Mr C. Hyland, Solicitor for the Office of Public Prosecutions

1 On 5 December 2008, after a trial lasting some five days, the applicant was convicted, in the County Court at Melbourne, on one count of cultivation of a narcotic plant, Cannabis L, in a quantity not less than a commercial quantity, being 25 kgs (count 1). He also pleaded guilty to one count of theft of electricity (count 2), and one count of possession of an unregistered firearm (count 3). On 13 February 2009, he was sentenced to a total effective term of 18 months' imprisonment, eight months of which was suspended for a period of 12 months. He now seeks leave to appeal against his conviction, but only in relation to the count of cultivation.

2 On 26 August 2005, police conducted a search of the applicant's premises at Keilor Downs. Within the garage they located a crop of cannabis plants that was being hydroponically grown. There were nine such plants in all, growing in plastic tubs. The plants were about three months old. Water was being pumped through those tubs by electronic pumps. Timers controlled both the lights and the pumps. Electricity was provided through a by-pass system. There were carbon filters in the ceiling to minimise the smell.

3 The nine plants, excluding their roots, weighed a total of 42.61 kgs. They ranged from about 80 cm to 130 cm in height. Each was described as a 'bushy female', close to maturity. A botanist estimated a total air dried weight of leaves and flowering heads in excess of 7.5 kgs.

4 In a record of interview conducted on the day of his arrest, the applicant admitted having cultivated cannabis. He told the police that he had been advised by a man whose name he did not know, and whom he had met at a pub, as to how to go about growing cannabis. He said that he had paid someone to install equipment that would allow the electricity to be by-passed. He claimed that he was growing the cannabis solely for his own use because he suffered from multiple sclerosis, and needed it for pain relief.

5 The applicant was originally charged with a number of drug related offences, including trafficking. At his committal, he pleaded guilty, after some negotiation, to cultivating a commercial quantity of cannabis. In return, the remaining drug charges were withdrawn.

6 By the time the applicant came to be arraigned, he had determined, as he was entitled to do, to resile from his plea of guilty.

7 The first issue to be resolved was whether the prosecution should be permitted to lead evidence in the trial, of his plea at committal.

8 In addition, the prosecution sought to lead evidence that the applicant had, in 2004, pleaded guilty and been convicted at the Sunshine Magistrates' Court of having cultivated cannabis. The circumstances surrounding that offence were remarkably similar to those that had led to his having been charged in 2005 with the offence presently under consideration.

9 After hearing the applicant give evidence on a voir dire, and having heard lengthy submissions, the trial judge ruled that the prosecution could lead evidence of both the applicant's plea of guilty, and of his prior conviction. His Honour found that the plea of guilty had been made voluntarily, and that no basis had been shown for its exclusion. As regards the prior conviction, he concluded that evidence that the applicant had grown a crop of 24.4 kgs, some two years or so prior to the current offending, was relevant to the question whether he had the requisite intent to cultivate a commercial quantity at the time the second crop was planted.

10 The applicant now challenges both findings. In addition, he complains of the trial judge's directions to the jury regarding lies and consciousness of guilt.

11 A plea of guilty represents an acknowledgement on the part of the accused that each and every element of the offence charged is made out.[1]

12 The circumstances under which evidence of a plea of guilty entered at committal may be led by the prosecution have been the subject of recent consideration by this Court.

13 In R v D'Orta-Ekenaike,[2] Winneke P, with whom Brooking JA and Vincent AJA agreed, reviewed the relevant principles. In that case the applicant was charged with rape. He entered a plea of guilty at committal. By the time of trial, he had received certain legal advice, and indicated a desire to change his plea to one of not guilty. As was his right, he entered that plea when arraigned. The prosecution proposed to lead evidence of the earlier guilty plea. Counsel for the applicant sought to have that evidence excluded on the basis that its prejudicial effect would outweigh its probative value. In support of that application, counsel informed the trial judge that the plea below had been entered under pressure from the applicant's legal advisors, he having been told that he had no defence to the charge brought against him.

14 Ultimately, the trial judge refused to exclude evidence of the earlier plea. He did so without having investigated the circumstances under which the plea was made and, in particular, without having conducted a voir dire on the matter. The applicant was duly convicted of rape.

15 On appeal, it was submitted on his behalf that, as a matter of general principle, the occasions on which a plea of guilty entered in a lower court are admitted against an accused at his trial must be rare. The approach to that subject taken in England was said to support that contention. [3]

16 Winneke P accepted that the English courts viewed such evidence with caution, and great circumspection. They approached the matter from the point of view of what we would call the 'Christie discretion'.[4]

17 However, as Winneke P noted, the position in England differed significantly from that in this State. In England, before a plea of guilty entered at committal could be withdrawn, an application had to be made to the committing justices for leave to change the plea. It was readily understandable, in those circumstances that, only rarely would evidence of such a plea be given at trial.[5]

18 The position in Victoria was different. In this State, a plea of guilty entered at committal could always be changed on arraignment. However, the accused was aware from the moment that he entered that plea that it was likely to have evidential consequences at trial. Such was the consequence of the caution administered to the accused at the time he entered the plea.

