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[2017] VSCA 33
Court of Appeal (Vic)
2017-03-01
Mr J, Weinberg JA, Kyrou JA
Original judgment source is linked above.
4 He subsequently abandoned reliance upon ground 1(a)(ii). Accordingly, nothing more need now be said about that proposed particular of the ground.
5 It should be noted that schedule 11 to the Drugs, Poisons and Controlled Substances Act 1981 provides that a commercial quantity of cannabis consists of at least 25 kilograms, or 100 plants. In the present case only 16 mature plants were being cultivated. Accordingly, the charge was based on the weight of the cannabis alone.
6 On 21 November 2014, police executed a search warrant at the applicant's home. He was present at the time, and led police to his garage, which he accessed by typing a code into a security pad. At the rear of the garage there was a concealed room (known as 'GR1') which contained a small cupboard that was being used to grow cannabis. A door in the garage led to another room, which was also being used to grow cannabis (known as 'GR2').
7 In GR1, police found two large clear ziplock bags, and eight small jars containing cannabis. They also found a number of power transformers, a globe baton, assorted light globes, a water pump, two large chopping fans and a calendar containing cultivation entries. The police seized five small cannabis plants, two power transformers, one large light globe and one light shroud. The plants were fresh, measuring 35 to 60 centimetres. They were slightly bushy and immature, and weighed a total of 1.25 kilograms. These plants were classed as 'mother plants', and were used to grow other plants. Police also located a sum of $6800 in cash, and a quantity of ammunition.
8 In GR2, police located 16 cannabis plants. They also found a quantity of loose cannabis leaf, a number of power transformers, some 16 large light globes, light shrouds and one power board. The loose cannabis leaf was mixed with other non-identifiable material and weighed a total of 1.04 kilograms.
9 The 16 cannabis plants were wilted, bushy immature female plants measuring approximately 90 to 110 centimetres in height. They weighed a total of 34 kilograms. The leaves and flowering heads of the plants were estimated to weigh 20.1 kilograms. That would equate to approximately five kilograms of air dried cannabis.
10 The total weight of all 21 cannabis plants seized was 35.25 kilograms. The combined weight of the air dried cannabis was 838.1 grams. The combined weight of all the cannabis found in the garage was 37.12 kilograms.
11 The applicant was placed under arrest, and subsequently interviewed. He told police that the plants were eight weeks old, but otherwise gave a substantially 'no comment' interview.
Background facts regarding decision to plead guilty
12 In support of his application before this Court, the applicant has affirmed an affidavit dated 4 July 2016. In that affidavit he deposed that, after he had been charged, he retained the firm of Thexton Lawyers to act for him. That firm had earlier acted for him in a family law dispute.
13 According to the applicant, Thexton Lawyers conducted research into the penalties typically imposed in this State for the offence of cultivating a commercial quantity of cannabis. He was advised, correctly it would seem, that those penalties had been increasing in recent years. He was told, for example, that in the years 2014 and 2015 about 75 percent of those charged with that offence were given custodial sentences. That contrasted starkly with the figure of only about 10 percent in preceding years.
14 The applicant deposed that he told his solicitors that, if it were at all possible, he wished to defend the charge of cultivation of a commercial quantity. He indicated that he was willing to plead guilty to a charge of cultivation simpliciter, and instructed his solicitors to offer a plea on that basis. He said that he had asked his solicitors whether police would be 'going after my house'. He claimed that they told him that his house would be safe.
15 The applicant went on to say that he was never told, at any stage, that, in order to sustain a charge of cultivation of a commercial quantity, the prosecution would have to prove that he intended to cultivate not less than 25 kilograms of cannabis. Indeed, he said that his solicitors never raised with him the question of his intention to grow a particular weight of cannabis.
16 On 17 March 2015, the applicant offered in writing to plead guilty to a charge of cultivation simpliciter. On 26 March 2015, that offer was rejected. No reasons were given.
17 On 10 April 2015, the applicant was asked to admit that the weight of the cannabis was as alleged by the prosecution. He was also asked to consent to its destruction. On the advice of his solicitors he obtained a report dated 28 April 2015, from Dr Andrew Drinnan, a forensic botanist. Dr Drinnan examined the cannabis and concluded that the weight alleged was correct. Plainly enough, the reason why the applicant arranged for that report to be obtained was to see whether the weight of the cannabis could somehow be brought down.
18 Dr Drinnan's report was in part in the following terms:
In summary:
The plants were presented in large hessian bags. The bags were labelled with exhibit numbers and the Item numbers listed on the FSD Statement.
I note the following:
Item 1 was listed as 'pooled from two plastic bags ...'. In fact these two bags were still separate, and they were not the same. One bag consisted of very seedy cannabis heads, and together with the sample weighed 467 g. This level of 'seediness' is uncommon, and undesirable, and they would likely not have been of high value. The other bag (282 g) was mostly leafy, with little head material.
Items 2 and 3 were the only qualify Cannabis head, with a combined weight of 100 g.
Item 4 consisted of small immature plants. The FSD sample, which weighed 43 g on 25-11-14, weighed only 7 g (dry) on my inspection. The difference is the water lost as it dehydrated from the fresh to dry state. Accordingly, the dry weight of Item 4 would be 203 g (=16% of 1.25 kg).
Item 5. The FSD sample plant, had a leafy component, with some early flowers, that weighed 244 g (dry). So 16 such plants would have had approximately 4 kg (the whole item would have had a dry weight of approximately 7.5 kg). Note that leaves themselves are not valuable as they contain little of the active narcotic ingredient (THC), as evidenced by the trimmed nature of the heads in Items 1-3. It is difficult to predict the amount of head these plants would have yielded if grown to maturity, but it would be unlikely to have exceeded the weight of the leaves.,
Item 7 was most likely rubbish to be discarded.
19 This report was of little use to the applicant in terms of reducing the actual weight of the cannabis grown as support for a defence to the charge of cultivating a commercial quantity. The fact that much of the cannabis grown would have been of little use was of no consequence when it came to assessing weight. The entire legislative scheme contemplates that the weight of any cannabis grown is to be ascertained by weighing the entire plant, and not merely those parts that may be capable of being used.
20 On 14 May 2015, the applicant once again offered a plea of guilty to a charge of cultivation simpliciter. That offer was again rejected.
21 According to the applicant, his lawyers advised him, at that point, that he had 'no real chance' of defeating the charge of cultivating a commercial quantity. He said that his solicitors advised him that his best chance of avoiding a term of imprisonment would be to plead of guilty to that charge.
22 The applicant said that it was on the basis of that advice that he eventually pleaded guilty on 8 September 2015, in the County Court, to the various charges brought against him. As previously indicated, on 10 December 2015, he was sentenced to a term of four months' imprisonment, combined with a 30 month Community Correction Order ('CCO').
