R v Roberts, R v Schumacher [2004] NSWSC 325

New South Wales Supreme Court

CITATION : R v Roberts, R v Schumacher [2004] NSWSC 325 HEARING DATE(S) : 19/04/2004 JUDGMENT DATE : 19 April 2004

JUDGMENT OF : Howie J at 1 DECISION : The common law alternative count of supply simpliciter should be left to the jury.

CATCHWORDS : Criminal Law and Procedure - whether an alternative count should be left to the jury. LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 - s 25(2) CASES CITED : R v King [2004] NSWCCA 20 R v Cameron [1983] 2 NSWLR 66 PARTIES : Regina v Barry Kenneth Roberts, Regina v Kelly Louise Schumacher FILE NUMBER(S) : SC 70204/03; 70208/03 R. Herps - Crown COUNSEL : C. Simpson - Accused Roberts J. O'Sullivan - Accused Schumacher S. Kavanagh - Crown SOLICITORS : P. Baird - Accused Roberts Nicolas Moir & Associates - Accused Schumacher

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HOWIE J

MONDAY 19 APRIL 2004

70204/03 REGINA v BARRY KENNETH ROBERTS 70208/03 REGINA v KELLY LOUISE SCHUMACHER

JUDGMENT (On the question of alternative count. See page 559 of transcript.) 1 HIS HONOUR: In this matter a question has arisen as to whether any viable alternative count arises from the indictment and the evidence given in this case. Each of the accused was arraigned on a charge that between the 8th March 1997 and 24th September 2001 at Newcastle in the State of New South Wales they supplied a drug namely methylamphetamine in an amount which was not less than the large commercial quantity for such drug. That is an offence under s 25(2) of the Drug Misuse and Trafficking Act. 2 The evidence relied upon by the Crown is substantially that of two witnesses called in the Crown's case, being Mr Chapman and Ms Love. They have given evidence that over a period of time, being approximately that in the charge in the indictment, the two accused were involved jointly in the supply of methylamphetamine as a going concern in the Newcastle area. The evidence is in effect that they were purchasing large amounts of amphetamine from Ms Love and on supplying it to various purchasers. The Crown case is that they were substantially involved, in the trafficking of amphetamine over the period in the charge and, if the jury accepted that evidence beyond reasonable doubt, it is clear that the amount would have been far more than a large commercial quantity. 3 There is no dispute that the evidence is such that the jury could find beyond reasonable doubt that the offence set out in the first count in the indictment has been proved, if they were prepared to act upon the evidence of Ms Love, Mr Chapman, and what support they may have in their allegations from the telephone intercept material. However, it seems to me that there is little, if any, objective evidence that would support the particular allegation made by Ms Love and Mr Chapman of the extent of the involvement of the accused in the supply of amphetamine before March 2001. 4 The defence case, although not concluded at this time, is clearly that, although Mr Roberts and Ms Schumacher were involved in the supply of amphetamine in the Newcastle area, that supply was only between March 2001 and September 2001, and was of a scale which was in effect to supply their own wants and needs in relation to their use of amphetamine. In other words, they were principally users of the drug, only casually in the case of Mr Roberts and perhaps more frequently in the case of Ms Schumacher, and that in the course of their own use of the drug it was supplied between themselves, to Ms Schumacher's sister, and perhaps by Ms Schumacher to other persons in order to support her habit. Mr Roberts gave evidence to that effect and it was unchallenged by counsel for Ms Schumacher. 5 It seems to me, therefore, that it is open to the jury to find that they have a doubt about the Crown case so far as it relies upon the evidence of indemnified witnesses. It is further open that on the evidence of Mr Roberts a doubt arises as to whether or not the accused were involved in a large commercial quantity in respect of that drug, but that they were nonetheless involved in the supply of amphetamine to the extent of the evidence given by Mr Roberts and revealed in the taped conversations. 6 In light of these competing accounts of the conduct of the accused over the relevant period, the question arises as to what, if any, alternative count should be left to the jury. My attention has been drawn to the recent decision of the Court of Criminal Appeal in R v King [2004] NSWCCA 20. It seems to me that the following propositions can be derived from that decision: · In any criminal prosecution, the trial judge is required to leave an alternative and lesser count to the jury where there is a viable case to support that lesser charge arising; · The alternative count should be left to the jury regardless of whether or not the defence counsel seeks such a count to be placed before the jury; · The trial judge should not leave such an alternative where it would give rise to unfairness to the accused to do so, for example where the existence of the alternative count was not raised before the addresses by the parties occurred; · The trial judge is not required to put every conceivable alternative count before the jury and should not do so where on a serious charge the technically available alternative is so trivial that it might distract the jury or where there is no question that the offence charged was committed and the issue is whether it was the accused who committed it. 7 There are statements that the trial judge should not of his or her own initiative raise an alternative count where it has not been opened by the Crown. See R v Cameron [1983] 2 NSWLR 66. In King, Smart AJ reviews extensively the authorities concerning the obligation on a trial judge to leave an alternative count regardless of the views of the parties. With respect, I agree with Smart AJ that the trial judge must leave a viable alternative count to the jury where the interests of justice require it, even though the parties have either not sought an alternative verdict or have disclaimed such an alternative count and wish to conduct the trial on an all or nothing basis. 