R v Van Xuan Bui [2005] VSCA 300

1 I have had the advantage of reading in draft the reasons for judgment prepared by Eames and Nettle, JJ.A. I agree, for the reasons which they have given, that the application for leave to appeal against conviction should be refused.

2 The applicant was convicted upon verdicts of a County Court jury on one count of cultivating a narcotic plant, namely cannabis L, in a quantity not less than a commercial quantity, and on one count of stealing a quantity of electricity. On 25 May 2005 he was sentenced to a total effective sentence of four years and three months' imprisonment and a non-parole period of two years was fixed. He does not apply for leave to appeal against sentence, but now makes application for leave to appeal against conviction on two grounds, as follows:

"1. The learned trial judge erred in his directions to the jury concerning the mental element of the offence the subject of Count 1 on the Presentment (an offence contrary to s.72A of the Drugs, Poisons & Controlled Substances Act, 1981 (Vic.) (as amended)).

2. The learned trial judge erred in his directions to the jury in that he failed to direct the jury that one of the elements of the offence the subject of Count 1 on the Presentment (an offence contrary to s.72A of the Drugs, Poisons & Controlled Substances Act, 1981 (Vic.) (as amended)), to be proven beyond reasonable doubt by the Crown, was that the accused had actual knowledge of the quantity of cannabis L which he was alleged to have cultivated, that is, that he knew that there were 100 or more plants being cultivated by him."

3 At 8.20 a.m. on 9 April 2003 police executed a search warrant on a house at 2 Ralph Street, Ardeer. The applicant was present when the police arrived and so too was another man, Lap Chau Hoang. Police found a cannabis hydroponic growing system in a front bedroom of the premises, identified in the trial as bedroom No. 2. A second hydroponic growing system was found in the garage.

4 In bedroom No. 2 police located 31 large cannabis plants together with a

range of sophisticated equipment including seven electrical transformers. The garage was divided internally into three partitioned spaces. In the middle partitioned section of the garage police found 35 mature cannabis plants and in the rear partitioned section they found 22 mature cannabis plants, together with 70 small cannabis seedlings in pots.

5 In bedroom No. 2 police developed a latent fingerprint which was found on one of seven electrical transformers. In the middle partitioned section of the garage police located a latent fingerprint on one of seven electrical transformers and in the rear partitioned section of the garage they located four latent fingerprints on one of the three electrical transformers therein. The fingerprints in all instances were those of the applicant.

6 When police attended the house the hydroponic systems were in operation and a humming noise could be heard emanating from bedroom No. 2. There were holes cut in the walls, powerlines and cables throughout the house, and a false wall and power boards were in each of the rooms where cannabis was being grown.

7 In all, a total of 158 plans were found at the premises. The 88 large cannabis plants weighed 40.15 kgs and the 70 small plants were also identified as being cannabis L. A commercial quantity of cannabis L. is 25 kilograms or 100 plants[1].

8 In searching the premises police discovered an unauthorised splice into the un-metered section of the consumer main supply in the roof space, between the fused overhead connector box and the meter enclosure.

9 The applicant told police that he was at the premises because he was going to pick up his wife that morning, she being due to arrive at the airport. He said he had no knowledge of what was going on at the premises. The house was owned by his wife, Kim Bui, but the applicant told police that he was living in Mark Street, Ardeer, and that was subsequently verified. His house in Mark Street was less than one kilometre from 2 Ralph Street.

10 The applicant told police that he had been separated from his wife for about two years. He had no key to the premises when searched by police. The applicant said that his wife and their two children had gone to Vietnam on 13 March 2003 and were due back on the morning of 9 April 2003, the day of the police raid. It was in fact the case that the applicant's wife flew into Melbourne Airport that day. The applicant told police that the other man who had been on the premises, Lap Chau Hoang, had been staying at 2 Ralph Street, Ardeer whilst the applicant's wife and two children were in Vietnam. The applicant said that he went to 2 Ralph Street on the evening of 8 April and slept on the couch in the lounge room over-night. He had borrowed a Tarago vehicle in order to collect his family and their luggage. That vehicle was at the premises when police arrived. The applicant said that the last time he had been at the premises was about two or three weeks previously but in his later evidence he said that occasion was when he had taken his wife and children to the airport for their trip to Vietnam.

11 In answer to police questions the applicant said that he did not know that cannabis was planted in the house. He said he only learned that by virtue of the raid and added "I only know it today, when you searched the house. I didn't know it before". He said that Hoang had not told him about that. He said he had no knowledge about the drugs in the house. He was asked whether he had gone into the bedroom or the garage where the drugs were found and he denied doing so. He denied ever touching the plants or pots or lights. He denied having any reason to do so. He was asked "So you claim to have no knowledge whatsoever?", to which he replied, "That's right".

12 The applicant was not charged by police until four months after the raid on the premises. At no time was he questioned about the fingerprints on the transformers which were later found to be his. In answer to a question from defence counsel, the informant agreed that Hoang had said that he, Hoang, had been staying at the house while the applicant's wife, Kim Bui, was away.

13 A rather different account to that provided by him to police on the day of the raid was given by the applicant when he gave evidence in the trial. The initial denials of having entered the rooms where the drugs were being grown and of touching any of the equipment therein were not repeated in evidence and the Crown relied on his answers to police as constituting lies told in consciousness of guilt.

14 At the trial the applicant's wife gave evidence on the defence case, and was called as a witness before the applicant. She confirmed her trip to Vietnam and her return on 9 April 2003. She had originally intended not to return until about 15th or 17th of April, but decided to return early. She said that about two or three days before she left for Vietnam Hoang had asked her if he could stay in the garage while she was away. She agreed to that and gave him the keys. On 8 April 2003 she left a message for her husband to pick her up at the airport.

15 In cross-examination Mrs Bui said that bedroom No. 2 was her own bedroom and that the applicant knew that was so and he never entered her bedroom. She said on 8 April when she rang her husband she was concerned that the house would be untidy when she returned so she asked her husband to clean the refrigerator and to clean the house prior to their arrival. The applicant agreed that he would do that. When she spoke to the applicant it was about 6 or 7 p.m., after he had had dinner. She denied knowledge of cannabis being grown in the house in her absence.