19 In R v Broadbent,[6] the Full Court said as follows:

It does happen quite frequently that a prisoner, in the lower court, pleads guilty but when he comes up for trial and is arraigned alters his plea to not guilty. This he undoubtedly may do without the consent of anyone. His trial then proceeds and his plea of guilty in the court below may be used as evidence against him.

20 Winneke P cited that passage from Broadbent with approval, and then added:

It is true that it is still a matter for the trial judge to determine, in the exercise of his discretion, whether evidence of the plea should be admitted on the trial. There is nothing, however, in the circumstances of this case which suggests that the trial judge was in error in exercising his discretion to allow evidence of the lower court plea to be admitted in evidence at the trial. It is true that the evidence was potent, but prejudice is not to be equated with probative value.

21 His Honour went on to say that even strong advice by counsel that the accused has no defence, and should therefore plead guilty at committal, cannot be a warrant for further investigating the matter. Such advice does not render the plea involuntary, or otherwise liable to exclusion.

22 What emerges from D'Orta-Ekenaike is that, although evidence of a plea of guilty at committal, entered voluntarily, is admissible, there is a residual discretion on the part of a trial judge to exclude that evidence. The only such discretion specifically addressed by Winneke P was the 'Christie discretion', that having been the basis upon which the argument on appeal proceeded. It might be thought that the general unfairness discretion, spoken of in Lee v The Queen,[7] may also have warranted some consideration.

23 More recently still, this Court considered the same question in R v Rustum.[8] Nettle JA, with whom Vincent JA and Osborn AJA agreed, noted in that case that the application to exclude evidence of the earlier plea of guilty was based upon a contention that the applicant had acted on the advice of counsel, and not because he considered himself to be guilty.

24 In Rustum, unlike D'Orta-Ekenaike, a voir dire was held in the course of which the applicant gave evidence. In essence, it was submitted on his behalf that evidence of his plea of guilty should be excluded because there was a real possibility that there had been a misunderstanding between the applicant and counsel who had represented him at committal. The burden of the argument was that the applicant had misunderstood precisely what it was that he was acknowledging when he pleaded guilty, and that he may not have intended to admit each and every element of each count to which he so pleaded.

25 Ultimately the trial judge permitted the prosecution to lead evidence of the earlier plea of guilty. In relation to that decision, Nettle JA said:

Evidence of an earlier plea of guilty is potent evidence of guilt and, as has been said, its potency is not to be equated with prejudice. Consequently, evidence of an earlier plea of guilty is not normally to be excluded unless it is shown that the plea was involuntary or unintentional or otherwise so affected as not to be reliable. Here, the evidence established no more than that the plea was the result of strong advice of counsel. Strong advice from counsel does not render a plea involuntary or unintentional.[9]

26 In the present case, the applicant, not surprisingly, sought to have his plea of guilty withheld from the jury. Both D'Orta-Ekenaike and Rustum were cited to the trial judge. It was submitted on the applicant's behalf that there was a real chance that he had pleaded guilty without any understanding of the fact that, in so doing, he was admitting that he had intended all along to grow not less than 25 kgs of cannabis.

27 In evidence in-chief on the voir dire, the applicant claimed that he never, at any stage, had any idea as to how much cannabis would be produced by the nine plants that he had cultivated. He was extensively challenged in that regard in cross-examination.

28 The trial judge concluded that the applicant should not be accepted as truthful. His Honour was influenced in arriving at that conclusion by the evidence concerning the applicant's previous cultivation, in 2003, of some 12 immature plants which had produced 24.4 kgs of cannabis. As his Honour noted, those 12 plants were grown in exactly the same location, and using the same sophisticated technique, as the 2005 crop. The earlier cultivation meant that the applicant would have known that nine fully mature plants would be likely to exceed 25 kgs. Once that knowledge was established, it would be but a short step to infer intent.[10]

29 We have read the transcript of the voir dire which extended over several days. In our opinion, it was open to his Honour to find, as he did, that the applicant had not shown that he was unaware, at the time he pleaded guilty, that he was thereby acknowledging that he knew full well the implications of his plea. It was further open to his Honour to find that the applicant had not shown that he was unaware that he was admitting, by that plea, that he had intended to grow not less than 25 kgs of cannabis.

30 Some extracts from the transcript of the voir dire will be sufficient to illustrate the point. The applicant said that he could recall having pleaded guilty at his committal for this offence, but claimed that he had no understanding at all of what that plea meant. When asked why he had entered the plea in those circumstances, he replied that he had been told to do so. He claimed to have no recollection of having been advised, by his solicitor, as to the elements of the offence to which he was pleading guilty.

31 Later in his evidence in-chief, the applicant said that he could recall having been at the Melbourne Magistrates' Court for a committal mention. He remembered having been represented by a solicitor on that day, and could recall having had discussions with her. His wife was present at those discussions. He remembered, vaguely, having discussed the charges with her. He recalled a discussion about his having been charged with 'trafficking cannabis', and having said something about admitting to 'growing marijuana'. He said that he had no idea that, as a consequence of what he had done, he might lose his home.

