R v Kremisis
[2014] ACTSC 322
•2 December 2014
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) 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 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 freely.
I set out the principles of law that I apply and the findings of fact that I make for the purpose of arriving at a verdict.
Onus and standard of proof
The prosecution has the task of proving the guilt of the accused beyond reasonable doubt. The accused is presumed to be not guilty. As long as I have a reasonable doubt about her guilt, I must return a verdict of not guilty.
In order to prove the charge beyond reasonable doubt, the prosecution must prove beyond reasonable doubt each legal element of the offence and, in so doing, must prove beyond reasonable doubt any fact that is essential to establishing a legal element.
In making findings of fact, I must rely upon the evidence, i.e. the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.
As a matter of practical reality, in this trial I must be satisfied beyond reasonable doubt that the accused was not merely present at the premises when the cannabis plants were cultivated by Mohanad Quzag, but that, by her conduct (including omissions), she in fact aided and abetted Mohanad Quzag and others to commit the offence, and that she intended that her conduct would aid and abet the commission of an offence of the type in question.
The evidence
The evidence was uncontentious.
The house at which cannabis was grown was a two-storey house on a corner block in Macgregor, ACT. There were four bedrooms (one of which was located upstairs). A plan of the house became Exhibit 2.
The house was owned by the parents of the accused. It had been the family home. When the parents of the accused separated on 1 July 2011, the accused moved to live in Dunlop with her mother. Her father remained living in the house until a date prior to May 2012.
From at least July 2012 (when police commenced external monitoring of the house) until 16 October 2012, Yasin Al Naqib stayed overnight at the premises. On 16 October 2012, he was driven from the premises by Mohanad Quzag.
The water account for the house was in the name of the parents of the accused. The electricity account was in the name of “Mr Yisin Niqib” (a variation of Yazin Al Naqib). The electricity account had been opened by Mohanad Quzag on 5 December 2011.
On 10 January 2013, police executed a search warrant at the home of the accused in Dunlop. In her bedroom, they located an electricity account for the Macgregor house dated 20 September 2012 in the name of Mr Yisin Niqib.
From 20 October 2012, a listening device was installed in the kitchen area of the house. From 27 October 2012, the listening device was supplemented by an optical device, installed in the same area of the house. The devices had limited coverage. The coverage of the optical device is indicated in Exhibit 2. Police also obtained a warrant to intercept telephone calls on the mobile telephone of Mohanad Quzag.
Between 27 July 2012 and 22 October 2012, Mohanad Quzag attended the premises almost daily, for periods ranging between a few minutes and a few hours.
At 10.18 am on 14 September 2012, the accused arrived at the Macgregor house in her BMW vehicle. Mr Quzag was a passenger in the vehicle. They carried small items from the back of the BMW to Mr Quzag’s Commodore vehicle, which was parked nearby. Mr Quzag entered the premises. The accused backed the Commodore vehicle up to the garage entrance. Mr Quzag removed items from the boot and placed them in the garage. The accused then drove away in the Commodore vehicle.
At about 11.12 pm on 22 October 2012, the accused and Mr Quzag arrived at the Macgregor house and entered the premises. Inside, they had a discussion during which Mr Quzag asked the accused how long she thought that it would take for him to clean by himself. The accused replied “at least two hours”. At 11.41 pm the accused and Mr Quzag drove away.
At about 12.27 am on 31 October 2012, the accused and Mr Quzag arrived at the McGregor house and went inside. The accused began to clean up in the kitchen area. At 1.15 am the accused commented that “for (the house) to be liveable again is going to take ages”. At 1.17 am, the accused asked Mr Quzag whether he was scared. When he said “no”, the accused responded “you should be”. The couple left at 1.31 am.
At 9.26 pm on 1 November 2012, the accused and Mr Quzag arrived at the Macgregor house and went inside. They cleaned items in the kitchen. Between 9.43 pm and 11.45 pm, the accused walked from the kitchen area to the hall area and back to the kitchen area on three occasions. On the first occasion, she walked from the kitchen area in the company of Mr Quzag and was absent for a period of almost an hour. The other absences were brief. At 11.45 pm, the accused and Mr Quzag left the premises.