16 The applicant gave evidence confirming a telephone call from his wife whilst he was having dinner on 8 April 2003. He was at his Mark Street residence. His wife asked him to clean the refrigerator and to tidy up the mess, if there was any. He agreed to do so. He borrowed a Tarago vehicle and went to the premises, whereupon Hoang opened the back door to him. The applicant said he then went inside, cleaned the refrigerator and tidied up the house. Whilst in the house he heard a noise coming from the back of the house and saw plants, but did not know what they were. He had a look inside the garage and saw some white boxes. He was curious about what he saw and touched a few things. He said it was very untidy there.

17 In evidence-in-chief he said that after looking inside the garage he returned to the house but did not look anywhere else and did not go into any bedrooms, because the doors were closed. He cleaned the refrigerator then he went to sleep. He decided to sleep at the house after he saw the garage was in a mess. He asked Hoang what the plants were and was told they were grown for people to smoke, like cigarettes.

18 His cross-examination commenced towards the end of the day and he again stated that he did not go into any bedroom and that after he had inspected the garage he returned to the lounge room, at which time he cleaned the refrigerator. He then went to sleep.

19 Cross-examination continued the following day, whereupon the applicant changed his evidence and said he had in fact gone into bedroom No. 2. He agreed that that was inconsistent with his earlier evidence. In the new version of events he said he had gone into bedroom No.2 because he saw a light on in there and he had then seen plants in that bedroom. He said that he had given different evidence in his evidence-in-chief because he was confused at the time, and also distressed. He had forgotten that he had gone into that bedroom. He said he had thought about that question overnight. He agreed that when questioned during the record of interview he had said that he knew nothing about the cannabis cultivation and had denied that he had touched any pots or lights. He agreed that he had also said that he had no knowledge whatsoever of there being plants in the house. By that he meant that he had no knowledge of those matters prior to that occasion. He agreed that he touched one of the transformers in the garage and also in bedroom No. 2. When he had touched the transformers they were warm, not hot.

20 The applicant said that he had not had any further conversation with Hoang about the crop growing in the house because he wanted to wait until his wife returned so that she could talk to Hoang. The applicant said he did not know that the plants were cannabis plants. The first time he realised they were cannabis was when the police arrested him. He said he thought it was unusual that the plants were being grown inside the house and it was for that reason that he decided to stay overnight in the house. The applicant denied being involved in cultivation of the cannabis found in the house and denied being involved in stealing the electricity.

21 In DPP Reference No.1. of 2004; R. v. Thang Duc Nguyen[2] the Court, comprising Vincent, J.A., Nettle, J.A. and myself, considered a case in which the appellant had been charged on alternative counts of trafficking in a large commercial quantity and trafficking in a commercial quantity of a drug of dependence, pursuant to, respectively, s.71 and s.71AA of the Drugs, Poisons and Controlled Substances Act 1981. One issue was whether the Crown was obliged to prove that the applicant had actual knowledge of the quantity of the drug of dependence in which he was alleged to have trafficked or whether it was sufficient for the Crown to prove that he had knowledge that there was a significant or real chance that the quantity was a commercial quantity. A related question arose as to whether in order to prove the commission of an offence under, respectively, s.71 or 71AA the Crown must establish beyond reasonable doubt that the accused intended to traffic in a quantity that is not less than a large commercial quantity or, alternatively, a commercial quantity of the drug.

22 The Court held[3] that the sections prohibited trafficking in specified substances in particular quantities, and concluded[4]:

"In short, offences of the kind created by sections 71 and 71AA are defined by quantity. It is therefore implicit in the offences created by section 71 and 71AA that the accused must be shown to have had the intent to traffic 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."

23 The questions whether there was the requisite knowledge as to commercial quantity and intention to traffic in a commercial quantity of the drug of dependence may be answered by the drawing of an inference from what the accused had actually done[5]. The Court held in Nguyen[6], when referring to s.71 and 71AA offences:

"Whilst section 71 and 71AA require proof of an intention to commit the physical act of trafficking which is charged, and knowledge of the nature and quantity of the substance the subject of trafficking, belief falling short of actual knowledge of the facts should be capable of sustaining an inference of intention; as too should proof that the act in question is done in circumstances which make it appear beyond reasonable doubt that the accused is aware of the likelihood of the facts (in the sense of being aware that there was a significant or real chance that his conduct involved trafficking in a prohibited drug). In each case, however, assuming an absence of relevant admissions, the existence of the requisite intention would be a question of fact to be decided by a jury as a matter of inference on the basis of all the facts and circumstances."

24 As the Court held in Nguyen, there will be many cases where proof that the accused knew or was aware that there was a significant or real chance that the quantity of drugs involved was not less than a commercial quantity would be sufficient to support an inference of the requisite intention to traffic in a commercial quantity, but that does not necessarily follow, and nor should the jury be instructed, that they would be entitled to convict of trafficking in a commercial quantity simply because the Crown established knowledge of a significant or real chance that a commercial quantity would be trafficked. The correct approach for the jury was stated in the following passage from the judgment in Nguyen[7]:

"It follows in our opinion that while the trial judge should direct the jury as to any evidence capable of sustaining an inference of intention for the purposes of section 71 and 71AA and, depending on the facts of the case, that the judge might also direct the jury that proof that the accused believed or was aware that there was a significant or real chance that his conduct involved trafficking in a prohibited drug in a specified quantity would be something which is capable of sustaining an inference of intention, the judge should at the same time make plain to the jury that it is a matter for them as to whether the evidence leads them to draw that inference and that they should not draw the inference unless satisfied that it is the only inference reasonably open."

25 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[8]. 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[9]. 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[10].

26 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.

27 Although this trial was conducted before the decision in Nguyen was delivered the prosecutor drew to the attention of the judge before the trial commenced the fact that the Director of Public Prosecutions had referred to the Court of Appeal the question which was raised in that case. There followed a lengthy discussion between the judge and counsel as to the element of the offence concerned with the intention of the accused in cultivating a commercial quantity of the drug.

28 The prosecutor advised that in the event that his Honour ruled that in addition to proving that more than 100 plants had in fact been cultivated and that the applicant intended to cultivate cannabis the Crown was obliged to prove intention to cultivate a commercial quantity, then he would apply to adjourn the trial to await the decision of the Court of Appeal in Nguyen. He advised that that course had been taken by another judge of the County Court where the same question arose.