23 It was not until a week or so after he had been sentenced that the applicant was served with a copy of a restraining order over his property. That restraining order applied not just to his home, but also to several bank accounts. The applicant said that this was the first time the prosecuting authorities had indicated that they would be seeking forfeiture of his home.
24 The plea hearing began on 8 September 2015, and thereafter took on a series of unusual aspects. The first day began badly. The applicant's solicitor, Mr Glenn Thexton, sought to have his client arraigned, and then to have the plea immediately adjourned.
25 Not surprisingly, perhaps, the judge was not sympathetic to that application. It seems that no adequate notice of any adjournment application had previously been given. Nonetheless, despite his misgivings, the judge adjourned the hearing until 13 November 2015.
26 On that date, Mr Thexton sought to rely upon two psychological reports regarding the applicant that had been obtained, somewhat belatedly. The judge expressed annoyance because no adequate notice had been given of an intention to rely upon material of that kind.
27 His Honour also expressed concern at the fact that two character references that were tendered were drafted in almost identical language, suggesting that the authors of those references had colluded in their preparation.
28 After lengthy, and it must be said, somewhat unhelpful, submissions regarding the applicant's family situation and, in particular, his role in caring for his children, the plea switched to the nature of the offending itself. His Honour observed, at that point, that there was no suggestion that this crop had been anything other than a sophisticated commercial venture.
29 When it came to the issue of the weight of the cannabis, Mr Thexton readily acknowledged that it came to just over 37 kilograms. He did note that this was 'wet material', but made nothing of that fact. Significantly, he did not seek to rely upon Dr Drinnan's report.
30 It was further noted in passing that the applicant's home was valued at approximately $350,000, but was heavily mortgaged. It seems that this was said in the context of the judge having to ascertain how much, if at all, the applicant should be fined for these offences.
31 Eventually, after lengthy discussion, his Honour indicated that he was minded to remand the applicant in custody that day. He foreshadowed, at that stage, that the applicant would ultimately be sentenced to a term of imprisonment. For some reason this seems to have come as a shock to the applicant. At that point, Mr Thexton asked for time in order to seek instructions as to how long the applicant might need to get his affairs in order.
32 This particular dialogue between the judge and Mr Thexton seems to have been the last straw for the applicant. He told the judge that, earlier that day, he had requested Mr Thexton to 'step down'. He complained that Mr Thexton had not dealt adequately with 'half of the questions' that his Honour had been asking. The judge then left the bench temporarily.
I would say the client's expectations haven't been managed in accordance with the immediate term of imprisonment and that is a fault of my firm.
34 The judge responded by saying that he could not understand what Mr Thexton meant. His Honour went on to say:
If at the end of the day a judge is against you in terms of the proposed disposition then it's not your fault, all right?
35 It was at that point that Mr Thexton made it clear that his client firmly wished to dispense with his services, and to represent himself on the plea.
36 The applicant then commenced something of a diatribe against Mr Thexton. He accused him of having given 'wrong answers' to questions put by the judge. His Honour was plainly troubled by the applicant's comments, but gave him full reign to speak.
37 It must be said that, in the course of doing so, the applicant did himself few favours. He referred to his having decided to start 'the big crop'. He insisted that Mr Thexton had assured him that, whatever happened, he would not be imprisoned that day. He acknowledged, however, that what he had done deserved 'a big, big punishment'.
38 Eventually, albeit with some reluctance, the judge acceded to the applicant's submission that he not be sentenced that day, but instead released on bail pending further submissions. The judge warned the applicant that it was likely that, when the matter next came before the Court, he would be imprisoned. The case was then adjourned.
39 On 25 November 2015, the plea hearing resumed. Mr Thexton, despite previously having had his retainer terminated, once again appeared. There were then some further discursive submissions put forward. Mr Thexton relied upon what he said were 'exceptional circumstances', warranting leniency, based upon the applicant's family situation. It was also submitted that if the applicant were to be imprisoned, he would probably find himself in default on his mortgage, and accordingly lose his home.
40 Mr Thexton next submitted that the gravity of the offence should be moderated by the fact that there were only 16 viable plants (together with the five small 'mother plants'). The judge responded by noting that this was of little consequence, since the Court was concerned with the weight of the plants, and not their number. His Honour pointed out that this was not a case of the weight being a 'touch' over 25 kilograms, but rather being just over 35 kilograms. He added:
I'm going to sentence him for what he has, but what he has is a commercial quantity. The weight is the weight, but it's the setup that's significant as well and the commerciality that you really don't take issue with, it's clearly commercial, it is designed to be commercial, that's the whole purpose here. It's an unmistakably commercial enterprise, isn't it?
41 Mr Thexton did not cavil with his Honour's description of the objective gravity of the offending. The matter was then adjourned for sentence at a later date.
42 On 10 December 2015, the proceeding came before his Honour for the last time. The judge's intention had clearly been to sentence the applicant on that day. Once again, Mr Thexton appeared. He again informed his Honour that the applicant was unhappy with the way in which his plea had been conducted, and asked him to withdraw. He told the judge that the applicant also wanted to present further submissions, in person. By that stage, his Honour had clearly had enough.
43 After affording the applicant one last opportunity to be heard, the judge sentenced him to the four month term of imprisonment, combined with the CCO to which we have earlier referred.
44 As the application before this Court involves a challenge to the applicant's conviction on charge one, and not to his sentence, it is unnecessary to say very much about the sentencing remarks.
45 Nonetheless, there are some aspects of them that are illuminating. His Honour began by noting that the maximum penalty for the cultivation of a commercial quantity offence was 25 years' imprisonment. He described the crop as a 'relatively sophisticated set up'.
46 After summarising the various mitigating factors upon which the applicant relied, his Honour noted that he had used of cannabis for many years, starting at a young age. He noted that this particular cultivation was the applicant's own venture, and that he was no mere 'crop sitter'. He observed that the applicant had grown a commercial quantity, and that he had had the intention to do so.
47 Having regard to all that had passed, his Honour imposed what seems to us to have been a merciful sentence.
Ground 1(a)(i) - circumstances impugning the integrity of the plea
48 In his affidavit to which we have earlier referred, the applicant stated that when he was charged with having cultivated a commercial quantity of cannabis, he initially believed that he was innocent of that offence. He claimed that it was only after he sought advice from his solicitors that he was told that he was likely to be convicted.
49 Indeed, the applicant said in his affidavit that he was specifically told, after having twice unsuccessfully sought to negotiate a plea to the lesser charge of cultivation simpliciter, that he 'had no real chance of defeating the commercial cultivation charge'. He said, in effect, that he only pleaded guilty because Mr Thexton made it clear to him that he had no chance of defending it.
