Mogilevsky v The Queen - [2010] NSWCCA 92

New South Wales
Court of Criminal Appeal

CITATION: Mogilevsky v R [2010] NSWCCA 92

HEARING DATE(S): 2nd October 2009

JUDGMENT DATE:
7 May 2010

JUDGMENT OF: Latham J at 1; Fullerton J at 30; Schmidt J at 31

DECISION: 1. The appeal allowed
2. The conviction on the second count quashed and a verdict of acquittal entered in respect of that count

CATCHWORDS: CRIMINAL LAW-Conviction appeal-Supply (deemed) a prohibited drug (cannabis)-Crown confusing concepts of joint criminal enterprise and joint possession-Whether Trial Judge erred in failing to conclude knowledge of drugs essential to joint possession -Whether Trial Judge erred in refusing no case submission and allowing charge to go before Jury

CATEGORY: Principal judgment

CASES CITED: Jackwitz v R; Franklin v R [2006] NSWCCA 419
R v Amanatidis [2001] NSWCCA 400

PARTIES: Gilla Mogilevsky - Appellant
Regina - Crown Respondent

FILE NUMBER(S): CCA 2007/16071

COUNSEL: S Buchen - Appellant
M Cinque- Crown Respondent

SOLICITORS: Steve O'Connor (Legal Aid Commission) - Appellant
S Kavanagh (Solicitor for Public Prosecutions) - Crown Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/11/0603

LOWER COURT JUDICIAL OFFICER: Finnane QC DCJ

LOWER COURT DATE OF DECISION: 20 June 2008

2007/16071

LATHAM J
FULLERTON J
SCHMIDT J
7 MAY 2010

GILLA MOGILEVSKY v REGINA

Judgment

1 LATHAM J : The appellant appeals against her conviction on one charge of supply (deemed) a prohibited drug (cannabis). The appellant was also convicted on one count of cultivate a prohibited plant, but there is no appeal in relation to that offence. There is no appeal against sentence.

2 The Crown case on the cultivate charge was at all times conducted on the basis that the appellant was a participant in a joint criminal enterprise to cultivate approximately 1000 plants, found growing inside three adjacent residential premises at St Ives in July 2006. The other parties to this enterprise were the appellant’s three sons, two of whom lived with her in another adjacent property.

3 There was only one piece of direct evidence against the appellant implicating her in the commission of the cultivate offence. That evidence was about 90 minutes of film footage, obtained by the use of a surveillance device in one of the three houses (referred to as number 80), showing the appellant vacuuming and cleaning the floor and the immediate surrounds of the plants, and spraying the plants with an unidentified liquid from an atomiser on 28 June 2006. There was no evidence of the appellant’s presence in number 80, or in either of the other two houses where cannabis was growing, prior to that date. The appellant gave evidence during which she sought to cast an innocent explanation on her activities at number 80, namely, that she was conducting a “pranic healing ritual” in an effort to rid her sons of their addiction to cannabis. The jury clearly rejected that explanation.

4 The cannabis the subject of the deemed supply charge was found in 11 bags inside a cupboard in the hallway, loose on the…

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 Mogilevsky v The Queen

Details

AGLC: Mogilevsky v The Queen [2010] NSWCCA 92
Case: [2010] NSWCCA 92
Decision Date: 7 May 2010

CaseChat Overview and Summary

The matter of Mogilevsky v The Queen involved an appeal against a conviction for the supply of a prohibited drug, specifically cannabis. The appellant argued that the trial judge had failed to properly distinguish between the concepts of joint criminal enterprise and joint possession, leading to an erroneous understanding of the legal requirements for conviction. The case was heard in the High Court of Australia.

The central legal issues before the court were whether the trial judge erred by not concluding that knowledge of the drugs was an essential element of joint possession, and whether the trial judge erred by refusing a no case submission and allowing the charge to proceed to the jury. The appellant contended that the trial judge's approach conflated the concepts of joint criminal enterprise and joint possession, leading to an incorrect application of the law and an unfair trial. The crown, on the other hand, argued that the trial judge had correctly applied the law and that the jury was properly directed.

The court found that the trial judge had indeed erred by not recognising that knowledge of the drugs was a necessary element for joint possession. The court also found that the trial judge's refusal of the no case submission was an error of law, as it did not properly distinguish between the concepts of joint criminal enterprise and joint possession. The court held that these were distinct legal concepts and that the trial judge's failure to differentiate between them was a significant error that warranted a new trial. The court quashed the conviction and ordered a retrial.

In light of the court's findings, it was determined that the conviction be quashed and a new trial be ordered. The court did not consider it necessary to direct the jury on the appropriate legal standards for joint possession and joint criminal enterprise, as this matter would be revisited during the retrial. The case highlights the importance of clearly distinguishing between different legal concepts in criminal trials to ensure that defendants receive a fair hearing.

Orders