Le v DPP [2007] VSCA 72

WORDS AND PHRASES - "Not in any way involved in the commission of offence" - Lyall v Solicitor-General [1997] 2 NZLR 641; Diez v Director of Public Prosecutions [2004] NSWCA 452; (2004) 151 A Crim R 343, considered.

1 I have had the considerable advantage of reading in draft the reasons for judgment of Nettle JA. For the reasons which his Honour gives, I too would refuse the application for leave to appeal.

2 I agree with the orders proposed by Nettle JA, and with his reasons.

3 This is an application, pursuant to s 142(1)(b) of the Confiscation Act 1997, for leave to appeal from the refusal of an exclusion application pursuant to s 22(b) of the Act.

4 So far as is relevant, s 22(b) of the Act provides that:

"On an application made under section 20, where the restraining order has been made in relation to a Schedule 2 offence for the purposes of automatic forfeiture -

(a) ...

(b) where the application is made by a person other than the defendant, the court may make an order excluding the property from the operation of the restraining order -

(i) if the court is not satisfied that the property in which the person claims an interest is not tainted property but is satisfied that-

(A) the applicant was not in, any way, involved in the commission of the Schedule 2 offence; and

(B) where the applicant acquired the interest before the commission, or alleged commission, of the Schedule 2 offence, the applicant did not know that the defendant would use, or intended to use, the property in, or in connection with, the commission of the Schedule 2 offence; ..."

The facts

5 On 15 August 2003 Chinh Quang Do pleaded guilty before a judge of the County Court at Melbourne to one count of trafficking in a commercial quantity of a drug of dependence, namely, Cannabis L, and one count of theft of electricity, and, following a plea in mitigation of penalty, he was sentenced to a total effective sentence of four years' imprisonment with a non-parole period of three years.

6 At all relevant times, Do and the applicant were man and wife and registered as joint proprietors of the dwelling house situate at 11 Dalpura Drive, West Sunshine (being the land described in Certificate of Title Volume 10254 Folio 235) ("the property") and living there together with their two children.

7 The offence of trafficking in a commercial quantity of a drug of dependence is a Schedule 2 offence within the meaning of the Act and the cannabis in respect of which Do was convicted of trafficking in a commercial quantity was grown by Do in two bedrooms and in the garage at the property using electricity stolen from the grid by means of a meter bypass. The property was therefore tainted property within the meaning of the Act.[1]

8 On that basis, on 14 April 2003 a judge of the County Court made a restraining order in respect of the property for the purposes of automatic forfeiture.

9 On 13 October 2003 the applicant filed an application under s 20 of the Act for exclusion from the restraining order of what was described as her half share or interest in the property. She contended that she was not in any way involved in the commission of the offence and that at the time of acquisition of her interest in the house she did not know that Do would use or intended to use the house for commission of the offence, and thus that she satisfied the requirements of s 22(b) of the Act.

10 The application for exclusion came on for hearing before another judge of the County Court on 30 June 2006 and in the course of the hearing the applicant was extensively cross-examined on her affidavit. Ultimately, on 7 July 2006 the judge handed down a written decision in which his Honour found that the applicant was not a credible witness and held that the applicant had not satisfied him that she was not in any way involved in the offence of trafficking and therefore had not satisfied the requirements of s 22(b)(i)(A) of the Act.

Ground of appeal

11 Although there are a number of grounds of appeal, the applicant's principal contention before this court is that she could not be said to have been involved in the offence of trafficking in a commercial quantity of cannabis unless she had knowledge of each of the elements of the offence and, because the judge accepted that she did not know the weight of the cannabis, it must follow that she did not have knowledge of at least one essential element of the offence, namely, that the cannabis was of a commercial quantity.

12 In the alternative it was submitted that it was not open to the judge on the evidence not to have been satisfied that the applicant did not know that the cannabis was being cultivated for sale, and thus it must follow that she did not know of at least one other essential element of the offence of trafficking, namely, the sale of the cannabis.

"Involved in any way in the commission of the offence"

13 The first argument is based on the decision of this court in DPP Reference No 1 of 2004[2] that a person cannot be convicted of trafficking in a commercial quantity of cannabis unless the person knows or believes that there is a significant or real chance that the cannabis is not less than a commercial quantity. The respondent did not suggest otherwise.

14 It was then contended for the applicant that, whatever the width of the expression "involved in any way in the commission of the offence" a person cannot be involved in the commission of an offence unless the person knows that the offence is being committed, or at the least knows that the acts which comprise the offence are being committed. That proposition is more contentious.

