(e) At about 4.00pm on 6 April 2006, before the search, two Federal agents who were in the area encountered the respondent walking from the vicinity of the property. The agents were disguised as army officers and pretended to be involved in an exercise in the area. The respondent had a conversation with one of them, Federal agent (FA) Swanson, in which he said that he was renting the property and lived there alone.
(f) On a coffee table in the living room police found a handwritten note addressed to "Kaneo". The note read:
"I am going to ask you for a lift in a minute, to Mel's place, say 'YES'. Will need to talk right NOW - But not in the car, down the road ."
"Mel", apparently, was a female friend of the respondent. It is the Crown case that "Kaneo" was Kane Holland, that the respondent suspected that the two men who appeared to be army officers were police investigating activities at the property, that he was expecting Holland to arrive at the property that evening, and that he feared that the house and Holland's vehicle might be bugged. Accordingly, he wrote the note with a view to drawing it to Holland's attention and speaking to him down the road and out of the house, so as to alert him to the possibility that police had detected the amphetamine production. In fact, at about 6.30pm Holland drove his vehicle into the access road leading to the property, but drove away when he saw police officers and vehicles in the vicinity. He was pursued by police and arrested.
(g) On the floor of the main bedroom police found a semi-automatic pistol, together with a loaded magazine and a box of ammunition. There were also found in that bedroom documents bearing false names used by Holland and a plastic container of amphetamine bearing his fingerprint, from which it appears that Holland occupied that bedroom, at least from time to time.
(h) At the time of the search of the property, the respondent was confronted by several police officers, made to lie on the ground, was handcuffed and was searched by FA Green. Green asked him whether there was anyone else in the house, and he said that there was not. Green asked whether there were any weapons in the house, to which he replied, "Yes, there's a pistol in the bedroom."
(i) There were three bedrooms in the house. Apart from the main bedroom, there was a second bedroom which may have been used by the respondent. A third bedroom had been converted into a sophisticated hydroponics set up, apparently for growing marijuana. Two hydroponic light bulbs in the room contained Kane Holland's fingerprints. In the large shed was found a pot containing over one kilogram of marijuana.
5 It is the evidence of the last two matters, that is, the respondent's admission that he knew there was a gun in the house and the hydroponic set up in the third bedroom, which his Honour rejected. To enliven this Court's jurisdiction to entertain an appeal by the Crown against those rulings, they must be such as to eliminate or substantially weaken the prosecution case: s 5F(3A) of the Criminal Appeal Act. I am satisfied that they would substantially weaken the Crown case, and I shall return to that matter after considering the merits of the appeal.
6 The respondent had objected to the admission of the "Kaneo" note, but his Honour allowed it. However, the Crown had submitted that one of the inferences that might be drawn on the basis of the note, together with the evidence of Holland approaching the property in his vehicle on the evening in question, was that he intended to spend the night at the property and complete the amphetamine "cook". His Honour expressed the view that that inference was too remote.
7 This was also the subject of a ground of the appeal. The Crown prosecutor before us explained that the ground had been put on for more abundant caution. However, it does not appear to me that his Honour's observation could be the subject of an appeal under s 5F, which is concerned with interlocutory judgments or orders, and at the hearing the Crown prosecutor did not press this ground. Whether it was appropriate for his Honour to make such an observation in the course of a pre-trial evidentiary ruling, and what status it might have in the course of the trial, are not matters which need be considered.
8 It is important to understand the purpose for which the Crown relies upon evidence of the respondent's knowledge of the presence of the gun in the house, and the hydroponic set up in the bedroom. There is evidence that the respondent occupied the house as Holland's tenant. The inference is available that he knew that a large-scale drug making enterprise was being conducted on the property. However, that knowledge would not be sufficient to establish his complicity in the enterprise. As I have said, the Crown case is that his role was to be present at the property and to secure it during the production of the amphetamine.
9 It is necessary, then, for the Crown to prove that the respondent was not simply a person legitimately occupying the house by virtue of a tenancy, who may have turned a blind eye to criminal activity being conducted on the property. The Crown does not suggest that the gun found in the main bedroom belonged to the respondent or was in his possession. Nor does the Crown suggest that the respondent was involved in any way in the hydroponic cultivation of marijuana. Indeed, there is no evidence that the hydroponic set up was being used at the time of the search. However, the Crown says that he must have been aware of the hydroponic set up and the evidence of FA Green conveys that he was aware of the presence of the pistol in the house. This evidence, it is said, tends to establish that the association between Holland and the respondent at the relevant time was not the normal relationship of landlord and tenant.