R v Callaghan [2007] VSCA 135

Drugs, Poisons and Controlled Substances Act 1981, s 72A.

**1 For the reasons stated by Nettle and Ashley JJA, I would grant the application for leave to appeal against conviction on count 1, allow the appeal and order a retrial on that count.

2 This was a very troubling appeal. I, like Nettle JA, entertained the prospect of reaching a position of accepting the trial judge's directions as being adequate, albeit barely so. However, when the cumulation of misdirections is analysed, as Ashley JA has done, error is clearly established. The applicant, notwithstanding the strong case against him, did not receive a fair trial given his evidence and his defence. This trial gave rise to a verdict on count 1 that led to a serious injustice in all the circumstances.

3 The particularly troubling aspect of the trial was that his Honour had available to him this Court's judgment in R v Nguyen[1] and R v Van Xuan Bui[2] as well as the Victorian Charge Book (specifically prepared to assist judges in the execution of their judicial functions). It is puzzling as to why the template (as Ashley JA has described it) was not followed.**

**4 I have had the advantage of reading in draft the reasons for judgment of Ashley JA.

5 I agree with his Honour that the trial judge's directions as to the element of intent to cultivate not less than a commercial quantity of cannabis were erroneous.

6 I was for some time attracted to the view that, despite the error, the jury were however made to understand that they could not convict unless satisfied beyond reasonable doubt that the applicant knew or believed that there was a significant or real chance that the crop of cannabis under cultivation was not less than a commercial quantity. It also seemed to me that, if the jury were so satisfied, the inference that the applicant intended to cultivate not less than a commercial quantity must have been irresistible. As Ashley JA rightly says, the Crown case on count 1 was a strong case.

7 But upon reflection, and with the benefit of Ashley JA's analysis, it appears to me to be inevitable that the judge so misdescribed the elements of the offence, and so compounded the error, by adding that "the only issue" was "whether [the applicant] was cultivating a commercial crop", as to deprive the applicant of a chance of acquittal to which he was fairly entitled. The trial thus miscarried.

8 I wish to add two things. The first is that, contrary to what the judge told the jury, the concept of cultivating not less than a commercial quantity of a narcotic plant is not complex; and juries should not be told that it is. The three elements of the offence - intentional cultivation of a plant; the fact that the plant is a narcotic plant; and the accused's intention to cultivate not less than a commercial quantity of the plant - are basic conceptions which juries are readily capable of comprehending. The means of ensuring that they do so are set out clearly in the model charge in the Victorian Charge Book and in most cases it should prove readily adaptable to the facts in view.

9 The second thing is that there are likely to be a number of cases in which, if the jury are satisfied beyond reasonable doubt that an accused knew or believed that there was a serious or real chance that the quantity under cultivation was not less than a commercial quantity, the jury could not but infer that the accused intended to cultivate not less than a commercial quantity. Other things being equal, this case may have been one of them. But, as has now been made plain more than once in the past two years, the question of whether such an inference is to be drawn is in the end a matter for the jury. If trial judges fail to make that clear, there will be a risk of mistrials.**

10 Like Ashley JA I consider that it is not open in this case to apply the proviso and accordingly that a new trial should be had. But I also share with his Honour the view that, if the applicant's co-accused's appeal against conviction had proceeded, the considerations which would have borne on the application of the proviso in the co-accused's case may not have been the same.

**11 The applicant, Darryl Callaghan, pleaded not guilty to a count that he cultivated a narcotic plant, cannabis L, in a quantity not less than a commercial quantity applicable to that narcotic plant, contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981 ("the Act"). He pleaded guilty to the theft of electricity. In December 2006 a jury convicted him on the cultivation count. Thereafter, he was sentenced for that offence to two years' imprisonment, and to six months' imprisonment on the count to which he had pleaded guilty. The total effective sentence was two years' imprisonment, and the judge set a non-parole period of 18 months.

