R v Page [2008] VSCA 54

2 The sole issue for determination by the jury on the first count was whether the Crown had proved beyond reasonable doubt that the applicant had the requisite state of mind, that is, whether he intended to cultivate a commercial quantity of cannabis. For this purpose, it was necessary for the Crown to prove beyond reasonable doubt that the applicant knew or believed that what he was growing was, or was likely to be, not less than a commercial quantity of cannabis (25 kilograms).[2] The trial judge correctly identified the issue for the jury in these terms.

3 The sole ground of appeal contends that the judge erred when he subsequently directed the jury that**

as a matter of law ... proof beyond reasonable doubt that the accused man believed that there was a significant or real chance that he was cultivating a quantity of cannabis in excess of 25 kilograms would satisfy the onus borne by the Crown.

(Although the applicant appeared on his own behalf on the hearing of the application, he relied on an outline of submissions prepared on his behalf by senior counsel.)

4 For reasons which follow, I consider that the application for leave to appeal against the conviction should be refused. In short, when the impugned direction is understood in the context of the jury charge as a whole, there was no misdirection.

**5 In Nguyen, this Court (Vincent, Eames and Nettle JJA) dealt at length with the question of proof of the mental element in a case where the accused was charged of trafficking in not less than a large commercial quantity of a drug of dependence.[3] It is accepted that what the Court said there applies equally to quantity-based offences of cultivation.[4]

6 The joint judgment in Nguyen laid down the following propositions:

1. Absent relevant admissions, the question of intention must ordinarily be determined by the jury as a matter of inference from proof that the accused did the physical act of trafficking/cultivation which is alleged and proof of the circumstances in which it was done.

2. It is a question of fact to be decided by the jury as part of that process whether the circumstances are sufficient to establish the requisite knowledge or belief.

3. The judge should identify for the jury any evidence of facts and circumstances capable of sustaining the inference.

4. Ordinarily, but subject always to the facts of the case, the judge may direct the jury that proof beyond reasonable doubt that the accused believed that there was a significant or real chance that the trafficking/cultivation involved not less than the specified quantity of the drug is capable of sustaining the inference.

5. The jury must be instructed that it is in the end a matter for them whether the inference is properly to be drawn and that an inference is not to be drawn unless they are satisfied that it is the only inference reasonably open.

6. Accordingly, it is not appropriate to instruct a jury that they may convict 'simply because the Crown establishes knowledge of a significant or real chance.'[5]

7 Subsequently, in The Queen v Callaghan,[6] Nettle JA (who was a member of the Court in Nguyen) said:**

... [T]here are likely to be a number of cases in which, if the jury are satisfied beyond reasonable doubt that an accused knew or believed that there was a serious or real chance that the quantity under cultivation was not less than a commercial quantity, the jury could not but infer that the accused intended to cultivate not less than a commercial quantity ... But, as has now been made plain more than once in the past two years, the question of whether such an inference is to be drawn is in the end a matter for the jury. If trial judges fail to make that clear, there will be a risk of mistrials.[7]

8 Recently, in The Queen v Reed, the court had to deal with a ground of appeal very similar to that under consideration here.[8] The direction given in that case (which concerned the same count as the present) was in these terms:

... [T]he issue for you to determine, is has the prosecution established beyond reasonable doubt that the accused believed or was aware that there was a significant or real chance that the amount of cannabis was not less than a commercial quantity, that is not less than 25 kilograms in weight.[9]

The Crown conceded error (on that ground and one other). The court (Vincent, Neave and Redlich JJA) said:

Whilst a finding that an accused believed or was aware that there was a significant chance that the crop that he was cultivating would or might exceed the relevant commercial quantity would assume importance in determining whether the individual possessed the requisite intention, it is the ultimate inference of intention to cultivate at least the threshold quantity that must be drawn before a jury can return a verdict of guilty.[10]

9 The trial judge made clear repeatedly during his charge to the jury that the Crown case was based on inference, and that this was a matter for the jury. Thus at the outset his Honour said:

What this case is all about is the drawing of inferences ... [Y]our verdicts must be based on the evidence. But you are entitled to subject the evidence to proper process of reasoning and come to conclusions based upon such process of reasoning ... [Y]ou are entitled to and indeed the Crown asks you to draw an inference. I will come to define the elements, what it is the Crown have to prove beyond reasonable doubt to convict the accused man in a few moments, but one of those elements involves necessarily you drawing an inference. The Crown have got to prove the mental state, the state of mind of [the applicant] at the time he cultivated these marijuana plants. Absent an admission, unless he were to have made some admission, which he has not, as to his state of mind, how do you prove somebody's state of mind? How do you prove somebody's intention? You cannot unscrew their head and have a look. The only way you can do that, the only way the Crown can prove a state of mind is to invite you to draw an inference from certain established facts, and in this case the Crown invites you to infer, draw the inference, that [the applicant] intended to cultivate a commercial quantity of cannabis from a number of different factors which I will mention later.[11]

**10 His Honour then told the jury that they must not draw any inference adverse to the applicant unless they were satisfied beyond reasonable doubt of the existence of the facts relied on, and unless the inference drawn from those established facts was the only reasonable inference open on the facts. He repeated: 'That is ultimately what this case is all about ...'[12]

11 Dealing with the critical question of the applicant's state of mind, his Honour said:**

What he says is, "I didn't intend to grow a commercial quantity". The Crown invites you to infer that he did and they invite you to infer that he did by being satisfied beyond reasonable doubt of a number of matters. That is why I have spent the time on inferences, because that is what this case is about. An inference obviously needs to be contrasted with speculation or conjecture. An inference is a conclusion logically drawn from established facts in the way I have defined it to you.[13]

12 The impugned direction can now be viewed in context. It was given in the course of the following part of the charge:

Now, as I said to you before, in the absence of any admission made by the accused man that question of intention will be determined by you, the jury, as a matter of inference from the established facts as you find them, and in this case you have to be satisfied beyond reasonable doubt of his state of mind at the time he cultivated these plants. It is a question of fact for you, the jury, to determine in all the circumstances the requisite knowledge or belief - and I remind you that you have to be satisfied beyond reasonable doubt of that fact. In a moment I will identify the facts and circumstances which the Crown say go to justify the drawing of the inference - whether or not they do is a matter for you, not me, I am just isolating the evidence that the Crown says goes to support the contention it brings.

