R v Kremisis - [2014] ACTSC 322

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kremisis
Citation:	[2014] ACTSC 322
Hearing Date(s):	26 November 2014
DecisionDate:	2 December 2014
Before:	Murrell CJ
Decision:	Verdict of not guilty.
Category:	Principal Judgment
Catchwords:	CRIMINAL LAW – Aid and abet – cultivation of trafficable quantity of cannabis plants – circumstantial evidence – lies as consciousness of guilt – good character – whether aider and abettor must be present as encouragement – lack of effective dissent
Legislation Cited:	Criminal Code 2002 (ACT) ss 13, 45, 616, 617 Criminal Code Regulation 2005 (ACT) Legislation Act 2001 (ACT) s 142 Supreme Court Act1933 (ACT) s 68B Criminal Code Act 1995 (Cth) s 11.2
Cases Cited:	Campbell v The Queen [2008] NSWCCA 214 Edwards v The Queen (1993) 178 CLR 193 R v Beck (1989) 43 A Crim R 135 R v Coney (1882) 8 QBD 534 R v Kepa and Ors [1997] QCA 152 R v Lam and Ors (No 20) [2005] VSC 294 R v Lowery and King (No 2) [1972] VR 560 R v Russell (1933) VLR 59 Re Pong Su (2005) 159 A Crim R 300 Tuck v Robson (1970) All ER 1171
Texts Cited:	Criminal Law Officers Committee of the Standing Committee of Attorneys-General, “Final Report: General Principles of Criminal Responsibility” December 1992
Parties:	The Queen (Crown) Rene Kremisis (Accused)
Representation:	Counsel Mr A Williamson (Crown) Mr C Lynch (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Craig Lynch & Associates (Accused)
File Number(s):	SCC 134 of 2013

MURRELL CJ:

The trial proceedings

The accused was indicted for the offence that, contrary to s 616(5) of the Criminal Code 2002 (ACT) (Criminal Code), between 10 September 2012 and 10 November 2012 at Canberra she (and Mohanad Quzag, Nabel Quzag and Moustafa Negro) cultivated a trafficable quantity of cannabis plants with the intention of selling the plants or their products, or believing that someone else intended to sell the plants or their products.

The prosecution relied on s 45 of the Criminal Code, claiming that the accused was either a principal in the first degree or a principal in the second degree; that the accused either actually tended to the cannabis plants herself or she aided and abetted others to do so. It was alleged that she aided others by making her parents’ house available for the growing of the plants (or, at least, by acquiescing in relation to the use of the house for that purpose), by failing to inform her mother that the house was being used to grow cannabis and, through her presence, by providing comfort and support to her boyfriend, Mohanad Quzag, when he was tending to the plants.

The trial proceeded before a judge sitting alone. Pursuant to s 68B of the Supreme Court Act1933 (ACT), on 8 May 2014, the accused had elected to be tried by a judge alone, and her legal practitioner certified that she had received advice and made the election…

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 Kremisis

Details

AGLC: R v Kremisis [2014] ACTSC 322
Case: [2014] ACTSC 322
Decision Date: 2 December 2014

CaseChat Overview and Summary

The defendant, Kremisis, was charged with aiding and abetting the cultivation of a trafficable quantity of cannabis plants. The case was heard in a court of criminal jurisdiction. The prosecution alleged that Kremisis was involved in the cultivation process, even though he was not physically present at the site where the plants were grown. The defendant claimed innocence, asserting that he had no knowledge of, and played no part in, the cultivation activities.

The legal issues before the court involved determining whether the defendant could be considered an aider and abettor in the cultivation of the cannabis plants under the circumstances presented. Specifically, the court had to consider whether circumstantial evidence could be sufficient to establish the defendant's guilt, and if the defendant's alleged lies could be interpreted as evidence of his consciousness of guilt. Another issue was whether the presence of the aider and abettor must be demonstrated at the scene of the crime for conviction, and whether the defendant's good character could be taken into account when assessing his culpability.

The court found that there was insufficient evidence to prove the defendant's involvement in the cultivation beyond reasonable doubt. The circumstantial evidence presented was not enough to establish his guilt, and his alleged lies were not sufficiently compelling to be considered as evidence of his consciousness of guilt. The court also noted that the prosecution had not demonstrated that the defendant was present at the scene as an encourager. Furthermore, the court held that the defendant's good character could be taken into account when assessing his culpability, and that this factor weighed in his favour. As a result, the court found the defendant not guilty.

The court acquitted the defendant of all charges, finding him not guilty of aiding and abetting the cultivation of a trafficable quantity of cannabis plants.

Orders

Orders of the court

Verdict of not guilty.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.