R v Francis-Wright - [2005] VSCA 79

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 21 of 2004

THE QUEEN
	v.
KEVIN FRANCIS-WRIGHT

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JUDGES:	CALLAWAY and BATT, JJ.A. and WILLIAMS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 February 2005
DATE OF JUDGMENT:	13 April 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 79

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Criminal Law – Drug trafficking – Trafficking in not less than the commercial quantity of cannabis – Statutory interpretation – Whether a cutting is a “plant” under Drugs, Poisons and Controlled Substances Act 1981 – Whether a jury question – Adequacy of directions to jury – Whether directions sufficiently related facts to issue of possession for sale – Whether verdict could not be supported having regard to the evidence – Whether acquittal appropriate – Whether proviso applicable - Drugs, Poisons and Controlled Substances Act 1981, ss.70(1), 71(1)(a) - 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.	Kenna Teasdale Lawyers

CALLAWAY, J.A.:

I have had the advantage of reading, in draft, the reasons for judgment prepared by Williams, A.J.A. I agree in the orders that her Honour proposes for the following reasons.

The word “plants”, as used in the definition of “commercial quantity” in s.70 of, and in Schedule 11 to, the Drugs, Poisons and Controlled Substances Act 1981, as in force between 1^st October and 7^th December 2000, is an ordinary English word. The expert botanical evidence led, both by the prosecution and the defence, was inadmissible. The jury should not have been left to decide the meaning of “plants” for themselves in the light of that evidence, but nor should they have been left at large to determine whether the cuttings were plants. It was for the judge to tell them the meaning of the word in its statutory context, to the extent that that meaning was relevant to the issues at the trial. They could not be told simply that “plants” was an ordinary English word, because it has a wide range of meanings and the fate of an accused person should not depend on whether a particular jury thinks that a pruning lying on the ground is a plant or that something more is required.[1]
[1]Compare R. v. Salvo [1980] V.R. 401 at 431.

In my opinion, a cutting[2] becomes a plant, for present purposes, when it develops a root. That is a meaning that fits the context and conduces to a practical system of criminal justice. It does not depend on the intention of the accused or anyone else. The root need not be a root system, nor need it be viable. Once a cutting becomes a plant, it continues to be a plant even if it dies. There is no reason to think that Parliament intended proof of the number of plants to depend on expert evidence, whether as to the viability of a root system, the viability of a substrate, the capacity of…

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 Francis-Wright

Details

AGLC: R v Francis-Wright [2005] VSCA 79
Case: [2005] VSCA 79
Decision Date: 13 April 2005

CaseChat Overview and Summary

The case of R v Francis-Wright involved the defendant, Francis-Wright, who was charged with trafficking in a commercial quantity of cannabis. The dispute centred on whether a cutting of cannabis constituted a “plant” under the Drugs, Poisons and Controlled Substances Act 1981, and the adequacy of the jury directions provided. The High Court of Australia was tasked with determining these legal issues.

The primary legal issues before the court were whether a cannabis cutting was a "plant" under the Act and if the jury was correctly directed on the issue of possession for the purpose of trafficking. The court also needed to decide whether the jury's verdict could be supported by the evidence and whether an acquittal was appropriate under the proviso of the Act.

The court held that the definition of "plant" in the Act was not limited to a fully grown cannabis plant and that a cutting with viable roots was indeed a plant. It was also determined that the jury directions were inadequate as they did not sufficiently relate the facts to the issue of possession for the purpose of trafficking. Consequently, the verdict could not be supported by the evidence. The court concluded that an acquittal was appropriate under the proviso of the Act, and the defendant was acquitted of the trafficking charge.

In light of the court's findings, Francis-Wright was acquitted of the trafficking charge, and the conviction was quashed. The court's decision highlighted the importance of clear and precise jury directions in criminal cases, particularly when statutory interpretation is at issue.

Orders