50 The applicant went on to say that he had no knowledge whatever as to the amount of cannabis that would be generated from the plants that he had grown. He said that he had never intended to grow more than 25 kilograms of cannabis, and had never considered the possibility that the cannabis that he was cultivating would exceed that weight.
51 In his written case in support of this application, the applicant contended that, had there been a trial, the Crown would have been required to prove that he specifically intended to grow not less than 25 kilograms of cannabis. There being no direct evidence of any such intent, the case would have turned upon inference. It was submitted that, in the particular circumstances of this case, that may have been problematic. It was said that there was nothing in the evidence to suggest that any such inference could properly be drawn. In other words, it was submitted that this was by no means a hopeless case to defend, and that there was a viable answer to the charge.
52 It was further submitted, by the applicant, that his plea of guilty to cultivating a commercial quantity could not be regarded as a 'genuine acknowledgement', on his part, of guilt of that offence. The reason was that the applicant was never told by Mr Thexton that it was an element of the offence that he intended to cultivate not less than 25 kilograms. It was submitted that his solicitor's failure to provide him with adequate legal advice, coupled with his stated belief that he had never formed the requisite intent, but had only pleaded guilty because he had been told that he had no chance of beating the charge, meant that there never was a 'true acknowledgment' of guilt.
53 In support of that submission, the applicant relied primarily upon two decisions of this Court.
54 In R v Garlick (No 2),[2] the applicant was convicted, after a trial, of one count of cultivation of a commercial quantity of cannabis. The trial was conducted on a single issue, namely whether the applicant had the requisite intention to cultivate a commercial quantity. When police searched his house, they found a hydroponic cultivation set-up with 18 small cannabis seedlings in relatively poor health, and six large and healthy plants which were flowering. The total weight of the cannabis located was just over 26 kilograms.
55 The difficulty with the conviction in that case was that the trial judge had directed the jury that the Crown did not have to prove actual knowledge of the weight of the plants, provided it established that the applicant knew that there was a 'significant or real chance' that the cannabis he was growing came to at least 25 kilograms.
56 In effect, this was tantamount to a direction on 'wilful blindness', a concept that the Crown had never sought to invoke in that trial. Nonetheless, the judge made it clear to the jury, in his charge, that a deliberate failure to inquire about the weight of the cannabis that the applicant was cultivating, in circumstances where he ought to have been suspicious about that weight, would be sufficient, on its own, to enable intent to be inferred.
57 After analysing the authorities dealing with 'wilful blindness', and the 'very few' circumstances in which a direction along these lines might be appropriate, this Court concluded that there was no basis, in the evidence led in that case, for a wilful blindness direction. In other words, Garlick (No 2) was not a case in which there was any evidence at all that the applicant had deliberately refrained from making inquiries because he preferred not to know the truth. The misdirection on wilful blindness meant that the trial had miscarried.
58 It should be noted that in Garlick (No 2), there was a second ground of appeal. It was submitted that a properly instructed jury could not have been satisfied beyond reasonable doubt that the applicant in that case had intentionally cultivated not less than 25 kilograms of cannabis, given that only 26 kilograms were grown. Of course, if that ground had succeeded, a verdict of acquittal would have had to be ordered, and not merely a retrial.
59 In rejecting that second ground, Eames JA (with whom Buchanan JA and Kellam AJA agreed) said this:
The short answer to this ground of appeal is that, in my opinion, it was open to the jury to convict. Had the jury not been directed as to wilful blindness their attention would have focussed on the application of the test stated in Nguyen and Bui. Was it open to infer from the circumstances that the applicant intended to cultivate cannabis plants to a weight of greater than 25 kilograms? It is not necessary that the applicant knew that 25 kilograms was the threshold. Nor did the Crown have to prove that he knew the actual weight was in excess of 25 kilograms. If the jury was satisfied that the applicant knew that there was a real or significant chance that the plants weighed in excess of 25 kilograms at the time they were seized, then it might well also conclude beyond reasonable doubt that, both by virtue of that finding and on the evidence generally, the only inference reasonably open was that the applicant intended to cultivate in excess of 25 kilograms of cannabis.[3]
60 In R v McKittrick,[4] the applicant was also convicted of cultivating not less than a commercial quantity of cannabis. This time, however, the offence was particularised as having been made out because the applicant was growing more than 100 plants. His defence was that most of these plants were simply seedlings or, as he described them, mere 'cuttings'.
61 In the judgment of this Court, Neave JA (with whom Buchanan JA and Lasry AJA agreed) said:
The applicant could not be convicted of count 1 unless the jury were satisfied beyond reasonable doubt that he intended to cultivate at least 100 cannabis plants. If the jury were satisfied beyond reasonable doubt that the applicant knew there was a real and significant chance that he was cultivating at least 100 plants, it was open to the jury to infer that he had the requisite intention.[5]
62 Accordingly, having regard to both Garlick (No 2) and McKittrick, the applicant's submission before this Court that, had he elected to stand trial, the Crown would have had to establish that he knew that he was cultivating not less than 25 kilograms of cannabis must, at least to some extent, be qualified. The authorities make it plain that knowledge on the part of the applicant that there was a 'real and significant chance' that the cannabis he was growing not less than 25 kilograms could suffice, in combination with the other evidence in the case, to enable an inference of the requisite intent to be drawn.
63 Of course, in the present case, the applicant pleaded guilty to cultivation of a commercial quantity. By his plea he would ordinarily be taken to have admitted each and every element of that offence. That would, of course, include the requisite mens rea. In other words, by his plea the applicant would be taken to have admitted that he intended to grow not less than 25 kilograms of cannabis, whether because that was his specific aim, or because he at least knew that there was a real and significant chance that 25 kilograms or more would be grown.[6]
64 It must be remembered, however, that in both cases the test is still subjective.
65 The Crown submitted that it was plain that the applicant having been legally represented throughout and having had ample opportunity to consider his course of action had determined to acknowledge his guilt of cultivating a commercial quantity. In those circumstances, he should not be permitted to resile from that plea.
66 It was further submitted that it was entirely obvious why the applicant had chosen to plead guilty. The evidence was that he had invested significantly in the cultivation of cannabis for commercial distribution. While it was true that, had he stood trial, the prosecution would have had to prove that he intended to grow not less than 25 kilograms, that intent could readily be inferred. In that regard, a jury would have been entitled to take into account the entire body of circumstantial evidence, all of which, it was said, pointed strongly to the applicant having had the requisite state of mind.
67 It was submitted that the surrounding circumstances that the jury could have taken into account on that issue would have included the sophisticated nature of the hydroponic set-up. They would also have included the fact that the total weight of all the cannabis located in the garage came to more than 37 kilograms, well over the 25 kilogram threshold. In addition, there was the discovery of other drugs on the premises, including amphetamines, ecstasy and cannabis resin.
