Price v Davies [2001] WASCA 81

Justices Act 1902, s 138, s 186(1), s 196(1)

Misuse of Drugs Act 1981 (WA), s 11

Complaint remitted to Court of Petty Sessions for trial of issue

Boag (1994) 73 A Crim R 35

Sagir (1986) 22 A Crim R 73

Thomason v Martin [1964] WAR 136

Tihanyi v The Queen (1999) 21 WAR 377

1 ROBERTS-SMITH J: By leave granted by Miller J on 14 November 2000, the appellant appeals from the decision of his Worship M D Wheeler SM in the Fremantle Court of Petty Sessions on 19 May 2000, sentencing the applicant to 18 months imprisonment with parole following his plea of guilty to one charge of cultivating cannabis with intent to sell or supply. The grounds of appeal were originally that:

"(a) The [appellant] is not guilty as charged;

(b) The [appellant] has been made aware of an error on his part in pleading guilty which constitutes fresh evidence."

2 The appellant had filed a notice of application to extend time to appeal and for bail pending appeal on 22 August 2000. Leave to extend time was given and bail was granted by Templeman J on 25 August 2000. The time for appealing was extended to 29 August. On 28 August the parties filed a memorandum of consent orders pursuant to O 43 r 16 of the Rules of the Supreme Court that time for entry of the appeal be extended to 30 November.

3 At the outset of the hearing before me, Mr Mazza, who appeared for the appellant, sought and was given leave to substitute new grounds of appeal. They were in the following terms:

"1. The decision of the learned magistrate to convict the appellant upon the appellant's plea of guilty should be reviewed and quashed because:

1.1 the entry of the plea of guilty was brought about by error or misapprehension;

Particulars

1.1.1 The appellant believed that because he had cultivated 47 cannabis plants he was presumed to have done so with an intent to sell or supply.

1.1.2 The appellant did not appreciate that notwithstanding that he had grown 47 cannabis plants he could rebut the presumption by proving, on the balance of probabilities, that he did not cultivate the cannabis plants with an intent to sell or supply.

1.1.3 By reason of the matters set out in 1.1.1 and 1.1.2 the appellant erroneously believed that proof that he cultivated 47 cannabis plants constituted irrebuttable proof of charge (sic) and that he had no defence to it.

1.2 But for the error or misapprehension the plea would not have been made.

Particulars

1.2.1 The appellant instructed his counsel that he grew the cannabis plants to use the cannabis as a means of relieving pain and not with any intention of selling or supplying it.

1.3 That the error or misapprehension of the appellant led to a miscarriage of justice.

Particulars

1.3.1 The appellant had a defence to the charge which was not put to the court and as a result the appellant has been convicted of a charge to which he has a defence."

4 In his order for leave to appeal, Miller J also gave the appellant liberty to file affidavits setting out the fresh evidence relied upon but reserved the admission of that material to the Judge hearing the appeal.

5 The following affidavits were filed: that of the appellant, sworn 5 February 2001; that of his wife Camille Bernice Price, sworn 5 February 2001; and that of Dr Robert James Warner, sworn 8 February 2001.

6 Section 186(1) of the Justices Act 1902 (WA) reads:

"An application for leave to appeal may only be made on a ground or grounds coming within the following -

(i) made an error of law or fact, or of both law and fact;

(ii) acted without or in excess of jurisdiction;

(iii) imposed a sentence that was inadequate or excessive;

(b) that there is some other reason that is sufficient to justify a review of the decision."

7 Mr Mazza pointed out that the appeal was brought under s 186(1)(b) of the Justices Act, that being that there is some other reason sufficient to justify review, namely the plea of guilty was entered in error or under a misapprehension and that ultimately led to a miscarriage of justice.

8 He argued that I could not determine that unless I had before me evidence as to the circumstances surrounding the decision of the appellant to enter an unequivocal plea of guilty and that I was authorised to receive that by way of affidavit or oral evidence pursuant to s 196(1) of the Justices Act.

9 Mr Mischin who appeared for the respondent did not concede the admission of the material but agreed that the grounds of appeal related directly to the appellant's state of mind, and that could only be determined by evidence of the kind sought to be produced. That seemed to me to be a fair and realistic appreciation of the position and I accordingly granted leave to the appellant to adduce that evidence. Mr Mischin had given notice that he would wish to cross-examine the deponents and so they were in fact called. In each instance the affidavits were taken as their evidence-in-chief.

10 Before turning to the further evidence given before me, it is convenient to outline what was put to his Worship in the court below. It is apparent from the transcript (AB 12) that some related matter had been dealt with by the learned Magistrate in some way immediately before the appellant's case was called. His counsel before the Magistrate ("Mr C") had apparently also represented the defendant in that matter and he mentioned that the appellant's case was almost an identical situation to that of the previous defendant, the only thing different being the location. He indicated that "we maintain our concern as to the street value of these particular plants and so on ...."

11 The charge was then put to the appellant and he pleaded guilty.

12 The facts as outlined by the police prosecutor were that during the morning of 16 May 2000, detectives executed a search warrant at the appellant's residence in Mandurah Road, Baldivis. The rear shed on the property revealed a concealed bunker containing an elaborate hydroponic set-up, 47 mature cannabis plants being grown in the area. The street value was somewhere between $2000 and $3000 for each mature hydroponic plant which put a street value on these of close to $100,000 or $150,000. The prosecutor said that: "Similarly" the meter box at the premises had been bypassed "because of the incredible power needed to assist in the growth of these plants". He said that $25,000 cash had also been found in the premises in a firearms cabinet and an order for destruction of the plants and hydroponic equipment was sought together with an order for forfeiture of the money to the Crown.

13 At that point Mr C told the court there was no opposition to the request for destruction of the cannabis plants and the hydroponic equipment, but the application for forfeiture of the $25,000 would be opposed.

14 He then addressed the learned Magistrate on the appellant's background, saying the appellant was currently aged 42 years, having been born on 3 March 1958, was married and had been so for four years. There are three children aged 2, 6 and 8 attending a local school in Baldivis. The appellant was born in New Zealand and came to Australia in 1981. He was educated in New Zealand and following a four year apprenticeship, qualified as an automotive vehicle engineer.

15 On coming to Western Australia he worked for an engine reconditioning firm for 12 months and then went to Kambalda where he worked as a diesel mechanic for Western Mining Corporation for six years. It was whilst working there in 1984 that he suffered a serious accident to his back while trying to save a trapped worker. He required major spinal surgery and has had two spinal operations. Since that time, because of his injury, he has been unable to work and has been on a disability pension for two years.

16 Because of the ages of the three children, his wife is fully involved with them and is not in other employment. The family lives in the house at Baldivis which is mortgaged to the ANZ Bank for $220,000, the present repayments of which run at some $1200 per month. The appellant received a substantial compensation payment of approximately $250,000 for his back injury in 1998. He has no previous convictions. Counsel then made a passing reference to the area in which the cannabis had been grown and then continued (at AB 14):

"MR C: ... I'm told that the area in question is like a - - an area of the - - it was originally an area in a shed that was used perhaps where people get under vehicles, which has been widened out - - it seems to be about 2 or 3 metres by 4 metres or something of that description, but it was - -

HIS WORSHIP: Yes, I think I saw it on TV.

MR C: All right. You beat me then, sir, I haven't seen it. And he's put a lid over the top of it and it's been grown in that way.

HIS WORSHIP: Yes.

MR C: He smokes cannabis because of - - although it's clearly not allowed and not accepted, it's not permitted, but a person with a back injury - - you've probably heard before that people tend to, or sometimes foolishly, smoke the substance because they somehow think that it'll be better than taking authorised medications. And clearly this matter has some of the hallmarks of being a midline commercial operation of some description and I can't get away from that. My friend's concept as to the values, obviously there is nothing in the facts. These plants, I'm told, were mature and no different from those concerning the previous offender, these ones were, I suppose you'd call, close to the time of harvesting, they were very - - -

HIS WORSHIP: Yes.

MR C: You probably saw that on TV as well. Now, the $25,000 in cash, just if it's a matter that troubles your Worship, I'm instructed that he can explain that sum of money and would seek to do so at an appropriate time in relation to both savings and from his award and also from gambling. And he has records, which I haven't seen at this stage, which in due course he will no doubt produce to me. But I just simply push that to one side."

