Trajkoski v Director of Public Prosecutions (WA)

(2010) 41 WAR 105; [2010] WASCA 119

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Drug offences
3. › Drug trafficker declaration
4. › Misuse of Drugs Act 1981 (WA), s 32A
5. › Whether conviction for cultivation of cannabis with intent to sell or supply established number of plants for purposes of declaration
6. › Whether trial judge bound to accept unchallenged trial evidence as to number of plants
7. › Whether appellant entitled to call evidence and cross-examine at hearing of application
1. Criminal Law
2. › Drug offences
3. › Drug trafficker declaration
4. › Procedural fairness
5. › Whether trial judge denied appellant opportunity to be heard on application
6. › Whether accused required to adduce evidence relevant to s 32A application during criminal trial
1. Appeal
2. › Jurisdiction
3. › Drug trafficker declaration
4. › Whether declaration is 'order made as a result of conviction' within Criminal Appeals Act 2004 (WA), s 23(1)(b)
5. › Whether appeal lies under District Court Act 1969 (WA), s 79
6. › Overlapping legislative scheme
7. › Criminal Appeals Act 2004 (WA), s 23, s 31
8. › District Court Act 1969 (WA), s 79
1. Appeal
2. › Extension of time
3. › Principles governing extension
4. › Interests of justice
5. › Merits of proposed appeal
6. › Prejudice

Quick Take

A drug trafficker declaration under s 32A of the Misuse of Drugs Act 1981 (WA) is not an 'order made as a result of the conviction' within s 23(1)(b) of the Criminal Appeals Act 2004 (WA); appeals against such declarations lie under s 79 of the District Court Act 1969 (WA). The number of prohibited plants for the purposes of s 32A(1)(b)(ii) must be independently proved at the hearing of the s 32A application and is not established by the conviction alone. An accused is not required to challenge prosecution evidence as to the number of plants during the criminal trial where that number is not an element of the offence charged, and the trial judge must permit the accused to call evidence and cross-examine on the number of plants at the s 32A hearing.