12 There was a co-accused, Michael Barbaro. He was charged with the identical offences as was the applicant. The trials were held together. Barbaro pleaded not guilty to both offences. He was convicted on each count. He brought an appeal against conviction, but abandoned it.

13 The counts against both men arose out of the hydroponic cultivation of cannabis L at premises at 23 Anketell Street, Coburg. Following a police investigation that had gone on for some months, the premises were searched on 23 October 2003. The applicant was at the premises, and was then arrested.

14 According to the prosecution evidence, in four rooms of the premises there was a sophisticated set-up for the hydroponic cultivation of cannabis. Also at the premises, according to the prosecution evidence, 72 cannabis plants were found, ranging from slightly wilted seedlings to plants almost ready for harvesting.

15 The applicant admitted cultivating cannabis plants at the premises. He claimed to know about the mature plants and the seedlings, but not about 30 immature plants that the police located there.

16 An expert witness gave evidence at trial that the weight of 30 mature plants, excluding their roots, was 47.1 kilograms. The weight of 32 immature plants, excluding their roots, was 940.1 grams. The weight of the seedlings was 9.4 grams.

17 Section 70 of the Act defines the commercial quantity of drugs by reference to Schedule 11. Part 2 of Schedule 11 defines a commercial quantity of cannabis L as 25 kilograms or 100 plants.

18 Weight, for the purposes of the Schedule, is wet weight - that is, by contrast with the weight of dried material. Subject only to an inconsequential argument - mainly pursued by the applicant's co-accused - that the plants which were weighed were not the plants which had been seized at the premises, there was thus no room for argument that the quantity of cannabis found at the premises was, by weight, a commercial quantity. Since the applicant admitted cultivating the plants, the substantial question at trial was whether he possessed the relevant mens rea (which hereafter I will simply call "intent" or "intention"). There being no direct evidence upon that question, the Crown relied upon inference. The directions which the learned trial judge gave in that connection are central to this appeal, which addresses only the applicant's conviction on the count of cultivation.**

Ground 1: "The learned trial judge erred in his directions to the jury concerning the mens rea required to be established in respect of the element of commercial quantity"

**19 Although set in the context of ss.71 and 71AA of the Act, the observations of this Court in DPP Reference No.1 of 2004; R v Nguyen [3] are no less in point with respect to proof of relevant intent under s.72A. So much is made clear by R v Van Xuan Bui [4] and R v Garlick.[5]

"In other words, the jury should be directed that in deciding whether the intention to traffick in a prohibited drug in not less than a large commercial quantity has been proved to their satisfaction they should have regard to any direct evidence as to that intention, but might also draw the inference that the accused had such an intention from the circumstances of the case. One such circumstance which would be capable, in itself, of proving the relevant intention would arise if they were satisfied that the accused knew there was a significant or real chance that the trafficking of the prohibited drug in which it has been proved he engaged would involve quantities of the drug not less than a large commercial quantity. Such a conclusion would enable them to draw the inference that the accused had the relevant intention to traffick in a large commercial quantity of the drug. The jury, however, would have to be told that whether they make those findings or draw that inference is a matter for them, and even if the inference is open to be drawn that the accused intended to traffick in a large commercial quantity of the drug, they could not so conclude beyond reasonable doubt if any other inference is reasonably open to be drawn." [6]

"As the Court held in Nguyen, there will be many cases where proof that the accused knew or was aware that there was a significant or real chance that the quantity of drugs involved was not less than a commercial quantity would be sufficient to support an inference of the requisite intention to traffic in a commercial quantity, but that does not necessarily follow, and nor should the jury be instructed, that they would be entitled to convict of trafficking in a commercial quantity simply because the Crown established knowledge of a significant or real chance that a commercial quantity would be trafficked. The correct approach for the jury was stated in the following passage from the judgment in Nguyen:

'It follows in our opinion that while the trial judge should direct the jury as to any evidence capable of sustaining an inference of intention for the purposes of section 71 and 71AA and, depending on the facts of the case, that the judge might also direct the jury that proof that the accused believed or was aware that there was a significant or real chance that his conduct involved trafficking in a prohibited drug in a specified quantity would be something which is capable of sustaining an inference of intention, the judge should at the same time make plain to the jury that it is a matter for them as to whether the evidence leads them to draw that inference and that they should not draw the inference unless satisfied that it is the only inference reasonably open.' "[7]

"Consequently, just as in a prosecution for trafficking in a commercial quantity of a drug of dependence it is necessary for the Crown to prove beyond reasonable doubt that the accused knew or believed that it was likely that the subject of the act of trafficking was prohibited drugs and that the amount in question was not less than a commercial quantity, so too in a prosecution for cultivating a commercial quantity of cannabis the Crown must prove beyond reasonable doubt that the accused knew or believed that the plants the subject of cultivation were cannabis and that the number of plants was not less than 100.

I also agree with Eames, J.A. that the intent to cultivate cannabis plants in not less than a commercial quantity may be proved as a matter of inference from proof that the accused did the physical act or acts alleged, and the circumstances in which it or they were done, recognising, however, that it remains in each case a question for the jury whether the circumstances are sufficient to establish the requisite knowledge or belief. Just as in a case of trafficking in a commercial quantity of a prohibited substance, so too in a case of cultivating a commercial quantity of cannabis, it may not always be enough to prove intent that an accused believed or was aware that there was a significant or real chance that his conduct involved a commercial quantity; although it usually will be.

Consequently, in a prosecution for cultivating a commercial quantity of cannabis, the judge should identify for the jury any evidence of facts and circumstances capable of sustaining the inference and, subject to the particular facts of the case, the judge may direct them that proof beyond reasonable doubt that the accused believed that there was a significant or real chance that the subject was cannabis and that the number of plants in question was not less than 100, would be capable of sustaining the inference. But, as Eames, J.A. says, the judge should further direct the jury that it is in the end a matter for them whether the inference of intention is properly to be drawn and that they should not draw an inference of intention unless satisfied that it is the only inference reasonably open." (footnotes omitted).

23 In the present case, when directing the jury, the judge first said this:

"The test as to whether or not the accused or either of them were aware requires you to be satisfied beyond reasonable doubt that the accused were aware or at least believed that there was a reasonable chance that the crop would weigh in excess of 25 kilograms but unless you are so satisfied beyond reasonable doubt you would have to find the accused not guilty of that offence...

So I repeat that, that whilst the accused need not have actual knowledge of the quantity or weight of the cannabis that was being cultivated you would have to be satisfied beyond reasonable doubt that the accused was aware of the likelihood of that fact in the sense of being aware that there was a significant, all [sic] real chance that his conduct involved the cultivation of a quantity of cannabis in excess of 25 kilograms, measured by the wet weight of the plant excluding the root system.

The inference of intention is a question of fact which you, the jury, must decide as a matter of inference on the basis of the facts and circumstances as you find them. As I have already told you, you cannot draw an inference against an accused unless you are satisfied beyond reasonable doubt of any facts necessary to the process of reasoning involved and the inference is the only reasonable inference to be drawn from those facts."

**24 Counsel for the applicant took exception to that direction. He submitted that a jury's conclusion that an accused believed there was a real or significant chance that the quantity of the narcotic plant being cultivated was not less than a commercial quantity was only a precursor to its consideration whether it could safely infer an intention to cultivate the plant in not less than that quantity.

25 Counsel for the Crown agreed that the submission was "technically correct". But he submitted that the same body of evidence stood in proof both that the applicant believed there was a significant or real chance that the plant was being cultivated in not less than a commercial quantity and that the applicant had the necessary intent. His point was, I think, that if the jury reached a conclusion adverse to the applicant on the first issue, the adverse inference irresistibly followed.

