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R v Constantinou

R v Constantinou

Case [2009] VSCA 257 10 November 2009

Appeal

Admissibility of Evidence

Admissibility of Plea

Criminal Liability

Criminal Law

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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,…

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 Constantinou

Details

AGLC: R v Constantinou [2009] VSCA 257
Case: [2009] VSCA 257
Decision Date: 10 November 2009

CaseChat Overview and Summary

In the case of R v Constantinou, the appellant was convicted of cultivating a narcotic plant in a commercial quantity. The appeal was against this conviction, focusing on the admissibility of various pieces of evidence and the adequacy of the trial judge’s directions to the jury. The trial judge had admitted a guilty plea entered at committal, a previous conviction of cultivating a narcotic plant, and a record of an interview relating to that conviction. The central issue was whether these pieces of evidence were properly admitted and whether the trial judge’s directions to the jury regarding these matters were adequate and accurate.

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