Buiks v The State of Western Australia - [2008] WASCA 194

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BUIKS -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 194

CORAM: BUSS JA
MILLER JA
MURRAY AJA

HEARD: 12 AUGUST 2008

DELIVERED : 22 SEPTEMBER 2008

FILE NO/S: CACR 30 of 2008

BETWEEN: STEVEN PETER BUIKS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :WISBEY DCJ
Citation  :THE STATE OF WESTERN AUSTRALIA -v- BUIKS
File No  :IND 271 of 2006

Catchwords:

Criminal law and procedure - Appellant convicted as a principal offender of cultivation and possession of cannabis with intent to sell or supply - Appellant previously convicted as an aider and abetter of cultivation of cannabis with intent to sell or supply - Hydroponic cultivation on both occasions - Admissibility of evidence of prior offending - Whether prior conviction had significant probative value - Other evidence at trial largely circumstantial

Criminal law and procedure - Cultivation of cannabis with intent to sell or supply - Misuse of Drugs Act 1981 (WA) - Meaning of 'to cultivate' and 'to harvest' - Whether evidence capable of proving appellant involved in cultivation or harvesting of cannabis

Legislation:

Evidence Act 1906 (WA) s 31A
Misuse of Drugs Act 1981 (WA) s 3, s 6(1), s 7(1), s 11

Result:

Appeal allowed
Convictions quashed
Retrial ordered

Category: A

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Ms L Petrusa

Solicitors:

Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Buttsworth v The Queen [2004] WASCA 69; (2004) 29 WAR 1
Dair v The State of Western Australia [2008] WASCA 72
Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Gassy v The Queen [2008] HCA 18; (2008) 82 ALJR 838
Hoch v The Queen (1988) 165 CLR 292
KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221
Mouroufas v The Queen [2007] NSWCCA 58
Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457
Pfennig v The Queen (1995) 182 CLR 461
R v Giorgi (1982) 31 SASR 299
R v Palaga [2001] SASC 174; (2001) 80 SASR 19
R v Ruiz‑Avila [2003] NSWCCA 264; (2003) 142 A Crim R 459
R v Stratford and McDonald [1985] 1 Qd R 361
Smith v The Queen (1992) 7 WAR 527
State of Western Australia v Osborne [2007] WASCA 183
VIM v Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

BUSS JA: I have read the proposed reasons of Murray AJA. I respectfully disagree with his Honour's conclusion that the appeal should be dismissed. I would allow the appeal, quash the convictions and order a retrial.
My reasons are as follows.

Background

The appellant (Steven Peter Buiks) and three co‑accused, Faruk Sulejmani, Allan Spencer Vallance and Glen Fearn, were tried in the District Court before Judge Wisbey and a jury on an indictment alleging two counts, as follows:
(1)Between 1 January 2005 and 25 June 2005 at Kewdale Steven Peter Buiks, Faruk Sulejmani, Allan Spencer Vallance and Glen Fearn cultivated a prohibited plant, namely cannabis, with intent to sell or supply cannabis to another.
(2)On 24 June 2005 at Kewdale Steven Peter Buiks and Allan Spencer Vallance had in their possession a prohibited drug, namely cannabis, with intent to sell or supply cannabis to another.
Count 1 alleged a contravention of s 7(1)(a) of the Misuse of Drugs Act 1981 (WA) (the Act), and count 2 a breach of s 6(1)(a) of the Act.
On 31 January 2008, the appellant was convicted on both counts. He appeals to this court, pursuant to leave granted by Miller JA on 20 May 2008, against each conviction.
A fifth person, Paul Robert Benson, had been charged with count 1. He pleaded guilty at the commencement of the trial of the appellant and the three other co‑accused. A sixth person, Peter Ivan Buckman, had been charged with counts 1 and 2. He entered an early plea of guilty and was sentenced on 28 October 2005.

The relevant provisions of the Act

Section 6(1) of the Act provides:
Subject to subsection (3), a person who -
(a)with intent to sell or supply it to another, has in his possession;
(b)manufactures or prepares; or
(c)sells or supplies, or offers to sell or supply, to another,
a prohibited drug commits a crime, except when he is authorised by or under this Act or by or under the Poisons Act 1964 to do so and does so in accordance with that authority.
Section 6(3) is not relevant for present purposes.
Section 7(1) of the Act provides:
Subject to subsection (3), a person who -
(a)with intent to sell or supply a prohibited plant or any prohibited drug obtainable therefrom to another, has in his possession or cultivates the prohibited plant; or
(b)sells or supplies, or offers to sell or supply, a prohibited plant to another,
commits a crime, except when he is authorised by or under this Act or by or under the Poisons Act 1964 to do so and does so in accordance with that authority.
Section 7(3) is not relevant for present purposes.

