- Notable Unreported Decision
SUPREME COURT OF QUEENSLAND
R v Dimitropoulos  QCA 75
CA No 121 of 2019
DC No 761 of 2018
Court of Appeal
Appeal against Conviction
District Court at Southport – Date of Conviction: 4 April 2019 (Kent QC DCJ)
17 April 2020
1 November 2019
Fraser JA and Henry and Brown JJ
The appeal is dismissed.
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE – where the trial judge did not permit the appellant to make an opening statement – where the trial judge allowed the appellant to read a statement as part of his evidence-in-chief – where the appellant, in his closing, sought to inform the jury that they can return a verdict against the weight of the evidence, if they thought it was in the interests of justice to do so – where the trial judge refused to allow the appellant to inform the jury in those terms – whether there was a miscarriage of justice in the trial judge not permitting the appellant to make an opening statement – whether there was a miscarriage of justice in the trial judge not permitting the appellant to inform the jury that they can return a verdict against the law and the evidence based on their conscience
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted of one count of unlawfully producing a dangerous drug (count 1) – where the appellant was acquitted of one count of unlawful possession of a dangerous drug (count 2) and one count of possessing instructions for producing a dangerous drug (count 3) – where there was overwhelming evidence supporting a conviction on all counts – where the appellant contends that the conviction on count 1 is unreasonable because it was inconsistent with the verdicts on counts 2 and 3 – whether the inconsistent verdicts demonstrate that the conviction on count 1 was unreasonable and should be set aside
CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – NECESSITY OR EMERGENCY – SUDDEN OR EXTAORDINARY EMERGENCY – where the appellant was convicted on one count of unlawfully producing the dangerous drug cannabis – where the appellant had suffered a serious motor vehicle accident in 2012 – where the appellant contended that using cannabis was the only means available to him to alleviate his chronic pain resulting from the motor vehicle accident – whether the appellant held an honest and reasonable, but mistaken, belief that there was an extraordinary emergency – whether the learned trial judge erred in not allowing the appellant to raise the defence of emergency
Criminal Code (Qld), s 24, s 25, s 619
AK v Western Australia (2008) 232 CLR 438;  HCA 8, cited
Alqudsi v The Queen (2016) 258 CLR 203;  HCA 24, cited
MacKenzie v The Queen (1996) 190 CLR 348;  HCA 35, considered
R v Gardner  QSC 73, considered
R v Oulds (2014) 244 A Crim R 443;  QCA 223, cited
R v Rogers (1996) 86 A Crim R 542, cited
The appellant appeared on his own behalf
S J Hedge for the respondent
The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
FRASER JA: I agree with the reasons for judgment of Brown J and the order proposed by her Honour.
HENRY J: I agree with the reasons for judgment of Brown J and the order proposed by her Honour.
BROWN J: Following a trial, the appellant was convicted, on 4 April 2019, of one count of unlawfully producing the dangerous drug cannabis in excess of 500 grams. He appeals that conviction.
The appellant was acquitted of two other counts, namely:
Unlawful possession of the drug cannabis in excess of 500 grams; and
Unlawfully having possession of a document containing instructions about how to produce the drug cannabis.
The appellant was sentenced to three months’ imprisonment, wholly suspended for a period of three months.
Grounds of appeal
The appellant is self-represented at this appeal and was self-represented at trial. He raises four grounds of appeal. They are:
- The learned trial judge erred by refusing to allow the defence under s 25 of the Criminal Code (Qld) (“Criminal Code”) to go to the jury for consideration;
- The learned trial judge erred by not allowing the defendant to make an opening statement as permitted by s 619 of the Criminal Code;
- The verdict of the jury on Count 1, of which the appellant was convicted, is unreasonable and cannot be supported having regard to the evidence because it is perverse, considering the verdict of the jury on Counts 2 and 3; and
- The learned trial judge erred by refusing to allow the defence to fully explain to the jury that they could make whatever decision they wanted, even one against the weight of the evidence, if they thought it was in the interests of justice to do so.
At the trial, evidence was led by the Crown as to each of the three counts which was largely undisputed by the appellant, save for some minor inconsequential matters.
