R v Garlick [2006] VSCA 127

1 On 13 June the Court refused to answer any of the seven questions reserved for its determination by a document described as a case stated. These reasons explain that refusal.

2 On 7 October 2005 the applicant for the case stated, Darryn Garlick, was arraigned in the County Court, relevantly, on a count that

"at Altona . . . . on 27th day of August 2003 [he] cultivated a narcotic plant namely cannabis L in a quantity that was not less than the commercial quantity applicable to that plant"

contrary to s.72A of the Drugs Poisons and Controlled Substances Act 1981 (the Act). He pleaded not guilty.

3 The Crown sought to prove cultivation of the plant in not less than a commercial quantity by reference to the weight, 25 kgs, specified in Column 2 of Part 1 of the Second Schedule of the Act. The circumstances thus differed from those considered by this Court in DPP Reference No 1 of 2004; R v Nguyen[1] (conveniently "Nguyen") and in R v Van Xuan Bui.[2] In the former case, questions arose as to what mens rea must be established in a case of alleged trafficking in not less than large commercial and commercial quantities of drugs of dependence when the Crown relied upon the weight of the same to prove commercial quantity. In the latter case, a question arose as to what mens rea must be established in a case of alleged cultivation of cannabis L in a quantity not less than a commercial quantity when the Crown relied upon the number of plants to prove the offence.

4 In Nguyen, the Court said this:

"In short, offences of the kind created by ss.71 and 71AA [of the Act] are defined by quantities. It is therefore implicit in the offences created by ss.71 and 71AA that the accused must be shown to have had the intent to traffick in a prohibited substance and in a particular quantity. It follows that it is necessary for the Crown to show that the accused had knowledge of the nature of the substance and of the quantity of the substance at the time of the commission of the offence."[3]

It then turned to the question how the relevant intention might be proved.[4]

5 In Van Xuan Bui, Eames J.A. said that the correct approach for the jury in ss.71, 71AA cases was stated at [22] in Nguyen. He added this:

"The Court rejected the contention that in order to prove that there was an agreement to traffic drugs in a commercial quantity it was necessary to prove that the accused had actual knowledge or belief as to the quantity of the substance, rather than just knowledge or belief that there was a significant or real chance that the trafficking would involve a commercial quantity. It is a question of proof of intention, which may be proved by inference. The jury must be directed that it is not permissible to draw the inference as to any matter which is a significant factor in the process of reasoning towards guilt unless that is the only inference reasonably open, including any inference as to the accused having actual knowledge or else having knowledge of there being a significant or real chance that the trafficking would involve a commercial quantity of the drug. The Crown would have to prove beyond reasonable doubt that the accused believed there was a significant or real chance that the trafficking would be in that volume. The Court held that the jury could be satisfied to the requisite degree that the accused believed there was a significant or real chance that the amount of the drug to be trafficked was of a commercial quantity if the accused believed there was a substantial, real and not remote chance of it being in that quantity."[5]

6 Then, addressing the instant case, which involved an alleged offence against s. 72A, his Honour said that -

"All of those statements of the law in Nguyen, as they concerned proof of trafficking in a commercial quantity of a drug of dependence and the directions to be given to the jury, applied equally to a case of cultivation of a commercial quantity of cannabis L."[6]

7 Nettle J.A. added this, concerning the task of the trial judge and the functions of the jury:

"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."[7]

8 Against that background of authority, we return to describe the sequence of events in the present case. As it turned out, the trial miscarried. It did so after the Crown case had closed, and when Mr Garlick was under cross-examination. The learned trial judge discharged the jury without verdict.

9 A re-trial was foreshadowed, but it did not take place. The learned judge, being concerned as to how Nguyen would apply, if at all, in the circumstances of the case,[8] mooted with counsel the prospect of Mr Garlick making application for the reservation of a question of law for consideration and determination by this Court. In the event, such an application was made, and acceded to, on 12 December 2005. Then followed a protracted exercise by which, in a series of mentions, the case stated was developed into its final form.

10 The approach which informed development of the document was a common sense one: that is, to have this Court canvass as many questions as possible concerning the operation of s.72A, with specific focus upon cases in which the Crown sought to prove commercial quantity by weight. That approach culminated in seven questions being framed. They were as follows:

"First, in order to prove the commission of an offence under section 72A, it is necessary for the Crown to prove:

a) that the accused had actual knowledge of the quantity [meaning weight] of the drug of dependence which he was alleged to have cultivated, at the time when such drug was seized? and/or

b) that the accused knew of the requisite weight threshold applicable to a commercial quantity?

Secondly, must a person contemplated by section 72A, necessarily know or have in mind the actual weight of the quantity of drug which he was intending to cultivate, prior to any act of cultivation?

Thirdly, must a person contemplated by section 72A, necessarily know or have in mind the actual weight of the quantity of drug which is being cultivated by him:

a) from time to time? and/or

b) at the time of seizure by police?

