Criminal law and procedure - Appeal against conviction - Cultivating cannabis with intent to sell or supply to another - Whether Edwards direction required - Whether trial judge misdirected jury that accused had admitted all elements of offence - Proper construction of s 8(1)(c) of the Evidence Act 1906 (WA) - Application of proviso where prosecutor breached s 8(1)(c) of the Evidence Act by commenting on failure of accused to give evidence on oath at trial

Criminal Appeals Act 2004 (WA), s 30

Evidence Act 1906 (WA), s 8, s 32

Misuse of Drugs Act 1981 (WA), s 7, s 11

Abbott v The State of Western Australia [2005] WASCA 42

AJE v The State of Western Australia [2012] WASCA 185

Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50

Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92

Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1

Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193

Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1

Mackrell v The State of Western Australia [2008] WASCA 228; (2008) 37 WAR 414

Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573

Noto v The State of Western Australia [2006] WASCA 278

Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95

Ryan v The State of Western Australia [2011] WASCA 7

Singh v The State of Western Australia [2010] WASCA 95

Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

X7 v Australian Crime Commission [2013] HCA 29; (2013) 87 ALJR 858

Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234

1 McLURE P: This is an appeal against conviction. The appellant was convicted after trial of one count of cultivating cannabis with intent to sell or supply to another contrary to s 7(1)(a) of the Misuse of Drugs Act 1981 (WA) (the Act).

2 At the commencement of the trial, the appellant pleaded guilty to cultivating cannabis plants but pleaded not guilty to the element of having done so with an intention to sell or supply to another. He also formally made admissions pursuant to s 32 of the Evidence Act 1906 (WA) that:

• on 8 November 2011 he cultivated 240 cannabis plants at 18 Calkarri Drive, Augusta; and
• between approximately 1.50 pm and 3.40 pm on 8 November 2011, he removed 144 of those cannabis plants.

3 At approximately 1.30 pm on 8 November 2011 two police officers, Constable John Daniels and Senior Constable Andrew Clarke, attended the appellant's property at 18 Calkarri Drive, Augusta (the property). No-one was at home. The two officers noticed 144 very small seedlings growing in pots on shelving alongside the garage. The seedlings were approximately 1 cm in height.

4 Suspecting the seedlings to be cannabis, the police officers photographed them in situ then returned to the Augusta Police Station to obtain an urgent search warrant for the property.

5 Approximately one hour later the police officers returned to the property with a search warrant. Once again, no-one was present. Senior Constable Clarke telephoned the appellant and advised him that they were at his property and that he wished to speak to him. The appellant told the officer he would return to the property in half an hour.

6 Whilst waiting for the appellant to arrive at the property, the police officers discovered that all but three of the seedlings they had found and photographed when they first attended the property were no longer there. All that remained were the empty pots that had previously held the small cannabis seedlings.

7 The appellant subsequently returned to the property at approximately 3.40 pm that day. The execution of the search warrant was recorded on video (the search video). At the commencement of the search video Constable Daniels gave a summary of events that had occurred prior to the appellant attending at the property. This included that they had earlier found some 144 seedlings believed to be cannabis and had photographed them; they had subsequently left the property and had returned armed with a search warrant; and that they subsequently discovered that the 144 seedlings had been removed. When asked 'What can you tell me about the plants not being there now?' the appellant replied:

8 During the execution of the search warrant, the appellant pointed out to the police officers a bowl which contained approximately 15 g of cannabis and some smoking papers. At this time however, the appellant denied knowledge of the seedlings that the police had found when they first attended the property.

9 The police officers subsequently located a further 96 small cannabis seedlings growing in pots at the property. The appellant admitted cultivating these seedlings.

10 The appellant was subsequently arrested and taken to Augusta Police Station where he voluntarily participated in a visually-recorded interview (the police interview).

11 After referring to the photographs taken at their first visit, the questioner continued:

I've counted the quantity of cannabis plants in those photos. In the first tray there's 39; in the second tray there's 32; in the third tray there's 29 and in the fourth tray there's 44 making a total of 144 cannabis seedlings. What can you tell me about those?

A. Not very much, you know, there's, um - yeah, nothing really. What do you want to know about' em?

12 During the police interview, the appellant said he had previously attempted to grow cannabis plants but they had wilted and died; he had not had success before in growing cannabis; he had thrown the seeds into the pots not expecting them all to come up and was very surprised to discover how many had germinated; that if they did not all die or get eaten by bugs, he would have chosen the best 10 plants and planted them in the bush for himself; he had been smoking cannabis since he was 'a teenager, probably on and off'; he did not 'smoke all day, probably more of a social thing'; and that the approximately 15 g of cannabis was for his personal use.

13 The prosecution relied upon the deeming provision in s 11(b) of the Act which relevantly provides:

For the purposes of -

(b) section 7(1)(a), a person shall, unless the contrary is proved, be deemed to have in his possession, or to cultivate, prohibited plants of a particular species or genus with intent to sell or supply those prohibited plants or any prohibited drug obtainable therefrom to another if he has in his possession, or cultivates, a number of those prohibited plants which is not less than the number specified in Schedule VI in relation to that species or genus.

14 The number of cannabis plants giving rise to the presumption of an intention to sell or supply is 10.

15 The appellant did not give or call any evidence in his defence at trial. Instead he relied on what he had said in the search video and in the police interview.

