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.