R v Garlick

1 I agree with Eames JA, for the reasons stated by his Honour, that the application for leave to appeal should be granted and the appeal allowed. The conviction passed below on the count of cultivation of a narcotic plant in not less than a commercial quantity is to be set aside and, pursuant to s 569(2) of the Crimes Act 1958, the appellant is to be convicted of the offence of cultivation of a narcotic plant, contrary to the provisions of s 72B of the Drugs, Poisons and Controlled Substances Act 1981. I also agree that the appellant should be re-sentenced as his Honour proposes.

2 On 18 October 2006 the applicant was convicted, by verdicts of a jury, on one count of cultivation of a narcotic plant (cannabis L) in a commercial quantity, contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981 and one count of theft, being the theft of electricity, contrary to s 74 of the Crimes Act 1958. He was sentenced to 15 months' imprisonment on count 1 and six months' imprisonment on count 2, three months of which was to be served cumulatively with the sentence on count 1, producing a total effective sentence of 18 months' imprisonment. Fifteen months of the sentence of imprisonment was suspended for an operational period of three years.

3 The applicant applies for leave to appeal against conviction and sentence.

4 The trial, which took only three days, was contested on a single issue, namely, whether the applicant had the requisite intention to cultivate a commercial quantity of cannabis.

5 On 27 August 2003 police executed a search warrant at the applicant's home, whereupon he showed them a shed in the backyard in which there was a hydroponic cultivation set-up, with 18 small cannabis seedlings, in relatively poor health, being located in one portion of the building and in a second room there were six large and healthy plants. They were flowering. The hydroponic system was elaborate, including a watering system, high wattage lights, an exhaust system and an odour control device. The electricity board had been bypassed.

6 A forensic botanist, Ms Fiddian, gave evidence that the seedlings weighed 167.8 grams and the six larger plants weighed 26.35 kilograms, a commercial quantity for cultivation of cannabis being not less than 25 kilograms.[1]

7 In his evidence the applicant denied having known that 25 kilograms in the weight of plants constituted a commercial cultivation and thereby had significant consequences as to penalty. He said he was first told by his solicitor, after he had been arrested, that the cannabis exceeded what constituted a commercial quantity.

8 The applicant gave evidence that he had been a heavy user of marijuana since the age of 16 and had decided to grow his own supply so as to avoid having to rely on other suppliers. He had purchased the equipment for $1,000 and he had divided it with a friend, each choosing some for his own purposes. The applicant organised an electrician to bypass the electricity authority's power board so as to hide the additional usage of electricity.

9 The applicant told the jury that prior to producing this crop he had earlier planted a first crop of six plants. He had intended to plant only four plants for the first crop, but a friend told him to plant six plants because there was a tendency to lose some plants in the cultivation process. He therefore planted six plants, hoping to get four. He said had he wanted to grow more plants he had the space to do so and the equipment, but did not want to do so. He said that he had been told that there would be about eight ounces per plant, "so I would have got probably about a kilogram, I guess, with probably about four plants surviving, a nice little stash to put away for myself and smoke." He said he himself smoked about a quarter of an ounce of marijuana per week and he would have obtained a year's supply from the second crop.

10 The first crop was a disaster, and all plants died. He cut up the dead plants and fed them to his chickens. He then took advice from a hydroponic shop and planted new plants; again planting six plants, hoping to grow four successfully, thereby producing eight ounces per plant, i.e. a kilogram of cannabis, for his own supply.

11 He told the jury he only ever smoked the head of cannabis plants and he was not interested in smoking the leaves from his plants. He had intended to give some of the cannabis to friends who had assisted him: among the intended beneficiaries were to be the electrician, to whom he was going to give six ounces. He was asked:

"What do you say - as to the weight of the plants, did you have any idea that the plants weighed 25 or 26 kilos?---Look, I had no intention, no inclination of growing any plants over 25 kilos.

Did you have any idea - any idea of the weight of the plants?---Look, just judging from my first failed crop that I pulled out, they probably would have weighed about 1 to 2 kilos, I guess, in weight. They were probably a little bit bigger, but not quite as heavy in the flower, they were only just starting to flower.

Did you think there was any kind of chance that the plants that you were growing would have weighed in excess of 25 kilos?---No. Just judging on the first crop they were probably only 1 or 2 kilos. Looking at those ones there, they weren't quite as big. In actual fact, the containers they were in were probably about 500 mm high, which is half a metre, and the netting is probably about 1300 mm high from the ground.

So some of them were going through the netting?---Yes.

We have heard from Ms Fiddian that there were six plants that weighed a bit over 26 kilos, that is an average of over 4 kilos a plant?---Yes, it is a lot.

Did that surprise you?---Very much so. I actually - my previous solicitor, 5 weeks after I got arrested - he said I was basically in more trouble now - - -

Just tell us about the weight. What is your query about the weight. Did the weight surprise you?---It did, yes. I don't believe it. I thought it was a lot of rubbish, to be honest.

Of that weight, you understood that was the fresh or green weight?---Yes.