The evidence of the police officers was that when they searched the appellant’s residence they found 12 large cannabis plants, 51 small cannabis plants and six seedlings in three grey tents and an old bath in the shed, as well as drying and dried cannabis in a bedroom, lounge area and kitchen. They also found two books containing instructions on how to grow cannabis in the appellant’s bedroom. At trial, photographs of the cannabis and instructions found during the search were tendered. An analysis of the cannabis was performed and an analyst’s certificate was tendered at trial, which showed there were 1.717 kilograms of dry or drying cannabis and 22.274 kilograms of cannabis plants, after the roots were removed. The police also gave evidence of finding a number of items associated with a hydroponic setup.
The appellant admitted to Detective Sergeant (DS) Armbruster that he was the only person who lived at the address.
The appellant gave evidence in his own defence and represented himself. He read a prepared statement from the witness box.
The appellant did not dispute the Crown’s case or any of the facts set out above. He did not deny the cannabis found at the premises was his cannabis. The appellant admitted under cross-examination that he produced and possessed cannabis, and possessed instructions on how to grow it. He also stated that he knew, when he was growing and drying the cannabis, that doing so was illegal.
The appellant’s case was that he had engaged in the offending as a last resort to alleviate the pain he had suffered as a result of injuries inflicted by a major car accident in Costa Rica in 2012. He sought to raise a defence of emergency. The trial judge ruled that the defence of emergency was not available on the evidence and would not permit the defence to be put to the jury for their determination. That is the subject of one of the grounds of appeal (Ground 1).
The appellant also stated to the trial Judge that he wished to inform the jury of the fact that they could act on their conscience in reaching a verdict, particularly where they considered the laws that were sought to be enforced at the trial were oppressive laws. He wished to raise those matters in his opening and closing. He complains that the trial judge did not permit him to fully address the jury in this regard (Grounds 2 and 4).
Connected with the appellant’s complaint about not being able to inform the jury of their power to act in accordance with their conscience and contrary to law, he contends that the inconsistent verdicts are perverse and that by not being permitted to address the jury in the manner in which he wished to, he lost the possibility of being acquitted on all grounds (Ground 3).
The appellant stated, in oral submissions, that although he relies on a number of irregularities in the trial, the crux of his appeal turns on whether a self-represented defendant has a right to fully inform the jury that they possess the irrevocable power to return a verdict based on their conscience, which is against the weight of the evidence, without repercussion.
The appellant did not however abandon any grounds of appeal raised in his Notice of Appeal so all must be considered.
I will address grounds 2 and 4 of the grounds of appeal first.
Grounds 2 and 4
Should the Appellant have been allowed to give an opening address?
The appellant complains that he was not allowed to make an opening statement as permitted by s 619 of the Criminal Code. This ground confuses the notion of an opening statement with a defendant opening his evidence. Section 619(3) of the Criminal Code permits a defendant to give an opening of the evidence to be called. That is different from an opening statement, which a defendant may be permitted to give at the outset of a trial, but an opening of evidence is generally of very limited scope. Both will be considered.
Rather than providing for the appellant to give an opening, the learned trial judge permitted him to read from a statement as part of his evidence in chief. After the appellant raised with the trial judge that he had not been permitted to make an opening, the learned trial judge acknowledged that the appellant could have opened his case. However, his Honour stated that given he was aware the appellant wished to read a statement as part of his evidence, his Honour did not think it was necessary for him to open his evidence as well.
In R v Oulds, Holmes JA (as her Honour then was) stated that “[t]here is no prescription for what may be said in an opening statement in Queensland”. Her Honour referred to the fact that an opening statement, as opposed to an opening under s 619(3) of the Criminal Code, is permitted in Queensland in the exercise of the discretion of the Trial Judge according to what is in the interests of justice. Commonly, if an opening statement is permitted, it is on the basis that the interests of justice are served by permitting a defendant to identify the issues in dispute and not in dispute. That does not extend to an opening of evidence. As Holmes JA in R v Oulds stated, it is s 619(3) of the Criminal Code which “contemplates an opening of the evidence intended to be adduced for the defence at the close of the prosecution case”. Neither an opening statement, nor an opening under s 619(3) of the Criminal Code, permit a defendant to make submissions of the nature proposed by the appellant, which is the subject of complaint.
His Honour rightly informed the appellant that he could not make submissions as part of an opening statement or in opening his evidence when he sought to inform the jury of wanting to seek justice and the role of the jury. His Honour’s interruptions of the appellant during his evidence to prevent him straying into matters of submission were appropriate and would have been appropriate had he sought to include them in an opening statement or when opening the evidence the defence was going to call. In doing so, the trial judge took care to ensure the appellant understood the difference between the provision of evidence as opposed to arguments he wished to make to persuade the jury.