8 Although generally speaking it is for the Crown to raise the issue of an alternative count and should if possible do so in opening, there are cases where the viability of the alternative count may not be apparent on the Crown case. If the alternative is open on the evidence, and if it is in the interests of justice that it be left to the jury, then, so it seems to me, the trial judge has an obligation to raise it with the parties before addresses and may be required to leave it to the jury even though urged not to do so by the parties. 9 In the present case it is clear that an alternative scenario arises, at least from the telephone calls and particularly in light of the evidence of Mr Roberts, than that which the Crown relies upon to support the charge in the first count. That alternative scenario gives rise to an offence of supplying amphetamine contrary to s 25(1) of the Act. It is a scenario, which, at least on the accused Roberts's case, involves repeated acts of supply by him and Ms Schumacher. Although not nearly as serious as the offence with which they are charged, it could hardly be described as trivial and is one that is appropriate for trial by jury and for punishment on indictment if they are convicted. 10 Although an argument was originally mounted before me that the alternative count arising by common law of supply simpliciter was no longer available by reason of the provisions of the Drug Misuse and Trafficking Act, that argument was only faintly put in the latter stages of the submissions by Mr Simpson for Mr Roberts, and was refuted by Mr O'Sullivan for Ms Schumacher. In my view it could not be inferred from the provisions of the Drug Misuse and Trafficking Act which lay down statutory alternatives for some offences under the Act that the Legislature had thereby determined that no common law alternative open from the indictment would be available other than those prescribed by the legislation. 11 It must be borne in mind, as King and other cases point out, that the alternative verdict is normally seen as being in an accused person's favour, such that a failure to put it before the jury would result in a miscarriage of justice. Thus there would need to be a very strong inference indeed arising form the provisions of the Act that Parliament intended to repeal a common law procedure, which was in favour of an accused person, before the submission of Mr Simpson could be accepted. In my view such an inference could not possibly be drawn from a consideration of the provisions of the Act and from the simple fact that it has provided some statutory alternatives which apply in respect of some offences. 12 In my view the common law continues to apply and in this case the alternative of supply simpliciter arises from the terms of the first count in the indictment and is, therefore, I believe at least open for consideration for the jury. 13 I accept that in some cases the alternative should not be left because to do so would be to trivialise the matter before the jury or for some other reason might be unfair. If in this case the evidence of Mr Roberts was simply that he had supplied drugs on one occasion to, for example, Ms Schumacher or to some other person then it would not be appropriate to leave the alternative count to the jury. However, the evidence here is that between March 2001 and September 2001 Mr Roberts and Ms Schumacher were involved in a frequent, if not continuous, involvement with amphetamine during the course of which that drug was supplied to other persons either by Ms Schumacher with Mr Roberts's knowledge and consent, or by Mr Roberts to Ms Schumacher and for her to supply it to other persons such as her sister. 14 In those circumstances it seems to me that, if this alternative were not left to the jury, the consequence would be on the one hand that the accused would run the risk of a conviction of the more serious offence simply because the evidence of supply within the period charged is overwhelming and the jury may be unwilling to acquit them outright. On the other hand, if the accused were acquitted of the charge in the first count in the indictment then they would be open to plead autrefois acquit or some other procedural bar in relation to a charge of supply amphetamine between March 2001 and September 2001. That would not be an appropriate result in the interests of justice generally. 15 In those circumstances it seems to me that the evidence is clear that the alternative count is supported by material, at least by the evidence of Mr Roberts and the telephone conversations that have been placed before the jury. Although I appreciate the argument put forward on behalf of Mr Roberts, that the case he came to meet was that charged in the indictment, there is no possible procedural or other prejudice to the accused by having the alternative count left to the jury when it so clearly arises from the evidence before them. This is not the same situation as arose in Cameron, where the alternative was raised by the trial judge in answer to an application for a verdict by direction at the end of the Crown case. In the present circumstances it seems to me that the alternative count should be left to the jury. Whether an alternative should be left in other cases, where the parties do not seek it, is a matter to be addressed upon the particular facts and circumstances arising in the case. 16 There is a concession by the Crown that the common law alternative only arises if the jury is not satisfied beyond reasonable doubt of the Crown case based upon the evidence of Ms Love and Mr Chapman and are prepared to act upon the basis that the evidence of Mr Roberts might possibly be true. If that be the case, then it seems to me that the jury could not find the accused guilty of the statutory alternative of supplying an amount of amphetamine being not less than the commercial quantity. Such a verdict falls between two stools. On the one hand the Crown contends that the accused were engaged in the supply of drugs well over the large commercial quantity and, on the other, the accused's case, explicitly or by implication, is that they were involved in the supply of drugs in the course of their own drug usage. The Crown has conceded that there is no viable factual basis for the jury to consider the statutory alternative and the only charges that will be left to the jury will be supply of a large commercial quantity or supply simpliciter. **********