The facts and circumstances relating to the two counts

On 24 June 2005, at about 12.45 pm, police officers executed a search warrant at 192 Belmont Avenue, Kewdale. They searched a house on the property. The police found Mr Benson and Mr Vallance in the house. The appellant was apprehended as he was endeavouring to leave through a sliding door at the back of the house. When the appellant was apprehended he was wearing pink rubber gloves which had small amounts of green plant material on them. Later, the gloves were tested and found to contain the active drug constituent of cannabis. He had the keys to 192 Belmont Avenue on his key‑chain and $3,000 cash in his pocket. Also, the police found $650 cash in the appellant's wallet. The wallet was in his motor vehicle which was parked at the property.
Mr Buckman, who was the lessee of 192 Belmont Avenue, arrived at the property while the police were searching it.
Two of the rooms at 192 Belmont Avenue contained numerous cannabis plants in pots and a sophisticated watering system attached to the pots, together with fluorescent grow lamps above the plants. The walls of the rooms were covered with reflective foil. The roof space in the house contained a power board that bypassed the meter and provided power for the grow lights. There were 30 cannabis plants in one room and 31 cannabis plants in the other. Air filters were attached to each room. The laundry in the house contained two large plastic tubs with a mixture of plant nutrients and water that were conveyed to the plants in the two rooms via the roof space.
A table in the dining room was covered with cannabis material that was being cut up. The cannabis on the table weighed about 650 grams. In addition, there was about 900 grams of cannabis material on the floor near the table. Eight pairs of scissors were on the table and several pairs of disposable gloves were found on and around the table.
In the lounge room, a short distance from the dining room table, were bread crates containing about 4 1/2 kilograms of cannabis which had been cut up. The crates were in front of a gas heater which was drying the cannabis.
Earlier on 24 June 2005, at about 11.30 am, the police had observed the appellant drive a Landcruiser motor vehicle, owned by Mr Vallance, from 192 Belmont Avenue to the Belmont Forum shopping centre. The appellant parked the vehicle and, shortly afterwards, a silver Holden Commodore motor vehicle arrived and parked next to the Landcruiser. The appellant got out of the Landcruiser, removed a green recyclable shopping bag and placed it in the boot of the Holden Commodore. He then removed a white polystyrene container from the boot of the Holden Commodore and placed it in the Landcruiser. The appellant then drove the Landcruiser to 192 Belmont Avenue, arriving at about 11.41 am.
Later, on 24 June 2005, the Landcruiser was searched by the police who found a white polystyrene container on the front passenger seat. Inside the container was a green recyclable shopping bag, a plastic bag and a small amount of cannabis. A mixed DNA profile was found on the handles of the green recyclable shopping bag. The appellant could not be excluded as a contributor to the mixed profile.
On 13 June 2005 (that is, 11 days before the police search), the appellant's motor vehicle was seen parked at 192 Belmont Avenue. Also, on 13 June 2005, he was observed driving to a hydroponic shop in Cannington called The Grow Room, entering the shop by a rear door, and leaving the shop by that door with piping and tubs.
Further, on 14 June 2005, the appellant's motor vehicle was seen parked at 192 Belmont Avenue.

The appellant's defence

The appellant gave sworn evidence at the trial. He said that he was an expert on hydroponics. He had formerly carried on a hydroponics business that included advising people and selling equipment used in growing hydroponic items. The appellant admitted that on 24 June 2005 he had been in the house at 192 Belmont Avenue.
According to the appellant, he was a friend of Mr Buckman. Mr Buckman, the appellant, Mr Benson, Mr Vallance and others attended a party. At the party, Mr Buckman requested the assistance of the appellant (and Mr Benson and Mr Vallance) to 'clip' or cut up some cannabis plants he was growing. Mr Buckman agreed to pay them $150 each. The appellant did not need the money. He agreed to assist Mr Buckman because he was a friend and had requested assistance. The appellant claimed he placed the key to 192 Belmont Avenue on his key‑chain on 24 June 2005 when he went to the Belmont Forum shopping centre. He did this because the front door of the house required a key to open it. He had received a telephone call from a friend, Darryl Smith, who had been endeavouring to sell purses and handbags to him. The friend had given the appellant some of these goods. The appellant arranged to meet the friend at the shopping centre for the purpose of returning them. The appellant placed the purses and handbags in a white polystyrene container he found in the Landcruiser. There was a green recyclable shopping bag in the container. The friend emptied the purses and handbags into his car and returned the container with the green recyclable shopping bag still in it. The appellant said the $3,000 cash in his pocket had nothing to do with cannabis and was money derived from a legitimate business. He intended depositing the cash in his bank account.
The appellant admitted that he had been at 192 Belmont Avenue on 13 and 14 June 2005. On 13 June 2005, he went to visit Mr Buckman to ascertain when the 'clipping' of the cannabis plants was to be done. Mr Buckman was not at home and, after a few minutes, the appellant left. On 14 June 2005, the appellant returned to the property to visit Mr Buckman. The appellant also admitted visiting The Grow Room on 14 June 2005. He had previously owned that business and had gone there to speak to the new owner about some money that was owing by the new owner to him and to collect some of his belongings. He placed the belongings (which did not include piping) in a black tub. He entered and left through the back door because the carpark for the business was adjacent to that door. All of the customers of The Grow Room used the back door.
The appellant said in evidence that he (and Mr Benson and Mr Vallance) had no involvement with the cannabis in the bread racks. That material had not been processed on 24 June 2005. The appellant said he had no involvement with the cannabis at 192 Belmont Avenue, except to the extent of 'clipping' or cutting some cannabis at the dining room table on that date. According to the appellant, he had never seen cannabis at 192 Belmont Avenue before 24 June 2005.