In any event, no miscarriage of justice arose as a result of the appellant not being given the opportunity to make the opening statement or to open his evidence in chief in the conventional way. In the absence of the jury, the Trial Judge had canvassed the nature of opening statements and the opening of evidence by the appellant. When the appellant raised his desire to open his evidence, the trial judge, at the Crown’s request, determined that, insofar as the appellant was seeking to open the evidence of Dr Katelaris, his Honour should first determine whether the evidence was admissible. The appellant stated he wished to establish, through Dr Katelaris, that the laws of Queensland in respect of cannabis were oppressive. In light of his Honour’s ruling as to Dr Katelaris’ evidence not being admissible, his Honour correctly directed the appellant that his evidence could not be the subject of an opening. The only witness for the defence was therefore the appellant.
Notwithstanding interrupting the appellant at times when he was straying into submissions, the trial judge did allow the appellant to, in effect, make an opening statement from the witness box, including as to matters of evidence which were ultimately not presented. That included the appellant stating matters such as: “I’ve been charged with growing a dangerous plant. However, to me, medicinal cannabis is anything but dangerous. The evidence for the benefit of medicinal cannabis and its exception[al] safety profile is increasing every year in the dozens of states and countries that have legalised this medicine on compassionate grounds”. The appellant also commented on the position of the jury, which included making statements such as: “In our legal system, which has evolved over many centuries, certain safeguards have been built into the system to prevent abuse of the process. The most important power for these safeguards is the jury. In order to understand the proper functioning of the jury, we need to understand our democracy and the hierarchy of power within it.”
The learned trial judge did not err in not permitting the appellant to make an opening statement or to open his evidence. Further, in the circumstances outlined above, no miscarriage of justice resulted from such an opening not being given.
Should the Appellant have been allowed to inform the jury of their right to return a verdict inconsistent with the evidence in closing?
The appellant complains that he was not permitted, in his closing address, to advise the jury of their power to acquit should they determine that the specific law under which he was charged, as it applied to his circumstances, was oppressive and unjust.
The appellant particularly complains that his Honour would not allow him to use the word “oppressive” when describing specific laws, or to read a quote by Lord Devlin from Trial by Jury. He further complains, as he phrased it in oral submissions, that he should have been permitted to inform the jury that they could reach a verdict that was based on their conscience and against the weight of the evidence, without repercussion.
The appellant’s complaint is misconceived insofar as it focusses on the power of a jury, as compared to the jury’s role and duty in the criminal justice system. The appellant seeks to extend the recognition that a jury may return a perverse verdict to recognition that it is legally permissible for a jury to be informed that it has a right to act according to its conscience and contrary to the law and evidence before it.
“A jury may have no right to acquit in the face of the evidence, but, unlike a judge sitting alone, it has a power to do so, and a power which it is impossible to control on appeal because of traditional limitations on the capacity of the prosecution to appeal from acquittals.” (emphasis added)
This position has long been recognised. For instance, Lord Mansfield stated that:
“It is the duty of the Judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences”.
While it has been recognised that a jury may return a perverse verdict, and indeed may do so on merciful grounds, that acknowledgment does not establish that the jury has a right to do so, nor that it is consistent with the duty cast upon it.
In the common law system, justice requires a fair trial according to law. French CJ in Alqudsi v The Queen stated that “[t]rial by jury is a time-honoured means of fulfilling that purpose.”
Section 50 of the Jury Act 1995 require jurors to be sworn:
“…to give a true verdict, according to the evidence, on the issues to be tried, and not to disclose anything about the jury’s deliberations except as allowed or required by law.”
The oath which the jury takes is consistent with the jury’s critical role in the criminal justice system. As Bell, Kiefel and Keane JJ in Alqudsi v The Queen stated:
“The administration of criminal justice proceeds upon an acceptance that a jury, acting in conformity with the instructions given by the trial judge, will render a true verdict in accordance with the evidence.”
