Grozdanov v The Queen - [2012] VSCA 94

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0383

JOHN GROZDANOV	Appellant
	V
THE QUEEN	Respondent

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JUDGES	NEAVE, MANDIE JJA AND KYROU AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	20 FEBRUARY 2012
DATE OF JUDGMENT	18 MAY 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 94
JUDGMENT APPEALED FROM	R v Grozdanov (Unreported, County Court of Victoria, Judge Gullaci, 11 October 2010 (conviction))

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CRIMINAL LAW — Conviction — Cultivating a large commercial quantity of drug of dependence — Theft of electricity — Jury Directions — Meaning of ‘cultivate’ in s 70 of Drugs, Poisons and Controlled Substances Act 1981 — Whether includes activities ‘associated with’ activities listed in statutory definition — Whether trial judge erred in directing jury that servicing watering system constitutes cultivation —Appeal allowed in part.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Appellant	Ms C Boston	Haines & Polites
For the Respondent	Mr B Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

The appellant, John Grozdanov, was found guilty by a County Court jury of one count of cultivating a large commercial quantity of a narcotic plant (cannabis) (count 1); one count of cultivating a commercial quantity of a narcotic plant (cannabis) (count 2) and two counts of theft of electricity (counts 3 and 4). He now appeals against his conviction for those offences.

Background

The alleged cultivation of cannabis and theft of electricity took place at two factories located at 165 Merri Concourse (counts 1 and 3) and 75 Merola Way (counts 2 and 4) in Campbellfield. In his closing address, the prosecutor told the jury that the case in relation to Merri Concourse was ‘a lot stronger’ than the case in relation to Merola Way.

Merola Way

On 22 January 2007, the Merola Way premises was leased by two men, who supplied a number of fictitious documents to secure the lease. A mobile telephone number belonging to ‘John Tantas’ (who was never located) was provided to the real estate agent and was subsequently used to contact the agents.

On 5 February 2007, a real estate agent attended the premises to carry out an inspection. He was prevented from entering the upstairs rooms by two men, who said that the rooms were locked and they did not have the keys. The real estate agent recorded the registration details of vehicles at the property, including a Mercedes Benz, which was registered to ‘AA Hydroponics’, and was used by the appellant. In December 2007, the police placed a tracking device in the Mercedes Benz.

On 4 September 2008, real estate agents attended the property to perform a lockout and discovered a hydroponic set up. Police attended and located the following:

·87 plants weighing 187.1 kilograms, in the two office rooms upstairs;
·49 harvested plants weighing 3.97 kilograms in the lower level of the factory;
·cannabis and other material weighing 19.99 kilograms, also on the lower level; and
·an electrical bypass.

Merri Concourse

On 26 February 2007, the Merri Concourse premises was leased by a George…

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 Grozdanov v The Queen

Details

AGLC: Grozdanov v The Queen [2012] VSCA 94
Case: [2012] VSCA 94
Decision Date: 18 MAY 2012

CaseChat Overview and Summary

In the case of Grozdanov v The Queen, the appellant was convicted of cultivating a large commercial quantity of a drug of dependence, theft of electricity, and other related offences. The appellant was found to have grown a large number of cannabis plants, which were powered by stolen electricity. The trial judge directed the jury that the act of servicing the watering system was included within the definition of cultivating under the Drugs, Poisons and Controlled Substances Act 1981. The appellant appealed the conviction on the basis that the trial judge erred in this direction.

The legal issue before the court was whether the trial judge correctly directed the jury on the meaning of ‘cultivate’ in s 70 of the Drugs, Poisons and Controlled Substances Act 1981. The appellant argued that the trial judge erred by including activities ‘associated with’ the activities listed in the statutory definition of cultivating. The court considered whether the trial judge’s direction to the jury was correct in law, and whether it was open to the jury to find that servicing the watering system was an activity associated with cultivating. The court also considered whether the trial judge’s direction was so flawed that it occasioned a miscarriage of justice.

The court found that the trial judge erred in directing the jury that servicing the watering system constituted cultivation. The court held that the statutory definition of cultivating was limited to the activities listed in the definition and did not include activities associated with those activities. The court held that the trial judge’s direction to the jury was so flawed that it occasioned a miscarriage of justice, and the conviction for cultivating a large commercial quantity of a drug of dependence was quashed. The appellant’s appeal was allowed in part, and the conviction for theft of electricity and other related offences was upheld.

The final orders of the court were that the appellant’s conviction for cultivating a large commercial quantity of a drug of dependence was quashed, and the appeal was allowed in that respect. The convictions for theft of electricity and other related offences were upheld, and the appeal in that respect was dismissed. The case was remitted to the trial court for re-sentencing.

Orders