On 9 November 2012, police and the fire brigade were notified that water was flooding from the house. The ACT Electricity Water and Gas Light Company attended the house and found that the electricity meter box had been bypassed.
On 10 November 2012, police executed a search warrant. They found a sophisticated hydroponic setup occupying all four bedrooms and the garage. There was an elaborate irrigation system, hydroponic lamps, shades and air filter systems. The house had been significantly modified. Holes had been knocked through walls to accommodate ventilation pipes. The police seized 98 cannabis plants, which were at least six weeks old, i.e. they had been planted before late September 2012. In ideal conditions, cannabis plants take 20 weeks to mature and, at maturity, yield cannabis valued at about $5,000 per plant. The police also seized equipment and products that had apparently been used in relation to the cultivation of cannabis, including plastic bags and liquid fertiliser.
Yazin Al Naqib pleaded guilty to cultivating a trafficable quantity of cannabis plants believing that someone else intended to sell the plants or their products.
Nabil Quzag pleaded guilty to cultivating 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.
Moustafa Negro pleaded guilty to aiding and abetting the cultivation of a trafficable quantity of cannabis plants believing that someone else intended to sell the plants or their products.
Mohanad Quzag pleaded guilty to cultivating 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.
Before considering whether the prosecution has established the offence beyond reasonable doubt, I will address two matters upon which reliance was placed.
Lies
The prosecution relied upon the following lies as evidencing a consciousness of guilt.
(a)In January 2013, the accused told a police officer that, on 14 September 2012, she could not have been at the premises because her car was not working. In fact, her car was observed to be at the premises on that day.
(b)Referring to the growing of cannabis at the premises, on 13 November 2012, the accused asked a police officer, “Have you found out who has done this yet?” Inferentially, the accused was stating that she herself did not know the identity of the person who had cultivated the crop.
The correct approach to lies said to evidence consciousness of guilt is set out in Edwards v The Queen (1993) 178 CLR 193.
I am prepared to assume that each of the two statements was made by the accused (although the making of the second statement was disputed). Each of the statements was false and must have been deliberately false. However, neither statement clearly evidences an intention to conceal the involvement of the accused in the offence. Each is quite consistent with an intention by the accused to distance her boyfriend from the offence, or to conceal the fact that she was aware of the presence of cannabis at the premises. The latter fact, by itself, does not render the accused guilty of any offence and is clearly established on other evidence.
Good character
There was evidence from the mother of the accused that the accused was a university student, who was in paid employment, and that the accused had “never been in trouble before”.
In this case, the evidence of good character is relevant in only one way. It is to be taken into account on the question of whether the accused committed the offence. I must consider whether the prosecution case may be mistaken because it is unlikely that a person of good character would have conducted herself in the manner alleged.
The evidence of good character is a matter upon which I place some reliance when considering the inferences that I should draw concerning the conduct of the accused at the premises, and when considering whether the accused intended to engage in conduct that would assist or encourage the commission of the offence by Mr Quzag.
The offence provisions
Section 616 of the Criminal Code provides:
(5) A person commits an offence if the person cultivates a trafficable quantity of cannabis plants—
(a) with the intention of selling any of the plants or their products; or
(b) believing that someone else intends to sell any of the plants or their products.
(6) Absolute liability applies to the circumstance that the quantity cultivated was a trafficable quantity.
When the offence was committed, the trafficable quantity of cannabis plants was between 10 and 99 plants: Criminal Code s 601; Criminal Code Regulation 2005 (ACT) sch 2.
Section 617 of the Criminal Code provides:
If, in a prosecution for an offence against section 616 (cultivating controlled plant for selling), it is proved that the defendant cultivated a trafficable quantity of a controlled plant, it is presumed, unless the contrary is proved, that the defendant had the intention or belief about the sale of the plant or its products required for the offence.
