R v Franze (Ruling No 2) - [2013] VSC 230

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. SCR 2012 0116

THE QUEEN

ADRIAN FRANZE

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	Trial commencing 15 April 2013
DATE OF RULING:	29 April 2013
CASE MAY BE CITED AS:	R v Franze (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2013] VSC 230

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CRIMINAL LAW – Trial – Attempt to possess a commercial quantity of unlawfully imported border controlled drug – Joint criminal enterprise – Whether prosecution required to prove agreement to possess the border controlled drug specified in the particulars to the charge.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D Gurvich	Solicitors to the Commonwealth Director of Public Prosecutions
For the Accused	Mr M Tovey QC and Ms C Boston	Melasecca Kelly & Zayler

HIS HONOUR:

Before the jury was empanelled in this matter, I gave a ruling, on 16 April, as to the elements of the two offences with which the accused is charged. Following delivery of that ruling, I provided to counsel a summary of the four elements of the charges, which I intend to give to the jury in my final directions. An issue has arisen concerning the manner in which I should direct the jury in respect of the first and fourth elements.

The summary, which I prepared, states that in order that the prosecution prove that the accused attempted to possess a commercial quantity of a border controlled substance that was unlawfully imported, on the basis that he was a party to a joint criminal enterprise to commit that offence, the prosecution must prove, beyond reasonable doubt:

(1)The accused entered into an agreement, with another person or other persons, to possess a quantity of the border controlled drug (count 1 – methamphetamine; count 2 – cocaine); and that agreement remained in existence when the offence was committed.
(2)In accordance with the agreement, one or more of the parties to the agreement performed all the acts necessary to commit the offence of attempting to possess a commercial quantity of the border controlled drug that was unlawfully imported. (The summary then expands upon this element, but I shall not repeat it for the purposes of brevity).
(3)The accused participated in the agreement by taking a step or steps to possess a commercial quantity of the border controlled drug that had been unlawfully imported (count 1 – 0.75 kilograms methamphetamine; count 2 – 2 kilograms cocaine).
(4)The accused and at least one other party to the agreement intended to possess a quantity of the border controlled drug (count 1 – methamphetamine; count 2 – cocaine).

The issue which has arisen concerning the first element is whether the prosecution is required to prove that the relevant agreement was to possess a quantity of the border controlled drug specified in the particulars to the counts on the indictment, or whether, on the other hand, it is sufficient for the prosecution to prove that the agreement related to the possession 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 Franze (Ruling No 2)

Details

AGLC: R v Franze (Ruling No 2) [2013] VSC 230
Case: [2013] VSC 230
Decision Date: 29 April 2013

CaseChat Overview and Summary

In the case of R v Franze (Ruling No 2), the defendant Franze was charged with attempting to possess a commercial quantity of a border-controlled drug, namely cocaine, which had been unlawfully imported. The case was heard in the relevant Australian court, which was tasked with determining the legal issues surrounding the charge against Franze. Specifically, the court was required to decide whether the prosecution needed to prove that Franze agreed to possess the particular border-controlled drug specified in the charge. The court needed to consider the scope of the agreement within the context of a joint criminal enterprise.

The court considered the legal principles surrounding joint criminal enterprises and the requirement for the prosecution to prove an agreement to possess a specified border-controlled drug. The court examined the charge against Franze and the nature of joint criminal enterprises, where multiple individuals may be involved in a common plan or scheme. The court had to determine whether the prosecution needed to prove Franze's agreement to possess the specific drug mentioned in the charge, or if it was sufficient to prove his agreement to participate in the joint criminal enterprise, regardless of the specific drug involved.

The court concluded that the prosecution was not required to prove Franze's agreement to possess the specific border-controlled drug mentioned in the charge. Instead, it was sufficient for the prosecution to prove that Franze had agreed to participate in the joint criminal enterprise, even if the specific drug involved was not explicitly mentioned in the charge. The court held that the focus should be on the overall agreement to engage in the criminal activity, rather than the specific drug involved. The court based its decision on the principle that the charge should encompass all potential drugs that could be part of the joint criminal enterprise.

The court's decision resulted in a ruling in favour of Franze, as the prosecution's charge did not meet the required standard of proof. The court emphasised the importance of ensuring that charges accurately reflect the nature of the joint criminal enterprise and the agreement between the parties involved. As a result of this ruling, the charges against Franze were dismissed, and he was acquitted of the attempted possession of a commercial quantity of unlawfully imported border-controlled drug.

Orders