DPP v Johnson & Ors (Ruling no 7) - [2007] VSC 579

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1553 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS	Prosecution
v
LANCE CRAIG JOHNSON, BRIAN DAVID ZERNA, SHANE FRANCIS BUGEJA AND KHODI ALI	Accused

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JUDGE:	Bell J
WHERE HELD:	Melbourne
DATES OF HEARING:	7 December 2007
DATE OF RULING:	10 December 2007
CASE MAY BE CITED AS:	DPP v Johnson & Ors (Ruling no 7)
MEDIUM NEUTRAL CITATION:	[2007] VSC 579

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CRIMINAL LAW – conspiracy to traffick in large commercial quantity of methylamphetamine – mental element – whether prosecution must prove agreement related to methylamphetamine – whether drug in nature of amphetamine sufficient – ruling that prosecution must prove agreement to traffick drug specified in presentment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M Tovey QC with Mr S Milesi	Office of Public Prosecutions
For the accused Mr Johnson	Mr S Robertson	Chester Metcalfe & Co
For the accused Mr Zerna	Mr L Barker	Patrick W Dwyer & Associates
For the accused Mr Bugeja	Mr I Polak	Leanne Warren & Associates
For the accused Mr Ali	Mr G Georgiou	Victoria Legal Aid

HIS HONOUR:

This is Ruling no 7.

The conspiracy charges brought against the accused are expressed (in the presentment) in terms of “trafficking in a drug of dependence, namely, methylamphetamine”. This offence is specified in s 79(1) of the Drugs, Poisons and Controlled Substances Act1981. The prosecution seeks a ruling that the jury could be satisfied that the conspiracy was established if the drug, the subject of the conspiracy, was a drug “in the nature of amphetamine”. The ruling has been sought, as I understand it, because of the evidence intended to be tendered against Mr Ali, but it would apply to all four accused.

After some four weeks the prosecution case is nearly, but not quite, closed. Depending on this ruling, there is likely to be, on the prosecution side, an application to amend the presentment and to call further prosecution expert evidence from the forensic chemist, and on Mr Ali’s side, a no-case submission.

I accept that, with substantive offences like importing and possessing illegal substances, and trafficking drugs, the offence can be proved where the necessary intention is able to be inferred, beyond reasonable doubt, from circumstances showing “the accused believed or was aware that there was a significant or real chance that his conduct involved trafficking…”: Director of Public Prosecutions Reference (No 1 of 2004) R v Nguyen (2005) 12 VR 299, 308.

However, with conspiracy, the offence is constituted by a meeting of minds to achieve an unlawful object. Particulars must be given of the conspiracy alleged, which involves specifying the unlawful object of the agreement.

In this case, that has been done, but in terms of trafficking in a drug of dependence, namely, methylamphetamine. The conspiracy alleged is, therefore, that the accused agreed to traffick in that drug.

Because conspiracy involves agreement, the prosecution must prove beyond reasonable doubt that, when agreeing,…

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 DPP v Johnson & Ors (Ruling no 7)

Details

AGLC: Director of Public Prosecutions v Johnson (Ruling no 7) [2007] VSC 579
Case: [2007] VSC 579
Decision Date: 10 December 2007

CaseChat Overview and Summary

The case of DPP v Johnson & Ors (Ruling no 7) involved the prosecution of several defendants on charges of conspiracy to traffick in large commercial quantities of methylamphetamine. The dispute centred on the legal requirements for establishing the requisite mental element in such a conspiracy, specifically whether the prosecution had to prove that the defendants' agreement related specifically to methylamphetamine or whether it was sufficient that the drug was of the nature of amphetamine. The case was heard in a court of summary jurisdiction in Australia.

The central legal issue was whether the prosecution had to prove an agreement to traffick in methylamphetamine specifically or if an agreement to traffick in a drug of the amphetamine nature was sufficient. This issue was significant because the charges against the defendants hinged on whether their agreement was specific to methylamphetamine or if any amphetamine-type drug would suffice. The court was required to interpret the relevant statutory provisions and determine the necessary proof for establishing the conspiracy.

The court ruled that the prosecution must prove that the defendants agreed to traffick in the specific drug, methylamphetamine, as charged. The court held that merely agreeing to traffick in a drug of the amphetamine nature was not sufficient to satisfy the statutory requirements. The court found that the prosecution must demonstrate that the agreement was related to methylamphetamine specifically, as this was the drug mentioned in the presentment. This ruling clarified the legal standard for establishing the mental element in conspiracy charges involving the trafficking of specific drugs.

The court made a ruling that the prosecution must prove the defendants agreed to traffick in methylamphetamine specifically. This decision provided clarity on the necessary proof required in such conspiracy charges, ensuring that the prosecution must establish the precise drug in question. The ruling helped to delineate the boundaries of what constitutes sufficient proof in cases involving drug trafficking conspiracies.

Orders