29 Having heard the submissions of counsel the judge said:

"I propose to direct that there's a higher burden on the - must be satisfied that the accused knew that he had in excess of the commercial quantity and from that an inference can be drawn that he intended to cultivate that quantity or have possession. If that is too high a standard, if the accused is convicted there are no difficulties. If he's acquitted you can take the point of law but it seems to already have been taken to the Court of Appeal".[11]

30 His Honour then made a formal ruling[12]:

"I shall direct that there is an onus on the prosecution to establish that the accused knew in relation to the plants allegedly being cultivated at these premises, he knew that there were 100 or more plants being cultivated.

The history his counsel has indicated is in this trial a somewhat technical issue. It is really an issue which the jury will be invited to determine as a matter of inference from the evidence as to what was actually found on the premises. In that situation I reject the application to adjourn this trial."

31 The language of the second paragraph of that ruling suggests a transcription error. It is probable that his Honour meant that given the ground on which the case would be fought - the total denial of any involvement in the cultivation - the question of intention to cultivate more than 100 plants was a merely technical issue. In other words, his Honour was of the view that if the applicant's total denial of involvement in the crop was rejected then the jury would draw the inference that he intended to cultivate more than 100 plants.

32 Having made that ruling his Honour then failed to give the direction and neither counsel reminded him to do so or took exception to the omission of the direction.

Was a direction required?

33 Mr McArdle did not dispute that the principle discussed in Nguyen would have equal application for a cultivation offence under s.72A as it would to a trafficking offence under s.71 and 71AA of the Act, were it the case that the question of intention to cultivate in a particular quantity of the drug was in issue. That concession is properly made. Indeed, the language of s.72 and 72AA which deal, in turn, with cultivation of a large commercial quantity and of a commercial quantity of a drug of dependence almost precisely mirrored the language of s.71 and 71AA as to trafficking in a large commercial quantity and a commercial quantity of a drug of dependence.

34 Mr McArdle submitted, however, that the principle stated in Nguyen had no application, because there was no issue in this case as to whether the applicant had an intention to cultivate more than 100 plants. The case was conducted on the basis that there was no dispute that 158 plants had been cultivated and that if the applicant cultivated the cannabis then he must have known that the quantity of plants was more than 100, or at least knew that there was a significant or real chance that the number of plants exceeded 100, thus inevitably leading to satisfaction beyond reasonable doubt that he intended to cultivate a commercial quantity of the drug.

35 The only issue in the case was whether the applicant was one of those who cultivated the crop, Mr McArdle submitted. In those circumstances, so it followed, the judge was not required to give a direction or directions in terms of Nguyen[13].

36 Mr Holdenson submitted that knowledge of and intention to cultivate a commercial quantity were essential elements of the offence and no concession had been made by the defence on those issues. Although 158 plants had been discovered on the day of the raid 70 of those were small seedlings located in the rear section of the garage and there was no evidence that the applicant had seen them, touched them or had anything to do with them. There was no evidence of the applicant having been on the premises at any time during his wife's absence save for the evening before the raid.

37 The case against the applicant was put on the basis that he was acting in concert with Hoang. Thus, Mr Holdenson submitted, had the jury received an appropriate direction they might not have been satisfied beyond reasonable doubt that the applicant knew there were more than 100 plants, intended to cultivate more than 100 plants, i.e., a commercial quantity of the drug, or, more to the point, knew that Hoang intended to cultivate more than 100 plants. The possibility of those becoming live issues was acknowledged by the prosecutor when addressing the judge. The prosecutor said that if the defence contention was accepted by the Court of Appeal in Nguyen that would mean that it was not sufficient for the Crown to prove that the accused was acting in concert and knew he was cultivating cannabis: the Crown had to prove that he knew that more than 100 plants were being cultivated, and that he intended to cultivate that quantity. The prosecutor said that the defence might contend that the accused knew and intended only that a small cultivation occur, less than 100 plants, therefore it was critical to know if the Crown had to prove intention to cultivate more than 100 plants.

38 Defence counsel contended, in reply, that unless the Crown had to prove intention to cultivate a commercial quantity then it amounted to "strict liability": the accused would be guilty even if he had intended only a crop of 10 plants to be cultivated, so long as more than 100 were in fact cultivated. Counsel did not then state, however, whether that that would be the way in which the defence would be conducted.

39 The prosecutor told his Honour that the Crown put the case against the applicant on the basis of him acting in concert with Hoang[14]. That meant that the Crown sought to prove (relying upon the jury drawing the appropriate inference from the facts) that Hoang and the applicant had reached an understanding or arrangement that one or other or both of them would commit the crime with which they were charged, and did so[15]. The jury had to be told that they must be satisfied that not only was the specific offence committed - i.e. the cultivation of a commercial quantity of the drug - but that it fell within the scope of the understanding or arrangement that the applicant had with Hoang[16].

40 Although the prosecutor had said to the judge at the outset of the trial that the case against the applicant was based on acting in concert with Hoang, and despite the fact that it was repeated when the discussion with the judge occurred about the DPP reference in Nguyen's case, no direction, at all, was given as to what constitutes acting in concert. Furthermore, no exception was taken to that omission and there is no ground of appeal complaining about the absence of a direction concerning concert. Those omissions point strongly to the conclusion that the issues on which the parties chose to join battle were more confined than now suggested.

41 His Honour, when dealing with the elements of the offence directed the jury as follows[17]:

"Firstly, that the accused cultivated the plant. Cultivate is defined in relation to narcotic plants as including the sowing of a seed of a narcotic plant, or to plant, grow, tend, nurture or harvest a narcotic plant. Any person involved in any of those activities or other associated activities cultivates a narcotic plant. Secondly, that the plant was a narcotic plant. Evidence is not challenged that there were 158 Cannabis L plants at number 2 Ralph Street, and such plants are defined by law to be narcotic plants.

Thirdly, that the quantity cultivated was not less than a commercial quantity. A commercial quantity is defined to be 100 or more Cannabis L plants. As I have already said, the evidence is that at the 2 Ralph Street premises there were 158 such plants, and that evidence has been admitted. It is an admitted fact before you.

