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[2011] VSC 575
General information, not legal advice.
Supreme Court of Victoria
2011-11-14
KYROU J
Original judgment source is linked above.
CONFISCATION - Exclusion application - Trafficking in a drug of dependence - Cultivating a narcotic plant - Residential property jointly owned by parents of the offender - Father suffering from dementia - Whether mother turned a blind eye to the commission of the offence - Residential property and share portfolio owned by the offender - Whether those assets were lawfully acquired - Confiscation Act 1997 (Vic) ss 3, 20, 22(a), (b), 35, 132.
1 This proceeding involves two applications under s 20 of the Confiscation Act 1997 ('Act') for exclusion orders in relation to two residential properties and a share portfolio.
2 The first application is made by Dominic Grillo ('Dominic') and relates to the property at 31 Bowen Street, Moonee Ponds ('Bowen Street Property') and the shares listed at [25] and [27] below (collectively[1] 'Shares').1 The second application is made by Dominic's parents, Natale Grillo ('Natale') and Antoinetta Grillo ('Antoinetta') and relates to the family home at 10 Johnson Street, Sunshine North ('Johnson Street Property'). I will refer to Natale and Antoinetta collectively as 'the parents'.
3 The applications arise out of the making of a restraining order on 29 November 2007 under s 18 of the Act in relation to the above assets (collectively, 'Restrained Property'), following Dominic's guilty plea and conviction on 3 December 2007 for three offences. The offences were:
(a) trafficking in a drug of dependence, namely, Cannabis L, in a commercial quantity between 8 November 2006 and 8 April 2007. The offence was constituted by the cultivation of cannabis plants at the Johnson Street Property for the purpose of sale;
(b) cultivating a narcotic plant, namely, Cannabis L, between 8 November 2006 and 8 April 2007 at a property owned by Dominic at 19 Winged Foot Drive, Sunshine North ('Winged Foot Drive Property'); and
(c) theft of electricity between 18 February 2007 and 8 April 2007 at the Winged Foot Drive Property.
4 The Restrained Property is liable to be automatically forfeited under s 35 of the Act unless an exclusion order is made under s 22 of the Act.
5 Under s 22(a) of the Act, in order for Dominic's application to succeed, he must establish that the Bowen Street Property and the Shares were lawfully acquired.[2] For the reasons set out below, I am satisfied that the Bowen Street Property was lawfully acquired but I am not satisfied that the Shares were lawfully acquired. Accordingly, Dominic's application will be granted in relation to the Bowen Street Property and will be dismissed in relation to the Shares.
6 Under s 22(b) of the Act, in order for the parents' application to succeed, they must establish that they were not, in any way, involved in the commission of the trafficking offence at the Johnson Street Property. For the reasons set out below, I am satisfied that Natale was not involved in the trafficking offence but I am not satisfied that Antoinetta was not involved. Accordingly, Natale's application will be granted and Antoinetta's application will be dismissed.
7 Initially, Dominic's application included the Johnson Street Property and the Winged Foot Drive Property. At trial, Mr Hallowes, who appeared for Dominic, properly conceded that the application could not succeed in relation to the Johnson Street Property because Dominic did not have an interest in that property. Mr Hallowes also properly conceded that, as Dominic cultivated cannabis at the Winged Foot Drive Property, he was not able to discharge the onus of establishing that it was not 'derived property'.[3] Accordingly, there is no basis for making an exclusion order in favour of Dominic in relation to the Johnson Street Property or the Winged Foot Drive Property.
The Grillo family and the Johnson Street family home
9 Natale was born in Italy on 31 March 1928. He is currently 83 years of age and suffers from dementia.
10 Antoinetta was born in Italy on 7 June 1935. She is currently 76 years of age and has limited English language skills.
11 Natale and Antoinetta migrated to Australia in 1959 and married in 1964. In August 1964, they purchased the Johnson Street Property as joint proprietors and have lived there ever since.
12 Natale and Antoinetta have four children, Antonio Grillo ('Antonio') aged 45 years, Bruno Grillo ('Bruno') aged 44 years, Maria Grillo ('Maria') aged 42 years and Dominic aged 39 years.
13 Dominic has resided at the Johnson Street Property all his life. The other children moved out of the family home some time prior to November 2006.
14 Dominic is of below-average intelligence. He left school mid-way through Year 10. For approximately 20 years prior to 2007, he smoked cannabis 'almost daily'.
15 In 1988, at approximately 16 years of age, Dominic commenced work at a carpet factory and was paid an annual salary of between $5,000 and $10,000.
16 In 1989, Dominic commenced working as a painter for a business known as 'Colour Tech Painting' in which his brother, Bruno, had an interest. He has continued working as a painter either as an employee or as a sub-contractor of Colour Tech Painting. Due to seasonal fluctuations in the work available, Dominic worked between 60 and 90 per cent of the year. During some years, he received unemployment benefits.
17 In the 1990s, Colour Tech Painting paid Dominic a net salary of approximately $450 per week in cash. In approximately 1999 or 2000, Dominic's net salary was around $580 per week. His net weekly salary has increased steadily since that time.
18 Between 1988 and 1997, Dominic paid his salary to his mother so that she could save it on his behalf. She gave him some money for his personal expenses and deposited the balance of his salary into a bank account with the State Bank. In 1997, Dominic assumed direct responsibility for managing his salary, savings and bank account. Neither the bank account book nor any bank records relating to Dominic's savings prior to 4 August 2003 have been retained.
19 Table 1, below, sets out the income earned by Dominic in the period from 1 July 1997 until 30 June 2007. The table has been prepared on the basis of information set out in a letter dated 30 March 2009 from the Australian Taxation Office ('ATO') to Dominic, PAYG Payment Summary forms from Colour Tech Painting and ATO notices of assessment.
20 On 15 October 2000, Dominic purchased the Winged Foot Drive Property - which was then a vacant block - for the sum of $141,000. A deposit of $14,100 was paid on 15 October 2000 and the balance of $126,900 was paid at settlement on 8 January 2001. Dominic gave evidence that he funded the entire purchase price from his savings.
21 On 23 November 2002, Dominic purchased the Bowen Street Property for the sum of $335,000. He paid a deposit of $33,500 on that day and the balance at settlement on 22 January 2003. He contributed a total of $65,000 towards the purchase price and borrowed the balance of $270,000 from Members Equity. From the time that it was acquired, the Bowen Street Property has been leased to tenants through a real estate agent. The rental income contributed to the loan repayments.
22 In approximately 1999, Dominic opened a Cash Management Call Account with the Commonwealth Bank ('CBA Account'). However, he only tendered bank statements covering the period from January 2004 until October 2007. Dominic made regular deposits in the CBA Account. Rental income was also credited to the CBA Account. Loan repayments were debited to the CBA Account. The transactions which stand out are a deposit of $49,131.15 on 17 September 2004, a transfer of $50,000 to Commonwealth Securities on 27 September 2004, a deposit of $44,623.63 on 22 October 2004 and a withdrawal of $49,000 on 16 November 2004. The balance in the CBA Account as at 30 April 2007 was $3,366.89.