68 Also, the jury would have been entitled to take into account the fact that police had located a significant quantity of ammunition which, it was submitted, suggested a high level of criminality. The jury would also have been entitled to give considerable weight to the sum $6800 in cash that police found when they searched the applicant's home. It was submitted that this too suggested large scale drug trafficking. The inescapable inference was that the applicant intended to grow substantial quantities of cannabis for significant commercial gain. It would be but a short step from that conclusion to the inference that he was aware, at the very least, that there was a 'real and significant' chance that the crop would exceed 25 kilograms.
69 The Crown also noted that there had been evidence tendered on the plea to the effect that the applicant was of well above average intelligence. Moreover, he was unemployed at the time of the offending, and seemingly had no other source of income. He himself admitted that he had used cannabis for many years. Indeed, he acknowledged that his father had grown cannabis in large quantities while he was growing up.
70 In these circumstances, it was submitted, it made no difference whether the applicant had been told by Mr Thexton of the mental element necessary to establish guilt of this offence. He had shown himself to be well aware of the need to get the reading of the weight down from 37 kilograms, presumably in an attempt to bring it within the offence of cultivation simpliciter, rather than of a commercial quantity. He must have been well aware that, were he to succeed in doing so, he would face a significantly lesser penalty. His difficulty was that Dr Drinnan's report was of no use to him in that regard.
71 The Crown submitted that nothing said by the applicant, in his affidavit, about Mr Thexton not having told him that the Crown would have to establish an intention on his part to grow not less than 25 kilograms actually affected the integrity of his plea. The applicant did not assert that he had not understood that he was pleading guilty to cultivation of a commercial quantity, or that by doing so, he was admitting each and every element of that offence. Importantly, he did not contend that there was no evidence upon which he could have been convicted. There was no suggestion that his decision to plead guilty had been induced by fraud, duress or any other impropriety.
72 The Crown submitted that, as a general proposition, the failure by an accused's legal representatives to explain fully the elements of an offence to which the accused pleads guilty cannot, of itself, ever be sufficient to vitiate the plea. Nor can the fact that the lawyers acting for the accused had advised him or her (perhaps incorrectly) that the Crown case was particularly strong, and perhaps even unanswerable.
The application to adduce further evidence on the appeal
73 Faced with the applicant's affidavit, the prosecution made application under
s 317 of the Criminal Procedure Act 2009[7] for the applicant's solicitors below to be called to give evidence before this Court.
74 In an affidavit in support of that application, a solicitor from the Office of Public Prosecutions ('OPP') deposed that, besides providing a copy of the relevant file, neither Mr Thexton, nor Mr Richard Hamilton (an employee solicitor with Thexton Lawyers) had been prepared in any way to assist with the OPP's inquiries. Mr Hamilton had simply not responded to such a request, and Mr Thexton had expressed a misconceived concern regarding matters of client legal privilege. It was submitted that there could be no doubt that the applicant, by his affidavit, had waived any such privilege.
75 Upon subsequent analysis it seems clear that the Crown's application should have been brought under s 318, rather than s 317, of the Criminal Procedure Act.[8] Section 318 provides as follows:
Order for examination of compellable witness
(1) For the purposes of this Part, if the Court of Appeal considers that it is in the interests of justice to do so, the Court of Appeal may order any witness who would have been a compellable witness at the trial to attend and be examined before the court, whether or not the witness was called at the trial.
(2) If the Court of Appeal makes an order under subsection (1), it may order that the examination of the witness be conducted, in accordance with the rules of court, before any person appointed by the Court of Appeal for that purpose.
(3) The Court of Appeal may admit as evidence any deposition of a witness taken in an examination under subsection (2).
76 There seems no reason why, in an appropriate case, a legal representative who appears on behalf of an accused at trial cannot be compelled to give evidence as to matters of relevance, and therefore meet the requirements of s 318. Of course, this would almost never happen in practice. If it did, the legal representative could, on behalf of the client, decline to answer questions on the basis of client legal privilege, unless that privilege were to be waived.[9]
77 It was in these circumstances that, on 18 January 2017, this Court ordered that the Crown be granted leave, pursuant to s 318, to compel both Mr Thexton and Mr Hamilton to give evidence in response to the allegations the applicant had made against them in his affidavit. The matter was then adjourned to 3 February 2017.
78 On that date, the applicant's former solicitors, Mr Thexton and Mr Hamilton appeared, represented by Ms Bennett of counsel.
79 Mr Thexton was the first witness called. He said that he had been practising criminal law for some 10 years, and was an accredited Criminal Law Specialist. He said that he had had the primary carriage of the defence of the applicant's criminal proceeding, and that Mr Hamilton had also provided some assistance.
80 According to Mr Thexton, Mr Hamilton had told him that the applicant had said that he had been growing cannabis for a long time. He had also told Mr Hamilton that, since his arrest, he had obtained full time employment because he no longer had to attend to the crop.
81 Mr Thexton acknowledged that he had never personally conducted a trial before a jury, but said that had instructed in a number of such cases. He said that the applicant had confirmed to him that he had grown cannabis on previous occasions, and that he had prepared it for sale. He recalled that they had discussed the weight of the cannabis in the garage, and the applicant had not disputed that it was 37 kilograms.
82 Mr Thexton said that the applicant had never mentioned anything to him that suggested that he was surprised when he learned the weight of the cannabis he had grown. Mr Thexton had assumed, because the applicant was an experienced grower, that he would have known the weight of the cannabis that he was cultivating. He added that it was always his view that there was a clear inference available that the applicant was a 'commercial cultivator', and that he would have no realistic defence to a charge of cultivating a commercial quantity. He acknowledged that he had repeatedly advised the applicant in those terms, and agreed that the applicant had eventually been persuaded to plead guilty.
83 Ms Piekusis, who appeared on behalf of the Crown, asked Mr Thexton about his various discussions with the applicant regarding the elements of the offence of cultivation. The transcript reads as follows:
MR THEXTON: ...I wouldn't have gone to the extent that Richard Hamilton did in terms of asking his background in cultivation but it was well understood, if I could put it that way, that he had been cultivating for a long period of time and he was responsible for harvesting cannabis and preparing it for sale on not only this occasion but (indistinct words).
MS PIEKUSIS: Was there ever any conversation between yourself and Mr Kohari, whether it's on this first conference or subsequent conferences, regarding his intention re cultivating the cannabis? - That is he didn't intend to cultivate more than 25 kilos of wet weight.
MR THEXTON: I could answer that and say he didn't dispute and he didn't provide any instructions that he intended to cultivate less.
WEINBERG JA: Did you ever tell him either specifically or generally that that was an element of the offence that would have to be proved?
MR THEXTON: Well, my consideration was that if he was to run a trial he would be required to give evidence and he couldn't be successful on a trial unless he lied to the effect that he didn't have any intention of cultivating more than 25 kilos and that's what's - and you know, I don't advise people in those terms.
