Criminal law – Drug offences – Cultivation – Cultivation of not less than a commercial quantity of cannabis L. – Directions to be given to jury - Mens rea – Whether knowledge of and intention to cultivate a commercial quantity were issues in the trial – No exception to charge – Direction required - Application of proviso - Whether substantial miscarriage of justice – Drugs, Poisons and Controlled Substances Act 1981, s.72A – Crimes Act 1958, s.568(1).
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr. J.D. McArdle, Q.C.
Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant
Mr O.P. Holdenson, Q.C.
Clareborough Pica
BUCHANAN, J.A.:
I have had the advantage of reading in draft the reasons for judgment prepared by Eames and Nettle, JJ.A. I agree, for the reasons which they have given, that the application for leave to appeal against conviction should be refused.
EAMES, J.A.:
The applicant was convicted upon verdicts of a County Court jury on one count of cultivating a narcotic plant, namely cannabis L, in a quantity not less than a commercial quantity, and on one count of stealing a quantity of electricity. On 25 May 2005 he was sentenced to a total effective sentence of four years and three months’ imprisonment and a non-parole period of two years was fixed. He does not apply for leave to appeal against sentence, but now makes application for leave to appeal against conviction on two grounds, as follows:
“1.The learned trial judge erred in his directions to the jury concerning the mental element of the offence the subject of Count 1 on the Presentment (an offence contrary to s.72A of the Drugs, Poisons & Controlled Substances Act, 1981 (Vic.) (as amended)).
2.The learned trial judge erred in his directions to the jury in that he failed to direct the jury that one of the elements of the offence the subject of Count 1 on the Presentment (an offence contrary to s.72A of the Drugs, Poisons & Controlled Substances Act, 1981 (Vic.) (as amended)), to be proven beyond reasonable doubt by the Crown, was that the accused had actual knowledge of the quantity of cannabis L which he was alleged to have cultivated, that is, that he knew that there were 100 or more plants being cultivated by him.”
At 8.20 a.m. on 9 April 2003 police executed a search warrant on a house at 2 Ralph Street, Ardeer. The applicant was present when the police arrived and so too was another man, Lap Chau Hoang. Police found a cannabis hydroponic growing system in a front bedroom of the premises, identified in the trial as bedroom No. 2. A second hydroponic growing system was found in…
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.
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Details
AGLC
R v Van Xuan Bui [2005] VSCA 300
Case
[2005] VSCA 300
Decision Date
CaseChat Overview and Summary
The case of R v Bui involved the defendant, Bui, charged with cultivating a commercial quantity of cannabis, contrary to the Drugs, Poisons and Controlled Substances Act 1981. The dispute centred around whether Bui had the requisite knowledge and intention to cultivate such a quantity, and if the trial judge erred in not directing the jury on these specific points. The case was heard in the Victorian Court of Appeal.
The primary legal issues before the court were whether the trial judge was required to direct the jury on the specific mens rea elements of knowledge and intention regarding the commercial cultivation of cannabis, and if there was a substantial miscarriage of justice due to the absence of such a direction. The appeal hinged on the interpretation and application of sections 72A and 568(1) of the Drugs, Poisons and Controlled Substances Act 1981 and the Crimes Act 1958 respectively.
The court found that while it was not necessary to direct the jury on the specific mens rea elements in every case, this charge did not fall within any of the exceptions set out in section 72A(2). The court emphasised that the proviso in section 72A(2) applied only where the offence had been made out by the prosecution proving certain facts. In Bui's case, there was no such exception, and the trial judge should have directed the jury on the mens rea requirements. However, the court determined that no substantial miscarriage of justice had occurred because the jury would inevitably have considered the mens rea in their deliberations. Thus, the appeal was dismissed.
No further orders were made by the court beyond dismissing the appeal.