Of that, then, Ms Fiddian has approximated or estimated approximately that there would have been 4 kg of leaves and head; do you have any comment on that?---Well, those plants that I have seen, I would guess maybe weighed about 2 to 3 kilos, the ones that I pulled out."

In cross-examination he repeated that he had not known what a commercial quantity of cannabis was. He said he was only seeking to grow four plants.

12 In cross-examining the applicant the prosecutor highlighted the improved quality and health of the second crop in comparison with the first. The applicant agreed they looked healthy, but he said the plants in the previous crop were probably a bit bigger and weighed about one to two kilos per plant. He knew that they were about that weight because when he pulled them out of the ground and carried them to the lawn he thought to himself that they were probably one to two kilos. He said that he was used to handling weights as a handyman, and picked up kilo weights of grout. He agreed he had never weighed those plants. He agreed that the second crop of plants were 'headed' but they were not as tall. The flowers on the second crop were bigger, he agreed, and were better established. He was then asked:

"So you knew that the crop that had failed, you reckon the plants weighed 1 or 2 kilos and you knew that these heads were bigger and better than that first crop?---Yes, the other plants were bigger.

What?---The other plant were taller.

Taller, but the heads weren't as big?---No.

And the head are what has got the weight, aren't they?---I guess so, but the other ones had bigger stalks.

You guess so. Are you agreeing with me?---What's that, sorry?

You are agreeing with me that the heads in these would weigh more than the leaves, wouldn't they?---I'm not too sure because I never actually weighed them. I never actually individually weighed them.

So you knew there was a fair chance that this crop we are talking about here, in photographs 7, 8 and 9, were better than this other crop that you had that you fed to the chickens?---As far as the head goes, yes, it is better, but it wasn't as quite as big as the other ones.

When did you become aware that 25 kilograms was the cut off?---That's when I was contacted by my then acting solicitor who rang up and said to me that the plants had weigh 26.4/26.5 kilos and now I was in more trouble."

13 He said he had not made an estimate of weight of the second plants because he had intended to cultivate them on the night of the police raid but had been diverted by a visit from his son. Then the police arrived and removed the plants before he got the chance to do so himself. He said whilst the plants were growing he had not picked them up to see what weight they were, because they were still attached to the soil. He was asked:

"So you were aware of weights of plants when you were doing your first cultivation?---No I was just saying when I was carrying those plants out, I was just saying to myself the weight of those plants would be between one to two kilograms.

Were they about the same height as this crop we are dealing with today?---No, they were taller.

Taller, smaller head?---Well, they would only be about, the heads were only very small, yes."

14 He agreed that there was a fair chance that in terms of weight the second crop was going to be more than the first crop. The applicant was asked in re-examination:

"Did you realise that there were going to be, on Ms Fiddian's guesstimate, four kilos of heads and leaves?---No.

What did you think you were going to get?---I was just looking for, as I said, about eight ounces per plant of head.

Of how many plants?---Four plants. I was actually looking for four plants. As I said earlier on I put in the six to get the four because apparently some do die and out of these four plants I would have got eight ounces each supposedly. And it would have been about a kilo."

15 As to the bonus of two additional plants having survived, his counsel asked, "(D)id you ever change your mind as to how much cannabis you'd be getting in terms of heads?" and he replied "I thought that would get probably an extra, well, 8 ounces per plant so I would get an extra pound out of the whole deal". He was asked whether he turned his mind to the prospect that the second crop of plants might have weighed "a lot more, double or two and a half times" to those that had been grown earlier. He said, "No I didn't think that they would be that much heavier at all." He was asked whether there was anything that led him to think that the second group of plants would weigh four and a half kilos each. He said "I still don't believe to this day that they actually weighed that much."

16 As to the conviction appeal, the grounds are as follows:

"Ground 1: The learned trial judge erred in her directions on the mens rea required for Count 1 (cultivation of not less than a commercial quantity of cannabis); and in particular she erred:

• (a) in giving any directions on wilful blindness;

• (b) in the terms of her directions on wilful blindness;

• (c) in giving an erroneous and incomplete summary of evidence and issues relating to intention and wilful blindness;

• (d) in failing to give directions on mistake - and, in particular, in failing to direct to the effect that, if the jury could not exclude the possibility that the applicant mistakenly believed that the plants weighed less than 25 kilograms, he must be acquitted.

Ground 2: The verdict of the jury on Count 1 (cultivation of not less than a commercial quantity of cannabis) is unreasonable or cannot be supported having regard to the evidence; and, in particular, it was not open to a properly instructed jury acting reasonably to be satisfied beyond reasonable doubt that the applicant possessed the requisite intention to cultivate not less than a commercial quantity of cannabis."

Ground 1

17 Before the applicant stood trial there had been uncertainty among trial judges as to the terms in which juries should be directed for cultivation offences under s 72A. The applicant's trial had been adjourned from May 2005 in anticipation of the Court publishing its decision in DPP Reference No 1 of 2004; R v Nguyen,[2] which was to address the issue of intention in the context of an offence of trafficking a drug of dependence in a commercial quantity. Upon publication of that judgment the applicant stood trial, for the first time, on 7 October 2005, but the jury was discharged by her Honour without verdict when in the course of his evidence the applicant told the jury that he would lose his home if he was convicted. A new trial was listed for 12 December 2005 but shortly before it commenced her Honour proposed to counsel that she would refer questions of law to the Court of Appeal on matters of law which had not been dealt with in Nguyen.