17 Counsel then handed up some references and mentioned that the question of the appellant's use of cannabis had been a matter that was the subject of some matrimonial acrimony.

18 The learned Magistrate then indicated that he proposed to order a pre-sentence report and there was some further discussion as to the value of the plants.

19 His Worship then asked whether the previous case and this were connected, to which counsel responded that the previous offender was in fact the appellant's mother-in-law.

20 The appellant was then remanded for a pre-sentence report.

21 The case came before the court again on 9 June. At the outset, counsel referred to a dispute about the alleged value of the cannabis. He said the figure of $150,000 suggested by the prosecution was totally incorrect and explained his own calculations whereby he had arrived at a figure around $23,000. In the course of these submissions, counsel made the comment (AB 19):

"It's not disputed that you might make a finding that this is a - - has a commercial element to it, ..."

to which his Worship responded that he would find it was commercial because the appellant had pleaded guilty to possession with intent to sell or supply.

22 Counsel acknowledged that but said that the scale of it may be important. In that regard he made some further observations as to the basis upon which he understood the prosecution was claiming a value upwards of $150,000 (the learned Magistrate said his note was that the prosecution was alleging a value of $200,000) and reiterated his reasons for suggesting the valuation should be somewhere in the region of $20,000 to $25,000. He observed that while that was still obviously a serious issue, it was "a far cry" from the appellant being sentenced on the basis of a value of $150,000 or $200,000.

23 There was then further discussion about there being a further hearing at which evidence could be called on this issue. In the course of that the learned Magistrate queried whether the prosecution was going to be alleging that the appellant and his mother-in-law had been acting in concert because obviously that would also affect sentencing. Counsel submitted that approach could not be taken because these were distinct offences charged against different defendants and sought to deflect the learned Magistrate by returning again to the question of value. There was reference to the diversion of the electricity supply: counsel indicated that his inquiries had indicated that the power supply to an air-conditioner and water pump had been diverted from the meter but they were not related to the cannabis crop - nonetheless the effect was the same, namely that the power supply to the premises generally was understated. The point being put was that this had been done to get free electricity.

24 The police prosecutor then indicated he proposed to call a police officer as an expert witness to give evidence of the value of the crop and said the prosecution was maintaining the set-up was very professional and a substantial commercial gain was to be afforded by the cultivation. He said the actual bunker was very professionally set up, was not easily discovered and pointed out it was much more than a motor vehicle repair pit. As to the diversion of the power supply, although that may have been diverted for a different purpose, it achieved the same outcome, namely that Western Power was not alerted to an excessive use of electricity.

25 The case was subsequently adjourned for further hearing. It came on again before his Worship on 26 June.

26 Counsel then informed the learned Magistrate that he had not received the witness statement of the police officer until about a half an hour beforehand and understood that the officer was on leave, which presented a difficulty because he wished to cross-examine the witness. There was some further discussion as to how the appellant's matter might be further adjourned and whether or not that was desirable considering that the case in relation to his mother-in-law, together with a Mr Gobby (whom I was subsequently informed was the husband of the appellant's step-daughter and who had also been charged with an offence of cultivating cannabis with an intent to sell or supply), the Magistrate expressing the view that it was desirable to keep the three cases together because of the need to maintain parity.

27 The learned Magistrate eventually agreed to adjourn the appellant's case. In the meantime however, a fresh charge had been presented and that was put to him. It was another charge that on 16 May 2000 at Parmelia he cultivated cannabis with intent to sell or supply ("the new charge"). He was not required to plead to that charge. The charge the subject of this appeal was adjourned to 10 July.

28 On that date, when the case again came before the learned Magistrate, counsel informed him that the new charge had to go to a callover date. His Worship then put the new charge to the appellant who pleaded not guilty. The question of jurisdiction was then discussed. It appeared the allegation was that there were 50 plants between 2 and 3 feet in height. Counsel submitted that the new charge should be dealt with summarily - the offence charged was that also charged against Teresa Dibb, the appellant's mother-in-law. She had been dealt with summarily. His Worship accepted the submission and ruled that he would deal with it summarily. The new charge was then remanded to the callover in September and the hearing continued in relation to the charge the subject of this appeal.

29 The police prosecutor tendered 28 photographs showing the area in which the crop was being cultivated and equipment and materials relating to it.

30 They show a metal shed on a concrete pad. The shed is easily wide enough for two vehicles. On one side of the inside of the shed is a trailer. When the trailer is moved, a man-hole cover can be seen. There is a T-bolt located in another part of the shed. The T-bolt is used to screw into the top of the man-hold cover so that the cover can be removed. Below that is another cover which slides to one side to gain access to the subterranean room. The room is 5.2 metres long, 2.8 metres high and 2 metres wide. There are gas bottles containing carbon dioxide and gas measuring devices to indicate the levels of gas in the environment. The walls are covered with aluminium foil to support the reflection of available light within the room and assist plant growth. There are fans for circulating air and large ducting pipes for air inlet and exhaust. The plants themselves are contained in black pots about 6 inches in diameter which are in turn set on large trays about waist high. There is overhead lighting and extensive wiring for power as well as equipment to support the hydroponic part of the operation.

31 The police prosecutor submitted each plant had the capacity to provide $4000 of dried cannabis. To support that proposition he called Detective Senior Sergeant Richard Corkhill. D/S Corkhill's testimony was in the nature of expert evidence. No point is taken about this. Having described his police experience and qualifications to give the evidence, he explained that he had been shown photographs and certificates relating to the cannabis and equipment seized from the appellant's premises in May 2000. On the basis of that he made the following observations.

32 The converted area under the shed had been lined with special reflective plastic sheeting. That is used to effectively reflect about 98 per cent of light and heat generated by the high intensity lights and used in hydroponic cultivation. The equipment, including specifically transformers, oscillating fans, submersible pumps, carbon dioxide gas bottles and a gas discharge meter, indicated the area was very professionally set up. He added:

"It would appear that the cultivator has conducted extensive research into the hydroponic cultivation of cannabis."

33 He said the usual growth cycle for hydroponic cannabis cultivation is 14 weeks and is capable of producing three crops per year. However, skilled cultivators can reduce this to as little as 10 weeks. He said the gender of the cannabis plants shown in the photographs is clearly female due to the presence of substantial flowering buds. He said the cannabis buds shown in the photographs are of extremely high quality and a plant of that type would yield between 300 to 500 grams of "bud".

34 D/S Corkhill described the harvesting process and then ventured the opinion that the minimum estimated value of the product from the 47 cannabis plants seized at Baldivis, if sold in ounce weights would be $188,000 and if sold in pound weights would be $124,000.

35 He then observed that the usual method of consuming cannabis is by smoking, either in cigarette form or through a "bong", although the use of cannabis in cooking has become more fashionable over the past few years. He said that from his experience, an average smoker would consume up to 10 grams of cannabis a week; a heavy user may use up to 28 grams a week and a chronic user would use in excess of that. He concluded two or three good sized "hydroponic" plants full of colas would keep the average cannabis smoker in supply for up to a year. In cross-examination he conceded that he had not actually seen the plants themselves but was expressing an opinion purely from viewing the photographs. Nonetheless, although cross-examined extensively about the growth cycle of cannabis, particularly when grown hydroponically and under lights, the Detective Senior Sergeant did not resile in any way from the view he had initially expressed; and in re-examination reiterated the view that from the crops he had personally seen, he would place this probably in the top 10 per cent in yielding between 300 and 500 grams of bud per plant.

36 Counsel then continued with his submissions. So far as the $25,000 was concerned he said that police Assets Investigations had checked the money and found it was properly accountable as legitimate funds and that once it was tested forensically to ascertain whether or not it showed any physical traces of contact with cannabis and assuming that proved negative, the money would be returned to the appellant.

37 Counsel then again reiterated details of the appellant's background and in particular his accident in 1984 resulting in major spinal surgery. He tendered to the court a letter from the appellant's general practitioner confirming that he had previously been on steroids and that the doctor was aware he was taking cannabis for the pain in his back. Counsel mentioned the appellant had presented to him an extract of a report from a United States' newspaper indicating that cannabis was being approved in that country for medicinal purposes and against that background, proceeded to explain to the learned Magistrate how the appellant had used the cannabis.