26 Against that background, all counsel agreed to formulate an appropriate re-direction. Apparently, a document was prepared and provided to his Honour. The document has not been located. But it seems likely that it was used by the judge when he re-directed, for his re-direction drew no criticism. What his Honour told the jury was this:**

"The concept of the element of cultivating cannabis in a commercial quantity is (sic) fair to say is a less than simple one but the onus on the Crown is to prove beyond reasonable doubt that an accused - in this case we have got two accused - as I have already said believed or was aware that there was a significant or real chance that his conduct in cultivating a quantity was not less than a commercial quantity.

Secondly it may be open to infer - you do not have to have proof of direct knowledge and indeed there is no proof of direct knowledge in this trial - but it may be open to prove an intention to cultivate in that quantity and I have already told you what a commercial quantity is. I have told you also what is required to draw an inference of intention and of course, as I have already said, you cannot draw an inference of a particular intention or of a fact unless it is the only reasonable inference open on those facts. If there are other competing inferences open, then you cannot draw it.

So belief falling short of actual knowledge of the facts may be capable of sustaining an inference of intention but it will not do so unless it is the only reasonable inference open on those facts."

"The only issue in respect to cultivating - and when I say the only issue, it is an important one - is whether you are satisfied beyond reasonable doubt that he was cultivating a commercial crop. Whereas in this case he has given evidence about that and about his intention; and it simply becomes a matter for you to look at that evidence and determine and find facts beyond reasonable doubt. If you cannot find the facts beyond reasonable doubt to support that inference, of course, that he intended to cultivate a commercial crop, you must find him not guilty on that count."

**27 The judge, when he gave those two sets of directions, did not at the same time identify the evidence which pertained to them. Indeed, at no point in his charge did he collect and identify the evidence which could bear upon intent. His failure, as it was claimed, to relate the evidence to the relevant principles is the subject-matter, discretely, of ground 2. But counsel also called it in aid of his submission concerning ground 1.

28 I should identify other references which his Honour made to the subject of intention.

29 The botanist called by the Crown to establish the weight of the plants was cross-examined to show - taking as a starting point evidence later to be given by the applicant that he believed a "best case scenario" was that he would get 9 lbs of dried cannabis from the crop - that such a quantity of dried material would equate to only 23.7 kgs of the plant in wet form. So, counsel sought to argue in his final address, the applicant's actual belief was that he was not cultivating not less than a commercial quantity of cannabis.

30 In his charge, the judge, perhaps assisted by counsel's interjections, gave some account of this cross-examination. He then said: "This evidence is relevant, of course, to the question of intention, which I have already dealt with".

31 Later in his charge, the judge referred to evidence given by the applicant:**

"He said it all had a 12 hour time system on it and it also had circuit breakers and 18 1000 watt globes. He said he worked on a - there was some confusion there but I think it came down to saying he worked on a pound plant weight a light. He said when he said to the police it was a kilo - and you will recall that in the record of interview - he was confused and he was working on the rule of a pound per thousand watt light, should have given him nine pounds and if he had half that he would be happy. That goes directly, if you accept that evidence, to his state of mind."

32 Still later, the judge referred to submissions made by counsel in their final addresses. Concerning the prosecutor's submissions, his Honour said this:

"He says well Mr Callaghan talks about 36 plants, he says a kilo from each plant in a record in interview and if you accept that as a dry weight that is over 25 kilos and the fresh weight is the charge not the dry weight.

But he concedes and it is a fact that the Crown must prove beyond reasonable doubt that he has either a knowledge or a belief that the weight is above 25 kilos, or that there is a significant or real chance that the weight is above 25 kilos and he points to Mr Azzopardi's finding that there was 48 kilos after having removed the roots of the

plants. He says well the set up was there to grow as much as they could.