18 Among the seven questions which her Honour framed for the Court on the Case Stated the first had asked whether it was necessary for the prosecution 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 the drug was seized, and/or

(b) that the accused knew of the requisite weight threshold applicable to a commercial quantity."

19 The Case Stated came before the Court of Appeal on 13 June 2006[3] but the Court then declined to answer the questions which had been reserved, on the basis that the answers to them had been provided, substantially, by a further decision of the Court, in R v Van Xuan Bui,[4] which decision had been delivered on 14 December 2005. It was agreed between counsel that Bui resolved the uncertainties which had given rise to the Case Stated.

20 Bui was a case of cultivation but the commercial quantity was based on there being in excess of 100 plants, rather than on there being weight in excess of 25 kilograms. In my reasons in Bui, with which Buchanan and Nettle JJA agreed, I referred to the decision in Nguyen and held as follows:

"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]

"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]

22 Nettle JA gave some additional reasons of his own in Bui:[7]

"I also agree with Eames JA 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 JA 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."

23 At a point in her charge to the jury where she was about to direct them on the question of intention, her Honour, in the absence of the jury, paused to discuss with counsel the proposed terms of the directions which she would give. It was accepted on all sides that Nguyen and Bui should be the foundation for her Honour's charge. Her Honour said that she was following closely the terms of a model charge which had been published recently in the charge book. Her Honour read out the directions that she was proposing to give to the jury and invited counsel to comment. The discussions which followed were extensive and defence counsel suggested some changes in the directions. It is not necessary to deal with the discussion in detail.

24 Trial counsel submitted that what had to be established was what Nettle JA held in Bui, namely, that there was an intention to cultivate the plants in not less than a commercial quantity, which in the present case required that he had an intention to cultivate plants of not less than 25 kilograms, but agreed that could be proved by inference. Counsel submitted that it was necessary to prove that the accused knew the actual weight of the cannabis plants to be at least 25 kilograms. Counsel submitted that it could not be sufficient to merely prove that the applicant intended to grow "something which might approximate 25 kilograms"; that it could not be sufficient for the Crown to prove merely that the accused intended to grow a crop which turned out to weigh in excess of 25 kilograms; because that would mean that the Crown only had to prove the intention to grow plants which in fact weighed that amount. He submitted, correctly in my view, that the Court of Appeal had made it clear that the intention must be to cultivate at least 25 kilograms.

25 After further discussion with counsel, her Honour said she would direct that it was not necessary for the Crown to prove actual knowledge of the weight of the cannabis plants provided that it was proved that he had knowledge of a significant or real chance that he was cultivating at least a commercial quantity. Her Honour added: "I'll just leave it at that". Defence counsel said he was content with that.

26 In the course of this discussion with counsel prior to charging the jury, no mention was made, at all, of a possible direction being given as to wilful blindness. That topic had not been raised by either counsel in addresses to the jury

27 In her directions to the jury her Honour dealt at length with the question of intention. No complaint is made as to the bulk of those directions but in the course of her directions concerning the drawing of an inference as to intention her Honour said this:

"You could also draw an inference that the accused intended to cultivate a commercial quantity of plants if you find that he deliberately failed to enquire about the quantity he was cultivating in circumstances where he would have been suspicious about that quantity. In such a situation you may conclude that although the accused did not positively know that he was cultivating a commercial quantity of plants[8] he nevertheless intended to cultivate such a quantity."

28 That direction concerning what has been described by Mr Croucher, counsel for the applicant, as "wilful blindness" was later supplemented by way of a re-direction, as I shall discuss.

29 At the conclusion of her directions no exception was taken by defence counsel. The jury retired to consider their verdict, but about an hour later the Court reassembled to hear a jury question which was:

"Your Honour, we would like to know the definition for - sorry, we would like to know the definition of intention, clarification of ignorance and failure to enquire, please?"

30 Counsel for the applicant then sought to raise a matter with her Honour and in the absence of the jury, he said that he had meant to say something at the conclusion of the charge concerning the directions that were given about a deliberate failure to make enquiry.

31 Trial counsel submitted to her Honour that a direction as to wilful blindness was inappropriate in the case. He said there was no suggestion of that having occurred in the case, and there was no evidence of it. He submitted that, to the contrary, there was affirmative evidence that he did have a belief as to the weight, as opposed to him not making an enquiry. He submitted that the accused had said, in effect, that he knew by virtue of the weight of the plants that he had pulled out from the first crop what the likely weight was going to be for the second crop and that that would have been less than 25 kilograms. There was therefore "just no launching pad on which one can say 'well this man deliberately failed to make an enquiry' because the evidence does not even remotely suggest it".

