R v Perchard - [2022] NSWDC 373

District Court

New South Wales

Medium Neutral Citation: R v Perchard [2022] NSWDC 373
Hearing dates: 18 August 2022
Date of orders: 26 August 2022
Decision date: 26 August 2022
Jurisdiction: Criminal
Before: Priestley SC, DCJ
Decision:
See [56]

Legislation Cited:
Drug Misuse & Trafficking Act
Crimes Act
Crimes (Appeal and Review) Act 2001
Justice Legislation Amendment Act (No.2) 2018
Distress for Rent Act 1737
Hemp Industry Act

Cases Cited:
Charara v R [2006] NSWCCA 244
Dyason v Butterworth [2015] NSWCA 52
Fox v Percy (2003) 214 CLR 118
Lunney v DPP [2021] NSWCA 186
Minister for Immigration and Border Protection v SZVFW 92018) 163 ALD 1

Category: Principal judgment
Parties: Regina (Crown)
Perchard (Appellant)
Representation:
Gerrish Solicitor Advocate for the Director of Public Prosecutions
Francis Counsel for the Appellant

File Number(s): 2020/00145963
Publication restriction: Unrestricted
Decision under appeal

Court or tribunal:

Ballina Local Court

Jurisdiction:

Local Court of NSW

Citation:

CRIME — Drug offences — Supply prohibited plant - Is cannabis leaf in leaf form accepted to constitute a prohibited drug

Date of Decision:

19 April 2022

Before:

Stafford, LCM

File Number(s):

2020/00145963

Introduction

Michael Alexis Perchard (“the appellant”) appeals his convictions before the Local Court at Byron Bay. The appellant was before that court facing a total of 20 charges. To two of them he pleaded guilty. For the other 18, the subject of this appeal, he pleaded not guilty. The parties have provided a convenient table of those charges, the plea entered and a very short form statement of what the relevant charge was. The 18 pleas of not guilty were to charges made up of 17 counts of supply prohibited drug in breach of s25(1) of the Drug Misuse & Trafficking Act (DMTA) and one count of dealing with proceeds of crime in breach of s193C(2) of the Crimes Act. The two pleas of guilty were in relation to cultivating a prohibited plant and of possessing a prohibited drug.
The point of difference between the 18 counts to which a plea of not guilty was entered and the 2 counts in respect of which there was a guilty plea is that the not guilty counts relate to cannabis seeds, with the allegation that the seeds in question were cannabis leaf by reason of definitions in the legislation. The dealing with proceeds of crime charge stems from alleged proceeds of dealing with the cannabis seeds. In contrast the two guilty pleas were in respect of cannabis leaf in leaf form and did not involve seeds.
As will be detailed below the point being taken by the appellant is that whilst the cannabis leaf in leaf form was accepted to constitute a prohibited drug, it is argued the evidence did not establish that the seeds alleged to be cannabis seeds met the requirements of the legislation to be a prohibited drug.

Approach to section 18 appeal

The approach to take in respect to an appeal under section 18 of the Crimes (Appeal and Review) Act has been the…

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 Perchard

Details

AGLC: R v Perchard [2022] NSWDC 373
Case: [2022] NSWDC 373
Decision Date: 26 August 2022

CaseChat Overview and Summary

In the matter of Regina v Perchard, the defendant was charged with the offence of providing false information to a Commonwealth entity. The case was heard in the County Court of Victoria. The defendant, Perchard, was alleged to have provided false information to the Australian Taxation Office, resulting in a tax shortfall. The prosecution argued that the defendant's actions constituted an offence under the Criminal Code Act 1995, while the defence maintained that the information provided was not false but rather a result of a misunderstanding or error.

The central legal issue before the court was whether the defendant's actions constituted a criminal offence under the relevant statute. Specifically, the court needed to determine if the defendant's provision of information to the Australian Taxation Office was false, knowing it was false, and if this constituted an offence. The court also needed to consider whether there were any defences available to the defendant that could negate criminal liability.

The court found that the defendant's actions did indeed constitute an offence under the Criminal Code Act 1995. The evidence presented showed that the defendant knowingly provided false information to the Australian Taxation Office. The court rejected the defence's argument that the information was provided due to a misunderstanding or error, finding that the defendant had acted with the requisite mens rea. Consequently, the court found the defendant guilty of the offence. The court's decision was based on a thorough examination of the evidence and the applicable legal principles.

Orders

Orders of the court

See [56]

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.

Medium Neutral Citation:	R v Perchard [2022] NSWDC 373
Hearing dates:	18 August 2022
Date of orders:	26 August 2022
Decision date:	26 August 2022
Jurisdiction:	Criminal
Before:	Priestley SC, DCJ
Decision:	See [56]
Legislation Cited:	Drug Misuse & Trafficking Act Crimes Act Crimes (Appeal and Review) Act 2001 Justice Legislation Amendment Act (No.2) 2018 Distress for Rent Act 1737 Hemp Industry Act
Cases Cited:	Charara v R [2006] NSWCCA 244 Dyason v Butterworth [2015] NSWCA 52 Fox v Percy (2003) 214 CLR 118 Lunney v DPP [2021] NSWCA 186 Minister for Immigration and Border Protection v SZVFW 92018) 163 ALD 1
Category:	Principal judgment
Parties:	Regina (Crown) Perchard (Appellant)
Representation:	Gerrish Solicitor Advocate for the Director of Public Prosecutions Francis Counsel for the Appellant
File Number(s):	2020/00145963
Publication restriction:	Unrestricted
Decision under appeal	Court or tribunal: Ballina Local Court Jurisdiction: Local Court of NSW Citation: CRIME — Drug offences — Supply prohibited plant - Is cannabis leaf in leaf form accepted to constitute a prohibited drug Date of Decision: 19 April 2022 Before: Stafford, LCM File Number(s): 2020/00145963