If you draw the inference that the accused cultivated the plants, or some of them at Ralph Street, I suggest that you can, if you so choose, and it's a matter for you, I suggest that you could then infer that he cultivated the 158 plants that were there, but that of course is a matter entirely for you to decide to determine whether or not he did so cultivate the more than 100 plants so as to cultivate a commercial quantity.

It is for you to determine, again as a matter of inference, as to whether or not you are satisfied beyond reasonable doubt that the accused did cultivate cannabis plants at Ralph Street, and if you are satisfied beyond reasonable doubt that he did so, and if there are more than 100 plants there, then you can properly find him guilty with respect to Count 1."

42 The phrase "or some of them" in the third paragraph in that extract was seized upon by Mr Holdenson. The jury, he submitted, had not been warned that they had to exclude the reasonable possibility that if he had himself only cultivated or been aware of the cultivation of some of the plants then he might not have been acting in concert in the intended cultivation of more than 100 plants.

43 Furthermore, Mr Holdenson submitted, in the final paragraph of the extract the judge actually removed the requirement of proof that the applicant had the intention to cultivate a commercial quantity, by directing the jury that if they were satisfied that there were in fact more than 100 plants then they need only be satisfied that he "did cultivate cannabis plants" at the house.

44 As I have said, Mr McArdle contended that the intention to cultivate a commercial quantity of cannabis plants was not an issue in the trial and thus did not have to be the subject of a direction. In Alford v. Magee the High Court adopted the great guiding rule of Sir Leo Cussen as to the requirements of a charge on the elements of an offence. Their Honours held[18]:

"And it may be recalled that the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case. He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are. If the case were a criminal case, and the charge were of larceny, and the only real issue were as to the asportavit, probably no judge would dream of instructing the jury on the general law of larceny. He would simply tell them that if the accused did a particular act, he was guilty of larceny, and that, if he did not do that particular act, he was not guilty of larceny. It may be that the issues in a civil case tend, generally speaking, to be more complex than in a criminal case. But the same principle is applicable, and looking at the matter from a practical point of view, the real issues will generally narrow themselves down to an area readily dealt with in accordance with Sir Leo Cussen's great guiding rule. These considerations lead to the conclusion that a judge should not put to the jury the qualification on the general rule as to contributory negligence unless he feels himself able to explain clearly to them exactly how the qualification can be fairly and reasonably applied by them to a view of the facts which it is open to them to entertain."

45 In a dissenting judgment in Doggett v. The Queen[19] Gleeson, C.J. observed, in a passage which is of general relevance:

"The manner in which a trial is conducted, and in which the issues are shaped, especially where (as in the present case) an accused is represented by experienced and competent counsel, has a major influence upon the way in which the case is ultimately left to the jury, and upon the directions, comments and warnings, from the trial judge to the jury, that may be appropriate or necessary. Directions are not ritualistic formularies. Their purpose is to assist the jury in the practical task of resolving fairly issues which have been presented to them by the parties."

46 We do not have a transcript of the addresses of counsel but the judge's summary of the final addresses lends strong support for the conclusion that intention to cultivate a commercial quantity was not an issue in the case, and the failure to seek such a direction supports that conclusion. Assuming that the principle stated in Alford v. Magee by reference to the example of a theft count, holds true for an element of the offence under s.72A - namely, that the offender intended to cultivate a commercial quantity of the drug - does the way in which the case was conducted remove the obligation of the judge to give a direction as to that element?

47 An accused person is entitled to have a correct direction of law given to the jury as to the elements of the offence he faces[20]. In this case the element was of significance because proof of an intention to cultivate a commercial quantity of cannabis, rather than merely cultivation simpliciter[21], has great consequence as to the maximum penalties available to the sentencing judge.

48 Although I am quite confident that the case was conducted on an all-or-nothing basis - i.e. if he cultivated at all, then he was party to cultivation of all 158 plants - the fact that defence counsel did not put in issue the question of intention to cultivate less than 100 plants might be readily explained. It would have damaged even further what little credibility the defence case possessed for counsel to offer as an alternative hypothesis the possibility that his client - whilst lying in his outright denial of cultivation - might nonetheless have intended to commit a lesser offence, of mere cultivation. Although that prudential consideration would not have applied with equal force if it was the judge and not defence counsel who had raised that possible hypothesis there might nonetheless remain good reason why defence counsel would have preferred not to have the jury directed in terms of Nguyen, at all. If, on the other hand, the failure of counsel to seek a Nguyen direction was not a tactical decision, the omission must at least reflect that the question whether the applicant had an intention to cultivate a commercial quantity of the drug was not a live issue in the trial.

49 Where a component of a necessary direction has been omitted from a charge to the jury but in the context of the trial it concerned a matter which was not in issue then it may not involve a wrong decision on a question of law or a miscarriage of justice falling within the second or third limbs of s.568(1) of the Crimes Act 1958[22] Nonetheless, the matter omitted was an element of the offence in this case and the judge had ruled that he should and would give such a direction. Although the defence case had not raised the hypothesis of the applicant intending to cultivate a crop smaller than 100 plants, it had not been conceded that the direction was no longer required. I conclude, that the direction ought to have been given and its omission constituted a wrong decision on a question of law and/or a miscarriage of justice, thereby giving rise to the question of the application of the proviso.

The proviso

50 Mr McArdle submitted, in the alternative, that if the Court held that directions in the terms identified in Nguyen were required to have been given then failure to give the directions did not cause a substantial miscarriage of justice, in this case, and the proviso to s.568(1) of the Crimes Act 1958 ought be applied. The failure to direct on this issue neither constituted a fundamental irregularity in the trial nor did the applicant lose a chance of acquittal fairly open by virtue of the absence of a direction, he submitted: see R. v. Weiss[23].

51 To make his point, Mr McArdle pointed to the evidence in the trial. One or more fingerprints from the applicant was located in each place in the house where a crop was being cultivated, yet he denied any involvement whatsoever in the cultivation. His evidence at trial was that he placed his fingerprints on items in those locations only the previous evening when, for the first time, he had discovered crops of a plant that he was told was used by persons for smoking, "just like cigarettes". That was not the account he had given police. Not only had he lied to police, he was caught out in a lie in the course of giving his evidence, Mr McArdle submitted. Once the jury was satisfied beyond reasonable doubt that his denial was a lie, it meant they accepted that he had cultivated the crop.

