R v Francis-Wright [2005] VSCA 79

R v Francis-Wright [2005] VSCA 79 | Case summary | Zoe

[3]

1 I have had the advantage of reading, in draft, the reasons for judgment prepared by Williams, A.J.A. I agree in the orders that her Honour proposes for the following reasons.

2 The word "plants", as used in the definition of "commercial quantity" in s.70 of, and in Schedule 11 to, the Drugs, Poisons and Controlled Substances Act 1981, as in force between 1st October and 7th December 2000, is an ordinary English word. The expert botanical evidence led, both by the prosecution and the defence, was inadmissible. The jury should not have been left to decide the meaning of "plants" for themselves in the light of that evidence, but nor should they have been left at large to determine whether the cuttings were plants. It was for the judge to tell them the meaning of the word in its statutory context, to the extent that that meaning was relevant to the issues at the trial. They could not be told simply that "plants" was an ordinary English word, because it has a wide range of meanings and the fate of an accused person should not depend on whether a particular jury thinks that a pruning lying on the ground is a plant or that something more is required.[1]

3 In my opinion, a cutting[2] becomes a plant, for present purposes, when it develops a root. That is a meaning that fits the context and conduces to a practical system of criminal justice. It does not depend on the intention of the accused or anyone else. The root need not be a root system, nor need it be viable. Once a cutting becomes a plant, it continues to be a plant even if it dies. There is no reason to think that Parliament intended proof of the number of plants to depend on expert evidence, whether as to the viability of a root system, the viability of a substrate, the capacity of a putative plant to photosynthesize, whether fungi or algae are plants or other similar matters.

4 Applying the definition at the beginning of [3] above, on the evidence most favourable to the applicant, there were 102 plants. Dr Drinnan said that the cuttings which comprised item 2 included 84 cuttings with "well-developed" root systems and 13 which had "poorly developed" root systems. Five dead plants were the subject of item 4 on the certificate. The Crown did not have to prove that the applicant was in possession of at least 100 of those 102 plants in order to sell each of them as a whole, as distinct from a part such as its foliage. R. v. Coviello[3] was a case concerned with the weight of plant material. It is readily distinguishable. I agree with Williams, A.J.A. that there was evidence on which it was open to the jury to convict the applicant, even when the criminal standard of proof is taken into account.

5 If the matter rested there, it would follow that the applicant did not lose a chance of acquittal that was fairly open to him by reason of the erroneous approach adopted at the trial and, accordingly, subject to the adequacy of the judge's other directions, the proviso to s.568(1) of the Crimes Act 1958 would apply. The difficulty is that the jury may have applied her Honour's directions not to the 102 plants that I have identified, but, in reliance on Mr Azzopardi's evidence, to items of material that did not qualify as plants.[4] Accepting Dr Drinnan's evidence, it would have been necessary for them to be satisfied beyond reasonable doubt that the applicant had at least 100 of those 102 plants in his possession for sale.

[38]

11 The Act provided no definition of the word "plant".

The trial

12 The prosecution alleged that the applicant had trafficked in Cannabis L. by having in his possession, for sale, a number of plants and cuttings which, it was common ground, had been seized from premises occupied by him.

13 The applicant conceded that he was deemed to have been in possession of the cannabis under s.5 of the Act. He acknowledged that s.73(2) operated to establish a prima facie case of trafficking against him, provided that the requisite amount of cannabis had been in his possession. He contended, however, that he had not had the cannabis in his possession for sale and he contested the allegation that the number of cannabis plants in his possession was "not less than the commercial quantity" for the purposes of the Act.

14 The prosecution sought to establish the offence under s.71(1)(a) by reference to the number of plants in the applicant's possession, rather than on the basis of the weight of the material seized. Preliminary questions arose, both as to the meaning of the word "plant" in the Act and as to whether the determination of that meaning was one of fact to be made by the jury.

The ruling

15 It was in that context that the prosecutor sought a ruling as to whether a cutting would fall within the definition of a "plant" under the Act. The learned trial judge ruled that a cutting was not ipso facto a plant for the purposes of the Act and went on to say that the question as to "[w]hether the cuttings seized by police ... [were] plants for the purposes of the Act [was] a question of fact to be determined by the jury". In her reasons, her Honour referred to a ruling by Judge Duggan in R v Farmer[7] which was to the effect that a cutting needed roots or, at least, root cells, to be characterised as a plant for the purposes of an offence under s.72(1)(ab) of the Act.