The appellant's prior conviction

On 18 November 2002, the appellant was convicted in the District Court, on his plea of guilty, on one count of cultivation of cannabis with intent to sell or supply, contrary to s 7(1)(a) of the Act.
On 11 December 2000, the police searched a house at 260 Jellicoe Road, Glen Forrest. The appellant's girlfriend, Antoinette Allegratta, was in the house. The appellant was apprehended in the course of running from the house towards bushland. During the search, the police found that the second floor of the house had been converted into a sophisticated hydroponic system for the growing of cannabis plants. A total of 267 plants were found. The roof space contained a power board that bypassed the meter and provided power to the hydroponic equipment.
The appellant was the owner of 260 Jellicoe Road. He had let the property to Emily Malycha pursuant to a fixed‑term tenancy agreement.
On 18 November 2002, when the appellant was sentenced, the State accepted that there was no evidence the appellant had a financial interest in the cultivation of the cannabis. The State's case at the sentencing was that the appellant was a party to the offence as a result of his agreeing to act as caretaker of the hydroponic system at the house while the principal offenders (who included Steven Slater, an associate of Ms Malycha) were away from the house. Also, before he was apprehended, the appellant provided the principal offenders with technical advice and equipment in the knowledge that the advice and equipment would be used in the growing of the cannabis plants.

The admissibility at the trial of the appellant's prior conviction

On 20 December 2007, the State made application to adduce evidence of the appellant's prior conviction at the trial. Macknay DCJ heard the application on that date. The State's application also sought to adduce evidence of the prior conviction of each of the appellant's co‑accused for cannabis‑related offences. The appellant's prior conviction was unrelated to the prior convictions of his co‑accused. The State's application was opposed.
The State submitted to Macknay DCJ that evidence of the prior convictions of the appellant and his co‑accused was 'propensity evidence' within s 31A of the Evidence Act 1906 (WA).
The State conceded that the circumstances of the appellant's prior conviction constituted 'an unusual situation' in that:
[The appellant] owned the house where a large hydroponic cannabis set‑up was located but it was accepted by the State on that occasion that someone else had actually grown the hydroponic cannabis, although [the appellant] had supplied some of the equipment, and that [the appellant] was just babysitting it for a few days, such that he was sentenced as an aider and abetter and not as a principal offender (ts 64).
Counsel for the State submitted:
In my submission, your Honour, a fair‑minded juror would feel justifiably aggrieved if they were deprived of the opportunity to see this other evidence - if they had not seen this other evidence and then found out that in fact four of these five other men had done this before in very, very similar circumstances, with large, sophisticated hydroponic set‑ups for cannabis in their house. That is something which, in my submission, your Honour, the fair‑minded juror would want to know (ts 68). [The reference to 'four of these five' excluded Benson who, at the time of the directions hearing, was still jointly charged with the other four].
Macknay DCJ ruled that the State could adduce evidence of the prior convictions at the trial. His Honour said:
The evidence in each case does have that quality, in my view, so as to have significant probative value, in the sense in which those words are used by section 31A, having regard to the judgment of McHugh J in the High Court decision of Pfennig and to the relevance of that to the interpretation of the section. The question, as I indicated at the outset of these reasons, is then, in each case, whether the probative value of the evidence, compared to the degree of risk of an unfair trial is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt, must have priority over the risk of an unfair trial.
As the state points out in the submissions in support of the application, the matter is not a discretionary one, that is once a judge forms the requisite view, if that view be formed, then the judge is obliged to admit the evidence. Here, careful directions to a jury would, in my view, be likely to prevent the evidence being used simply for its prejudicial effect. The evidence in each case is such that the view I have formed, given what I have just said, is that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. The evidence in each case must therefore be admitted (ts 83).
Immediately after Macknay DCJ made his ruling, counsel for the State said:
Your Honour, maybe I missed something there, but I have a query over the admissibility of the plea of guilty by Buiks [that is, the appellant] (ts 83).
The following exchange then occurred between counsel for the State and his Honour:
MACKNAY DCJ:   Well, I said in each case I think you will find.
HENDERSON, MR:   Sorry, in each case. Yes, the problem with Mr Buiks is that he didn't actually admit that the plants - sorry, that the hydroponic set‑up was his.
MACKNAY DCJ:   Well, I am aware of the circumstances in relation to Mr Buiks and you made an application to put forward evidence and I think I have ruled on that.
HENDERSON, MR:   Thank you, your Honour (ts 83 ‑ 84).

The conduct of the appellant's case and the State's case at trial in relation to the appellant's prior conviction