52 Mr McArdle submitted that the evidence against the applicant was overwhelming and it could not possibly have affected the outcome had the direction been given. Given that the evidence disclosed that his fingerprint was in each location where the crop was grown then the only inference reasonably open was that he must have been aware that there was a significant or real chance that the quantity of plants exceeded 100, which in turn must have led to satisfaction beyond reasonable doubt that he intended to cultivate a commercial quantity of the drug. In those circumstances the direction was of no importance, Mr McArdle submitted.

53 The case was indeed strong. Photographs and a video film of the premises disclose that the house looked like a bombsite. The garage and second bedroom were packed with lights, light shades, containers for watering systems, large fans, extractor fans, power-boards, transformers, huge extractor vents and an array of electrical apparatus. The watering systems had automatic timing. The rooms hummed with loud sounds coming from the transformers and fans, which noise was not blocked out even with the doors shut. The rooms in which plants were growing were full of very tall plants. There were electrical cables running from the roof, and through holes cut into the walls. There was an array of power-boards in each room The heat generated by the equipment must have been prodigious. In the face of all that organised chaos the applicant would have had the jury believe that having attended the house as a favour to his wife in order to clean out the refrigerator, and having discovered this rather remarkable horticultural venture by the tenant, he then proceeded to clean the refrigerator, as instructed, leaving untouched, and no doubt as something of a surprise for her, his wife's bedroom, bedroom No.2, in which one crop of mature plants was growing, accompanied by the paraphernalia described above.

54 The cleaning of the refrigerator having been accomplished (any greater cleaning being abandoned, presumably, as pointless) he then chose to sleep on the sofa, so he told the jury, notwithstanding that his own bed was only 900 metres away.

55 The defence case reeked of improbability, if not fantasy. Nonetheless, the jury deliberated for a day before reaching its verdict. They retired at 11.41 am on 12 May 2005 and returned a verdict at 11.34 am the following day. For all its apparent strength, the Crown case was not supported by evidence from surveillance operations, or from telephone intercepts or by eye-witness evidence. The Crown could not assert that the applicant had been on the premises on any other day during the cultivation period.

56 As Gleeson, C.J. and Gummow, J. observed in Gilbert v. The Queen[24] an appellate court ought not assume that a jury would adopt "a mechanistic approach to the task of fact finding, divorced from a consideration of the consequences". Callinan, J., to similar effect, said that the court had to recognise the reality that a jury room might not be a place of undeviating intellectual and logical rigour, and that given a range of options for their verdict they might chose a less serious outcome than might otherwise have been appropriate[25]. Those approaches did not find favour with McHugh, J. and Hayne, J. It may well be that the discussion in Gilbert was intended to be confined to murder cases[26], where the entitlement of a jury to record a merciful verdict of manslaughter had its origins in days of capital punishment. I do not posit that the jury in this case might have acquitted unconscientiously, in merciful defiance of a judicial direction, had they been directed as to the need to prove intention to cultivate a commercial quantity of cannabis. I refer to Gilbert for its broader relevance in that it invites caution before deciding that the same verdict would have been inevitable in this case had the jury been properly instructed.

57 I have reached the conclusion, however, that by itself the appropriate direction could not have altered the verdict in this case, having regard to the strength of the case and having regard to the fact that the jury must have rejected the evidence of the applicant and, substantially at least, that of his wife. It may have been different had this jury not only been properly instructed but also been invited to consider, as an alternative, a guilty verdict to cultivation under s.72B of the Act. If that had been the situation I am by no means persuaded of the inevitability of the guilty verdict on the more serious count, and that outcome might have arisen even without the verdict necessarily being based on the pragmatic considerations identified by the majority in Gilbert.

58 However, no alternative verdict was sought by counsel[27]. That course, in my opinion, together with the decision not to seek a Nguyen direction, must have been a tactical decision, a quite rational one given that the case was run on an all-or-nothing basis[28]. In the circumstances I am not persuaded that the absence of a direction meant that the applicant thereby lost a chance fairly open of being acquitted[29].

59 The fact that neither the prosecutor nor defence counsel reminded the judge of his earlier ruling that he should direct the jury on intention to cultivate a commercial quantity suggests to me that as the trial progressed it became apparent that the defence was not raising a Nguyen defence, that is, denying intent to cultivate more than 100 plants but conceding that he had intended to cultivate a lesser number. Accordingly, on neither side was it thought to be necessary that the jury be directed as to intention to cultivate a commercial quantity of a drug of dependence. As I have said, in my opinion the direction concerning a matter that constituted an element of the offence should have been given, but in the circumstances its absence did not

constitute a substantial miscarriage of justice, and the proviso ought to be applied. Even if the test for the application of the proviso when stated in terms of the verdict being "inevitable" is to be regarded as more stringent than when expressed as the loss of a chance of acquittal fairly open[30], then this was such a case. Once the jury rejected the explanation given on oath by the applicant then the circumstances of his presence in the house coupled with the state of the premises and the equipment within it, made the verdict inevitable.

60 The application for leave to appeal against conviction should be dismissed.

61 I have had the advantage of reading in draft the reasons for judgment of Eames, J.A., and with respect I agree with his Honour that the principles which apply to proof of intent in statutory offences apply as much to the cultivation of commercial quantity of cannabis as they were held in Nguyen[31] to apply to trafficking in a commercial quantity of a drug of dependence.