23 On 4 August 2003, Dominic opened a National Australia Bank FlexiDirect Account ('NAB Account'). Between that date and 30 April 2007, he made regular cash and cheque deposits into the NAB Account and share dividends were also credited to that account. Over that period, a total of $25,139.99 was credited to the NAB Account. Of this total, $16,000 was placed in term deposits and separate amounts of $100, $200 and $7,000 were withdrawn, leaving a balance of $1,839.99 as at 30 April 2007.
24 On 20 April 2004, the Members Equity loan totalled $246,204. On that day, Dominic refinanced the Members Equity loan through two lines of credit totalling $307,600 that he had established with the Adelaide Bank on 27 January 2004. The balance of the funds ($61,396) was for the purpose of constructing a house on the Winged Foot Drive Property. On 30 September 2004, Dominic borrowed an additional amount of $240,000 to purchase a unit in Queensland which was sold prior to 2007.
25 In November 2004, Dominic purchased the following shares:
26 On 13 October 2006, Dominic borrowed a further amount of $30,400 from the Adelaide Bank to assist in the funding of the construction of a house on the Winged Foot Drive Property.
27 Dominic purchased 1,000 Telstra shares in the 'Telstra 2 opening'. He did not provide any details of the purchase price or the date of the purchase. On 1 October 2006, Dominic purchased 5,000 shares in Pelorus but was not able to give any details of the purchase price. In September 2007, he purchased 2,500 shares in Telstra but was not able to provide any details of the purchase price. Earlier, in March 2007, Dominic purchased the following shares:
Dominic's convictions and police searches at the Johnson Street Property
28 Prior to 3 December 2007, Dominic's criminal history comprised the following:
(a) On 2 November 1989, Dominic was found guilty of theft and burglary.
(b) On 31 August 1990, Dominic was convicted of the offences of possessing an article for criminal damage and arson.
(c) On 30 April 1992, Dominic was convicted of the offences of cultivating Cannabis L at the Johnson Street Property and using Cannabis L.
(d) On 6 May 1993, Dominic was convicted of the offence of using Cannabis L.
(e) On 6 March 1995, Dominic was convicted of the offences of trafficking in Cannabis L, handling stolen goods, possession of a prescribed weapon and possession of an unlicensed firearm.
29 On 2 March 1992, 15 March 1994 and 12 May 1994, the police executed search warrants at the Johnson Street Property. It is not clear who was at home on 2 March 1992. Natale, Antoinetta, Maria and Dominic were home on 15 March 1994 and Dominic and Natale were home on 12 May 1994. On 2 March 1992, the police seized cannabis plants from the backyard. On 15 March 1994, the police seized dried cannabis and scales.
30 At 12.10am on 8 April 2007, the police executed a search warrant at the Johnson Street Property. Antoinetta was home at that time. The police located 37 mature cannabis plants, approximately five to six feet tall, growing in the backyard. The police also located five cannabis plants drying in a rear shed. The 37 plants weighed 129.55 kilograms and the five dry plants weighed 4.36 kilograms. Dominic attended the house a short time later and was arrested. He confessed to cultivating the cannabis for the purpose of sale.
31 Dominic also confessed to growing cannabis at the Winged Foot Drive Property. He accompanied the police to that property where seven cannabis plants, approximately three feet tall, were found growing in the backyard. They weighed 7.55 kilograms. The police also located a hydroponic set up in the garage that was powered using an electrical by-pass. Twelve cannabis plant were growing hydroponically. They weighed 1.14 kilograms.
32 In the interview that was conducted on 8 April 2007 at the Sunshine Police Station, Dominic said that he committed the offences because he was in debt. He was charged with certain offences which included the offences of which he was convicted on 3 December 2007. He was sentenced to a total effective sentence of three years' imprisonment with a non-parole period of 18 months.
33 Save for the evidence of Bruno, the evidence in the proceeding was given by way of affidavit.
34 Dominic's application was supported by an affidavit sworn by him and the oral evidence of Bruno. Both Dominic and Bruno were cross-examined.
35 The parents' application was supported by three affidavits sworn by Antoinetta, an affidavit by the parents' solicitor, Adrian Lewin, and a report of a clinical neuro psychologist, Phillip Dingjan. All deponents were cross-examined. Antoinetta gave oral evidence through an interpreter.
36 The Director of Public Prosecutions ('DPP') relied upon the affidavits of Yvette Schkurat, Jennifer Lamond and Damian Martin in opposing both applications. The deponents were not required to attend court for cross-examination.
37 Set out below are my conclusions on the credit of the witnesses who were cross-examined. The reasons for these conclusions appear below in the context of my analysis of contentious factual issues.
38 Dominic's intelligence has always been below average and his cognitive capacity has deteriorated due to the effects of prolonged cannabis use. As a result, Dominic gave evidence in a vague and sometimes unintelligible manner that rendered parts of his evidence unreliable. In addition, Dominic was evasive on some issues in order to advance his application and to assist his parents' application. That is not to say, however, that I have rejected all of Dominic's evidence. On the contrary, much of his evidence was truthful and inherently plausible in the context of his circumstances. Where his evidence was deficient, this was due more to his cognitive incapacity than to dishonesty. Parts of Dominic's evidence were also supported by contemporaneous records. I gained the strong impression that the documentary evidence in support of Dominic's case would have been more comprehensive and cogent if he had had the capacity to organise his affairs and documents better and give more accurate instructions to his lawyers. As a result, I have not inferred that the records that he did not produce would not have assisted his case.
39 Antoinetta was an unreliable witness. After making allowance for her age, limited education and the fact that she gave evidence through an interpreter, I have formed the view that Antoinetta feigned ignorance of critical matters and deliberately lied in order to advance the parents' application and to assist Dominic's application. Some of her evidence was simply fanciful. I am not prepared to accept Antoinetta's evidence on critical issues unless it is inherently plausible or supported by objective evidence.
40 Bruno gave evidence in a guarded and reluctant manner on issues that he perceived might be damaging to Dominic's application or his parents' application. However, he gave reliable evidence on other issues. Accordingly, I have accepted some parts of Bruno's evidence and have rejected other parts.
41 Mr Dingjan was an honest witness whose evidence I have accepted.
42 Mr Lewin was an honest witness. His evidence was limited to clarifying a discrepancy in Antoinetta's affidavits.
43 The provisions of the Act that are relevant to this proceeding - as in force in 2007 - are ss 20, 22, 35, 132, sch 2 and a number of definitions in s 3(1). I have already referred to s 35 at [4] above.