38 Counsel explained that the appellant boiled cannabis and put butter in it and then described the process of preparing the cannabis so that when it set the cannabis was embedded in the butter, which was then scooped off when cold and used in cooking, including cakes and bread. He then went on to make some mention of how a pre-existing vehicle inspection pit had been further excavated to prepare the area in which the cannabis was grown and said it had been widened and lengthened and maybe even deepened, but certainly a roof had been put on the top. Counsel then continued (AB 46):

"MR C: And then it's been camouflaged, he says he's kept it away from his children, because he didn't want them to know where it was. Obviously the other reason is that he didn't want anybody who might come to the premises or the police. He says that the plants are all for his own use. Some may have been given away, but certainly none sold, and I can say to you that in an operation like this, as you've seen it, with the photographs, you can bet your boots that the asset tracking people went through him with a fine tooth comb as to whether in the light of the fact that he has got a house, that whether any of his property could not be justified by legitimate means, and that's all been - - seems to be satisfactorily verified now.

HIS WORSHIP: Sorry, Mr C, is your client's plea on the basis - -

MR C: On the basis that some of it would be used - -

HIS WORSHIP: Yes.

MR C: - - and some of it would be shared, but none of it would have been sold. Now that's the basis - - now - -

HIS WORSHIP: well, isn't that what the prosecution are putting up that all of these - - things about money because they're saying he's a cannabis dealer? Well, do we not - - do we need another trial?

MR C: No. No, well, the purpose of challenging value, which perhaps didn't really establish what I wanted to hear was that my understanding was, and perhaps the witness is saying I haven't actually physically weighed this, but Mr Price would have said that each of these plants were producing around about 5 - - 4 or 5 ounces of material that was wet, that would produce 1-1/2 to 2 that is dry, and he was using the plants by taking the heads and actually cooking them up and using them that way. Some of it was shared with others, but none of it was sold. Now the purpose of the prosecution case I suppose is to say well look, that's not right. He had 47 plants, they're very good plants, they were obviously - - must have been for the purposes of selling, even though there's no surrounding evidence, there was no bags found, there was no scales found, there was no bong found, that's another aspect; been through the search warrant, all the items that were seized, there's no suggestion of any bong. He doesn't smoke. He tells me both his parents died of emphysema, he's never smoked, but he does consume this in this way, and it has a greater effect" (my emphasis).

39 Following some further submissions along these lines, the learned Magistrate made the comment that he thought perhaps he and counsel had been at cross-purposes to some extent. He had been proceeding on the basis that the appellant did have a back problem and pain and that he was using some of it, but that it was a cultivation of cannabis as a commercial venture. His Worship said that if that proposition was to be disputed, then he thought there would be a need to have a full hearing (AB 47).

40 Counsel did not confront this directly but instead referred again to the dispute about the value of the crop, reiterating that at the most, it would only be about $35,000 and that there was no need for a trial.

41 His Worship again expressed some reservations, suggesting that what the appellant had pleaded guilty to was something totally different from what he (the Magistrate) was going to sentence him for. Counsel said that the appellant had pleaded guilty to cultivation with intent to sell or supply and so he was "captured" whether it was the sale or supply of some or all of the cannabis.

42 Again his Worship commented that it was being put by the prosecution on the basis that they were talking about some sort of commercial enterprise. Counsel again said that notwithstanding his cross-examination, he had not been able to make any great headway in relation to that by calling evidence to the contrary because he was not in a position to do so.

43 Again his Worship reiterated that it got down to a trial of the issues; however counsel said he was not in a position to challenge the value any further.

44 Counsel then continued his submissions on sentencing by reference to particular cases (AB 50) reflecting sentences ranging broadly from 12 months to almost 3 years imprisonment.

45 The prosecutor in turn reiterated his earlier submissions that this was a professional operation and in response to the appellant's contention that he was growing the cannabis for therapeutic purposes, reminded the learned Magistrate that Detective Senior Sergeant Corkhill's evidence was that two or three good sized plants would keep an average user in supply for a year - which meant as the evidence stood, the appellant had 15 years supply!

46 His Worship then proceeded to sentence the appellant with the following remarks (AB 51-53):

"... You come before me for sentence on one count of cultivating cannabis with intent to sell or supply it to another. You've pleaded guilty at the earliest opportunity and you'll be given credit for that. I've already had a brief discussion with counsel. In my view, the fact that there are others, including family members and others that know each other charged with crops, they've been separately charged. At all times I've been asked to deal with the crops separately and I've done so, so strictly speaking parity principles do not apply, although of course it is appropriate still to maintain a degree of equality. I won't use the word 'parity', I think that really applies where people are jointly charged with same matters.

Yours has to be considered separately. You're charged by yourself. It's an elaborate set up. It has been elaborately concealed from your own family as well as outsiders. The vent system or the cover system to get down into this bunker is well concealed, professionally, or semi-professionally made, when I say professional, I mean in the manner that is not slap dash and not careless. The ventilation vents that are carefully constructed also been hidden from view. Downstairs is extremely proficient set up. Plants are in rows, the lighting is there, you have thermometer type equipment to measure humidity and temperature. You've got insecticides, you've got everything there. It's done well, it's done for a purpose, it's done to produce a good crop, and it is a good crop, as Detective Senior Sergeant Corkhill said, it's in the top per cent of hydroponic crops that he's seen.

It was clearly intended to be done on a semi-professional basis, or a professional basis, basically. In other words well done, and it does not have the - let me see, how can I put this - the appearance of a transient operation, although of course you are only being sentenced for the one crop, but I'm not naive to think it's there just - - you've set this up to do this one set of plants.

You have in your favour the fact that you have serious back injury, and as has been pointed out, at many times, cannabis has in certain circumstances, excellent pain relief qualities. That's - - the courts are not unaware of that, Parliament's not unaware of that. It's still not legal. Been trying to legalise it since Woodstock and it still hasn't happened, and it's unlikely to happen. And that's the situation that confronts us. The crop is worth a substantial amount of money, any way you look at it, whether it be sold in ounces or pounds and set out by Detective Senior Sergeant Corkhill. It's impossible, of course, as he points out, quite properly, to completely estimate what it would weigh in at, but issue has been taken, evidence has been given concerning the original prosecution assertion it was worth approximately $200,000. Detective Senior Sergeant Corkhill, whose evidence I accept, and his expertise is not questioned in any way, shape or form, has estimated it varyingly between 100 - - approximately 124,000 and 188,000. It has to be an estimation by necessity.

It's a good crop, there's no doubt about it. It's not the biggest crop we'll see, but it's one of the best laid out in my view, in terms of hydroponics. Certainly better than the usual spare bedroom affairs we see before the courts from time to time. I'm going to sentence you on the basis that it's a professional crop. Obviously a fair bit of it was for your own use, but I'm not going to accept that it was not a commercial proposition involved in there as well. You have a wife, you have a family, they're going to suffer, I appreciate that, you've got debts, but at the end of the day, while appreciating imprisonment's a sentence of last resort, I belief imprisonment is the only alternative.

I believe your personal circumstances should be reflected and can be reflected and will be reflected by making you eligible for parole. My view, the appropriate penalty for your matter, as I said, parity doesn't apply, but I think it is still appropriate to compare you to the previous gentleman who I've sentenced whose name escapes me for the minute, you mentioned it [Mr C], I know the penalty, I know the case.

MR C: Gobby?

HIS WORSHIP: Thanks, [Mr C]. Mr Gobby. He had other crops that he admitted to and there are other circumstances. I gave him 2 years. I think in your case, despite I've already said this is an expensive crop, I think the appropriate penalty is to imprison you for 18 months. And that's what I'm going to do. You'll receive 18 months imprisonment, eligible for parole, and there'll be a formal order for destruction of the crop...." (Emphasis added).

48 According to the appellant's affidavit sworn on 5 February 2001 and his evidence before me, he grew the cannabis solely for his own use and had no intention of selling or supplying it to anyone else. He contended he pleaded guilty because Mr C explained to him that a person who grew more than 25 marijuana plants was deemed to do so with intent to sell or supply, and since he had 47 plants he was caught by that provision. He deposed (and confirmed in his testimony) that he told Mr C the cannabis was solely for his own use but that despite this Mr C advised him he should plead guilty. He said he recalled Mr C saying words to the effect that if he pleaded not guilty it would cost a lot of money, take over a year and he would still be found guilty at the end of the process because he had over 25 plants. He further deposed that he did not understand the advice given to him to mean that he had a defence but that it was not a good one or was unlikely to succeed. He was adamant that the advice given to him, as he understood it, was that he had no defence and had to plead guilty due to the number of plants that he was growing. He took Mr C's advice and pleaded guilty on that basis.