16 The trial proceeded before the jury. The informant, Senior Detective Adrian Woodcock, gave evidence that police had attended premises occupied by the applicant on 7 December 2000, after having received a report of a fire. They had found what appeared to be cannabis in irrigated tubs, as well as equipment which included irrigation tubing, lights and heat trays. The material which appeared to be cannabis was seized and, on 12 December 2000, inspected by a botanist, Mr Scott Azzopardi, of the Victorian Institute of Forensic Science. It was kept in a shed at the Lilydale Police Station and made available for inspection on two occasions by Dr Andrew Drinnan, a botanist retained by the applicant.

Mr Azzopardi's evidence

17 Mr Azzopardi set out his findings in a certificate dated 14 December 2000, given under s.120 of the Act and tendered during the Crown case ("the certificate"). The certificate referred to five items of plant material examined and identified by Mr Azzopardi. Item No. 1 was described as one Cannabis L. plant, Item No. 2 as 202 Cannabis L. plants, Item No. 3 as five plants which could not be identified, Item No. 4 as five Cannabis L. plants and Item No. 5 as 77.1 grams of Cannabis L.. The Item No. 5 material has no relevance, having regard to the way the prosecution put its case, and it was common ground that the Item No. 1 plant could not be identified as having come from the applicant's premises.

18 Mr Azzopardi gave oral evidence:

[82]

34 Evidence as to any technical or trade meaning of the word would have been admissible before the judge, if the word had been used in such a sense. Otherwise, it should have been interpreted in accordance with its ordinary usage[10]. I agree with the respondent that the legislation was not directed to botanists. The Act generally regulated the production, possession and use of poisons and controlled substances including drugs of dependence. It provided for the authorisation and licensing of certain persons to engage in assorted activities, including research, in relation to the regulated substances. Part 5 created a number of offences relating to drugs of dependence. In my opinion, the botanical evidence as to the meaning of the word "plant" in relation to the subject offences would have been inadmissible, even before the trial judge. Nevertheless, the judge would have been able to seek assistance from dictionaries and standard reference works in interpreting the ordinary meaning of the word[11].

35 However, the Act did differentiate between "plants" and "parts of a plant", even in the definitions in s.70(1). I consider that it was unclear, in relation to offences under s.71 and s.72, whether a "plant" included a cutting without roots, a cutting with non-viable roots or only a cutting with a viable root-system. As the use of the word "plant" in respect of the charges brought against the applicant was not self explanatory, its meaning in the relevant sections required interpretation by the trial judge, with reference to the facts, and an appropriate direction to the jury.

36 In my view, her Honour erred in leaving it to the jury to interpret the word "plant" as a necessary step in its determination of the issue of fact as to the number of plants trafficked by the applicant.

The meaning of the word "plant" in the Act

37 The applicant also submits that, for the purposes of the offences charged, the trial judge should have construed "plant" as a cutting with a viable, rather than a "poor" or "poorly developed", root system, and that her Honour erred in failing to do so and in failing to direct the jury accordingly.

38 Senior counsel for the applicant notes the apparent inconsistency between the definitions of the word "plant" as including a "cutting" in The Shorter Oxford English Dictionary[12] and a "growing slip" in The Macquarie Dictionary[13], on the one hand, and, on the other, the description of "cuttings" as "pieces of plants which, when separated from the plants and maintained under good conditions, produce new roots and growth and become separate plants" in the Encyclopaedia of Australian Plants[14]. He submits that the standard work supports a distinction being drawn between a plant and its parts consistent with Dr Drinnan's opinion.

39 When interpreting legislation it is proper to avoid consequences which are apparently unjust or irrational[15]. The construction for which the applicant argues would seem likely to produce such results. The point is made by contrasting the position of a seedling with that of a cutting with roots. Applying Dr Drinnan's definition, it would appear that the seedling would always be properly regarded as a "plant", whereas the cutting would only fall within that category if it had a viable root system. Further, it would seem inevitable that relevant expert scientific evidence would be required in almost every case of a cutting which had apparently struck root, even if the cutting had died. In the case of any dead cutting with roots, the first question to arise would be as to whether death had occurred because of the non-viable state of the roots. If another cause, such as fire, had resulted in the cutting's demise, the potential viability of the roots at the time of death would need to be determined. In my view, the legislature should not be taken to have intended that the meaning of the word "plant" would turn upon such a technical distinction and the word should not be given the restricted interpretation for which the applicant contends.

