Dhroso v The King - [2024] VSCA 281

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2024 0068

ARMANDO DHROSO	Applicant
v
THE KING	Respondent

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JUDGES:	McLEISH, BOYCE and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 October 2024
DATE OF JUDGMENT:	25 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 281
JUDGMENT APPEALED FROM:	DPP v Dhroso (Unreported, County Court of Victoria, Judge Holding, 13 March 2024)

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CRIMINAL LAW – Application for leave to appeal against conviction – Cultivation of cannabis in not less than a commercial quantity – Theft – Hydroponic cannabis cultivation operation at house owned by applicant – Crown cases of applicant acting as ‘principal’ or alternatively intentionally ‘assisting’ by making house available – Whether characterisation of alternative Crown case as ‘assistance’ in error – Whether trial judge’s failure to give a unanimity direction in error – Jury not required to be unanimous as to which alternative established – No direction required – Leave to appeal refused.

CRIMINAL LAW – Application for leave to appeal against conviction – Whether applicant’s possession of cannabis at residence admissible in proof of applicant’s guilt of cultivation at different house – Circumstantial evidence – Whether probative value of evidence outweighed prejudicial effect – Evidence admissible – Leave to appeal refused.

CRIMINAL LAW – Application for leave to appeal against conviction – Whether applicant’s reliance on ‘sham’ lease of property used to cultivate cannabis incriminating conduct – Whether open to jury to conclude that lease a ‘sham’ – Evidence admissible as incriminating conduct – Leave to appeal refused.

CRIMINAL LAW – Application for leave to appeal against conviction – Evidence of gloves found at scene allegedly ‘planted’ by police – Evidence of gloves not relied upon in proof of prosecution case – Whether ‘substantial and compelling reasons’ requiring trial judge to direct jury to ignore evidence of gloves – Direction not required – Leave to appeal refused.

CRIMINAL LAW – Application for leave to appeal against conviction – Whether verdicts of guilty unreasonable and cannot be supported having regard to the evidence – Circumstantial Crown case – Evidence sufficient – Open to jury to convict – Leave to appeal refused.

Crimes Act 1958, ss 323, 324B; Jury Directions Act 2015, ss 12, 15, 16 & 18; Evidence Act 2008, s 137.

R v Walsh (2002) 131 A Crim R 299, Lanciana v The King [2023] VSCA 78, Wilson v The Queen [2016] VSCA 62, Davidson v The Queen (2009) 75 NSWLR 150, Bembo v The Queen [2018] VSCA 42, R v Rohan (a pseudonym) (2024) 98 ALJR 429, discussed; M v The Queen (1994) 181 CLR 487, Dansie v The Queen (2022) 274 CLR 651, Coughlan v The Queen (2020) 267 CLR 654, R v Hillier (2007) 228 CLR 618, applied.

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Counsel
Applicant:		Mr M Stanton SC with Ms P Tat
Respondent:		Mr J McWilliams
Solicitors
Applicant:	Sarah Tricarico Lawyers Pty Ltd
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

McLEISH JA
BOYCE…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dhroso v The King

Details

AGLC: Dhroso v The King [2024] VSCA 281
Case: [2024] VSCA 281
Decision Date: 25 November 2024

CaseChat Overview and Summary

Dhroso appealed against his conviction for cultivating cannabis in a commercial quantity and for stealing electricity. The appeal was dismissed by the Court. The applicant, Dhroso, was convicted of cultivating cannabis and stealing electricity, based on evidence of a hydroponic cannabis cultivation operation at a house he owned. The Court was required to decide whether the trial judge mischaracterised the Crown’s case as ‘assistance’ instead of ‘principal’ in relation to the cultivation charge, whether a unanimity direction was required for the jury, whether the evidence of cannabis possession at the applicant’s residence was admissible, whether the sham lease was properly admitted as incriminating conduct, whether the evidence of gloves allegedly planted by police required the jury to be directed to ignore it, and whether the verdicts were unreasonable given the evidence.

The Court found that the trial judge did not err in characterising the Crown’s case as ‘assistance’ rather than ‘principal’, as both were supported by the evidence. The Court also held that a unanimity direction was not required because the jury was not required to be unanimous on which alternative was established. The probative value of the evidence of cannabis possession at the applicant’s residence outweighed its prejudicial effect, so it was admissible. The evidence of the sham lease was properly admitted as incriminating conduct. The gloves evidence was not relied upon by the prosecution, so no direction to ignore it was required. Finally, the Court found that the evidence was sufficient for the jury to convict the applicant.

The Court dismissed the appeal and refused leave to appeal against conviction.

Orders