1 The appellant, John Grozdanov, was found guilty by a County Court jury of one count of cultivating a large commercial quantity of a narcotic plant (cannabis) (count 1); one count of cultivating a commercial quantity of a narcotic plant (cannabis) (count 2) and two counts of theft of electricity (counts 3 and 4). He now appeals against his conviction for those offences.

2 The alleged cultivation of cannabis and theft of electricity took place at two factories located at 165 Merri Concourse (counts 1 and 3) and 75 Merola Way (counts 2 and 4) in Campbellfield. In his closing address, the prosecutor told the jury that the case in relation to Merri Concourse was 'a lot stronger' than the case in relation to Merola Way.

3 On 22 January 2007, the Merola Way premises was leased by two men, who supplied a number of fictitious documents to secure the lease. A mobile telephone number belonging to 'John Tantas' (who was never located) was provided to the real estate agent and was subsequently used to contact the agents.

4 On 5 February 2007, a real estate agent attended the premises to carry out an inspection. He was prevented from entering the upstairs rooms by two men, who said that the rooms were locked and they did not have the keys. The real estate agent recorded the registration details of vehicles at the property, including a Mercedes Benz, which was registered to 'AA Hydroponics', and was used by the appellant. In December 2007, the police placed a tracking device in the Mercedes Benz.

5 On 4 September 2008, real estate agents attended the property to perform a lockout and discovered a hydroponic set up. Police attended and located the following:

• 87 plants weighing 187.1 kilograms, in the two office rooms upstairs;
• 49 harvested plants weighing 3.97 kilograms in the lower level of the factory;
• cannabis and other material weighing 19.99 kilograms, also on the lower level; and
• an electrical bypass.

6 On 26 February 2007, the Merri Concourse premises was leased by a George Vella. Fictitious details were again supplied to secure the lease.

7 Between 28 December 2007 and 16 February 2008, the tracking device that had been placed in the appellant's Mercedes Benz showed that it was in the vicinity of Merri Concourse on 28 occasions. The evidence was that the appellant never drove directly to the premises and never parked in the car park available to those premises but instead, parked in a nearby street. On another occasion, the appellant was picked up by his co-accused, Matthew Spiteri ('Spiteri') and driven to the factory.

8 The police observed the appellant visiting the premises and using keys to get in the gate. Over an eight week period, he was observed entering the factory on four occasions and spending a total of three hours and ten minutes inside. On 6 February 2008, he spent two hours there.

9 On 16 February 2008, police executed a search warrant at the factory and found a total of 1025 cannabis plants weighing 268.9 kilograms in three 'growing rooms'. The electricity had been diverted.

10 The appellant's co-accused, Spiteri, was arrested in one of the growing rooms. The appellant was arrested within a few metres of one of the growing rooms. There were cannabis plants in three rooms, and the doors of these were open.

11 Because there was no direct evidence of the appellant's activities inside either premises, the Crown case at trial was entirely circumstantial. It was alleged that the appellant was a principal offender in the cultivation of cannabis and theft of electricity at the two properties. Because of the way the Crown put its case, the trial judge directed the jury that they could not convict the appellant on the basis that he had aided and abetted in the cultivation of cannabis and/or theft of electricity.

12 In relation to Merola Way, the Crown relied on the following circumstantial evidence:

• A mobile phone handset, the number for which had been provided to the real estate agent at the commencement of the lease, was found in the appellant's possession by police. The phone was in the name of a third person who could not be located.
• The appellant's fingerprints were found on two deposit slips relating to payment of the rent, and on 4 September 2007, he was captured on security video making the second cash payment of $6,088.59 at the NAB in Thomastown.
• The appellant admitted that he was present at the factory on 5 February 2007, and was one of the men who told the real estate agent he could not enter the locked upstairs offices; and
• DNA which could be linked to the appellant was detected on a pair of latex gloves, a yellow latex glove and a ceramic cup found on the premises.

13 In relation to Merri Concourse, the Crown relied on the fact that when the appellant visited the premises, he parked his car a street away, that he was observed visiting the factory on four occasions and had keys to it, that he stayed inside the factory for 'many hours', and that he was arrested close to a grow room which had hoses going into the room which prevented the door from closing.

14 The defence case relating to the crop at Merola Way was that there was no evidence placing the accused in the upstairs rooms where the cannabis was being cultivated, and that the Crown case was based on mere speculation.

15 The defence case relating to the crop at Merri Concourse was that the accused was 'merely the maintenance man'. Although he knew that cannabis was being cultivated on the premises, his role was limited to maintaining the hydroponic equipment as part of his legitimate business as a purveyor and servicer of hydroponic equipment.

16 In his closing address, defence counsel said that the prosecutor had conceded that there was no direct evidence of the appellant being involved in the cultivation of the crop. The Crown case was not that the appellant had assisted in cultivating the crop, but rather that he himself had cultivated it, and there was no evidence that he had been involved in its cultivation. The evidence showed that he was the 'maintenance man, not the cultivator'. He said:

Obviously this man knows what's happening when he goes in there. There are a whole lot of fans and extractors and goodness knows what to deal with the smell but you'd have to be dumb beyond your years if after 12 or 13 years in the hydroponics business of not being able to recognise when you go into a location that there's cannabis growing. And it's all this 'Oh, the smell was overpowering and the doors were open and he would have seen it'. Yes? Yes, that's right, would have seen it.

That would have provided him with absolute knowledge that someone was cultivating a decent quantity...

That sort of equipment is for growing marijuana and so here he is, clearly knowing that someone - Mr Spiteri, he's pleaded guilty - is growing the stuff. But that doesn't mean he's growing the stuff.... All it is, is he's the maintenance man and if you know as the maintenance man, that there is a crop of that size, you wouldn't park your car there.