The jury has a duty to reach a verdict according to the evidence and each juror takes an oath to do so. Of course, the jury does not suffer any repercussion under our criminal law system for the verdict it returns which may be regarded as perverse and potentially contrary to its duty, but that is not to the point. The jury must be informed of its duty by the trial judge and directed to act in accordance with its duty. That includes acting in accordance with the directions of law provided by the trial judge. The jury is instructed as to its role and the role of the trial judge at the beginning and end of the trial. Section 51 of the Jury Act requires that the trial judge inform the jury of its duty.
If the appellant had addressed the jury in the manner in which he proposed, he would have been suggesting to the jury that it act contrary to the law, the evidence and, their duty. The trial judge would have then been obliged to correct what the appellant told the jury and inform them that they were obliged to act impartially according to the law and in accordance with the evidence. If a defendant were permitted to address a jury in the manner the appellant proposed, it would potentially undermine our legal system and the democratic system by which parliament is elected to make laws. His Honour did not err in not permitting the appellant to make the statements to the jury to the effect that they could make whatever decision they wanted, even one against the weight of the evidence, without repercussions. His Honour clearly explained to the appellant that he could not tell the jury that they could act contrary to law.
In any event, it should be said the appellant was given considerable latitude by the learned trial judge in his closing address. The trial judge did not interfere as the appellant informed the jury that, in relation to cannabis being used for medicinal purposes, the law comes into conflict with justice. Further, the appellant stated in his closing that:
“The law in its current form has many feelings, [sic] but built into this system is a means of delivering justice in special cases. Central to the delivery of justice is the jury system. You have already been informed of your right to judge the law as well as the accused person charged under the law”
The appellant also informed the jury, without interference from the trial judge, that they had complete power and that if they returned a verdict of not guilty, the decision would be binding and could not be appealed. There was no error in his Honour directing the appellant not to refer to laws being “oppressive” or preventing him from reading a quote by Lord Devlin in Trial by Jury. Even if there had been an error, given the matters which the appellant was permitted to include in his address as to the role and power of the jury, there was no miscarriage of justice.
Was the verdict on Count 1 inconsistent with the remaining Counts? (Ground 3)
The appellant complains that the verdicts of guilty on Count 1 and not guilty on Counts 2 and 3 are inconsistent or an affront to logic and common sense. Although the wording of the ground of appeal asserts the verdict on Count 1 “is unreasonable and cannot be supported having regard to the evidence because it is perverse”, Ground 3 was not advanced or argued as an unreasonable verdict on the basis it could not be supported by the evidence. In fact, the verdict was overwhelmingly supported by the evidence. Ground 3 was advanced and argued on the basis that the verdict on Count 1 was unreasonable, or “perverse” as the appellant described it, because it was inconsistent with the verdicts on Counts 2 and 3.
In the present case, the evidence overwhelmingly pointed one way, namely to the appellant’s guilt in respect of all counts. The police gave evidence of what they had found when they had attended and searched the appellant’s premises, supporting the Crown’s case in respect of each charge, which the appellant did not dispute in his evidence. Indeed, he made admissions in cross-examination admitting the relevant facts in relation to elements of each count on the indictment.
Each of the counts upon the indictment contained separate elements of which the jury had to be satisfied of, beyond reasonable doubt, based on the evidence, such that the counts and the evidence required to prove them, were independent of each other. Accordingly, the verdicts could, in law, stand together. However, the question is whether there is a significant possibility that an innocent person has been convicted. Such a possibility exists if the jury’s verdict cannot stand together such that the differing verdicts demonstrate that the jury could not reasonably have come to the conclusion it did. The courts do not readily interfere with a jury verdict, unless there is no discernible rational basis for the verdicts.
The admissions made by the appellant and the evidence called by the Crown supported verdicts that all counts had been established by the evidence. However, in the present case there is a rational explanation for the verdicts of guilty on count 1 and not guilty on the remaining counts. First, it accords with the jury having followed the trial judge’s instructions to consider each charge separately and to apply the standard of proof, beyond reasonable doubt, to each element of each charge. Secondly, the verdicts are consistent with the jury adopting a sympathetic view towards the appellant. The appellant’s evidence and closing address were pleas to the jury’s humanity given his medical conditions, given that he did not dispute the Crown’s case in any significant way. As the High Court recognised in MacKenzie v The Queen, jurors may take a “‘merciful’ view” of the facts using their sense of justice and fairness, rather than strictly applying the law. That includes deciding justice is served by a conviction on some but not all counts. In this way, the verdicts may have differed rationally, rather than revealing that the jury fell into unidentifiable error.
