Bowman v The State of Western Australia
[2008] WASCA 63
•20 MARCH 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BOWMAN -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 63
CORAM: MARTIN CJ
WHEELER JA
MILLER JA
HEARD: 11 MARCH 2008
DELIVERED : 20 MARCH 2008
FILE NO/S: CACR 63 of 2007
BETWEEN: JOHN ARTHUR BOWMAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :EATON DCJ
File No :IND BUN 66 of 2006
Catchwords:
Criminal law - Appeal - Whether verdict of the jury unreasonable or cannot be supported having regard to the evidence - Cultivation of cannabis - Appellant alleged to have aided - Appellant alleged to have facilitated growing cannabis plants by nurturing them - Circumstantial case - Whether open to jury to be satisfied beyond reasonable doubt that appellant was guilty
Criminal law - Evidence - Direction on lies - Whether alleged lies capable of constituting a consciousness of guilt - Concession by respondent that trial judge erred in telling jury it was open so to treat lies - Concession that appellant entitled to retrial
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(a)
Criminal Code, s 7(c)
Misuse of Drugs Act 1981 (WA)
Result:
Appeal allowed in part
Conviction quashed
Order for retrial
Category: B
Representation:
Counsel:
Appellant: Mr P J Urquhart
Respondent: Mr B Fiannaca SC
Solicitors:
Appellant: Young & Young
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Martinez v The State of Western Australia [2007] WASCA 143
R v Beck [1990] 1 Qd R 30
R v Hiller [2007] HCA 13; (2007) 233 ALR 634
MARTIN CJ: I agree with the orders proposed by Miller JA for the reasons which he gives.
WHEELER JA: I agree with Miller JA.
MILLER JA: The appellant was tried before Eaton DCJ and jury in the District Court at Bunbury on an indictment which alleged two counts. One was an allegation of possession of a prohibited drug (cannabis) with intent to sell or supply it to another and the other cultivation of a prohibited plant (cannabis) with intent to sell or supply it to another. A submission of no case to answer was successfully put in relation to the first count and a verdict of acquittal by direction entered. The appellant was convicted of the second count. From that conviction he appeals to this court, contending that the conviction should be set aside because, having regard to the evidence, it was unreasonable and could not be supported. There is also a ground of appeal which relates to the trial judge's directions to the jury in relation to alleged lies. The trial judge directed the jury that two alleged lies were capable of demonstrating a consciousness of guilt. This ground of appeal is conceded by the respondent. It conceded that the conviction of the appellant should be set aside and there should be an order for a retrial.
The facts
The appellant was charged that, on 29 March 2006, at Donnybrook he cultivated cannabis with intent to sell or supply to another. At that time, he resided on Lot 109 Bowman Road, Donnybrook. This was part of a rural property which comprised Lots 108 and 109. These two lots between them totalled 320 acres. They contained a number of orchards where various types of fruit trees were grown. A large photoboard tendered at the hearing of the proceedings (exhibit 13) showed three separate and identifiable areas of orchard and two houses. One of these houses was occupied by the appellant and the other by the appellant's son, Lyndon Bowman. Lots 108 and 109 were owned by another son, Neil Bowman. He did not reside at the property.
The two houses occupied by the appellant and his son, Lyndon, were respectively 127 metres apart. In the appellant's house were the appellant, his wife and an adult son, Greg Bowman. The other house was occupied by Lyndon Bowman and his family.
Lyndon Bowman's house was basically surrounded by orchards. The house occupied by the appellant was to the southern side of the property,
with close access to an area of orchard which was bounded by Bowman Road on the east and an access road to the house on the south.
On 29 March 2006, police executed search warrants at Lots 108 and 109 Bowman Road. The warrants had been issued pursuant to the provisions of the Misuse of Drugs Act 1981 (WA). Search of the property revealed three different sites at which cannabis plants were growing. These plants were within areas where there were established orchards.
The first location was described as site 1 with three sub‑categories of 1A, 1B and 1C. It was the closest of the sites to the house of the appellant. There were 288 plants in this area and they ranged in size from 0.4 metres to 1 metre. They were planted so as to benefit from the orchard reticulation system. The nearest site was some 99 metres from the appellant's house. It was 58 metres from Lyndon Bowman's house.
At the site designated 1A, there was straw around the cannabis and over the top of reticulation. At the site designated 1B, investigators found two green plastic buckets and a number of empty starter pods. These were pods commonly used for seedlings.