16 The defence also relied on the evidence of Detective Sergeant Andrew Coen as to the unsophisticated nature of the enterprise, the natural attrition rate of non-hydroponic cannabis and the lack of indicia of dealing.

17 The appellant's case was that he had previously attempted to grow cannabis without success; he had cultivated the cannabis in question for his personal use; he had obtained the seeds from another person and had planted them with an expectation that, at the very least, a number of them would not germinate; if some did germinate, he intended to select the 10 best plants and plant them in the bush; he intended to cultivate them for his personal use.

1. the trial judge erred in law by failing to give the jury an Edwards direction (Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193);
2. the trial judge erred in law by directing the jury that the appellant had admitted all of the elements that the State would otherwise have to prove;
3. the fair trial of the appellant miscarried because the prosecutor breached the statutory prohibition in s 8(1)(c) of the Evidence Act 1906 (WA) by impermissibly commenting to the jury about the appellant's failure to give evidence.

The need for an Edwards direction (ground 1)

19 In the search video the appellant denied any knowledge relating to the removal of the 144 cannabis plants in the period after the police officers first left the property on 8 November 2011 and before they returned later in the day with a search warrant. He was also evasive on that issue in the police interview.

20 At trial the appellant admitted that between approximately 1.50 pm and 3.40 pm on 8 November 2011 he removed the 144 cannabis plants. No explanation was given by the appellant for (1) removing the 144 cannabis plants or (2) lying to police about having no knowledge on that subject.

21 In his opening address at trial the prosecutor did not inform the jury that the prosecution intended to rely on the appellant's lie to police.

22 In the context of discussing 'what is more probable in relation to intent' the prosecutor said in closing:

There's just so many [cannabis plants] that ... it is highly improbable that what was going on here was cultivation purely for personal use. The accused didn't have to give evidence. It has not been explained to you why he lied to the police about what had happened to these seedlings; the seedlings that went missing, and it's possible that he just knew there was a lot of them and he wanted to reproduce [reduce?] the number that would be found, but when you're considering what is most probable to be the situation, and when you're considering the version of events that he has given to police, you are entitled to have regard to the fact that he certainly wasn't up-front with the police about everything.

Neither when the search warrant was executed at the house, nor later on after he had got to the police station. So, members of the jury, it's not a complicated case. It has been a short trial and it's not my intention to say anything further in relation to the facts of the matter, but the State suggests to you, members of the jury, that when you consider all the evidence, that on balance the version of events given by the accused that he was only cultivating for personal use is quite improbable (ts 43).

23 The trial judge explained in his summing up that the State's case was that the jury could not be satisfied on the balance of probabilities that the accused did not intend to sell or supply the cannabis to another, listing the various factors on which it relied including the following:

The State also relies on the fact that he is not a heavy user of cannabis for this number of plants, that he lied to the police about the seedlings which went missing ... (ts 54).

24 At the conclusion of the summing up counsel for the appellant raised the prosecutor's reference in his closing address to the appellant's lie.

25 After a short break, the trial judge informed counsel in the absence of the jury of the terms of a Zoneff direction he proposed to give. Both counsel in effect indicated their approval to that course. The trial judge then directed the jury as follows:

I called you back in because there was one matter that I did omit to deal with. You will recall that the State raised that the accused had lied about the plants and the State relied on that when arguing, you should not accept that he had discharged his burden of proof on this issue of whether he had intent to sell or supply. Now, members of the jury, you'll make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately.

It's for you to decide what significance those suggested lies have in relation to the issues in this case. The fact that a person has told a lie may be a factor in your assessment of the credibility of that person. That's a matter for you to consider, however, members of the jury, do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something that that is evidence of guilt. The fact that a person has told a lie is not evidence that the person is guilty of a crime (ts 59).

26 The appellant's counsel did not seek any further direction on the subject. In particular, he did not seek an Edwards direction.

27 Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. However, a lie told by an accused may go further and, in limited circumstances, amount to an implied admission of guilt. To constitute an implied admission of guilt (or consciousness of guilt) the lie must be deliberate and reflect knowledge on the part of the accused that telling the truth would implicate him in the commission of the offence. In that event, the lie must be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. The jury should be instructed that they may take the lie into account as consciousness, or an admission, of guilt only if they are satisfied that it is deliberate, that it reveals knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the commission of the offence: Edwards (208 - 211). The plurality in Edwards continued:

Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told

out of panic, to escape an unjust accusation, to protect some other

person or to avoid a consequence extraneous to the offence. The jury

should be told that, if they accept that a reason of that kind is the

explanation for the lie, they cannot regard it as an admission (211).

28 The appellant contends that this is a case where there was a risk of misunderstanding of the type contemplated by the plurality in Zoneff v The Queen (2000) 200 CLR 234:

There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because ... 'the accused knew that the truth .... would implicate him in [the commission of] the offence' and if, in fact, the lie in question is capable of bearing that character [16].

29 The High Court in Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 went further and said that where the prosecution does not contend that a lie is evidence of guilt, as a general rule it is unnecessary and inappropriate to give an Edwards direction unless the judge apprehends that there is a real danger that the jury may apply that process of reasoning [34].