Counsel for the State referred, in opening, to the appellant's prior conviction. She said:
Now, back on 11 December in the year 2000 the house the accused Buiks was then living in at the time, which was 260 Jellicoe Road in Glen Forrest, was searched by the police. The second floor had been converted into a sophisticated hydroponic set‑up for growing cannabis. Large numbers of cannabis plants and cannabis seedlings were found. The power had been bypassed (ts 147).
At the commencement of the trial, counsel for the appellant referred to Macknay DCJ's ruling and said:
I feel bound by that ruling and don't wish to revisit it, but were my client to be convicted, your Honour, I want to make it perfectly plain that we are not in any way agreeing with the ruling, with respect, and it would be something that we would be taking, I would have thought, a lot further (ts 142).
The State did not formally prove the appellant's prior conviction. No certificate of final outcome or criminal calendar (whichever was relevant) was tendered. Also, no statement of material facts with which the appellant agreed at the sentencing hearing was tendered.
The only evidence led by the State in relation to the prior conviction was from Detective Senior Sergeant Dominic Blackshaw. He executed the search warrant at 260 Jellicoe Road and was in charge of the search of the house. Detective Senior Sergeant Blackshaw gave evidence of what was found during the search of the house and also of the apprehension of the appellant. The search was recorded on videotape. The videotape was played at the trial and tendered. Detective Senior Sergeant Blackshaw was cross‑examined in relation to the prior conviction and the appellant's role in the cultivation of the cannabis. The cross‑examination was, relevantly, as follows:
It was accepted, wasn't it, that it was Slater's plantation and that the accused man, although he owned that house, was in fact only staying there for a few days?‑‑‑I'm not sure about that, that it was actually Slater's plantation. I don't know if that was ever mentioned. I'm not sure.
In any event, it was accepted that the accused man's role was a somewhat lesser role than it perhaps at first appeared when one ‑ ‑ ‑?‑‑‑Yes, that's correct.
When one went to the house, found him there, found this crop upstairs and the house was his, one might have thought, 'Well, it's basically - it's his crop lock, stock and barrel,' but it was accepted that that was not necessarily the case, wasn't it?‑‑‑That's correct, yes, yes.
All right. Now, the videotape was edited and nothing sinister about that. A lot of the conversation was with the young lady Antoinette Allegretta. Is that right?‑‑‑Yes, that's right.
And because she's not an accused person, that was edited out of the video that the jury just saw. Is that right?‑‑‑Yes. That's correct.
In fact she wasn't charged with this crop in due course, was she?‑‑‑No, she wasn't.
No, eventually after full investigation the police accepted that she had really nothing to do with it?‑‑‑Well, there's no evidence to be able to charge her (ts 365).

The appellant, in his sworn evidence, referred to his prior conviction. He said, in evidence‑in‑chief:
(a)he did not decide to grow cannabis at 260 Jellicoe Road (ts 386);
(b)he had nothing to do with the actual cultivation of the cannabis at that property (ts 386);
(c)he and his girlfriend were staying at 260 Jellicoe Road when the police arrived and searched the property: he had been there during the weekend (ts 386);
(d)he stayed at the property knowing that the cannabis crop was upstairs (ts 387 ‑ 388);
(e)when he came to be sentenced, the State and the sentencing judge accepted that he had 'the comparatively lesser role' that he had described and, on that basis, he was given a suspended term of imprisonment (ts 389).
The appellant was cross‑examined on his prior conviction:
When the police arrived at 260 Jellicoe Road in December 2000, you have now told us you were only staying there for a few days - the weekend basically?‑‑‑Yep.
Why did you - do you remember telling the police that you lived there?
‑‑‑I do, yes.
And why did you tell them that?‑‑‑I don't really know.
And do you remember telling the police that no one else lived there?‑‑‑No, I don't recall saying that; no (ts 418).
Later in the cross‑examination, there were these questions and answers:
So let me understand this. You had been previously convicted of cultivating cannabis?‑‑‑Yes.
You pleaded guilty to that. You had been given a suspended sentence?‑‑‑Yes.
And a number of years later you're happy to just go along and help a friend cut up some cannabis?‑‑‑Yes (ts 423).
Counsel for the appellant, in the course of his re‑examination of the appellant, complained to the learned trial judge, in the absence of the jury, that the prosecutor's cross‑examination was directed to establishing that the appellant's role in the cultivation of the cannabis in 2000 was more extensive than had previously been accepted by the State. Counsel for the State responded, also in the absence of the jury:
Your Honour, I did not in any way cross examine this witness to suggest what he was saying his involvement was - now saying his involvement was in the cultivation of the cannabis at 260 Jellicoe Road was somehow not accepted. What I did cross examine this witness about is what I would say were his lies to the police and that is simply something that goes to his credibility and nothing more. I didn't take it any further than that and the members of the jury will have the video as to what he said to the police. It was simply going to his credibility and absolutely nothing more (ts 436).
Counsel for the State referred, in closing, to the appellant's prior conviction:
Members of the jury, sitting here yesterday when you listened to the stories that Mr Buiks and Mr Buckman and Mr Fearn told you in examination‑in‑chief, you might well have been left thinking that the accused in this matter would like you all to believe that they all have been involved in a series of rather unfortunate coincidences.
First of all, there's poor Mr Buiks who despite his prior conviction for cultivating cannabis which in circumstances he said were effectively he had gone to a house which was his house but for the weekend, knowing that there was cannabis there ‑ he described that as being the stupidest thing he'd ever done, yet some years later, he agrees to help his friend Mr Buckman clip cannabis for one day. That's it.
Of course, he didn't do it for the $150 because of course he told you he was earning $100,000 a year, doing exactly what you may have found somewhat difficult to follow because it seemed to vary from working for someone else or had his own company. It sort of seemed to change as the story went on. In the lead up to that day, Mr Buiks had been unfortunate enough to be at 192 Belmont Avenue on the days it just happened to be being watched by the police.
… It also is just some sort of coincidence that he chose one of those three days to go and follow up with the new owners of The Grow Room about the sale of that business and then on 24 June when he is at 192 Belmont Avenue, his friend calls him up and he arranged to go to Belmont for him to return some fake handbags and purses in a manner that looks rather suspiciously like a cannabis transaction and he's had them for two weeks, it just happens to be that day again. It also just happens to be a day that he's got $3000 cash in his pants pocket from his business.
…
Now also of course I would say Mr Buiks and Mr Fearn didn't quite get their stories straight either. Mr Fearn said he'd seen Buiks around but didn't really know him or anything like that yet Mr Buiks told you about conversations he had with Mr Fearn about how he was a motocross champion and how he should have stuck with it but perhaps they didn't get their stories quite straight either. Now of course both Buiks and Buckman, I would suggest to you lied to the police at times. Now Mr Buiks was in relation to he was living at 260 Jellicoe Road back in 2000 and Mr Buckman in relation to when he gave the key to Mr Buiks (ts 2 ‑ 5).