MS PIEKUSIS: You've given evidence regarding the inferences that could be drawn regarding commercial quantity. What discussions did you have with Mr Kohari on that matter?
MR THEXTON: Yeah. In terms of the inferences that could be drawn, he'd have discussions with respect to the fact that there was dried material there and it was an indication that he had cultivated previously and it could be inferred from that that he was well aware of what he was doing and it follows, well aware of the (indistinct).
MS PIEKUSIS: And that was a direct conversation that you had with Mr Kohari about him being aware?
MR THEXTON: I had that type of conversation with him on more than one occasion.
84 Mr Thexton accepted that he had never, at any stage, advised the applicant in a 'black letter law sense' of the elements of the offence of cultivation of a commercial quantity. He agreed that he had assumed from the applicant's failure to express surprise at the weight of the cannabis that he must have been aware that the weight exceeded 25 kilograms.
85 When cross-examined by Mr Gillespie-Jones (who appeared with Ms McKinnon on behalf of the applicant), about his understanding of the relevant principles governing the offence of cultivation of a commercial quantity, Mr Thexton maintained that he had been aware, at all times, of the case law on this subject. He said that he had not considered any of that case law to be relevant in the context of this case because, in his view, the inference that the applicant intended to grow not less than 25 kilograms was so compelling.
86 Mr Thexton said that, at a later stage, he discussed the issue of intent with Mr Andrew S Dickenson, counsel who had been briefed to advise regarding the forfeiture of the applicant's house. He said that he told Mr Dickenson that he had, at all times, been aware of the case law governing the mental element for this offence. He added that he had told Mr Dickenson that he had formed the view that none of that case law was applicable to the applicant's situation. He agreed that a dispute had arisen between Mr Dickenson and himself regarding the possible viability of a defence to this charge, had the applicant elected to stand trial.
87 At one point in his evidence, Mr Thexton sought to deflect blame for what had occurred, if any such blame were to attach, to Mr Dickenson.[10] It was put to Mr Thexton that, in the course of his discussions with Mr Dickenson, he had asked specifically, at one point, 'Could you defend cases where it was over the weight?' It was suggested that this showed that, contrary to Mr Thexton's evidence, he had been unaware at the time that he advised the applicant to plead guilty that he had a viable defence to the charge of cultivation of a commercial quantity. Mr Thexton denied that suggestion.
88 When pressed, Mr Thexton acknowledged that the applicant had never told him directly that he had harvested previous crops. However, he said that he had been given that information by Mr Hamilton. He said that, when he heard the applicant tell the judge below that he had only ever previously grown one or two plants, he regarded that as entirely inconsistent with Mr Hamilton's discussions with him. He added that, at the time, he regarded the applicant's statements to the judge as untrue.
89 It is fair to say that the general thrust of Mr Thexton's evidence was that, because the applicant had not instructed that he had intended to cultivate less than 25 kilograms, he determined that it was not necessary to inform him that the law required proof of an intention to cultivate at least that amount.
90 Mr Hamilton was called next. He confirmed that the applicant had told him that he had a great deal of familiarity with cannabis, largely because the applicant's father had grown it over a number of years. He said that the applicant had also told him that he had grown cannabis in order to support his children, and that he had expressed relief that he had been caught, because the entire experience had been so stressful. Moreover, the applicant had said that he was relieved that he would no longer have to keep using up his annual leave in order to harvest the crop.
91 Mr Hamilton agreed that he had deferred to Mr Thexton on all matters associated with the criminal proceedings. He agreed that he had never told the applicant that he might have a viable defence to the charge of cultivation. Nor had he considered the possible implications of the prosecution having to prove that the applicant intended to grow at least 25 kilograms of cannabis.
92 The applicant was the next witness to give evidence. He reaffirmed the contents of his affidavit. He said that he had been unaware throughout the period that he grew the cannabis that 25 kilograms in weight constituted a commercial cultivation. It was only after Mr Thexton advised him of that fact that he appreciated that this was so.
93 The applicant said that he had been a heavy user of marijuana from the age of 16. He had decided to grow his own supply so as to avoid having to rely on others. He added that, prior to producing this particular crop, he had planted a smaller crop of six plants. He claimed that he had thought that they would come to about a kilogram in weight. However, the first crop was a disaster and all six plants had died.
94 He said that he had only ever smoked the head of cannabis plants, and was not interested in smoking the leaves.
95 He was asked whether, prior to pleading guilty, he had received any advice as to what the prosecution would have to prove in order to secure a conviction on the charge of cultivation. He said:
No, as far as I knew I was told by [Mr Thexton] that it was that it was that weight, I grew it, I admitted to growing it so, you know, I was guilty. The only way out was to, um, you know, try and convince them to drop the weight down.
96 The applicant then said that in late May of 2015, about a week or so after he was released from prison, he attended a conference at Mr Dickenson's chambers. Mr Thexton was also present. He said that, on that occasion, Mr Dickenson had explained to him that one of the elements of the charge of cultivating a commercial quantity of cannabis was an intention to grow at least 25 kilograms of that drug. He said that this advice came as a 'massive shock'. He said that he went home that night to 'look it up' on the internet in order to see whether what Mr Dickenson had told him was correct. He said that Mr Thexton had never, at any stage, informed him that the Crown had to prove that intent, and this was the first he had ever heard of that subject.
97 When asked whether he had formed the intent to grow at least 25 kilograms of cannabis, he answered 'definitely not'. He said that he had not turned his mind to any specific amount of cannabis. He claimed that, when he eventually learned that the cannabis that he had grown came to 37 kilograms, he was 'pretty surprised'. He insisted that it had never crossed his mind that the cannabis might weigh more than 25 kilograms. He had just focused on getting 'some dry weed'.
98 When asked whether he had ever physically pulled a plant out of the ground and held it up, he replied 'no ... you don't handle them like that. I mean you chop the buds off.'
99 The applicant insisted that, prior to his pleading guilty, Mr Thexton had never mentioned the possibility that he might lose his home. In addition, he claimed that Mr Thexton told him that if he pleaded guilty, he would probably receive a CCO.
100 Under cross-examination, the applicant agreed that his main goal throughout had been to avoid imprisonment, if at all possible. When asked about his previous experience of having grown cannabis, he said that he had engaged in cultivation with his father from about the age of 11. He agreed that his father had grown a 'lot' of cannabis, usually about 16 or so plants at a time.[11]
101 The applicant said that, when he first met with his solicitors after he was charged, he told them that he did not know much about the offence of cultivation. He had added that he wished to defend the charge if at all possible. Mr Thexton had said to him that, if the weight of the cannabis exceeded 25 kilograms, 'it [the charge] was already proved'. He insisted that Mr Thexton had never mentioned the word 'inference'. Nor had he spoken of how the prosecution might be able to establish any requisite intent.