30 Unsurprisingly, the appellant does not contend for a full Edwards direction, which would have been to his forensic disadvantage. Such a direction would focus the jury's attention not only on the appellant's lie but on the admitted conduct he lied about. Senior counsel for the appellant in the appeal sought a modified Edwards direction pared of its negative aspects. He submitted that the jury should have been directed not to speculate as to why the appellant lied; that there are a number of reasons why a person lies, such as out of panic, the need to protect somebody, or confusion (ts 20). Such a modified direction would be of considerable assistance to an offender who bears the onus of proof of the only live issue at trial.

31 In this case the prosecutor did not contend that the appellant's lie in denying his knowledge of, and involvement in, the removal of the 144 cannabis plants constituted an implied admission (or consciousness) of guilt. Further, there was no sufficient risk or real danger that the jury would rely on the lie as an implied admission that the appellant intended to sell or supply the cannabis to another. The appellant had to prove the negative proposition that he did not cultivate any of the cannabis with an intent to sell or supply. It would have been clear to the jury that the only issue for them was whether the appellant had, on all of the evidence, persuaded them on the balance of probabilities that he intended to use all of the cannabis he successfully cultivated for his personal use. That was the limit of their role. The prosecutor's closing remarks were expressly confined to their assessment of the credibility of the appellant and his defence.

32 The Zoneff direction was sufficient to nullify any perceived risk of the jury misusing the lie to make a positive finding (that the appellant intended to sell or supply) that they were never asked by anyone to make. I infer the failure of the appellant's counsel to seek an Edwards direction was a deliberate forensic decision based on the best interests of the appellant. I would dismiss ground 1.

Now, members of the jury, in this case the accused has admitted all of the elements as we call them, and I will come to them in a moment, of the charge that the State would otherwise have to prove. He is deemed, and I will come to this in a moment, to have cultivated the drug with intent to sell or supply it, by virtue of the number of plants that he had, and when that occurs the law effectively places on the accused the onus of proving on the balance of probabilities that he did not intend to sell or supply the drug to another (ts 51). (emphasis added)

34 As the appellant correctly points out, he had not admitted all the elements of the offence. In particular, the (only) live and contested issue at trial was whether the appellant had established that he did not cultivate any of the cannabis with an intent to sell or supply to another.

35 The appellant contends that the above direction invited the jury to start from a conclusion of guilt and then to work backwards in determining whether they were satisfied on the balance of probabilities that he was not guilty. This is said to displace the fundamental principle that it is for the prosecution to prove each element of an offence beyond reasonable doubt.

36 There is no substance to the appellant's claim that the trial judge directed the jury that the appellant had admitted all the elements of the offence. That submission ignores the qualifying words 'that the State would otherwise have to prove'. What those words convey, in the context of the summing up as a whole, is the effect of s 11 of the Act as explained by Steytler P (with whom Pullin JA relevantly agreed) in Abbott v The State of Western Australia [2005] WASCA 42. He said:

Once the fact of possession of more than the specified quantity [of the prohibited drug] is proved beyond reasonable doubt or, as in this case, admitted, the prosecution has no other onus to discharge. The very purpose of s 11(a) of the Act is that of putting upon the accused, in such a case, the onus of establishing on the balance of probabilities that, on the whole of the evidence at the trial, he or she did not intend to sell or supply the drug to another. Consequently, the only work to be done by inferences arising from facts other than the quantity of the drug in the accused's possession would be that of helping, or hindering, the accused in that endeavour [4].

37 The application for leave to appeal on ground 2 was referred to the hearing of the appeal. It does not satisfy the merits threshold for a grant of leave.

The scope of s 8(1)(c) (ground 3)

38 The State conceded that there was a breach of s 8(1)(c) of the Evidence Act by the prosecutor. This court is not bound by the concession: Noto v The State of Western Australia [2006] WASCA 278.

39 The parties differ as to the scope of s 8(1)(c) of the Evidence Act. The respondent contends that it is confined to evidence on oath at the accused's trial. The appellant submits that it is not so confined but applies to all evidence of the accused adduced at his trial.

40 Section 8(1) provides:

Accused persons in criminal cases

(1) Except as in this Act it is otherwise provided, every person charged with an offence shall be a competent but not a compellable witness at every stage of the proceedings whether the person so charged is charged solely or jointly with any other person: Provided as follows -

(a) a person so charged shall not be called as a witness except upon his own application;

[(b) deleted]

(c) the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution;

(d) a person charged and being a witness in pursuance of this section may be asked any question in cross-examination, notwithstanding that it would tend to criminate him as to the offence charged;

(e) a person charged and called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless -

(i) the proof that he has committed or been convicted of such other offence is admissible in evidence to show that he is guilty of the offence wherewith he is then charged; or

(ii) he has personally, or by his advocate, asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution or a person who died as a result of the offence wherewith he is then charged; or

(iii) he has given evidence against any other person charged with the same offence;

(f) when paragraph (e)(ii) or (iii) is or becomes applicable to any person charged who gives evidence for the defence, it shall be open to the prosecution, or to any other person charged against whom he has given evidence, to call evidence, that such person is of bad character or has been convicted of or charged with any offence other than that with which he then stands charged, notwithstanding that the case for the prosecution or of such other person charged may already have been closed;

(g) every person called as a witness in pursuance of this section shall, unless otherwise ordered by the court, give his evidence from the witness box or other place from which the other witnesses give their evidence.