32 The prosecutor supported her Honour's direction to the jury. He cited passages from the judgment in Nguyen,[9] in which, in turn, the Court had cited and followed decisions of the High Court. The prosecutor referred to a passage from the judgment of Mason CJ, Deane and Dawson JJ in Saad v The Queen,[10] a case which involved a charge of possession of heroin, and where the Crown contended that it did not have to prove that the accused knew that the substance was heroin:

"In a case such as the present where it is necessary to show an intention on the part of an accused to have in his possession a narcotic drug, that intent is established if the accused knew or was aware that an article which was intentionally in his possession comprised or contained a narcotic drug. That is not to say that actual knowledge or awareness is an essential element of the guilty mind required for the commission of the offence. It is only to say that knowledge or awareness is relevant to the existence of the necessary intent. Belief, falling short of actual knowledge, that the article comprised or contained a narcotic drug would obviously sustain an inference of intention. So also would proof of the possession of the forbidden drug in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that act and he nevertheless persisted in that conduct. As a practical matter, the inference of mens rea or a guilty mind will ordinarily be irresistible in cases involving the possession of narcotic drugs if it is proved beyond reasonable doubt that the accused was actually in possession of the drug and that he was aware, at the time of the alleged commission of the offence, of the likelihood of the existence of the substance in question in his possession and of the likelihood that it was a narcotic drug.

33 The prosecutor also cited the following passage, from Pereira v Director of Public Prosecutions[11] in which the High Court held that that actual knowledge was an express requirement for proof of the offence of importing a prohibited import and was a necessary element in the offence of having in possession cannabis of not less than a trafficable amount. The Court held that where actual knowledge was either a specified element or a necessary element for proof of the requisite guilty mind, it might be established by inference. The prosecutor cited the following passage from Pereira, as it appeared in the judgment in Nguyen,[12] highlighting to her Honour the passage I have highlighted below:

"In Bahri Kural [1987] HCA 16; (1987) 162 CLR 502; 29 A Crim R 12 it was emphasised (at 505, 511-512; 13-14, 18-19) that in this area it is important not to transform matters of fact into propositions of law...

where knowledge is inferred from the circumstances surrounding the commission of the alleged offence, knowledge must be the only rational inference available. All that having been said, the fact remains that a combination of suspicious circumstances and failure to make inquiry may sustain an inference of knowledge of the actual or likely existence of the relevant matter. In a case where a jury is invited to draw such an inference, a failure to make inquiry may sometimes, as a matter of lawyer's shorthand, be referred to as wilful blindness. Where that expression is used, care should be taken to ensure that a jury is not distracted by it from a consideration of the matter in issue as a matter of fact to be proved beyond reasonable doubt."[13]

34 In response, counsel for the applicant sought to distinguish such cases from the case at hand, but her Honour suggested that the jury might conclude that the applicant had been "put on notice" by the first crop and would therefore have been "suspicious" of the weight of the second crop. Counsel in response expressed particular concern about the introduction of the concept of "failure to inquire", which issue, he submitted, had not arisen in the case and which direction implied that a failure to inquire might provide proof of intention. Counsel submitted that a direction as to wilful blindness applied to few cases, and great care had to be taken if directions were to be given on that issue in any case.

35 Whilst he maintained that the direction should not have been given defence counsel submitted that if a direction on the topic was going to be given then it was necessary that the jury be told the evidence that related to it. Her Honour agreed to do that. Counsel submitted that there was a danger the jury would think that for him to have been suspicious would have been sufficient to establish intention to cultivate a commercial quantity.

36 Without immediately answering their question her Honour sent the jury home for the evening, advising that the question they had asked raised a "terribly important matter" concerning intention. The following day her Honour relevantly redirected the jury:

"You could also draw an inference that the accused intended to cultivate a commercial quantity of plants if you find that he deliberately failed to inquire about the quantity he was cultivating in circumstances where he could have been suspicious about that quantity. In such a situation you may conclude that although the accused did not positively know that he was cultivating a commercial quantity of plants, he nevertheless intended to cultivate such a quantity.

This particular direction must be approached with caution, in the sense that it is raising for your consideration, whether on the facts and circumstances as you find them, you can find the accused was in effect wilfully blind to the likelihood or real and significant chance that he was cultivating a commercial quantity. The facts which may be relevant to a consideration of whether an inference can be drawn on this basis are the following: the accused initially planted six plants in February 2003. About one week later, one plant died and than the rest started going purple and eventually died or went into shock, he said. When these plants were removed and he carried them into the backyard, the accused said that he could estimate their weight from his experience as a handyman with weights, as one to two kilograms; that is one to two kilograms each. He also said that these first plants were taller than the later ones he plants, but had fewer heads. On the basis of his experience with his first crop, the accused said that he estimated the weight of the second planting of six plants at about two to three kilograms each. The first planting was made in February and taken out about 5 April. The second planting was made about mid May and the plants were then seized on 27 August.