17 In discussion with counsel after final addresses were delivered, his Honour referred to defence counsel's concession in his final address that 'the accused attended at the premises of Merri Concourse knowing that cannabis was being grown in the quantity that appears to have been grown, and that he maintained the system that enabled the drug to be cultivated.' His Honour asked counsel why that did not amount to tending the crop.

18 Defence counsel responded that attending the hydroponic set-up was not tending the cannabis, but 'tending the instruments'. He said that keeping a hydroponic system going 'may well be aiding and abetting, it might even be a conspiracy, but its not doing the cultivation.'

19 The jury direction which the judge gave on this matter is set out below.

20 On 5 August 2011, Nettle JA granted leave to appeal against conviction on one of three proposed grounds. That ground is as follows:

The learned trial judge erred in directing the jury:

(a) that 'cultivation' included activities associated with the activities set out in the statutory definition; and

(b) that servicing the watering system constituted cultivation,

and in particular, in so directing his Honour usurped the jury's function.

21 These directions were given by the judge in response to two questions raised by the jury during his Honour's charge, in which they sought an exact legal definition of 'cultivation' ('first question'), and asked whether servicing the watering system came under the definition of 'cultivation' ('second question').

First question: legal definition of 'cultivate'

22 Section 70 of the Drugs, Poisons and Controlled Substances Act 1981 provides that

cultivate, in relation to a narcotic plant includes -

(a) sow a seed of a narcotic plant; or

(b) plant, grow, tend, nurture or harvest a narcotic plant; or

(c) graft, divide or transplant a narcotic plant.

23 In answer to the first question, the learned trial judge directed the jury as follows:

The law defines cultivate in relation to a narcotic plant as including A, sow a seed of a narcotic plant, or, B, plant, grow, tend, nurture or harvest a narcotic plant, or, C, graft, divide, transplant a narcotic plant. This definition is not an exhaustive definition but includes these matters as set out in A, B and C.

Any person involved in any of these activities or other associated activities cultivates a narcotic plant. The term cultivate has a wide meaning and includes the whole process of growing or production of a narcotic plant from planting a seed or putting a cutting into a grow pot, to harvesting the mature plant. It includes, amongst other things, planting, growing, tending or nurturing a narcotic plant at any stage in the process from the planting of a seed or the planting of a cutting to the harvesting of a mature plant.

In the circumstances of this case you have to determine after considering the evidence whether you are prepared to draw the inferences the Crown seeks you to draw in respect of counts or charges 1 and 2 and the statutory alternatives that you are required to consider. I will give you an example. If a person was charged with cultivating a cannabis plant in a paddock in soil then the term 'cultivate' includes all activities associated with [the] production or growing of the narcotic plant, in that example the count (indistinct) from preparing the soil, setting up the irrigation system or watering system. Connecting that irrigation system to a pump, and operating that pump so that the plants are watered. To tending to the plants, nurturing the plants, feeding the plants and ultimately harvesting the plants.

So all of those activities or any associated activities to do with those activities would come within the definition of cultivate. The activity of cultivation includes all activity or activities in the process of the production of a narcotic plant from planting the seed or a cutting to harvesting the mature plant. It is an ongoing process from the planting of the seed or the cutting to the harvesting.

In the present case you are concerned with an ongoing process of growing cannabis L hydroponically, that is without soil, by means of an elaborate system which involves, as you have seen in the videos and the photographs, lights, planting of cuttings, the feeding nutrients to the plants which are apparently in pots in water as can be seen in the video and in the photographs. So that is the definition of cultivation that I propose to give you.[1]

24 Defence counsel had previously objected to the proposed reference to 'other associated activity', on the basis that it broadened the definition of cultivation unnecessarily. The judge purported to rely on R v Bui[2] to support his proposed use of that phrase.

25 The appellant submits that this direction was erroneous. In support of that submission, he relied on comments made by the judge in discussion with counsel before charging the jury. It was submitted that the judge had overstated the extent of the appellant's concession in two respects. First, there was no concession that the accused knew that cannabis was being grown in the quantity that appears to have been grown. Secondly, it was not conceded that the appellant maintained the system that enabled the drug to be cultivated.

26 The quantity of the drug was said to be particularly relevant with respect to Merri Concourse, as the number of plants and weight of the cannabis discovered was close to the threshold for a 'large' commercial quantity set out in the Drugs, Poisons and Controlled Substances Act 1981. There were 1,025 plants weighing 268.9 kilograms located at Merri Concourse, whilst the threshold for a 'large' commercial quantity is 1000 plants or 250 kilograms.[3]

27 Counsel for the appellant also submitted that the judge had erred by directing the jury that s 70 covered both the activities listed in the section and 'activities associated' with those activities. At common law, 'cultivation' includes all activities associated with production of the drug.[4] Counsel submitted that the statutory definition contained in s 70 includes activities, such as tending, nurturing and harvesting, which are themselves 'activities associated with' the production of cannabis. It would unjustifiably expand the s 70 definition to include activities not associated with cultivation, but only associated with activities associated with cultivation. The appellant argued that although the phrase 'activities associated with' was used by the trial judge in R v Bui, that phrase was not at issue on appeal and was not addressed by the Court of Appeal.

28 In response, counsel for the Crown argued that the direction was appropriate, given the inclusive definition of cultivation in s 70. He relied on authorities holding that cultivation should be given a broad meaning,[5] and in particular on the decision of the South Australian Court of Criminal Appeal in R v Giorgi and Romeo,[6] which held that harvesting a crop came within the ordinary meaning of cultivation. The Crown submitted that the judge had properly given a similarly broad interpretation to the terms 'tend' and 'nurture'. He contended that the servicing of a hydroponic system which systematically delivered water and nutrients to a crop amounted to tending and nurturing the crop.

29 The appellant submitted that the direction in Giorgi was appropriate in the absence of a statutory definition of cultivation, but that the existence of the statutory definition in s 70 made a similar direction inappropriate in Victoria.