I direct you as a matter of law that proof beyond reasonable doubt that the accused man believed that there was a significant or real chance that he was cultivating a quantity of cannabis in excess of 25 kilograms would satisfy the onus borne by the Crown. In the end it is a matter for you to be satisfied beyond reasonable doubt from all the facts that the intention of the accused was to cultivate a quantity greater than 25 kilograms, and I remind you of what I said about inferences, you must not draw that inference if there is any other reasonable inference open - you will recall the directions I gave you about drawing inferences.[14]

13 When his Honour asked counsel whether there were any exceptions to the charge, defence counsel drew attention to the use of the phrase 'significant or real chance'. The trial judge responded by saying that he would read out the relevant portion of what he had said to the jury. The portion then read was in these terms:

I direct you that proof beyond reasonable doubt that the accused believed that there was a significant or real chance that the subject of the cultivation was not less than 25 kilograms is capable of sustaining the case in the way it is put against him.[15]

Defence counsel responded by indicating that no exception was taken. His Honour said 'and I did read that from that paragraph'. The applicant's submission correctly notes that, although in this version the words 'is capable of sustaining the case' were used, they were not - according to the trial transcript - used when the judge was addressing the jury.

14 The submission for the applicant was that his Honour erred in directing the jury that proof of the applicant's belief that there was 'a significant or real chance' that he was cultivating more than 25 kilograms would satisfy the Crown's onus. It was pointed out that in Nguyen the Court of Appeal was careful to say that the direction to the jury should state that proof of belief in 'a significant or real chance' was capable of sustaining the inference of the requisite state of mind. The written outline contended that the judge had

provided to the jury a "shortcut" to proof. When regard is had to the manner in which the impugned direction was expressed by the learned trial judge, there is a substantial risk that the impugned direction supplanted, overrode or overtook the other directions given by the learned trial judge to the jury such that the jury simply and merely applied the impugned direction in determining to resolve the one issue on count 1 in a manner adverse to the applicant ...

**15 The submission for the Crown was that the impugned passage needed to be seen in the context of the whole of the charge, in which the judge properly directed the jury as to the drawing of inferences and related those directions to the issue to be determined by the jury. It was submitted that the effect of all of the directions regarding proof of intent was that the jury were properly instructed in accordance with the law.

16 In my opinion, the Crown submission must be accepted. Axiomatically, the charge to the jury must be read as a whole. Unlike the appellate court, the jury is not reading the charge but hearing it. What matters, therefore, is the overall effect which the charge had on the jury, as best an appellate court can assess it. There is an obvious artificiality in isolating one sentence from a full and detailed charge. Although there may be cases in which a single sentence could be viewed as having 'supplanted, overridden or overtaken' other explanatory or qualifying statements elsewhere in the charge, this was certainly not such a case. As appears from the final extract from the charge set out in [12] above, the impugned sentence was immediately preceded, and followed, by express references by the judge to the jury's task of drawing inferences and by a reference back to the full explanation of inferences given earlier in the charge.**

**17 This case is clearly distinguishable from Reed. In that case the judge had identified as the issue for the jury to determine whether belief in a 'significant or real chance' had been established beyond reasonable doubt. In the present case, by contrast, the trial judge correctly identified the issue as being whether the Crown had proved an intention to cultivate a commercial quantity. His Honour spelt out unambiguously for the jury that the question of the applicant's intention had to be dealt with as a matter of inference, and that the drawing of the inference was a matter for them alone. That is exactly what Nguyen - and Reed - required. Consistently with what Nettle JA said in Callaghan, therefore, there was no risk of mistrial.

18 This case is, nevertheless, a salutary reminder of the importance of following as nearly as possible the precise language used by the Court in Nguyen. In particular, care must be taken to ensure that the phrase 'is capable of sustaining the inference' is used whenever reference is made in this context to proof of belief in 'a significant or real chance ...'

19 I would dismiss the application for leave to appeal against conviction for the reasons stated by the President.

20 For the reasons stated by the President, I would also dismiss the application for leave to appeal against conviction.**

[1] Contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981.

[2] DPP Reference No 1 of 2004; R v Nguyen [2005] VSCA 172; (2005) 12 VR 299 ('Nguyen'), 312-3 [37]; R v Van Xuan Bui [2005] VSCA 300 ('Bui'), [26] (Eames JA).

[3] [2005] VSCA 172; (2005) 12 VR 299.

[4] R v Van Xuan Bui [2005] VSCA 300, [26] (Eames JA).

[5] [2005] VSCA 172; (2005) 12 VR 299, [15], [21]-[23], [37]; see also Bui [2005] VSCA 300, [24]-[25] (Eames JA).

[6] [2007] VSCA 135 ('Callaghan').

[8] [2008] VSCA 20 ('Reed').

[14] T 120 (The highlighted passage is the subject of the ground of appeal).