62 The issue was considered by the New South Wales Court of Criminal Appeal in R v CWW,[32] which was concerned with s. 23(2) of the Drug Misuse and Trafficking Act 1985 (NSW),[33] and as Sheller, J.A. put it in that case:

"In my opinion, [the section] is structured so that the number of prohibited plants cultivated is a circumstance which attends the physical act of cultivation or supply to create the offences under the subsection. The offences are not established unless it is shown that the number of plants cultivated was not less than the commercial quantity. This gives character to the physical act involved to create the offence under the subsection. To adapt the language of Brennan J there is a presumption that the intention that must be proved is an intention of doing an act of the defined kind which constitutes the offence namely, in this case, cultivating a number of plants not less

than the commercial quantity. Consistent with He Kaw Teh and Bahri Kural in my opinion question asked must be answered in the affirmative. But evidence that the accused actually knew the crop consisted of a number of prohibited plants not less than the commercial quantity is but one way of proving the necessary intention. Intention may be proved by showing beyond reasonable doubt that the accused had a belief, falling short of actual knowledge, or was aware of the likelihood, in the sense that there was a significant or real chance, that the crop consisted of this number of plants."[34]

63 Consequently, just as in a prosecution for trafficking in a commercial quantity of a drug of dependence it is necessary for the Crown to prove beyond reasonable doubt that the accused knew or believed that it was likely that the subject of the act of trafficking was prohibited drugs and that the amount in question was not less than a commercial quantity, so too in a prosecution for cultivating a commercial quantity of cannabis the Crown must prove beyond reasonable doubt that the accused knew or believed that the plants the subject of cultivation were cannabis and that the number of plants was not less than 100.

64 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.[35] 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.

65 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.[36]

66 The judge in this case did not give the jury those directions. Despite his Honour's initial inclination to do so,[37] the matter was either forgotten or deliberately overlooked and neither counsel drew the matter to the judge's attention. The jury were therefore not directed upon an essential element of the offence with which the applicant was charged. I agree with Eames, J.A. that the judge's failure to give those directions amounted to a misdirection of law.

67 In the past, it may be that the judge's failure to give such directions would not have been classed as a misdirection . Little more than 20 years ago, Brennan and Deane, JJ. held in Barker v The Queen [38] that where a judge confined directions to the issues raised in the trial, and no exception had been taken to the judge's failure to direct on an aspect of mens rea which was not as such raised as an issue in the trial, the failure to direct on that aspect of mens rea did not warrant appellate intervention. As their Honours put it then:

"If the above direction, to which no objection was taken at the trial, is viewed out of the context of the manner in which the trial had been conducted and the essential issue which had emerged between the Crown and the applicant, it would be open to criticism: it contains no specific application of the requirement of mens rea to the element of entry; it does not, in terms, require the jury to consider the scope of the permission to enter in order to determine whether the actual entry was outside it. The learned trial judge's summing up to the jury cannot, however, properly be read independently of the context of the conduct of the trial. As the English Court of Criminal Appeal (Lord Alverstone L.C.J., Darling, Phillimore, Bray and A. T. Lawrence JJ.) observed in R. v. Stoddart, [39] '[e]very summing-up must be regarded in the light of the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively' (see, also, R. v. Nina Vassileva; [40] R. v. Murray; [41] Reg. v. Melville;[42] Reg v. Deen.[43] The charge plainly reflects the issues raised by the conduct of the trial. In that context and in the absence of any complaint at the trial, the charge is not properly open to the criticisms noted; it contains no misdirection or failure to direct of a kind that would warrant the intervention of an appeal court (see Stoddart's Case [44]). ..."[45]

68 Similarly, in this case, the charge plainly reflected the issues raised by the conduct of the trial, and those issues were simple. The Crown's case was that the applicant was party to an agreement or arrangement with Hoang to cultivate the plants found growing in the garage and the bedroom at the time of the police raid. On that basis, it was contended that the applicant was acting in concert with Hoang to cultivate those plants. As the defence was conducted, there was no issue about the number of plants. It was not disputed that there were 158 plants divided between the garage and the bedroom. The applicant simply denied that he was in any way involved in the growing. Ultimately, he admitted in cross-examination that he had been into the garage and the bedroom in which the plants were growing on the night before the police raid. But he said that his only reason for going to the house that night was to clean the refrigerator in readiness for his wife's return from abroad, and that his only reason for staying on at the house that night was because he thought it was unusual that the plants were being grown in the house. In effect the only issue was whether the applicant was acting in concert with Hoang and his associates, which is to say, had entered into an agreement or arrangement with Hoang to cultivate the plants found growing at the house, or was there to clean the refrigerator.

69 Be that as it may, however, these days a judge's failure to direct a jury upon an essential element of an offence is in most circumstances properly to be characterised as a misdirection of law.[46] As it appears to me, the focus has shifted away from the question of whether the circumstances were such as to obviate the need for the direction and towards the question of whether, in all the circumstances, and particularly having regard to the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence, the failure to give the direction has not resulted in a miscarriage of justice and hence that the proviso may be applied. Gaudron, Gummow, Kirby and Hayne, JJ. dealt with the problem in that fashion in Krakouer v The Queen. [47] After characterising the trial judge's error in that case as a misdirection, their Honours said:

**"...**we are not persuaded that the fact that there has been a misdirection about one element of the offence with which an accused is charged means that the trial was necessarily fundamentally flawed. After all, most cases of misdirection will concern directions about matters relevant to the jury's deliberations and yet the proviso requires that not every 'wrong decision of any question of law' lead to the quashing of the conviction or a new trial. As was said in Wilde v The Queen '[t]here is no rigid formula to determine what constitutes such a radical or fundamental error' as to preclude the application of the proviso. Simply demonstrating that there was a misdirection on a matter relevant to the jury's consideration is not sufficient.[48]

The New South Wales Court of Criminal Appeal also adopted that approach in Greatorex v R.[49]

70 In Greatorex the court was concerned with three counts of deemed supply of prohibited drugs (constituted by being in possession of a specified quantity of the prohibited substances).[50] The police alleged that the accused had admitted ownership of a jar containing the drugs but she later denied that admission. The issue at the trial thus became whether the accused had ever had the drugs within her physical possession. The trial judge failed to direct the jury on distinguishing between intention to possess the container and intention to possess items of the nature and quality of its contents. On appeal, that was held to have been a misdirection. But it was held also that the proviso could be applied. As Hunt, C.J. at C.L. [51]said:

"The judge should clearly have directed the jury that the appellant knew or believed that the jar which she is alleged to have had in her physical possession contained drugs, or was aware that there was a significant or real chance that it did: Saad [1987] HCA 14; (1987) 29 A. Crim R. 20 at 21. Such a direction was necessary (He Kaw Teh [1985] HCA 43; (1985) 157 C.L.R. 523; 15 A.Crim. R. 203) and it should have been given, even if briefly, despite the fact that it was not in issue: Popa (1991) 53 A. Crim. R. 102 at 103, 108; Sandford (1994) 33 N.S.W.L.R. 172; 72 A. Crim. R. 160 at 176-177. The further direction which was given did not comply with what was required."