Did the judge define cultivation too broadly?

30 Before discussing the meaning of cultivation, I will briefly refer to the argument that the trial judge overstated the effect of defence counsel's submission. I do not accept that that was the case. It is clear that his Honour understood that the defence case was that the appellant was only the maintenance man. In the exchange between himself and defence counsel, he simply attempted to clarify why the defence counsel submitted that the acts performed by the appellant did not amount to tending and nurturing the crop. Moreover, even if the appellant's submission were accepted, the discussion of itself could not support this ground of appeal. The appellant must establish that a substantial miscarriage of justice occurred because the jury was misdirected on the meaning of cultivation. I now turn to that question.

31 'Cultivation' is defined in the Macquarie Dictionary as 'to bestow labour upon land in raising crops; till; improve by husbandry' or 'to promote or improve the growth of (a plant etc.) by labour and attention'. The Oxford Dictionary defines 'cultivate' as:

1. a. to bestow labour and attention upon (land) in order to the raising of crops [sic]; to till; to improve and render fertile by husbandry.

2. a. To bestow labour and attention upon (a plant) so as to promote its growth; to produce or raise by tillage.

32 Most, if not all, of the activities listed in the definition in s 70 would come within the ordinary meaning of 'cultivate', in the absence of a statutory definition. Sowing a seed, putting it into soil so that it can grow, tending or nurturing a plant, or grafting or transplanting it to allow its growth would amount to cultivation, even if the word was not defined.

33 In jurisdictions which do not define 'cultivation', the word has been given a broad meaning. In Giorgi,[7] the South Australian Court of Criminal Appeal held that harvesting a hemp crop amounted to cultivation, for the purposes of the Narcotic and Psychotropic Drugs Act 1934 (SA). King CJ said that dictionary definitions of the word 'cultivate' fell into two broad categories.

In one category the meanings are narrow, the emphasis being on the growth of the plant and on the tending and caring for the plant during the process of growth. In the other category the meanings are broader and encompass the whole process of production from the soil, including preparing the soil, sowing, tending and caring for the plant during growth and reaping or harvesting, Examples of the second category are 'to produce or raise by tillage' (Shorter Oxford (Murray) New English Dictionary) and 'to raise by cultivation' (The Encyclopaedic Dictionary). Some of the dictionary meanings expressly refer to 'reaping' (Funk & Wagnalls' Standard Dictionary (1974), vol. 1, at p. 314; Black's Law Dictionary Revised, 4th ed. 1978), at p. 454).

I cannot see any reason to suppose that the legislation intended to confine the prohibition in s 5 (2)(b) to the narrow activity of tending or caring for the growing plant or of bestowing 'labour and attention so as to promote its growth' (Shorter Oxford, Murray). On the contrary, the structure of the section strongly suggests the broader meaning... It seems to me that paragraph (a) is intended to deal with bringing the drug into existence by means of secondary production and (b) is intended to deal with bringing it into existence by means of primary production. Paragraph (b) is intended to deal with the whole process of production of the drug from the soil...

In my opinion, therefore, participation in the harvesting of the Indian hemp plants is sufficient of itself to constitute the crime of cultivating. [8]

34 Zelling J referred to s 5 of the Act, which imposed penalties on offences on a continuum of acts beginning with possession of the drug and including producing, preparing or manufacturing it, cultivating it, selling, giving, supplying or administering it and being the occupier of premises who allows the premises to be used for the above activities or 'for the culture of any prohibited plant'. He said that:

it would be a strange thing if the reaping of the prohibited plant was a matter not caught by sub-s 2 and those views are reinforced by sub-s (e) where the one word 'culture' is used to deal with everything other than the production of the drug itself. However what may be the fact is that cultivation can include reaping. Funk & Wagnalls' Standard Dictionary (1974), vol. 1 p. 314, says 'cultivate: (1) to work by stirring, fertilizing, sowing, and reaping, raise crops from' (the italics are mine).

The same meaning is given in the standard American Law Dictionary_,_ Black's Law Dictionary, Revised 4th ed. (1978), p. 454, 'cultivate'. The word 'cultivate' means to till, prepare for crops, manure, plow, dress, sow and reap, manage and improve in husbandry. They refer to Miller v Richey Tex. Civ. App., 173 S.W. 2d 490, 493. (The italics are mine). The word 'cultivate' comes originally from the Latin word 'culter' which means (inter alia) a pruning knife or a ploughshare (cf. English 'coulter'). So in this original meaning it would refer to a very narrow sector of cultivation, pruning or ploughing. But the word and its cognates soon widened in two ways (a) to cover all aspects of husbandry, e.g. agriculture, and (b) to embrace culture, luxury, elegancy and similar concepts.

Both these aspects are given prominence in modern languages using derivatives from the original Latin...

So it is a protean word both in Latin and in derivatives in modern languages and is well capable in a proper context, as in the relevant sub-sections of this statute, of bearing a wide connotation. I have no doubt that 'cultivate' here has a wide meaning which includes reaping.[9]

35 In R v O'Dempsey, the Queensland Court of Criminal Appeal[10] held that watering a plant that is already growing, or applying liquid fertiliser to it, amounted to cultivating a prohibited plant, in the sense of 'bestowing labour and attention upon a plant so as to promote its growth.'[11]

