R v Gardner - [2012] QSC 73

[2012] QSC 73

SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

ATKINSON J

Indictment No 126 of 2012

THE QUEEN

MICHAEL BENNETT GARDNER (SENIOR)

BRISBANE

..DATE 20/03/2012

..DAY 1

RULING

HER HONOUR: The defendant has raised, by way of a pre-trial hearing, the question of whether or not the defence found in section 25 of the Criminal Code applies to the circumstances of his case. He argues that the section does apply and that he will be able to lead evidence sufficient to raise that defence so that the onus then lies on the prosecution to exclude that defence beyond reasonable doubt.

Section 25 provides that, “subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in self-defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise”.

The defendant is charged on an indictment that between 1 June 2004 and 17 December 2008 at Inglewood and elsewhere in the State of Queensland, he carried on the business of unlawfully trafficking in the dangerous drug cannabis.

He is charged in the alternative that between 1 June 2004 and 2 July 2008, he unlawfully produced the dangerous drug cannabis and the quantity of the dangerous drug exceeded 500 grams. The extent by which it exceeded 500 grams is shown

by the quantity of cannabis found, which I need not go into here. It is proposed to lead evidence, for example, that the harvestable amount, sold at wholesale prices, of the cannabis found at the property when the police executed a search warrant valued the crop at a maximum of 72 million dollars.

Mr Gardner appears for himself. He was represented by solicitors and counsel but is now representing himself because of the defence he wishes to raise before the Court. It was sensible of him to raise it on a pre-trial application for a ruling.

His submission was that the reason he grew cannabis was to preserve the safety of human life. He argued that abortion is the destruction of human life and that this was a long-term project which he was undertaking. He said that, as women were seeking abortions contrary to the law, he wished to establish a fund to campaign against abortion and that was the reason why he was growing the quantity of cannabis he did for the length of time for which he did it.

He said “extraordinary” is defined in the dictionary as beyond what is ordinary. He submitted that human life commences at the moment of conception and that the attitude to elective abortion in our society is extraordinary and that it is an emergency to each foetus. He then gave personal details about his partners and a daughter who he has either had to persuade not to have a termination of pregnancy or who has, unbeknownst to him,…

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 [2012] QSC 73
Case: [2012] QSC 73
Decision Date: 20/03/2012

CaseChat Overview and Summary

In the case of R v Gardner, the defendant argued that the defence provided by section 25 of the Criminal Code should apply to his case. The defendant claimed that he was growing cannabis to fund a campaign against abortion, which he believed to be a matter of saving human life. He argued that this constituted a "sudden or extraordinary emergency" as outlined in the statute, and that an ordinary person in his position could not reasonably be expected to act differently. The central legal issue in this case was whether the defendant's actions could be excused under section 25 of the Criminal Code as a response to an emergency situation. Atkinson J carefully examined the statutory language and relevant case law, including R v GV [2006] QCA 394, to determine if the defence was applicable. The court found that the defence under section 25 was limited to situations involving sudden and extreme circumstances where the danger was imminent and there was no reasonable alternative to the criminal act. Atkinson J concluded that the long-term cultivation of cannabis over a period of four and a half years did not meet these criteria. The court held that there were numerous lawful ways to protest against abortion, and engaging in illegal activity did not qualify as a necessary response to an emergency. Therefore, the judge ruled that the defence under section 25 was not available to the defendant. The evidence regarding the defendant's views on abortion was deemed irrelevant to the defence in this case.

The final orders of the court were that the defence under section 25 of the Criminal Code was not available to the defendant, and the evidence concerning the defendant's views on abortion would not be considered as a defence in the trial. The court's decision underscored the limitations of the emergency defence and the importance of adhering to the law, even in the face of strongly held beliefs.

Orders