But, as Simpson J has pointed out, the real issue here was not whether the appellant had the relevant mental state in relation to the drugs, it was whether she ever had them within her physical possession. Once she had been found to have had the jug in her physical possession, her subsequent conduct made a finding that she knew or believed that the jug contained drugs inevitable. There was thus no miscarriage of justice arising out of the judge's failure to give the appropriate direction as to the mental element: Alford v Magee [1952] HCA 3; (1952) 85 C.L.R 437 at 466; Holland (1993) 68 A. Crim R. 176 at 183-184."[52]

"It may therefore have been appropriate for his Honour to have directed the jury that they could not find that the appellant had the drugs in her possession unless they were satisfied that she knew or believed or was aware, of the likelihood that what was in the jar was drugs. But this assumes a case very different from that which was before his Honour. That case was encapsulated in the appellant's unsworn statement and advanced the assertion of ignorance of the existence of a jar itself and denial of the admissions attributed to her by the police witnesses. No separate issue ever emerged as to her knowledge of the nature and quality of the contents of the jar as distinct from her knowledge of the existence of the jar together with its contents as a single entity. This, I think, is the very sort of circumstance that Brennan J was alluding to when he used the words I have extracted above.

And to say that failure to give that direction in the circumstances of the present case amounted to error sufficient to set aside the verdict, would be to ignore the judge's function to sum up the real issues as the case is fought: Alford v Magee [1952] HCA 3; (1952) 85 C.L.R. 437 at 466.

The real issue in this case as it was fought had nothing to do with any questions of mens rea. Counsel for the appellant at the trial did not think the direction was inadequate and asked for no further clarification. This was, no doubt, because she, too, saw the issue as confined to that of dominion and control of the jar and its contents and not recognition or belief in the nature of the contents of the jar."[53]

72 Upon reviewing the evidence in this case, it appears to me that the jury could not have doubted that the applicant knew or believed that there was a significant or real chance that there were more than 100 plants under cultivation. The still photographs which were in evidence convey a powerful impression of the operation, and the video tape of the crime scene puts beyond doubt that anyone who went into the garage and the bedroom (as on the applicant's own admission he did) had to have seen a veritable forest of large cannabis plants and potted seedlings, apparently numbering well in excess of 100, systematically arranged among the hydroponic apparatus which Eames, J.A. has described. In the face of the evidence, it is fanciful to suppose that someone who went into those places might not have believed that there was a significant or real chance that the number of plants exceeded 100, and in this case there is no reason why that should not be regarded as sufficient to found an inference of intent.

73 As I view this matter, therefore, in the same way that the only issue in Greatorex was whether the accused had in her possession the jar which so obviously contained the prohibited drugs, the only issue in this case was whether the applicant entered into an agreement or arrangement to cultivate the plants which were so obviously growing in the garage and bedroom. Equally, in as much as in Greatorex the jury were evidently satisfied that the accused intended to possess the jar, and, as it was held, that could be taken to imply that the jury were satisfied that the accused intended to possess the drugs inside the jar, in this case, in as much as the jury were evidently satisfied that the applicant entered into an agreement or arrangement to grow the plants found in the garage and bedroom, that can be taken to imply that the jury were satisfied that the applicant intended to enter into an agreement to grow more than 100 such plants.

74 Subject to one further consideration, it follows that I do not consider that a specific direction as to the need to be satisfied that the applicant intended the agreement to extend to more than 100 plants could have made a difference to the verdict.[54]

75 The one further consideration is the effect of the observations of Gleeson, C. J. and Gummow, J in Gilbert v The Queen (to which Eames, J.A. refers), that one is not to assume that a jury would adopt " ... a mechanistic approach to the task of fact-finding, divorced from a consideration of the consequences."[55]

76 The rule in Gilbert may be susceptible to more than one interpretation. But until and unless the High Court says otherwise, I take the rule to be confined to cases of murder in which the trial judge fails to leave manslaughter to the jury as an available alternative verdict and possibly to cases, apart from murder, where it is in the interests of justice that the judge leave some other lesser included offence to the jury as an available alternative verdict.[56] As I understand the rule, if a judge fails to leave manslaughter or other lesser included offence to the jury as an available alternative verdict, it is to be assumed that the accused has been deprived of a chance of acquittal of the more serious offence.

77 Evidently, the rule runs counter to the precept that juries may be assumed to act in accordance with directions. Ex hypothesi the jury has convicted the accused of the more serious offence and therefore it should be assumed that the jury were satisfied of each of the elements of that offence. But as Gleeson, C.J. and Gummow, J. explain in Gilbert, human nature is such that the jury may have opted for the less serious alternative if it had been offered. The jury's concern for the victim of the crime, and more generally for society, may be such that they would not be prepared to allow the accused go free, but their concern for the consequences of the punishment likely to be inflicted on the accused is such that they would prefer that the accused be punished for the lesser offence rather than for the greater. It is in that sense that failure to leave the lesser included offence as an available alternative verdict may be said to have deprived the accused of a chance of acquittal of the greater offence.

78 All of that is irrelevant, however, in cases where it is not incumbent on the judge to leave a lesser included offence as an available alternative verdict. And in my opinion this is one such a case. As Eames, J.A. has noted, the presentment in this case did not include an alternative count of cultivation under s. 72B of the Drugs Poisons and Controlled Substances Act. Nor has it been suggested that the judge should have left that offence to the jury as an available alternative verdict. Nor do I think that the judge should have left that offence to the jury as an available alternative verdict.

79 Murder and manslaughter apart, the test of whether a lesser included offence should be left to the jury as an available alternative depends on all the circumstances, including the dictates of the public interest, fairness to the accused, the course of the trial and the scope of forensic judgment on the part of counsel.[57] As the English Court of Appeal put it in Reg. v Fairbanks:[58]

"[The] cases bear out the conclusion, which we should in any event have reached, that the judge is obliged to leave the lesser alternative only if this is necessary in the interests of justice. Such interests will never be served in a situation where the lesser verdict simply does not arise on the way in which the case had been presented to the court: for example if the defence has never sought to deny that the full offence charged has been committed, but challenges that it was committed by the defendant. Again there may be instances where there was at one stage a question which would, if pursued, have left open the possibility of a lesser verdict, but which, in light of the way the trial has developed, has simply ceased to be a live issue. In these and other situations it would only be harmful to confuse the jury by advising them of the possibility of a verdict which could make no sense." [59]

In this case it is plain that the lesser verdict did not arise in the way in which the case was presented to the court.