41 The history of s 8(1) is described in Ryan v The State of Western Australia [2011] WASCA 7 [56] - [60]. At common law an accused (and the husband or wife of the accused) is not a competent witness at the accused's trial, either for the prosecution or for the defence. The purpose and effect of s 8(1) of the Evidence Act is to make an accused (and the accused's wife or husband) a competent but not compellable witness for the defence.

42 The issue in Ryan was the proper construction of s 8(1)(a) of the Evidence Act. My preliminary view in Ryan was that s 8(1) is only intended to apply to an accused who elects to give evidence for the defence at his trial [63]. I stated a preliminary view only because, as in this case, the court was not provided by the parties with any assistance or relevant authority on the proper construction of s 8.

43 I remain of the view expressed in Ryan and would now determine that the text, context (in particular pars (d), (e), (f), and (g) of s 8(1)), purpose and history of s 8(1)(c) compel the conclusion that it is confined to evidence given on oath by an accused at his trial.

44 The primary thrust of the prosecutor's statement in closing focusses on the appellant's failure to be 'upfront' with police in the search video and in the police interview. That is not caught by s 8(1)(c). However, the juxtaposition of the statement 'The accused didn't have to give evidence' with 'It has not been explained to you why he lied to the police about what happened to these seedlings' may have been perceived by the jury to be a comment on the failure of the appellant to give evidence on oath in his defence at trial.

45 The parties conducted the appeal on the common assumption that s 8(1)(c) applies in circumstances where the accused has the burden of establishing, on the balance of probabilities, the only live issue at his trial. I will assume that is correct without determining the issue. Accordingly, there was a breach of s 8(1)(c) of the Evidence Act.

46 Ground 3 is confined to the prosecutor's statements that I have concluded fall within s 8(1)(c). There is no claim that any other statements of the prosecutor breached the common law right to silence. An incident of that right is that no adverse inference can be drawn against an accused by reason of his failure to answer questions put by a person in authority. See Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95, 99; Singh v The State of Western Australia [2010] WASCA 95. However, even if there had been a breach of the common law right to silence, it would not change the outcome on this ground.

47 In contravening s 8(1)(c), the prosecutor made an error of law. The State contends that the proviso should apply as there was no substantial miscarriage of justice.

48 Although s 8(1)(c) does not apply to the trial judge, the common law relating to the right to silence does. The trial judge directed the jury on the accused's right to silence in the following terms:

Members of the jury, in this case when it came to evidence, the accused did not give evidence. It was his right not to do so.

No adverse inference can [nor] should it be drawn against the accused from him exercising that right. It is a right every accused person has, and if whenever it was exercised an adverse inference were to be drawn against the accused, it would mean that the right had no value to it. The fact that the accused did not give evidence in court proves nothing one way or another.

However, you have not been entirely deprived of a story from the accused because you have the benefit of that search video in which there was some conversation with the accused, and you have the benefit of the visually-recorded interview that the police had with him back at the police station. In that - that evidence, those interviews is part of the evidence that you can consider in this case in deciding whether or not the charge has been proved beyond reasonable doubt.

I have to say to you, members of the jury, that the statements made by the accused in the search and back at the police station have not been made on oath. Accordingly, they have not been tested by cross-examination. You are not obliged to give the same weight to the accused's statements, which might be exculpatory, as you might give to any admissions that he makes.

But what weight you do give to that evidence is entirely a matter for you because you're the judges of the facts (ts 56).

49 The trial judge did not go as far as is permitted in his comments on the unsworn evidence. See Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573 [22].

50 The principles relating to the proviso are not in dispute. Their application is. The assessment of whether an error of law gives rise to a substantial miscarriage of justice is undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty: Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41].

51 The appellate court's task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. There are cases in which it is possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury: Weiss [43].

52 However, there may be cases where it would be proper to allow an appeal and order a new trial even though the appellate court is satisfied beyond reasonable doubt of the appellant's guilt: Weiss [45]. The law on that subject (post-Weiss) is reviewed by Buss JA in Mackrell v The State of Western Australia [2008] WASCA 228; (2008) 37 WAR 414 [11] - [24]. He summarises the position as follows:

In Weiss, the High Court referred to a 'significant' denial of procedural fairness at trial as an example of a category of case where it would be proper to allow an appeal and order a new trial, even though the appellate court was satisfied beyond reasonable doubt of the appellant's guilt [45]. The word 'significant' and other formulations by the High Court (for example, a 'serious' breach of the presuppositions of a criminal trial: Weiss [46]; such a departure from the essential requirements of the law that it goes to 'the root' of the proceedings: Wilde, (373); errors which are 'so fundamental' or involved 'such a departure' from the essential requirements of a fair trial: AK [23]; 'radical' error at trial: AK [54]; a 'grave' error by the trial judge: CTM [129]), indicate that questions of degree are involved in determining whether, in the circumstances of a particular case, an appellate court considers that the nature of the error or miscarriage at trial precludes the court from being satisfied, in terms of the proviso, that no substantial miscarriage of justice has actually occurred, irrespective of the strength of the prosecution case or the appellate court's opinion as to the accused's guilt.

53 Although the right to silence is a fundamental right of an accused, it cannot be said that any misdirection on that subject is a fundamental irregularity of the relevant kind: Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1, 8. In Mackrell, the court held that the trial judge erred by failing to (inter alia) refer to improper comments made by the prosecutor during his closing address as to the appellant's exercise of his right to silence while being questioned by police. However, the court held that there was no substantial miscarriage of justice.