36 In R v Stratford and McDonald,[12] harvesting a crop was held to amount to cultivation. Macrossan J said that:

although, no doubt, an isolated act may constitute cultivation, in its ordinary conception the activity of cultivation is a continuing one and, in this sense, it is constituted by repeated and perhaps varying acts performed with a view to fostering the growth of plants, most frequently with the purpose of achieving a final harvest from those plants. In such cases, while the whole of the continuing activity would represent the totality of the cultivation, the individual acts comprising the whole of the cultivation would themselves be acts of cultivation. In other words each and all of such acts are acts of cultivation. It may be necessary to distinguish non-purposive or accidental applications of water and other acts which might be performed having an unintended effect of encouraging the growth of plants. These may not be included because both physical activity and intention accompanying that activity are involved in the notion of cultivation. The concept of cultivation involves taking seeds or plants into care for the purpose of fostering growth or further growth from them, most frequently with a view to harvesting the plants. When plants are taken into care in this sense, I would not consider that relevant acts of cultivation cease before the harvest is taken. In my opinion, it would be an unduly narrow view to suggest that a farmer's activity of cultivation ceases with his last act of tilling, fertilising, irrigating etc. occurring before he commences to gather his crop. He holds himself ready to tend his crops and supply their needs as they become manifest. He remains engaged in cultivation until he takes his crop. In practice, of course, an allegation of cultivation by a person will be established by proving that he has performed one or more specific physical actions. I consider that the correct view in the example which I have given of the farmer is that the act of harvesting itself is one of the acts of cultivation. I emphasize that in this discussion I intend to refer to plants taken into care in the sense discussed and I do not mean to suggest that a stranger who takes a leaf from a cannabis plant, which he happens to encounter, thereby is concerned in any act of cultivation... On the other hand, the meanings which I suggest and which include a final act of harvesting as part of the concept of cultivation of a growing plant taken into care, seem to make best sense of the purpose of the statute and to give proper effect to the ordinary meaning of the word.[13]

37 In both New South Wales and Western Australia, 'cultivate' is defined by statute. In New South Wales, the Drug Misuse and Trafficking Act 1985 defines 'cultivate' to include 'plant, grow, tend, nurture or harvest' a narcotic plant.[14]

38 In Eager v Smith,[15] Carruthers J held that watering cannabis seeds and preserving them in wet tissue paper with the intention of planting them amounted to cultivation, despite the fact that the plants would not survive unless they were planted. His Honour drew an analogy with the movement of cannabis leaf from one part of a farm to another, so that the plants could receive more sunlight and said:

If, whilst the plants were out of the ground during the transplanting process, they were watered and placed on wet tissue paper, it seems to me that these plants would be in the state of cultivation, even though they were out of the ground or indeed any other growing medium.[16]

39 In R v Ruiz-Avila,[17] where the appellant was found by the police to be in possession of drying equipment and to have a large quantity of cannabis hanging from metal racks in his flat, the New South Wales Court of Criminal Appeal held that it would have been open to the jury to hold that the cannabis was stored as the last stage of the harvesting process, and therefore amounted to cultivation. In that case, however, the Court considered that the judge misdirected the jury by telling them that as a matter of law, storage was part of harvesting, when this was a question of fact to be determined in the circumstances of the case.[18]

40 In Buiks v Western Australia,[19] the Western Australian Court of Criminal Appeal considered the meaning of cultivate, which is defined by s 3(1) of the Misuse of Drugs Act 1981 (WA) in the following terms:

in relation to a prohibited plant, includes to grow, sow or scatter the seed produced by, or to plant, nurture, tend or harvest, the prohibited plant.

41 Buss JA considered that the word 'harvest' bore its natural and ordinary meaning, as meaning 'to gather a crop or part of a crop of a prohibited plant from the place where it has been growing.' Although his Honour considered that the word should be given a broad meaning, he said that it was unnecessary to define it exhaustively. Whether a particular activity could amount to harvesting within the prohibition in the Act would depend on the particular facts and circumstances.[20] Murray JA also held that the term 'harvest' had a broad meaning. He commented that:

Under the Act, cultivation includes harvesting, and within the ordinary meaning of the word 'harvest' may be accommodated not only the removal of the whole or part of a growing plant from the soil, but also those peripheral or ancillary activities preparatory to the process by which the prohibited drug to be derived from the plant might itself be prepared to be available for sale or supply.[21]

42 I would reject the submission that his Honour erred by treating activities associated with the activities listed in s 70 as being included within that definition. That argument simply asserts what the appellant seeks to establish, which is that servicing a watering system is not cultivation itself, but is simply an activity associated with cultivation in the sense of tending and nurturing.

43 The proposition that s 70 extends the ordinary meaning of cultivation should not be accepted, in light of the authorities discussed above. They show that a wide range of activities, including harvesting, come within the natural and ordinary meaning of cultivation, even in the absence of a definition of the kind included in s 70.

44 The view that 'cultivate' should be interpreted broadly has, to some extent, been based on the way in which the relevant legislation is structured. In Giorgi, for example, both King CJ and Zelling J referred to the structure of the offences created by s 5 of the Narcotics and Psychotropic Drugs Act 1934 to support the view that 'cultivate' should be given a broad meaning, in order to avoid gaps in the coverage of the legislation.

45 As was the case in Giorgi, the structure of the Drugs, Poisons and Controlled Substances Act 1981 also indicates that 'cultivate' should be interpreted expansively. Part V of that Act creates a continuum of offences which punish acts ranging from possession and use of a drug of dependence,[22] cultivation of various quantities of the drug,[23] possession of substances, material, documents or equipment with the intention of using the same for the purposes of trafficking in a drug of dependence,[24] and trafficking in various quantities of a drug of dependence.[25]

46 A definition of 'cultivate' which includes the ongoing maintenance of equipment to deliver water or nutrients to a crop is consistent with that legislative scheme.

47 Because 'cultivate' has a broad meaning at common law, it covers the activity of tending and nurturing a plant.

48 In my opinion, the ongoing maintenance of a hydroponic system which regularly delivers water and nutrients to a growing crop to foster its growth is not an activity associated with an activity listed in s 70, but comes within the words tend or nurture in paragraph (b) of the statutory definition (at least if done on a regular basis). Such an activity is analogous to manually watering a crop or putting nutrients on it. Accordingly, it is unnecessary to extend the meaning of 'tend' or 'nurture' to cover activities associated with tending or nurturing, in order to include the ongoing maintenance of the hydroponic system.