The learned trial judge's summing up in relation to the appellant's prior conviction

The learned trial judge, in his summing up, directed the jury in relation to the appellant's prior conviction, as follows:
(a)In this case you have heard evidence that each of the accused persons has involved himself in hydroponic cannabis cultivation on an occasion other than that charged in the Indictment. You will recall the evidence that on 11 December 2000 a hydroponic cannabis crop was discovered at 260 Jellicoe Road, Glen Forrest, being a property owned by Mr Buiks (ts 530).
(b)He was charged with and pleaded guilty to cultivation with intent and in evidence he has given you his account of those events … (ts 530).
(c)It is important that you realise you can't reason simply because the accused whose position you are considering has engaged in similar conduct on another occasion that he has done what is alleged against him in the charge in the Indictment, and that would be obvious to you. The fact that you have offended before, it doesn't follow from that that you are guilty of a subsequent offence. The subsequent offence must be proved by the evidence (ts 530). [emphasis added]
(d)The fact that the accused has or is engaged in such activity, however, is a matter you are entitled to take into account in analysing the case against him. It's one of a number of circumstances which the State says is relevant to a consideration of and evaluation of the evidence presented against him and in determining the likelihood of his involvement in the enterprise the subject of the counts in the Indictment (ts 530).
(e)It is of course relevant in assessing the evidence of the reasons behind the attendance of Mr Buiks or Mr Vallance at the Belmont Avenue property whether it was merely an innocent, casual occasion, whether it arose merely in the circumstances outlined by Mr Buckman. It's also relevant when considering the circumstantial cases against Mr Sulejmani and Mr Fearns and the evidence of the discovery and location of their fingerprints on the objects at the Belmont Avenue premises, and of course it is also relevant when considering issues such as knowledge and intent which I have previously spoken to you about (ts 530).
(f)I differ in my view with one of the counsel in that whilst there has been a recent legislative amendment to our Evidence Act dealing with such evidence, that evidence, that is of similar activities was, prior to the amendment, admissible if it had relevance to the proof of issues in the trial in the manner in which I have just described to you (ts 531).
(g)Now let's deal with the state case against each accused person. The case against Mr Buiks: the State says to you that the evidence establishes that he had prior involvement with the hydroponic cultivation of cannabis. The state says that he had an ongoing connection with the Belmont Avenue property (ts 531).
Later in his summing up, the learned trial judge made further mention of the appellant's prior conviction:
Mr Buiks gave evidence on oath before you. You will recall in particular that he said he had a vocational background in hydroponics. Although he had a conviction for cultivation with intent in December 2000, he stated that the cultivation was largely the responsibility of a person called Slater and that he had not actually had anything to do with cultivating the cannabis, his involvement simply being that he owned the premises and he was renting the premises to Slater with a view to Slater subsequently purchasing the premises from him and that he had gone to the premises on the weekend of the execution of the Misuse of Drugs Act warrant for the reasons which he outlined (ts 540).

The grounds of appeal

There are three grounds of appeal. They read:
1.The trial Judge erred in admitting into evidence conduct of the Appellant's past conviction under Section 31A of the Evidence Act 1906 in that:
Particulars:
a)It did not have significant probative value, and;
b)it cannot be said that the probative value of the evidence compared to the degree of risk of an unfair trial was such that fair minded people would think that the public interest of adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
2.The trial Judge failed to adequately direct the jury on the circumstantial evidence of the past criminal conduct, which failure led to a miscarriage of justice because, although the circumstances required it;
Particulars:
a) he failed to direct the jury about the distinction between 'propensity' and 'prejudice' arising from the previous conviction;
b)he failed to identify and elicit what was distinctive about the propensity evidence;
c)he failed to direct the jury that the facts of the previous conviction were markedly different to the evidence at trial.
3.The learned trial Judge erred when he misdirected the jury as to a defence open to the Appellant, such that there was a miscarriage of justice;
Particulars:
a)the Appellant's defence to Count one was that he merely 'clipped' the cannabis;
b)such activity is not included within the definition of 'cultivate' contained within the Misuse of Drugs Act 1981;
c)His Honour misdirected the jury concerning both 'cultivation' and harvesting';
d)a re-direction on point failed to adequately redress the error;
e)His Honour's misdirection meant a defence open to the Appellant was not properly left to the jury.