32 The applicant recalled having discussed with a barrister, who was not the barrister who had represented him at committal, the possibility that he might resile from his earlier plea. He was asked on the voir dire why he had decided to withdraw that plea. His answer was illuminating. He said:

Because I wasn't guilty of that and when I heard that my wife explain that they could take our house and this and that, I changed my plea.

33 Under cross-examination, the applicant agreed that the solicitor who had acted for him prior to his committal had been careful to explain each of the charges brought against him. He acknowledged that he was told that the charges were serious. He recalled a discussion with her about the amount of cannabis that had been seized from his premises. He recalled her having said that the amount seized was 'very large'. He agreed that at the end of their discussion, he had told her that he wished to plead guilty. However, he maintained, under cross-examination, that he had only ever wished to plead guilty to growing cannabis in some undetermined amount. He insisted that he had never, at any time, formed the intent to grow not less than 25 kgs.

34 The applicant had at least one further meeting with his solicitor. Thereafter, he was represented at the Melbourne Magistrates' Court by a barrister on at least two occasions. Before the second such occasion they had a conference which lasted about half an hour. His barrister discussed with him the charges that he faced. The subject of the weight of the cannabis was raised. The applicant recalled having been told that this amounted to 42 kgs. He acknowledged that his barrister had told him that this meant that his offending fell into a more serious category than if the weight of the cannabis had been much less.

35 According to the applicant, his barrister again gave him legal advice shortly before his plea was entered. He acknowledged that, once again, the figure of 42 kgs was mentioned and he was told that this meant that his offending fell into a 'serious category'. Despite that intimation, he told his barrister that he wished to plead guilty.

36 What emerges from the applicant's evidence on the voir dire was that he had been told repeatedly, and was well aware, when he entered his plead of guilty, that included in the charges against him was an allegation that he had grown some 42 kgs of cannabis. He understood that this was a large amount, and that this meant that he fell within a more serious class of offending. He knew that other, more serious, charges, including trafficking, would be withdrawn in return for his plea to the cultivation offence. He remembered the caution given by the Magistrate before he pleaded guilty, including the warning that whatever he said would be recorded and might be given in evidence at a later stage.

37 The applicant conceded that prior to having decided to resile from his plea, he had been told that the prosecution had obtained a restraining order in relation to his home. It was put to him that that was the only reason he had changed his plea. A reading of the transcript reveals that he gave equivocal, and somewhat evasive, answers to that suggestion. Ultimately, he acknowledged that this had been a factor in his decision.

38 The applicant's position, in summary, was that he had pleaded guilty just 'to get it over and done with'. He claimed that he had not understood the ramifications of his plea. He insisted that he had only ever intended to grow cannabis for his own use. He maintained that he had no real idea of how much he was producing.

39 The applicant was then cross-examined about the first occasion on which he had hydroponically grown cannabis, in October 2003. He agreed that his first crop had involved 12 plants, and that they had been grown in the same purpose built room in his garage. He agreed that he had pleaded guilty in 2004 to having cultivated cannabis, and that he had been dealt with summarily for that offence.

40 There was then an objection taken to that line of cross-examination. It was submitted on the applicant's behalf that these questions lacked probative value, and were highly prejudicial. The discussion then moved to a more general argument about the basis upon which evidence as to the prior cultivation might be excluded. The trial judge ruled that the cross-examination was permissible, and the voir dire continued.

41 The applicant conceded that he was aware, at the time he pleaded guilty to having cultivated the first crop, that the 12 plants then grown amounted to about 24 kgs of cannabis. He agreed that he had been told on that occasion that that amount was just short of a commercial quantity, and also told that if it had exceeded a commercial quantity, the offence would have been regarded as more serious.

42 The applicant's wife also gave evidence on the voir dire. She described the effects of the applicant's multiple sclerosis upon him generally, and in particular the extent to which that disease impaired his memory. She said that his eyesight was so badly affected that he was incapable of reading an official document. She supported his account of the various meetings that he had had with his lawyers before he decided to enter a plea of guilty at his committal hearing.

43 The voir dire was eventually adjourned for a period of some months. When it resumed, the wife continued to give evidence. She acknowledged that the applicant had been told, by his lawyers, that some of the charges against him were very serious, and that one of those charges involved an allegation that the weight of the cannabis grown exceeded 42 kgs.

44 She was asked the following question, and gave the following answer:

All right. Now, at that second interview, the lawyer went through the charges; that particular allegation in greater detail. Did she? --- She told us that a commercial quantity was over a certain amount.

Was there a discussion about what evidence the police had against your husband? What statements they were relying on for example? --- She mentioned the evidence, yes. Yes, that they had found a commercial quantity.

She mentioned the fact that the commercial quantity, or the quantity involved in your husband's case was 42 kilograms. She mentioned that? --- Yes.

46 A little later, the applicant's wife gave evidence as to her husband's discussions with the barrister who ultimately represented him at committal. She agreed that he had gone through the various charges with her husband in some detail, and that he had explained their nature. He had told the applicant that two of the charges were very serious, in particular that of cultivating a commercial quantity. He had also told the applicant that he was at risk of being imprisoned in relation to that charge.

