R v Dimitropoulos

Case [2020] QCA 75

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dimitropoulos [2020] QCA 75

PARTIES:

R
v
DIMITROPOULOS, Alexandros
(appellant)

FILE NO/S:

CA No 121 of 2019
DC No 761 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport – Date of Conviction: 4 April 2019 (Kent QC DCJ)

DELIVERED ON:

17 April 2020

DELIVERED AT:

Brisbane

HEARING DATE:

1 November 2019

JUDGES:

Fraser JA and Henry and Brown JJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE – where the trial judge did not permit the appellant to make an opening statement – where the trial judge allowed the appellant to read a statement as part of his evidence-in-chief – where the appellant, in his closing, sought to inform the jury that they can return a verdict against the weight of the evidence, if they thought it was in the interests of justice to do so – where the trial judge refused to allow the appellant to inform the jury in those terms – whether there was a miscarriage of justice in the trial judge not permitting the appellant to make an opening statement – whether there was a miscarriage of justice in the trial judge not permitting the appellant to inform the jury that they can return a verdict against the law and the evidence based on their conscience

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted of one count of unlawfully producing a dangerous drug (count 1) – where the appellant was acquitted of one count of unlawful possession of a dangerous drug (count 2) and one count of possessing instructions for producing a dangerous drug (count 3) – where there was overwhelming evidence supporting a conviction on all counts – where the appellant contends that the conviction on count 1 is unreasonable because it was inconsistent with the verdicts on counts 2 and 3 – whether the inconsistent verdicts demonstrate that the conviction on count 1 was unreasonable and should be set aside

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – NECESSITY OR EMERGENCY – SUDDEN OR EXTAORDINARY EMERGENCY – where the appellant was convicted on one count of unlawfully producing the dangerous drug cannabis – where the appellant had suffered a serious motor vehicle accident in 2012 – where the appellant contended that using cannabis was the only means available to him to alleviate his chronic pain resulting from the motor vehicle accident – whether the appellant held an honest and reasonable, but mistaken, belief that there was an extraordinary emergency – whether the learned trial judge erred in not allowing the appellant to raise the defence of emergency

Criminal Code (Qld), s 24, s 25, s 619

AK v Western Australia (2008) 232 CLR 438; [2008] HCA…

Continue reading R v Dimitropoulos

Sign in free to access the full text

Details
AGLC
R v Dimitropoulos [2020] QCA 75
Case
[2020] QCA 75
Decision Date

CaseChat Overview and Summary

In the case of R v Dimitropoulos, the appellant appealed against his conviction for unlawfully producing a dangerous drug. The appellant raised several grounds of appeal, including the trial judge's decision not to allow him to make an opening statement, to inform the jury of their power to return a verdict against the weight of the evidence, and to raise the defence of emergency in relation to his use of cannabis to alleviate chronic pain following a motor vehicle accident. The court was required to determine whether these decisions constituted a miscarriage of justice and whether the conviction was unreasonable or inconsistent with the other verdicts.

The court found that there was no miscarriage of justice in the trial judge not permitting the appellant to make an opening statement or to inform the jury of their power to return a verdict against the weight of the evidence. The court emphasised the distinction between a jury's power to return a perverse verdict and their duty to follow the law and evidence. In relation to the defence of emergency, the court considered the statutory defence available under s 25 of the Criminal Code and found that the appellant's actions did not occur under circumstances of sudden or extraordinary emergency, as required by the legislation. The court concluded that none of the grounds of appeal had been made out by the appellant.

As a result, the court dismissed the appeal and upheld the conviction for unlawfully producing a dangerous drug. The court acknowledged the trial judge's efforts to ensure the appellant had a fair trial and found that the conviction was consistent with the evidence and other verdicts. The court emphasised the importance of following the law and evidence in criminal proceedings, while also recognising the unique role of a jury in the criminal justice system.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The learned trial judge did not err in not permitting the appellant to make an opening statement or to open his evidence. Further, in the circumstances outlined above, no miscarriage of justice resulted from such an opening not being given.Should the Appellant have been allowed to inform the jury of their right to return a verdict inconsistent with the evidence in closing? The appellant complains that he was not permitted, in his closing address, to advise the jury of their power to acquit should they determine that the specific law under which he was charged, as it applied to his circumstances, was oppressive and unjust. The appellant particularly complains that his Honour would not allow him to use the word “oppressive” when describing specific laws, or to read a quote by Lord Devlin from Trial by Jury.[17] He further complains, as he phrased it in oral submissions, that he should have been permitted to inform the jury that they could reach a verdict that was based on their conscience and against the weight of the evidence, without repercussion.[18][17]Lord Devlin, Trial by Jury (rev ed) (1966).[18]T1-8/10-27. The appellant’s complaint is misconceived insofar as it focusses on the power of a jury, as compared to the jury’s role and duty in the criminal justice system. The appellant seeks to extend the recognition that a jury may return a perverse verdict to recognition that it is legally permissible for a jury to be informed that it has a right to act according to its conscience and contrary to the law and evidence before it. Heydon J in AK v Western Australia[19] having discussed the five advantages identified by Lord Devlin in Trial By Jury stated, in relation to the fifth advantage identified, namely that trial by jury gives protection against laws which the ordinary man might regard as harsh and oppressive:[20]“A jury may have no right to acquit in the face of the evidence, but, unlike a judge sitting alone, it has a power to do so, and a power which it is impossible to control on appeal because of traditional limitations on the capacity of the prosecution to appeal from acquittals.”[21] (emphasis added)[19](2008) 232 CLR 438.[20]Which was the quote particularly focussed upon by the appellant.[21]At [97]. This position has long been recognised. For instance, Lord Mansfield stated that:“It is the duty of the Judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences”.[22][22]AK v Western Australia (2008) 232 CLR 438 at [97] per Heydon J, referring to R v Shipley (1784) 4 Doug KB 73 at 170 per Lord Mansfield CJ. While it has been recognised that a jury may return a perverse verdict,[23] and indeed may do so on merciful grounds, that acknowledgment does not establish that the jury has a right to do so, nor that it is consistent with the duty cast upon it.[23]R v LK (2010) 241 CLR 177 at [31] per French CJ.