It is a matter for you, members of the jury, whether you might consider that the experience of his first planting, where he removed dead and wilting or dying plants after approximately eight weeks and says he had some idea of their weight, is so totally different to the experience of six large, healthy, bushy plants, which were seized after about 12 to 14 weeks, as to amount to a wilful blindness on the part of the accused as to the likely weight of the second crop. The Crown says you can so reasonably infer. He was actively tending the six large, bushy plants and the 18 seedlings to maximise a commercial production. What he had the second time around was vastly different to this first crop. He had learnt from that experience.

[Counsel] for the accused says, to the effect, that that is nonsense, and the accused has given a complete explanation for his knowledge and intent. Not that he needs to prove anything to you, members of the jury, but [counsel] says that there is another reasonable explanation consistent with an intention not to cultivate a commercial quantity. This is not a case, [counsel] would say, of the accused having any basis for acting with wilful blindness or ignoring suspicious circumstances."

37 Dealing with the defence case in that way her Honour, in my respectful opinion, failed to adequately address the difficulties for the proposition of wilful blindness, but it is not necessary for me to discuss further whether there was any deficiency in that respect. In my opinion, Mr Croucher is correct in his submission under Ground 1 that the direction ought not to have been given, at all, in the circumstances of this case, and that to have directed the jury on wilful blindness was an error of law amounting to a miscarriage of justice.

38 In The Queen v Crabbe the High Court held:[14]

"Finally, there is the question whether the jury should have been directed on the question of wilful blindness. When a person deliberately refrains from making inquiries because he prefers not to have the result, when he wilfully shuts his eyes for fear that he may learn the truth, he may for some purposes be treated as having the knowledge which he deliberately abstained from acquiring. According to Professor Glanville Williams, Criminal Law: The General Part, 2nd ed. (1961), at p.159:

"A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realized its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful

blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice."

Again, in his Textbook of Criminal Law (1978), at p.79, Professor Glanville Williams said, in a passage cited by Lord Edmund-Davies in Reg v Caldwell [1982] UKHL 1; (1982) AC 341, at p 358:

"A person cannot, in any intelligible meaning of the words, close his mind to a risk unless he first realises that there is a risk; and if he realises that there is a risk, that is the end of the matter"."

39 A direction on the topic that is loosely called "wilful blindness" is one that will be appropriate in very few cases. Its introduction in a trial where the critical issue is intention is capable of giving rise to difficulties and, for that reason, it must be very clear that it is an appropriate direction to give in the circumstances of the trial. The High Court has emphasised the need for caution in a number of cases.

40 In Kural v The Queen[15] Mason CJ, Deane and Dawson JJ, held:[16]

"What we have said is designed to emphasize that the existence of the requisite intention is a question of fact and that in most cases the outcome will depend on an inference to be drawn from primary facts found by the tribunal of fact. In this, as in other areas of the law, it is important not to succumb to the temptation of transforming matters of fact into propositions of law."

41 Also in Kural,[17] after setting out passages from the judgments of Gibbs CJ and Brennan J, in He Kaw Teh v The Queen,[18] Gaudron and Toohey JJ, (in dissent, but only as to the outcome) said this:

"The formulations by Gibbs CJ and Brennan J are suggestive of differences, but are reconcilable if refraining from making inquiry is regarded in appropriate circumstances as an example of knowledge of likelihood sufficient to establish the necessary criminal intent. However, the notion of refraining from making inquiries is sometimes erected into a doctrine of wilful blindness. In that respect it is the subject of an article by Professor Lanham, 'Wilful Blindness and the Criminal Law', Criminal Law Journal, vol. 9 (1985), p.261. In our view there are real dangers, as Professor Lanham recognizes, in seeking to apply some doctrine of wilful blindness to the criminal law and in particular to a prosecution under s 233B(1)(b) of the Customs Act. The basic question for the jury is whether the Crown has discharged the onus of proving that the accused intended to import a prohibited import, which requires at the least knowledge of the likelihood that what is being imported is a prohibited import. If there was nothing to arouse the accused's suspicion, it is hard to see how the Crown could discharge the onus of proof. If there was evidence from which the jury might reasonably conclude that the accused's suspicions were aroused but that he deliberately refrained from making further inquiries, the jury might properly conclude in all the circumstances that he knew that the goods were likely to be prohibited imports, or where, as here, the goods were in a container, that it was likely to contain narcotic goods. But it would have done so, not by applying a doctrine of wilful blindness, but simply by treating the question as an evidentiary one - and deciding whether the Crown had proved beyond reasonable doubt that the accused intended to bring into the country a prohibited import. That approach is in accord with what was said by Brennan J in He Kaw Teh, and is not inconsistent with what was said by Gibbs CJ."

42 In this case there was no evidence that the applicant knew there was a 25 kilogram threshold for commercial cultivation. Indeed, not only was his own evidence to the contrary, her Honour had directed the jury :

"The Crown does not have to prove the accused was aware of any definitions in the Act or the schedules to the Act as to weight thresholds generally, or that he knew the weight threshold in the definition of commercial quantity in particular. Indeed, it would be very unusual if he had been and he admitted that he was only advised by his solicitor later. The Crown does not have to prove that the accused knew the actual weight of the quantity of drug which he was cultivating, or intending to cultivate. This is hardly surprising of course. You cannot weigh plants whilst they are still growing, whether in the ground or growing in a hydroponic setup, and Parliament clearly could not have intended that this happen." (my emphasis).

43 Having told the jury the applicant had "admitted" that he did not know that there was such a limit, at all, then it ought logically have followed that, so far as he knew, there was no relevant "risk" of exceeding a commercial threshold, and no risk to which he might have closed his eyes.

44 Furthermore, although the applicant gave a deal of evidence about his estimate of the weight of the plants which had comprised the previous, unsuccessful, crop he was never asked why the weight of the plants was of any relevance to him. His evidence concerning the relevance of weight was merely to the effect that he anticipated that four successful plants would each produce cannabis, constituted by the heads of the plant, of about 8 ounces.

45 There was an additional problem in giving a wilful blindness direction, when the topic had not been raised at any time in the trial. The applicant's evidence as to his estimate of the weight of the plants in the second crop was given in response to questions which were at times very unclear as to whether he was being invited to now venture opinions as to the weight of the second crop, based on what he had estimated the previous plants to have weighed, or was being asked about estimates of weight that he made at the time he was growing the second crop. However, even assuming that his answers are to be taken as relating to estimates then made, his evidence was that he had no belief or suspicion at all that the individual plants, or the plants in total, would have weighed in excess of 25 kilograms.

46 Thus, to apply the words in the passage from Crabbe[19] which I have earlier cited, this was not a case in which there was evidence that he "deliberately refrains from making inquiries because he prefers not to have the result, when he wilfully shuts his eyes for fear he may learn the truth". What evidence was there that the applicant deliberately shut his eyes to the weight of the plants? There was none, in my opinion. At best, from the prosecution's point of view, his evidence was that he did estimate the weight of the second crop, but he was mistaken in the estimate he made. What, then, was the "truth" that he did not want to learn? It can not be the threshold weight of 25 Kilograms, because her Honour had expressly put to the jury, as an undisputed fact, that he did not know there was such a threshold.

47 In Crabbe the Court found that the direction given as to wilful blindness "was likely to confuse in the jury's mind the mental state which the respondent was required to have had before he could be found guilty of murder. It amounts to a material misdirection".[20] Whilst there were special considerations which related to the mental element required to be proved in a charge of murder, the observations of the Court as to the potential for confusion can equally apply to the present case.

48 In my opinion, having regard to the evidence in the case there was no sufficient basis for the giving of a direction on wilful blindness. Having been given, it introduced potential confusion on the critical issue of intention. Furthermore, by being introduced into the case at such a late stage, it denied counsel the opportunity to address the issue, squarely, in the evidence of the applicant and also in addresses. In so saying, I accept that there is force in the observation of Mr McArdle that trial counsel for the applicant, who was very experienced in criminal law (but not, so he frankly told her Honour, in cases concerning cultivation of cannabis), neither objected to the direction as to wilful blindness when it was first given, nor claimed that he had been denied the opportunity to properly deal with the issue. Additionally, when the judge had completed her redirection counsel did not then complain that her Honour's summary of the arguments that defence counsel did or might have put to the jury in rejecting wilful blindness, were unfair or inadequate. Furthermore, counsel did not seek a discharge of the jury.

49 Those are all significant factors supporting the contention that there was no miscarriage of justice but, in my view, counsel's response was made in probable recognition that by the time the direction and redirections were given it was far too late to cure the problem created by the introduction, at all, into the case of the concept of wilful blindness.

50 I conclude that the complaint under ground 1(a) has been made out. Given that conclusion it is unnecessary to deal with the remaining grounds of appeal raised in the sub-paragraphs of ground 1.

51 Mr Croucher submitted that were the Court to reach that conclusion it ought not order a re-trial but should quash the conviction and pursuant to s 569(2) of the Crimes Act 1958, substitute a verdict of guilty of cultivation, simpliciter, under s 72B. That offence was admitted by the applicant by way of a plea of guilty at the committal stage and also by his later evidence. Before dealing with that submission it is appropriate to consider ground 2.

Ground 2

52 Mr Croucher submitted that it was not open to a properly instructed jury to be satisfied beyond reasonable doubt that the applicant had intentionally cultivated more than 25 kilograms of cannabis. If that submission is upheld then the conviction should be quashed and a verdict of acquittal on that count should be entered.

53 The short answer to this ground of appeal is that, in my opinion, it was open to the jury to convict. Had the jury not been directed as to wilful blindness their attention would have focussed on the application of the test stated in Nguyen and Bui. Was it open to infer from the circumstances that the applicant intended to cultivate cannabis plants to a weight of greater than 25 kilograms? It is not necessary that the applicant knew that 25 kilograms was the threshold. Nor did the Crown have to prove that he knew the actual weight was in excess of 25 kilograms. If the jury was satisfied that the applicant knew that there was a real or significant chance that the plants weighed in excess of 25 kilograms at the time they were seized, then it might well also conclude beyond reasonable doubt that, both by virtue of that finding and on the evidence generally, the only inference reasonably open was that the applicant intended to cultivate in excess of 25 kilograms of cannabis.

54 Mr Croucher submitted that the evidence was all one way; that the applicant had not intended to cultivate that weight of cannabis plants; indeed, there was positive evidence that insofar as he made any estimate at the time, his belief was, in effect, that the plants would have weighed possibly in the order of 18 to 21 kilograms.

55 Notwithstanding those submissions, in my opinion, it was open to a reasonable jury to have found against the applicant as to those matters. Given the way the judge had directed the jury (without objection from the prosecutor) as to the "admission" of his ignorance about the 25 kilogram threshold, a reasonable jury could not have concluded that he did know the threshold. Nonetheless, and notwithstanding the fact that his absence of prior convictions entitled him to a direction as to the relevance to credibility of his good character, the jury were not obliged to accept his assertion that, by reference to the first crop, he had estimated the weight of the plants in the second crop to have been a weight which must have been less than 25 kilograms. The jury could have been satisfied, therefore, that he intended to cultivate plants as to which he knew there was a real or significant chance they weighed in excess of 25 kilograms. From that conclusion, therefore, it was open to the jury to be satisfied that the only inference reasonably open was that he intended to cultivate that weight of plants, even if he did not know that in so doing he would be cultivating what in law constituted a commercial quantity of the drug.

56 I therefore reject ground 2.

Re-trial, or substituted verdict?

57 That brings me back to the question of the course that should be adopted upon finding ground 1 to be made good.

58 Were a re-trial to be ordered it is very likely that the prosecutor in the re-trial would conduct it quite differently from the approach taken in the first. It is likely that a different approach would be taken to issues which were overlooked in the first trial or the significance of which was not fully explored - in particular, as to why the applicant had any interest at all in the weight of the first crop, and as to whether his denial of awareness of the 25 kilogram threshold ought be accepted. No doubt the looseness of questions concerning the state of mind of the applicant and, in particular, the uncertainty as to the relevant time to which the questions related, would not be repeated. In short, the Crown would have the opportunity to improve its case having regard to issues that arose during the appeal.

59 The Court has a very broad discretion as to factors which will be given weight when deciding whether to exercise its discretion to order a re-trial or to direct a verdict of acquittal. The Court must decide whether the interests of justice require a new trial to be had.[21] The discretion to quash the verdict without ordering a new trial should be exercised with caution, and will arise only in exceptional circumstances.[22] Nonetheless, the ordering of a new trial should not be taken to be a matter of course.[23]

60 There are a number of factors which lead me to conclude that a verdict of acquittal should be entered on the count concerning cultivation in a commercial quantity of a narcotic plant, cannabis. In the first place, the Crown should not be given an opportunity to make a new case upon a re-trial.[24] Secondly, the evidence against the applicant, albeit capable of sustaining a conviction, is not strong. Thirdly, the threshold limit of 25 kilograms was not greatly exceeded, thus giving greater weight to the denial of intention to traffic in a commercial quantity. Fourthly, these proceedings have been somewhat attenuated. The raid occurred in August 2003 and uncertainty as to the law has delayed the case whilst the trial judge awaited authoritative rulings from the Court of Appeal. That delay has been of particular significance because the applicant has known since 2003 that the matrimonial home was subject to a forfeiture order, and he had continued to pay mortgage re-payments, which would be lost, with the home, if he was to be convicted of commercial cultivation.[25]

61 The applicant has from an early stage admitted that he is guilty of the offence of cultivation of a narcotic plant, simpliciter. In my opinion the interest of justice in this case dictate that his conviction on the count of cultivation in a commercial quantity of a narcotic plant, contrary to s 72A of the Drugs Poisons and Controlled Substances Act 1981 ought be quashed and that pursuant to s 569(2) of the Crimes Act he be convicted of the alternative count of cultivation of a narcotic plant, contrary to s 72B.

Sentence

62 The maximum penalty provided under s 72B(a) for cultivating a narcotic plant is imprisonment for 12 months or a fine not exceeding $2000, provided that the court is satisfied on the balance of probabilities that the offence was not committed for any purpose relating to trafficking in the plant. If not so satisfied, par (b) provides that the maximum penalty is 15 years' imprisonment. Cannabis falls within the definition of "drug of dependence" under s 4(1) and by s 70 "traffick" is relevantly defined to include (a) "prepare a drug of dependence for trafficking" and (b) "sell, exchange, agree to sell, offer for sale or have in possession for sale, a drug of dependence."

63 In this case the applicant admitted on oath that he intended to supply the electrician 6 ounces of cannabis, in effect by way of exchange for his work on the electricity board by-pass. He also said that he intended to provide some friends with some of his store of cannabis. The cannabis he intended to produce was to be 1 kilogram of heads, enough for a year's supply for himself. He would have discarded the leaves. The applicant had 18 additional small plants, which suggests to me that he intended to produce another crop, and the extensive equipment also supports that conclusion. I am not persuaded, on the balance of probabilities, that the offence was not committed for any purpose related to trafficking. Accordingly, the maximum sentence applicable is 15 years' imprisonment.

64 On the count of cultivation of a commercial quantity (which carried a maximum of 25 years' imprisonment) her Honour sentenced the applicant to 15 months' imprisonment. On the theft count 6 months' imprisonment was ordered with 3 months to be cumulative. All but three months of the 18 months' sentence was suspended for 3 years. Mr McArdle conceded that in sentencing the applicant her Honour mistakenly declared that he was a serious drug offender, thus imposing the requirements for sentencing under s 6D(a) of the Sentencing Act 1991 that the protection of the community be the principal purpose for which the sentence was imposed.

65 In addition to three days pre sentence detention, declared by her Honour, the applicant spent an additional 29 days in custody, after sentence, until released on bail pending the appeal.

66 The applicant had no prior convictions, was aged 44 years when arrested and had many favourable character references. He pleaded guilty at committal to cultivation simpliciter. The quantity of drug was only just over the threshold limit for commercial cultivation. He was at the time of sentencing, and is now conducting a business as a home handyman. Her Honour held, and I agree, that the applicant's prospects of rehabilitation are very good.

67 The maximum sentence provided for by the legislation reflects that the offence, even if not involving commercial quantities, is regarded by the parliament as very serious, and factors of general deterrence are important. Even so, in all the circumstances there are factors which justify the court not ordering any further term of immediate imprisonment in this case.

68 Although the application for leave to appeal against sentence related to both counts no argument was advanced specifically complaining as to the length of the sentence on count 2. I would confirm the sentence on count 2 but would order that the conviction and sentence on count 1 be quashed and in lieu therefore the applicant be convicted on a count of cultivating a narcotic plant contrary to s 72B. For that offence I propose that the applicant be sentenced to nine months' imprisonment. I would order that three months of the sentence on count 2 be served cumulatively with the sentence on count 1, thus producing a total effective sentence

of 12 months' imprisonment. I would order that the whole of that sentence be suspended for a period of 12 months.

69 I would confirm the orders made by her Honour under s 78(1) of the Confiscation Act 1997 relating to the hydroponic and other equipment seized by police and the forensic sample order under s 464ZF(2) of the Crimes Act.

70 I have had the advantage of reading the draft judgment of Eames JA. For the reasons given by his Honour, I agree that the complaint under Ground 1(a) of the grounds of the appeal, to the effect that the learned trial judge erred in introducing the concept of wilful blindness into her charge to the jury, is made out and furthermore that it was a material misdirection.

71 In relation to Ground 2, I respectfully agree with Eames JA that it was open to the jury to conclude that the only reasonable inference open to them was that the applicant intended to cultivate marijuana plants with the knowledge that there was a real or significant chance that the weight thereof exceeded 25 kilograms. However, I also respectfully agree that in all the circumstances referred to by Eames JA, it is not in the interests of justice to order a retrial, and that a verdict of acquittal should be entered on the count concerning cultivation of a commercial quantity of cannabis. Pursuant to s 569(2) of the Crimes Act the applicant should be convicted of the alternative count of cultivation of a narcotic plant contrary to s 72B of the Drugs Poisons and Controlled Substances Act 1981. I respectfully agree with the sentence proposed by his Honour and with the other orders as proposed by him.

[1] Schedule 11, Part 2. Drugs, Poisons and Controlled Substances Act 1981.

[2] [2005] VSCA 172; (2005) 12 VR 299

[3] R v Garlick [2006] VSCA 127

[4] [2005] VSCA 300

[5] Bui at [25]

[6] At [26]. Nettle JA agreed in this conclusion at [64].

[7] At [64]-[65].

[8] Her Honour frequently referred to "the quantity of plants" in the course of her directions which, with respect, had the capacity to create some confusion, when the issue was the "weight" of the plants, not the quantity of plants.

[9] Nguyen, at 305 [13]

[10] [1987] HCA 14; (1987) 70 ALR 667 at 668; [1987] HCA 14; (1987) 61 ALJR 243 at 244.

[11] (1988) 82 ALR 217; (1988) 63 ALJR 1.

[12] Nguyen, at 305 [14]

[13] Pereira, at ALR 219, ALJR 3.

[14] [1985] HCA 22; (1985) 156 CLR 464, at 470-471.

[15] [1987] HCA 16; (1987) 162 CLR 502

[16] At 505

[17] At 511-512

[18] [1985] HCA 43; (1985) 157 CLR 523

[19] [1985] HCA 22; (1985) 156 CLR 464 at 470.

[20] At 471

[21] Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627, at 630; R v Nicoletti [2006] VSCA 175; (2006) 164 A Crim R 81 at 92 [53], per Maxwell, P.

[22] R v ALH [2003] VSCA 129; (2003) 6 VR 276, at 280, per Callaway JA.

[23] R v Bartlett [1996] VICSC 47; [1996] 2 VR 687, at 699, per Winneke P.

[24] Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494, at 519-520, per Dawson, Toohey and McHugh JJ; King v The Queen [1986] HCA 59; (1986) 161 CLR 423, at 433, per Dawson J.

[25] See DPP v Phan Thi Le [2007] VSCA 18, at [50]-[53].