49 It was put to me on the appellant's behalf that this was not a situation in which he was not prepared to accept his sentence; rather, that having accepted that outcome based on the advice given him, it was not until some five or six weeks after he went to gaol that he learned from a fellow prisoner that he could have defended the charge by satisfying the Magistrate that he did not in fact have any intent to sell or supply. On being told that he made further enquiries and finally spoke to his present solicitor who explained to him the relevant statutory provisions as a result of which he lodged the appeal.

50 This appeal turns on an argument that a conviction recorded as a result of an erroneous plea or a plea brought about by misapprehension will be set aside if the entry of the plea of guilty has in fact been brought about by error or misapprehension, that but for the error or misapprehension the plea would not have been made and a miscarriage of justice has resulted.

51 The principles relating to a plea of guilty in a Magistrate's Court were considered in Murray v Northcott [1990] WAR 219. The appellant in that case understood he was appearing before a Magistrate for the primary purpose of having his bail application considered. As events transpired, there were certain other charges dealt with on that occasion, even though he had earlier been advised by his counsel that some of them had been withdrawn.

52 The Magistrate recorded a plea of guilty made by the appellant's counsel on the appellant's behalf for which the appellant had not instructed his counsel to so plead. The Magistrate did not require the appellant to plead personally to the charges. Counsel simply informed the Magistrate that the appellant was pleading guilty. The prosecutor then recited the facts and counsel made brief submissions in mitigation.

53 The appeals were allowed, Wallace J holding that s 138 of the Justices Act 1902 required the substance of the complaint to be stated and the appellant to plead personally to the complaint. In relation to the principles in respect of a plea of guilty in Courts of Petty Sessions, his Honour said (ibid, 223):

"Section 138 of the Justices Act1902 provides:

'When the defendant is present at the hearing, the substance of the complaint shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted, or why an order should not be made against him; and if he has no cause to show, then the justices present at the hearing may convict him or, make an order against him accordingly.'

It is quite apparent that there has been no compliance with s 138 of the Justices Act. Much has been written as to the care which should be exercised in ascertaining the integrity of pleas of guilty in courts of summary jurisdiction: Rainbird v Samuels (1972) 4 SASR 187, per Walters J at 188; R v Murphy [1965] VicRp 26; [1965] VR 187, per Shoal J at 190; Hinton v O'Dea (1977) 16 SASR 234; Bull v Deed (1968) 16 SASR 236 (note), all of which expound the principle that:

'if the entry of a plea of guilty has been brought about by mistake or misapprehension of the nature of the charge,...and it appears that but for that mistake, misapprehension or ... the plea would not have been made, and if it also appears that a miscarriage of justice has resulted, then an appellate court has power, indeed a mandatory obligation, to quash the conviction and the penalty imposed.'

See Walters J in Rainbird v Samuels (supra)."

54 Murray v Northcott was followed by Nicholson J in Lutter v Davis (1992) 7 WAR 72. In that case the defendant was an employee of Telecom who had been charged with stealing. His solicitor advised him to enter a plea of guilty "with mitigation". However, that was not communicated to the Magistrate and a plea of guilty was entered. A different solicitor informed the defendant that there were various defences open. The new solicitor subsequently applied to the Magistrate to change the plea but that application was refused. The defendant appealed. On the appeal Nicholson J held that s 138 of the Justices Act 1902 requires that a defendant be permitted to show why he should not be convicted. At all times the appellant intended a plea of "guilty with mitigation" to be entered. That was equivocal or ambiguous and had the Magistrate been made aware of it, he ought not to have accepted a plea of guilty. The appellant had been denied the right to stand his trial on the merits.

55 Having quoted the foregoing passage from Murray v Northcott, Nicholson J referred (at 79) to Lamb v Clews (1989) 10 MVR 465 in which Franklyn J said (at 472-3):

"Whilst the appellant's plea before the justices was unequivocal, that may well have been because he was not afforded the opportunity to say anything in relation to the charge. As a result he may well have been deprived of the chance to say something as a result of which that plea would have been recognised as what Burt CJ referred to in Townsend, as one of 'guilty but', and so equivocal.

I am satisfied on the evidence before me that an arguable defence exists which is not the subject of recent invention and that the appellant should have the opportunity to stand his trial on the merits."

56 In Lutter it could not be said that the appellant did not appreciate the nature of the charges, however Nicholson J found there were two matters which counted in his favour (ibid, 79):

"The first is that it was not his intention to plead guilty simpliciter but rather to plead 'guilty with mitigation'. The second is that on some if not all of the offences there were facts which, if made known to the court, would have provided him with an apparent defence. I am satisfied that an arguable defence exists in relation to each of the charges at least in relation to a significant number of the items of property concerned in each and that such defence or defences are not the subject of recent invention."

57 It is true that each of these cases was concerned with the operation of s 138 of the Justices Act and an equivocal plea of guilty. In my opinion the same principle must apply in the present case if it be established that the plea of guilty, although not equivocal, was only made on a wrong understanding by the appellant that he had no arguable defence. In that circumstance (if it be shown) I consider the appellant would have been denied the opportunity to have his trial on the merits (although not due to any error on the part of the Magistrate) and that would constitute a miscarriage of justice.

58 I accept the submission that the conviction should be set aside if the appellant had an arguable defence to the charge but nonetheless pleaded guilty under the mistaken apprehension that, and solely because, he genuinely believed the law was that he was deemed to have an intent to sell or supply because he had more than 25 plants. On the other hand, it would not be sufficient for him to have known of the presumption and decided to plead guilty only because he made the assessment that, for example, he was not likely to be believed were he to claim the cannabis was solely for his personal use - although of course if those had been his instructions, his counsel could not properly have put his case otherwise.

59 It is not for me on this appeal to make any determination whether or not the appellant did in fact have an intent to sell or supply, nor whether his testimony and the evidence adduced on his behalf is sufficient to displace the intent presumed by the statute. The three questions for me are much more limited: they are simply whether:

(1) on the appellant's instructions to his lawyer he did have an arguable defence to the allegation that he had an intent to sell or supply the cannabis;

(2) despite that, he pleaded guilty because he genuinely believed he would be presumed to have had the intent to sell or supply because he had more than 25 plants, notwithstanding what his actual intent may have been, and

(3) if so, whether as a result there was a miscarriage of justice.

60 It is not in dispute that the appellant suffered a serious back injury in a mine accident in March 1984. In his affidavit he described how he and five other men were carrying a hydraulic ram whilst working at Kambalda. When one of the men stumbled, they all lost their balance and the hydraulic ram fell on the man who had stumbled, crushing his leg. The appellant lifted the ram off his co-worker and in so doing, ruptured discs L4, L5, S1 and S2 and suffered spinal nerve damage. He underwent spinal surgery in 1984, following which he was in hospital for two or three weeks and then underwent some three months of rehabilitation during which he had to be taught how to walk again. He returned to manual work light duties about 1985 but continued to be seriously incapacitated and suffered considerable pain. In 1986 he had to have a second major spinal operation and was told he would never be able to work again and would probably have to take pain killers to control the pain for the rest of his life. He used pain killers, usually panadeine forte until the early 1990s but had to stop because of stomach irritation. He began using steroids and doing weight training and although that had some ameliorating effect on the pain, it began to worsen again about 1998. It was late in that year that a friend who used cannabis to alleviate his own back problems, gave the appellant some cake made with cannabis butter. He found that it assisted to relieve his pain and from that time began purchasing cannabis. He was using 3 to 4 ounces per week. The cost of this was funded from cash remaining from his compensation payout of some $280,000 in October 1987. Because of the quantities he was using, purchasing cannabis in this way became too expensive and the appellant decided to grow his own at home. He researched hydroponic cultivation on the Internet and other sources. He found an article in "The West Australian" newspaper which reported that in the United States of America some States were allowing people to grow up to 48 plants for therapeutic purposes and that number would provide them with supply for approximately three months. A copy of that article was annexed to his affidavit; it is headed "Clinton declares $3 billion war on drugs". It refers to a nationwide media campaign to discourage teenagers from using drugs. The campaign began the day after Oakland County in California approved one of the most liberal medical/marijuana laws in the United States. According to the article, the law:

"... allows patients with a doctor's prescription to keep 30 outdoor marijuana plants, 48 indoor plants, or 680 grams of the drug in bulk - about a three month's supply."