Site 2, which was to the north of Lyndon Bowman's house, contained 1,100 plants. These ranged in size from seedlings to cannabis plants 1.6 metres in height. The site was 182 metres from the appellant's house and 63 metres from Lyndon Bowman's house. This site was also reticulated, but with reticulation of a different type from that which was found at site 1. It was serviced by sprinklers which carried the brand name Netafim. These were sold by Donnybrook Farm Service. Amongst items found at site 2, were cannabis seedlings in starter pods. These were in small pots.
Site 3 was to the west of Lyndon Bowman's house. It was 59 metres from his house and 112 metres from the house of the appellant. Here, investigators found 1,688 cannabis plants, which ranged in height from 0.4 metres to 1.6 metres. The cannabis was planted between rows of orchard trees and in line with the orchard reticulation. The reticulation here was the same as that at site 2, and comprised sprinklers with the brand name Netafim. The photoboard, exhibit 13, reveals site 3 to be the most densely planted of the orchards.
A search of the appellant's house and its surrounds revealed a number of items similar to, or the same as, items found at the different sites where cannabis was growing. They can be separately identified as follows.
Buckets
A number of plastic buckets were found at site 1B. Photographs tendered in evidence reveal, in particular, a number of green plastic buckets. There are two green plastic buckets shown in a photograph of portion of site 1B. Similar buckets were found inside the appellant's house in a laundry area, and outside the house near a hot water system. There were at least a dozen buckets in the laundry, a number of which are green buckets of the same colour and type as those found at site 1B. The bucket outside the appellant's house by the hot water system was a similar green bucket. It contained starter pods.
Starter pods
At sites 1(b) and 2, investigating police found a number of starter pods. These were also referred to as 'starter cubes'. They appear from a photograph to have been deposited in a pile at at least one of the sites. The same type of starter pod was found in the green bucket by the hot water system at the appellant's house. There were numerous pods within the bucket.
Sprinklers and ground level trickle reticulation
Investigating police located a number of sprinklers reticulating the orchard area. At sites 2 and 3, the sprinklers in the orchard area were identified as Netafim sprinklers.
At the appellant's house, in an area described as a semi‑enclosed verandah, which ran off the laundry, there were open boxes containing sprinkler assemblies and what were described by a witness as 'other bits and pieces, sprinklers that were similar to those that were amongst the cannabis, mainly in site 3'.
Glen David Cooper gave evidence that he was the part‑owner and manager of Donnybrook Farm Service, which supplied goods and services to local farmers. The goods consisted mainly of orchard equipment, fertilisers, chemicals and irrigation equipment. Mr Cooper knew the appellant. He had sold him various items of orchard equipment, which included poly pipe, joiners, T‑pieces and the like. Mr Cooper was unable to say specifically what items had been bought by the appellant, but said that they certainly included pipe and pipe fittings. When asked whether the fittings were relevant to overhead irrigation, Mr Cooper responded that his firm did not 'really do overhead irrigation ... they're more for trickle irrigation like an average orchardist would use'.
Mr Cooper testified that he had supplied Neil Bowman with various items. His records revealed that Bowman Bros Contracting had purchased sprinklers, pipe and fertiliser. In particular, on 22 December 2005, 200 under‑tree sprinklers of the Netafim brand had been purchased. A further 200 sprinklers were purchased before 16 January 2006.
Straw
Investigating police found that, at site 1A, there were bales of straw and a considerable quantity of straw spread between the growing cannabis plants. Various photographs tendered in evidence show this. The bales were oblong bales of straw and the straw which was spread was around the cannabis plants, but not around the orchard trees.
Darren Michael Kelly, a detective sergeant, gave evidence that straw had been dispersed among the cannabis plants 'it looks like essentially to keep the weeds down'. Baling twine, which was blue in colour, was also found. Detective Sergeant Kelly testified that this was consistent with the twine wrapped around the straw. Some of this can be seen in photograph exhibit 8.32.
John William Fowler gave evidence that, in partnership with his wife, he owned Donnybrook One Stop Shop on South‑Western Highway Donnybrook. He knew the appellant, who had been a customer of his for about 10 years. He normally purchased fuel, but he had also purchased straw from Mr Fowler. The evidence given by Mr Fowler was as follows:
When you say he has purchased straw, would you please tell the court about the straw? What sort of straw does the shop stock?---I sell square bales for gardens or animal beds or whatever, you know. I usually sell about probably 800 a year.