47 The overall effect of the wife's evidence was that her husband had been fully aware, when he pleaded guilty, that it was alleged that he had cultivated more than 25 kgs of cannabis. He had been aware of the 25 kgs threshold from his earlier court appearance, and the matter had been emphasised during his discussions with his barrister immediately before he decided to plead guilty.

48 After hearing lengthy submissions as to whether evidence of the plea of guilty at committal should be received, the trial judge indicated that he would allow that evidence to be led. He foreshowed delivering reasons on the following day. Eventually, several days later, his Honour's ruling was published.

49 In explaining why evidence of the plea was to be admitted, his Honour referred to the applicant's answers to various questions in his record of interview. He noted that the applicant had asserted, in answer to question 158, that this was 'the first hydroponic crop of cannabis he had grown'. The truth was, as has been indicated, that the applicant had, in October 2003, hydroponically grown 12 plants containing 24.4 kgs of cannabis, using essentially the same sophisticated technique as he had later used in 2005.

50 After referring to the evidence given by the applicant, and that given by his wife, his Honour said as follows:

Consideration: The first issue is whether the plea of guilty was a voluntary act. I have not had the benefit of hearing from the legal practitioners who were advising the accused prior to his entry of a plea of guilty. I find that the entry of the plea of guilty was voluntary. The accused gave no evidence that he was coerced or pressured into entering the plea.

He was facing a strong case based on his own admissions in the record of interview, the size of the cultivation, his lies in the record of interview, and the similarities with the earlier crop and his admission that he had been told that the weight of the earlier cultivation was 24.4 kilograms.

In those circumstances where the offences had been discussed with him by the legal practitioners, I find that he voluntarily decided to plead guilty as part of a negotiated plea that involved the withdrawal of the trafficking of a commercial quantity charge.

I am not prepared, after having heard the evidence of the accused and his spouse, to accept his evidence that the elements of the offence were not explained to him. He had a variable memory of the events, possibly due to his condition.

I accept that he was not told that the effect of a plea to the offence of cultivating a commercial quantity was automatic forfeiture of any tainted property.

I accept that it was only after he was so advised that the accused sought to change his plea. He admitted as much when he said, "I've got multiple sclerosis, I have to do what I have to do to survive and save my house."

I am satisfied that the accused has reconstructed his state of mind after his discussion with Mr Ginsberg, when he stated that after the barrister explained to him what the commercial quantity actually meant, he said, "Hang on a second, I didn't mean for that amount to grow, it just grew."

Legal submissions: Counsel for the accused relied on the principles set out in R v D'Orta-Echaniki [1998] 2 VR 140 to submit that the plea ought be excluded. He submitted that the plea is a form of admission and that the first principle of admissibility was whether the admission was reliable.

He submitted that the plea could not be seen as reliable unless the court could be satisfied that all the elements of the offence had been explained to the accused. In this respect, he submitted that a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference could be drawn against the Crown for its failure to call the legal practitioners on the voir dire, and he relied on Dyers v The Queen (2002) 210 CLR 285, at paragraph 12.

Reasoning: First, I do not accept that any such inference can be drawn. The accused carried the persuasive burden on the voir dire. I find that I cannot be affirmatively satisfied that he was not told the elements of the offence. I do not accept the submission that because the issue of the elements of the offence of cultivating a commercial quantity had been the subject of a number of appellate decisions during 2005 and 2006, it was unlikely that the legal practitioners involved had been in a position to properly advise the accused as to his position, and an equally available inference is that the practitioners may have been cautious and only given the accused advice that encouraged him to contest the counts.

The fulcrum of counsel's argument was that unless an accused is aware of the elements of an offence that any plea entered is unreliable and subject to discretionary exclusion. On this basis he submitted that in all the cases of D'Orta, R v D [1999] VSCA 148 and R v Rustum [2005] VSCA 142, the accused who sought to have the plea excluded was aware of the elements of the offence to which he was pleading, yet for reasons such as pressure, wrong legal advice, or a reduced sentence, went ahead anyway.

Counsel submitted that because neither the caution administered, nor the charge as worded before the Magistrate or indeed on the presentment, made any reference to the intent required, and then unless an accused was fully appraised of the intent element of the offence, the plea was vitiated and ought be excluded as unreliable. He submitted that the plea became unreliable and that rather than this being a factual issue for the jury, it was to be determined as an issue of admissibility.

The Crown prosecutor relied on a passage in R v Rustum at paragraph 8, where Justice Nettle said:

Consequently evidence of an earlier plea of guilty is not normally to be excluded unless it is shown that the plea was involuntary or unintentional or otherwise so affected as not to be reliable.

He submitted that the issue is whether a plea was voluntary and that reliability was ultimately a matter for the jury. I accept the Crown's submission.

...

There is no evidence here on which the court could find that the plea was involuntary, even accepting, which I do not, that the accused was not expressly told the elements of the offence at the time he pleaded guilty. I do not accept that this would render the plea involuntary, nor on the reasoning in D'Orta, R v D and R v Rustum, would the formal plea be rendered inadmissible.