As for the submissions that perhaps there had been plants gathered from another location he says, 'Well, that was never put to me, at least that any of the parts were gathered from another place.' He says well the accused, Callaghan, never denied the numbers that the police claimed they found. He says the reason why Mr Callaghan was giving this evidence was because he wanted to try and get the total weight of the plants seized under 25 kilograms."

33 Then his Honour turned to the submissions made by the applicant's counsel, which had placed particular reliance upon the applicant's evidence that there were 36 mature plants plus seedlings in the house, that he expected to get 9 lbs of dried cannabis from the crop, and that this translated into only 23.7 kgs of the plant in its wet state:

"[Counsel submitted that] you should accept his [client's] evidence or at least his evidence should create a reasonable doubt when he said there were 36 mature plants, 18 plants a room.

He says that correlates with the lights and he says you should accept that evidence and then he deals with some of the statistics which he claims exist, three kilos wet one kilo dry being an approximate ratio. Well, that is what has been put to you. It has been put that there is a lot less cannabis there than the police evidence and so he submits that his client intended to grow less than a commercial quantity and that the Crown evidence presented in this case, which is in some areas significantly based on inference, does not exclude other inferences and you should be satisfied that the quantity of cannabis was very substantially less, and he refers to best case of 23.7 pounds. He says on the evidence the Crown cannot get there, that is on the more serious count of commercial quantity and he says, 'Well, you can drive a truck through the Crown case'."

34 Finally, for sake of completeness, and although it did not specifically address the issue of intent, I should refer to the very last direction which the judge gave before the jury retired :

"One matter that I am reminded of is that if I gave you the impression that - I think I actually said very clearly that it was not the case - but if I gave you the impression that an accused person by giving evidence accepts any onus of proving anything, then that is incorrect.

The onus remains on the Crown from beginning to end. The Crown has got to prove the case beyond reasonable doubt. The defence do not have to prove anything, however, if evidence given by an accused person raises a reasonable doubt, they are entitled to the benefit of a reasonable doubt. But they do not accept any burden by giving evidence. So I will now ask my associate to administer the oath."

That was a reiteration of a direction which he had given early in his charge.

**35 Applicant's counsel submitted, before this Court, that the judge never in terms instructed the jury that intention to cultivate not less than a commercial quantity of cannabis was an element of count 1. Further, in his various directions which in fact bore upon intent, his Honour did not give a direction in the form mandated by Nguyen and Bui. Counsel submitted - counsel for the Crown argued to the contrary - that in this case it was critical that such a direction should have been given. Still further, counsel contended, his Honour's erroneous directions were accentuated because he had interjected - and wrongly at that - in the course of the final addresses of counsel for the accused men when those addresses had touched upon the issue of intention; and because he had not related the evidence to his directions in point of law.

36 In a passage in his charge which preceded the passage which I cited at [23], the judge described the elements of count 1 this way:**

"The elements of that offence are as follows: Firstly, that the plant was a narcotic plant, and that is not in contest, and you have got the botanist evidence, Mr Azzopardi's evidence about that; (2) that it was cultivated by the accused and that matter is in issue so far as Mr Barbaro is concerned; and finally, that the quantity that was cultivated was not less than a commercial quantity."

That direction was evidently wrong. It leads on to the question whether the direction was corrected, and the further question whether any correction was sufficient.

**37 The next pertinent direction was that which I cited at [23]. It was not expressed in the language of intention, although the judge made a belated and essentially unexplained reference to "the inference of intention". The direction, evidently, did not follow the Nguyen template.

38 To that point in the charge, I think it is clear that his Honour's directions were considerably defective; at the very least because his Honour had not made it clear that proof of relevant intent was an element of the count 1 offence.

39 That takes me to the re-direction which I cited at [26]. It is striking that although his Honour there referred to intention from time to time, he nowhere explicitly instructed the jury that (proof of ) intention was an element of the offence.