Section 45 of the Criminal Code provides:
(1) A person is taken to have committed an offence if the person aids, abets, counsels, procures, or is knowingly concerned in or a party to, the commission of the offence by someone else.
(2) However, the person commits the offence because of this section only if—
(a) either—
(i) the person’s conduct in fact aids, abets, counsels, or procures the commission of the offence by the other person; or
... and
(b) when carrying out the conduct, the person either—
(i) intends the conduct to aid, abet, counsel, procure, or result in the person being knowingly concerned in or a party to, the commission of any offence (including its fault elements) of the type committed by the other person; or
...
(3) To remove any doubt, the person is taken to have committed the offence only if the other person commits the offence.
(4) Despite subsection (2), any special liability provisions that apply to an offence apply also to the offence of aiding, abetting, counselling, procuring, or being knowingly concerned in or a party to, the commission of the offence.
...
(8) If the trier of fact is satisfied beyond reasonable doubt that a defendant committed an offence because of this section or otherwise than because of this section but cannot decide which, the trier of fact may nevertheless find the defendant guilty of the offence.
“Conduct” is defined in s 13 of the Criminal Code to include both an act and an omission.
Principal in the first degree
The Crown did not submit that there was a substantial body of evidence showing that the accused was a principal in the first degree. Rather, the Crown referred to s 45(8) of the Criminal Code, arguing that the accused was either a principal in the first degree or a principal in the second degree.
In order to establish that the accused was a principal in the first degree, one of the elements that the prosecution would have to establish beyond reasonable doubt is that the accused cultivated the plants (physical element of conduct), or was part of a joint criminal enterprise to do so. The prosecution did not rely upon joint criminal enterprise.
While there is direct evidence that the accused attended the premises during the period that the cannabis was being grown, there is no direct evidence that she had contact with the plants, or items associated with the plants. The prosecution submitted that I should infer that, on the occasions when the accused was at the premises and she walked in and out of the kitchen, she did so for the purpose of tending to the cannabis crop. In relation to this element, the prosecution relied upon circumstantial evidence.
I cannot find the accused guilty as a principal in the first degree unless there is no rational explanation for the established circumstances other than that the accused did tend to the plants, i.e. the established circumstances show beyond reasonable doubt that the accused committed the crime as a principal in the first degree.
The first inquiry involves identifying the circumstances that are established by reliable evidence. The reliability of the evidence was not in contention. The relevant circumstances can be summarised as follows:
(a)The premises were owned by the parents of the accused and the accused must have known that the premises were unoccupied.
(b)During the relevant period when the crop was being grown (10 September to 10 November 2012), the accused accompanied her boyfriend, Mr Quzag, into the premises on three occasions, and remained inside the premises for a significant period of time.
(c)Mr Quzag was growing a cannabis crop at the premises.
(d)Based upon his words and conduct and the number of times that he attended the property, there is an inescapable inference that, during the three occasions when the accused accompanied Mr Quzag to the premises, he was tending to the cannabis crop.
(e)Based on the relationship between the accused and Mr Quzag, her attendances at the premises with Mr Quzag and the duration of her attendances, there is an inescapable inference that the accused knew that the premises were being used by Mr Quzag to grow a cannabis crop.
(f)On one occasion when the accused went to the premises with Mr Quzag, she walked towards the growing areas three times and did not return to the kitchen/living area for a significant period.
(g)The accused was close to her mother but did not inform her mother of the purpose for which the premises were being used.
The second inquiry involves taking the established circumstances as a whole and determining whether, having regard to all the established circumstances and any direct evidence, I am satisfied that the only available rational inference is that the accused was tending to the crop.
While I accept that the accused must have known that Mr Quzag was cultivating a cannabis crop at the premises and must have known that he was tending to the crop when he went to the premises with her, it is quite possible that she herself did not tend to the crop. It seems certain that she had little, if any, direct commitment to the crop; over a period of several months, she attended the premises on only a few occasions and then only in the company of her boyfriend. The limited information that is available concerning her attendances suggests that, when she did attend the premises with her boyfriend, she was preoccupied with cleaning in the kitchen area. It is possible that, when she went to other parts of the premises, she did so for the purpose of taking rubbish to the backyard, going to the bathroom or chatting to her boyfriend.