Do you recall the last time you sold some straw to Mr Bowman?---Yes.
When was that?---A couple of years ago now. He came in his ute and I helped him load it up.
Do you remember specifically the date or the time?---No, I don't remember the time or day.
What about the year?---Not last Christmas, the Christmas before. It was in - not last Christmas, not the Christmas before, but previous to that.
Which year are you talking about there?---Seven, six, five. About 2005.
So are we talking December 2005?---Well, that's about when the straw comes in, so any time from then.
Yes, but was that - do you recall selling him straw then?---I do.
And how much straw did you sell him?---About 25 bales at a time. That's all I could fit in the ute.
What sort of ute was it?---I think it's a Toyota two wheel drive tray‑back.
Did he take more than one load?---Yes.
How many loads did he take?---Two or three loads.
Sorry, how many bales do you estimate?---Around 25.
Mr Fowler had been shown a photograph by Detective Sergeant Kelly. It was a photograph of the bales of straw found at site 1A. Mr Fowler was asked about the bales shown in the photograph and he said:
And what did you say about the bales in that photograph?‑‑‑I said they all look alike.
Yes?---But that is exactly how I sell them, so I couldn't say whether it was mine or wherever it came from.
Could the witness please be shown that photograph? Is that the photograph you were shown?---Yes.
Do you still maintain that that's the bale - well, not the bales but the same description of the bales that you sell? --Yes, exactly the same.
When he was cross‑examined, Mr Fowler conceded that 'a bale of hay from one farm will look similar to a bale of hay from another farm', but he said that, as far as he knew, his was the only outlet in Donnybrook selling straw. Mr Fowler said that he typically sold about 800 bales of straw over a season. He made the point that there was an important distinction between hay and straw:
Mr Fowler, what's the difference between hay and straw?---Hay is grown for feed. You let all the goodness get into the grass before it's cut. Straw is what is left after you have taken the tops off it to get wheat or oats or whatever. There's no goodness in it.
Admissions of appellant
The appellant engaged in three video records of interview with investigating police. Two were on 29 March 2006 and one on 6 April 2006. The first interview on 29 March 2006, commenced at the appellant's house. The interview was then continued outside the house, and the appellant was told that a dog‑handler had located a number of cannabis crops amongst the orchard. The appellant was asked about these and he said:
Q.Are you aware of those?
A.I - - it's not mine.
Q.It's not yours?
A.Mm.
Q.Whose is it?
A.Not for me to say.
Q.But you're aware they're there, aren't you?
A.Mm.
Q.All right. Okay. Is it fair to say then that, er, one of your sons is involved in this operation?
A.I don't want to say.
There were various discoveries at the property, including a foam box and plastic bag containing cannabis material at the rear of a shed adjacent to the appellant's house, which was once a garage. The appellant said he had no knowledge of this cannabis material.
The appellant was then taken into the orchard area. This is where the second interview on 29 March 2006 occurred. The interviews were divided because a battery had failed on a camera and it required changing. Cannabis plants were identified in the orchard and the following discussion occurred:
Q.What, er, what I was getting to was about the - - on to what's over my left shoulder on this road. There's obviously clearly, er, cannabis plants growing here. What can you tell us about those?
A.Cannabis plants.
Q.They are cannabis plants?
A.Mm.
Q.Yeah. How did they come to be here?
A.They're not for me.
Q.They're not for you?
A.No.
Q.But you're aware they were there?
A.Mm.
Q.Yeah? Well, there's obviously, urn, our search has revealed hundreds of cannabis plants around your property.
A.Mm.
Q.Are you aware of that?
A.Not - - not that aware. No.
Q.Not that aware?
A.No. Not that many. No.
Q.All right. So if you're aware of this but not involved, whose concern is it?
A.It's not - - I don't want to say anything.
The appellant repeated that he had not been aware of the quantity of cannabis growing at the orchard and the interview then ceased.
The third interview began on 6 April 2006. It was in the appellant's house. The following questions and answers occurred:
Q.You - - you know - - how long have you been at this place - - the property?
A.Me life.
Q.All your life.
A.Mm.
Q.So - - and how big is the place - - in acres, hectares, however you'd like to describe it.
A.160 acre blocks.
Q.All right. Two 160 acre - -
A.Mm.
Q.- - blocks.