Given the overwhelming evidence favouring conviction of the appellant on Count 1 and indeed, it could be said, on Counts 2 and 3, I find that the verdicts are reconcilable and explicable in the circumstances of the case. There was overwhelming evidence to support the guilty verdict returned in respect of Count 1. The return of the remaining not guilty verdicts are explained by the fact that the jury acted more with humanity than upon a strict application of the law to the evidence or logic, and with having decided it would be unfair or oppressive to convict on Counts 2 and 3 in light of their decision to convict on Count 1. That inference is compelling in a case where the appellant’s “defence” was to complain of the law’s unfairness and oppression and where the facts in proof of Counts 2 and 3 formed part of the facts in proof of Count 1. Where that appears to be a rational explanation for inconsistent verdicts, as is the case here, the Court will not readily conclude that the jury acted unreasonably or in compromise of its performance of its duty. In the circumstances, I find that the inconsistent verdicts do not demonstrate that the conviction is unreasonable and should be set aside.
Should the defence of emergency have been left to the jury to consider? (Ground 1)
Case presented at trial
At the trial, the appellant contended that he engaged in his offending out of medical necessity and asserted that he was entitled to raise the defence of emergency under s 25 of the Criminal Code. He now contends, in this appeal, that he had an honest and reasonable belief, even if mistaken, as provided under s 24 of the Criminal Code, that there was an emergency. That argument was not raised at first instance.
The learned trial judge ruled that the facts raised by the appellant could not establish the defence of emergency and that he would not direct the jury that the defence of emergency was available.
The appellant’s case was that he has engaged in the offending as a last resort to alleviate the pain he had suffered as a result of a major accident.
He tendered medical evidence to support the fact that he had suffered a number of severe injuries, including severe breaks of both arms, a severely crushed foot, punctured lungs and other injuries. The Crown did not dispute that he suffered the injuries or that the pain was ongoing.
According to the appellant, medicinal cannabis which he had taken in South America had aided his recovery. He stated that he found upon his return to Australia that the medicinal use of cannabis was illegal in Queensland. He therefore resorted to the black market to obtain cannabis from time to time, which he used, together with alcohol and over the counter drugs, to manage his pain. The appellant gave evidence that the cannabis involved in his offending was medicinal cannabis and that he was driven to grow it because he was unable to obtain a licence to use the drug legally. He stated that he considered it was the only treatment that was effective in alleviating his pain and that he felt he had exhausted all options before deciding to grow cannabis. He agreed, however, in cross-examination that he had not seen a psychologist or psychiatrist, taken a surgical option or moved interstate to access cannabis legally.
The appellant argued that there were medical imperatives for him to use cannabis and that it had not been legally available to him to take for his condition at the time of his offending.
Subsequent to his offending, the classes of patients who could be legally prescribed cannabis were expanded on 31 August 2018 to include those suffering from chronic pain unrelated to cancer. It was uncontroversial that the appellant has now been legally prescribed medicinal cannabis since November 2018.
Section 25 of the Criminal Code provides that:
“…a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.”
The learned trial judge accepted that one may read “sudden” and “extraordinary” disjunctively, but noted there was still a temporal element, by reason of the fact that the section requires that there be an emergency. The trial judge further found that the facts were not sufficient to establish an extraordinary emergency.
In considering whether the facts were sufficient to raise the defence, the learned trial judge noted that the appellant’s evidence was that he had, for some five or six years, been in significant pain and had significant health problems and that he did not find that conventional medicine was adequate to deal with his level of pain. His Honour considered the medical reports provided by Dr Alam, tendered by the appellant, which referred to cannabis being the optimum pain control for the appellant. His Honour put to the appellant that the medical evidence did not support that the appellant was getting no pain control. While the evidence acknowledged that medicinal cannabis was a valuable therapeutic tool for the appellant, it was not life-saving nor a case of him reasonably having no other real choice. His Honour found that the evidence did not establish that there was a sudden or extraordinary emergency to which the appellant’s offending conduct was a response.
The appellant contends that the learned trial judge erred by not allowing the defence of emergency under s 25 of the Criminal Code in conjunction with s 24 of the Criminal Code to be left to the jury. While he had not raised s 24 at trial, he claims that his evidence was littered with the fact that he held the mistaken belief that he was in a life and death situation and that there was an emergency. He contends there is no temporal requirement included in the phrase “extraordinary emergency”. In particular, the appellant contends that “sudden” and “extraordinary” should be read disjunctively and that at the trial he relied on the fact he was facing an “extraordinary” emergency, not a “sudden” emergency.