As noted above, the prosecution’s primary case did not allege that the accused was a principal in the first degree. I am far from satisfied beyond reasonable doubt that she was a principal in the first degree.
Principal in the second-degree: Elements of the offence of aid and abet the cultivation
Section 142 of the Legislation Act 2001 (ACT) provides that, in interpreting the meaning of an Act, regard can be had to the report or recommendation which led to the enactment. The Criminal Code was substantially based on the recommendations of the Criminal Law Officers Committee of the Standing Committee of Attorneys-General (the Committee). Section 45 of the Criminal Code is in very similar terms to s 11.2 of the Criminal Code Act 1995 (Cth) (Code). In its report, the Committee noted that the Code retained the traditional formula of “aid, abet, counsel and procure”, the meaning of which was well understood in common law jurisdictions: Criminal Law Officers Committee of the Standing Committee of Attorneys-General, “Final Report: General Principles of Criminal Responsibility”, December 1992, 87. Consequently, where it is used in s 45 of the Criminal Code, the expression “aid, abet, councils or procures” should be assigned its common law meaning.
At common law, an aider and abettor is often described as a person who is present at the place where, and at the time when, a crime is committed by another person and who intentionally assists or gives encouragement to that other person to commit the crime. The essential distinction between an aider and abettor (principal in the second degree) and a person who is guilty by reason of joint criminal enterprise/common purpose (principal in the first degree) is that the latter is party to a prior understanding or arrangement to commit the crime: R v Lowery and King (No 2) [1972] VR 560 (Lowery).
In Re Pong Su (2005) 159 A Crim R 300 (Pong Su), an importation case, Kellam J of the Supreme Court of Victoria discussed the elements required for aiding and abetting under s 11.2 of the Code and held that the Crown must prove that:
(1)The principal offence was committed by another person.
(2)The conduct of the accused in fact aided, abetted, counselled or procured the commission of the principal offence by the other person.
(3)The accused intended that his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type that the other person committed.
As is the position at common law, under the Code, the physical and fault elements of an offence must coincide in time: Campbell v The Queen [2008] NSWCCA 214 per Weinberg AJA at [137]. Relevantly, the intention to aid and abet the commission of an offence must coincide with the conduct of the accused that is relied upon as the conduct supporting the aiding and abetting.
In Lowery, presence at the scene of the crime when it is being committed was said to be an aspect of aiding and abetting. Similarly, in R v Lam and Ors (No 20) [2005] VSC 294 (Lam) it seems that presence at the scene was considered to be essential to culpability as an aider and abettor. But in Pong Su such a requirement was not articulated. I mention this matter because, in this case, an aspect of conduct (by omission) upon which the prosecution relied was the continuing failure of the accused to advise her mother that her mother’s house was being used for the illegal purpose of growing cannabis.
There may be uncertainty about whether, under the Criminal Code, an aider and abettor must be physically present at the location of the crime when he or she commits the conduct amounting to assistance or encouragement or, on the other hand, it is sufficient if the assistance or encouragement is provided from a remote location during the course of the crime. However, as the point was not argued in this case, I have decided the matter on the assumption that, if the conduct upon which the prosecution relied is otherwise adequate to establish the offence, then assistance or encouragement provided by the accused from any location during the course of the crime will suffice to establish the offence.
In order to prove that the accused aided and abetted Mr Quzag to commit the crime, the prosecution must establish the following elements beyond reasonable doubt:
(1)Mr Quzag committed the crime of cultivating the trafficable quantity of cannabis with intent to sell: s 45(3) of the Criminal Code. The Crown must prove beyond reasonable doubt each of the constituent elements of the principal offence.
(2)The accused knew of all the essential facts or circumstances involved in the commission of the offence by Mr Quzag.
