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District Court 8 April 2022

R v Jenkinson (No. 2)

[2022] NSWDC 287

Drugs

Citation: R v Jenkinson (No. 2) [2022] NSWDC 287
Court: District Court of New South Wales
Date: 8 April 2022
Judge(s): Bennett SC DCJ

Background

The accused was charged with supplying a prohibited drug, specifically psilocybin, in a commercial quantity, contrary to the Drug Misuse and Trafficking Act 1985. The alleged supply took place on 1 May 2020 at Nelsons Plains in New South Wales. The accused pleaded not guilty to the primary charge but guilty to the statutory alternative of supply (without the commercial quantity element).

The central factual dispute concerned how the quantity of psilocybin should be measured. The drug was found within vegetative material (consistent with psilocybin mushrooms), and the question was whether the quantity threshold for a "commercial quantity" should be assessed by reference to the pure drug alone or to the drug as part of the vegetative admixture in which it was found.

That question was resolved on the voir dire (a preliminary hearing conducted by the judge to determine an evidentiary or legal question before the main trial). The judge's earlier voir dire ruling, delivered the same day, found in favour of the Crown: the quantity was to be assessed by reference to the admixture, satisfying the commercial quantity threshold.

  • Whether the quantity of psilocybin should be assessed in its pure form or as part of the vegetative admixture in which it was found, for the purpose of determining whether a commercial quantity was supplied
  • Whether all elements of the offence of supplying a prohibited drug in a commercial quantity were established on the evidence
  • Whether the judge alone trial could proceed before the expiry of the 28-day period following the filing of the election notice

Decision

The sole contested issue in the trial had already been resolved on the voir dire, where the court found that the quantity of the prohibited drug was to be assessed as an admixture within the meaning of section 4 of the Drug Misuse and Trafficking Act 1985. That finding brought the 98-gram quantity within the commercial quantity threshold for psilocybin.

With that issue resolved, the judge turned to the remaining elements of the offence. The agreed statement of facts, tendered without challenge, established possession for the purposes of supply. The accused's guilty plea to the statutory alternative confirmed the supply element. No issue arose as to identity or the nature of the substance.

Bennett SC DCJ also addressed the procedural requirements for a judge alone trial under sections 133(2) and 133(3) of the Criminal Procedure Act 1986 and the High Court authority in Fleming v R (1998) 197 CLR 250. The 28-day waiting period following the election notice had not elapsed, but the judge exercised the available discretion to proceed, noting that both parties consented, were ready to proceed, and that delay would serve no purpose.

The judge applied orthodox directions to himself, including the criminal standard of proof (beyond reasonable doubt), the requirement for care in drawing inferences, the absence of any adverse inference from the accused's silence in interview or at trial, and the irrelevance of character evidence in the circumstances.

Orders Made

  • The accused was found guilty of supplying a prohibited drug (psilocybin) in a commercial quantity (98 grams) at Nelsons Plains on 1 May 2020, being an amount not less than the commercial quantity for that prohibited drug.

Key Takeaways

  • The District Court confirmed that, where psilocybin is found within vegetative material, the quantity for the purpose of assessing a commercial quantity threshold under the Drug Misuse and Trafficking Act 1985 can be measured by reference to the admixture rather than the isolated pure drug.
  • A guilty plea to the statutory alternative of supply (under section 25(3) of the Drug Misuse and Trafficking Act 1985) is sufficient to establish the supply element, leaving only the quantity issue to be determined at trial.
  • Under sections 133(2) and 133(3) of the Criminal Procedure Act 1986, a judge conducting a judge alone trial must still direct themselves on applicable principles of law, even where the evidence is agreed and largely uncontroversial.
  • The 28-day period following filing of a judge alone election notice does not operate as an absolute bar to proceeding earlier: the court retains a discretion to continue where both parties consent and no prejudice arises from doing so.
  • Silence by an accused during police interview and at trial carries no adverse inference against them; the burden of proof rests entirely on the Crown throughout.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 4, 25(3)
- Criminal Procedure Act 1986 (NSW), ss 133(2), 133(3)

Cases:
- Fleming v R (1998) 197 CLR 250 (High Court of Australia)