Citation: R v Weng [2019] NSWDC 686
Court: District Court of New South Wales
Date: 15 November 2019
Judge: Abadee DCJ
Background
The accused was found unfit to stand trial, and the Mental Health Review Tribunal determined he would not become fit within 12 months. This triggered a statutory obligation to conduct a "special hearing" under the Mental Health (Forensic Provisions) Act 1990 (NSW). A special hearing is conducted as closely as possible to a normal criminal trial, but on limited evidence, and the accused is taken to have pleaded not guilty.
The charges arose from events on 7 May 2015 at a premises in Guildford, NSW. Police found large quantities of methylamphetamine (ice), pseudoephedrine, and MDMA on premises owned by the accused. A diamond ring valued at approximately $23,000, along with a range of other luxury goods, was also located there.
The Crown alleged the accused had permitted steps in the supply of the drugs to occur on his premises and that he knowingly possessed the drugs for supply. On the proceeds of crime charge, the Crown alleged the accused knew the diamond ring was substantially derived from drug supply.
Legal Issues
- Whether the accused knew of the presence of the drugs on his premises (the central disputed element for counts 1 to 3)
- Whether the accused permitted steps in the supply of prohibited drugs to occur on premises he owned
- Whether the statutory deeming provision for possession for supply applied to counts 1 and 2 (methylamphetamine and pseudoephedrine)
- Whether the diamond ring constituted proceeds of crime within the meaning of s 193B(2) of the Crimes Act 1900 (NSW), and whether the accused knew it to be so
- Whether the special hearing process required any modification to address procedural fairness, given the accused's inability to participate fully
Decision
On counts 1 to 3, the defence conceded all objective elements of the drug supply offences. The sole live question was whether the accused had knowledge of the drugs on his premises. His Counsel acknowledged the accused knew of at least 3.1 grams of ice located in rooms he accessed, but contested knowledge of the larger quantities hidden elsewhere on the property.
Abadee DCJ found, on the limited evidence available, that the accused's knowledge extended beyond the small amount admitted. The Crown's case rested on the "deemed supply" provisions in s 29 of the Drug Misuse and Trafficking Act 1985 (NSW) for the larger quantities of ice and pseudoephedrine, and no applicable exceptions were raised. His Honour was satisfied each element of counts 1, 2, and 3 was established.
On count 4, the proceeds of crime charge, the accused's ownership of a diamond ring worth approximately $23,000 was not in dispute. His Honour rejected the accused's uncorroborated assertion that the ring and other luxury items, including designer bags, watches, fine wines, and scotch whisky, were funded through legitimate eBay trading activity. The scale of the drug quantities found and their street value (over $92,000 for 327 grams of ice alone) supported an inference that the ring was substantially derived from drug proceeds. His Honour was satisfied the accused knew the ring was procured from those proceeds.
The Court also addressed a procedural matter before delivering its verdicts: it was agreed between the Crown and defence that the question of whether a term of imprisonment would likely have been imposed (and any estimate of its length under s 23 of the Act) would be dealt with separately, after the guilt determination. This was to avoid requiring the accused to put his subjective sentencing case before the Court prematurely.
Orders Made
• Count 1: Guilty
• Count 2: Guilty
• Count 3: Guilty
• Count 4: Guilty
Key Takeaways
- The District Court confirmed that a special hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW) proceeds on limited evidence, with the accused taken to have pleaded not guilty, but verdicts on guilt are determined before any sentencing consequences are addressed.
- Procedural fairness in special hearings permits the guilt and sentencing phases to be staged: requiring the accused to present subjective sentencing material before a guilt finding would be procedurally unfair.
- Under s 29 of the Drug Misuse and Trafficking Act 1985 (NSW), possession of a traffickable quantity of a prohibited drug gives rise to a deemed supply unless one of two specific exceptions is established; here, neither exception was raised.
- Knowledge of drugs on the accused's premises was inferred from the overall circumstances, notwithstanding the accused's limited admission of knowledge of only a small portion of the drugs found.
- Where an accused offers an uncorroborated explanation for the acquisition of luxury goods, a court may draw an inference from the surrounding circumstances, including the nature, quantity, and street value of drugs found on the premises, that the goods were substantially derived from criminal activity.
Legislation and Cases Referenced
Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 19, 21, 23
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 6, 25, 29
- Crimes Act 1900 (NSW), ss 193A, 193B(2)
- Evidence Act 1995 (NSW)
Cases:
- R v Thomas (No.2) [2015] NSWSC 561
- R v Thomas [2015] NSWSC 537
- Barca v The Queen (1975) 133 CLR 82
- Green v The Queen (1971) 126 CLR 28
- He Kaw Teh v R (1985) 157 CLR 523
- Keil v The Queen (1979) 53 ALJR 525
- Moore v R [2016] NSWCCA 185
- Peacock v The King (1911) 13 CLR 619
- Pereira v DPP (1988) 82 ALR 217
- R v Filippetti (1978) 13 A Crim R 335
- R v Schipanski (1989) 17 NSWLR 618
- R v Keenan (2009) 236 CLR 397
- Shepherd v The Queen (1990) 170 CLR 573
- The Queen v Hillier (2007) 228 CLR 618
- The Queen v Baden-Clay (2016) 258 CLR 308
- Weissensteiner v The Queen (1993) 178 CLR 217
- R v Dunn (1986) 32 A Crim R 203