The Crown submits that the trial judge was correct to rule the defence should not be left to the jury because there was no sudden or extraordinary emergency that necessitated the production of cannabis. It contends the word “emergency”, itself, includes an element of immediacy. It contends that is consistent with the ordinary meaning of “emergency”, namely, “a serious, unexpected and often dangerous situation requiring immediate action”. Further, it submits that to interpret the defence in the manner contended for by the appellant would be inconsistent with the legislative scheme which regulated the use of medicinal cannabis. At the time of the appellant’s offending, the legislative scheme permitted the prescription of medicinal cannabis to persons who suffered from a limited category of medical conditions. Those conditions did not include the neuropathic pain suffered by the appellant.
The Crown further submits that the facts did not establish an emergency and the appellant could not have had an honest and reasonable belief that there was an emergency. In particular, the Crown points to the fact that the appellant contends that matters relied on in his outline, which referred to internet research, contributed to his belief that he was in life and death situation in continuing to take over the counter medication was not the subject of evidence. The Crown contends that even if the appellant had held a mistaken belief it would have failed as there was no evidence of any reasonable grounds to establish an imminent or sudden emergency.
An emergency can be actual or the product of an honest and reasonable, but mistaken, belief. As such, the defences available under s 24 and s 25 of the Criminal Code may work in combination.
The defendant to criminal proceedings bears the evidential burden of raising a defence under s 25 of the Criminal Code. The test is whether there is “evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived”. Once raised, the onus then falls on the Crown to negative the defence beyond reasonable doubt.
In R v Gardner, the defendant sought a pre-trial ruling as to whether he could rely on the defence of emergency, claiming that he had grown cannabis to preserve the safety of human life as he wished to establish a fund from the proceeds of sale to campaign against abortion. The defendant contended it was an “extraordinary” emergency.
In R v Gardner, Atkinson J referred to the decision of R v GV, in which this Court found that there were facts establishing a defence of extraordinary and sudden emergency. In that case, the defendant was charged with dangerous driving causing grievous bodily harm, in circumstances where he was being chased by “skinheads” and “he and the passengers in his vehicle had been attacked and threatened”, including while stopped at a red light. The case was described by Atkinson J as “extremely unusual”. Her Honour accepted the submission of the Crown that the cases which followed R v GV in the Court of Appeal “show the limitations on the defence, that it is limited to cases where the defendant is confronted by sudden and extreme circumstances and where the danger is imminent and extreme”. Her Honour stated that that submission was further supported by the ordinary meaning of the words and by the common law. In particular, her Honour referred to the definition of “emergency” appearing in the Oxford English Dictionary, as being “a juncture that arises or turns up, especially a state of things unexpectedly arising and urgently demanding immediate attention”. Her Honour ruled that the defence was not available. She found that the growing of cannabis over a period of four and a half years was not done under circumstances of sudden or extraordinary emergency, stating:
“Criminal activity of such long duration cannot be excused under s 25 which deals with a reaction to imminent danger. Further, there is no evidence which would suggest that an ordinary person possessing ordinary powers of self control could not reasonably be expected to behave in any other way.”
The learned trial judge, in the present case, accepted that the phrase “sudden or extraordinary emergency” in s 25 of the Queensland Criminal Code may be read disjunctively, such that sudden is separate from extraordinary, however, he considered that there must still be an emergency which requires immediate action, applying the principles outlined in R v Gardener.
There is in my view a temporal element imported by the reference to “emergency” in respect of both a “sudden emergency” or “ extraordinary emergency”, which is supported by the context of the section which also requires that “an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise”. The ordinary meaning of “extraordinary” relevantly refers to “Of a kind not usually met with; exceptional; unusual; out of control”. The ordinary meaning of “emergency” relevantly means “a sudden state of danger, conflict, requiring immediate action”. The reference in s 25 to “extraordinary” does support the fact that the emergency may develop over time for example, rising flood waters, unlike a “sudden emergency”. However, there must be an emergency of such a scale that it requires immediate action, commensurate with the consideration of self control. As Atkinson J stated, it is a section which is directed to a person reacting to imminent danger.