A.Mm.
Q.Is that right, okay. So 320 acres roughly all up.
A.Mm.
Q.All right. And so how familiar would this entire place would you describe you are?
A.Oh, reasonably familiar.
The appellant was asked how often he would attend to his fruit trees and he replied that he went and picked apples on a seasonal basis, just picking them as he needed them. He said that, on most days, he would 'pick a few'. This translated to a 'ute load - 30 cases'. He said that, when police arrived at the property on 6 April, he had been 'pickin Nashies'. It was asked whether besides picking fruit, he had done any other maintenance on the trees. He said:
A.Nah, I haven't done much to the trees for a long time.
Q.Yeah. What about the water, who maintains your water?
A.We [my emphasis] just turn the water on.
Q.Yeah. What - - as far as fixing, ah, or replacing sprinklers - - installing sprinklers, that sort of thing, who looks after that?
A.They're all there. They're all there.
Q.Okay. But there'd be ‑ ‑
A.... (indistinct) ...
Q.- - some ongoing maintenance - -
A.Yeah.
Q.- - ... (indistinct) ...
A.No, I don't use the sprinklers much at all. I use the travelling irrigator if I water the orchard.
Q.Yeah.
A.Mm.
Q.All right, so you do water the orchard?
A.Little bit, mm.
Q.All right. But do you use the existing reticulation system to do that?
A.No.
Q.You don't?
A.Nah.
Q.All right. The water's obviously connected. It's quite obvious from what we've seen around the place. The water's still flowing.
A.Yeah.
Q.Yeah.
A.We don't use - - if you notice underneath the threes there's all ‑ ‑
Q.Mm.
A.- - poly pipe - -
Q.Yep.
A.- - but I don't use that because it's not good enough I don't reckon.
Q.So what is it that you use to water the orchard?
A.Oh, the travelling irrigator ... (indistinct) ...
The appellant was asked whether anybody else assisted him with maintenance of the orchard, and he said that 'occasionally the boys will give me a hand'.
The appellant denied that he had been involved in the cultivation of cannabis at his property and said that he was not aware of anybody who was involved. He denied assisting people in any way with the cannabis crops.
The prosecution case
The prosecution case was based upon circumstantial evidence. The essential strands of the circumstantial evidence were as follows:
(1)The appellant lived on the property where the cannabis plants were found. Lyndon Bowman, who also lived on the property, testified that he was not involved in the cultivation of the cannabis or the fruit‑growing activities at the property. It was not put to Lyndon Bowman in cross‑examination that he was the person who was responsible for the cannabis crops.
(2)The appellant in his records of interview admitted to knowledge of the cannabis in the orchard. He said that it was not his, but declined to say whose it was. Earlier, he had told police that there was no cannabis on the property.
(3)In the course of his video records of interview on 29 March 2006, the appellant said that he was growing figs in the area of the orchard where he was taken by investigating police. When he was told that there were cannabis plants in the area, he agreed that there were, but said that, whilst he was aware of their presence, they were not his, and he did not wish to say anything further about them.
(4)In this third video record of interview on 3 April 2006, the appellant admitted to watering the orchard, and, in particular, stated that 'we just turn the water on' (my emphasis). He then said that he did not use the sprinklers much at all, but used the travelling irrigator to water the orchard. When further questioned, he appeared to acknowledge that he was the person who maintained the orchard, because he said that 'occasionally the boys will give me a hand'.
In the context of these statements by the appellant, the existence of items in or about his house similar to those found amongst the cannabis crop took on a different significance from what might otherwise have been the case. In particular:
(a)plastic buckets found at site 1B were of a similar type to those found in the laundry of the appellant's house;
(b)starter pods found at sites 1B and 2 were the same as empty starter pods which were found in a bucket adjacent to the appellant's house by the hot water system;
(c)sprinklers used to reticulate sites 2 and 3 were of the same type as found in boxes on the verandah of the appellant's property;
(d)the appellant had been responsible for the purchase of black poly pipe and fittings of the type used in the orchard and which watered the cannabis plants; and
(e)straw was found at site 1. There were a number of oblong bales, and there was a substantial quantity spread amongst the cannabis plants. The appellant had purchased a number of bales of straw from the local supplier. The bales which were photographed amongst the cannabis plants were the same type of bales as sold by Mr Fowler at Donnybrook One Stop Shop to the appellant.
