminal Appeal
Date: 21 December 2006
Judge(s): Simpson J (with Barr J and Hoeben J agreeing)
Background
The two appellants, a mother (Franklin) and daughter (Jackwitz), were convicted after a judge-alone trial in the District Court on a joint charge of possessing a precursor intended for use in the manufacture of a prohibited drug, contrary to section 24A of the Drug Misuse and Trafficking Act 1985. The precursor in question was pseudoephedrine, found in large quantities in the vehicle they had been travelling in across New South Wales and Queensland.
The Crown case was that the pair had visited at least 14 pharmacies, purchasing small amounts of pseudoephedrine-containing medications at each to avoid detection. Police found approximately 347 grams of pseudoephedrine-hydrochloride in the vehicle, along with notebooks recording the purchases and anticipated profits. Neither appellant gave evidence at trial.
The trial judge, Payne DCJ, found both appellants were party to a joint criminal enterprise, that they jointly possessed the substance, and that the only available inference was an intention to manufacture methylamphetamine. Both appellants challenged their convictions on appeal.
Legal Issues
- Whether the indictment was bad for duplicity, on the basis that section 24A created multiple distinct offences rather than one
- Whether the trial judge erred in finding a prima facie case and refusing to direct a verdict of acquittal at the close of the Crown case
- Whether the evidence was sufficient to establish guilt beyond reasonable doubt, including the requisite intention
- Whether Franklin was correctly found to be in joint possession of the precursor, given she was not the primary occupant of the vehicle
Decision
Duplicity. The appellants argued that section 24A created at least four separate offences depending on who was intended to carry out the manufacture or production. Simpson J rejected this, holding that the provision creates a single offence of possession of a precursor with the relevant intention. The different methods by which that intention might be directed do not transform a single offence into multiple offences. The indictment was not duplicitous.
Sufficiency of evidence and intention. The Court found no error in the trial judge's treatment of the Crown case. The circumstantial evidence, including the pattern of pharmacy visits, the records kept in the notebook and diary, the volume of pseudoephedrine obtained, and the notations about anticipated profit, amply supported the inference that both appellants intended the substance to be used in drug manufacture. The alternative inference advanced on behalf of Jackwitz, that the medication was purchased for legitimate resale, was described as entirely without foundation in the evidence and well beyond rational bounds.
Joint possession. Franklin argued she was not in possession of the substance because it was in the exclusive possession of Jackwitz. The Court accepted the established legal propositions that knowledge alone is insufficient to prove possession, and that the Crown must negate exclusive possession by another while also proving physical control and an intention to exercise control. However, the Court held that those principles did not assist Franklin on these facts. Both appellants were present in the vehicle over multiple days, and Franklin had personally entered pharmacies and purchased substances on at least two occasions. The trial judge was entitled to infer a joint criminal enterprise, and from that enterprise, joint possession followed as an obvious inference.
Orders Made
- In each case, the appeal against conviction was dismissed.
Key Takeaways
- Section 24A of the Drug Misuse and Trafficking Act 1985 creates a single offence of possessing a precursor with the relevant intention; the indictment is not duplicitous merely because the intended manufacturer could be the accused person or another person.
- Where two accused are found to be parties to a joint criminal enterprise, joint possession of a precursor located in their shared vehicle is an available inference, not merely an assumption.
- Knowledge of the presence of a substance is insufficient on its own to establish possession; the Crown must also prove physical control and an intention to exercise control, and must negate exclusive possession by another person.
- In dismissing Franklin's additional ground of appeal, the Court of Criminal Appeal confirmed that active participation in the enterprise, including personally purchasing the substances, supported the inference of joint possession even where direct physical control was less clear.
- Sufficient circumstantial evidence, including systematic purchasing patterns, detailed records, and anticipated profit notations, can establish the requisite intention to manufacture a prohibited drug beyond reasonable doubt.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 24A
- Evidence Act 1995 (NSW), s 138 (ground abandoned on appeal)
Cases:
- Mallon v Allen [1964] 1 QB 385
- R v Amanatidis [2001] NSWCCA 400
- R v Filippetti (1984) 13 A Crim R 335
- R v GNN [2000] SASC 447
- Walsh v Tattersall [1996] HCA 26; 188 CLR 77