54 The appellant contended that Mackrell is in conflict with AJE v The State of Western Australia [2012] WASCA 185. AJE was a case in which a statement made by the prosecutor in his closing address, commenting on the accused's failure to give evidence at his trial, infringed s 8(1)(c) of the Evidence Act. The trial judge gave the usual direction concerning an accused's right to silence, based on what was said by the High Court in Azzopardi v The Queen (2001) 205 CLR 50, 70 - 71. The court rejected the State's submission that the infringement of s 8(1)(c) was of a technical or trivial nature. The plurality noted that:

In some cases where there has been an infringement of s 8(1)(c), or its equivalents have been breached, the proviso has been applied. In the present case, the respondent did not seek to invoke the proviso [42].

55 The decisions in Mackrell and AJE are obviously reconcilable on their facts. I infer the submission of a conflict is based on the appellant's erroneous construction of s 8(1)(c).

56 The appellant contended that the prosecutor's breach of s 8(1)(c) was a serious breach of the presuppositions of a criminal trial which mandated a retrial even if this court is satisfied as to his guilt. I am satisfied that it is not such a breach. First, the prosecutor's comments were made in circumstances where the accused bore the onus of establishing the only live issue at trial. The comments do not in any way undermine or detract from the rationale for the right to silence, being that a criminal trial is an accusatorial process in which the prosecution is required to prove the guilt of an accused to be beyond reasonable doubt: X7 v Australian Crime Commission [2013] HCA 29; (2013) 87 ALJR 858 [42]. However, an accused in a criminal trial ordinarily bears no legal (cf evidential) onus. Secondly, the prosecutor's comments were partially ameliorated by the trial judge's correct statement of the law. Thirdly, the appellant's competent and experienced criminal trial lawyer did not perceive any irregularity in the process; he did not object to the prosecutor's comments or ask the trial judge to direct the jury to disregard them.

57 I turn now to the assessment of whether the appellant was proved to be guilty beyond reasonable doubt. The evidence adduced on behalf of the prosecution went much further than mere reliance on the number of cannabis plants notwithstanding that the number was 24 times the amount necessary to give rise to the statutory presumption.

58 As indicated earlier, the prosecution adduced expert evidence from Detective Coen. His evidence was to the following effect. Cannabis plants that are grown outdoors (that is, not hydroponically) tend to be

planted in the spring and summer time and then harvested towards winter (ts 34). The plants being cultivated by the appellant were seized on 8 November 2011.

59 Each naturally grown female cannabis plant may be expected to produce 300 g to 600 g of dry weight cannabis head (ts 31). Assuming, in accordance with the evidence of the expert witness, that half of the plants were female and using the conservative 300 g yield per female plant, the potential yield may amount to as much as 36 kg. There was no evidence as to the size of the attrition rate (ts 36). Even if a significant number of plants died or were eaten by bugs during the cultivation process, the amount remaining would be substantially more than the appellant would require for personal use. In his police interview the appellant said he did not smoke a lot, that he does not smoke 'all day long' and that his use was 'more of a social thing' (ts 107A).

60 Although there was no indicia of drug dealing, there was evidence that such items were not necessary at this early stage of cultivation (ts 39).

61 There was also the appellant's evidence that his previous attempts at growing cannabis had failed and that if the plants did not die or get eaten by bugs, he would have chosen the best 10 plants and planted them in the bush for himself. That is objectively unlikely.

62 On my assessment of all of the evidence, the appellant has fallen well short of persuading me, on the balance of probabilities, that it is more likely than not that he was not cultivating the cannabis with an intention to sell or supply to another. Accordingly, having regard to the requirement in s 11, I am satisfied that the appellant was proved to be guilty beyond reasonable doubt of cultivating cannabis with intent to sell or supply to another.

63 Accordingly, I conclude that no substantial miscarriage of justice has actually occurred. Therefore I would dismiss the appeal.

64 BUSS JA: The appellant appeals against his conviction, after a trial in the District Court before Keen DCJ and a jury, on a charge of cultivating a prohibited plant, namely cannabis, at Augusta on 8 November 2011, with intent to sell or supply cannabis to another, contrary to s 7(1)(a) of the Misuse of Drugs Act 1981 (WA) (the MD Act).

65 At the commencement of the trial, the appellant pleaded guilty to cultivating cannabis plants, but pleaded not guilty to having cultivated them with an intention to sell or supply cannabis to another.

66 The relevant facts and the grounds of appeal are set out in McLure P's reasons. I agree with the orders proposed by her Honour. I also agree with her Honour, generally for the reasons she gives, that ground 1 of the appeal fails and ground 2 has no reasonable prospect of success.

67 Ground 3 alleges in essence that there was a miscarriage of justice at the trial because the prosecutor infringed s 8(1)(c) of the Evidence Act 1906 (WA) by commenting impermissibly to the jury about the appellant's failure to give evidence.

68 I agree with McLure P, generally for the reasons she gives, that s 8(1)(c) is confined in its operation to the failure of an accused to give evidence, on oath or affirmation, at his or her trial. In particular, s 8(1)(c) does not apply to the failure of an accused to make a statement or give an explanation in a video recorded conversation or interview with police which is tendered at trial as part of the State's case.