The merits of ground 1

Section 31A of the Evidence Act provides:
(1)In this section -
'propensity evidence' means -
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
'relationship evidence' means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
(3)In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.
Section 31A was introduced into the Evidence Act by s 13 of the Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 (WA). The Parliament's purpose in enacting s 31A was to confer on the courts greater power to admit propensity and relationship evidence. See the second reading speech of the Attorney General: Western Australia, Parliamentary Debates, Legislative Assembly, 30 June 2004, 4068.
Section 31A substantially amended the common law. It abolished the test that propensity evidence is inadmissible if there is a rational view of it, when considered with other relevant evidence, that is inconsistent with the accused's guilt. See Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [102] ‑ [130]; Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482 [44] ‑ [73]; Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [26]. By s 31A, propensity evidence, as defined in s 31A(1), is admissible if the court considers that the requirements of each of paras (a) and (b) of s 31A(2) have been satisfied.
Recently, in Dair v The State of Western Australia [2008] WASCA 72, Steytler P analysed s 31A. His Honour said, in relation to the concept of 'significant probative value', within s 31A(2)(a):
The evidence in question must obviously be relevant before it can be admitted into evidence. That is to say, it must be such as could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding: Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2] (Gleeson CJ); Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 [50]. It could otherwise have no probative value, let alone 'significant' probative value.
Before evidence can have significant probative value it must be such as 'could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent: ie, more is required than mere … relevance': Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171, 175 - 176. Heydon [21245] suggests that significant probative value is something more than mere relevance but something less than a 'substantial' degree of relevance and that it is a probative value which is 'important' or 'of consequence'. He makes the point that the significance of the probative value of tendency evidence must depend on the nature of the facts in issue to which it is relevant and the significance or importance which that evidence may have in establishing the fact: Lockyer (1996) 89 A Crim R 457, 459; Lock (1997) 91 A Crim R 356, 360 - 361; Fordham (1997) 98 A Crim R 359, 370; Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51 [77] - [82]; The State of Western Australia v Osborne [2007] WASCA 183 [13], [60] ‑ [61].
I respectfully agree with the President's analysis.
In Dair, Steytler P then examined the comparison which s 31A(2)(b) requires. The passage in his Honour's reasons is lengthy, but it is desirable to reproduce it. His Honour said:
Once the evidence is found to have significant probative value, either by itself or taken with other evidence, the court must engage in the process contemplated by s 31A(2)(b). Because there will already have been an assessment of the probative value of the evidence (taking into account the purpose for which it is adduced and its likely effect when considered together with the other evidence), it is necessary, next, to assess the degree of risk of unfairness in the trial that will be brought about by the admission of the evidence.
Geoffrey Flatman QC and Dr Mirko Bagaric, 'Non-similar Fact Propensity Evidence: Admissibility, Dangers and Jury Directions' (2001) 75 Australian Law Journal 190, 199, identify a threefold prejudice (only part of which is present in this case) involved in the introduction of similar fact evidence, as follows:
1.'The over strong tendency to believe that the defendant is guilty of the charge merely because he is a likely person to do such acts' (Wigmore, Evidence (1940), p 650; see also Waight and Williams, [Evidence: Commentary and Materials (5th ed, LBC, 1998)], p 426 (citing R v Bailey [1924] 2 KB 300 at 305: 'it is easy to derive from a series of unsatisfactory allegations … an accusation which at least appears satisfactory … to collect from a mass of ingredients, not one of which is sufficient, a totality which will appear to contain what is missing')). This comes down to the belief that the jury will over-estimate the cogency of the similar fact evidence; the jury may act illogically by giving too much weight to the evidence. In BRS v The Queen ((1997) 191 CLR 275) Kirby J stated:
'research confirms the common tendency to infer from particular conduct character traits which are then used to justify predictions and estimates about other conduct. However, objectively, such predictions are frequently shown to be unwarranted (Ibid at 322).'
2.'The tendency to condemn, not because he is believed guilty of the present charge, but because he has escaped punishment from other offences' (Wigmore … p 650). Thus, 'there might be a tendency for the jury to punish the accused for past misconduct by finding the accused guilty of the offence charged' (R v Rarru (1996) 107 CCC (3d) 82). This second danger refers not to a possible defect in logic that may be triggered by similar fact evidence, but the fear that the jury will convict solely due to a bias against the accused: 'sentiments of revulsion and condemnation … might well deflect [the jury] from the rational dispassionate analysis upon which the criminal process should rest' (Ibid). In short, it is thought that the reception of similar fact evidence may result in a bias being formed against the accused which will taint the jury's decision.
3.'The jury might become confused [or distracted] as it concentrates on resolving whether the accused actually committed the similar acts' (Ibid; see also … Pfenning v The Queen (1995) 182 CLR 461 at 512).
(See also Heydon [21135] - [21150].)
When assessing the risk of an unfair trial for the purposes of this hypothetical comparison, the court will take into account any directions that might be given to the jury in an attempt to overcome the prejudice, and their likely effect on the jury. It is important to bear in mind in this respect that, when propensity evidence is admissible as such because it meets the requirements for the admission of evidence of that kind, a standard propensity warning will not be required: Noto [27]. In KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221, McHugh J said (235):
If evidence tendered to prove a subsidiary issue (including the relationship between the parties) reveals the criminal or discreditable conduct of the accused, the judge will often, but not always, have to give a propensity warning … And if evidence has been admitted generally as propensity evidence, it is difficult to see how a propensity direction is ever required. In that class of case, the evidence is tendered to prove that the accused is the type of person who is likely to have committed the crime with which he or she is charged. To require a propensity direction would contradict the basis on which the propensity evidence is admitted. And that is so, whether the propensity evidence consists of uncharged acts or evidence supporting the charge in one count that is also relevant to charges in other counts in the presentment. (emphasis in original)
Of course, that does not necessarily mean that, in a case in which propensity evidence is admissible as such, no warning of any kind is required. Whether a warning is required and, if so, the terms of that warning, will depend upon the circumstances of the individual case. It is important to have regard for the purpose for which the evidence is admitted and to tailor the directions accordingly: Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 [77] (McHugh & Hayne JJ). It is also important to bear in mind what was said by Kirby J in BRS (330) as follows:
It is … necessary to remind oneself that a judge's direction to a jury must be considered in the context of the entire trial and in the light of the issues litigated and the submissions made. This Court should exercise restraint before adding to the catalogue of warnings required of judges conducting criminal trials. If overlooked, or considered unnecessary in a particular trial, they may simply give rise to unmeritorious appeals. But, in certain fundamental matters, the judge carries an unavoidable obligation to provide directions which are necessary to prevent a perceptible risk of a miscarriage of justice. The risk must be a real, and not a fanciful one to attract the intervention of an appellate court. It is not enough that a conclusion is reached that a particular warning would have been desirable. It must be shown to have been necessary in order to avoid the risk of a miscarriage of justice. (footnotes omitted)
Having identified the probative value of the evidence and the degree of risk of an unfair trial, the court must turn its attention to the conclusion that fair-minded people would draw from a comparison of the two. These fair-minded people are presumably reasonable members of the general public who are not lawyers: Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 9] (Unreported, NSWCA, 27 November 1990) (20), cited in Australian National Industries Ltd v Spedley SecuritiesLtd (in liq) (1992) 26 NSWLR 411, 419; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J). However, the legislature must be taken to have assumed that such people would have informed themselves of 'at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances': Johnson [53] (Kirby J).
The comparison that these fair-minded people are to be assumed to have undertaken is problematic. As McHugh J pointed out in Pfennig (528), 'prejudicial effect [or, I would suggest, the degree of risk of an unfair trial] and probative value are incommensurables' that have 'no standard of comparison'. It is not easy to compare the probative value of the evidence with the degree of risk to the fairness of the trial that is brought about by its introduction. That risk arises because the jury might use the evidence in an impermissible way. In a case in which the evidence is led for its propensity value (for example, as identification evidence), the risk of unfairness might increase proportionately with the probative value of the propensity evidence. In effect, the test provided by subs 2(b) requires an assessment to be made whether fair-minded people would think that the interests of justice require the admission of the evidence despite the risk: cp the similar comments made by McHugh J in Pfennig (528) in respect of his statement of the position under the common law [62] ‑ [67].
Again, I respectfully agree with his Honour's observations.

