29 It is true, as the applicant's counsel submitted, that once the police had counted the plants they found that there were only 62 of them, and it is true, as the judge observed, that it was not until the police had weighed the plants that they determined that they weighed more than 25 kg. But as can be seen from the photographs and video tape to which the judge referred, this was a sophisticated hydroponic growing set-up of apparently industrial proportions, it took up a large part of the house and outbuilding and the plants were of such a size and maturity as in effect to appear as a veritable indoor forest of cannabis growing under lights. It seems to me therefore that, unless the applicant actually knew the number of plants, or undertook the task of counting them, as the police did for the purposes of the video tape, or weighed them as the police did later, she could not possibly have excluded as a very real or significant chance that there were more than 100 plants or more than 25 kg.
30 It is also true, as the applicant's counsel contended, that the judge did not analyse the point in that fashion. His Honour appears to have accepted the Crown's submission, which was wrong, that a person may be involved in the offence of trafficking in a commercial quantity of cannabis regardless of the person's state of knowledge of the quantity of the cannabis. Strictly speaking, therefore, his Honour may be said to have erred. But in this case such an error could not have made any difference to his Honour's decision. For as I have stated, on the evidence before him, it appears to me that his Honour could not properly have been persuaded that the applicant did not know or believe that there was a significant or real chance that the cannabis was of a commercial quantity.
31 It was argued, faintly before the judge and with more emphasis before this court, that the applicant had demonstrated that she did not know that the cannabis was being cultivated pursuant to a contract of sale and therefore was not involved in any way in the offence of trafficking as opposed to some other lesser offence of cultivation or possession. Counsel submitted that, based upon the applicant's testimony that she did not know anything about the cannabis or the $20,000 which was found in her home, it was open to the judge to conclude that she did not know anything about the contract of sale under which the $20,000 had been paid. Alternatively, it was said that, the point having been raised before the judge, his Honour was bound to consider it, and that it was apparent from his reasons for judgment that he had not done so; and that his failure to do so amounted to an error of law which vitiated his decision.
32 I reject those contentions for four reasons. In the first place, as has been seen, the judge rejected the applicant's testimony as completely lacking in credibility and, contrary to counsel's submission, his Honour's rejection of her evidence was not limited to her statements that she knew nothing of the existence of the cannabis. As set out above, the statement of rejection followed immediately after a detailed recitation of the applicant's evidence, including her testimony on the subject of the $20,000, and the rejection was plainly directed to all of that evidence.
33 Secondly, although it is theoretically possible that a judge could reject the applicant's testimony as completely incredible and yet be satisfied aliunde that she did not know anything of the contract, in the reality of this case that possibility is fanciful. As has been seen, all of the objective evidence pointed in the direction that she did know. She was living in a house of which a large part had been given over to commercial scale hydroponic cultivation of cannabis; there was no evidence that she or the defendant used the cannabis or intended to use it for personal consumption; on any objective analysis the amount of cannabis under cultivation was vastly in excess of anything that might conceivably be used for personal consumption; there was the $20,000, which had been received as a down payment under the contract of sale; it was kept in a pot in the applicant's kitchen without apparent let or hindrance; and there were other amounts of cash stored throughout the house in places in which the woman of the house would be highly likely to go from time to time.
34 Thirdly, when similar considerations were canvassed in the course of argument before the judge below, it is apparent from the transcript of argument that counsel who then appeared for the applicant in effect quite properly abandoned reliance on the point and concentrated his argument on the question of knowledge of a commercial quantity. In the circumstances, it seems to me that nothing more needed to be said about it.
35 Finally, and even if the judge were in error in not saying something specific about it in his reasons for judgment, the lack of any credible testimony, taken in conjunction with the objective evidence to which I have referred, meant that his Honour could not properly have reached any view other than that the applicant had failed to persuade him that she did not know and was not wilfully blind to the fact that the cannabis was being cultivated for sale under the contract pursuant to which the $20,000 was received.
Conclusion
36 In my view, the judge was right to hold that the applicant failed to prove that she was not involved in any way in the offence of trafficking in a commercial quantity of cannabis and, therefore, that her exclusion application should be refused. It follows in my judgment that the applicant's application for leave to appeal should also be refused.