40 The respondent, on the other hand, argues for a wide interpretation of the word. Senior counsel for the respondent submits that the classification of a cutting as a "plant" for the purposes of the Act could depend upon the surrounding circumstances. Citing the example of the characterisation of a knife as an offensive weapon on the basis of its intended use, he submits that, once a cutting was planted in a suitable growth medium, with the expectation that it would develop, it was relevantly a plant. He goes so far as to suggest that even a pruning which had not yet been trimmed and was lying on the ground might have fallen into that category, if it were intended that it be planted.

41 I am not persuaded by the respondent's submissions. It strikes me as both irrational and unjust to determine whether a cutting was a plant on the basis of any external factor, subject to variation, such as objectively ascertainable intent or the item's location.

42 In my opinion, the meaning of the word "plant" under the relevant provisions of the Act included a cutting which had struck or established roots. It could then be regarded as an entity separate from the plant from which it had been cut and differentiated from a "part" of that plant. The meaning also included a dead "plant". The judge erred in failing to so direct the jury, with reference to the facts.

Grounds 4 and 9

43 Grounds 4 and 9, however, challenge the adequacy of the directions relating to the need for proof that the applicant had each of the requisite number of plants in his possession for the purpose of sale. The applicant submits that the trial judge failed to draw the jury's attention to the evidence bearing on the issue and did not relevantly distinguish between a plant and the foliage which constituted only a part of a plant. The respondent, however, argues that the charge was adequate in this regard, in the context of the issues at trial and in the absence of any relevant exception.

44 In my view, there is no merit in the applicant's argument that the judge should have directed the jury that it should be satisfied, in relation to the offence of trafficking, that the applicant intended to sell a whole plant, as opposed to its foliage. Section 71(1) proscribes trafficking in a quantity of cannabis, characterised as "the commercial quantity" by reference either to the weight of the cannabis or to the number of plants by which it is constituted. When the quantity of the drug is determined by weight and the prosecution case is that the cannabis was possessed for sale, the relevant issue is as to the weight of the portion which was possessed for sale[16]. The usable and unusable parts of the cannabis plant are properly characterised as cannabis and no distinction between them is required, except in so far as it bears upon the question as to the purpose for which they are possessed[17]. When, as in this case, the prosecution seeks to establish the existence of the commercial quantity by reference to the number of plants, the issue is as to the number of plants which were possessed for the purpose of sale.

45 In the charge, the learned judge pointed out that there was an issue as to whether the applicant had trafficked in cannabis: the Crown contending that he had not less than 100 plants in his possession for sale and the defence case being that he had allowed a third party to use his premises to grow the cannabis and that there was no evidence that the applicant intended to sell or otherwise traffick in the drug. Her Honour also referred to the requirement that the prosecution should satisfy the jury beyond reasonable doubt, on the whole of the evidence, that the applicant had at least 100 plants in his possession for sale. She explained the evidentiary effect of s.73(2)[18]. She referred to Mr Azzopardi's evidence as to the condition of the five Item No. 4 plants.

46 During the charge, in the absence of the jury, counsel for the applicant referred her Honour to the decision of the Court in R v Coviello[19]. He called for a direction to the effect that the jury must be satisfied that the commercial quantity of plants was in the applicant's possession for sale, as opposed to being simply in his possession. By way of exception, counsel for the applicant also later expressed the concern that the jury might be confused as to the effect of the presumption resulting from the operation of s.73(2) of the Act and might conclude that it absolved the prosecution from the need to prove the element of trafficking. He invited the judge to refer not only to the evidence of trafficking resulting from possession, but also to the evidence as to the early stage of development of the plants and the absence of evidence of any admission of trafficking or of the presence of associated paraphernalia, such as scales.

47 Her Honour then relevantly redirected the jury:

[84]

(I note that ten plants is the "traffickable quantity" of cannabis specified in Schedule 11 and referred to in s.73(2) of the Act.)

48 However, the learned trial judge did not specifically relate the evidence as to the condition of any of the plants, including the five Item No. 4 plants, to the question, upon which it bore directly, as to the purpose for which they were possessed.