15 As the respondent points out, the expression has been given a wide interpretation in a number of related contexts. In Lyall v Solicitor-General[3] the New Zealand Court of Appeal when dealing with the expression "involved in" in the context of the Proceeds of Crime Act 1991 (NZ) said this:

"The test which the [trial] Judge applied was that:

'... the person in question must know of the offence and must at the very least condone or permit the commission of the offence, that being in circumstances where he or she is in a position to endeavour to persuade the principal offender not to commit the offence.'

The Judge thought that a helpful analogy was the position of a person who is a party to an offence merely by being present when the offence was committed in circumstances where he or she might be expected to intervene.

We agree that something less than participation as a party may amount to an involvement. If the legislature had intended that only party status gave rise to the Court's right to refuse relief it would surely have said so by a cross-reference to s 66 of the Crimes Act 1961. We understand the legislature to be saying that a material association with the offending is enough. It may take the form of assistance of a kind which would make the applicant a party to the crime. Or it may simply be a failure to prevent property in which the applicant has an interest being used for criminal purposes which are known to the applicant in circumstances in which the applicant should have taken practical preventative steps. Mere knowledge of the criminal use of the property does not amount to involvement, even when the applicant benefits from the use...where the applicant was never in a position to control the drug dealing and had no active involvement in it, but knew that money being paid to her was 'dirty money'. The Court said that to be involved required more that mere suspicion or awareness of an offence and 'more than mere reluctance through fear to give early assistance to police investigations'."

16 In Diez v Director of Public Prosecutions (C'th)[4] the New South Wales Court of Criminal Appeal had to consider the breadth of the expression "involved in any way" in s 101 of the Proceeds of Crime Act 1987 (C'th). The section provides that:

(1) Where:

(a) a person brings, or appears at, proceedings under this Act before a court in order:

(i) to prevent a forfeiture order or restraining order from being made against property of the person; or

(ii) to have property of the person excluded from a forfeiture order or restraining order;

(b) the person is successful in those proceedings; and

(c) the court is satisfied that the person was not involved in any way in the commission of the offence in respect of which the forfeiture order or restraining order was sought or made;

the court may order the Commonwealth to pay all costs incurred by the person in connection with the proceedings or such part of those costs as is determined by the court.

(2) The costs referred to in subsection (1) are not limited to costs of a kind that are normally recoverable by the successful party to civil proceedings."

Santow JA, with whom Beazley and Tobias JJA agreed, said:

"The breadth of the expression 'involved in any way' militates against the court being denied the discretion it could otherwise exercise to award party and party costs to the successful party against the unsuccessful party, as for example where the successful applicant's involvement was wholly peripheral."[5]

The court also stated, however, that the section was ambiguous in its ambit and that it did not constitute an exclusive code which wholly circumscribed the court's discretion as to costs.

17 In DPP (C'wth) v Edy[6] Brownie AJ had to decide whether a woman who lived with a defendant convicted of possession of 27 ecstasy tablets was "in any way involved" in the offence within the meaning of s 43(f) of the Proceeds of Crime Act 1987 (C'th). His Honour reasoned thus:

"Looking then at the rest of the evidence, I conclude that, more likely than not, the defendant trafficked in ecstasy, and that, more likely than not, the applicant knew of this. She and he were living together, and he had no apparent other source of income. I bear in mind the amount by which the applicant's resources were depleted after June 1997, and am content to assume that she and he lived to some extent on her capital. But the question remains as to whether she has demonstrated that she was not in any way involved in his possessing the 27 tablets seized, and I conclude that she has not. I think that, more likely than not, those tablets formed part of what might be called his stock-in-trade, and I do not accept that she was not in any way involved in his drug trafficking, even if only as the person holding some of the money so received; and this finding means that I do not accept that she was in no way involved with the defendant's possession of the 27 tablets seized. I therefore reject the application to the extent that it is made under section 48(3)(f)."[7]

18 In the respondent's submission it follows from these decisions that a person may be involved in an offence within the meaning of s 22(b)(i)(A) of the Act, whether or not the person has knowledge of each element of the offence.

19 In my view, the respondent's submission should be rejected. Ordinary criminal and civil conceptions of involvement imply that a person is not involved in an offence or other activity unless the person knows all of the essential facts which constitute the offence or other activity. Thus, in the criminal law, an accused may not be convicted of aiding abetting counselling or procuring the commission of an offence unless the accused knew all of the essential facts which made what is done a crime.[8] Similarly, an accused cannot be said to have consented to, connived in or approved of an offence, unless the accused knew all of the essential elements of the offence.[9] Under earlier bankruptcy law relating to reputed ownership, a man was not taken to have consented to the use of his goods in trade or business if they had been used for that purpose without his knowledge and consent.[10] More generally, the notions of "consent" and "permission" were said to imply knowledge and a voluntary allowance of what is done.[11] In the law which once applied to divorce on the grounds of adultery, "condonation" and "connivance" were held to imply the need for knowledge and acquiescence in the adulterous conduct.[12] More specifically in relation in the law concerning forfeiture of property on the ground of involvement, the decision in Lyall is persuasive authority that what is in contemplation is "knowing involvement", which is to say that "the person in question must know of the offence and must at the very least condone or permit the commission of the offence".[13]