Me knowing how much was there was never something that we spoke about, you know, it was about what was there, it's not about why what I knew was, or what I thought was there and I knew the plants were there, they're my plants.
103 When asked what conceivable defence he might have to the charge of cultivation, the applicant responded, tellingly, 'that was up to them.'
104 In relation to the cash found at the premises, the applicant claimed that it had come from his father. His solicitors had told him that this would not get him anywhere, and to forget about it. The cash, having been seized, would not be returned. With regard to the ammunition found at his premises, Mr Thexton had simply told him that this was not really an issue, and not to worry about it.
105 The applicant claimed that his plan had always been to smoke some of the cannabis that he was growing, and to sell the rest. He claimed that he had been unaware of how 'big' the crop would be. He said that the reason there had been 16 mature plants was because that happened to correlate with the number of lamps that he had acquired from his father.
106 The applicant said that Mr Thexton's advice was that he had 'no chance' of defending the cultivation charge, because the weight of the plants plainly exceeded 25 kilograms. He said that that was Mr Thexton's only reason for advising him to plead guilty.
107 When pressed in cross-examination, the applicant could not recall specifically whether he had told Mr Thexton that he was surprised to learn that the cannabis weighed 37 kilograms. He thought it possible that he might have said something like that to Mr Thexton. When asked whether he had pleaded guilty freely, and not under any duress or threat, he replied that he had been told by Mr Thexton that he had no option, and no way to defend the charge.
108 The final witness called was Mr Dickenson. He said that he first became involved in the applicant's case when Mr Thexton telephoned him to inquire about matters arising out of the restraining order that had been served on the applicant while he was in prison.
109 Mr Dickenson said that during his discussions with Mr Thexton he asked him some questions regarding the case. He said that he asked him specifically what evidence there had been of the applicant's intention in growing the quantity of cannabis that he did. He said that Mr Thexton had told him, in response, that 'it was clearly well over the weight'. Mr Dickenson then replied that, irrespective of the actual weight, the Crown would still have to prove that the applicant intended to grow that quantity.
110 Mr Dickenson said that, upon his having raised with Mr Thexton the need for the Crown to prove the requisite intent, Mr Thexton had said words to the effect 'what, you can defend the case where it is over the weight?' This struck Mr Dickenson as strange, and indicated to him that Mr Thexton was unaware of the elements of the offence. He added that, based upon what he had been told in conference, and Mr Thexton's question, he formed the view that the applicant may not have been properly advised of his legal position before he ultimately pleaded guilty.
111 Mr Dickenson was then asked about a subsequent conference where he was consulted about the possibility of seeking leave to overturn the applicant's conviction. He said that he had earlier discussed with Mr Thexton, over the phone, the possibility that there may have been a defence 'clearly open', and that the applicant should have been advised of that. He said that, as from early June 2016, Mr Thexton ceased to act, and fresh solicitors were retained.
112 Mr Dickenson said that Mr Thexton emailed him on 10 June 2016 summarising the advice that Mr Thexton had previously given to the applicant regarding the criminal proceedings. In that email, Mr Thexton said that he advised the applicant in the following terms, inter alia:
113 Mr Dickenson said that, in his opinion, the contents of Mr Thexton's email accorded with his earlier discussions with both Mr Thexton and the applicant. He added that the email formed one basis upon which he drafted the written case in support of the present application for leave to appeal against conviction. He regarded the contents of that email as an important concession on Mr Thexton's part that he had failed adequately to advise the applicant of his rights.
114 Under cross-examination, Mr Dickenson rejected Mr Thexton's view that the inference that the applicant had intended to cultivate at least 25 kilograms of cannabis was so powerful that there was no realistic prospect of defending that charge.
115 Mr Dickenson said that, in his opinion, Mr Thexton had displayed a 'fundamental lack of knowledge' as regards the elements of the charge of cultivation. He added that, after the conference where this matter had first been raised, Mr Thexton had gone away and actively sought cases that might assist his view of the hopelessness of the applicant's situation. Mr Dickenson said that he regarded it as peculiar that Mr Thexton, while disagreeing with Mr Dickenson's view of the law, and of the inferences that might properly be drawn in relation to the applicant's state of mind, nonetheless thought it appropriate to continue to represent the applicant by preparing his case for leave to appeal.
116 As regards the dry material found at the applicant's premises, Mr Dickenson said that he understood that it was nothing more than a combination of substances that had been swept up off the floor by the police. He believed that it contained 'a whole lot of dirt as well'. He went on to say that, before he drafted the written case, he obtained the police brief in the matter. He said that he could not see anything in the brief that indicated that the prosecution could have established, beyond reasonable doubt, that the applicant intended to grow not less than 25 kilograms of cannabis. He added:
Ultimately the Crown, particularly on such a serious charge having put to their proof, putting the Crown to proof in a case such as this in my view would lead to my view that the Crown's evidence was insufficient. There was evidence that Mr Kohari had intended to grow a crop. There's no evidence that Mr Kohari had grown - had intended to grow a crop of that weight.
117 The Crown suggested that Mr Dickenson's decision-making with regard to the prospects of success for this application had been influenced by his concern about his earlier failure to comply with timeframes regarding the confiscation application. He rejected that suggestion and said:
I had concerns from the first time ... with Mr Thexton. I had concerns because he didn't appear to know what the relevant law was and wasn't able to articulate what the relationship [sic] evidence was that the Crown would have relied upon to convict Mr Kohari in this case and subsequent perusal and consideration of that material didn't convince me ... in any way, shape or form.
118 Mr Dickenson added that he had been briefed in a number of cultivation cases, but had managed to settle them all prior to trial, through putting together a detailed analysis of the evidence.
119 Ordinarily, after a plea of guilty, this Court will not entertain an application for leave to appeal against conviction. It will only be in the most exceptional of cases that a conviction will be set aside in such circumstances.
120 Nonetheless, there are occasions where, notwithstanding a plea of guilty having been entered below, this Court will set aside a conviction. However, it will only do so if to permit the conviction to stand would give rise to a miscarriage of justice.
121 The principles applicable in such cases have been considered by this Court in recent years. In Guariglia v The Queen,[13] Nettle JA (with whom Hansen JA agreed) formulated them as follows:
The principles which apply to an application for leave to appeal against conviction entered on a plea of guilty were restated in R v Coffey. There are strong reasons of public policy to restrict applications for leave to appeal in such cases. The court will entertain an appeal, however, if it appears that the applicant did not appreciate the nature of the charge or did not intend to admit that he or she was guilty or if, upon the admitted facts, the applicant could not in law have been convicted of the offence charged, or if otherwise there has been a miscarriage of justice.[14]
122 More recently, in Weston (a pseudonym) v The Queen,[15] Redlich JA, having first comprehensively analysed the authorities in this and other States, summarised those principles as follows:
Integrity of plea challenged before conviction and sentence
Integrity of plea challenged only after conviction
123 In New South Wales, the relevant principles have been expressed in broadly similar terms. For example, in Lawson v The Queen,[17] Hall J (with whom Latham and Price JJ agreed) said:
...
