R v Gregory John Moore - [2005] ACTSC 66

R v GREGORY JOHN MOORE [2005] ACTSC 66 (5 August 2005)

CRIMINAL LAW – trial by judge alone – participation in the cultivation of a prohibited plant – provision of finance – electricity account held in accused's name – payments made to lessor of premises

Drugs of Dependence Act 1989 (ACT) s 162

R v Tran [2003] ACTSC 53 referred to
R v Collins [2004] ACTSC 48 cited
R v O’Neill [2004] ACTSC 64 cited
R v Errigo (2005) 91 SASR 80 cited
R v Thomas (1993) 67 A Crim R 308 cited
Sergi v DPP (unreported, New South Wales Court of Appeal, Kirby P, Meagher and Handley JJA, 10 September 1991) cited

No. SCC 216 of 2004

Judge: Moore J
Supreme Court of the ACT
Date: 5 August 2005

IN THE SUPREME COURT OF THE  )
  )  No. SCC 216 of 2004
AUSTRALIAN CAPITAL TERRITORY  )

R
v
GREGORY JOHN MOORE

ORDER

Judge:  Moore J
Date:  5 August 2005
Place:  Canberra

THE COURT FINDS:

on the charge that between 27 June 2002 and 5 January 2003 at Canberra in the Australian Capital Territory Gregory John Moore participated in the cultivation of a prohibited plant, namely cannabis for the purpose of sale or supply, the accused guilty.

Introduction

The accused, Gregory John Moore, has been charged with participating in the cultivation of a prohibited plant, namely cannabis, for the purpose of sale or supply contrary to s 162(3) of the Drugs of Dependence Act 1989 (ACT). He has elected to be tried by a judge alone pursuant to s 68B of the Supreme Court Act 1933 (ACT). The role of a judge in such a trial was described by Gray J in R v Tran [2003] ACTSC 53 at [3]-[5]. I adopt in its entirety, what his Honour said was the judge's role and the approach that should be taken in evaluating the evidence and applying the law: see also R v Collins [2004] ACTSC 48 at [2]-[6] and R v O’Neill [2004] ACTSC 64 at [4]-[6]. His Honour said (at [4]-[5]):

I direct myself in accordance with the law in relation to all of the matters which a jury would ordinarily be directed before retiring to consider its verdict. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. The burden of proving the charge lies wholly on the prosecution and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with innocence, the accused does not have to prove it. It is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The accused is presumed to be innocent…

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 Gregory John Moore

Details

AGLC: R v Gregory John Moore [2005] ACTSC 66
Case: [2005] ACTSC 66
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory presided over by Justice Moore heard the case of R v Gregory John Moore. The accused was charged with participating in the cultivation of a prohibited plant, namely cannabis, for the purpose of sale or supply contrary to s 162(3) of the Drugs of Dependence Act 1989 (ACT). The accused elected to be tried by a judge alone pursuant to s 68B of the Supreme Court Act 1933 (ACT). The court had to decide whether the accused was aware that Mr Diebert had been engaged in cultivating cannabis and, if he was, had he provided finance for any step or process in the course of that cultivation. The court found the accused guilty of participating in the cultivation of a prohibited plant for the purpose of sale or supply. His participation included the provision of finance (by the payment of some of the rent) for the enterprise. The court found the accused's explanation of the circumstances inconsistent with the objective evidence. The court was satisfied beyond reasonable doubt that the accused was aware that Mr Diebert was cultivating cannabis at the Unit by June 2002, was aware of the size of the crop and reached an agreement with Mr Diebert that he would be responsible for the electricity account as part of an arrangement in which the accused would have an interest of some kind.

Orders