20 Contrary to the respondent's submission, nothing said by the New South Wales Court of Criminal Appeal in Diez runs counter to that view. With respect, their Honours may be taken to have accepted that the expression "involved in any way" extends to a person who is only peripherally involved in an offence. But, understandably, they were not concerned to define the boundaries of the periphery.

21 Moreover and perhaps more importantly, given that an offender is only liable to forfeiture upon conviction, which necessarily presupposes knowledge of all of the elements of the offence, it is hardly likely that Parliament intended to render others liable to forfeiture for an involvement falling short of participation unless they too had knowledge of the elements of the offence. It might not be beyond the competence of Parliament to pass a law to that effect. But, as counsel for the applicant submitted, this is penal legislation and so is to be strictly construed.[14] In my view, it would require plainer words than s 22 to achieve the result for which the respondent contends.

22 In the result, I accept the applicant's contention that, in a case like the present, an applicant could not be said to have been involved in an offence of trafficking in a commercial quantity of cannabis if he or she did not know or believe that the offender was cultivating the cannabis for sale or did not know or believe that there was a real or significant chance that the quantity of cannabis was not less than a commercial quantity.

Knowledge and the burden of proof

23 That said, however, it is necessary to bear two things steadily in mind. First, for the purposes of the law relating to involvement in a criminal offence, knowledge includes wilful blindness and "wilful blindness" includes the actions of a person who deliberately refrains from making inquiries because he or she prefers not to have the result, or who otherwise wilfully shuts his or her eyes for fear that they may learn the truth. The point is made in Giorgianni v the Queen[15] and reiterated in Bahri Kural v The Queen[16] and was restated in Pereira v Director of Public Prosecutions:[17]

"...a combination of suspicious circumstances and failure to make inquiry may sustain an inference of knowledge of the actual or likely existence of the relevant matter. In a case where a jury is invited to draw such an inference, a failure to make inquiry may sometimes, as a matter of lawyer's shorthand be referred to as wilful blindness..."

24 Secondly, in an application under s 22(a)(i)(B) the onus is on the applicant to satisfy the court on the balance of probabilities that the applicant was not involved in any way in the commission of the offence.[18] The point is demonstrated by the decision of Brownie AJ in Edy that, because the weight of the evidence was that the applicant knew that the defendant trafficked in ecstasy, and from time to time the applicant held the proceeds of the trafficking, and because her denials of knowledge were not to be believed, his Honour could not be satisfied that she was not involved in the possession by the defendant as part of his stock in trade as a trafficker of the 27 tablets the subject of the offence.

25 In this case the applicant put her case below on the twin alternative bases that she did not know anything about the cannabis or, if she were not believed about that, that she did not know the quantity of the cannabis and she did not know that the defendant was growing it for sale under the contract. Bearing in mind that knowledge for these purposes includes wilful blindness and that the applicant bore the burden of persuading the judge that she lacked knowledge, it followed that in order for the applicant to succeed in the way in which she put her case below she had to prove on the balance of probabilities either:

a) that she did not know of and was not wilfully blind to the cultivation of the cannabis; or

b) that she did not know of and was not wilfully blind as to there being a significant or real chance that the cannabis was a commercial quantity; or

c) that she did not know of and was not wilfully blind as to there being a significant or real chance that the cannabis was being cultivated for sale.

The applicant's state of knowledge

26 The applicant gave evidence to the effect that she did not know anything about anything. But the judge rejected her evidence as he explained as follows:

17. Under cross examination she maintained that there were doors on the two bedrooms on the day the police came which contradicted the evidence of Senior Detective Tomlinson and the video film itself. She admitted that she could hear the noise of the water pumps when the video recording was being played but claimed that she could not, while living in the house, because of the locked doors. She did not know why her husband put a large light in the hallway cupboard to which she had access but the light was never on. She was never conscious of any heat or warmth coming from either of the children's bedrooms when she walked down the hallway nor of any odour emanating from the rooms in question. She hardly ever went into the shed added onto the garage because her husband did the gardening and lawn mowing and she was not present when any of the hydroponic equipment was brought to and installed in the house. Her explanation was that this must have occurred when her husband asked [her] and the children to go and do some shopping or when she was at her husband's sister's home. If there were chemicals in the bathroom cabinet she would not know what they were and could not read English. She asked her husband what they were and he did not answer. She did the cooking but had no knowledge of the $20,000 which the police found in a pot [which she said was] used only once a year on their Lunar New Year which is normally in February. She was suspicious because the windows in the boys' bedrooms were blacked out but when she asked, her husband did not say anything and she was afraid that if she kept asking he would hit her.

