R v Garlick - [2006] VSCA 127

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 124 of 2006

THE QUEEN
	v.
DARRYN GARLICK

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JUDGES:	VINCENT, ASHLEY and REDLICH, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 June 2006
DATE OF JUDGMENT:	16 June 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 127

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Criminal law – Case stated – Whether principles stated in DPP Reference No 1 of 2004; R v Nguyen [2005] VSCA 172 and R v Van Xuan Bui [2005] VSCA 300 apply to a count of cultivation of a narcotic drug in not less than a commercial quantity when Crown seeks to prove commercial quantity by reference to weight – Parties agreeing, correctly, principles applicable - No question of law for determination of Court – Whether County Court judge empowered, in the circumstances, to state a case under s.446(2), Crimes Act 1958 – Proper content of case stated.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr M.J. Croucher	Nickolls Windisch & Associates

THE COURT:

On 13 June the Court refused to answer any of the seven questions reserved for its determination by a document described as a case stated. These reasons explain that refusal.

On 7 October 2005 the applicant for the case stated, Darryn Garlick, was arraigned in the County Court, relevantly, on a count that

“at Altona . . . . on 27^th day of August 2003 [he] cultivated a narcotic plant namely cannabis L in a quantity that was not less than the commercial quantity applicable to that plant”

contrary to s.72A of the Drugs Poisons and Controlled Substances Act 1981 (the Act). He pleaded not guilty.

The Crown sought to prove cultivation of the plant in not less than a commercial quantity by reference to the weight, 25 kgs, specified in Column 2 of Part 1 of the Second Schedule of the Act. The circumstances thus differed from those considered by this Court in DPP Reference No 1 of 2004; R v Nguyen[1] (conveniently “Nguyen”) and in R v Van Xuan Bui.[2]In the former case, questions arose as to what mens rea must be established in a case of alleged trafficking in not less than large commercial and commercial quantities of drugs of dependence when the Crown relied upon the weight of the same to prove commercial quantity. In the latter case, a question arose as to what mens rea must be established in a case of alleged cultivation of cannabis L in a quantity not less than a commercial quantity when the Crown relied upon the number of plants to prove the offence.
[1][2005] VSCA 172.
[2][2005] VSCA 300.

In Nguyen, the Court said this:

“In short, offences of the kind created by ss.71 and 71AA [of the Act] are defined by quantities. It is therefore implicit in the offences created by ss.71 and 71AA that the accused must be shown to have had the intent to…

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 Garlick

Details

AGLC: R v Garlick [2006] VSCA 127
Case: [2006] VSCA 127
Decision Date: 16 June 2006

CaseChat Overview and Summary

The case of R v Garlick involved the defendant, Garlick, who was charged with cultivating a narcotic drug in a quantity deemed to be not less than commercial. The dispute centred around whether the principles set out in previous cases, specifically DPP Reference No 1 of 2004; R v Nguyen and R v Van Xuan Bui, were applicable to this case where the Crown aimed to prove the commercial quantity by reference to the weight of the drug. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the principles from the cited cases applied to the present scenario, and whether the County Court judge was empowered to state a case under section 446(2) of the Crimes Act 1958. Both parties concurred that the principles from the previous cases were indeed applicable in this context, leaving no substantive legal question for the court to resolve.

The court found that there was no question of law for determination, as the principles were correctly identified by both parties. It was also determined that the County Court judge was empowered to state a case under the specified section of the Crimes Act, and that the content of the case stated was proper. The court held that the principles from the previous cases applied and that there was no need for further judicial intervention.

No specific orders were made by the court beyond affirming the principles applicable to the case and the proper content of the case stated. The decision underscored the importance of correctly identifying the applicable legal principles in cases involving the cultivation of narcotic drugs.

Orders