R v Nikro - [2014] ACTSC 241

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Nikro
Citation:	[2014] ACTSC 241
Hearing Dates:	11, 12, 16 September 2013, 3 April 2014 and 8 May 2014
DecisionDate:	25 September 2014
Before:	Burns J
Decision:	The accused is found guilty of the offence of cultivating a trafficable quantity of cannabis plants for selling (CC2012/208).
Category:	Principal judgment
Catchwords:	CRIMINAL LAW – Drug Offences – trial by judge alone – cultivated a trafficable quantity of cannabis plants for selling EVIDENCE – Judicial Discretion to admit or exclude Evidence – coincidence evidence
Legislation Cited:	Criminal Code 2002 (ACT) s 615 Criminal Code Regulation 2005 (ACT) Supreme Court Act 1933 (ACT) s 68C
Cases Cited:	R v AKN [2013] ACTSC 64
Parties:	R (Crown) Abdul Karim Nikro (Accused)
Representation:	Counsel Ms S Gul (Crown) Mr A Doig (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyers (Accused)
File Number(s):	SCC 375 of 2011; SCC 146 of 2012

Burns J:

On 11 September 2013 the accused, Abdul Karim Nikro, was arraigned on an indictment dated 10 September 2013 in the following terms:

(a)That between 18 January 2011 and 18 March 2011 at Canberra in the Australian Capital Territory Abdul Karim Nikro cultivated a commercial quantity of a controlled plant, namely cannabis, with the intention of selling any of the plants or their products, or believing that someone else intended to sell any of the plants or their products (Count 1); and
(b)That between 14 July 2011 and 9 August 2011 at Canberra in the Australian Capital Territory Abdul Karim Nikro cultivated a trafficable quantity of cannabis plants with the intention of selling any of the plants or their products or believing that someone else intended to sell any of the plants or their products (Count 2) (CC2012/208).

To these two counts he entered pleas of not guilty and the charges proceeded to trial before myself sitting without a jury, the accused having earlier elected trial by judge alone. In such a trial, s 68C of the Supreme Court Act1933 (ACT) provides that I may make any finding of guilt that could be made by a jury, and those findings have the same effect as a jury verdict. That section also requires me to provide a judgment setting out the principles of law I apply, and the findings of fact I rely upon. I must also take into account any directions, warnings, or comments that would, under a Territory law, have to be given or made to a jury.

The trial took place on 11, 12 and 16 September 2013, and continued on 3 April and 8 May 2014. On 3 April 2014 Count 1 was amended to allege an offence of aiding and abetting the cultivation of a commercial quantity of a controlled plant, and the accused entered a plea of guilty to that charge. Count 2, therefore, is the only remaining count on which I must render a verdict.

At this point it is convenient 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 Nikro

Details

AGLC: R v Nikro [2014] ACTSC 241
Case: [2014] ACTSC 241
Decision Date: 25 September 2014

CaseChat Overview and Summary

The defendant, Nikro, was charged with cultivating a trafficable quantity of cannabis plants for the purposes of sale. The case was heard by the court, which was required to determine whether the evidence presented was sufficient to find the defendant guilty of the offence. The court also needed to consider whether certain evidence should be excluded due to its prejudicial nature.

The primary legal issue before the court was whether the prosecution had provided enough evidence to establish that the defendant was involved in cultivating a trafficable quantity of cannabis plants for the purposes of sale. The court had to consider the nature and weight of the evidence presented, including whether the evidence was reliable and whether it pointed to the defendant's guilt beyond a reasonable doubt. Another issue before the court was whether the trial judge had the discretion to exclude certain evidence that could be considered prejudicial to the defendant.

The court found that the evidence presented was sufficient to establish the defendant's guilt beyond a reasonable doubt. The court found that the evidence presented was reliable and that it pointed to the defendant's involvement in cultivating a trafficable quantity of cannabis plants for the purposes of sale. The court also found that the trial judge had the discretion to exclude certain evidence that could be considered prejudicial to the defendant. However, in this case, the court found that the evidence was not overly prejudicial and should be admitted. The court found the defendant guilty of cultivating a trafficable quantity of cannabis plants for the purposes of sale.

Orders

Orders of the court

The accused is found guilty of the offence of cultivating a trafficable quantity of cannabis plants for selling (CC2012/208).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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