69 The prosecutor told the jury, in his closing address, that 'The [appellant] didn't have to give evidence. It has not been explained to you why he lied to the police about what happened to these seedlings' (ts 43). The appellant told the alleged lies in a video recorded conversation with police on 8 November 2011, while the police were executing a search warrant at his Augusta property, and in a video recorded interview with police later on 8 November 2011 at the Augusta police station. The appellant told the police during the search of his property that he had no knowledge of the cannabis seedlings the police had found when they attended the property earlier on 8 November 2011. The appellant told the police during the interview that he did not 'have a clue' and he knew 'nothing' about the cannabis seedlings that had been removed from his property after the police initially attended the property on 8 November 2011 and before they returned later that day to execute the search warrant. The video recorded conversation and the video recorded interview were tendered in evidence by the prosecutor. The police officers who spoke to the appellant during the search and the interview did not ask him whether he had lied and, if so, why he had lied. In the circumstances, the prosecutor's comment on the absence of an explanation as to why the appellant had allegedly lied to the police was likely to have been understood by the jury as a reference to the appellant's failure to give evidence, on oath or affirmation, at the trial and offer an explanation for the alleged lies.

70 On the assumption, made by the parties to the appeal, that s 8(1)(c) applies where the accused has the burden of establishing, on the balance of probabilities, the only live issue at trial, the prosecutor, in the present case, infringed s 8(1)(c).

71 Section 30(3) of the Criminal Appeals Act 2004 (WA) provides that this court must allow an appeal against conviction by an offender if, in its opinion:

(a) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;

(b) the conviction should be set aside because of a wrong decision on a question of law by the judge; or

72 The prosecutor's infringement of s 8(1)(c) constituted a miscarriage of justice at the trial within s 30(3).

73 However, by s 30(4) of the Criminal Appeals Act, despite s 30(3), even if a ground of appeal might be decided in favour of the offender, this court may dismiss the appeal if it considers that 'no substantial miscarriage of justice has occurred'.

74 The critical issue in relation to ground 3 is whether this court considers that no substantial miscarriage of justice has in fact occurred as a result of the prosecutor's infringement of s 8(1)(c).

75 In Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92, French CJ, Gummow, Hayne and Crennan JJ reiterated that an appellate court must undertake the task of determining whether to apply the proviso to the Australian common form criminal appeal statute in the same manner as it would decide whether the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence [27]. The task of determining whether no substantial miscarriage of justice has actually occurred must be undertaken on the whole of the trial record including the jury's verdict of guilty [27]. Their Honours then made two further points. First, the appellate court, in assessing the significance to be given to the jury's verdict of guilty, must pay proper regard to the issues the jury were directed to decide in order to arrive at a verdict of guilty [28]. Secondly, the statement by Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44], that the proviso cannot be engaged 'unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty', is a negative proposition [29]. The statement enunciates a necessary but not sufficient condition for the application of the proviso. French CJ, Gummow, Hayne and Crennan JJ observed in Baiada Poultry:

As this Court's decision in AK v Western Australia ((2008) [2008] HCA 8; 232 CLR 438 at 457 [58]) shows, demonstration that a chain of reasoning can be articulated that would require the verdict reached at trial does not always permit, let alone require, the conclusion that no substantial miscarriage of justice actually occurred [29].

See also Reeves v The Queen [2013] HCA 57 [50] - [51] (French CJ, Crennan, Bell & Keane JJ).

76 At the trial, defence counsel admitted on behalf of the appellant, pursuant to s 32 of the Evidence Act, that:

(a) on 8 November 2011, the appellant cultivated 240 cannabis plants at his Augusta property; and

(b) between about 1.50 pm and 3.40 pm on 8 November 2011, the appellant removed 144 of those cannabis plants from his property.

77 By virtue of these admissions, the appellant admitted each and every element of the charge other than an intention to sell or supply cannabis. This was the sole issue at the trial. By s 11(b) of the MD Act, relevantly, for the purposes of s 7(1)(a), a person shall, unless the contrary is proved, be deemed to cultivate prohibited plants of a particular species or genus, with intent to sell or supply those prohibited plants or any prohibited drug obtainable therefrom to another, if he cultivates a number of those prohibited plants which is not less than the number specified in Schedule VI in relation to that species or genus. At the material time, the number specified in Schedule VI in relation to cannabis was 10.

78 At the trial, the appellant elected not to give evidence on oath or affirmation. He also elected not to call any evidence. He relied in his defence on what he had said during the video recorded conversation with police and the video recorded interview with police and on part of the evidence of a prosecution witness, Detective Sergeant Andrew Coen, as to the unsophisticated character of the cannabis cultivation at the appellant's property, the natural attrition rate of cannabis plants grown outdoors (that is, not grown hydroponically) and the absence of any drug dealing paraphernalia at the appellant's property.

79 I agree with McLure P, for the reasons she gives, that the prosecutor's infringement of s 8(1)(c) was not a serious breach of the presuppositions of a criminal trial which requires a new trial even if this court is satisfied beyond reasonable doubt as to the appellant's guilt.

(a) I am not satisfied the appellant proved on the balance of probabilities, pursuant to s 11(b) of the MD Act, that he was not cultivating the cannabis plants with intent to sell or supply cannabis to another; and

(b) I am satisfied the State proved, beyond reasonable doubt, that the appellant was guilty of the charge in the indictment.