Grounds of appeal
Ground 1 contends that the verdict of guilty on count 2 on the indictment should be set aside because, having regard to the evidence, it was unreasonable or could not be supported: Criminal Appeals Act 2004 (WA), s 30(3)(a). A number of particulars are given. In essence, they contend as follows:
(a)Although the appellant was alleged to have aided one or more unidentified principal offenders in the cultivation of the cannabis, there was no direct evidence that he was involved in the cultivation of any of the crops, or that any watering which he admitted doing was watering of an area of orchard where the cannabis plants were located;
(b)the appellant lived further away from the location of the cannabis crops than did his son, Lyndon Bowman, and there was another son (Neil Bowman) who actually owned the property and who visited it;
(c)the circumstantial evidence against the appellant was 'inherently weak' for the following reasons:
(i)although there were new sprinklers on boxes on the verandah of the appellant's house, they were similar to sprinklers which had been purchased by one of the appellant's sons and paid for on the account of Bowman Bros Contracting, a business operated by Lyndon and Neil Bowman;
(ii)there was no evidence that the appellant had ever purchased this particular brand of sprinklers, or that he had any interest in Bowman Bros Contracting;
(iii)although the appellant had purchased straw, and straw was found at one of the three cannabis sites, there was no evidence that this was the same straw as that purchased by the appellant;
(iv)there was nothing unusual or distinctive about green buckets located at site 1B and at the appellant's house;
(v)starter pods which were found amongst the cannabis and empty pods which were found at the appellant's house had no unique features and would commonly be found on properties where orchards were located;
(vi)the appellant when questioned denied watering the cannabis with on‑ground reticulation.
The test
In Martinez v The State of Western Australia [2007] WASCA 143, the court, at [6], summarised the well established test for determining whether or not a verdict should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence:
The test which faces a Court of Appeal in considering whether a verdict should be set aside on the ground that it is unreasonable or cannot be supported, having regard to the evidence, is set out in two passages from the judgment of Mason CJ, Deane, Dawson and Toohey JJ (at 492 - 493). They are in the following terms:
'The question is one of fact which the court must decide by making its own independent assessment of the evidence [Morris v The Queen (1987) 163 CLR 454] and determining whether, notwithstanding that there is evidence upon which a jury might convict, "none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand" [Hayes v The Queen (1973) 47 ALJR 603 at 604]. But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be "unreasonable" or incapable of being "supported having regard to the evidence". A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside.
…
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty [Whitehorn v The Queen (1983) 152 CLR 657 at 686; Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 532; Knight v The Queen (1992) 175 CLR 495 at 504 - 505, 511]. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations [Chamberlain v The Queen (supra) at 621].'
It is further well established that when considering a circumstantial case, all the circumstances established by the evidence are to be considered. In R v Hiller [2007] HCA 13; (2007) 233 ALR 634, Gummow, Hayne and Crennan JJ said:
It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances [Martin v Osborne (1936) CLR 367 at 375; Plomp v The Queen (1963) 110 CLR 234 at 243 per Dixon CJ]. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence [Shepherd v The Queen (1990) 170 CLR 573 at 579 per Dawson J]. [46]
Their Honours added:
Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal. [48]
Conclusion on ground 1
In my opinion, the submissions made on behalf of the appellant fail to recognise that it is wrong to consider a circumstantial case 'piecemeal' (R v Hiller, at [48]). Inevitably, the submissions needed to be directed to the individual strands of circumstantial evidence, but it seems to me that they overlooked the fact that, in the context of the appellant's admissions (limited though they were), the circumstantial evidence relied upon by the prosecution, when taken as a whole, meant that, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. There was no inference reasonably open on the evidence which was consistent with innocence.
The appellant was not alleged to have been the principal offender in relation to the cultivation of the cannabis crops. He was charged as a person who aided another, or others, in committing the offence: Criminal Code, s 7(c). The essence of aiding is the rendering of support to the principal offender, or offenders. There must be knowledge of the enterprise (which, according to the appellant's record of interview, there was) and there must be some assistance to the principal offenders.