Decision

Reasons for decision

For the sake of completeness, I note that the Crown raised the fact the jury was reduced to 11 in this case following the discharge of a juror. There was no error in the exercise of the Court’s discretion in allowing this matter to be decided by a jury of 11.Conclusion None of the grounds of appeal have been made out by the appellant. It should be said that the trial judge in the present case went to enormous lengths to ensure the appellant had a fair trial and to assist him with the trial process. In my view, the appropriate order is that the appeal be dismissed.

Ratio Decidendi

Legal Principle Established

The Crown further submits that the facts did not establish an emergency and the appellant could not have had an honest and reasonable belief that there was an emergency. In particular, the Crown points to the fact that the appellant contends that matters relied on in his outline, which referred to internet research,[42] contributed to his belief that he was in life and death situation in continuing to take over the counter medication was not the subject of evidence. The Crown contends that even if the appellant had held a mistaken belief it would have failed as there was no evidence of any reasonable grounds to establish an imminent or sudden emergency.[42]Appellant’s outline at 7.Consideration The defence provided under s 25 of the Criminal Code bears similarities to other statutory defences in other Australian states and territories[43] and the defence of necessity at common law,[44] but differs in some significant respects.[43]See, for example: s 10.3(1) Criminal CodeAct 1995 (Cth); s 41(1) Criminal Code 2002 (ACT), s 438BC(1) Criminal Code Act 1983 (NT); s 25 Criminal Code Act 1913 (WA).[44]Which applies in New South Wales and South Australia. An emergency can be actual or the product of an honest and reasonable, but mistaken, belief. As such, the defences available under s 24 and s 25 of the Criminal Code may work in combination.[45][45]R v GV [2006] QCA 394 at [28], referring to R v Webb [1986] 2 Qd R 446 at 449. The defendant to criminal proceedings bears the evidential burden of raising a defence under s 25 of the Criminal Code. The test is whether there is “evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived”.[46] Once raised, the onus then falls on the Crown to negative the defence beyond reasonable doubt.[46]Braysich v The Queen (2011) 243 CLR 434 at [36]; Petersen v Western Australia (2016) 50 WAR 45 at [42] per McLure P. In R v Gardner,[47] the defendant sought a pre-trial ruling as to whether he could rely on the defence of emergency, claiming that he had grown cannabis to preserve the safety of human life as he wished to establish a fund from the proceeds of sale to campaign against abortion. The defendant contended it was an “extraordinary” emergency.[47][2012] QSC 73. In R v Gardner, Atkinson J referred to the decision of R v GV,[48] in which this Court found that there were facts establishing a defence of extraordinary and sudden emergency. In that case, the defendant was charged with dangerous driving causing grievous bodily harm, in circumstances where he was being chased by “skinheads” and “he and the passengers in his vehicle had been attacked and threatened”, including while stopped at a red light.[49] The case was described by Atkinson J as “extremely unusual”.[50] Her Honour accepted the submission of the Crown that the cases which followed R v GV in the Court of Appeal “show the limitations on the defence, that it is limited to cases where the defendant is confronted by sudden and extreme circumstances and where the danger is imminent and extreme”.[51] Her Honour stated that that submission was further supported by the ordinary meaning of the words and by the common law. In particular, her Honour referred to the definition of “emergency” appearing in the Oxford English Dictionary, as being “a juncture that arises or turns up, especially a state of things unexpectedly arising and urgently demanding immediate attention”.[52] Her Honour ruled that the defence was not available. She found that the growing of cannabis over a period of four and a half years was not done under circumstances of sudden or extraordinary emergency, stating:[53]“Criminal activity of such long duration cannot be excused under s 25 which deals with a reaction to imminent danger. Further, there is no evidence which would suggest that an ordinary person possessing ordinary powers of self control could not reasonably be expected to behave in any other way.”[48][2006] QCA 394.[49]R v Gardner [2012] QSC 73 at 8.[50]R v Gardner [2012] QSC 73 at 8.[51]R v Gardner [2012] QSC 73 at 10.[52]R v Gardner [2012] QSC 73 at 10.[53]R v Gardner [2012] QSC 73 at 15.