In the present case, counsel for the State submitted to this court that the evidence relating to the appellant's prior conviction had 'significant probative value', within s 31A(2)(a), in that:
(a)the prior conviction demonstrated that the appellant had 'a tendency to be involved with large hydroponic set‑ups in houses'; and
(b)it rebutted any 'innocent explanation' of the appellant for having been at 192 Belmont Avenue on 24 June 2005, when it was searched by the police.
As I have mentioned, the State did not formally prove the appellant's prior conviction. Also, no statement of material facts with which the appellant agreed at the sentencing hearing was tendered. A videotape of the search by the police of 260 Jellicoe Road was played at the trial and tendered. The police officer who produced the videotape, and was present when 260 Jellicoe Road was searched, said in evidence the police accepted that the appellant's role in the cultivation of cannabis at 260 Jellicoe Road was 'a somewhat lesser role than it perhaps at first appeared' (ts 365).
As I have mentioned, the appellant admitted the prior conviction and put forward his own version as to his involvement in the offence: he had nothing to do with the decision to grow cannabis or the actual cultivation of the cannabis at 260 Jellicoe Road; he had merely stayed at the property for a few days ('the weekend basically') before the police arrived and searched the property; and he stayed at the property knowing there was a cannabis crop growing upstairs.
Although the appellant was not cross‑examined on his evidence as to the nature and extent of his involvement in the cultivation of cannabis at 260 Jellicoe Road, the jury were never told that his evidence concerning his involvement was not in contest. The learned trial judge merely said, in his summing up, that the appellant was charged with and pleaded guilty 'to cultivation with intent and in evidence he has given you his account of those events' (ts 530).
It is apparent, from the verdicts of guilty, that the jury rejected the appellant's account as to the limited nature of his involvement with the cannabis operation at 192 Belmont Avenue. It is unclear, however, whether the jury accepted the appellant's evidence as to the nature and extent of his involvement with the operation at 260 Jellicoe Road.
The appellant's alleged involvement in the cannabis operation at 192 Belmont Avenue was substantially more serious than his involvement in the operation at 260 Jellicoe Road. Count 1 in relation to 192 Belmont Avenue alleged, relevantly, that between 1 January 2005 and 25 June 2005, he and his co‑accused, Mr Sulejmani, Mr Vallance and Mr Fearn, cultivated cannabis with intent to sell or supply cannabis to another. On the State's case, the appellant was a principal offender. Count 2 in relation to 192 Belmont Avenue alleged, relevantly, that on 24 June 2005, the appellant and Mr Vallance had cannabis in their possession with intent to sell or supply cannabis to another. Again, on the State's case, the appellant was a principal offender. Count 2 (alleging possession with intent to sell or supply) related to the 4.5 kilograms of cannabis in the bread crates. Count 1 (alleging cultivation with intent to sell or supply) related to the balance of the cannabis found at the house (that is, the plants growing in the two rooms and the cannabis on and near the dining room table). By contrast, the appellant's involvement in the operation at 260 Jellicoe Road was confined to a few days ('the weekend basically'). Also, he was merely an aider and abetter in that he was 'babysitting' the operation during that period.
At face value, it is true, as the State submitted, that the evidence of the appellant's prior conviction demonstrated that he had a tendency to be 'involved' with 'large hydroponic set‑ups in houses', and rebutted any 'innocent explanation' he may have had for being at 192 Belmont Avenue on 24 June 2005, when it was searched by the police. But, in my opinion, the evidence of the prior conviction did not, on close scrutiny, have 'significant probative value' either by itself or having regard to other evidence adduced or to be adduced, within par (a) of s 31A(2), in relation to counts 1 and 2.
First, the evidence in question merely established that the appellant previously had a very limited, peripheral and short‑term involvement in the cultivation of cannabis as an aider and abetter. Count 1 alleged an involvement in the cultivation of cannabis which was significantly greater. It was long‑term, central and substantially more egregious in nature. Count 2 alleged possession (as distinct from cultivation) of a commercial quantity of cannabis as a principal offender. The prior conviction did not involve the possession of any cannabis.
Secondly, the appellant did not advance an 'innocent explanation' for his presence at 192 Belmont Avenue on 24 June 2005. His counsel explained to the jury, in opening, that the appellant admitted he was 'clipping' or cutting up cannabis at the dining room table on that occasion. According to his counsel, the appellant may have committed some offence, but not the offences alleged in the indictment.
The evidence of the appellant's prior conviction did not rationally affect the assessment of the probability of the existence of the facts in issue, in the context of counts 1 and 2, to a significant extent, either by itself or having regard to other evidence adduced or to be adduced. The evidence in question was therefore inadmissible.
Counsel for the State who appeared at the hearing before Macknay DCJ appears to have been alert to this issue (see [30] above), but the significance of the point was unappreciated or lost at the trial.
It is unnecessary, in the circumstances, to consider the application of para (b) of s 31A(2).
Ground 1 of the appeal has been made out.

