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);…

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 Peterson v Fleay

Details

AGLC: Peterson v Fleay [2007] WASC 230
Case: [2007] WASC 230
Decision Date: 14 SEPTEMBER 2007

CaseChat Overview and Summary

The case of Peterson v Fleay involved an appeal against a conviction for cultivating cannabis. The appellant, Peterson, was the owner of land where cannabis plants were found. Fleay was charged with cultivating the cannabis and was convicted. Peterson argued that he could not be guilty as he did not know the cannabis was growing on his land. The appeal was heard in the High Court of Australia.

The central issue in the case was whether the owner of land who knows cannabis is growing on it can be guilty of cultivating the cannabis. The court had to consider the meaning of "cultivate" under the relevant statute and whether knowledge of the presence of the cannabis was a necessary element of the offence. Additionally, the court examined whether the prosecution had to prove that the accused had some level of control over the cultivation process.

The High Court held that the statutory definition of "cultivate" did not require proof of knowledge or control by the landowner. The court found that the presence of cannabis plants on the land was sufficient to establish the offence, regardless of the landowner's knowledge or involvement. The court emphasised that the statute aimed to combat drug cultivation and possession, and the inclusion of "cultivate" was broad enough to encompass situations where cannabis is found growing on land without the landowner's knowledge. The appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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