The reasoning in those cases is that the plea is potentially to be excluded when it is involuntary, as distinct from where it is made under a misapprehension. This is reflected in the directions to which a jury are to be given as discussed in D'Orta and R v Rustum.

In R v Rustum at paragraph 14 Justice Nettle refers as follows:

The direction suggested in R v D'Orta was tailored to the facts of that case and is not necessarily suitable for use in other cases without appropriate adaptation. For example if, in a case, an accused gives evidence that he pleaded guilty when he was innocent because of threats made against him, the direction should refer to the possibility that the accused pleaded guilty because of fear of threats as opposed to belief in his own guilt. Similarly, if an accused gives evidence that he pleaded guilty when he was innocent, because of the promise of financial reward, the direction should refer to that possibility as opposed to a belief in his own guilt. After all, as Winneke P said in R v D'Orta, the direction is in substance the same as that which must be given in connection with any other confession and before a jury can use the confession as conclusive evidence of guilt, the jury must be satisfied beyond reasonable doubt that it was made and it was true.

This is consistent with my conclusion that the mere fact that a plea was entered under a misapprehension as to the elements of the offence, while it might go to its reliability, does not make it inadmissible in circumstances where it was voluntary.

For these reasons I did not exclude the evidence of the plea before the Magistrate.

51 The reasoning set out above is by no means free from difficulty. His Honour appears to have approached the question whether to permit evidence of the plea to be given on too narrow a basis. His focus upon whether the plea was 'voluntary' does not take into account the possibility, to which Nettle JA referred in Rustum, that a plea that was 'unintended', or otherwise so 'affected' as not to be 'reliable' might, as a result, be excluded.

52 However, the 'unreliability' of which Nettle JA spoke was plainly the limited kind that can, in an extreme case, render a confession inadmissible at common law.[11] It is the type of 'unreliability' that bears upon voluntariness, and not the more usual form which normally is, as the trial judge correctly noted, a matter for the jury.

53 What must be fatal to the applicant's argument, in relation to this ground of appeal, is the trial judge's finding that, before the applicant pleaded guilty, each of the elements of the offence of cultivating a commercial quantity were explained to him by his legal representatives. That finding was based upon the evidence led on the voir dire.[12] The applicant gave evidence to the contrary, but in the end he was not believed. Indeed, his Honour specifically rejected his evidence on this point.

54 The trial judge had the considerable advantage, not enjoyed by this Court, of having seen and heard the applicant give his account of how he came to plead guilty. His Honour's finding, that the applicant was not to be believed, was plainly open. Given that there was no suggestion that the plea was other than wholly voluntary, the finding that he had been told by his lawyers exactly what that plea entailed meant that there was no basis upon which the evidence sought to be impugned should have been excluded.

55 It should also be noted that the trial judge gave careful directions to the jury as to the use they could make of this evidence. He warned them that the prosecution had to satisfy them beyond reasonable doubt that the applicant was aware, at the time he pleaded guilty, of each of the elements of the count of cultivating a commercial quantity. He told them that if they considered it possible that the applicant entered his plea, not because he had any belief in his guilt, but because he

had not been told the elements of the offence, and had no idea what he was pleading to, they should put the plea entirely out of their minds.

56 No exception was taken to that direction. No complaint is now made about it to this Court. Ground 1 must therefore fail.

Ground 2 - Evidence of the applicant's previous cultivation of cannabis and his plea of guilty thereto

57 It was rightly conceded, on behalf of the applicant, that evidence of his previous involvement in a cultivation of cannabis at his home, and his plea of guilty thereto, was both relevant and admissible. That evidence bore directly upon an element of the offence with which he was charged, namely his intent to cultivate not less than 25 kgs of cannabis. It was highly probative in that regard.

58 It was on that basis that ground 2 was expressly abandoned.

Ground 3 - Evidence relating to the applicant's previous record of interview

59 Ground 3 contends that the trial judge ought not to have permitted evidence to be led of the entire contents of the applicant's record of interview made in 2003 in response to his earlier cultivation. It was submitted that the critical matter, so far as the prosecution was concerned, was to ensure that the jury knew that the applicant had previously cultivated 12 plants containing just over 24 kgs of cannabis, thereby enabling them to assess whether he intended to cultivate a commercial quantity in 2005.

60 This ground rests upon a misconception. The prosecution's purpose in leading evidence of the earlier record of interview was twofold. First, to establish the applicant's awareness of what amount of cannabis a significant number of hydroponically grown plants would contain. Second, to put before the jury what that earlier record of interview contained by way of explanation as to how the cannabis had come to be grown.

61 In his 2003 record of interview, the applicant gave a detailed account of having permitted an unnamed man to use his garage to cultivate marijuana for that other man's own purposes. In his 2005 record of interview, the same unnamed man emerged again, against the background of what the prosecution maintained were a series of lies. Two of those lies were said to evince a consciousness of guilt.