44 Section 3(1) of the Act contains the following relevant definitions:
derived property means property -
(a) used in, or in connection with, any unlawful activity by -
(i) the defendant; or
(ii) the person who is suspected of having committed a Schedule 2 offence; or
(iii) the applicant for an exclusion order; or
(b) derived or realised, or substantially derived or realised, directly or indirectly, from any unlawful activity by -
(i) the defendant; or
(ii) the person who is suspected of having committed a Schedule 2 offence; or
(iii) the applicant for an exclusion order; or
(c) derived or realised, or substantially derived or realised, directly or indirectly, from property of a kind referred to in paragraph (a) or (b);
property means real or personal property of every description ... and includes any interest in any such real or personal property;
Schedule 2 offence means an offence referred to in Schedule 2...
tainted property, in relation to an offence, means property that -
(a) was used, or was intended by the defendant to be used in, or in connection with, the commission of the offence; or
(b) was derived or realised, or substantially derived or realised, directly or indirectly, from property referred to in paragraph (a); or
(c) was derived or realised, or substantially derived or realised, directly or indirectly, by any person from the commission of the offence; ...
45 Section 20 of the Act provides that if a court makes a restraining order against property under s 18, 'any person claiming an interest in the property (including the defendant) may apply to that court for an order under section 21, 22 or 24'.
On an application made under section 20, where the restraining order has been made in relation to a Schedule 2 offence for the purposes of automatic forfeiture -
(a) the court may make an order excluding the applicant's interest in the property from the operation of the restraining order if the court is satisfied that -
(i) the property in which the applicant claims an interest was lawfully acquired by the applicant; and
(ii) the property is not tainted property; and
(iia) the property is not derived property; and
(iii) the property will not be required to satisfy any pecuniary penalty order or an order for restitution or compensation under the Sentencing Act 1991; or
(b) where the application is made by a person other than the defendant, the court may make an order excluding the applicant's interest in the property from the operation of the restraining order -
(i) if the court is not satisfied that the property in which the person claims an interest is not tainted property or derived property but is satisfied that -
(A) the applicant was not, in any way, involved in the commission of the Schedule 2 offence...[4]
48 Pursuant to pt 2 of sch 11 of the Drugs, Poisons and Controlled Substances Act 1981, a commercial quantity of Cannabis L consists of either 100 plants or plants weighing (in their wet state excluding the roots) at least 25 kilograms.
49 Section 132 of the Act provides that any question of fact to be decided by a court on an application under the Act is to be decided on the balance of probabilities.
50 It was common ground that Dominic's application is governed by s 22(a) of the Act. As the DPP has conceded that s 22(a)(iii) does not apply, in order for Dominic's application to succeed, he must satisfy the Court, on the balance of probabilities, of the matters set out in s 22(a)(i), (ii) and (iia) of the Act. Those requirements are interrelated because the definitions of 'tainted property' and 'derived property' include the deriving of the property from any unlawful activity or from the commission of an offence. It follows that, in relation to both the Bowen Street Property and the Shares, Dominic must satisfy the Court, on the balance of probabilities, that he purchased these assets with lawfully acquired funds.
Dominic's application relating to the Bowen Street Property
51 In paragraph 19 of his affidavit, Dominic stated:
I have been employed for most of my mature life and have accumulated significant savings that were put towards the purchase of the Winged Foot Drive property and the Bowen Street property and to the purchase of various shareholdings. The Winged Foot Drive property, Bowen Street Property and shareholdings that I currently own were not in any way purchased or sustained [using] funds derived from illegal means and in connection with the offences I was convicted of on or about 3 October 2007.
52 In cross-examination, Dominic said that, from the time that he commenced employment, his parents emphasised that he should save in order to buy his own home. He said that, as he lived with his parents and did not pay any board, he saved his income and was thrifty . He was, however, very vague about his income and his savings.
53 As discussed at [20] above, on 15 October 2000, Dominic purchased the Winged Foot Drive Property for $141,000. Settlement took place on 8 January 2001. Dominic said that he used most of his savings to purchase the Winged Foot Drive Property. He said that he had some savings left over but could not recall the amount. He described the amount of savings left over variously as 'emergency' money, 'rainy day' money, 'a little bit' and '10 or something'. I am satisfied that Dominic retained a modest amount of savings after the purchase of the Winged Foot Drive Property. In so far as the expression '10 or something' meant $10,000, I do not accept that Dominic retained $10,000 in his account. From a total of $141,000, an amount of $5,000 can properly be described as 'emergency' money for a single young man living at home with his parents. I find that this is the amount of savings that remained.
54 The Winged Foot Drive Property was purchased as vacant land. Dominic commenced constructing a house on the land after he established two loans of credit with Adelaide Bank on 27 January 2004.[5] Accordingly, Dominic would have had minimal outlays on the Winged Foot Drive Property prior to January 2004.
55 In cross-examination, Dominic insisted that he contributed $65,000 towards the purchase of the Bowen Street Property from his savings and funded the balance of the purchase price of $335,000 from the loan of $270,000 from Members Equity.[6] Based on Table 1 at [19] above, I have estimated that, in the period between the settlement of the Winged Foot Drive Property on 8 January 2001 and the settlement of the Bowen Street Property on 22 January 2003, Dominic earned net income of $58,106, calculated as follows:
(a) $5,659, representing 48 per cent of the total net income of $11,789 earned in the 2001 financial year;
(b) $34,135, representing the total net income earned in the 2002 financial year; and
(c) $18,312, representing 56 per cent of the total net income of $32,700 earned in the 2003 financial year.
56 Table 1 indicates that, for the 1999 financial year, Dominic received a tax refund of $2,912 on net income of $14,286 and that for the 2000 financial year, he received a tax refund of $3,799 on net income of $17,815. These facts provide a basis for an inference, on the balance of probabilities, that for the 2001 and 2002 financial years, Dominic received tax refunds totalling approximately $5,000. When this amount is added to the amount of $5,000 referred to at [53] above, and to the amount of $58,106 referred to at [55] above, Dominic's total income and savings for the period from 8 January 2001 until 22 January 2003 becomes $68,106. In addition, Dominic would have earned some interest on his savings during that period. In the absence of any evidence of the amount of such interest, I will simply round up the amount of $68,106 to $71,000.
57 The question of whether income of $71,000 was sufficient to fund Dominic's contribution of $65,000 towards the purchase of the Bowen Street Property depends on whether Dominic's personal expenses in the period from 8 January 2001 until 22 January 2003 exceeded the difference between $71,000 and $65,000, namely $6,000. As Dominic resided with his parents and did not pay any board, his personal expenses would have comprised mainly clothing, entertainment and the outgoings on the Winged Foot Drive Property. On the basis of Dominic's evidence that he was 'pretty thrifty with money', a 'hard saver' and 'never went out much', I find that his personal expenses did not exceed $6,000 in the period from 8 January 2001 until 22 January 2003.