61 The article bears no date but Mr C confirmed the appellant had given him a copy of the article before sentencing by the Magistrate and indeed the transcript shows he mentioned it to the Magistrate.

62 The appellant was extensively cross-examined before me.

63 Describing his first interview with Mr C the appellant said he showed Mr C the charge sheet and readily admitted to cultivating the cannabis but made it clear that the crop was entirely for his own use and he had not intention of selling or supplying it to anybody. His wife was present at this time. He testified that Mr C read out of a book and explained to him that because he had 47 plants it was well over the 25 plants at which a person was deemed to be selling and supplying. He continued (t 17):

"But you told him that you hadn't intended to sell or supply?---Yeah, exactly.

What was his response to that?---, his response was, 'You've got over the amount. You had over 25 plants so you are deemed to be selling and supplying,' so I sort of - I mean, he's supposed to - you know, I've never been in trouble before and I sort of went, 'Oh, okay, then, that must be what has to happen,' you know.

So what else was discussed?---He said, 'If you pleaded not guilty,' he said, 'it'd probably take you up to 12 months or maybe 12 months. It's going to cost a lot of money and you're still going to be found guilty because you had over the 25 plants.' So I took that to mean I had no defence and basically no choice."

64 The appellant described how Mr C showed him a diagram of the "fast track system" explaining that if he pleaded guilty straight away there would be a lesser sentence than if he went the other way and he would still be found guilty. As the appellant put it (t 18):

"Either way we're going to be found guilty. It was just a matter of when, just a matter of time, whether in 2 months time when I went to court or 12 months time. I was still going to be found guilty so I thought I had no choice. I thought I had no defence at all to it, the way he described it and the way I took it."

65 The appellant said his wife reiterated to Mr C that he had no intention of selling or supplying to anyone. The cannabis was simply for his own used because of his spine injury. He said she was distressed at that time, particularly after Mr C advised that he would probably be going to gaol.

66 Mr Mischin specifically questioned him about whether there had been discussions about the presumption (t 20):

"Are you sure he didn't say that there's a presumption that if you've grown over 25 plants that you're selling or you did it to sell or supply and that you have to overturn that at all.

Did he say it was difficult to overturn the presumption?---He didn't say anything about it being difficult or not. He just said, 'you're caught in the act of having - because you've got 47, you're over 25.'

Are you sure he didn't say that, 'Look, your defence is a pretty weak one and you're going to probably be found guilty?---He didn't say that. No, he didn't say I really have a defence at all. He said, 'You're caught in the act If you pleaded not guilty it's going to be found guilty anyway."

Are you sure of that---I'm positive."

67 Questioned about the construction of the bunker the appellant said that he bought the equipment off a friend for $2500 which was sold to him as a "job lot" although there was quite a bit of it he did not need. He ended up storing that at his mother-in-law's house.

68 By his own description the construction of the bunker was clearly a significant exercise involving widening access through the concrete pad to the mechanic's well, excavating a large hole to the dimensions already mentioned, laying Besser blocks for side walls, laying concrete for a floor, placing railway sleepers across the top of the excavation for a roof, on top of which again plastic was laid, followed by soil and then the covering completed by laying concrete on top of that. The underground space so created was then fitted out with reflective sheeting and hydroponic equipment. That comprised lights, trays, pots, nutrients and other equipment and the installation was then completed with electrical wiring and air ventilation.

69 The appellant described the process of preparing and using the marijuana in the form of cannabis tea and butter for cooking. He was adamant that he never smoked it. That was because he has never smoked at all - both his parents had died of emphysema and smoking related injuries and illnesses as a consequence of which he never smoked anything, including cannabis. He denied rewarding the friends who helped him build the bunker by offering them cannabis, nor did he offer it to anyone else. He agreed that the police had raided a number of premises on the day they raided his and as a result, a number of people had been separately charged and appeared in court on the same day. He said his brother had about 8 plants 4 inches high and a tray of "little cloned things" about one inch high; his mother-in-law was charged with cultivation with intent to sell or supply. She was renting a property from the appellant and was found to be growing cannabis plants in the shed at that address. He said he knew nothing about that until four to six weeks before his court appearance when he and his wife walked in an found his mother-in-law watering her marijuana. The equipment that she was using was the equipment he had left in her shed and which he had not needed. He and his wife were surprised and asked what she was doing. He said his mother-in-law told them that her boyfriend had set it up with her. The appellant said that he told her to take it down because he did not like it being in the house with her. His mother-in-law is in her early sixties, sometimes not well and lives by herself. He did not want anyone finding out about it and (t 64):

"... giving her a belting and flog it off her...."

70 He said he did not discuss his brother's marijuana until after they were charged, although he did know he had been growing a little bit but had never seen it.

71 His son-in-law, Mr Gobby, had also appeared in court the same day charged with cultivating cannabis. The appellant's daughter and Mr Gobby were living in a house owned by the appellant's wife and rented to them. The appellant said he had no idea they were growing cannabis until the police raid. He understood Gobby just had it in a bedroom inside the house.

72 Mr C represented all of them in the Court of Petty Sessions on the same day.

73 Counsel for the respondent cross-examined the appellant also about the proceedings in front of the learned Magistrate and in particular what Mr C had put to the court on that occasion. There was the following exchange (t 81):

"Do you remember hearing him say that you would have intended perhaps to supply people, but certainly not sell it?---I can't recall him saying that, no.

Do you remember him saying, page 46 of the appeal book and this is on 19 July: 'He says,' meaning you, 'that the plants are all for his own use. Some may have been given away, but certainly none sold'?---Actually I remember him mentioning that to me. He said to me, 'They are not going to believe that you were using them all,' and I said, 'Well, I was going to use them all. However I got [sic] I a wanted to use.'

So when he says that some may have been given away, but certainly none sold?---He's just saying that, but that's not - - -

That's not what you told him?---No - at all" (emphasis added).

74 Cross-examined about the size of the crop and the amount of cannabis it could be expected to produce and what he would have done with the excess, the appellant responded (t 83):

"I was hoping it was going to last 3 months. If I had enough there for 6 months, I wouldn't have to grow again for the period of time till I used what I had. I mean, my back injury's not going to get better. I've got this for the rest of my life. It's not like I'm doing it for 12 months and then I'm going to get better. I've got spinal damage and I've got to live with that for the rest of my life, so I'm going to be needing it for pain relief, so it's not like I'm going to have excess at any stage really.

Having heard [Mr C] say things to the effect that you would have used some and given some away, did you take that up with him afterwards?---I did. I took it up with him before, but he said, 'It's better to say that,' and I said, 'I didn't want to give any away. I wanted to keep it for myself,' and he said, 'They're not going to believe you're going to use 47 plants, so if we put it like that, not like you're selling it, but you're giving it away,' and I said, 'Well, I wasn't though,' you know. I think he was just trying to - I don't know - maybe do the best he could that way for me" (emphasis added).

75 The appellant testified that he had in fact asked his counsel to put him on the stand because he wished to give evidence himself to the Magistrate and explain that the cannabis was for his own use entirely and how he prepared and used it. He explained (t 93):

"At our last meeting I said, 'Put me on the stand. I would like personally' - I said, 'It's basically my arse on the line. Look, you're telling me I'm going to gaol. I want to have my 5 cents worth and tell them exactly how I used it, 'because all [Mr C] is saying is, 'The magistrate is not going to believe you used 47 plants.' I said, 'He's not because you're telling him - he thinks I'm smoking it, but if I can get my chance up there, I can explain to him my spine injuries, how I used it and why you use that much when you're cooking with it like that,' and [Mr C] just kept saying, 'No, I don't want to put you up. It's not going to be for your best interest,' and we had a bit of an argument about this and he said, 'Look, you can order me to put you up, but I'm not happy at all about doing it.' He said, 'On your best interests I'm advising you as your lawyer, don't get up there because they'll tear you to pieces. You've never been up there before,' and rah, rah, rah. I said, 'Well, I still want to have my say.' I felt like he wasn't saying what I wanted to say up there and he basically refused to do it, but in the end he said, 'I'll do it if you really want me to, but I think you're silly and you should really think about this.' You know, basically, 'I'm the lawyer. You shouldn't be doing this. I speak for you,' rah, rah, rah. I really just wanted my 2 cents heard so the magistrate actually could her (sic) about how I used it and why I had 47 plants. He's looking at all the plants and probably thinking, as you do, 'Cor, this looks a heap,' I mean that was my first crop and I didn't know how much I was going to get. I just grew it and how much I got was how much I got and I was going to go, 'Right, if I can use this much, I won't have to grow a crop again for 5 months, 4 months, or 1 month,' depending if I got hardly nothing, so that's how I wanted to do that, but I basically was shot down and told, 'No, you shouldn't do it. I'm giving you advice. You're paying me for the legal advice and I advise you not to do it.'