As Macrossan CJ pointed out in R v Beck [1990] 1 Qd R 30:
It is notable that just as subs.7(b) is not expressed in such terms as 'does any act which has the effect of enabling or aiding another person to commit the offence', so subs.7(c) is not expressed in terms 'does any act which has the effect of aiding any person in committing the offence'. If subs.7(c) were so expressed it would catch a lot of innocent people in its net, e.g. the taxi driver who innocently drives the passenger part of the way to the place where a crime will be committed by him. For this reason it is obvious enough that 'aids' in subs.(c) means 'knowingly aids' and this is the way it has been interpreted in the cases: per Philp J. in R v Solomon and per Matthews J. in R v Wylie Payne and Harper (C.A. 27, 28/1977; Court of Criminal Appeal, 25 May 1977, unreported). (38)
A person cannot be an aider through an act which unwittingly provides assistance to the principal offender. Nor can a person be an aider unless some support for the commission of the offence is actually provided: R v Beck (Macrossan CJ):
It is possible, after all, to aid someone in the commission of an offence while harbouring feelings of disapproval of the offence and of the conduct involved in it. This form of aiding could occur because of the strong call of a bond felt by the aider with the principal actor who, for his part, may need no encouragement and is determined, any how, to attempt to commit the offence. If the word 'aids' needs any explanation at all, it might, on occasions be better understood in its effect by the use of words such as 'give support to … help, assist' (see Collins English Dictionary (1979 ed.) and The Shorter Oxford English Dictionary). The word which the Code itself uses is 'aids' and it will always be necessary to come back to that. There must be some deliberate positive involvement, if not active physical involvement, when the offence of aiding occurs. (38)
In the present case, the circumstantial evidence revealed an actual involvement on the part of the appellant in the watering of the orchard area where the cannabis was found, and in the presence at his house of numerous items similar to those found at the locations of one or more of the cannabis crops. On his own admission, the appellant maintained the orchard with assistance from his sons. The items found at the house were related to the maintenance of the orchard and, incidentally, the cannabis crops. The appellant was responsible for the purchase of straw, bales similar to which were found amongst one of the cannabis crops.
In my opinion, there was, in this case, enough evidence to establish that the appellant aided the cultivation of cannabis at the property at Bowman Road, Donnybrook, and, thus, committed the offence of cultivation of a prohibited plant within the meaning of count 2 on the indictment.
I would therefore dismiss ground 1.
Ground 2
It is unnecessary to deal in any detail with this ground, because the respondent has conceded that the trial judge erred in his directions to the jury about the use to which alleged lies told by the appellant could be put. The ground, as formulated, is in the following terms:
1.The learned trial Judge erred in law in directing the jury that the alleged lie made by the Appellant that he did not use the on‑ground reticulation to water his trees was a lie that could demonstrate a consciousness of guilt.
2.The learned trial Judge erred in law in directing the jury that the alleged lie made by the Appellant that there wasn't any cannabis on the property was a lie that could demonstrate a consciousness of guilt.
For present purposes, it is sufficient to say that the first particular of the ground is established because there was no independent evidence that anybody had seen the appellant watering any of the cannabis sites by the use of on‑ground reticulation. There was no evidence which established that the appellant's statement that he had not used the on‑ground reticulation was capable of being construed as a lie.
The second particular of the ground relates to the appellant's initial statement to investigating police when asked whether there were any prohibited drugs on the property - particularly cannabis. The appellant said that there were not. Shortly afterwards, when investigating police questioned the appellant about the cannabis plants that had been found, he admitted that he was aware of that cannabis, but said that it was not his.
A question thus arose as to whether the alleged lie told by the appellant related to the cannabis material that comprised the first count on the indictment (a quantity of cannabis found on or near the premises of the appellant), or whether it related only to cannabis plants located on the property. Because it was ambiguous, the conduct said to demonstrate a consciousness of guilt on the part of the appellant was arguably 'intractably neutral': see Martinez v The State of Western Australia [302] and the discussion that follows.
The trial judge was in error in directing the jury that the statements of the appellant were capable of being treated as lies demonstrating a consciousness of guilt on his part. The respondent has therefore properly conceded that this ground of appeal is made out, and that the appropriate order would be to quash the conviction of the appellant on count 2 on the indictment and direct a retrial.
Orders
In my opinion, the orders of the court should be:
(a)the appeal be allowed on ground 2, but otherwise be dismissed;
(b)the conviction of the appellant on 9 March 2007 be quashed;
(c)the appellant be retried on count 2 on the indictment in the District Court at Bunbury on a date to be fixed; and
(d)the appellant's bail be extended on the same terms and conditions to appear in the District Court at Bunbury at the sittings next to be held after the delivery of this judgment.
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