R v Kitchen
[2012] ACTSC 162
•September 20, 2012
R v JAMES KITCHEN
[2012] ACTSC 162 (20 September 2012)
CRIMINAL LAW – Cultivating of trafficable quantity of cannabis with the intention to sell – s 616(5) Criminal Code Act 2002 (ACT)
CRIMINAL LAW – Burden of proof – Presumption of commercial purpose
EX TEMPORE JUDGMENT
No. SCC 95 of 2012
Judge: Higgins CJ
Supreme Court of the ACT
Date: 20 September 2012
IN THE SUPREME COURT OF THE )
) No. SCC 95 of 2012
AUSTRALIAN CAPITAL TERRITORY )
R
v
JAMES KITCHEN
ORDER
Judge: Higgins CJ
Date: 20 September 2012
Place: Canberra
THE COURT ORDERS THAT:
A verdict of not guilty is entered.
Well, one could go into a great deal of detail about this. Certainly, I could reserve and come down with a learned dissertation on various matters, including the onus of proof and that kind of thing. But if you will forgive me, I will simply repeat that in any judge-alone trial the same principles apply as would apply in a jury trial. Namely, the prosecution must prove the case beyond reasonable doubt. The case to be proved is that the accused was cultivating a quantity of marijuana plants, which gives rise to a presumption that that it is for a commercial, a trafficable, purpose. The prosecution has proved that. It has been admitted, in effect. There is no issue about it, so I do not propose to go into that.
There are two issues to consider. First is whether the accused has adduced evidence which rebuts the presumption, and then, that being so, whether the prosecution has nevertheless proved its case. The law has now been amended so that supply by one person to another is no longer the offence that we are dealing with here; it is selling. And selling clearly means the production of the material with a consideration provided by way of money or money’s worth. And certainly that which the accused says occurred would not meet that description. I do not think there is any dispute at the bar table about that.
The accused’s account of what he did, and what he habitually did, is supported, insofar as it can be. Of course, one cannot be absolutely certain about such things. The accused might, in the absence of Mr Campion and/or Mr O’Brien, have been exchanging money for cannabis at a great rate, but there is certainly no evidence of it. The evidence that they provide would indicate, if one took it at its face value, and I do accept they are telling the truth, that there was no exchange of money or money’s worth for any cannabis that the accused provided. The accused certainly did provide cannabis to Mr O’Brien. I understand and accept that Mr Campion did not regard himself as a person who needed or wanted cannabis and so he did not ask for any and did not get any. That was no doubt a wise decision on his part, frankly, but that is another matter.
Mr O’Brien, perhaps a little less wisely, did indulge in cannabis use. As I have said that is an offence and he could be prosecuted, if it were able to be proved there was any particular use of cannabis on a particular occasion, which might be a little difficult. But in any event, he does provide evidence which supports the accused’s account of his conduct.
I have to say, the accused’s account of his conduct did not strike me as being fanciful or attended by any indication of any doubt I might have about accepting at face value what he said. True, there are things that could be put against him, and they were: namely, the sophistication of the process that was in place for the production of cannabis.
Now, one has to be reminded, it was illegal anyway to have produced this cannabis, even for his own use. So one can well understand that he might well have wished to conceal that production mechanism from anybody who might adventitiously visit the premises and even from his own parents or anybody else who did not know that he was engaged in heavy use of cannabis, which he attested to and which seems also to be corroborated by the two witnesses I have mentioned.
So I do not think I can reject what he says as fanciful or not worthy of any credit. And once it is worthy of credit, of course that rebuts the presumption in favour of the prosecution case, and therefore one must ask, has the prosecution proved it? The prosecution case is certainly a respectable one. It is based on a reasonable suspicion and one which the police and others were entitled to entertain. I am nevertheless left in the situation where I am not satisfied, the presumption having been rebutted, that the prosecution has made out its case that there was any selling of cannabis plants or any part of them to any other person.
For that reason, I have to record an acquittal in favour of the accused.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 20 September 2012
Counsel for the prosecution: Mr Sahu Khan
Solicitor for the prosecution: Ms Judd
Counsel for the defence: Mr Sabharwal
Solicitor for the defence: Mr Butler
Date of hearing: 20 September 2012
Date of judgment: 20 September 2012
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