What, because you won't be believed?---Well, 'Because you won't be believed and you're wasting your time and then the prosecuting sergeant can - then you're up there and he can just ask you all sorts of questions and he can go to town on you, basically, and you've had it then. You'll probably get a longer sentence type,' of thing because I'm vulnerable then, putting me on the stand. That's why he didn't want to put me up there, and that's how he described it to me and I was - I mean, I just wanted the magistrate to know about my injuries and how severe they were and why I was using it and how I was using it. I just basically didn't get the chance to do that."

76 On 23 February, Mrs Price gave evidence. Her affidavit dated 5 February 2001 was taken as her evidence-in-chief. In that she confirmed the appellant's injury, operations and treatment. She confirmed that he began buying cannabis in late 1998 or early 1999 and described how he would prepare it to use as a butter mix or drink. She did not involve herself in what he did, nor how he did it. She described how he set up a place away from the house in the shed where the children and their friends would not see. She said she was not happy about it but she could see the benefits of it and at the time it seemed like the lesser of two evils. She deposed how following the police raid on 16 May 2000 she accompanied her husband to see Mr C on 17 May and that the advice given by Mr C was that if a person grew anything over 25 plants they were deemed to grow it with the intention of selling or supplying it.

77 Cross-examined first about her knowledge of her mother's cannabis crop she said she knew nothing about that until about four or five weeks prior to the raid. She said she and her husband had gone to drop their daughters off at school and dropped in to see her mother, who had not been feeling well. There was no answer to their knock so they walked in and found her watering the plants in a shed like a storage room. She said she was shocked: she would never have thought her mother would be doing something like that. She said the appellant told his mother-in-law that he did not want it there and that she had to get it out. The mother-in-law explained she was doing it with her boyfriend.

78 Neither Mrs Price nor the appellant were prepared to name the boyfriend in evidence. Nor were either of them prepared to name the two individuals who had assisted Mr Price construct the bunker. The general tenor of their responses in this regard was that they saw no reason to involve other people in what the appellant had been doing, nor generally to "dob in" other people. Given that the point Mr Mischin was trying to make in cross-examining each of them about these matters was to demonstrate a reluctance on their part to be full and frank with the court and to later afford a basis for him to comment adversely on their credibility, it seemed to me that purpose was sufficiently achieved by the asking of the questions and the refusals to answer them. I accordingly did not direct either the appellant or Mrs Price that they had to answer the questions on pain of contempt. In the end, although clearly a refusal to answer those questions did bear on their willingness to be completely frank with the court, nonetheless, I was satisfied their motivation (albeit misconceived), was genuine and did not detract from their credibility on the issues with which I was concerned.

79 Further cross-examined, Mrs Price said she was not aware that her daughter and her husband had been growing cannabis until after the police raids on 16 May. So far as the appellant's crop was concerned, she had no involvement in it. She was not happy with him doing it but was aware that he was and regarded it as the lesser of two evils. She insisted that if he was going to grow it he had to keep it away from the children and she did not want it seen.

80 The shed was some distance away from the house and out of sight and although she knew that the appellant and a couple of friends were excavating the area down there, she could not see what they were doing and did not want to. She confirmed that he was using the cannabis exclusively for his own purposes.

81 In the context of this appeal a most significant aspect of her evidence was that relating to the discussions at which she had been present between the appellant and Mr C. In that regard she essentially confirmed the account given by the appellant. She was clear that when they went to see the lawyer on 17 May, the appellant said he had no problem pleading guilty to cultivation because he was growing the crop but he did not want to plead guilty to an intent of selling or supplying it because he was not using it for that purpose - it was for his back. She confirmed that the lawyer told them that as they had 47 plants they were caught by the provision which said that anyone with more than 25 plants was deemed to tend to sell or supply. She said that the lawyer told them it was highly likely her husband was going to go to gaol and confirmed the reference to a diagram showing the "fast track system", explaining that if he pleaded guilty he would receive a reduced sentence, but if he pleaded not guilty he would go to trial and it would take possibly 12 months, cost a lot of money and at the end of the day he would still be found guilty because he had more than 25 plants which meant he would be taken to have an intent to sell or supply. She confirmed their understanding was that he had no defence and therefore no choice. She agreed that she was distressed, for example (t 16):

"So you were pretty overwrought about it all and you may have missed bits of the conversation?---I may well have. What I have interpreted though from what I did hear before he mentioned about my husband going to gaol was that over 25 plants is intent to sell and supply and we had 47. We were caught in that provision" (emphasis added).

82 She consistently maintained that she had been against the idea of her husband growing cannabis from the start and was bitter about the whole thing. This was not a new claim - it had been mentioned to the Magistrate by Mr C when he said the situation had caused considerable discord between them.

83 I accept Mrs Price's evidence on this and indeed generally. I found her to be a credible and honest witness who had found herself in a situation of being torn between concern about her husband's on-going pain and her opposition to him doing something to overcome it which was obviously illegal.

84 Dr Robert Warner practices as a general medical practitioner in Rockingham and has been practising for approximately 40 years. He has specialised in occupational medicine and health for some 20 years. He gave details in his affidavit of the spinal injuries suffered by the appellant and the on-going treatment given in respect of them. He had been treating the appellant since 1989. He confirmed that he commenced treating the appellant with analgesics but eventually that had to be stopped because of increasing and ongoing abdominal pain. He confirmed that at sometime in 1998 or 1999 the appellant mentioned to him that he was using cannabis to get relief from the pain. However, he did not describe how he used it nor how much. The doctor just left it at that. The doctor said that he would not recommend cannabis nor the use of steroids (both of which the appellant was using) but it did it of his own volition and it seemed to be effective.

85 The respondent called Mr C who attended on subpoena.

86 Referring to his file, Mr C said he had a note of the appellant attending on 17 May with his wife. Asked what the appellant told him about the circumstances of the offence and whether he brought any documents with him, Mr C replied (t 22):

"I'm not sure whether he brought any documents initially apart from the bail bond. I don't think we had the statement of material facts at that stage but I certainly got that within a day or so - essentially that he'd had a pre-existing structure which had been widened or made longer or deeper or something like that - I don't think I knew how that was done - that the cannabis was being grown hydroponically in there, that the number of plants, I think, was 47 - I think I either knew that or was tod that - and that the - I knew all about how it was secured in the sense that his children couldn't get access to it. It was below the ground. It had some sort of door mechanism at the top and there was a trailer usually parked over the top and things like that. I knew all that. I didn't have any photos, or course, at that stage or anything like that so - but as to the actual cannabis itself, he told me that he - the purpose of the cannabis was essentially for his own use but some of it would have been given to friends. Now, I can go on and tell you what we discussed on that occasion because there were a number of tactical matters to be considered bearing in mind the nature of the charges.

Please do?---Well, I did raise with him a number of things. Firstly, obviously there were a number of other crops found. Now, none of those, he maintained, were anything to do with him, but nevertheless I'd be aware that the police would continue their investigations into matters. This matter - although it was under the threshold number of plants and would at first blush be able to be dealt with by a Petty Sessions magistrate, there is a power under section 9 of the Act to in actual fact have it sent up if the magistrate feels it's serious enough. I did show him a passage. I think I read him that passage or I showed him that passage in my Brown volume as part of that section of the Misuse of Drugs Act.