49 Because cultivation normally involves an activity which occurs frequently or regularly, one or two visits to premises to repair a hydroponic system would not necessarily amount to 'cultivating' a crop growing there, any more than turning on a tap on a hose on a single occasion, knowing that the hose was watering a cannabis crop, could amount to cultivating it. The appellant's conviction did not require an extension of the definition in s 70 to cover activities associated with the listed activities.

50 For the purposes of this case, it is unnecessary to define the circumstances in which maintenance of a hydroponic system would fall within or outside the definition of cultivation in the sense of tending or nurturing a crop. As Buss JA said of the meaning of 'harvest ' in the Western Australian Misuse of Drugs Act, whether an activity amounts to cultivation will depend on the facts and circumstances of the particular case.

51 I accept that there may be circumstances in which an activity associated with an activity listed in s 70 may not amount to cultivation. For example, the activities of testing soil to ascertain its suitability before a crop is planted, or of packing a crop after it has been harvested, may not amount to cultivating the crop. However, this not such a case.

52 The appellant conceded that he knew that cannabis was being grown on the premises. There was evidence that he had visited the premises on four occasions and remained on the premises for significant periods. The Crown case was that the circumstantial evidence justified the jury drawing the inference beyond reasonable doubt that he was cultivating the crop. The defence case was that he had simply maintained the hydroponic system.

53 The system was set up to deliver water and nutrients to the crop on a continuous basis. The actions of a person who sets up or maintains such a system may amount to tending or nurturing the crop and, it follows, of cultivating it. In the circumstances of this case, the judge's direction reflected the evidence and adequately reflected the Crown and defence cases.

54 There may be circumstances in which an activity associated with an activity listed in s 70 may not amount to cultivation. This is not such a case. Even if the judge should not have told the jury that cultivation includes an activity associated with an activity covered by s 70, that error was not material having regard to the nature of the Crown and defence cases.

55 In discussions with counsel regarding the jury's second question, the trial judge said that he proposed to direct the jury that servicing the watering system came within the definition of 'cultivate'.

56 Defence counsel submitted that would constitute a 'direction to convict' and argued instead that 'maintenance is not cultivation'. Counsel submitted as follows:

we agree that if you were the man to turn the water on, you are cultivating, plain as day... But we are one step back from there. We are enabling the system to be there in place.

...

Your Honour hasn't understood that there is a distinction between the man who turns the water on and the man who maintains the system. The man who maintains the system - there's your system; it's made. If you want to go ahead and cultivate, that's your problem.

In respect to the second question which was put, does the servicing of the water system come under the definition of cultivation, the answer to that is yes.

58 The appellant submits that this direction was erroneous, and that in giving it, the judge usurped the fact-finding role of the jury. The jury's question was not whether the servicing of the water system 'could' amount to cultivation, but rather, 'did' the servicing of the watering system amount to cultivation. The judge's affirmative answer to the question was said to involve an instruction that servicing necessarily involves cultivation, regardless of the particular circumstances of the case.

59 The appellant argues that the fact that this was a misdirection was reinforced by the fact that the question posed was 'does the servicing of the water system' amount to cultivation. Counsel for the appellant contended that use of the word 'the' specifically related the second question to the facts of the case, rather than to a broader question about whether the servicing of a watering system could ever amount to cultivation within s 70.

60 The appellant further submits that even if the judge did not err in answering the jury's question in the affirmative, his Honour should have also directed the jury that:

• the actus reus of the offence was not sufficient. Rather, servicing the water system would amount to cultivation only if it were accompanied by an intention to cultivate (as opposed to an intention to maintain the equipment); and
• there was no direct evidence that the appellant had serviced the watering system.

61 Although the trial judge gave general directions as to the element of intention, the appellant argued that the judge's answer to the second question would have overtaken these directions, which had been given some three days earlier.[26] The judge directed the jury as follows:

The third element that the prosecution must prove beyond reasonable doubt is that the accused intentionally cultivated not less than a commercial quantity in Count 2 or a large commercial quantity in Count 1, that is of plants by number and weight is alleged in this case.

There are two parts to this element. The prosecution must prove that the accused cultivated not less than a commercial quantity in Count 2 or a large commercial quantity in Count 1, Cannabis L. They must also prove that the accused intended to cultivate not less than a commercial quantity or large commercial quantity in considering either Counts 1 or 2.

The first part of this element will be satisfied if the prosecution has proved beyond reasonable doubt that the accused cultivated not less than a large commercial quantity of cannabis plants in Count 1 or not less than a commercial quantity in Count 2.

It is not necessary for the prosecution to establish the precise number or the precise weight of the plants cultivated by the accused for this part of the element to be met. They need only establish that the amount cultivated was not less than the amount specified by law as I have directed.

In calculating the weight you should use the weight of the plants as you determine it to have been at the time the offence was committed rather than what it would have been when it was dried or ready for consumption. For this third element to be satisfied the prosecution must also prove beyond reasonable doubt that the accused intended to cultivate not less than a commercial quantity in Count 2 or large commercial quantity of plants in Count 1.

That is that he deliberately cultivated not less than a commercial quantity as I have defined it for you in Count 2, and in the large commercial quantity in Count 1. The prosecution need not prove that the accused intended to cultivate the precise number or weight of plants. It is sufficient for the prosecution to prove that the accused intended to cultivate not less than the relevant weight or number of plants as I have described for you.

It is also not necessary for the accused to have intended to have cultivated a precise number or weight of the Cannabis L. This part of the element will be satisfied as long as the accused intended to cultivate either not less than a commercial quantity in Count 2 or a large commercial quantity in Count 3 by the number of plants alleged or the weight alleged.

In determining whether the accused intended to cultivate not less than a commercial quantity in Count 2 or a large commercial quantity in Count 1 you in the circumstances of this case will need to decide whether you could draw an inference from the evidence that has been led before you that he had this requisite intention.