58 In arriving at the above conclusion, I have not overlooked the fact that Dominic admitted to being a chronic cannabis user. However, there was no evidence about how much cannabis Dominic used 'almost daily' and what, if anything, his cannabis habit cost him. In particular, there was no evidence that Dominic purchased cannabis from a third party supplier in the period from 8 January 2001 until 22 January 2003. To the extent that there was evidence about the sources of the cannabis that Dominic used, it tended to suggest that, while he sometimes purchased cannabis, he also grew his own and supplied the drug to his friends.
59 It follows from the above that I am satisfied that Dominic used lawfully acquired funds to purchase the Bowen Street Property.
60 Dominic gave evidence that he met the mortgage payments for the Bowen Street Property exclusively from his salary and rental income. As the documentary evidence of Dominic's salary and rental receipts indicates that the combined income from these sources was sufficient to meet the mortgage payments in the period from January 2003 until April 2007, and there was no evidence of any revenue from the sale of cannabis, I accept Dominic's evidence.
61 For the reasons set out above, an exclusion order will be made in relation to the Bowen Street Property.
62 The only statement that Dominic made in his affidavit about the source of funds for the purchase of the Shares was the bald assertion set out at [51] above that the Shares were purchased from his savings and were not purchased using funds derived from illegal means or in connection with the offences set out at [3] above.
63 In cross-examination, Dominic could recall only a few of the companies in which he held shares. He was not able to provide any details of when the Shares were purchased or how the purchases were funded, beyond stating that the shares were purchased using savings or funds from a Commonwealth Securities margin lending account. However, no documentation relating to a margin lending account was tendered.
64 As appears from [25] and [27] above, the months in which the Shares were purchased were November 2004, October 2006, March 2007 and September 2007. There are no entries for those months in either the CBA Account statements or the NAB Account statements that suggest that the Shares were purchased from savings[7]held in those accounts.7
65 It follows that I am not satisfied on the balance of probabilities that Dominic used his savings, loan finance or other lawful sources of funds to purchase the Shares. Accordingly, Dominic's application in relation to the Shares will be dismissed.
66 It was common ground that, as Dominic committed the trafficking offence by cultivating cannabis at the Johnson Street Property for the purpose of sale, the Johnson Street Property was 'tainted property'. Accordingly, the parents' application is governed by s 22(b)(i) of the Act. It was common ground that the parents' application must succeed if they satisfied the Court, on the balance of probabilities, that they were not, in any way, involved in the commission of Dominic's trafficking offence.[8]
67 Section 22(b)(i)(A) of the Act was considered by the Court of Appeal in Le v Director of Public Prosecutions (Vic).[9] That case involved an application for an exclusion order by the wife of a person who had been convicted of trafficking in a commercial quantity of cannabis and theft of electricity. The cannabis plants were cultivated hydroponically in two bedrooms and in the garage of the family home that was jointly owned by the wife and the offender. The wife gave evidence that she did not know anything about the cannabis cultivation.
68 Nettle JA, with whom Maxwell P and Eames JA agreed, affirmed the trial judge's decision to dismiss the wife's application for an exclusion order. Nettle JA made the following observations:
given that an offender is only liable to forfeiture upon conviction, which necessarily presupposes knowledge of all of the elements of the offence, it is hardly likely that Parliament intended to render others liable to forfeiture for an involvement falling short of participation unless they too had knowledge of the elements of the offence ...
...
In the result, I accept the applicant's contention that, in a case like the present, an applicant could not be said to have been involved in an offence of trafficking in a commercial quantity of cannabis if he or she did not know or believe that the offender was cultivating the cannabis for sale or did not know or believe that there was a real or significant chance that the quantity of cannabis was not less than a commercial quantity.
...
That said, however, it is necessary to bear two things steadily in mind. First, for the purposes of the law relating to involvement in a criminal offence, knowledge includes wilful blindness and 'wilful blindness' includes the actions of a person who deliberately refrains from making inquiries because he or she prefers not to have the result, or who otherwise wilfully shuts his or her eyes for fear that they may learn the truth. The point is made in Giorgianni v The Queen and reiterated in Bahri Kural v The Queen and was restated in Pereira v Director of Public Prosecutions (Cth):
... a combination of suspicious circumstances and failure to make inquiry may sustain an inference of knowledge of the actual or likely existence of the relevant matter. In a case where a jury is invited to draw such an inference, a failure to make inquiry may sometimes, as a matter of lawyer's shorthand be referred to as wilful blindness ...
Secondly, in an application under s 22(a)(i)(B) the onus is on the applicant to satisfy the court on the balance of probabilities that the applicant was not involved in any way in the commission of the offence. The point is demonstrated by the decision of Brownie AJ in Edy that, because the weight of the evidence was that the applicant knew that the defendant trafficked in ecstasy, and from time to time the applicant held the proceeds of the trafficking, and because her denials of knowledge were not to be believed, his Honour could not be satisfied that she was not involved in the possession by the defendant as part of his stock in trade as a trafficker of the 27 tablets the subject of the offence.
In this case the applicant put her case below on the twin alternative bases that she did not know anything about the cannabis or, if she were not believed about that, that she did not know the quantity of the cannabis and she did not know that the defendant was growing it for sale under the contract. Bearing in mind that knowledge for these purposes includes wilful blindness and that the applicant bore the burden of persuading the judge that she lacked knowledge, it followed that in order for the applicant to succeed in the way in which she put her case below she had to prove on the balance of probabilities either:
(a) that she did not know of and was not wilfully blind to the cultivation of the cannabis; or
(b) that she did not know of and was not wilfully blind as to there being a significant or real chance that the cannabis was a commercial quantity; or
(c) that she did not know of and was not wilfully blind as to there being a significant or real chance that the cannabis was being cultivated for sale.[10]
69 In accordance with Le, the parents' application will succeed if they establish, on the balance of probabilities, that in the period from 8 November 2006 until 8 April 2007:
(a) they did not know of, and were not wilfully blind:
(i) to the cultivation of the cannabis at the Johnson Street Property; or
(ii) as to there being a significant or real chance that the cannabis was a commercial quantity; or
(iii) as to there being a significant or real chance that the cannabis was being cultivated for sale; or
(b) if no part of (a) applies, they were nevertheless not involved in the commission of Dominic's trafficking offence.
The parents will not satisfy (b) if they fail to establish that they did not solicit, condone, acquiesce in, facilitate or permit the commission of the offence.
70 In her affidavit of 12 February 2008, Antoinetta stated:
15. I am aware that Dominic has been convicted and sentenced for cultivating cannabis at 10 Johnson Street, Sunshine North.
16. Neither I nor my husband had any involvement in Dominic's offences...
18. Neither I nor my husband condoned, allowed or approved of the cannabis cultivation activities engaged in [by] Dominic. At no stage did he seek permission or assistance with this activity from either of his parents.
71 In her affidavit of 7 July 2009, Antoinetta stated:
4. At no time was I ever aware or suspicious that my son, Dominic Grillo, was cultivating cannabis on my property ... I never had any discussions with my husband at the relevant times which indicated that he was so aware or suspicious either.
