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: