R v Gardner - [2014] QSC 275

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gardner [2014] QSC 275

PARTIES:

THE QUEEN
(respondent)
v
KRISTEN GARDNER
(applicant)

FILE NO/S:

Indictment No 126 of 2013

DIVISION:

Trial Division

PROCEEDING:

590AA Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 February 2014

DELIVERED AT:

Brisbane

HEARING DATE:

29 October 2013

JUDGE:

Ann Lyons J

ORDER:

The Articles in Cannabis Culture Magazine by “Boy Scout” in issues 63, 64 and 66 are excluded from Trial

CATCHWORDS:

CRIMINAL LAW –EVIDENCE– RELEVANCE - GENERALLY- whether articles written by the applicant and published in a Canadian Magazine between 2001 and 2007 should be excluded on the basis that they are irrelevant to the charges on the indictment.

(QLD) Criminal Code 1899, ss 13A, 590AA
(QLD) Drugs Misuse Act 1986 ss 5(1)(b), 8(d)

Driscoll v R [1977] HCA 43; (1977) 137 CLR 517 - considered
Noor Mohamed v The King [1949] AC 182 - cited
Pfennig v The Queen (1995) 182 CLR 461
R v Domokos & Ors [2005] SASC 266
R v Gardner (Senior) [2012] QCA 290 - discussed
R v Goulden [1993] 2 Qd R 534
Harriman v The Queen (1989) 167 CLR 590
R v Hasler ex parte Attorney‑General (Qld) [1987] 1 Qd R 239
R v Palaga [2001] SASC 174

COUNSEL:

J Godbolt for the applicant
B J Power for the respondent

SOLICITORS:

Fisher Dore for the applicant
Director of Public Prosecutions (Qld) for the respondent

ANN LYONS J:

Background

The applicant, Kristen Gardner, has lived for long periods of time overseas. It is alleged that whilst he was in Australia during two periods he unlawfully produced and trafficked in cannabis. He is currently charged on a four count indictment with two counts of trafficking in the dangerous drug cannabis and two counts of producing the dangerous drug cannabis in excess of 500 grams at Inglewood in Queensland. The first period of offending is alleged to have been from January 2005 to September 2005 and the second is the period from September 2007 to June 2008.

The charges against the applicant essentially arise as a result of his alleged involvement with his father Michael Gardner (senior) who ran large scale, commercial, cannabis plantations on a property known as Kinvarra, outside Inglewood, Queensland, between June 2004 and December 2008. Michael Gardner (senior) had purchased that property on 9 June 2004 in the name of his brother Kim and his then wife Kelly Millard.

The charges against Kristen Gardner are ready to be listed for trial. The evidence at trial will include evidence of witnesses who allegedly saw him working on cannabis crops at the property. That evidence comes from members of his extended family including his brother Michael Gardner (junior), who has provided s 13A statements against the applicant, as well his father’s ex wife Kelly Millard and her teenage children, Samuel Millard, Ammie Millard and Laura Millard. The prosecution also intends to rely on a series of articles the applicant wrote in Canadian magazines between 2001 and 2007 which…

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 Gardner

Details

AGLC: R v Gardner [2014] QSC 275
Case: [2014] QSC 275
Decision Date: 5 February 2014

CaseChat Overview and Summary

The case before the court involved the respondent, who faced charges in relation to various offences, including drug possession and production. The prosecution sought to introduce evidence in the form of articles written by the respondent and published in a Canadian magazine between 2001 and 2007. The court was tasked with determining whether these articles should be excluded from the trial as irrelevant to the charges.

The legal issues centred on the relevance of the articles to the charges against the respondent. The defence argued that the articles were irrelevant and prejudicial, as they pertained to activities and events outside the scope of the charges. The prosecution contended that the articles demonstrated the respondent's knowledge, intent, and propensity in relation to the offences. The court had to weigh the probative value of the articles against the potential for prejudice and confusion of issues.

The court found that the articles, authored by the respondent under the pseudonym "Boy Scout" and published in issues 63, 64, and 66 of Cannabis Culture Magazine, were largely irrelevant to the charges. The content of the articles did not directly relate to the specific offences alleged in the indictment. Furthermore, the court noted that the articles had the potential to cause undue prejudice by introducing extraneous matters that could confuse the issues. Consequently, the court ruled that these articles should be excluded from the trial.

The court's orders were that the articles in Cannabis Culture Magazine by "Boy Scout" in issues 63, 64, and 66 would be excluded from the trial, thereby safeguarding the fairness of the proceedings.

Orders

Orders of the court

The Articles in Cannabis Culture Magazine by “Boy Scout” in issues 63, 64 and 66 are excluded from Trial

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Gardner [2014] QSC 275
PARTIES:	THE QUEEN (respondent) v KRISTEN GARDNER (applicant)
FILE NO/S:	Indictment No 126 of 2013
DIVISION:	Trial Division
PROCEEDING:	590AA Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	5 February 2014
DELIVERED AT:	Brisbane
HEARING DATE:	29 October 2013
JUDGE:	Ann Lyons J
ORDER:	The Articles in Cannabis Culture Magazine by “Boy Scout” in issues 63, 64 and 66 are excluded from Trial
CATCHWORDS:	CRIMINAL LAW –EVIDENCE– RELEVANCE - GENERALLY- whether articles written by the applicant and published in a Canadian Magazine between 2001 and 2007 should be excluded on the basis that they are irrelevant to the charges on the indictment. (QLD) Criminal Code 1899, ss 13A, 590AA (QLD) Drugs Misuse Act 1986 ss 5(1)(b), 8(d) Driscoll v R [1977] HCA 43; (1977) 137 CLR 517 - considered Noor Mohamed v The King [1949] AC 182 - cited Pfennig v The Queen (1995) 182 CLR 461 R v Domokos & Ors [2005] SASC 266 R v Gardner (Senior) [2012] QCA 290 - discussed R v Goulden [1993] 2 Qd R 534 Harriman v The Queen (1989) 167 CLR 590 R v Hasler ex parte Attorney‑General (Qld) [1987] 1 Qd R 239 R v Palaga [2001] SASC 174
COUNSEL:	J Godbolt for the applicant B J Power for the respondent
SOLICITORS:	Fisher Dore for the applicant Director of Public Prosecutions (Qld) for the respondent