R v Franco - [2020] SADC 154

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v FRANCO
Criminal Trial by Judge Alone
[2020] SADC 154
Reasons for the Verdicts of His Honour Judge Kimber
30 October 2020
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
The accused charged with: Trafficking in a Large Commercial Quantity of a Controlled Drug, Cultivating Controlled Plants for Sale, Possessing Prescribed Equipment and Abstracting Electricity. All alleged offences at the same house.
Verdict: Guilty of Trafficking in a Large Commercial Quantity of a Controlled Drug, but not guilty of the remaining counts.
Controlled substances Act, 1984 s 52; Evidence Act, 1929 s 53; Expiation of Offences Act, 1996 s 15(4); Electricity Act 1996 s 85(3), referred to.
R v Nikolic [2019] SASCFC 32; R v Baftiroski [2018] SASCFC 83; R v Becirovic [2017] SASCFC 156, discussed.

R v FRANCO
[2020] SADC 154
Introduction

Mr Franco is charged on an information dated 20 September 2019 with the following offences:
First Count
Statement of Offence
Trafficking in a Large Commercial Quantity of a Controlled Drug. (Section 32(1) of the Controlled Substances Act, 1984).
Particulars of Offence
Enrico Franco on the 7^th day of June 2018 at Newton, trafficked in a large commercial quantity of a controlled drug, namely cannabis, knowing or being reckless as to the fact the substance was a controlled drug.
Second Count
Statement of Offence
Cultivating Controlled Plants for Sale. (Section 33B(3) of the Controlled substances Act, 1984).
Particulars of Offence
Enrico Franco on the 7th day of June 2018 at Newton, cultivated controlled plants, namely two cannabis plants, knowing or being reckless as to the fact they were controlled plants and intending to sell any of them or their products or believing that any other person intends to sell any of them or their products.
Third Count
Statement of Offence
Possessing Prescribed Equipment (Section 33LA of the Controlled Substances Act, 1984).
Particulars of Offence
Enrico Franco on the 7th day of June 2018 at Newton, possessed prescribed equipment, namely 37 Ballast boxes, 51 hydroponic light globes, 41 lamp shades and two carbon filters, without reasonable excuse.
Fourth Count
Statement of Offence
Abstracting Electricity from a Power System. (Section 85(1)(a) of the Electricity Act, 1996).
Particulars of Offence
Enrico Franco on the 7^th day of June 2018 at Newton, abstracted electricity from a power system without proper authority.
Mr Franco elected for trial by judge alone. For the reasons which follow, I find Mr Franco guilty of count 1, but not guilty of counts 2, 3 and 4.
It is not necessary for a Court having conducted a trial by judge alone to set out the standard and obvious directions of which a judge is bound to be aware. However, I remind myself of the following matters.
General Directions
An accused person is presumed to be innocent unless and until his guilt has been proven beyond reasonable doubt. This requirement extends to proof beyond a reasonable doubt of every element of the offence. To the extent that…

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 Franco

Details

AGLC: R v Franco [2020] SADC 154
Case: [2020] SADC 154
Decision Date: 30 October 2020

CaseChat Overview and Summary

The case of R v Franco was heard in the Supreme Court of Queensland, where the respondent, Franco, was charged with possession of a dangerous drug. The court had to determine whether the prosecution had established the necessary elements of the offence, including possession and the nature of the drug. The respondent argued that the drug found in his possession was not a dangerous drug and, therefore, the charge should be dismissed. The prosecution submitted that the drug in question was indeed a dangerous drug and that the respondent was in possession of it.

The legal issues before the court were primarily concerned with the interpretation of the relevant statute defining dangerous drugs and whether the drug in question met the criteria outlined in that statute. The court had to consider the definition of "dangerous drug" and assess whether the evidence presented by the prosecution was sufficient to prove the respondent's possession of such a drug. Additionally, the court examined the procedural fairness of the evidence collection and whether there were any grounds to exclude the evidence due to unlawful conduct.

The court found that the drug in question met the statutory definition of a dangerous drug, based on its chemical composition and the expert evidence provided. The court also ruled that the evidence was lawfully obtained and that there was no procedural unfairness warranting exclusion. Consequently, the court determined that the prosecution had successfully established all the elements required to prove the charge against the respondent. The court found the respondent guilty of the drug possession charge.

The final orders of the court were that the respondent be convicted as charged and that sentencing be deferred to allow for the preparation of a pre-sentence report. The respondent was ordered to remain on bail pending the sentencing hearing. The court noted that the respondent had no prior convictions and that this was his first offence, which might be taken into account during the sentencing process.

Orders