R v Page - [2008] VSCA 54

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 331 of 2005

THE QUEEN
	v
BERNARD ANTHONY PAGE

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JUDGES:	MAXWELL P, BUCHANAN and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 May 2007
DATE OF JUDGMENT:	9 April 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 54

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CRIMINAL LAW – Conviction – Cultivation of not less than a commercial quantity of cannabis – Crown case relied on inference as to accused’s intention – Jury direction regarding proof that accused believed there was ‘a significant or real chance’ that what he was cultivating exceeded a commercial quantity – Whether direction conformed with R v Nguyen (2005) 12 VR 299 – Importance of reading particular direction in context of charge as a whole – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms C M Quin	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	In Person

MAXWELL P:

The applicant was presented on one count of cultivation of not less than a commercial quantity of cannabis.[1] The second count on the presentment alleged the commission of a lesser offence, namely, cultivation simpliciter. The applicant pleaded not guilty to the first count but guilty to the second. After a trial before a County Court jury, he was convicted on the first count.
[1]Contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981.

The sole issue for determination by the jury on the first count was whether the Crown had proved beyond reasonable doubt that the applicant had the requisite state of mind, that is, whether he intended to cultivate a commercial quantity of cannabis. For this purpose, it was necessary for the Crown to prove beyond reasonable doubt that the applicant knew or believed that what he was growing was, or was likely to be, not less than a commercial quantity of cannabis (25 kilograms).[2] The trial judge correctly identified the issue for the jury in these terms.
[2]DPP Reference No 1 of 2004; R v Nguyen (2005) 12 VR 299 (‘Nguyen’), 312-3 [37]; R v Van Xuan Bui [2005] VSCA 300 (‘Bui’), [26] (Eames JA).

The sole ground of appeal contends that the judge erred when he subsequently directed the jury that

as a matter of law … proof beyond reasonable doubt that the accused man believed that there was a significant or real chance that he was cultivating a quantity of cannabis in excess of 25 kilograms would satisfy the onus borne by the Crown.

(Although the applicant appeared on his own behalf on the hearing of the application, he relied on an outline of submissions prepared on his behalf by senior counsel.)

For reasons which follow, I consider that the application for leave to appeal against the conviction should be refused. In short, when the impugned direction is understood in the context of the jury charge as a whole, there was no misdirection.

The decision in Nguyen

In Nguyen, this Court (Vincent, Eames and Nettle JJA)…

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 Page

Details

AGLC: R v Page [2008] VSCA 54
Case: [2008] VSCA 54
Decision Date: 9 April 2008

CaseChat Overview and Summary

The respondent was convicted of cultivating not less than a commercial quantity of cannabis, and the matter was before the court on an application to set aside the conviction. The appeal hinged on the jury direction provided in relation to the proof of the accused’s belief regarding the commercial quantity of cannabis cultivated. Specifically, the court considered whether the direction correctly aligned with the decision in R v Nguyen, which sets out the requirements for proving the accused’s knowledge of cultivating a commercial quantity.

The central legal issue was whether the jury direction was adequate in ensuring the jury understood the requirement to prove the accused’s belief in a significant or real chance that the cultivated cannabis exceeded a commercial quantity. The court examined whether the direction was consistent with the principles established in R v Nguyen, particularly the need to prove the accused’s subjective belief in the context of the charge as a whole. The court also considered whether the jury direction could have been misunderstood or whether it was clear and sufficient in guiding the jury on the necessary proof.

The court concluded that the jury direction was appropriate and aligned with the principles in R v Nguyen. The court emphasised the necessity of reading the direction in the context of the charge as a whole, ensuring that the jury understood the requirement to prove the accused’s belief. The court found that the direction was clear and sufficiently detailed to enable the jury to properly consider the evidence and make an informed decision. Therefore, the application to set aside the conviction was dismissed.

No further orders were made beyond the dismissal of the application to set aside the conviction.

Orders