(2) A miscarriage of justice may occur in circumstances in which, in offering a plea, an accused did not appreciate the nature of the charges, or did not intend to admit his or her guilt, or where the applicant, on the admitted facts, could not in law have been convicted of the offences charged ....
(3) A court may also go behind a plea of guilty where the plea is entered after a trial judge has erroneously decided to admit evidence that would be fatal to the defence ... or where an accused is induced by threats from a fellow accused or police officer to plead guilty where otherwise he or she would have pleaded not guilty; ... or where the accused is persuaded to enter a plea of guilty by reason of imprudent and inappropriate advice tendered to him or her by legal representatives .... [18]
In addition to applying the relevant principles to an application such as the present, it is also necessary to consider whether or not, for example, a mistake occurred in the events or process leading to the entry of the guilty pleas or other circumstances existed that could be said to have affected the integrity of the pleas as admissions of guilt. On the other hand, if the evidence indicates that the pleas were entered in full knowledge of all the facts and intentionally to the charges made, then [the judge below] was obviously entitled to exercise his discretion against the withdrawal of the pleas.[19]
126 There are other cases which point to additional circumstances that may lead to the conclusion that there has been a miscarriage of justice notwithstanding the accused having pleaded guilty. The passage in Lawson concerning 'imprudent and inappropriate advice' tendered by an accused's legal representatives as forming a basis upon which a conviction can be quashed is particularly relevant to this application.
127 That observation is itself supported by an earlier decision of the New South Wales Court of Criminal Appeal, R v Favero.[22] In that case, the issue was whether the applicant should have been granted leave by the judge below to withdraw pleas of guilty that he had entered in the District Court.
128 It seems that the applicant was involved in a motor vehicle accident. Police attended, and he was found to be in possession of a small quantity of amphetamines, consisting just of a few grams in a 'bum bag'. In the trunk of his car, however, there was located a much larger quantity of amphetamines, totalling some six kilograms in all. He was invited by the police to account for his possession of that material. As to the small quantity, he claimed that this was for his own use. As to the larger quantity, he told police that he was simply looking after it, on behalf of another. He was charged in relation to both quantities with supply of a prohibited drug.
129 After the applicant had pleaded guilty in the District Court, he secured fresh legal representation. He then received advice the thrust of which was that, on the known facts, he had an arguable defence with respect to both charges. He then sought to vacate his pleas of guilty. However, that application was refused.
130 The Court of Criminal Appeal overturned that refusal. It found that the applicant had not had any competent advice that laid out before him the nature and scope of the defences that might be lawfully available to him in connection with the charges to which he had pleaded guilty.
131 Essentially, it was held that the pleas of guilty had not been entered with 'full knowledge' of the facts, and as a genuine recognition of guilt, and the material before the Court showed that there was a 'real question' about the applicant's guilt. His convictions should be quashed and a new trial ordered.
132 The Court in Favero referred to two earlier decisions of the New South Wales Court of Criminal Appeal, R v Davies[23] and R v Ganderton.[24] Both these cases were said, in separate ways, to support the conclusion that a guilty plea that arose from a mistaken, or possibly mistaken, understanding of the facts, or a failure on the part of the accused's legal representatives to inform him accurately of the elements of the offence (so that the accused incorrectly believed that the facts as alleged constituted the offence) might mean there was no 'genuine consciousness of guilt' when he pleaded guilty. In such circumstances, a miscarriage of justice may have occurred.
133 It seems on the authorities that there will be circumstances where the advice given to an accused by his or her legal representatives falls so far short of what might reasonably be expected, and results in the accused deciding to plead guilty under a material misconception as to the state of the law, this may qualify as a miscarriage of justice.
134 It is not difficult, at the extreme ends of the spectrum, to identify those situations where mistaken advice will give rise to a miscarriage of justice. For example, if an accused's legal representatives were to advise that a particular offence was one of absolute liability, when that was not the case, or to misstate the elements of the offence in such a way as to make it appear that there could be no defence to the charge, it would be but a short step to conclude that a plea of guilty entered in response to such advice should not bind. So, for example, if an accused charged with rape were told that all that the Crown had to establish was absence of consent on the part of the victim, and that there was no mental state required on his part, a conviction based on a plea of guilty in such circumstances would probably be set aside, assuming that a mental state defence was 'issuable'.
135 Likewise, if an accused charged with attempted murder was told incorrectly that the offence could be made out on the basis of an intent to cause injury, and pleaded guilty as a result, there would be a powerful argument that his or her conviction should be quashed, at least assuming that there was some realistic basis for arguing that there was no intent to kill.
136 On the other hand, it seems clear that mistaken advice, even rendered incompetently, will be of no avail when seeking to set aside a conviction based upon a plea of guilty if that advice goes only to the sentence likely to be imposed. In such cases, the accused must simply accept that, having retained legal advisers and acted upon their advice, there are strong public policy considerations that require finality in litigation, and that mistaken advice of that kind will be of not avail.[25] Otherwise, the appellate courts might be swamped by attempts on the part of disappointed offenders to be given a second chance to have their cases heard at trial.
137 One of the issues that we must consider is whether, as the evidence stands, the applicant was persuaded to enter a plea of guilty by reason of 'imprudent and inappropriate advice' tendered to him. In approaching the matter in that way we are, of course, conscious of the fact that the issue is not one of competence of counsel as such, but rather whether, in all the circumstances, there has been, or would be, a miscarriage of justice were the conviction to stand.[26]
138 The matters in dispute between the parties in the present case may be summarised as follows.
1. The applicant claims that he was never told, directly or indirectly, that he might have a viable defence to the cultivation of a commercial quantity charge, based upon the Crown's inability to prove the requisite intent. The respondent claims that the evidence suggests that Mr Thexton did canvass that matter at various stages, though not in any structured sense.
2. The applicant contends that, as a result of not having been advised of the Crown's obligation to prove intent, his decision to plead guilty was based upon incomplete facts or knowledge, and therefore did not amount to 'consciousness of guilt'. Therefore, the integrity of the plea was impaired.
3. The applicant contends that, had he been properly advised of his legal position, he might well have decided to plead not guilty, and take his chances before a jury. He argues that he was denied the opportunity to make that choice, and that Mr Thexton's view that he had no viable defence, expressed in strong terms without proper qualification, effectively denied him a free choice of plea. The Crown contends that the applicant was not subjected to any improper pressure, and knew full well that, by pleading guilty, he was admitting knowledge and intent in the requisite sense.