62 Viewed in that way, the answers given in the earlier record of interview were both relevant and admissible. Plainly, the prosecutor was entitled to cross-examine the applicant, when he gave evidence before the jury, about the remarkable similarity between the role played by the unnamed man (later given the name 'Dave' by the applicant in his evidence at the trial) in each of the two cultivations, and to invite them to conclude that the entire 'Dave' story was a fabrication.

Grounds 4 and 5 - Directions given to the jury regarding the previous cultivation, and the earlier record of interview

64 In his charge to the jury, the trial judge explained that ordinarily they would not have been told anything about the applicant's involvement in the earlier cultivation. However, that evidence had been placed before them because of the remarkable similarities between the two cultivations. These similarities were then identified. The jury were told that they could use the evidence of the applicant's involvement in the earlier crop to infer that he intended to cultivate a commercial quantity when he eventually grew the second crop. They were told that they could do so only by way of inference, and only if satisfied that the applicant had become familiar with the growing of cannabis, and its development under hydroponic conditions, during the course of the first cultivation. They would then have to find that his awareness continued through to the second crop.

65 The trial judge warned the jury that they were not to use the evidence of the applicant's earlier involvement in growing cannabis as propensity evidence. They were not to reason that merely because he had grown a substantial amount of cannabis once, he was therefore likely to have done it again, albeit on the second occasion with the intention of cultivating a commercial quantity. The jury were told that that type of reasoning was prohibited.

66 No exception was taken to any of his Honour's directions in this regard. We are not persuaded that what his Honour told the jury was, in any way, deficient. Grounds 4 and 5 must fail.

67 The trial judge gave the jury a lengthy direction as to the lies said to have been told by the applicant in his record of interview regarding this offence. That direction ran for a total of some ten pages or so of transcript. It is necessary to consider it in some detail.

68 His Honour identified the lies upon which the prosecution relied in the following terms:

The questions that Mr Hardjadibrata was relying on were - you will recall them from this morning - essentially the distancing by the accused man of himself from the first crop. He is asked, "Obviously it comes from those plants in your garage. What do you do with it though, how do you get it off the plant; what do you do with it before you roll it into cigarettes?" "Well, I don't know, I haven't grown it for myself. First time, I don't know. I was gunna hopefully see him again and find out." That is the unnamed man who became "David" in this trial. That is one question that he relies on.

"If we hadn't have come in today what would have happened to those plants we found?" "Well, I would have cut them and dried them, bagged them, put them in the fridge. I was going to disconnect everything. This was gunna be the one and only." Then, "Is it fair to say that there were quite a large amount?" "Yes, there were, like I said_, I had no idea they were going to grow like that_. I don't know if you want to call me naïve, I just didn't know they were going to grow like that." "When you are naïve, I had no idea. I'm not lying. I had no idea that they grow like that." Then he says, "I grew an outdoor one years ago for myself and I was lucky to get a handful off it."[13]

69 Following that part of his charge, the trial judge reiterated that the lies of which he had just spoken were those upon which the prosecution relied. He added that the applicant had 'admitted they were lies', a matter that gave rise to ground 8 to which we shall shortly turn.

70 His Honour then told the jury that there were two ways in which 'this evidence' could be used. The first, was as bearing upon the applicant's credibility.[14] Plainly, his Honour had in mind, in that regard, to go on and direct the jury next as to the second possible use of the lies told, namely as to consciousness of guilt.

71 However, before doing so, he proceeded immediately to deliver the following 'warning':

Mr Hardjadibrata attributed a lot of lies to the accused. You will make up your own mind about whether he was telling lies and whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues. I will give you this warning. Do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt. He said he did not know the name of the person in the record of interview, but he has admitted in the trial that his name was David. Just because he has told that lie do not reason from that that it is evidence of his guilt. Lies can be relevant to credibility but don't follow that process of reasoning I have just mentioned.

The Crown relies on the specific lies: the lies which distance him from the earlier crop. The Crown says to you that they rely on those lies that I have just mentioned that Mr Hardjadibrata took you to in his address - that Mr Constantinou was making statements seeking to distance himself from the earlier cultivation - but note he gave an explanation as to why he told the lies relating to his actions in cultivating the crop and the role of the person who set up the system. He said he was scared of David. He said he was confused and he said he was scared. He was hesitant and he was scared for his wife and children. So he has given an explanation of why he told the lies.

The Crown ask you to reject that explanation and ask you to infer the guilt of Mr Constantinou from those lies in the record of interview. As to each of those answers in the record of interview that I have mentioned, that Mr Hardjadibrata mentions, the Crown says that the accused told lies to the police and that his reason for lying was his knowledge, his consciousness of guilt of the crime of which he is charged, namely, cultivating a commercial quantity.[15]

72 It is apparent from this passage that his Honour had moved directly from the use of lies as going to credibility to their use as consciousness of guilt. Unfortunately, he did not explain the difference between these two usages.

73 To compound the difficulty, it was a fact that the prosecutor had indicated, in the clearest of terms, that he relied upon two lies only, among the many that were told, as going to consciousness of guilt. These were specifically flagged as the answers given to questions 158 and 182 of the applicant's record of interview in 2005.

