Peterson v Fleay - [2007] WASC 230

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: PETERSON -v- FLEAY [2007] WASC 230

CORAM: McKECHNIE J

HEARD: 14 SEPTEMBER 2007

DELIVERED : 14 SEPTEMBER 2007

FILE NO/S: SJA 1055 of 2007

BETWEEN: GREGORY WAYNE PETERSON
Appellant
AND
MICHAEL STEVEN FLEAY
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE S WILSON
File No  :CO 535 of 2006

Catchwords:

Criminal law - Parties to an offence - Cultivating cannabis - Whether the owner of land who knows cannabis is growing on it can be guilty

Legislation:

Criminal Code (WA), s 7

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms N Eagling
Respondent: Mr M C Owens

Solicitors:

Appellant: Max Owens & Co
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

R v Beck (1990) 1 Qd R 30
R v Clarkson, Carroll & Dodd [1971] WLR 1402
R v Coney (1882) 8 QBD 534
R v Sherrington & Kulcher (2001) QCA 105
Ward v The Queen (1997) 19 WAR 68

McKECHNIE J: The appellant was charged with cultivating a prohibited plant, namely, cannabis, between 26 and 27 October 2006. He stood trial on 27 June 2007, following which he was convicted.
The trial proceeded in accordance with agreed facts which I take to be that the accused made admissions under the Evidence Act 1906 (WA) s 32 which relieved the prosecution of the burden of proof of those facts.
Therefore, the following facts were established, by virtue of s 32, beyond reasonable doubt. The appellant was the owner of property at 17 Hampton Court, Collie, which he occupied with his de facto partner, Ms Boswell, and their children. On 26 October 2006, at approximately 11.15 am, he was at home when the police executed a search warrant. He allowed police to enter and execute the search warrant. He was cautioned. He brought to the attention of the police two cannabis plants growing in the backyard. For some weeks the appellant knew those plants were on his property. He knew that Ms Boswell was cultivating the plants. Ms Boswell was charged by way of a cannabis infringement notice in relation to the plants and she accepted that charge.
On these facts that argument developed in relation to matters of law. The magistrate said:
The facts in this case are in essence admitted by the defendant, and it really comes down to a point of law as to whether the accused is guilty of this offence or not. (ts 13)
That is not quite an accurate statement. It is a question of fact to be established beyond reasonable doubt; not law. However, when the magistrate came to address the facts, he made findings of fact and did not conclude the matter on a question of law alone but on the application of the law to the facts.
The prosecution proceeded on the basis that the appellant was either a principal offender under the Criminal Code (WA) (Code) s 7(a); that is, the person who actually does the act or makes the omission which constitutes the offence; or an aider under s 7(b) or s 7(c).
There was no evidence whatever to establish that the appellant was a principal offender. All the evidence was to the contrary. So the issue, which the magistrate correctly identified, was whether the appellant did an act enabling the offence; or was an aider to the offence.
The magistrate set out the law and referred, by and large, to cases to which counsel have drawn attention to today. Probably, the present leading authority for Code offences is R v Beck (1990) 1 Qd R 30, which both counsel have referred to today and to which the magistrate also referred. There are other cases, cases of encouragement, particularly R v Coney (1882) 8 QBD 534 a case which both counsel have referred to, and also R v Clarkson, Carroll & Dodd [1971] WLR 1402. Those latter cases are common law cases but do provide some illumination as to s 7.
I return to what the magistrate said:
In my opinion, when one applies that to the agreed facts in relation to this matter, we have the following: we have a case in which the de facto wife of the accused, who is the owner of the property upon which he is aware that she is cultivating two prohibited plants. He does nothing, says nothing in relation to the matters, but clearly is well aware that she continues that activity on his property. When police arrive with a search warrant they are led in fact to the plants by the accused in relation to where they were and then denies any active involvement in the cultivation.
In my opinion, when one applies what has been raised in the Sherrington case and also in the Russell case, that there was, in my opinion, by his presence and behaviour, and that is presence and behaviour of a negative form, and that is doing nothing, that he was assenting to the - or concurring in the continued commission of a crime. That is that he was aware the plants were being - a plant was being cultivated - or two prohibited plants were being cultivated on his property by his partner, and that property belonged to him, and that by his actions, in this case the negative actions of doing nothing, that he was aware that an offence was occurring and therefore was concurring with her in the commission of that offence.