You will remember the direction I gave you just before lunch as to the drawing of inferences. It is open to you to draw an inference, as I have directed you. It is open for you to draw this inference if you find that the accused knew or believed that he was cultivating not less than the commercial quantity by weight or number alleged in Count 2, or not less than a large commercial quantity as alleged by weight or numbers in Count 1.

You do not need to find that the accused actually knew he was cultivating not less than a commercial quantity in Count 2 or not less than a large commercial quantity in Count 1 in order to draw this inference. Proof that the accused was aware that there was a significant and real chance that he was cultivating not less than a commercial quantity as alleged in Count 2 or a large commercial quantity as alleged in Count 1 by weight or number of plants is also capable of sustaining the inference that he intended to cultivate that quantity of plants.

That means that if you find that the accused was aware of the likelihood that he was cultivating not less than a commercial quantity as defined by me in Count 2 or a large commercial quantity as defined by me as to number and weight you may draw an inference that he had an intention to cultivate that quantity of plants.

That is you may infer that because the accused was aware that there was a significant and real chance that he was cultivating not less than a commercial quantity in respect of Count 2 or a large commercial quantity in respect to Count 1 by weight or numbers that he must have intended to cultivate that number or weight of plants.

I direct you as a matter of law that in considering Count 1 and other counts which are open to you to consider where the Crown is obliged to prove beyond reasonable doubt a specific state of mind or intent of the accused, that is that the accused in respect to Count 1 intended to cultivate Cannabis L in the quantity not less than a large commercial quantity and in respect to Count 2 an intention to cultivate Cannabis L in not less than a commercial quantity, that you the jury are entitled to infer the accused's state of mind at the relevant time.

Again I remind you of the direction I gave you before lunch about drawing inferences from facts that you are satisfied have been established beyond reasonable doubt. It is clear in this case as the parties have put to you that there is no direct evidence of the accused's state of mind or direct evidence of him doing anything in relation to the actual plants at each of these premises.

However you the jury are entitled to look at the surrounding circumstances of the presence, conduct and involvement of the accused as you find that to be in respect to each of the premises and in respect to each of the counts that you are to consider which arise for your consideration in respect to those premises, whether they be the counts that are on what is called the formal document, the presentment, or as I will direct you shortly, statutory alternatives that are available to you in respect to those two counts.

You are entitled to look at the accused's proven actions. That is what you are satisfied beyond reasonable doubt that he did or said at the time immediately before and at the time of the offending alleged and you are entitled to consider all these circumstances or facts established to your satisfaction beyond reasonable doubt as assisting you or helping you determine what was in his mind or his intention at the time of the commission of the charge or count that you are then considering.

You are entitled to infer his state of mind or intention from the facts that you are satisfied have been proved beyond reasonable doubt provided that you draw that inference, keeping in mind and applying the direction of law I gave you about drawing inferences.

It is for you to determine in this case whether from all the circumstances and facts that you find established that you are satisfied beyond reasonable doubt that the accused had the relevant intention as I have defined it for you in respect to cultivating a narcotic plant in not less than a large commercial quantity in Count 1 and not less than a commercial quantity in Count 2.

However I remind you that you may not draw such an inference unless you are satisfied on the facts that you find proved beyond reasonable doubt that it is the only reasonable inference open to you in the circumstances.

If any other reasonable inference or explanation is available, then the prosecution will not have proved this third employment beyond reasonable doubt. In this case, the Crown says that you should draw this inference, that is, that the accused intended to cultivate not less than a large commercial quantity in respect of Count 1 or not less than a commercial quantity in respect of Count 2.

The accused's case is that there is no evidence upon which you could come to that conclusion, and that even on the facts that you find established beyond reasonable doubt, it would be to act on suspicion and speculation if you were to make the jump to that conclusion. Mr Dane QC, on behalf of the accused, says that there is not sufficient material, as I understand him, before you for you to be satisfied of facts and circumstances which would entitle you to draw an inference as to the guilt of the accused, that is, that he had the intention to cultivate not less than a large commercial quantity in respect of Count 1 or not less than a commercial quantity in respect of Count 2. He says, in his submissions, that it would be speculating and that the facts do not enable you to come to that conclusion, because he says there is an equally open hypothesis open to you that his client was simply a service provider for the equipment rather than a man who cultivated the drugs.

It is important for you to keep in mind that it is for the prosecution to prove beyond reasonable doubt that the accused had the relevant intention, so that if you are not satisfied that the accused knew or was aware that he was cultivating not less than a large commercial quantity by weight or number of plants in respect of Count 1 or not less than a commercial quantity by weight or number of plants in respect of Count 2, and there is no other basis upon which you can infer that the accused intended to cultivate that amount of cannabis L as required in each of those two counts, then this third element will not have been met.

62 The appellant contended that in answering the second question affirmatively, his Honour removed the question whether maintaining the watering system constituted cultivation in this case from the jury's consideration. Thus, the appellant was effectively deprived of his defence.

63 If this ground of appeal were upheld, the appellant contended that it is not appropriate to apply the proviso. Because the defence had conceded that the appellant had maintained the hydroponics equipment at Merri Concourse, the whole trial turned on whether his actions amounted to cultivation.

64 Although the errors complained of relate to count 1 (cultivation of cannabis at Merri Concourse), counsel for the appellant also submitted that the errors necessarily 'infect' the remaining counts, including those relating to the Merola Way property. As the appellant was a hydroponics professional, it was arguably open to the jury to conclude that his role at Merola Way was also to maintain the equipment there. Thus his Honour's misdirection was relevant to both convictions.

65 In its written case, the Crown conceded that the judge erred in directing the jury that servicing the watering system constituted cultivation, but this concession was withdrawn at the hearing of the appeal. The Crown contended that there was no error in the answer provided to the second question, which was a question of law, not a question of fact.

