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.