This is the one about committing it to a superior court?---That's right, and as soon as I hear and got the details that $25,000 was seized, that it was a sophisticated hydroponic crop and that it was a bunker under the ground, all of those matters gave me concern so I discussed with him the fact that at this stage it was before the Petty Sessions Court, a magistrate could deal with it or it could be sent up to a higher court, and obviously I was keen if the matter was going to at that stage proceed to a plea of guilty, that, if possible, it be dealt with in the court below for the obvious reasons of the lower penalties that apply. I also explained to him the process to him the process of what happens if it did go on indictment and I had a small flow chart. I think I almost show every client this small flow chart that I've done which actually shows the process that - what happens if the matter goes on indictment. It has got a diagram that schematically shows a fast-track system and also the process through the committal to the District Court and directions hearings and so on. So there was a number of things discussed at that initial meeting, those sort of concepts. Also the aspect of - to the best of my knowledge, I did discuss with him this question of the presumption. It would be a normal thing that I would do because obviously it's the bread and butter area that I practise in. I would've explained to him that it's the presumption that would be rebutted. Now, the initial idea following that discussion was that we would plead guilty at the earliest opportunity and the reason for that was in my view tactically that I thought the investigation would probably simply close up and say 'That's the end of the matter,' and it may mean that there may be no other charges that were raised against him...

... That was based, was it, on his instructions that he did indeed have an intention to supply at least some portion of the crop?---Well, I have to stress that he was absolutely strong there was never any suggestion of selling any of this stuff. Most of it - the preponderance of it was for his own use, but some would have been given away. Now, for me - that was enough for me to - and of course, I could look at what - other than what he'd told me, just looking at the circumstances...." (emphasis added).

87 Mr C emphasised that his primary concern once the issue had been raised was to deal with the question of the value of the crop. The police were maintaining that it had a significant commercial value, whereas on his own calculations, Mr C thought it was probably in the region of $25,000 to $30,000 at the most. He thought that would make a considerable difference on sentence. He was also concerned about the offences involving the relatives. He said the appellant vehemently denied being involved with the mother-in-law's crop, but Mr C was nevertheless concerned about that being in the background; and it was a particular concern with regard to the question whether or not the appellant should give evidence. He agreed that he "probably did" indicate strongly to the appellant that he should not give evidence although he did say they were never focusing on the intent to sell or supply angle, but rather the issue of value.

88 It is apparent that quite early on Mr C had formed an impression of the matter which influenced his advice. For example (at t 26):

"But there was never any suggestion that I wanted him to give evidence because of these other matters which I think - and by then I'd seen the photographs and I'd formed - I couldn't divorce my own knowledge of what I saw and how it would be perceived by the magistrate and so for all those reasons I certainly indicated he should not give evidence."

89 As to the presumption, the flavour of Mr C's evidence was that he "would have" told him about the presumption because that was his usual practice. He said several times (eg t 31) that he was satisfied from what the appellant had told him that the crop had been grown had been grown with an intent to sell or supply and his major concern was trying to show that the total value of the crop was not more than something in the order of $30,000. He said on several occasions that the appellant was adamant that none of the crop was to be sold, but did say that some of it may have been given to friends.

90 Mr C had no note on his file relating to any discussion with the appellant specifically about the presumption. He agreed that it was a difficult concept which even Judges have difficulty explaining to juries and he agreed that in dealing with a client, it is necessary to be careful to ensure that the client understands the effect of the presumption (t 40). He was then asked if he was able to say whether he had tested the appellant's comprehension of the presumption, to which he responded that he did not think he did.

91 Questioned again about whether the appellant was adamant that the cannabis that he had grown was to relieve his pain, Mr C said (t 40):

"The great preponderance or the major part of it was for his own use. He was adamant he never sold any. Some would have been given to friends, I think" (emphasis added).

92 A little later there was the following exchange (t 42):

"Did you ever talk to Mr Price about the merits of any defence which he might wish to offer?---No.

Do you recall saying to him that given the number of plants and the method by which the plants had been grown, there wasn't a magistrate who would not convict him?---At some stage - not in those exact words, but - - -

No. I mean words to that effect?---Not quite words to that effect but the general principle once I knew the dimension of it - I'm not sure whether it would have been on the 17th of 18th but certainly my view hardened also, I might say, as it developed, but also from my own experience in these matters, once I knew the full dimension of it, I would have said something very similar to that; not in those words.

During this period, the 17th and 18th, I have already put to you that my instructions are that Mr Price said to you that he was going to use all the cannabis that he had grown for his own purposes and you have said that's not your recollection?---Yes.

Did you ever say to him that no-one is going to believe that he had those plants for his own use during this period of 17 and 18 May?---No.

Now, your recollection then is that he told you that he was going to use the large bulk of the cannabis that was grown for therapeutic purposes - - -?---Yeah.

- - - but he would or may give some away?---Yeah.

Did you explore with him the proportion of what he intended to use as opposed to what he intended to give away?---Only in terms of, if you like, the great preponderance or - you know, basically the greater part of it would have been for his own use.

Was there any analysis of what that actually meant - - -?---No."

93 Mr C was unable to recall the words used by the appellant to convey the meaning which he understood that the appellant may have supplied some cannabis to friends and it did not strike him that the "may" was speculative and did not necessarily represent an intention as such. He was taken to the transcript of the proceedings before the learned Magistrate (AB 46) at which counsel is quoted as saying to the court: "He says that the plants are all for his own use". The next sentence was: "Some may have been given away, but certainly none sold". He maintained however that despite the apparent inconsistency, it was not his recollection that the instructions given by the appellant to him were that all the plants were for the appellant's own use.

94 He also conceded that on those instructions the case had features similar to that of Collins (1993) 67 A Crim R 104, a decision of the Court of Criminal Appeal of this State.

95 It is useful to pause at this point and make some reference to the facts of that case. There, the applicant had been sentenced to 15 months imprisonment for possessing 1.2 kg of cannabis with intent to sell or supply. On the material tendered as part of the Crown brief, the sentencing Judge concluded the applicant's intention was to sell the cannabis. In the plea in mitigation his counsel submitted the guilty plea was intended to apply only in relation to some of the drug: it was submitted that most of it was intended for personal use and only a small portion was intended for supply to friends. The applicant sought leave to appeal principally on the ground that the sentencing Judge erred in sentencing him on the disputed facts without further evidence. The Court of Criminal Appeal (Malcolm CJ, Pidgeon and Nicholson JJ) refused leave to appeal. The explanation offered from the bar table was inconsistent with the plea of guilty and with the presumption arising from the quantity of drug in the applicant's possession. By his plea the applicant admitted he was in possession of the drug with intent to sell or supply it. As Malcolm CJ pointed out (ibid 106) the applicant had by his plea admitted that he was in possession of the 1.2 kg with intent to supply the whole of it to another. Both the admission by the plea and the presumption imported by s 11 of the Misuse of Drugs Act 1981 (WA) apply to the whole of the 1.2 kg. The Chief Justice pointed out that the explanation offered from the bar table was inconsistent with an admission of the elements of the offence as it was of a kind which tended to rebut the presumption. His Honour continued (ibid p 106):

"If, for example, an accused charged with possession of 1.2 kg of cannabis with intent to sell or supply it to another contends that 1 kg was for his own use, but the 200 g was intended for supply to another, the proper course to adopt is not to plead guilty to possession of the 1.2 kg with intent, but to offer a plea of guilty to possession of 200 g with intent. If the offer is not accepted, the only way the accused can rebut the presumption is by pleading not guilty and accepting the onus of proof to the contrary of the presumption. Having pleaded guilty to the offence of possession of the cannabis with intent to sell or supply it and the quantity having been shown to be 1.2 kg, it was not open to the applicant to attempt to rebut the presumption with respect to a part of the quantity by means of a plea in mitigation."

96 Mr C said he was familiar with Collins but when asked whether he turned his mind to what the Chief Justice had said was the appropriate course to take in cases such as this, his answer was: "Yes and no". In elaboration he explained that in summary courts often the sort of submission which he put forward here, although not complying completely with Collins, is accepted and the matter is dealt with accordingly. He said as a routine day to day matter in summary courts, the strict application of the procedure in Collins is not often done.

97 Mr Mazza then asked whether it followed that Mr C did not suggest to the appellant that he might offer a plea of guilty to cultivation with intent to sell or supply a proportion only of the plants, to which Mr C replied (t 47-48):

"I come back to the principle. I have not a shadow of doubt in my mind that had the plea not been entered on the day I entered it, the matter would have gone on indictment.