The facts in the present case did not objectively raise a possible defence of emergency. Nor did the appellant’s evidence raise the possibility that he held an honest and reasonable, but mistaken, belief that there was an emergency, even though he stated that he had a genuine and sincere belief that producing his own cannabis was the only option available to him. Even if he held an honest but mistaken belief that an emergency existed, such a belief could not, on any view, be said to be held on reasonable grounds in the circumstances.
By April 2018, the appellant had been suffering from the aforementioned medical conditions and pain for a number of years. Those conditions did not arise suddenly in 2018, nor was there a sudden or extraordinary escalation in his condition, such that it was open to a jury to find that there was a sudden and extraordinary emergency. The pain from his conditions was long standing and the evidence did not support the fact that no other treatment was available. The medical evidence tendered by him did not suggest that the use of cannabis was a life-saving treatment or the only option to control his pain, but rather that it was the optimal form of pain control. The lack of an emergency was supported by the medical opinions provided. Further, even if the appellant’s medical conditions and pain could be regarded as an emergency, he had not exhausted all of the alternatives to his offending conduct such that it was open to find a lack of evidence to suggest that an ordinary person possessing ordinary powers of self control could not reasonably behave in any other way. The appellant acknowledged that he had not exhausted all medical options open to him.
Section 25 of the Criminal Code is similar to that of the common law defence of necessity although, amongst other points of distinction, that defence does not have a temporal element. Part of the discussion of Gleeson CJ in R v Rogers is, however, apt in the present case. In particular, his Honour stated:
“The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law.”
His Honour further stated that:
“The relevant concept is of necessity, not expediency, or strong preference. If the prisoner, or the jury, were free to consider and reject possible alternatives on the basis of value judgments different from those made by the law itself, then the rationale of the defence, and the condition of its acceptability as part of a coherent legal system, would be undermined.”
As the appellant acknowledged, in April of 2018, he knew his medical condition was not one for which medicinal cannabis could lawfully be prescribed. On the appellant’s own evidence, he appreciated that he was breaking the law and chose to do so. He stated in cross-examination that he had been watching the unfolding situation concerning the legalisation of medicinal cannabis when he began to grow it, but his condition was not accepted until August 2018 and he knew at the time he was breaking the law. The facts did not establish that the appellant resorted to producing cannabis in response to any emergency, nor that he had reasonable grounds for believing that he would suffer irreparable harm if he continued to take prescribed medication as opposed to his own belief that it was the best treatment for his pain.
In the circumstances of the present case, the evidence did not raise the possibility of a sudden or extraordinary emergency or that there were reasonable grounds to believe that circumstances of an extraordinary emergency existed. While the appellant believed that breaching the law was a path of last resort, he agreed in cross-examination that he had not exhausted all medical or other lawful options including looking at moving interstate where he may have been able to engage in a legal medicinal cannabis program. He also agreed that he had had a period of eight months when he returned to Australia when he did not use cannabis. He agreed in cross-examination that between 2013 and 2018 he had pursued business interests and engaged in living a self-sufficient lifestyle, notwithstanding his medical conditions. His evidence of a belief that he may die if he continued to take opioids was based on his experience with his family and side-effects and notwithstanding that he had engaged in self medicating by mixing opioids and alcohol prior to his production of cannabis for a prolonged period. On no view could that give rise to reasonable grounds for holding a belief that he was in a situation where he faced a sudden or extraordinary emergency if he continued to take lawful pain medication. The medical evidence supported the fact that other pain treatment was available, even if it was not the most “optimal” method of relieving his pain. Further, his production of cannabis was not a reaction to sudden or extraordinary circumstances where the danger was imminent and extreme, but rather, it was based on his own determination that the production of cannabis was the best relief for him. There was no evidence by which it could be reasonably inferred that the appellant held an honest and reasonable belief that he was at risk of irreparable harm if he continued to take lawful medication and did not produce cannabis for himself.
For the defence to apply in circumstances where a statutory regime permitted the prescription of medicinal cannabis for certain conditions, which did not include the appellant’s condition, would be inconsistent with that regime, which limited the conditions for which it could be lawfully used. That does not exclude the availability of the defence but militates against it.
The learned trial judge did not err in ruling that the defence was not open to the jury on the evidence either on the basis of s 25 of the Criminal Code alone or in combination with s 24 of the Criminal Code and did not raise a proper issue to be left to the jury.
