R v Franze (Ruling No 2) - [2013] VSC 229

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:	15 April 2013
DATE OF RULING:	16 April 2013
CASE MAY BE CITED AS:	The Queen v Franze
MEDIUM NEUTRAL CITATION:	[2013] VSC 229

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CRIMINAL LAW – Trial – Accused charged with two counts of attempting to possess a commercial quantity of unlawfully imported border controlled drug – Prosecution alleging joint criminal enterprise - Whether prosecution required to prove agreement to possess commercial quantity of drug – Whether prosecution required to prove act of participation by accused in enterprise – Whether particulars of offence sufficient – Criminal Code (Commonwealth) ss 11.1, 11.2A, 305.7.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	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:

The accused man is charged on two counts of attempting to possess a commercial quantity of an unlawfully imported border controlled drug contrary to s 307.5(1) of the Criminal Code (Cth).[1] The border controlled drug which is the subject of the first charge is methamphetamine, and the border controlled drug which is the subject of the second charge is cocaine.
[1]Criminal Code Act 1995 (Cth) sch 1 (‘Criminal Code’).

The prosecution intends to put its case against the accused on the basis that he was a party to a joint criminal enterprise to possess the border controlled drugs. An issue has arisen as to whether the prosecution is required to prove that the accused was a party to an agreement to possess a commercial quantity of the substance in question, or whether it is sufficient for the prosecution to prove that the accused was a party to an agreement to possess a quantity of the substance.

For the purpose of this ruling it is not necessary for me to set out in any detail the proposed prosecution case. In summary, the prosecution alleges that the drugs in question were imported into Australia from Mexico on the vessel Manet which arrived at the Port of Melbourne on 11 October 2011. The drugs were contained in some bottles which were included in a consignment of Cucapa beer. After the consignment was unloaded, it was searched by Customs officials and members of the Australian Federal Police. A commercial quantity of methamphetamine and a commercial quantity of cocaine were each detected in some of the bottles. Those bottles were removed from the consignment, and were placed with identical bottles which contained water.

Subsequently the whole consignment was transported to the premises of the shipping agent. On 24 October it was transported to premises in Laverton, and on the next day it was moved to premises in Sunshine West. On 26 October the bottles were moved to premises in Yarraville. The prosecution case is that the accused, and other parties to the…

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.

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Details

Case: [2013] VSC 229
Decision Date: 16 April 2013

CaseChat Overview and Summary

The case of R v Franze involves the accused, Franze, charged with two counts of attempting to possess a commercial quantity of an unlawfully imported border controlled drug. Franze is alleged to have participated in a joint criminal enterprise aimed at possessing these drugs. The case was heard in the court of law, where Franze faced prosecution for these charges. The central legal issues the court had to address were whether the prosecution needed to prove an agreement to possess the commercial quantity of the drug and whether the prosecution had to demonstrate an act of participation by the accused in the criminal enterprise. Additionally, the court examined whether the particulars of the offence were sufficient under the relevant sections of the Criminal Code.

The court considered the legal requirements for establishing a joint criminal enterprise and whether the prosecution had to prove an agreement to possess the commercial quantity of the drug, as well as an act of participation by the accused. The court analysed the particulars of the offence to determine if they adequately met the statutory requirements under sections 11.1, 11.2A, and 305.7 of the Criminal Code. The court's reasoning involved a detailed examination of the statutory language and relevant case law to determine the necessary elements to prove a joint criminal enterprise and the adequacy of the particulars of the offence. The court concluded that the prosecution needed to establish an agreement to possess the commercial quantity of the drug and an act of participation by the accused.

The court found that the prosecution had not sufficiently proven the elements required to establish Franze's involvement in the joint criminal enterprise. Specifically, the court held that the particulars of the offence did not adequately set out the necessary details to inform Franze of the specific acts of participation in the enterprise. Consequently, the court ruled in favour of Franze, dismissing the charges against him due to the insufficiency of the particulars of the offence. This decision underscores the importance of precise and detailed particulars in criminal charges, particularly in cases involving joint criminal enterprises.

Orders