R v Bishop and Lade

[1990] TASSC 154

Serial No B77/1990
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              R v Bishop and Lade [1990] TASSC 154; B77/1990

PARTIES:  R
  v
  BISHOP
  LADE

FILE NO/S:  C77/1990
DELIVERED ON:  11 December 1990
JUDGMENT OF:  Cox J

Judgment Number:  B77/1990
Number of paragraphs:  9

Serial No B77/1990
List "B"
File No C77/1990

R v BISHOP & LADE

REASONS FOR JUDGMENT  COX J

11 December 1990

1. The two accused were apprehended in a wire compound containing Indian Hemp plants by members of the Drug Squad conducting surveillance duties at Roger River West on 10 February 1990. The plantation which was hidden in a State forest consisted of three compounds and contained a total of 276 plants, none of which had reached full maturity. According to the Crown evidence the two accused were overheard to make remarks such as "they haven't grown much since we last saw them" and "we're not going to make as much as we thought". Lade was seen to remove and discard male Indian Hemp plants. This is a means of stimulating the THC content of the female plants. The police, who had a search warrant under the Poisons Act 1973, revealed themselves and apprehended the two accused and struggles ensued. Thereafter substantial admissions were made by Bishop but Lade made few, if any.

1. They were jointly indicted on a first count of trafficking in a prohibited plant, to wit, Indian Hemp and on a second count of selling that plant. In each case the particulars given were that they had the plant in their possession for the purpose of trafficking and sale respectively. The Crown relied on possession of more than the maximum permissible quantity of plants as provided in s47(7) for evidence that they had plants in their possession for such purposes. In addition Bishop was charged with two counts of assaulting a police officer in the execution of his duty and Lade with one count of obstructing a police officer in the execution of his duty. They were also charged in the Court of Petty Sessions with the summary offences of possessing a prohibited plant contrary to s49 of the Poisons Act and of growing a prohibited plant contrary to s52 of that Act. Initially they had been charged with assault and obstruction under the Police Offences Act 1935 but the Crown included the subject matter of those charges in the last three counts of the indictment.

1. On the tenth day of the trial I ruled inadmissible certain evidence as to the street value of harvested Indian Hemp. In the course of my ruling and the debate which preceded it I made it clear that it was my view at that stage that for a prosecution for trafficking or selling to succeed in the absence of evidence of actual trafficking or sale as explained in, for example, R v Whitford & Widdowson (No 2) [1980] Tas R 232 the Crown would have to show that the accused had the material the subject of the indictment "in possession for trafficking" or "in possession for sale" and that proof that they had it "in possession for the purpose of trafficking" or "in possession for the purpose of sale" in circumstances indicating an intention at some later time, such as upon its being harvested, to so dispose of it was not sufficient to constitute the offences charged. Thereupon the Crown prosecutor closed his case notwithstanding that there were several further police eye witnesses to the apprehension and struggle still to be called to give corroborative evidence thereof and I made a formal ruling that the accused had no case to answer on counts 1 and 2. Nevertheless I indicated that I would leave an alternative charge of possession pursuant to s47(9) of the Poisons Act to the jury. I also ruled that Lade had no case to answer on the count of obstruction. The prosecutor then sought to enter a nolle prosequi on the two counts of assault against Bishop but I refused this application and ultimately directed a verdict of not guilty thereon.

1. After my ruling the two accused made formal admissions of all the ingredients of the alternative offence of possessing a prohibited plant and the trial concluded with the jury finding them both not guilty of the first count of trafficking but guilty of the alternative count of possession and not guilty of the remaining counts in the indictment. I was then asked to accept jurisdiction under s385A of the Criminal Code to determine the outstanding summary offence of growing a prohibited plant. I acceded to this request and both accused pleaded guilty to that charge. They were later sentenced for the offences of possessing and growing cannabis.

1. The accused Bishop has now made an application for costs pursuant to the Costs in Criminal Cases Act 1976. His counsel makes it clear that he is only seeking costs in respect of the trafficking and selling counts in the indictment and not in respect of the assault charges. He relies particularly on s4(2)(e) of the last mentioned Act which provides:

"2The Court, in deciding whether to grant costs and the amount of any costs granted, shall have regard to all relevant circumstances and in particular to the following:–

(e)whether the defendant is discharged from the proceedings because he established (either by the evidence of witnesses called by him or by cross–examination of witnesses for the prosecution or otherwise) that he was not guilty."

1. In the circumstances it was not really the defendant Bishop who established that he was not guilty of trafficking or selling but rather the Crown case itself which showed he was not guilty of those charges. Nevertheless the fact that a prosecution is based on material which cannot establish a case to answer is, in my view, a relevant factor to be considered (Attorney General & Smith v Woulleman–King [1980] Tas SR 278 (NC).7 and serial No21/1980) and the matters mentioned in s4(2) are clearly not exhaustive.

1. In The Queen v Freshney [1977] Tas SR 126 Cosgrove J said at p128:

"5        ... the power is not to be exercised unless there is some positive reason for doing so; some circumstance or consideration which activates the discretion (cf the authorities dealing with the discretion to extend time).

6         Because the emphasis is on justice, inefficiencies in investigation or irregularities in procedure would not of themselves activate the discretion. There must be some circumstance, other than acquittal which, whether or not it be based on error, inefficiency, or irregularity, gives the applicant a just claim on the community for payment of his costs."

1. In the present case I have been informed that the accused Bishop was prepared to plead guilty to an alternative count of possession before the commencement of the trial. The Crown indicated to him that it would accept a plea of guilty to count 2 (sale) and one of the two assaults charged. The parties not agreeing the matter proceeded to trial. It is possible that had the Crown Law Officer who preferred this indictment taken the same view as myself of the law as to what constitutes trafficking or sale within the meaning of the extended definitions of those terms in the Poisons Act this matter might have proceeded in the Court of Petty Sessions and been concluded in a far shorter time. However it is pure speculation that had that been the case the accused would have conceded possession. In Bishop's case his admissions, if accepted, cogently established his possession of the crop but the first two and a half days of the trial were taken up with a voir dire as to the voluntariness thereof and had they been excluded the case against him was largely circumstantial. He might well have thought it worth putting the prosecution to proof especially as the lack of voluntariness was attributed to serious and unlawful assaults by the officers who apprehended him and this issue was highly relevant to whether they were acting in the execution of their duty when he allegedly assaulted them. As it happened he did not succeed on the issue raised on the voir dire and I was in fact satisfied of the voluntariness of the statements and the propriety of the police officers' conduct. It is quite possible that the trial in Petty Sessions would have been conducted largely upon the same lines with no significant saving in cost.

1. I am unable to find any positive reason for exercising the discretion to order payment of some part of the applicant's costs. Although acquitted of all charges levelled against him in the indictment as drawn no reliance is placed on his acquittal on the assault charges to which a high percentage of hearing time was devoted and although he was acquitted by direction on counts 1 and 2 it could not be said that the charges were brought other than in good faith and his guilt was established of an alternative summary offence of possession, itself a serious charge with a maximum custodial penalty of two years (I imposed a sentence of six months imprisonment upon him). Furthermore yet another trial in Petty Sessions of the remaining count of growing a prohibited plant was obviated by the application under s385A of the Code. The application is dismissed.