In my opinion, that traps the accused under the provisions of an aider under section 7(c) of the act, and certainly in my view, under section 7(b) of the act, in the section headed 'Principal offenders' under section 7 of the code. I accept the prosecution's submission that a person must be seen, at least in these circumstances - and there may be differing circumstances, that they can be convicted by simply doing effectively nothing in relation to this.
In this case, in my view, there was concurrence with the offence, because knowing that it was occurring on there he did nothing, which in my opinion was - I will just get the wording right here - by his presence and behaviour simply assenting to the concurrence or continuance of the offence, and that, in my view, is not dissimilar to the actions in the case of Russell, where a person simply stood by and said nothing while a mother of children set about drowning them in a bath. (ts 16, 17)
The magistrate was then satisfied that the prosecution had proved each and every element of the offence beyond reasonable doubt.
The grounds of appeal upon which leave to appeal was granted are as follows:
The magistrate erred in law and fact in convicting the Appellant.
Particulars
1.There was no evidence to support a conclusion the Appellant gave positive encouragement to Stacey Boswell to cultivate the two cannabis plants; alternatively insufficient evidence to support such conclusion beyond reasonable doubt.
2.The Magistrate did not apply the correct test in circumstances in relation to section 7(c) of the Criminal Code; the correct test being whether the prosecution had established actual encouragement of the offence as well as an intention to encourage, to the required standard.
Aiding, as I have said, is a question of fact to be established beyond reasonable doubt. A minimum requirement for aiding is knowledge. That is satisfied here by the concession that the appellant knew the cannabis plants were growing in the backyard. I say minimum requirement but it is better understood as an element of the aiding to be proved before liability is established. Sometimes, in cases such as Ward v The Queen (1997) 19 WAR 68, the focus is on the knowledge of an accused. In the present case, knowledge is admitted.
Accepting that the appellant had knowledge of the offence, the prosecution must prove that, with knowledge, he lent his aid to the commission of the offence. The word 'aiding' is an obvious English word. In R v Sherrington & Kulcher(2001) QCA 105 at [12] McPherson JA said: 'The word "aids" is an ordinary English word which means assists or helps'.
The grounds of appeal focus on the lack of positive encouragement given by the appellant to Ms Boswell. However the Code does not extend liability to encouragement but to aiding. Aiding may take many forms, one of which is the offer of positive encouragement. Another is the doing of some physical act. A third form is by an omission which results in assistance in the commission of an offence.
Under s 3 of the Misuse of Drugs Act 1981 (WA), "to cultivate", is defined as:
[I]n relation to a prohibited plant, includes to grow, sow or scatter the seed produced by, or to plant, nurture, tend or harvest, the prohibited plant.
The definition itself connotes a continuing activity although a legal definition is hardly needed because 'to cultivate' in ordinary usage is an ongoing activity.
The land on which the plants were grown belonged to the appellant. He had dominion and control over the land. The continuation of the cultivation on that land over which the appellant had control, after he became aware of the plants, can amount to a positive act of aiding on his part or a positive omission which results in liability. As the land belonged to him, cultivation after he had knowledge could not have continued without his acquiescence. Because the land was his, he had it in his control to refuse or decline to allow the continuation of the illegal activity, and he did not intervene.
In my opinion, this is not a case such as Coney or Clarkson, and is not a case of encouragement at all but a case of a positive omission in circumstances where the appellant had control over the land, but by failing to do anything allowed the continuation of the illegal activity of cultivation.
The Magistrate was correct in his decision that the appellant was guilty of the offence and the appeal must be dismissed.