(3)With that knowledge, during the period when the crime was being committed by Mr Quzag, the accused by her conduct (including omissions) in fact assisted or encouraged Mr Quzag to commit the crime: s 45(2)(a)(i) of the Criminal Code.
(4)At the time that she carried out the conduct, the accused intended that her conduct would aid and abet the commission of an offence of the type committed by Mr Quzag: s 45(2)(b)(i) of the Criminal Code.
Element 1: Mr Quzag committed the crime
The relevant elements of the offence of cultivating the trafficable quantity of cannabis with intent to sell (as committed by Mr Quzag) are:
(h)Mr Quzag cultivated plants (physical element of conduct).
(i)He did so intentionally (default fault element of intention).
(j)The plants were cannabis plants (physical element of circumstance).
(k)Mr Quzag was reckless as to whether the plants were cannabis plants (default fault element of recklessness).
(l)The number of plants cultivated was the trafficable quantity (physical element of circumstance). Absolute liability applies to this physical element.
(m)When Mr Quzag cultivated the plants, he intended to sell some of the plants or their products or believed that someone else would do so.
As Mr Quzag has admitted the offence, this element of the offence allegedly committed by the accused (including the constituent components of this element) is not in issue. Exhibit 5 contains evidence that, in the period up to 22 October 2012, Mr Quzag attended the premises almost daily, discussed moving pots with Mr Negro, and discussed the purchase of lights with Mr Negro. The arrangement of the premises was such that a person or persons must have devoted significant time and attention to constructing the hydroponic growing arrangements and then tending to the plants. As the premises were almost entirely taken over by the growing of cannabis, Mr Quzag’s only purpose in attending the premises frequently could have been to check or tend to the plants. The number of plants was the trafficable quantity. Section 617 of the Criminal Code creates a statutory presumption that Mr Quzag had the requisite intention or belief about the sale of the plant or its products.
Element 2: The accused knew of all the essential facts or circumstances involved in the commission of the offence by Mr Quzag
This element was not contentious. I find that it is established beyond reasonable doubt.
On three occasions, the accused entered the premises with Mr Quzag and remained inside the premises for a significant period of time. While she spent most of the time in the kitchen area, she also walked to other parts of the premises. She could not have failed to observe the large number of cannabis plants growing in the house. The question that the accused asked of Mr Quzag on 31 October 2012 (about whether he was scared) is consistent with the accused knowing that Mr Quzag was doing something wrong. The inescapable inference is that, while the couple was present at the house, Mr Quzag was tending to the plants.
I have no doubt that the accused knew that Mr Quzag was deliberately cultivating a significant number of cannabis plants. Given the number of plants in question, the accused must have inferred that he was doing so for the purpose of sale. It is not necessary to decide whether the statutory presumption in s 617 of the Criminal Code applies to a principal in the second degree.
Element 3: With that knowledge, the accused by her conduct in fact assisted or encouraged Mr Quzag to commit the crime
As stated above, under the Criminal Code, “conduct” includes both acts and omissions. At common law, voluntary presence for the purpose of witnessing the commission of a crime may, in some circumstances, amount to wilful encouragement sufficient to make a person a principal in the second degree. In R v Coney (1882) 8 QBD 534, it was held that the fact that a person had chosen to attend an illegal boxing match where bets were taken could, depending on the other circumstances, support a finding that he was an aider and abettor because, by his presence, he encouraged the fight.
In R v Russell [1933] VLR 59, the Court upheld a conviction for manslaughter where a husband had stood by passively while his wife drowned their children. At 63, Cussen ACJ concluded that the jury must have found that the accused was present “conniving to” the act of his wife. At 66–67, his Honour observed:
Taking (the authorities referred to) as a whole, I am of opinion (1) that if the person present at the commission of a crime in the opinion of the jury on sufficient evidence shows his assent to such commission, he is guilty as a principal, and (2) that assent may in some cases be properly found by the jury to be shown by the absence of dissent, or in the absence of what may be called an effective dissent ... All the words above mentioned are, I think, instances of one general idea, that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely, such commission.