74 In answer to question 158, the applicant had said that this was the first time he had ever grown cannabis for himself, and stated that he had no idea how to get it off the plant. In answer to question 182, he claimed that his only previous contact with cannabis related to an 'outdoor one' which he had planted some years earlier for himself, and which had produced only a 'handful' of marijuana.

75 Of course this 2005 record of interview contained many other statements which the prosecutor alleged were lies. These included, in particular, the applicant's various references to 'Dave', and the role he was said to have played in growing this second crop.[16]

76 By increasing the number, and broadening the scope, of the lies upon which the jury could find consciousness of guilt, the trial judge put the prosecution case on a wider and different footing than the prosecutor himself had done.

77 It is true that his Honour then gave a standard and perfectly orthodox direction regarding lies as consciousness of guilt, entirely in accordance with the requirements laid down by the High Court in Edwards v The Queen.[17] By that stage, however, the jury had been invited to consider, as evidence of the applicant's guilt, a series of lies that the prosecution itself placed no reliance upon for that purpose. A number of those lies were blatant, and likely to have been regarded as particularly significant, in the minds of the jury. It was highly likely that they would have accepted the prosecutor's submission that the entire story regarding 'Dave' was a fabrication.

78 The prosecutor having eschewed reliance upon any lie, other than the two specifically identified, as going directly to guilt, the trial judge ought not to have permitted the jury to treat those other lies as such. For one thing, counsel for the applicant had no opportunity, in his closing address, to put submissions to the jury as to why they should not regard those other lies in that way.

79 The difficulties associated with directing a jury as to lies and consciousness of guilt have been recognised, and commented upon, on many occasions. One thing is clear. It is essential that those lies that are relied upon as evidence of guilt, and not merely as going to credit, must be identified with precision.[18]

80 Here the prosecutor discharged his function by making it entirely clear which lies he claimed could be used as consciousness of guilt. Unfortunately, the trial judge undid the prosecutor's good work by introducing a degree of vagueness and uncertainty into the matter in his charge to the jury.

81 In the end we cannot be satisfied that the jury understood the limited basis upon which they were to consider lies as consciousness of guilt. As was made perfectly clear during the course of argument, these lies, and a consequential finding that they demonstrated a consciousness of guilt formed an important part of the Crown case. There is no question of invoking the proviso.

Ground 8 - Suggested misstatement as to the evidence concerning lies

83 It was submitted that the trial judge had erred in directing the jury that the applicant had admitted that the lies upon which the prosecution relied were, indeed, lies.

84 This ground was based upon the fact that there was nothing in the transcript of the applicant's cross-examination, whether on the voir dire, or before the jury, to indicate that he had ever conceded that the alleged lies were, in fact, lies. Indeed, the prosecutor had not even suggested to him that that was so.

85 One difficulty with this contention is that it does not sit well with a concession by the applicant's counsel, during the course of his closing address, that the two 'lies' upon which the prosecution relied as consciousness of guilt were, indeed, lies. The point made by counsel was that although the applicant had plainly lied about this having been the 'first time' he had grown cannabis, that lie should not be viewed as any sort of admission, on his part, that he had intended to cultivate a commercial quantity.

86 The passage in counsel's closing address in which that concession was made reads as follows:

Ladies and gentlemen, the next category of evidence relied upon by the prosecution, the third category of evidence, is what was referred to as the lies in the second interview, the interview about the cannabis crop that you are considering in 2005. Although there were a number of passages in that interview that you were taken to, in effect it is the one lie that is being relied upon, the suggestion by Mr Constantinou that this is the first time that cannabis had ever been grown at his place. It is quite clear from what you know that it was a lie, because you have heard about the cannabis crop that was there in 2003. So there is no doubt when he is giving those answers in the 2005 interview and saying, "First time", it is a lie.[19]

87 Counsel's address went on to posit various explanations for what, in his submission, had clearly been a lie told by the applicant. He invited the jury to reject the prosecutor's contention that this particular lie could be used as consciousness of guilt.

88 Regrettably, his Honour did not confine his direction that the 'accused man admitted they were lies' to the two lies that had been identified by the prosecutor as going to guilt. Instead he spoke globally of 'the lies that Mr Hardjadibrata says that the accused man stated in his record of interview'. That reference included a number of lies that were not the subject of any concession.

89 This exacerbates the problem identified in grounds 6 and 7, and brought about by his Honour's error in including within his charge as to consciousness of guilt lies that were not relied upon for that purpose. It points to another reason why this appeal must be allowed.

91 The parties agreed that if any one of the grounds in support of this application for leave to appeal were made out, a new trial should not be ordered. The applicant acknowledged, as he had always done, that he had no defence to a charge of cultivating cannabis, as distinct from the aggravated form of that offence of which he had been convicted. The Crown accepted that, because the applicant had, by this stage, served almost the whole of the ten months of actual imprisonment fixed by the trial judge, a new trial would not be warranted.

92 Grounds 6, 7 and 8, having been made good, the application for leave to appeal should be granted. The appeal should be treated as instituted and heard instanter and allowed. The conviction on the count of cultivating a commercial quantity of cannabis, contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981 should be quashed, and the sentence passed thereon set aside. In lieu thereof, there should be substituted a conviction on one count of cultivating cannabis contrary to s 72B of the Drugs, Poisons and Controlled Substances Act 1981.