5. I have never had any involvement with illicit activities, including cultivating or using marijuana, and prior to the police arriving at our home on 8 April 2007, I did not know that my son was committing these crimes.
6. I did not know or believe that the plants growing in my backyard were marijuana plants. I recall on one occasion, though I cannot recall exactly when this happened, I asked Dominic Grillo what he was planting in the backyard and all he told me were words to the effect of 'nothing special ma, I'm just doing some gardening'.
7. I had no reason to be suspicious of my son. Dominic also lives with us and helps with many things around the house, so I did not think it was strange that he would take care of the garden. As I had no idea what a marijuana plant looked like, I had no reason to believe that my son was doing anything other than ordinary gardening ... I was not involved in any way in the commission of these offences.
72 In her affidavit of 13 August 2010, Antoinetta stated:
4. I do recall that on one occasion approximately 15-20 years ago, though I cannot be any more precise about the time, the police came to our house to speak with Dominic. I do not recall how long they stayed for or whether I spoke with them. I asked Dominic why the police had come to our house and he told me words to the effect of 'not to worry about it ma, this is my own business'.
5. I had never seen Dominic smoke marijuana before this date nor since and had no reason to believe that he was involved in any criminal activities.
6. I did not state this in my previous affidavit as I simply did not recall this incident when making my affidavit dated 7 July 2009. As mentioned in paragraph 4 above, this incident occurred over 15 years ago and I had forgotten about it. Having thought about the matter further I was now able to recall the incident and wished to clarify what was said in my previous affidavit.
73 Antoinetta was cross-examined at length with a view to establishing that, in the period from 8 November 2006 until 8 April 2007, she was well aware that Dominic was cultivating cannabis plants in the Johnson Street Property, that the purpose of the cultivation was sale and that in April 2007, the plants weighed more than 25 kilograms. Antoinetta vigorously denied each of these propositions.
74 In the light of Dominic's criminal history,[11] the police operations at the Johnson Street Property prior to 2006[12] and the photographs of the cannabis plants that were seized at that property on 8 April 2007,[13] Antoinetta's evidence is implausible and must be rejected. What follows is a detailed analysis of Antoinetta's evidence in a chronological context.
Dominic's 1992 conviction for cultivating cannabis at the Johnson Street Property
75 The evidence of Antoinetta, Dominic and Bruno suggests that the Grillo family is a loving and close-knit family. This is confirmed by the transcript of the plea on 13 December 2007 which indicates that Antoinetta, Bruno and other members of Dominic's family were present in court to support him. Accordingly, it can be inferred that:
(a) Antoinetta was at all times concerned for the welfare of Dominic and took an interest in his activities;
(b) Antoinetta knew about Dominic's dealings with the police and the criminal justice system and, when she was able to do so, she attended his court hearings;
(c) Antoinetta was aware of the finding of guilt against Dominic on the theft and burglary charges on 2 November 1989 and his convictions for possessing an article for criminal damage and arson on 31 August 1990;[14]
(d) Antoinetta knew that, on 30 April 1992, Dominic was convicted of cultivating cannabis L at the Johnson Street Property and using cannabis;[15] and
(e) Antoinetta knew that, on 6 May 1993, Dominic was convicted of using cannabis.[16]
76 In cross-examination, Antoinetta gave evidence that Natale kept a vegetable garden at the Johnson Street Property until he became too ill to tend to the garden and that, after that time, Dominic tended to the vegetable garden. She said that, over the years, a variety of vegetables, including zucchini, tomatoes and beans, was grown.
77 Antoinetta said that, although she now knows what cannabis plants look like, she did not know this prior to 8 April 2007. She conceded that she knows what tomato plants and bean plants look like and that the cannabis plants that were seized from the Johnson Street Property on 8 April 2007 were not tomato or bean plants. She said that when she first saw what she now knows to be cannabis plants in the backyard of the Johnson Street Property, she asked Dominic what they were and he replied, 'Don't worry about it Mum. I'm looking after the garden'. She said that this conversation occurred in 2006. In my opinion, if such a conversation took place, it occurred in 1992 when Antoinetta first became aware of Dominic's cultivation of cannabis plants at the Johnson Street Property.
78 I note that in cross-examination, Dominic said that, after the police executed a search warrant at the Johnson Street Property on 2 March 1992 and found cannabis plants in the backyard, he spoke to his parents about the plants and told them that 'it was like a herbal tea'.
79 Further, I note that, although Dominic conceded that he had used cannabis almost on a daily basis for approximately 20 years prior to 2007, Antoinetta denied knowing that Dominic was a cannabis user.
80 In my opinion, as a person familiar with typical vegetable plants, Antoinetta would have noticed the cannabis plants in her backyard in 1992 and would have observed that they did not produce any fruit or vegetables or any decorative flowers. It is only natural that Antoinetta would have asked Dominic to explain the nature of the plants.
81 If Dominic had told Antoinetta that the plants were tea plants, as he claimed, she would have known immediately or soon afterwards that this was false, as she would have seen no evidence of any parts of the plant being used to make tea.
82 If Dominic had given Antoinetta a vague response such as, 'Don't worry about it Mum. I'm looking after the garden', as she claims, it is unlikely that she would have accepted such a response, given the absence of any resemblance of the cannabis plants to any vegetable plant with which she would have been familiar.
83 Once the police charged Dominic with the offence of cultivating cannabis, it is inconceivable that Antoinetta would not have become aware, by 30 April 1992 at the latest, of the nature of the plants and the fact that the cannabis was for Dominic's own use.
84 Accordingly, I find that, by 30 April 1992, Antoinetta was aware of what cannabis plants growing in soil looked like and of the fact that Dominic was a user of cannabis. Her knowledge of Dominic's use of cannabis would have been confirmed on 6 May 1993 when he was convicted of using the drug.[17]
Execution of search warrant at the Johnson Street Property on 15 March 1994
85 As appears from [72] above, in her affidavit of 13 August 2010, Antoinetta said that she remembered that 15 to 20 years ago, the police came to the Johnson Street Property to speak to Dominic but she could not remember any of the details. In cross-examination, she denied any knowledge of any of Dominic's prior convictions.
86 Mr Juebner, who appeared for the DPP, put to Antoinetta a written complaint that she had made on 25 May 1994 about the conduct of the police when they executed a search warrant at the Johnson Street Property on 15 March 1994. In that complaint, which alleged that cash was stolen from the Johnson Street Property, Antoinetta stated:
On 15th March and the 12th May 1994, police searched my house for drugs with a warrant. On 15th March myself, my husband Natale and my 24 year old daughter Maria and my 22 year old son Dominic were home...The police...took away some cannabis and some scales.
87 Antoinetta said that she had no recollection of the complaint, the execution of the search warrant or the seizing of cannabis or scales from the Johnson Street Property.
88 In his evidence, Dominic said that he recalled the execution of the search warrant on 15 March 1994 and the seizing of cannabis and scales. He said that the cannabis was in dried form in a small bag.