81 My satisfaction, beyond reasonable doubt, that the appellant was guilty of cultivating cannabis plants, with intent to sell or supply cannabis to another, is based on the following:

(a) The appellant's admissions pursuant to s 32 of the Evidence Act.

(b) The number of plants cultivated by the appellant, namely 240. This number is 24 times the quantity necessary to give rise to the statutory presumption of intent to sell or supply under s 11(b) of the MD Act.

(c) The appellant grew the cannabis plants outdoors. Detective Sergeant Coen gave evidence to the effect that cannabis plants which are grown outdoors are usually planted during spring and summer and are harvested towards winter (ts 34), and each naturally grown female cannabis plant may be expected to produce between 300 g and 600 g of dry weight cannabis head (ts 31).

(d) The appellant's cannabis plants were seized in late spring (8 November 2011).

(e) On the assumption that, in accordance with Detective Sergeant Coen's evidence, half of the appellant's cannabis plants were female, and on the conservative assumption of a 300 g yield per female plant, the potential yield from the appellant's plants was about 36 kg.

(f) Although Detective Sergeant Coen accepted that the quantity of cannabis plants cultivated by the appellant would be reduced before maturity by natural attrition, he did not give any evidence as to the likely rate of attrition (ts 36).

(g) On the assumption that a significant number of the cannabis plants would die before maturity, the number remaining would still be substantially more than one person would require for his or her personal use.

(h) The likely yield from the appellant's cannabis plants may be compared to and contrasted with the following statements he made in his video recorded interview with police:

I don't smoke a lot, I don't, you know, smoke all day long. More of a social thing (VROI 11).

(i) A pipe found at the appellant's property would hold only about 0.25 g of dry weight cannabis head (ts 32).

(j) The credibility and reliability of the prosecution witnesses was not relevantly undermined by defence counsel in cross-examination at the trial.

82 The police did not find any drug dealing paraphernalia at the appellant's property, but there was evidence from Detective Sergeant Coen that items such as scales were not necessary at the early stage of cultivation when the appellant's plants were seized (ts 39).

83 Although the appellant said in the video recorded interview with police that his previous attempts to cultivate cannabis plants had failed and that if the plants in question had survived he would have chosen the best 10 plants for himself, this evidence is, on an objective appraisal, inherently incredible.

84 I am satisfied beyond reasonable doubt that, despite the prosecutor's infringement of s 8(1)(c), no substantial miscarriage of justice has in fact occurred. First, as I have mentioned, I am satisfied beyond reasonable doubt, on my examination of the trial record, as to the appellant's guilt on the charge in the indictment. Secondly, the prosecutor's infringement of s 8(1)(c) was momentary. The prosecutor's focus was the alleged failure

of the appellant to be open and frank with the police in his out of court statements. Thirdly, the trial judge gave proper and detailed directions to the jury about the appellant's common law right to silence and his election not to give evidence, on oath or affirmation, at the trial. See Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50. Fourthly, defence counsel, who is a competent and experienced criminal defence lawyer, did not object to the prosecutor's impugned comment and did not request the trial judge to direct the jury to ignore the comment.

85 Finally, I note that the decisions of this court in Mackrell v The State of Western Australia [2008] WASCA 228; (2008) 37 WAR 414 and AJE v The State of Western Australia [2012] WASCA 185 are plainly distinguishable from each other on their facts. Counsel for the appellant's submission that the decisions are in conflict is without merit.

87 MAZZA JA: I respectfully agree with McLure P that this appeal against conviction must be dismissed. I agree with her Honour's reasons with respect to grounds 1 and 2. My reasons for dismissing ground 3 are as follows.

88 Ground 3 alleges that a miscarriage of justice occurred because, it is said, the State prosecutor infringed s 8(1)(c) of the Evidence Act 1906 (WA). Specifically, it is claimed that the prosecutor impermissibly commented to the jury about the appellant's failure to give evidence.

89 Section 8(1)(c) of the Evidence Act is in these terms:

(1) Except as in this Act it is otherwise provided, every person charged with an offence shall be a competent but not a compellable witness at every stage of the proceedings whether the person so charged is charged solely or jointly with any other person: Provided as follows -

...

(c) the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution;

90 The portion of the prosecutor's closing address said to infringe s 8(1)(c) is as follows:

There's just so many [cannabis plants] that ... it is highly improbable that what was going on here was cultivation purely for personal use. The accused didn't have to give evidence. It has not been explained to you why he lied to the police about what had happened to these seedlings; the seedlings that went missing, and it's possible that he just knew there was a lot of them and he wanted to reproduce [sic: reduce] the number that would be found, but when you're considering what is most probable to be the situation, and when you're considering the version of events that he has given to police, you are entitled to have regard to the fact that he certainly wasn't up-front with the police about everything.

Neither when the search warrant was executed at the house, nor later on after he had got to the police station. So, members of the jury, it's not a complicated case. It has been a short trial and it's not my intention to say anything further in relation to the facts of the matter, but the State suggests to you, members of the jury, that when you consider all the evidence, that on balance the version of events given by the accused that he was only cultivating for personal use is quite improbable (ts 43). (emphasis added)

91 The appellant submitted that grounds 1 and 3 were, as the appellant's senior counsel put it in oral submissions, 'inextricably intertwined' (appeal ts 9). It was submitted that the words spoken by the prosecutor, 'It has not been explained to you why he lied to the police about what had happened to these seedlings', was not only an infringement of s 8(1)(c) of the Evidence Act, but was also an invitation to the jury to conclude that the lies were told out of a consciousness of guilt.