40 That said, in the first part of the passages cited the judge did refer to proof beyond reasonable doubt that the applicant believed or was aware that there was a significant or real chance that he was cultivating not less than a commercial quantity of the plant; and referred to the drawing of an inference, in permissible circumstances, of intention to cultivate in that quantity. Regrettably, however, the judge gave no assistance to the jury how the two aspects of the direction married up. Against the background of the previously erroneous direction, I could not accept that the direction was itself adequate, or in any event sufficiently remedial.

41 That takes me to the second part of the passages cited at [26]. It had its own problems. In the first place, the judge identified the "only issue" as whether the jury was satisfied beyond reasonable doubt that the applicant was cultivating a commercial crop. With respect, that did not accurately identify the true issue, which was one of intention, not fact. In the second place, although the judge referred to the inference of intention "to cultivate a commercial crop", his Honour said nothing about significant or real chance, which had hitherto been at the forefront of his directions, and which likely provided the gateway to proof of intention. Again, I cannot accept that the direction was itself adequate, or was adequate to remedy past error.

42 I need say little about the judge's other references to intention. Cryptic mention of particular evidence being relevant to "the question of intention" or to the applicant's "state of mind" were not apt to advance the jury's understanding of the real issue, and the possible means of its resolution. Further, in my opinion, his Honour's summation of the final submissions of counsel had no remedial characteristic.

43 I next agree with the submission of applicant's counsel that his Honour's failure to relate such directions as he gave concerning intention to the evidence only added to the inadequacy of those directions. The situation was the worse because, as it appears, his Honour's summation of the evidence was in some respects at least imprecise.

44 Concerning the applicant's complaint that the judge erroneously interrupted the addresses of counsel, I need say little. It was at least undesirable, in the presence of the jury, that the judge said that a test of intention described by counsel was "not the test". Nonetheless, as his Honour said when charging the jury, and as counsel had acknowledged was the case, it was for his Honour to give binding directions of law. In the event, I consider that the interjections were of little moment in the overall scheme of things.

45 In all, I consider that the charge concerning intention was seriously deficient. Intention was never explicitly identified as an element of the cultivation offence. A direction conforming with the Nguyen template was not given. Further, more than once his Honour identified significant or real chance as the matter to be proved. But on another occasion he referred both to that concept and to proof of intent by inferential reasoning without connecting the two; whilst on a further occasion still he referred to proof of intent by inferential reasoning but made no mention of significant or real chance. Again, such directions as his Honour gave were not tied to the relevant evidence.

46 It is unnecessary in the circumstances to decide whether, as counsel for the applicant submitted, this was a case where it was critical that a Nguyen direction be given. It is enough to conclude that the whole issue was left in a confusing and unsatisfactory state. It is the more unfortunate because the criminal charge book contained, at the time, a direction which - although it has since been improved upon - was apposite.**

Ground 2: "Further to Ground 1, the learned trial judge erred by failing to relate, adequately or at all, the directions on the element of mens rea for commercial quantity to the evidence in the trial"

47 I have already referred to the points at which the judge related evidence to such directions as he had given about proof of intention. The references were scattered and incomplete, and built upon misdirection. It is implicit in what I have already said, and it is my opinion, that the applicant has made out this ground.

Ground 3: "The learned trial judge erred by directing the jury in respect of the trafficable (sic) quantity of cannabis when that was not in issue at trial and had the potential to prejudice the applicant's defence"

48 More than once in his charge, when describing the lesser offence of cultivation under s.72B of the Act to which the applicant had pleaded guilty, the judge described that offence as being constituted by cultivation of 10 plants or 250 grams. Those figures in fact related to a trafficable quantity of cannabis, as prescribed by column 3 of Part 2 of Schedule 11 of the Act. The error was drawn to the judge's attention, and he frankly acknowledged it. Nonetheless, he repeated it. His attempt thereafter to clarify the position was itself not a model of clarity:

"Counsel said that I, by mistake, referred to one of the counts on the presentment during the course of this morning as concerned with a trafficable quantity. That is totally erroneous, and was a mistake on my part. The two counts, one count is not less than a commercial quantity applicable to that narcotic plant; and the alternative is simply cultivation of a narcotic plant. So there is no question or issue involved in anything other than cultivation."