89 I reject Antoinetta's evidence that she could not recall the execution of the search warrant on 15 March 1994 or the seizing of cannabis and scales. The events of that day would have been sufficiently extraordinary and disquieting to remain indelible in Antoinetta's memory in the absence of any impairment to her memory or cognitive capacity. I did not observe any such impairment. On the contrary, I formed the clear impression that Antoinetta was a very astute and calculating individual who feigned difficulties with memory. Accordingly, I can only conclude that Antoinetta deliberately lied about her lack of recollection in order to support her case that, in the period from 8 November 2006 until 8 April 2007, she was not aware that the plants growing in her backyard were cannabis plants.
90 For the reasons set out above, by 15 March 1994, Antoinetta knew that Dominic was a user of cannabis. She also knew what cannabis looked like in both plant form and dried form because she had seen cannabis plants in her own backyard in 1992, and had seen dried cannabis seized from her home in 1994.
Dominic's 1995 conviction for trafficking cannabis at the Johnson Street Property
91 As appears from [29] and [86] above, on 15 March 1994 and 12 May 1994, the police executed search warrants at the Johnson Street Property. I have already discussed the execution of the search warrant on 15 March 1994. In relation to the execution of the search warrant on 12 May 1994, Dominic said the following in a statement dated 16 August 1994:
On the 12th May 1994, my father and myself were the only ones home.
As my dad opened the door I walked in from the back and the police rushed in and said we've got a search warrant for your house for drugs and stolen goods, they showed me the warrant.
During the search they took a car stereo, a camera, CD head phones, two firearms, one was in the shed and one in my father's bedroom.
92 Following the execution of the search warrants on 15 March 1994 and 12 May 1994, Dominic was charged with various offences. As stated at [28](e) above, on 6 March 1995, Dominic was convicted of trafficking in cannabis L, handling stolen goods, possession of a prescribed weapon and possession of an unlicensed firearm. It appears that Dominic supplied cannabis to a friend in exchange for stolen goods.
93 In my opinion, it is inconceivable that Antoinetta would not have known of Dominic's 1995 convictions. In all likelihood, she would have attended the hearing of the charges and the outcome would have been explained to her.
Antoinetta's knowledge in the period from 8 November 2006 until 3 April 2007
94 When the police executed the search warrant at the Johnson Street Property on 8 April 2007, they prepared a sketch of the premises and took 27 photographs.
95 The sketch shows that the backyard of the Johnson Street Property comprises a chicken coop in the rear right corner, a garage and sheds on the rear left boundary and a vegetable garden in the middle.
96 Photographs 9 to 17 were taken in the backyard. They indicate that, between the chicken coop and the sheds, the backyard was dominated by cannabis plants approximately five feet tall. A brick path led from one of the sheds to the chicken coop, with cannabis plants on either side of the path. Photographs 20, 21, 24 and 25 were taken inside one of the sheds. They show several cannabis plants in pots, two cannabis plants hanging from the ceiling, a crate of tomatoes on a table and a tray of cannabis buds.
97 Antoinetta sought to create the impression that, in the period from 8 November 2006 until 8 April 2007, she did not go into the backyard of the Johnson Street Property. Ultimately, however, she conceded that she went to the backyard from time to time to perform tasks such as picking vegetables from the vegetable garden. She also conceded that she saw growing in the backyard the plants that she now knows to be cannabis plants but said that, at the time, she did not know what they were and did not take any notice of them. For the reasons that follow, Antoinetta's professed ignorance of the cultivation of cannabis plants in her backyard is devoid of any credibility.
98 As I have stated at [30] above, on 8 April 2007, the police seized 37 mature cannabis plants that were growing in the backyard of the Johnson Street Property and five cannabis plants that were drying in a rear shed of the property. The 37 plants weighed 129.55 kilograms and each plant was approximately five to six feet tall. Although the cannabis plants grew gradually, in the weeks prior to their seizure, they were very conspicuous. Indeed, according to the photographs that the police took on 8 April 2007, on that day, the backyard of the Johnson Street Property looked like a small forest of mature cannabis plants.
99 At [90] above, I concluded that, by 15 March 1994, Antoinetta knew what cannabis looked like in plant form as well as in dried form. Accordingly, in the period from 8 November 2006 until 8 April 2007 - particularly towards the end of that period - Antoinetta recognised the plants growing in her backyard as cannabis plants.
100 At [90] above, I also concluded that, by 15 March 1994, Antoinetta knew that Dominic was a user of cannabis. However, it is inconceivable that she could have formed the view that Dominic was cultivating such a large number of cannabis plants for his own personal use. Accordingly, she knew that Dominic was cultivating the plants for the purpose of sale.
101 If Antoinetta had turned her mind to the total weight of the cannabis plants growing in her backyard, she would have readily appreciated that the total weight, excluding the roots, exceeded 25 kilograms. I have formed this view because of the sheer bulk of the cannabis crop in Antoinetta's backyard. I am satisfied that Antoinetta suspected that the cannabis plants constituted a commercial quantity but deliberately refrained from inquiring about the number of cannabis plants or their weight so that she could deny knowledge of whether the plants constituted a commercial quantity if the issue were to arise in the future.
102 I now turn to consider the position if my conclusions at [99] and [100] above about Antoinetta's actual knowledge are wrong. Given Antoinetta's knowledge of Dominic's prior criminal activities - especially in connection with cannabis - it is likely that when Antoinetta saw the cannabis crop in her backyard, she became suspicious about whether it was cannabis, whether it was for sale and whether it was of a commercial quantity. It is also likely that she refrained from inquiring about these matters in order to be in a position to deny knowledge of them if the issue of her knowledge were to arise in the future. Accordingly, she turned a blind eye to these matters.
103 In all the circumstances, Antoinetta has failed to satisfy me of the matters set out at [69](a) above. The remaining question is whether, notwithstanding this, Antoinetta has established, on the balance of probabilities, that she was not involved in the commission of Dominic's trafficking offence.
104 I am not satisfied that Antoinetta was not involved in the commission of Dominic's trafficking offence, notwithstanding her knowledge of, or her turning of a blind eye to, its commission. Antoinetta was a joint proprietor of the Johnson Street Property. As the other joint proprietor, Natale, was suffering from dementia in the period from 8 November 2006 until 8 April 2007,[18] Antoinetta had the legal power to stop Dominic's criminal activities but failed to do so. While she may not have solicited or encouraged Dominic's criminal activities, at the very least, she acquiesced in and permitted those activities to be conducted in her backyard.
105 In cross-examination, Mr Juebner made much of the fact that, in paragraph 18 of her affidavit of 12 February 2008, Antoinetta stated that neither she nor Natale 'condoned, allowed or approved of the cannabis cultivation activities engaged in [by] Dominic'.[19] According to the Shorter Oxford English Dictionary, the meaning of 'condone' includes 'Forgive or overlook ... Approve, sanction, esp. reluctantly; acquiescence in'. When it was put to Antoinetta that the word 'condone' was included in her affidavit by her lawyers in accordance with her instructions, she said that she did not know why the word was included. In view of my conclusions, it is not necessary for me to decide whether the word 'condone' was included in Antoinetta's affidavit on her instructions or through some miscommunication between her and her lawyers.