Fourthly, in order to prove the commission of an offence under section 72A can the Crown seek to prove the requisite intention on the part of the accused by proving that the accused was aware of the nature and quantity of the relevant narcotic plants in a broad sense, such as the number, size and characteristics of the plants?

Fifthly, is it open to the accused to adduce evidence of an honest and reasonable belief as to a state of affairs inconsistent with an intention to cultivate a commercial quantity? And if so is it then incumbent upon the Crown to prove that the accused did not or could not have had such an honest and reasonable belief?

Sixthly, if the Crown can prove beyond reasonable doubt that the accused cultivated a quantity of narcotic plants that when confiscated weighed at least 25 kilograms, then is it irrelevant that the accused was:

a) not aware that the weight of the plants was in fact at least a commercial quantity? or

b) believed that the prohibited narcotic plants weighed less than a commercial quantity? or

c) never intended to harvest a commercial quantity?

Finally, if the Crown can prove beyond reasonable doubt that the accused cultivated a quantity of narcotic plants that when confiscated weighed at least 25 kilograms, must the accused be found not guilty of a count contrary to s.72A of the DP&CS Act if the Crown fail to prove beyond reasonable doubt that the accused:

a) was aware that the plants weighed 25 kilograms or more; or

b) did not believe that the plants weighed less than 25 kilograms; or

c) intended to grow plants weighing 25 kilograms or more; or

d) intended to harvest plants weighing 25 kilograms or more?"

11 Later in these reasons we must say something more about the nature of the questions, and generally about the form of the case stated. But assuming for the moment that all was otherwise in order, the common position of the parties before this Court was that, in consequence of Nguyen and Van Xuan Bui, no live question of law remained for the Court's determination. Each side accepted that the Crown must prove, in a case of the instant kind, an intention to cultivate a narcotic plant in not less than a commercial quantity in accordance with the statements of principle in those cases; and accepted also that the exposition in those cases as to how the Crown might go about proving relevant intention - in which inference might play an important part - was applicable in a case of the present kind.

12 Given that those matters had become common ground - and we do not doubt that this was correctly so - the questions framed in the case stated no longer required determination. Some of the questions were implicitly predicated upon uncertainty whether the intention which was to be proved was to be determined, by parity of reasoning, from what was said in Nguyen and Van Xuan Bui. The others were implicitly predicated upon uncertainty whether the means by which the Crown might seek to prove intention, as described in those authorities, applied in a case of the present kind.

13 The common position correctly reached by the parties is enough to explain why we refused to answer the questions which were reserved for our determination. But two further matters require mention. The first is whether the jurisdiction of this Court was properly invoked. The second concerns the proper content of a case stated.

14 We raised with counsel, before it became apparent that there was no question of law for the Court to determine, the question whether the County Court had been empowered, under s.446(2) of the Crimes Act 1958, to reserve a question of law for consideration and determination of this Court. The existence and exercise of such a power was the necessary precursor to this Court exercising jurisdiction under s.447 of that Act. In the events which occurred, and in the absence of argument, we were content to assume jurisdiction. But we are by no means clear that the County Court was empowered to state the case in the circumstances which obtained. Much turns on the language of s.446(2) and upon the language of relevant provisions in the Crimes (Criminal Trials) Act 1993 ("the 1993 Trials Act") and the Crimes (Criminal Trials) Act 1999 ("the 1999 Trials Act").

15 Section 446(2) reads as follows:

"If on the trial of an accused person in the Supreme Court or the County Court, a question of difficulty in point of law arises before a jury is empanelled, the court may, on application by the accused, determine that the question of law is such that its determination could render the conduct of the trial unnecessary and reserve the question of law for the consideration and determination of the Court of Appeal."

16 Two aspects of the sub-section should be highlighted. The question of difficulty in point of law must arise -

• "on the trial of an accused person"; and

• "before a jury is empanelled."

17 Section 446(2) was inserted by the 1993 Trials Act. Part 3 of that Act provided for directions hearings. Part 4 dealt with matters at trial. Section 5(1)(a), within Part 3, said this:

"(1) If a presentment has been filed, the court from time to time on the application of a party or on its own motion may do any one or more of the following -

(a) determine any question of law or procedure that arises, or that is anticipated to arise, in the trial."

18 We next mention s.5(2), which read as follows:

"Arraignment of the accused in accordance with the Crimes Act 1958 must take place at the beginning of the first hearing under this section."

19 In Re Hamilton-Byrne[9] a case was stated pursuant to s.446(2). It was stated after the accused person had been arraigned and had pleaded not guilty, but before the jury was empanelled. The efficacy of the use of s.446(2) in such circumstances was not disputed.

