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7
Court of Criminal Appeal 2 May 2013

Chapman v R

[2013] NSWCCA 91

Also reported as (2013) 232 A Crim R 500
Drugs
CRIMINAL LAW APPEAL DUPLICITY PARTICULAR OFFENCES SUPPLY A PROHIBITED DRUG WHETHER ANALOGY WITH MANSLAUGHTER

Citation: Chapman v R [2013] NSWCCA 91
Court: Court of Criminal Appeal, New South Wales
Date: 2 May 2013
Judge(s): Hoeben CJ at CL, Davies J, Adamson J (unanimous)

Background

The applicant was charged with one count of supplying methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). During the execution of a search warrant, police found 224 methylamphetamine tablets in the kitchen pantry of the applicant's home and a further 5 tablets in the ashtray of a utility vehicle parked outside. The tablets in the vehicle weighed less than the 3-gram traffickable quantity.

The combined total, however, weighed 61.19 grams. Count 1 of the indictment charged the applicant with supplying that combined quantity on a single specified date.

The applicant moved to quash count 1 on the ground that the charge was bad for duplicity. The District Court dismissed that motion, and the applicant sought leave to appeal to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912.

  • Whether count 1 of the indictment was bad for duplicity under s 17(1) of the Criminal Procedure Act 1986, because it encompassed multiple factual pathways to a guilty verdict that might not attract jury unanimity
  • Whether three distinct routes to conviction (possession of the pantry tablets alone, possession of both sets of tablets together, or possession of the utility tablets for the purpose of supply) could lawfully be combined within a single charge of drug supply
  • Whether the analogy with manslaughter, where multiple factual bases may underpin a single verdict, applied to resolve any duplicity concern
  • Whether any duplicity in the indictment itself, as opposed to the trial directions, would have required the count to be quashed or could instead be addressed by judicial direction

Decision

During the hearing, the Crown confirmed it would rely only on deemed supply arising from the deeming provision in s 29 of the Act. That concession meant any guilty verdict on count 1 required the jury to be satisfied, beyond reasonable doubt, that the applicant possessed at least the tablets in the kitchen pantry. Because possession of those pantry tablets was the necessary common foundation of all remaining paths to conviction, the concern about jury disunity was resolved.

Adamson J, with whom Hoeben CJ at CL and Davies J agreed, held that once the Crown's concession removed the third alternative path (possession of the utility tablets for supply, independently of the pantry tablets), no arguable duplicity remained in the indictment.

Adamson J nonetheless examined what the position would have been without that concession. Her Honour expressed the view that the case would have fallen into a recognised category of potential duplicity: one offence charged, but two distinct acts relied upon, either of which would independently entitle the jury to convict. In that scenario, six jurors satisfied only of possession of the pantry tablets and six jurors satisfied only of possession of the utility tablets for supply would not have produced the necessary degree of unanimity.

On the sentencing point, the Court affirmed the District Court's reasoning that any form of the indictment would not impede sentencing. Following a guilty verdict, the sentencing judge would make findings of fact consistent with the verdict and the trial evidence, consistently with established principles in R v Isaacs and R v Olbrich.

Orders Made

  • Time for filing the application for leave to appeal extended
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that s 25(1) of the Drug Misuse and Trafficking Act 1985 creates a single offence of supply, which may be proved in multiple ways, including through the deeming provision in s 29 where a person possesses a traffickable quantity.
  • Where multiple distinct factual pathways to a guilty verdict are available in a supply charge, a duplicity concern arises if jurors could reach a unanimous verdict of guilty without agreeing on a common factual foundation, as Adamson J characterised the pre-concession position in this case.
  • The distinction between Yildiz and the present case turned on whether the drugs forming each alternative basis were physically distinct: here, the utility tablets and the pantry tablets were separate quantities, unlike in Yildiz where both pathways to conviction concerned the same drugs.
  • A duplicity problem in a drug supply charge may be resolved by the Crown narrowing its case to a single factual route, rather than requiring the count to be quashed entirely, though the Court expressly left open whether quashing or judicial direction would be the appropriate remedy had the concession not been made.
  • Following a supply conviction on a count with multiple factual bases, the sentencing court retains the task of making findings of fact consistent with the jury's verdict, and the form of the indictment does not of itself impede that process.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), s 17(1)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3(1), 25(1), 29

Cases:
- Chief Constable of Norfolk v Clayton [1983] 2 AC 473
- R v Cramp [1999] NSWCCA 324; 110 A Crim R 198
- R v Dally [2000] NSWCCA 162; 115 A Crim R 582
- R v Isaacs (1997) 41 NSWLR 374
- R v Klamo [2008] VSCA 75; (2008) 184 A Crim R 262
- R v Olbrich [1999] HCA 54; 199 CLR 270
- R v Yildiz [2006] NSWCCA 97; 160 A Crim R 218
- S v The Queen [1989] HCA 66; 168 CLR 266
- Walsh v R [2002] VSCA 98; 131 A Crim R 299