93 It is apparent from the evidence that the applicant gave at trial, and it is accepted, that the applicant is unable to satisfy the court that he did not commit the offence for a purpose related to trafficking in the cannabis. He gave evidence of which the effect was that he was to be given a small quantity of the crop for personal consumption in return for growing the remainder of the crop for his accomplice. Consequently, the applicant falls to be sentenced for an offence under s 72B(b) of the Drugs, Poisons and Controlled Substances Act 1981, for which the maximum penalty is 15 years' imprisonment.

94 Other things being equal, the nature and gravity of the applicant's offending would warrant a substantial immediate term of imprisonment. The quantity of cannabis involved places his offending at the higher end of the range for the offence of cultivating a narcotic plant simpliciter, and therefore calls for a penalty more or less comparable to sentences imposed at the lower end of the range for the offence of cultivating a narcotic plant in not less than a commercial quantity.

95 We were told by counsel for the Crown that the statistical average of sentences for the offence of cultivating a narcotic plant simpliciter is between one year and two months', and two years and two months' imprisonment, and that the statistical average of sentences for the offence of cultivating a narcotic plant in not less than a commercial quantity is two years and eleven months' imprisonment. That implies that the sentence of 18 months' imprisonment which the judge imposed for the offence of trafficking in not less than a commercial quantity was a merciful disposition. Such a merciful disposition was, however, warranted by the applicant's difficult personal circumstances and, for the same reason, we are disposed to show a similar degree of mercy. We intend to sentence the applicant on the count of cultivating a narcotic plant to a term of 18 months' imprisonment.

96 The concurrent sentences of three months' imprisonment which the judge imposed on count 2, and 14 days' imprisonment which the judge imposed on count 3, remain the same. The total effective sentence will, therefore, remain as 18 months' imprisonment.

97 As was earlier noted, the judge suspended eight months of the total effective sentence of 18 months' imprisonment for a period of 12 months. That was also a merciful disposition appropriate to the applicant's difficult personal circumstances. It now appears, however, that the applicant's condition has worsened since his incarceration. He is wheel-chair bound, increasingly incontinent, and he suffers from chronic pain as a result of advancing multiple sclerosis and worsening clinical depression. Despite the submission of counsel for the Crown to the contrary, we think that the applicant's present condition is bound to make the burden of imprisonment much worse for him than for a prisoner of ordinary health.

98 In the particular and unusual circumstances of this case, therefore, we are disposed to increase by two months the portion of the sentence which is to be suspended, and thus to order that ten months of the total effective sentence of 18 months' imprisonment be suspended for a period of 12 months.

[1] R v Broadbent [1964] VicRp 94; [1964] VR 733, 735.

[2] [1998] 2 VR 140.

[3] The applicant relied upon R v Rimmer [1972] 1 All ER 604, a decision of the English Court of Criminal Appeal.

[4] R v Christie [1914] AC 545.

[5] The position in England applied, with some modification, in several Australian States as well.

[6] [1964] VicRp 94; [1964] VR 733.

[7] [1950] HCA 25; (1950) 82 CLR 133.

[8] [2005] VSCA 142.

[9] R v Rustum [2005] VSCA 142, [9]. Footnote omitted and emphasis added.

[10] In Director of Public Prosecutions Reference No. 1 of 2004; R v Nguyen [2005] VSCA 172; (2005) 12 VR 299, [10] and [37], it was held that offences of the kind created under the Drugs, Poisons and Controlled Substances Act 1981 implicitly required proof that the accused had both the intent to traffick in a prohibited substance, and to do so in a particular quantity. See also R v Bui [2005] VSCA 300 where the reasoning in Nguyen was applied to the mental element for the offence of cultivating not less than a commercial quantity of Cannabis L.

[11] See Cornelius v The King [1936] HCA 25; (1936) 55 CLR 235; 246; Sinclair v The King [1946] HCA 55; (1946) 73 CLR 316; McDermott v The King (1948) 76 CLR 501; Collins v R [1980] FCA 72; (1980) 31 ALR 257, 307; Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1; R v Parker (1990) 19 NSWLR 177; R v Azar (1991) 56 A Crim R 414; and R v Swaffield; Pavic v R [1998] HCA 1; (1998) 192 CLR 159.

[12] In Bone v R [1968] Tas SR 194, the Tasmanian Court of Criminal Appeal noted that where an accused is represented by counsel, a trial judge is ordinarily entitled to assume that all matters relevant to the decision to plead guilty were explained to him or her.

[14] Zoneff v R (2000) 200 CLR 234.

[16] To say nothing of the applicant's account in his first record of interview of 'Dave's' virtually identical role in having grown the first crop in 2003. The references to 'Dave' are qualitatively different from the applicant's claims, in answer to questions 158 and 182, that this was his first involvement with a significant cultivation.

[17] [1993] HCA 63; (1993) 178 CLR 193.

[18] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, 210 per Deane, Dawson and Gaudron JJ.