20 In Maradis v Preston and ors[10] a case stated under s.446(1) was held to have been stated without jurisdiction. In passing, Tadgell J referred to Hamilton-Byrne, and said this concerning s.446(2):

"That sub-section does confer on a County Court judge jurisdiction to reserve questions of law for determination by the Full Court before there has been a conviction upon, or even a commencement of a trial in the County Court. The judge is authorised to reserve questions of law to the Full Court before a jury is empanelled. That was done in recent case of Hamilton-Byrne, decided by this court on 16 August 1994."[11] [our emphasis]

21 Only the words "or even [before] the commencement of a trial" could be said to aid a conclusion that s.446(2) could have been applied - even in the context of Part 3 of the 1993 Trials Act - in the circumstances which obtained in the present case. But probably his Honour meant no more that "before a jury is empanelled." The language of s.446(2) suggests as much; and in Hamilton-Byrne the accused had been arraigned.

22 The 1993 Trials Act was repealed and replaced by the 1999 Trials Act. In lieu of s.5(1), (2) of the former, there are now the following provisions:

"5. (1) The court may, between the filing of the presentment and the day on which the trial is due to commence, from time to time on the application of a party or of its own motion conduct a directions hearing.

(2) At the beginning of the first directions hearing each count in the presentment must be read to the accused and the accused asked to plead to that count."

- - -

(5) At any subsequent directions hearing the court may do, or specify a time for it to do, any one or more of the following -

- - -

(b) determine any question of law or procedure that arises or that is anticipated to arise in the trial;

- - -

(6) Nothing in this section removes the requirement for the accused to be arraigned in accordance with the Crimes Act 1958 before the commencement of the trial."

23 Section 5(1) now makes it clear that a directions hearing under that section is a hearing which antedates the trial. That is emphasized by s.5(6). But even if it was open to conclude that a case can now be stated under s.446(2) when a matter is at the Part 3 directions stage,[12] it is at least clear that s.5(2) requires that the accused person plead to each count on the presentment at the beginning of the first directions hearing. So far as we can see, even if the series of mentions between 1 December 2005 and 7 April 2006 could be characterised as directions hearings under Part 3, there was no compliance with s.5(2). True it is that Mr Garlick had been arraigned at his aborted trial. But that was now consigned to history; and, in any event, it would not seem to fit the specific requirements of s.5(2).

24 We go to the form of the case stated. The proper content of a case stated has been described, and insisted upon, on many occasions. Relevant principles, including the seminal statement of Dixon C.J., McTiernan, Webb, Kitto and Taylor J.J. in R v Rigby,[13] were reiterated by this Court in Furze v Nixon.[14]

25 As we have earlier recognised, the form that the document took was no doubt explained by the commonsense desire of the learned judge, and the parties, to have this Court canvass as many questions as was possible with respect to the operation of s.72A of the Act. But praiseworthy as that objective may be accounted, it led to the formulation of a case stated which failed to comply with the requirements of such a procedure.

26 First, it did not state ultimate facts; and it is the ultimate facts which are the bedrock of a case stated.

27 Second, it set out, in part, the evidence given at the trial which had miscarried. This was objectionable for two reasons. Evidence should not normally be included in a case stated; and we can see no reason why this matter should have been an exception to that principle. Moreover, the evidence given in the aborted trial might or might not have been replicated when the matter came on for re-trial.

28 Third, the case recited matters remote from identification of a relevant question of law. Thus, for example, it recited the circumstances in which the trial had miscarried, and it annexed a paper prepared by a County Court researcher at the request of the learned judge.

29 Fourth, the case set out substantial argumentative passages in which the learned judge, no doubt for the assistance of this Court, sought to illuminate a variety of factual matters which might be of importance in particular cases in determining charges laid against persons under s.72A of the Act.

30 Fifth, a case stated is not to be used to facilitate the offering of general advisory opinions on hypothetical facts.[15] But the questions of law, so described, which were reserved for the determination of this Court, raised for its consideration a series of generic questions concerning s.72A. They were not tied to the ultimate facts of the instant case. We should add that it might have been very difficult to isolate the necessary ultimate facts at the stage which the proceeding had reached when the case was stated.

[1] [2005] VSCA 172.

[2] [2005] VSCA 300.

[3] At [10].

[4] See at [15], [22], [23].

[5] At [25].

[6] At [26]. Nettle J.A. agreed in this conclusion at [61].

[7] At [64], [65].

[8] At that time, the decision of this Court in Van Xuan Bui had not been published.

[9] [1995] VicRp 8; [1995] 1 VR 129.

[10] Appeal Division, Tadgell, Nathan and Hansen JJ., unreported, 7 December 1994.

[11] At page 5.

[12] The question whether such a stage is to be regarded as "on the trial" may require consideration of the relevance or otherwise of authorities such as DPP (SA) v B [1998] HCA 45; (1998) 72 ALJR 1175 at 1179 [15], [17] per Gaudron, Gummow and Hayne JJ., and at 1182, [32], [34] per McHugh J.

[13] [1956] HCA 38; (1956) 100 C.L.R. 146 at 150-151.

[14] [2000] VSCA 149; (2000) 2 V.R. 503 at 506-508, [4]- [9].

[15] DPP (SA) v B at 1178, [12] per Gaudron, Gummow and Hayne JJ.