66 The Crown also pointed to the direction given by the judge that:

The first element that the Crown must prove is that the accused intentionally cultivated a plant. That element is in hot dispute in this case and ultimately will be a matter for you, the jury, on the basis of the evidence whether you are satisfied beyond reasonable doubt that in fact he did cultivate a narcotic plant.

67 Counsel for the Crown contends that if the jury's function was indeed usurped with respect to Merri Concourse, this does not explain the convictions returned with respect to the remaining three counts.

Did the judge's answer to the second question direct the jury to convict the appellant?

68 I have found this a difficult question. In considering whether the judge's answer to the jury question could be regarded as a direction to convict the appellant, the relevant section of the jury charge must be read in context. The direction given prior to the answer to the second question is set out above.

69 Immediately after answering the jury's question in the manner set out above, the judge summarised the evidence and counsel's submissions. He referred to the defence case that although the appellant knew that cannabis was being cultivated at these premises, he was only the maintenance man. His Honour then referred to the circumstantial evidence relied upon by the Crown, in support of count 1. He then said:

The accused is not obliged to prove anything, and there is a lack of direct evidence as to what it is that he did, however you have been asked by the Crown to draw the inferences and I have already given you a direction about that. It is a matter for you whether you are prepared on the facts that you find established beyond reasonable doubt that you are prepared to draw the inferences that the Crown seek that you draw.

That evidence relates to Merri Concourse and it is evidence that you would consider firstly in relation to Count 1 as it is, that is that the accused intentionally and knowingly cultivated not less than a large commercial quantity. If you are not satisfied of any of the elements as I have defined them for you, you would consider whether he cultivated cannabis L a narcotic plant in not less than a commercial quantity, and then finally there is the final alternative of cultivation simpliciter as I have explained and directed you on it.

And also of course the Crown seek that you draw inferences from all those facts that the Crown rely on and say you should be satisfied beyond reasonable doubt to draw an inference that the accused stole electricity by the bypass and which was used in the cultivation of this cannabis.

70 In relation to the theft of electricity charges, his Honour said:

In respect to the charges 3 and 4 which are the theft of electricity charges, there is no direct evidence that the accused put the bypass into place or carried out the bypass or that he on any occasion whether at Merola Way or Merri Concourse used any electricity. The Crown rely on you drawing inferences of his guilt from the evidence which is probably admissible as I have set out in respect to Count 1 and Count 2, and the Crown say if you are satisfied beyond reasonable doubt of those facts that the Crown rely on, then you would be entitled to draw inferences that the accused stole electricity in respect of either or both of these premises.

The Crown say the illegal bypass is clearly being used in each premises. The Crown submits you should be satisfied beyond reasonable doubt that the accused cultivated cannabis in each of these premises as I have explained to you, and in respect of each property, and they submit that you should be satisfied beyond reasonable doubt that he stole electricity in order to achieve this purpose.

The defence says there is absolutely no evidence to establish either of the two counts of theft, or indeed the other charges that the accused faces or that you are obliged to consider and that it is based on sheer speculation and guesswork and suspicion, and that you are not permitted to act on speculation and guesswork or suspicion and accordingly, you could not draw those inferences. So that is the evidence as it relates to each of the counts that you are obliged to consider.

71 After referring to the defence argument that the appellant was just 'a maintenance man', his Honour referred to the Crown submissions as follows:

He met the argument by the defence that the accused was merely the maintenance man and provided assistance in the maintaining of the machinery and equipment after providing the equipment to whoever it was, that is said to have been running this cultivation. He asked you to consider, in assessing that argument by the defence, if the accused was a mere tradesman going about his normal business, why not park in the car park, why not park in the factory, which was clearly over available and had a number of parking spots available? Why park in Lara Way, why leave his car in the shopping centre car park?

He relied on the attendance by the accused with Spiteri in the rental truck on the day that there was a trip to the tip. He asked why transfer items from his car to the car of Spiteri in the car park and then have Spiteri drive him in Spiteri's car to the factory and leave his own car in the shopping centre car park? He asked you to look at the videos in the way that he arrives at the factory; he is in casual clothes. Where are his tools if he is the maintenance man, asked the prosecutor.

He submitted to you that you would be satisfied beyond reasonable doubt on the facts that he relies on and that you would draw the inferences that he seeks to draw in order to be satisfied beyond reasonable doubt that the accused cultivated Cannabis L in a quantity not less than a large commercial quantity and that he stole electricity in order to do so. He submitted that the bypass was obvious and he submitted to you that you should be satisfied beyond reasonable doubt of each of the primary charges that have been laid against the accused, Counts 1 and 2, and the two associated charges of theft of electricity.

72 His Honour then summarised the defence case at some length. In relation to Merri Concourse, he told the jury that

it was crystal clear or abundantly clear that somebody intended to cultivate a large commercial quantity, but it was not the accused.

But he conceded that it was open to you, the jury, to draw inferences, but submitted to you, you could not draw the inferences that the Crown says you should draw, because there is an equally open competing inference, that is, he submitted that you should accept that the accused knew the cannabis was being cultivated on these premises, but that his role was to maintain the equipment and limited to that.

Mr Dane conceded, as I understood him (A) That his client had been running a hydroponic business and had at least 12 or 13 years experience or more than 10 years experience, (B) That there was a vast amount of equipment which needed maintenance and care at this hydroponic set up, (C) That his client was the maintenance man, (D) That his client knew what was happening at the factory, that is, that cannabis was being grown, that he was experienced in hydroponic equipment, that he was able to recognise cannabis was growing, the smell was present, the doors on the day of his arrest were open and he would have seen it and he knew that it was being grown. He conceded the accused had knowledge someone was cultivating a decent quantity. He submitted that even if you look at the equipment, the banks and banks of equipment and the machinery, it is the sort of equipment that he, the accused, knew is required to grow the stuff by his reference to growing the stuff, you would be entitled to understand that it meant growing the cannabis L.

But Mr Dane submitted that he was the maintenance man, that you are not permitted to reason, well, if we accept that he was the maintenance man, that he knew that the cannabis was being grown, that you should not jump to the conclusion that he was the cultivator. He submitted there was no evidence he cultivated this cannabis crop; that the Crown could not point to any item or any activity in the list of items that go to him to be included in cultivation, as having been carried out by the accused.

Mr Dane submitted that you could not be satisfied beyond reasonable doubt of his guilt on Count 1 or the associated count of theft of electricity or any of the statutory alternatives available for you to consider, not could you be satisfied beyond reasonable doubt of his guilt on Count 2 or the associated theft of electricity or any statutory alternative that you are obliged to consider.

73 Later on the same day, his Honour re-directed the jury about the evidence of Frank Moscaro, the appellant's accountant, who gave evidence for the defence that the appellant was running a legitimate hydroponics supply business. His Honour linked this evidence with defence counsel's submission that his client was the maintenance man and not a cultivator. He said:

I remind you that by my reference to that evidence is to bring to your attention that you are entitled to use that evidence in considering the submission by Mr Dane as to the competing hypothesis and remind you that the accused of course does not have to prove anything in a criminal trial.

74 I was initially inclined to take the view that the careful directions which preceded and followed the judge's affirmative answer to the second question, sufficiently qualified that answer. On balance, however, I have concluded that ground 2 is made out. Unfortunately, the judge told the jury that the answer to the second question was 'yes', rather than that the servicing the hydroponic system 'could be' cultivation. That may well have been sufficient to persuade some members of the jury that maintenance necessarily involved cultivation.

75 Although ground 2 is made out for that reason, I do not accept that his Honour failed to give the jury an adequate direction as to the mens rea required for the offence. That is because after the judge answered the jury question, he told the jury that the elements of the offence covered by count 1 required proof beyond reasonable doubt that the accused 'intentionally and knowingly' cultivated a large commercial quantity of the drug.

76 Because the second ground of appeal relating to counts 1 and 3 (Merri Concourse) succeeds, it is necessary to decide whether the conviction on counts 2 and 4 must also be set aside. The appellant argued that these convictions were

infected by the error in relation to counts 1 and 3.

77 I would reject that submission. His Honour carefully summarised the evidence in support of each count and gave the jury a separate consideration direction. It was not argued that this direction was inadequate. The appellant's conviction on count 2 and on the count of theft of electricity at those premises indicates that the jury was satisfied beyond reasonable doubt that he was guilty of both these offences. The appellant did not rely on a ground of appeal claiming that the jury verdicts were unsafe or unsatisfactory.

78 For these reasons, I would allow the appeal against conviction on counts 1 and 3 and order a retrial on those counts. I would dismiss the appeal against conviction on counts 2 and 4.

79 The trial judge sentenced the appellant to four years' imprisonment on count 2 (cultivation of a commercial quantity of a narcotic plant) and nine months' imprisonment on count 4 (theft of electricity). His Honour ordered that one year and two months of those sentences be cumulated on the seven year sentence imposed on count 1. A compensation order in the amount of $16,155.03 was made with respect to the Merola Way property, and a compensation order in the amount of $38,696.24 was made with respect to Merri Concourse.

80 The individual sentences of imprisonment imposed below in relation to counts 2 and 4 are affirmed. I order that two months of the sentence imposed on count 4 be served cumulatively on the sentence imposed on count 2, amounting to a total effective sentence of four years and two months' imprisonment. I would fix a non-parole period of two years and six months, and confirm the compensation order in the amount of $16,155.03 made in respect of the Merola Way property.

81 I have had the benefit of reading in draft the reasons for judgment of Neave JA.

82 In relation to ground 2, I consider that the judge misdirected the jury when he told them that the servicing of the equipment constituted cultivation. That direction precluded, or created a real risk of precluding, the jury from considering what it is that they were satisfied the accused was doing and whether his conduct, as so found, constituted 'cultivation'.

83 I agree, for the reasons stated by Neave JA, that the appeal against conviction on counts 1 and 3 should be allowed and a retrial ordered on those counts and that the appeal against conviction on counts 2 and 4 should be dismissed.

[2] [2005] VSCA 300, [41].

[3] Schedule 11, Part 2.

[4] R v Giorgi and Romeo (1982) 31 SASR 299 ('Giorgi').

[5] Giorgi (1982) 31 SASR 299.

[6] (1982) 31 SASR 299.

[7] (1982) 31 SASR 299.

[9] Ibid 308-9. In R v Palaga (2001) 80 SASR 19, 136 Gray J said that 'parliament intended the word 'cultivate' to have a broad meaning in the context of the Controlled Substances Act. The process of taking cuttings and placing them in Heat and Grow trays comes within the meaning of cultivate.' In that case the appellant was charged with 'attempting to produce' and produce was defined as including produce by any method whatsoever, including cultivation.' His Honour differed from the majority on one of the points to be decided, but agreed in the result.

[10] Lucas SPJ, Williams and Dunn JJ agreeing.

[11] R v O'Dempsey [1982] Qd R 174, 175-6. See also R v Kirkwood [1982] Qd R 158, 160-1.

[12] [1984] 1 Qd R 361, 368 (Ryan J agreeing, DM Campbell J dissenting on the meaning of 'cultivate').

[15] Eager v Smith (1988) 38 A Crim R 272.

[17] [2003] NSWCCA 264; (2003) 142 A Crim R 459.

[19] [2008] WASCA 194; (2008) 188 A Crim R 362.

[25] Sections 71, 71AA, 71AB and 71AC. Other offences include possession of precursor chemicals (s 71D) and possession of a tablet press (s 71C).

[26] The direction as to elements was given on 8 October 2010, whereas the answer to the question was on 11 October.