All right?---So there were some exigencies that if we wanted to act fast, we wanted to have the matter dealt with in a summary court where the penalties are less, this was the way to do it. Had the matter been put off, I feel sure that the other matter which subsequently came, what, about 2 or 3 weeks later, at a time when I probably envisaged this matter would have been disposed of, that had the matter been put off until that stage I think once that matter had come along, most certainly under section 9, both matters would have gone to the District Court.

But as at the date in which he entered the plea no-one knew about this other matter?---No, that's right, but I think we all knew - Mr Price and I knew that the investigations were continuing. It's just the reality. I certainly told him investigations would continue.

If I can just perhaps get an answer from you in relation to the proposition that I put; that is, it wasn't suggested to Mr Price that what he might do is offer a plea of guilty to a proportion of the plants?---No.

As to what he would do with the proportion of the plants that was going to be supplied, your clear recollection is that Mr Price said he may do that?---That's right.

It was no more precise than that?---Yes, and I suppose I then used my own, I suppose, experience as if we did take the matter further in that way, in explaining when we deal with the presumption, if the matter had gone on in that way I suppose in giving my own advice to Mr Price I would probably factor into it my own knowledge as to what might be the sort of things that may cause a problem to a defence on that basis in a case such as this.

But in fact in this case you didn't turn your mind to that. Would that be a fair thing to say?---Yes, that's true."

98 Finally, (at 249) Mr C agreed that on the basis of the appellant's instructions he had formed the view that he did not have a defence to the charge and he told the appellant that. He was then asked (t 49):

"And did you tell him as part of why you were giving that advice that the presumption caught him?---Well, I explained the presumption. I mean on the basis that most was for his own use but some was going to be - not sold but to be given away, I didn't believe, had he attempted to rebut the presumption - and I think I would have explained this to him - that he would succeed. And I think as the matter evolved and as I became aware of more information I probably became more convinced if there was ever a doubt, which there wasn't."

99 There are some broad observations which may be made about all of this evidence. The first is there is no dispute that the appellant has a serious back injury. Nor does it seem to be disputed that he took cannabis for the pain. His explanation that he built the bunker and grew the crop so he could have a supply of cannabis has been maintained from the beginning and was reflected in the submissions his counsel made to the Magistrate. There is confirmation that the newspaper article referred to 48 plants as being sufficient for a period of three months for the purposes envisaged by the appellant. The newspaper article was made available to his counsel on 26 May and was referred to in submissions to the learned Magistrate.

100 The appellant told Dr Warner in 1998 or 1999 that he was using cannabis for pain relief.

101 The appellant insisted that he never smoked cannabis, giving as his reason the fact that his parents had died from emphysema. His plea was ultimately put to the learned Magistrate on that basis. The point about this is that a much greater quantity of cannabis is required if it is used in the way the appellant said he was using it.

102 It is apparent that in his submissions to the learned Magistrate, Mr C's use of language was less than precise - in particular in one breath he was telling the Magistrate that all of the cannabis was for the appellant's own use; whereas in the next breath he was saying that he "may" have shared some of it with others. Indeed, on the first appearance on 19 May 2000 ie after the plea of guilty, counsel told the Magistrate that the appellant smoked the cannabis - although he corrected and properly explained that on 10 July 2000.

103 Even on Mr C's own account of his instructions, the marijuana was grown for the appellant's pain relief and was all for his own use; certainly none of it was to be sold.

104 Notwithstanding the importance of his instructions and advice in relation to the applicability of the presumption and the effect of it, Mr C made no notes of these matters. He maintained his insistence that his understanding of his instructions was that some of the cannabis would be shared, but in the court below and in cross-examination his evidence as to what the appellant actually said was equivocal and tended to be expressed in speculative terms.

105 His evidence in relation to his advice about the presumption tended to be expressed in terms of what he "would have" said or done and although he agreed the concept is a difficult one to explain to clients, he did not think he tested the appellant's understanding of it.

106 He repeatedly told the learned Magistrate that the "preponderance" or major proportion of the cannabis was for the appellant's own use, but conceded in evidence that even on the basis of those instructions did not turn his mind to explain to the appellant the implications of that as articulated in Collins.

107 Mr C was firmly of the view that the Magistrate would not for one moment accept that given what was involved in building the underground bunker, fitting it out and growing the quantity of marijuana involved, that the appellant had no intention of selling or supplying it to others. He had clearly reached the view before 19 May 2000 that there was not a Magistrate who would not convict the appellant. This belief seems to have been reinforced by an apprehension that the appellant might be drawn into charges involving close relatives, the police apparently being inclined to the implication that all were engaged in some common enterprise. That was never crystallised in the present case in any proper forensic way, but there is an impression from Mr C's evidence that it had a psychological effect on him in combination with the other factors I have mentioned. The consequence was that from the time he was given a broad description of the circumstances, Mr C believed there was no prospect the appellant could establish a defence and he focused entirely on trying to get the matter dealt with summarily at the earliest possible time. He considered that to be in the best interests of the appellant. Perhaps because of that preoccupation he failed to appreciate just what the appellant was telling him. It is even possible (if not likely) he asked the appellant whether, if a friend had asked him for some cannabis, he would have given it, to which the reply quite possibly was that he may have. Mr C certainly conceded that whatever was said by the appellant was no more precise that that, and given the way in which he expressed himself before the learned Magistrate, it seems likely that it evolved this way. But of course even had that occurred, a speculative or hypothetical answer of that vague nature, expressed in response to such a hypothetical question, would not be sufficient to constitute an actual intent to sell or supply - which is what the section requires (ignoring for the moment the effect of the presumption).

108 The appellant has no previous conviction. He maintained this was the first cannabis crop he had ever grown. There is no evidence to suggest otherwise. He had not been involved with courts or lawyers before. He accepted advice, but he undoubtedly was stressed and upset by what Mr C was telling him. His wife was extremely distressed and was reduced to tears in Mr C's office when they were advised he may go to gaol.

109 Mr C's evidence was that he was aware of the decision in Collins. His explanation of how that decision is applied by counsel in Courts of Petty Sessions may well reflect what often happens - but if that is what happens, it fundamentally does not accord with the procedure set out by the Chief Justice. And even on the basis upon which Mr C told the Magistrate his instructions were, namely that the crop was grown for the appellant's own use but some of it may have been shared, the outcome, which was that the Magistrate sentenced the appellant on the basis that it was a professional crop grown as a commercial proposition, although "a fair bit of it" was for the appellant's own use - was even less adverse to the appellant than what could have been expected in light of the law as articulated in Collins.

110 In conclusion I am satisfied that the suggestion that the crop was grown for the appellant's own personal use to overcome his serious back pain and that it was for his exclusive use, is not a subject of recent invention. Whether that account is true or not is something on which I express no view and certainly make no finding. I do not need to for present purposes.

111 It is apparent there was a breakdown in communication between the appellant and Mr C. I am satisfied on the balance of probabilities that Mr C was of the firm view from the outset that there was not the slightest prospect the appellant would be believed should he have given evidence that there was no intention on his part to sell or supply the cannabis to anyone else. That is not to the point. If those were his instructions (as I am satisfied on all the evidence they were) then he was entitled to mount that defence in law. That is not to say that in those circumstances a defendant should not be told of the risk (if not likelihood) that the Magistrate would not believe the explanation. But on neither account is that what happened here.

112 I am satisfied that it was the appellant's understanding (shared by his wife) that the advice he had been given was that where a person is growing more than 25 cannabis plants the law deems that person to have had the intent to sell or supply and it was no defence for a person to satisfy the court that he or she did not in fact have that intent.

113 I am further satisfied that it was only because of that genuine belief on his part that the appellant pleaded guilty.

114 These findings lead me in turn to the conclusion that there has been a miscarriage of justice. Although the appellant's plea of guilty was unequivocal, it was not a properly informed plea and indeed was founded on a mistaken view that the facts as he wished to put them before the court, would afford him no defence as a matter of law. That went to the root of his plea and as a result the appellant was denied (albeit not by any error on the part of the Magistrate) the right and opportunity to present his defence and have it considered by the court.

116 The conviction will be quashed and the complaint will be remitted to the Court of Petty Sessions for trial on the issue.