R v Callaghan - [2007] VSCA 135

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No. 426 of 2006
	v.
DARRYL FRANCIS CALLAGHAN

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JUDGES:	WARREN CJ, NETTLE and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 June 2007
DATE OF JUDGMENT:	28 June 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 135

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Criminal law – Drug offence – Cultivating not less than a commercial quantity – Mens rea – Intention not explicitly identified as element of offence – Directions not given to jury in accordance with Nguyen template – Directions not related to the evidence – Appeal allowed.

DPP Reference No 1 of 2004; R v Nguyen (2005) 12 VR 299.

Drugs, Poisons and Controlled Substances Act 1981, s 72A.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr L C Carter	Victoria Legal Aid

WARREN CJ:

For the reasons stated by Nettle and Ashley JJA, I would grant the application for leave to appeal against conviction on count 1, allow the appeal and order a retrial on that count.

This was a very troubling appeal. I, like Nettle JA, entertained the prospect of reaching a position of accepting the trial judge’s directions as being adequate, albeit barely so. However, when the cumulation of misdirections is analysed, as Ashley JA has done, error is clearly established. The applicant, notwithstanding the strong case against him, did not receive a fair trial given his evidence and his defence. This trial gave rise to a verdict on count 1 that led to a serious injustice in all the circumstances.

The particularly troubling aspect of the trial was that his Honour had available to him this Court’s judgment in R v Nguyen[1] and R v Van Xuan Bui[2] as well as the Victorian Charge Book (specifically prepared to assist judges in the execution of their judicial functions). It is puzzling as to why the template (as Ashley JA has described it) was not followed.

[1](2005) 12 VR 299.

[2][2005] VSCA 300.

NETTLE JA:

I have had the advantage of reading in draft the reasons for judgment of Ashley JA.

I agree with his Honour that the trial judge’s directions as to the element of intent to cultivate not less than a commercial quantity of cannabis were erroneous.

I was for some time attracted to the view that, despite the error, the jury were however made to understand that they could not convict unless satisfied beyond reasonable doubt that the applicant knew or believed that there was a significant or real chance that the crop of cannabis under cultivation was not less than a commercial quantity. It also seemed to me that, if the jury were so satisfied, the inference that the applicant intended to cultivate not less than a commercial quantity must have been irresistible. As Ashley JA rightly says, the Crown case on count 1 was a strong case.

But upon reflection, and with the benefit of Ashley JA’s…

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 R v Callaghan

Details

AGLC: R v Callaghan [2007] VSCA 135
Case: [2007] VSCA 135
Decision Date: 28 June 2007

CaseChat Overview and Summary

In the case of R v Callaghan, the appellant was convicted for cultivating not less than a commercial quantity of a drug, in contravention of the Drugs, Poisons and Controlled Substances Act 1981. The case was heard in the Supreme Court of Victoria. The primary dispute concerned whether the trial judge provided the jury with adequate directions concerning the mens rea required for the offence, specifically whether intention was an element of the offence and if it was, whether it was proved by the prosecution.

The court needed to determine if the trial judge failed to provide proper directions to the jury concerning the mens rea for the offence of cultivating a commercial quantity of a drug. The appellant argued that the trial judge did not properly direct the jury regarding the necessary mental element, which is crucial under the statutory provision. The legal issue hinged on whether the trial judge's directions aligned with the template established in R v Nguyen, which provides a framework for directions regarding mens rea in drug cultivation cases.

The court found that the trial judge did not provide adequate directions to the jury in accordance with the Nguyen template. The directions given were not related to the evidence presented in the case, which meant the jury was not properly guided on the necessary mental element of the offence. The court held that the judge’s directions did not sufficiently address the mens rea required for the offence, leading to an unsafe and unsatisfactory verdict. Consequently, the appeal was allowed, and the conviction was quashed.

Orders