4. The applicant contends that Mr Dickenson's account of both the conferences that were conducted, and his opinion as to the applicant's prospects of defending the cultivation charge, should be preferred to that of Mr Thexton. The Crown submits that Mr Thexton should be accepted as truthful and reliable. It argues that Mr Dickenson's opinions as to Mr Thexton's knowledge, capacity, and state of mind are irrelevant, and should, in any event, be rejected.
5. The applicant contends that there always was an 'issuable question of guilt' to be resolved. A jury, having seen and heard the applicant give evidence, might well have entertained a reasonable doubt as to whether he had the requisite intent for the cultivation offence. Moreover, some of the evidence upon which Mr Thexton relied in forming his view as to the inferences that could be drawn regarding intent might well be excluded by a judge at trial. The Crown submits that there is no issuable question of guilt, and that the applicant never had any viable defence to this charge.
139 In our view, this case may be regarded as somewhere close to the border between the extremes that we have previously identified.
140 As regards the first of the issues for resolution we have set out above, we consider that the applicant was never adequately informed of the elements of cultivation of a commercial quantity. He was never told, directly or otherwise, that the prosecution would have to establish, beyond reasonable doubt, that he intended to cultivate not less than 25 kilograms of cannabis in order to prove its case. None of the passages upon which the Crown relied in support of the contrary conclusion come close to making the Crown's point good.
141 As to the second of those issues, we find that the applicant's decision to plead guilty, in circumstances where he was never told, and would not have known, that the requisite intention would have to be established, prevents his plea from being regarded as having been made 'in full knowledge' of necessary facts, and their legal consequences. In other words, the plea did not evince, in the relevant sense, a 'consciousness of guilt'.
142 As to the third issue, it is true that we do not know whether the applicant would have elected to stand trial, rather than plead guilty, had he been properly advised (as he ought to have been) of what the Crown would be required to prove at a trial. The point is, however, that the applicant was denied the opportunity to make that choice, an opportunity that should have been afforded to him.
143 As to the fourth issue, having considered the evidence placed before us on this application, we have concluded that Mr Dickenson was a credible and reliable witness. We have no hesitation in accepting his evidence as to what occurred during the course of his discussions with Mr Thexton.[27] Insofar as his recollection of the events of 2015 differs from that of Mr Thexton, we prefer Mr Dickenson's account. It follows that we have reservations as to whether Mr Thexton was indeed aware, at the time he acted for the applicant, of the relevant legal principles governing the offence of cultivation of a commercial quantity. If he was not so aware, he ought to have been.
144 As to the fifth issue, we can readily accept that the Crown has a strong case against the applicant. The circumstances under which the cultivation took place, assuming they can all be placed before a jury, bespeak knowledge on his part that he was growing a substantial amount of cannabis. At the same time, it may be that not all of this evidence would be admissible at a trial. It may also be that a jury, either acting mercifully, or because they genuinely entertained a reasonable doubt as to intent with regard to an accused who simply never turned his mind to the weight of the cannabis he was growing, could give him the benefit of that doubt.
145 It follows that, not without some hesitation, we have concluded that this conviction on charge 1 cannot be permitted to stand. To allow it to do so would be an affront to justice.
146 We are of course well aware of the fact that the applicant has served his entire term of imprisonment, and that he has brought this proceeding essentially for the purpose of avoiding the loss of his house. Whether he ultimately succeeds in that aim will depend upon the outcome of any retrial.
147 Whether there will in fact be a retrial on charge one, given that the applicant has served his entire term of imprisonment, will be a matter for the Director of Public Prosecutions. So too, in the event of a conviction, will be the question of forfeiture of the applicant's house.
148 We would simply add this. The application for a restraining order that was brought in this case, after the applicant had already been sentenced, should in our view, have been brought at an earlier stage. That would have enabled the sentencing judge to be fully informed of all matters that might be relevant when ultimately passing sentence.
149 Moreover, the applicant should have been informed that a restraining order would be sought against him at an earlier stage so that he could give proper consideration whether or not to plead guilty to the cultivation charge.
[2] [2007] VSCA 23; (2007) 15 VR 388 ('Garlick (No 2)').
[4] [2008] VSCA 69 ('McKittrick').
[6] We note that in Garlick (No 2), the test was formulated as 'real or significant' whereas in McKittrick it was 'real and significant'.
[7] Section 317 is in the following terms:
Production of documents, exhibits or other things
For the purposes of this Part, the Court of Appeal may order the production of any document, exhibit or other thing connected with the proceeding if the Court of Appeal considers that it is in the interests of justice to do so.
[8] Plainly, s 317 does not extend to compelling persons to attend to give evidence as witnesses before the Court of Appeal. The word 'things', in context, cannot sensibly be read as encompassing a person or persons.
[9] There is nothing in any of the standard texts on evidence dealing with competence and compellability of witnesses to suggest that an accused's legal representative is either incompetent to give evidence on behalf of the Crown, or cannot be compelled to do so.
[10] Mr Thexton argued that Mr Dickenson, having failed to bring an exclusion application in relation to the applicant's home within the requisite time limits was simply engaging in a form of self-protection by suggesting that the applicant might have had a defence to the charge of cultivation of which Mr Thexton had not been aware. There was also correspondence tendered which suggested that Mr Thexton had sought to attribute responsibility for any failings associated with the applicant's legal representation to Mr Hamilton who was no longer with his firm.
[11] That figure of 16 actually accorded with the number of lights and other hydroponic paraphernalia that the applicant had acquired from his father after his death. Clearly, it was no coincidence that the applicant was cultivating 16 plants given that he had acquired 16 lights from his father.
[17] [2011] NSWCCA 44; (2011) 206 A Crim R 557 ('Lawson').
[18] Ibid 563 (citations omitted) (emphasis added).
[19] Ibid 563-4 (citations omitted) (emphasis added).
[21] See also R v Brooks [2007] SASC 35; (2007) 96 SASR 478 and R v Stevens (2011) 274 LSJS 646.
[22] [1999] NSWCCA 320 ('Favero').
[23] (Unreported, New South Wales Court of Criminal Appeal, Sully, Sperling and James JJA, 16 December 1993).
[24] (Unreported, New South Wales Court of Criminal Appeal, Woods, Matthews and Badjery-Parker JJA, 17 September 1998.)
[25] D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1.
[26] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124.
[27] In saying this, we should add that we are relying upon Mr Dickenson's evidence as to his discussions with Mr Thexton, and Mr Thexton's responses to the points Mr Dickenson made. We place little weight upon Mr Dickenson's opinion as to what Mr Thexton's state of knowledge as to what the relevant law was, save as to what inferences can properly be drawn from what was said and done.
Kohari
The Queen [2017] VSCA 33