106 I have not drawn any adverse inferences from the parents' failure to call Antonio or Maria. The evidence of how often they visited the Johnson Street Property in the period from 8 November 2006 until 8 April 2007 was very vague.
Conclusion in relation to Antoinetta's application
107 For the reasons set out above, Antoinetta's application for an exclusion order in relation to her joint interest in the Johnson Street Property will be dismissed.
108 As stated at [9] above, Natale is currently 83 years of age and suffers from dementia. Natale's present mental state was not in dispute. I accept that Natale was not competent to give evidence. What was in dispute was whether, in the period from 8 November 2006 until 8 April 2007, Natale had the mental capacity to be 'involved' in the commission of Dominic's trafficking offence at the Johnson Street Property in the sense set out at [69] above.
109 On 25 May 2006, Dr Eric Seal, a geriatrician of the Cognitive, Dementia and Memory Service ('CDAMS') of the Sunshine Hospital examined Natale. According to a written report prepared on that day, Dr Seal concluded as follows:
Mr Grillo has had a gradual decline in his memory over the past year or so according to his wife, but more noticeable this year. Mr Grillo denies any difficulties
On formal testing Mr Grillo showed deficits in some areas but performed quite well in other areas.
In summary, ... Mr Grillo showed a profile of minimal cognitive impairment but does not meet criteria for a diagnosis of dementia.
110 On 15 June 2007, Dr Barbara Sabangan, a geriatrician of the CDAMS, examined Natale. According to a written report prepared on that day, Dr Sabangan concluded as follows:
Mrs Grillo has not noticed any significant change in her husband's memory or day to day functioning since he was last seen. His short-term memory continues to be impaired, he is forgetting the date, misplacing items. He continues to become very emotional when he misplaces items and cannot locate them.
Today on formal memory testing ... his test performances and memory are worse than those of 12 months ago...
111 Dr Sabangan reviewed Natale again on 30 November 2007. According to a written report prepared on that day, Dr Sabangan concluded as follows:
Mr Grillo is a gentleman with mixed Alzheimer's and vascular dementia who was last seen in June of this year ... His wife feels that his cognition has remained stable although he is still requiring prompting with hygiene and it is clear that his memory is still an issue...
On cognitive testing today his Mini Mental State Examination score was 18/30 that has not been changed since a few months ago. He continues to display poor concentration and memory.
I have discussed a trial of a cognitive enhancer with Mrs Grillo ...
112 Dr Seal and Dr Sabangan were not called to give evidence.
113 The only medical practitioner that gave evidence was a neuro psychologist, Phillip Dingjan, who examined Natale on 26 June 2009 and prepared a report dated 27 June 2009 at the request of the parents' solicitors.
114 In his report, Mr Dingjan set out the following diagnosis:
Mr Grillo clearly demonstrates a demented state currently on testing. He has marked intellectual deficits, profound recent memory deficits, and patchy deficits due to parietal lobe damage. The scale of the deficits on testing of individualised cognitive domains is consistent with the screening test score on the Mini Mental Status Examination (MMSE) on which Mr Grillo now scores 11 points out of a maximum of 30. The form of Mr Grillo's memory deficit is typical for an advanced amnesia due to Alzheimer's dementia. The executive and general intellectual losses are typical for the effects of a diffuse cortical dementia due to Alzheimer's disease. There are no mood or psychological factors able to account for test deficits.
115 In his report, Mr Dingjan expressed the following opinion about the progression of Natale's dementia:
Dementia due to Alzheimer's disease is a slowly progressive condition involving accumulation of deficits in multiple domains: cognitive, behavioural, emotional neurological. Mr Grillo could be described as currently being in the middle stages of the illness, this is with respect to the end point being death. From the point of progression in cognitive deterioration, Mr Grillo is profoundly impaired and now due to cognitive losses is totally dependent in all but the most basic and simple aspects of everyday life ... From my clinical experience I would estimate from my assessment and interview results that the dementia has most probably been progressing for between 3 and 4 years in Mr Grillo's case. Certainly more than 2 years and it would be unusual for more than 5 years to have elapsed and to still be at this stage. The current MMSE score is 11/30. Typical MMSE score for normal community residential people in a large normative study of elderly American people ... note 19/30 when the educational level was between 0-4 years. This would permit an estimate that in Mr Grillo's case that he has lost about 8 points on the MMSE from what may have been his likely pre-morbid level. Alzheimer's dementia can vary patient to patient and in review of the rate of cognitive deterioration in formal research studies ... the annual rate of change in MMSE score is between 1.8 and 4.2 points, but with most studies noting about 2.5 points drop per year. On this basis Mr Grillo's cognitive component of his dementia is possibly of a duration ranging between 1.9 to 4.4 years and more likely to have been going for about 3.2 years (i.e. 8 divided by 2.5). The typical figure of 3.2 years would place onset approximately in the period of early 2006 (i.e. 2009 - 3.2). This is quite in keeping with Mrs Grillo's estimate, that something was wrong with her husband's mental state since about 2004. About 25% of Alzheimer sufferers will exhibit significant depressive symptoms and in a retired older man's lifestyle it is likely that changes in mood and enjoyment would have been noted first. Mrs Grillo was given medical advice that at that time dementia was not present. Clearly Mr Grillo's dementia has become present and the initial changes can in retrospect now be seen to have involved his mood but Mr Grillo has been slowly dementing all along.
116 In his report, Mr Dingjan stated the following in relation to the CDAMS reports:
The first documented evidence available to me concerning Mr Grillo's cognitive status is from the Sunshine Hospital (25th May 2006) in a letter by Carolyn Mathews from the CDAMS clinic reporting that Dr Seal considered Mr Grillo showed minimal cognitive impairment not dementia. The term 'minimal cognitive impairment' is one of many similar clinical descriptive terms to describe the situation in which a patient shows some signs of cognitive loss but since it is noted on a single initial assessment there is no clear evidence available to show that cognitive ability has fallen from a previous ability level. With follow-up the progression in cognitive impairment then supports the diagnosis of dementia. The follow-up assessment doesn't reveal a different condition in the patient. Rather, the condition that the patient was suffering all along has become clearly detectable. Mr Grillo was reviewed by the Sunshine CDAMS service on 15/6/2007 and Dr Sabangan noted progression in cognitive impairment on testing but does not report a formal diagnosis. The November 2007 letter by Dr Sabangan notes a MMSE of 18/30 [and] states this was not different from the mid 2007 review and that poor concentration and memory problems persist. A treatment offer is reported in that letter for use of a cognitive enhancer medication (aricept) which is indicated only for Alzheimer's dementia, which is the inferred diagnosis made by Dr Sabangan. That Mr Grillo receives a clinical diagnosis of Alzheimer's disease from Dr Sabangan when his MMSE score is 18 and that this is not significantly different from the mid 2007 review, indicates two points. First, that the 'normal' MMSE score for Mr Grillo would have had to have been a fair bit higher than 18/30 and as such my discussions in the prior paragraph about the possible length of Mr Grillo's dementia would thus seem to be conservative since if his usual score was higher than the estimated score of 19 then he has fallen by a larger amount to reach the current score of 11/30 and so correspondingly to have been dementing longer. Second, that the dementia condition was reliably known to be present according to the CDAMS clinic letters by at least mid 2007. In my professional opinion, I consider that Mr Grillo's dementia has been present for longer, as noted above.