The appellant raised as a ground of appeal that he had not been permitted to call a Dr Katelaris, although he did not identify any specific error in this regard. In any event, there was no error in his Honour’s ruling that Dr Katelaris could not be called. The evidence the appellant proposed to call from Dr Katelaris was said to include his view that cannabis was not a dangerous drug and that laws characterising it as such were oppressive, as well as his personal experience of being prosecuted for similar offending in New South Wales. Those matters were not properly the subject of admissible opinion evidence. His Honour correctly ruled that the evidence of Dr Katelaris was inadmissible.
For the sake of completeness, I note that the Crown raised the fact the jury was reduced to 11 in this case following the discharge of a juror. There was no error in the exercise of the Court’s discretion in allowing this matter to be decided by a jury of 11.
None of the grounds of appeal have been made out by the appellant. It should be said that the trial judge in the present case went to enormous lengths to ensure the appellant had a fair trial and to assist him with the trial process.
In my view, the appropriate order is that the appeal be dismissed.
 AB II 130-131.
AB II 186/35-42.
AB II 187/24-32.
(2014) 244 A Crim R 443.
With whom Fraser JA and Thomas J agreed.
R v Oulds (2014) 244 A Crim R 443 at .
R v Oulds (2014) 244 A Crim R 443 at .
R v Oulds (2014) 244 A Crim R 443 at .
ABII 133 /23-41.
AB II 55/16- 56/15.
AB II 59.
AB II 60/5-15.
AB II 61/32- 46 – AB63/1-25; AB65/20-30.
AB II 130/4-8.
AB II 133/19-24.
Lord Devlin, Trial by Jury (rev ed) (1966).
(2008) 232 CLR 438.
Which was the quote particularly focussed upon by the appellant.
AK v Western Australia (2008) 232 CLR 438 at  per Heydon J, referring to R v Shipley (1784) 4 Doug KB 73 at 170 per Lord Mansfield CJ.
R v LK (2010) 241 CLR 177 at  per French CJ.
(2016) 258 CLR 203 at .
See discussion in RPS v The Queen (2000) 199 CLR 620 at  in terms of trial judges ensuring a fair trial in giving juries proper instructions.
AB I 14/9-11.
AB I 15/24-27.
AB I 15/31-36.
R v P  QCA 411 at .
AB I 23 – AB I 25.
(1996) 190 CLR 348 at 367.
R v P  QCA 411 at .
Public Health (Medicinal Cannabis) and Other Legislation Amendment Regulation 2018 (Qld).
AB II 134/41-46.
AB II 150/25-41.
Extensive argument occurred AB II 144/25 - 155/44.
By reference to Dr Tong T155/40-45.
AB II 153 - AB II 155 where his Honour canvassed the medical evidence.
Outline of Submissions on Behalf of the Respondent at [4.3], referring to Oxford Dictionary of English (3rd ed, 2015).
Appellant’s outline at 7.
See, for example: s 10.3(1) Criminal Code Act 1995 (Cth); s 41(1) Criminal Code 2002 (ACT), s 438BC(1) Criminal Code Act 1983 (NT); s 25 Criminal Code Act 1913 (WA).
Which applies in New South Wales and South Australia.
R v GV  QCA 394 at , referring to R v Webb  2 Qd R 446 at 449.
Braysich v The Queen (2011) 243 CLR 434 at ; Petersen v Western Australia (2016) 50 WAR 45 at  per McLure P.
 QSC 73.
 QCA 394.
R v Gardner  QSC 73 at 8.
R v Gardner  QSC 73 at 8.
R v Gardner  QSC 73 at 10.
R v Gardner  QSC 73 at 10.
R v Gardner  QSC 73 at 15.
Oxford English Dictionary Online (2nd ed) 2020.
Oxford English Dictionary Online (2nd ed) 2020.
R v Webb  2 Qd R 446 at 450.
By applying both s 24 and s 25 of the Criminal Code: R v Webb  2 Qd R 446 at 449.
AB II 149/14-41.
Although urgency and immediacy are relevant factual considerations: R v Rogers (1996) 86 A Crim R 542 at 546 per Gleeson CJ.
(1996) 86 A Crim R 542.
- Published Case Name:
R v Dimitropoulos
- Shortened Case Name:
R v Dimitropoulos
 QCA 75
Fraser JA , Henry J, Brown J
17 Apr 2020
- White Star Case:
No Litigation History