Kohari v The Queen - [2018] VSCA 307

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0011

ROSS WILLIAM KOHARI

THE QUEEN

---

JUDGES:	KAYE, T FORREST and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 November 2018
DATE OF JUDGMENT:	23 November 2018 First Revision: 26 November 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 307
JUDGMENT APPEALED FROM:	(County Court of Victoria, Unreported, 21-24 November, 5 December 2017, Judge Quin).

---

CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of one charge of cultivation of a commercial quantity of cannabis – Whether applicant intended to cultivate a commercial quantity of cannabis – Whether jury verdict unreasonable or unsupported having regard to the evidence – Whether substantial miscarriage of justice resulted from prosecutor’s address to jury – Adequacy of judge’s directions – No substantial miscarriage of justice – Application for leave to appeal refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant:	Ms J Croxford	Falcone & Adams
For the Respondent:	Mr J Lewis	Mr J Cain, Solicitor for Public Prosecutions

KAYE JA
T FORREST JA
ASHLEY JA:

The applicant was convicted, following a trial in the County Court, of one charge of cultivation of a commercial quantity of cannabis contrary to s 72A of the Drugs Poisons and Controlled Substances Act 1981 (‘the Act’). Following a plea, he was sentenced to serve a community correction order for a period of 4 years, with conditions that he perform 200 hours unpaid community work, that he attend for drug assessment and treatment as directed, and that he be under the supervision of a community corrections officer for the period of the order.

The applicant seeks leave to appeal his conviction on the following grounds:

1.The Jury Verdict is unreasonable or cannot be supported having regard to the evidence.
2.The references (by the prosecutor in his final address) to ‘Blind Freddy would know that … there is a real or significant chance that these plants would weigh at least 25kg’ gave rise to a miscarriage of justice.

Circumstances of the offending

At the time of the offending, the applicant was 31 years of age, and was residing at premises at 2 Inez Avenue, Ringwood (‘the premises’) with his three children.

On 21 November 2014, police executed a search warrant pursuant to the Act at the premises. The applicant was present at the time that the search warrant was executed. He led police to the rear of his garage which he unlocked by entering a code into a security pad. Having entered the garage, police observed a CCTV camera, an air conditioning unit, ballast, fertiliser and spare globes. The applicant then led police to the rear of the garage, where he showed them a room that was concealed behind a brown cupboard. That room was referred to as ‘growing room number 1’. In the room, police located two large clear zip lock bags containing cannabis, eight small glass jars of cannabis, hydroponic equipment, and a calendar containing cultivation entries. The total weight of cannabis,…

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 Kohari v The Queen

Details

AGLC: Kohari v The Queen [2018] VSCA 307
Case: [2018] VSCA 307
Decision Date: 23 November 2018 First Revision: 26 November 2018

CaseChat Overview and Summary

Kohari was convicted of cultivating a commercial quantity of cannabis. The conviction was challenged by an application for leave to appeal. The High Court was asked to decide whether the jury's verdict was unreasonable, if the prosecutor's address to the jury caused a substantial miscarriage of justice, and whether the judge's directions to the jury were adequate.

The court considered whether the jury's verdict was unreasonable or unsupported by the evidence. It examined the prosecutor's address to the jury and whether it caused a substantial miscarriage of justice. Additionally, the court assessed the adequacy of the judge's directions to the jury. The court found that the jury's verdict was not unreasonable and that the prosecutor's address did not result in a substantial miscarriage of justice. The judge's directions to the jury were deemed adequate.

The High Court held that there was no substantial miscarriage of justice. The application for leave to appeal was refused. The court found that the evidence supported the jury's verdict and that the judge's directions were adequate. The prosecutor's address did not prejudice the applicant to the extent that a substantial miscarriage of justice occurred.

Orders