As such, with hindsight the prior report from 2006 of minimal cognitive impairment can be corrected to early dementia. Further, the MMSE is not an overly sensitive instrument for detecting cognitive impairment and my clinical experience and knowledge of the literature indicates that significant deterioration in thinking and cognitive abilities crucial for living an independent and effective life can be present even whilst MMSE scores approximate a normal level.
In summary, I find that there is a well supported case that Mr Grillo has suffered dementia related cognitive loss extending back at least for 2 years from the present and most likely to have been about 3.2 years, i.e. early 2006, and quite possibly longer.
117 In his report, Mr Dingjan expressed the following opinion about Natale's knowledge of Dominic's illegal activities in the period from 8 November 2006 until 8 April 2007:
For Mr Grillo to be aware of the offences in question he would need to have been able to comprehend that what he encountered, saw, hear[d] in speech, smelt, etc, that arose from the offences in question did constitute some kind of illegal act by his son. Put simply, he would have needed to understand the nature of his son's actions in the home. Secondly, he would need to be able to retain that understanding clearly in memory for long enough for it to be reasonably expected that he might responsibly then act on that knowledge. Since I find it most likely that Mr Grillo was already suffering probable Alzheimer's dementia from early 2006, it would not be unreasonable to consider that by November 2006 when the offences were first noted to have occurred, that Mr Grillo quite likely would have been cognitively disabled with respect to understanding what his son was doing. Further, given that the amnesia effect has been one of the first changes reported by Mrs Grillo, and that it is the domain of function most impaired in his current test results, and recent memory is the domain of function most impaired in formal studies of Alzheimer's dementia, it is quite possible that by late 2006 Mr Grillo would not have been able to remember the details well enough for long enough to have been able to act.
118 Mr Juebner cross-examined Mr Dingjan at length with a view to discrediting his opinion that Natale was suffering from dementia from early 2006. It was suggested to Mr Dingjan that the diagnosis that was made by CDAMS in May 2006 was more reliable because it was contemporaneous. In my view, the cross-examination was somewhat misdirected. The issue was not whether Natale had dementia between 8 November 2006 and 8 April 2007, but rather whether he did not have sufficient mental capacity to be 'involved' in the commission of Dominic's trafficking offence in the sense set out at [69] above.
119 Mr Juebner also criticised the parents for not calling Dr Seal and Dr Sabangan. In my opinion, it is unlikely that, if these doctors had been called, they would have added much to the CDAMS reports dated 25 May 2006, 15 June 2007 and 30 November 2007. What is clear from these reports is that:
(a) from at least May 2005, Natale's memory was declining gradually;
(b) the decline in memory became more noticeable in 2006;
(c) as at 25 May 2006 Natale had some cognitive impairment;
(d) Natale's memory was worse on 15 June 2007 than it was a year earlier; and
(e) a diagnosis of Alzheimer's disease was confirmed on 30 November 2007.
120 Mr Dingjan performed multiple neuro psychological tests on 26 June 2009 and concluded that Natale was suffering from advanced dementia and that the cognitive impairment that was diagnosed on 25 May 2006 reflected the early stages of dementia.
121 In cross-examination, Mr Juebner put to Mr Dinjan that he was speculating about Natale's level of incapacity in 2006. Mr Dinjan said that, based on his experience and the tests that he performed when he saw Natale on 26 June 2009, he was at least 80 to 90 per cent sure that in mid 2006, Natale's level of incapacity was such as to compromise Natale's ability to recognise an unfamiliar plant such as cannabis. He also said that, even if, in mid 2006, Natale was capable of recognising a plant as a cannabis plant, Natale's memory was impaired to such an extent that he would not be able to retain or act on this information. Mr Dingjan said that Natale was 'just too impaired, when [he] saw him in 09, to have been capable in the middle of 06'.
122 I accept Mr Dingjan's evidence. His report was comprehensive and he did not deviate from his conclusions during cross-examination. While I had some initial concerns that Mr Dingjan came across as inflexible, partisan and overly dismissive of the contemporaneous assessments of Dr Seal and Dr Sabangan, on reflection I am satisfied that Mr Dingjan's manner simply reflected the strength of his belief in the correctness of his opinion.
Conclusion in relation to Natale's application
123 I am satisfied that the impairment to Natale's memory and cognitive abilities in the period from 8 November 2006 until 8 April 2007 was such that he did not know that Dominic was cultivating cannabis at the Johnson Street Property and did not have any appreciation of any facts that would cause him to suspect that cannabis plants were growing at that property.
124 I am also satisfied that the impairment to Natale's memory and cognitive abilities in the period from 8 November 2006 until 8 April 2007 was such that he did not have sufficient understanding of the potentially illegal nature of any of Dominic's activities that he observed to enable him to wilfully turn a blind eye to the true nature of those activities.
125 In arriving at the above conclusions, I have not overlooked the suggestion in the evidence that on 4 May 2007, Natale lost three demerit points for disobeying a traffic signal while driving. I accept Mr Dingjan's evidence that people suffering from dementia are still capable of performing some familiar tasks through 'autopilot type of behaviour'. In my opinion, the significance of the 2007 traffic infringement - if it occurred - was negated by the suggestion in the evidence that Natale got lost near his home in the winter of 2006. The nature of the traffic offence also suggests that Natale was incapable of recognising and obeying a simple legal requirement.
126 It follows from the above discussion that I am satisfied that an exclusion order should be made in relation to Natale's interest as joint proprietor in the Johnson Street Property.
127 For the reasons set out above, exclusion orders will be made in relation to Dominic's interest in the Bowen Street Property and Natale's interest in the Johnson Street Property. The applications will otherwise be dismissed.
128 I will hear from the parties on the precise form of the orders to be made and on the question of costs.
[1] The restraining order extended to all shares owned by Dominic. However, Dominic's application for an exclusion order is confined to the Shares.
[4] The DPP properly conceded that the other requirements of s 22(b)(i) are not in issue.
[9] [2007] VSCA 72; (2007) 171 A Crim R 196 ('Le').
[10] Le [2007] VSCA 72; (2007) 171 A Crim R 196, 202-3 [21]-[25] (citations omitted).
Grillo & Anor
DPP [2011] VSC 575