**49 Counsel for the applicant submitted, although his client had pleaded guilty to the s.72B offence, that the misdescription of the content of the offence was likely to have prejudiced his client because it would have seemed to the jury that the applicant was a man who had grown a great deal of cannabis, but was only pleading guilty to an offence constituted by cultivation of a very small quantity of the plant.

50 Standing alone, I consider that the ground should not have resulted in the success of the appeal. I think that the alleged prejudice was more apparent than real. But the repeated error, not clearly identified and corrected, does fortify the impression that the charge went off the rails, denying the applicant the fair trial to which he was entitled.**

**51 In my opinion, the case against the applicant on count 1 was in reality simple and strong. There was a great deal of evidence to suggest that this was a sophisticated, extensive, and continuing enterprise, so understood by the applicant who was the man on the ground. On one view, the applicant made significant admissions as to his understanding of the likely weight of the crop which was under cultivation; and attempts which he made in evidence to suggest the contrary might well have been regarded very unfavourably by the jury- always bearing in mind, of course, that by giving evidence he undertook no onus of proof.

52 For all that, my analysis of the charge shows that the jury was never properly directed about the principal issue in the case. It may be, aided to some extent by his Honour's directions, and aided also by counsel's addresses and commonsense, that the jury apprehended the vital importance of the Crown proving the necessary intent, and the means whereby it sought to make out that proof. It may also be the case that the jury's verdict represented the end point of a proper analysis of the evidence. But I could not agree that such directions as were given were sufficient in the circumstances of the case - by contrast with the conclusion reached by this Court in Nguyen. As I see it, at no point did the charge rise to the point of what was held to be adequate in Nguyen. Further, and by contrast with Bui, the case is not one in which the proviso to s. 568(1) of the Crimes Act 1958 could be applied. Counsel for the Crown conceded so much. The applicant gave evidence which, at least by intent, was exculpatory. The assessment of the reliability of that evidence, as well as of the other evidence adduced at the trial, was a matter for the jury. It is not a matter apt for determination by a reading of the transcript.[8]

53 Counsel for the applicant submitted that, rather than remit count 1 for retrial, this Court should, if it allowed the appeal, exercise a discretion to convict and sentence his client in respect of the s.72B offence. He relied particularly upon delay, his client's long preparedness to plead guilty to such offence, and the contention that any commerciality of cultivation was at the lower end. He accepted that the applicant would have to be sentenced on the basis of the applicability of s 72B(b). Counsel for the Crown submitted, to the contrary, that the applicant should be remitted for retrial on count 1, the case against him being a strong one. He did not contend that this Court did not have the power to take the course which applicant's counsel submitted was appropriate.

54 In my opinion, the proper course is to remit the matter for retrial on count 1. The decisive consideration, in my opinion, is that the Crown case on count 1 appears to have been a strong one.

55 I should only add this: It does not follow from the disposition of this application which I propose that the co-accused, were he to re-launch an application for leave to appeal against conviction, would also succeed. Whilst the misdirection would be the same, it is to be remembered that the co-accused stood mute. The proviso to s.568(1) might come into play.**

56 I would grant the application for leave to appeal against the applicant's conviction on count 1, allow the appeal, and order that there be a new trial on that count.

[1] [2005] VSCA 172; (2005) 12 VR 299.

[2] [2005] VSCA 300.

[3] [2005] VSCA 172; (2005) 12 VR 299.

[4] [2005] VSCA 300.

[5] [2006] VSCA 127

[8] Or even by viewing a videorecording of the evidence, if such a record was available.