49 The evidence relating to the condition of the five Item No. 4 plants only assumes particular significance when my definition of the word "plant" for the purposes of the Act is taken into account. The jury was presented with two other conflicting interpretations of the word. If it had decided that a cutting with or without roots was a plant, then, even on Dr Drinnan's evidence, there would have been more than the requisite 100, without taking the five Item No. 4 plants into account. However, the jury might have preferred Dr Drinnan's definition. As Mr Azzopardi had expressed the view that it was impossible to differentiate cuttings on the basis of the viability of their roots, the only evidence as to the number of cuttings with viable roots which might have been possessed for sale came from Dr Drinnan, who counted 84. In those circumstances, the evidence as to the five Item No. 4 plants could not have provided the jury with a basis for concluding that the applicant possessed the commercial quantity, for sale, or at all. In that context, the failure to give a direction relating the evidence concerning the state of the five Item No. 4 plants to the issue as to whether the plants were possessed for sale is understandable. Nevertheless, because the evidence as to the condition of those plants raised that issue (at least in relation to them), it was necessary to give such a direction[20].

50 As a result, despite the absence of any request for a further redirection, I have concluded that grounds 4 and 9 are also made out.

Grounds 1 and 10

51 The verdict is challenged as unsafe and unsatisfactory, on the basis that it could not be supported having regard to the evidence[21]. The applicant argues it was not open to the jury on the evidence before it to conclude beyond reasonable doubt that he was in possession of 100 or more cannabis plants for the purposes of sale.

52 In my view, there was admissible evidence before the jury upon which it could have been satisfied beyond reasonable doubt, both that not less than the commercial quantity of plants (properly so characterised under the Act) was in the applicant's possession and that those plants were possessed for sale. Although the evidence of the scientists as to the meaning of the word "plant" was inadmissible before the jury, their evidence in relation to their observations as to the material seized by police was not. Mr Azzopardi counted 104 cuttings with vestigial roots as well as the five Item No. 4 plants. The defence witness, Dr Drinnan, stated that he examined 84 cuttings with viable roots, 13 with non-viable root-systems and the five Item No. 4 plants. The applicant also conceded that all the relevant material had previously been in his possession. Accordingly, as a result of the operation of s.73(2) of the Act, there was prima facie evidence before the jury of trafficking in not less than the commercial quantity of cannabis.

53 I am persuaded that, on the whole of the evidence, it was open to the jury to be persuaded beyond reasonable doubt that the applicant was guilty.[22] Grounds 1 and 10 should fail.

Section 568 of the Crimes Act 1958

54 The applicant submits that, if the appeal were successful, the Court should quash his conviction and direct a judgment and verdict of acquittal under s.568(2) of the Crimes Act 1958. I do not consider that an appropriate course.

55 In light of my conclusion as to the meaning of the word "plant", I consider that the admissible evidence given at the trial was "sufficiently cogent to justify a conviction"[23] under s.71(1)(a) of the Act in respect of not less than the commercial quantity of cannabis, even if only the evidence of Dr Drinnan were taken into account. A new trial is warranted, there being no argument or material before the Court suggesting that it would otherwise be unjust for the applicant to stand trial again.

56 However, I agree with the applicant that the proviso to s.568(1) should not be applied. If the learned trial judge had properly interpreted the word "plant" and directed the jury correctly, the applicant might have been acquitted. The jury might have preferred Dr Drinnan's evidence as to the number of plants in the applicant's possession and might have had a reasonable doubt as to the purpose for which he possessed the five Item No. 4 plants, or that number of them required to make up the commercial quantity. It cannot be concluded from the verdict that the jury must have been satisfied that the five Item No. 4 plants were possessed for the purpose of sale. Assuming that the jury had adopted Mr Azzopardi's interpretation of the meaning of the word "plant', it might have decided that the offence was made out in relation to all, or a lesser number, of the cuttings counted by him, or of those examined by Dr Drinnan, without being so satisfied in relation to any of the five Item No. 4 plants.

57 Accordingly, in my opinion, it cannot be said that no substantial miscarriage of justice has occurred in that the applicant has not been deprived by reason of the identified errors of a chance of acquittal fairly open to him.[24]

Orders

58 The application for leave to appeal should be granted and the appeal deemed to have been heard instanter. The appeal should be allowed, the conviction quashed and a retrial ordered.

At a glance

Court

Decision date

Before

Source

Judgment (85 paragraphs)

Parties

Cases Cited (1)