92 As McLure P has demonstrated, the latter proposition cannot be sustained. However, the issue remains whether the prosecutor infringed s 8(1)(c) and, if so, what is the consequence of the breach.

93 The history of s 8(1) of the Evidence Act was set out by McLure P, with whom Pullin JA and I agreed, in Ryan v The State of Western Australia [2011] WASCA 7 [56] to [63]. I agree with what her Honour has written in this case that, having regard to the statutory text, context, purpose and history of s 8(1)(c), the operation of the subsection is confined to evidence given on oath or affirmation by an accused at his or her trial.

94 In AJE v The State of Western Australia [2012] WASCA 185, Beech J and I, in joint reasons, said this about s 8(1)(c) of the Evidence Act:

The starting point is the statutory language of s 8(1)(c). It is in its terms a clear and absolute prohibition on the making of any comment by the prosecutor about the accused's failure to give evidence. The words extend to implied as well as express comment: Bataillard v The King [1907] HCA 17; (1907) 4 CLR 1282, 1291 (Isaacs J) and Siebel v The Queen (1992) 57 SASR 558, 560 (King CJ, with whom Bollen J agreed). What is prohibited is any comment on the failure to give evidence. As King CJ explained in Siebel, this means that a comment 'whether ... fair or unfair, balanced or unbalanced, favourable or unfavourable' (562) cannot be made by the prosecutor.

The subsection speaks of a 'comment' by a prosecutor. The state's submissions invoke a distinction between a comment and a statement. It has been held that words which refer to the fact that an accused person has not contradicted the prosecution evidence, or has failed to provide an alternative version of events, or has not given evidence is comment upon the failure of the accused person to give evidence and is thus prohibited: Siebel (562), followed in R v S, G [2011] SASFC 48; (2011) 109 SASR 491 [102] (Peek J, with whom Doyle CJ and White JA agreed). Express or implied reference to the fact that the accused had the opportunity to give evidence, and did not do so is comment prohibited by the statute: Bataillard (1288, 1291). In this light 'comment' in s 8(1)(c) is used in a wide sense, and encompasses many things that might be seen as a statement of fact or law [30] - [31].

95 The first question to be answered is whether the statement made by the prosecutor was a comment by him as to the appellant's failure to give evidence at the trial.

96 The respondent concedes that it was. Although this concession does not bind this court, it should be accepted. The words, 'It has not been explained to you why he lied to the police', refer to lies told by the appellant in his police interview. He was not asked by the police in the interview whether he had lied and, if so, why he had lied. Thus the failure by the appellant to explain why he had lied to the police can only be a reference to his failure to testify in his trial and give an explanation for telling those lies.

97 I accept that the thrust of the prosecutor's submissions was directed to the credibility of the appellant's statements to the police. However, it seems to me that, in the course of making these submissions, the prosecutor infringed s 8(1)(c) of the Evidence Act. As a result of the infringement, there has been a miscarriage of justice: Criminal Appeals Act s 30(3). The question then becomes whether the proviso set out in s 30(4) of the Criminal Appeals Act should be applied.

98 Section 30(4) of the Criminal Appeals Act is in these terms:

...

(4) Despite subsection (3), even if a ground of appeal might be decided in favour of the offender, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

99 Beech J and I pointed out in AJE that the legislature has conferred on an accused a right to have a trial free of prohibited comment and an infringement of s 8(1)(c) cannot be lightly overlooked: AJE [37]. Nevertheless, we noted that the proviso has been applied where there has been an infringement of s 8(1)(c) [42].

100 I will not repeat what the President has written concerning the principles relating to the proviso. They are an accurate description of the law on this subject.

101 The evidence against the appellant was, as McLure P's analysis of the evidence shows, truly compelling. My own examination of the record accords with her Honour and satisfies me of the appellant's guilt as charged beyond reasonable doubt.

102 It was submitted on behalf of the appellant that even if this court was satisfied of the accused's guilt beyond reasonable doubt, a retrial should nevertheless be ordered because the prosecutor's infringement was a serious breach of the presuppositions of a criminal trial. That submission cannot be accepted for the following reasons:

1. This was an unusual case. The only live issue for the jury to decide was whether the appellant had discharged the onus cast upon him to prove, on the balance of probabilities, that all of the plants were cultivated for his own use. Thus, unlike other cases where there has been an infringement of s 8(1)(c), there was actually an onus upon the appellant.
2. The infringement was fleeting, short and, it appears, inadvertent. As to the last point, the appellant did not allege that the infringement was anything else.
3. No objection was raised by the appellant's trial counsel to the prosecutor's comment.
4. The learned trial judge gave a correct and detailed direction in accordance with Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50. In the absence of the other three points, this would not have been decisive, but it is nevertheless significant in this case.

103 Finally, the appellant argued that there was a conflict in the decision of this court in Mackrell v The State of Western Australia [2008] WASCA 228; (2008) 37 WAR 414 and AJE. The cases are distinguishable on their facts. Insofar as it was suggested that the conflict arose because the majority in AJE did not apply the proviso, the issue did not arise for decision in AJE. In that case, unlike here, the respondent expressly took the position that if an infringement of s 8(1)(c) was established, it did not seek to apply the proviso.