SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 535 of 2009
| THE QUEEN |
| v |
| GEORGE CONSTANTINOU |
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| JUDGES | NETTLE and WEINBERG JJA and HOLLINGWORTH AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 27 October 2009 and 9 November 2009 |
| DATE OF JUDGMENT | 10 November 2009 |
| MEDIUM NEUTRAL CITATION | [2009] VSCA 257 |
| JUDGMENT APPEALED FROM | R v Constantinou (Unreported, County Court of Victoria, 13 February 2009, Judge Murphy) |
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CRIMINAL LAW – Cultivation of narcotic plant in commercial quantity – Appeal against conviction – Admissibility of plea of guilty entered at committal – Admissibility of previous conviction of cultivation and record of interview relating thereto – Adequacy of directions regarding previous conviction and record of interview – Prosecutor relied upon certain lies only as consciousness of guilt – Trial judge’s charge as to consciousness of guilt included other lies not relied upon for that purpose – Direction that ‘the accused man [had] admitted they were lies’ unduly wide, and inaccurate – Appeal allowed – No new trial – Appellant to be re-sentenced for lesser offence.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. Gyorffy | Mr C. Hyland, Solicitor for the Office of Public Prosecutions |
| For the Applicant | Mr J.P. Dickinson S.C. | Slades & Parsons Solicitors |
NETTLE JA
WEINBERG JA
HOLLINGWORTH AJA:
On 5 December 2008, after a trial lasting some five days, the applicant was convicted, in the County Court at Melbourne, on one count of cultivation of a narcotic plant, Cannabis L, in a quantity not less than a commercial quantity, being 25 kgs (count 1). He also pleaded guilty to one count of theft of electricity (count 2), and one count of possession of an unregistered firearm (count 3). On 13 February 2009, he was sentenced to a total effective term of 18 months’ imprisonment, eight months of which was suspended for a period of 12 months. He now seeks leave to appeal against his conviction, but only in relation to the count of cultivation.
The background facts
On 26 August 2005, police conducted a search of the applicant’s premises at Keilor Downs. Within the garage they located a crop of cannabis plants that was being hydroponically grown. There were nine such plants in all, growing in plastic tubs. The plants were about three months old. Water was being pumped through those tubs by electronic pumps. Timers controlled both the lights and the pumps. Electricity was provided through a by-pass system. There were carbon filters in the ceiling to minimise the smell.
The nine plants, excluding their roots, weighed a total of 42.61 kgs. They ranged from about 80 cm to 130 cm in height. Each was described as a ‘bushy female’, close to maturity. A botanist estimated a total air dried weight of leaves and flowering heads in excess of 7.5 kgs.
In a record of interview conducted on the day of his arrest, the applicant admitted having cultivated cannabis. He told the police that he had been advised by a man whose name he did not know,…
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- AGLC
- R v Constantinou [2009] VSCA 257
- Case
- [2009] VSCA 257
- Decision Date
CaseChat Overview and Summary
The court had to determine if the plea of guilty entered at committal could be used to establish the appellant's propensity to cultivate narcotic plants. Additionally, it considered the admissibility of the previous conviction and the record of the interview, focusing on whether the prosecutor had correctly relied on the lies as evidence of consciousness of guilt. The court also examined whether the trial judge’s directions to the jury were accurate and whether they could have misled the jury regarding the appellant’s admissions.
The court found that while the trial judge’s direction that the appellant had admitted the lies was overly broad and inaccurate, it did not believe that this error was sufficient to warrant a new trial. The court did, however, conclude that the appeal should be allowed due to the misdirection. Consequently, the conviction was quashed, and the appellant was to be re-sentenced for a lesser offence. The court did not consider a new trial necessary, given the minimal impact the error had on the jury’s decision.
Orders
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Background
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Decision
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