80 As has already been stated, the defence never sought to deny that more than 100 cannabis plants were being cultivated at the house; their only challenge was to the allegation that the applicant was party to the enterprise; and while, early in the trial it seemed possible that complicity in cultivation of a lesser number of plants might arise as an issue, in the way in which the trial developed, it simply ceased to be a live issue. What is more, as Eames, J.A. points out, there is good reason to think that defence counsel made a calculated decision not to put it to the jury.[60] In those circumstances, it would not have been in the interests of justice for the judge to leave to the jury the lesser offence as an available alternative verdict, and in all probability it would have been harmful and confusing to have done so.

81 It follows, with respect, that I do not consider that the observations of Gleeson, C.J. and Gummow, J. in Gilbert have any role to play in the disposition of this application. I do not consider that the applicant was deprived of a chance of acquittal reasonably open to him. Like Eames J.A., I consider that the proviso should be applied.

Conclusion

82 For those reasons, I would dismiss the application for leave to appeal.

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

[2] [2005] VSCA 172.

[3] At [9].

[4] At [10].

[5] See Bahri Kural v. The Queen [1987] HCA 16; (1987) 162 C.L.R. 502 at 504-505.

[6] At [15].

[7] At [22].

[8] At [25].

[9] At [28].

[10] At [32].

[11] T 27.

[12] T 33.

[13] Alford v. McGee [1952] HCA 3; (1952) 85 C.L.R. 437, at 466; Doggett v The Queen (2001) 208 C.L.R. 343, at 346, per Gleeson, C.J.

[14] T 7.

[15] R. v. Jensen & Ward [1980] VicRp 24; [1980] V.R. 194, at 201.

[16] Jensen & Ward, at 203, 205.

[17] T 107-8.

[18] [1952] HCA 3; (1952) 85 C.L.R. 437, at 466.

[19] (2001) 208 C.L.R. 343, at 346.

[20] Mraz v. The Queen [1955] HCA 59; (1955) 93 C.L.R. 493, at 514; see, too, BRS v. The Queen [1997] HCA 47; (1997) 191 C.L.R. 275, at 306, per McHugh, J..

[21] However, as I later discuss, there was no alternative count before the jury.

[22] R v. Konstandopoulos [1998] 4 V.R. 381, at 388, 391, per Callaway, J.A.

[23] [2004] VSCA 73; (2004) 8 V.R. 388 at 398-9 [62] per Callaway, J.A.

[24] (2000) 201 C.L.R. 414, at 421 [16].

[25] Gilbert, at 440, [96], 441 [101].

[26] Although the judgment of Callinan, J., at least, does not seem to be limited to such cases, see Gilbert, at 441, [101].

[27] The presentment did not include an alternative count of cultivation under s.72B, and the judge did not direct the jury that any alternative verdicts were open. I presume that such a verdict may have been open by virtue of s.421(2) Crimes Act 1958, although we heard no submissions as to that.

[28] See TKWJ v. The Queen [2002] HCA 46; (2002) 212 C.L.R. 124, at 128 [8], per Gleeson, C.J., at 133 [27]-[28], per Gaudron, J., at 150 [81] per McHugh, J.; Ali v. the Queen [2005] HCA 8; (2005) 214 A.L.R. 1 at 4 [7].; R. v. Arundell [1998] VSCA 102; [1999] 2 V.R. 228, at 248-9 [51].

[29] R. v. Weiss, at 400, [69]-[70].

[30] See the discussion by Callaway, J.A. in Weiss, at 400 [[69]-[70].

[31] [2005] VSCA 172.

[32] (1993) 32 N.S.W. L.R. 348.

[33] That section is in relevant respects identical to s. 72A of the Drugs Poisons and Controlled Substances Act 1931.

[34] Ibid. at 355.

[35] Cf. R v Nguyen at [21].

[36] Cf. R v Nguyen at [ 37]

[37] As is evidenced by his Honour's ruling early in the trial.

[38] [1983] HCA 18; (1983) 153 C.L.R. 338 at 368.

[39] (1909) 2 Cr. App. R. 217 at 246.

[40] (1911) 6 Cr. App. R., 228 at 231-2.

[41] [1924] VicLawRp 57; [1924] V.L.R. 374 at 383.

[42] (1956) 73 W.N. (N.S.W.) 579.

[43] [1964] Qd R. 569 at 572-3.

[44] (1909) 2 Cr. App. R., at 245-246.

[45] [1983] HCA 18; (1983) 153 C.L.R. 338 at 368-9.

[46] Krakouer v The Queen [1998] HCA 43; (1998) 194 C.L.R. 202 at 211[18]-[19].

[47] [1998] HCA 43; (1998) 194 C.L.R. 202.

[48] [1998] HCA 43; (1998) 194 C.L.R. 202 at 212 [23], footnotes omitted.

[49] (1994) 74 A. Crim. R. 496.

[50] Contrary to s.29 of the Drug Misuse and Trafficking Act 1985 (NSW) (in relevant terms comparable to s. 72A of the Drugs Poisons and Controlled Substances Act 1981)

[51] With whom Abadee, J. agreed.

[52] (1994) 74 A. Crim. R. 496 at 498.

[53] Ibid. at 504, emphasis added.

[54] Cf. R. v Weiss [2004] VSCA 73; (2004) 8 V.R. 388 at 398[62].

[55] (2000) 201 C.L.R. 414 at 421[16].

[56] R v Saad [2005] VSCA 249 at [90]- [100].

[57] R v Kane [2001] VSCA 153; (2001) 3 V.R. 542 at 588 [116].

[58] [1986] 1 W.L.R. 1202.

[59] [1986] 1 W.L.R. 1202 at 1205-6; see also Reg. v Maxwell [1988] 1 W.L.R. 1265 at 1269.

[60] See [46], above.