18. I found [her] evidence completely lacking in credibility..."

That being so, the applicant was bound to fail in the first way in which she put her application.

27 In the course of argument, the judge observed that:

"... I could accept that she wouldn't have any knowledge of the weight as the police didn't, but I'm sure she knew that there was cannabis being grown in these rooms."

It was then contended that, if that were the judge's state of mind, his Honour was bound to hold that the applicant had succeeded in the second way in which she put her application. But the judge also rejected that contention, and so do I.

28 Not knowing the weight of the cannabis and not having a belief about its weight are different things. So too are not knowing its weight and wilfully shutting one's eyes to what its weight might be. Consequently, even if the judge were satisfied that the applicant did not know the weight of the cannabis, it does not follow that his Honour was or should have been satisfied that she did not have a belief that it was a commercial quantity (which is to say, that there were not less than 100 plants or not less than 25 kg by weight);[19] and even less that he was or should have been satisfied that she had not wilfully shut her eyes to the significant or real chance that it was of commercial quantity. Indeed, given the rejection of her testimony, the only basis for conclusion was one of inference to be drawn from the objective facts and circumstances and, in my view, those were likely to convey to any reasonably objective observer a very real chance of there being more than 100 plants or more than 25 kg. The judge who sentenced the defendant accurately described the scene, thus:

"I have viewed a video which was taken by the investigating police at the scene. That discloses what appears to be a sophisticated and professional set-up. Material was used to cover the windows, high intensity movable grow lights were located about the plants. A water irrigation system was installed and holes were cut into the roof to enable the removal of fumes by way of a system of ducting. Carbon filters and exhaust fans were used to remove odours.

The plants were examined by Mr Azzopardi, a forensic officer, and his statement revealed that the plants in one room numbered 21 and were close to maturity. They weighed some 26.2 kilos, excluding roots. The second group of plants, some 22 plants, were immature plants in the other room and weighed 8.55 kilograms. And a further 18 immature plants, which I think were located in the garage, were found which weighed 415-odd grams. The total weight of the plants was approximately 36 kilograms, which is well in excess of the minimum weight required under the Drugs, Poisons and Controlled Substances Act in order to constitute a commercial quantity."

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.

[1] "Tainted property" is defined in s 3 of the Act as including property that was used or was intended to be used in or in connection with the commission of the offence.

[2] [2005] VSCA 172; (2005) 12 VR 299.

[3] [1997] 2 NZLR 641 at 648.

[4] [2004] NSWCA 452; (2004) 151 A Crim R 343.

[5] Ibid at [48].

[6] [2000] NSWSC 50.

[7] Ibid at [37].

[8] Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473 at 488.

[9] Glanville Williams, Criminal Law, The General Part, 2nd Ed at [248].

[10] Lamb v Wright [1924] 1 KB 857 at 864.

[11] In re Caughey; Ex parte Ford (1876) 1 Ch D 521 at 528.

[12] Haevecker v Haevecker [1936] HCA 68; (1936) 57 CLR 639 at 649, per Latham CJ and at 653 per Dixon and Evatt JJ.

[13] [1997] 2 NZLR 641 at 648.

[14] Murphy v Farmer [1988] HCA 31; (1988) 165 CLR 19 at 28; Director of Public Prosecutions v Logan Park Investments Pty Ltd (1995) 37 NSWLR 118 at 125D-127C, per Kirby ACJ; Fowkes v DPP [1997] 2 VR 506 at 517-8; cf Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 at 576; Chew v The Queen [1992] HCA 18; (1992) 173 CLR 626 at 632; Pearce & Geddes, Statutory Interpretation in Australia 5th Ed at [9.9].

[15] Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473 at 482-3; and see Clayton v R [2006] HCA 58; (2006) 231 ALR 500 at [102], per Kirby J, in diss.

[16] [1987] HCA 16; (1987) 162 CLR 502 at 505 and 511-2.

[17] (1988) 63 ALJR 1 at 3.

[18] Albeit, it has been said that, because the section imposes a requirement to prove a negative, "slender evidence" may suffice to satisfy the evidential burden: Fowkes v DPP [1997] 2 VR 506 at 512.

[19] Drugs Poisons and Controlled Substances Act 1981, Schedule 11, Part 2, Column 2.