In Tuck v Robson (1970) All ER 1171, the accused, a hotel licensee, was found to be a principal in the second degree to the offence committed by a hotel patron of drinking after closing time on the basis that the accused was in control of the premises and did nothing to prevent the offence, apart from calling “Time”. The Court found that the licensee’s conduct could be characterised as “passive assistance”.
In R v Beck (1989) 43 A Crim R 135 at 143, the Queensland Court of Criminal Appeal said:
[a] calculated presence or a presence from which opportunity is taken can project positive encouragement and support to a principal offender. The distinction between a neutral and a guilty presence of a person at the scene of a crime would be for the jury to assess.
In Lam at [24], Redlich J observed that:
Both principal and authority suggests that the prior acts of the secondary participant and the surrounding circumstances in which the secondary participant was involved are relevant to the intent of the secondary participant and the nature and quality of the alleged acts of aiding and abetting.
In R v Kepa and Ors [1997] QCA 152, the Court decided that presence while the principal offender committed rape supported a conviction because, having regard to the appellants’ conduct towards the victim at an earlier location, their presence during the rape went to the questions of both capacity to encourage and intention to encourage the principal offender.
In this case, the prosecution relied upon the following acts and omissions as conduct that in fact assisted or encouraged Mr Quzag to commit the offence.
(a)When she was present at the premises, the accused did not “effectively dissent” to Mr Quzag’s activities. If she did not actually tend to the crop herself then, by being present when Mr Quzag was tending to the crop, she at least encouraged him in that activity.
(b)The accused omitted to inform her mother about the activities in her mother’s house, thereby permitting the activities to continue. This omission had the practical effect of continuing to make the premises available to the cultivation operation.
I am not satisfied beyond reasonable doubt that the conduct relied upon in fact assisted or encouraged Mr Quzag to commit the offence in a relevant way.
During the two month period the subject of the charge, Mr Quzag attended the premises on many occasions for the purpose of tending to the crop, but the accused came into the premises with Mr Quzag on only three of those occasions. Some of the conversations that occurred inside the premises between the accused and Mr Quzag were recorded, and none of the recorded conversations involved encouragement of Mr Quzag. On the contrary, on one occasion the accused suggested that Mr Quzag should be scared (inferentially, that he should reconsider his conduct).
I accept that the failure of the accused to inform her mother about the cannabis crop in the house probably had the practical effect of allowing the cultivation to continue. However, it is my view that such an omission is not captured by the concept of aiding and abetting. A bystander at the commission of a crime is not guilty of any offence if the bystander fails to report the matter to the police. The prosecution referred me to no authority to the effect that failure to report an offence could render a person guilty as a principal in the second degree. There is no fundamental distinction between the accused’s failure to report the crime to her mother and her failures to report the matter to the police, to the father of the accused (who was a joint owner of the property), to a neighbour, to the electricity authority or to other interested parties.
Element 4: At the time that she carried out the conduct, the accused intended that her conduct would aid and abet the commission of the offence
This element is not made out beyond reasonable doubt.
I am not satisfied beyond reasonable doubt that the accused intended that, by her conduct of attending the premises, she would assist or encourage Mr Quzag to commit the offence of cultivation. It is quite possible that she attended because she wanted to talk to him about unrelated matters, or clean up the kitchen area, or wait for him to give her a lift home, or even for the purpose of discouraging Mr Quzag from cultivating the crop (that was the tenor of one recorded conversation). It was not asserted that cleaning the kitchen area was related to cultivation of the crop.
I do not accept the prosecution’s submission that, given the close relationship between the accused and her mother, the failure of the accused to inform her mother about the cannabis crop was a “deliberate, calculated and ongoing deceit” that evidenced the accused’s intention to encourage and countenance the offending of her boyfriend. While I accept that the accused did not wish to reveal Mr Quzag’s criminality, such a state of mind falls well short of an intention to assist in a positive way.
Verdict
I return a verdict of not guilty.
| I certify that the preceding seventy-two [72] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 4 December 2014 |
0
3
5