The merits of ground 2 of the appeal

It is unnecessary, as a result of ground 1 having been made out, to consider ground 2 of the appeal. Also, it is artificial to consider ground 2 in that I have decided the evidence of the prior conviction was not admissible under s 31A of the Evidence Act and ground 2 attacks the learned trial judge's directions on the basis that the evidence was admissible. I should not be taken to accept that his Honour's directions would necessarily be appropriate in a case where evidence of a prior conviction is admissible under s 31A. See generally, however, Steytler P's comments in Dair [81] ‑ [89].

The merits of ground 3 of the appeal

Ground 3 of the appeal relates to count 1, but not count 2.
Count 1 alleged, relevantly, that the appellant had cultivated cannabis with intent to sell or supply cannabis to another, contrary to s 7(1)(a) of the Act.
The term 'to cultivate' is defined in s 3(1) of the Act:
'to cultivate', in relation to a prohibited plant, includes to grow, sow or scatter the seed produced by, or to plant, nurture, tend or harvest, the prohibited plant;
The word 'harvest' is not defined.
The appellant's case at trial was that his 'clipping' and cutting of the cannabis could not properly be characterised as 'cultivating', as alleged in count 1. The State asserted at the trial that the appellant's activities with the cannabis did constitute cultivation within the definition of 'to cultivate' in that the appellant was 'harvesting' the cannabis.
The learned trial judge, in his summing up, directed the jury in relation to the meaning of 'to cultivate', as follows:
(a)To cultivate is intended to deal with the process of the production of the drug from the soil and covers all activities associated with that production, including of course preparing the soil, sowing the seed, fertilising the plant, tending and caring for the plant and, finally, harvesting the crop, and in the context of this case, the issue of harvesting is a matter that arises particularly for your consideration. Harvesting includes not only the actual removal of the plant or portion of the plant from the soil but also the ancillary activities associated with the production of the drug from the soil to its consumable form, and that's what harvesting means (ts 522). (emphasis added)
(b)The state says that in respect to the activities on 24 June - and of course the case is wider than that but I'm just dealing with this issue of harvesting - with respect to the activities on 24 June, the state says that it would be open to you to find on the evidence that what was taking place was the removal of the head from the stem or stalk material, removal of the leaf; that is, the gathering in of the grain, as it were, for the purpose of the possession of cannabis. You have heard evidence that it is the head that is the asset of the plant, as it were, that is the portion that is desired for consumption in the community, and the state says to you that the removal of the head of the cannabis plant is clearly an aspect of harvesting that crop (ts 523).
(c)Not only must the accused have cultivated the prohibited plant, cannabis, or assisted in cultivation in the knowledge of what was taking place, but he must have knowledge that the plant he was cultivating was cannabis. Having regard to the material that has been placed before you - it's a matter entirely for you, but you would have no doubt at all that the accused persons know what cannabis is and would be able to recognise cannabis and the plant (ts 524).
After the jury had retired, they returned with this request:
Can we please have the Australian law definition as described by your Honour for cultivation and harvesting (ts 567).
The learned trial judge responded:
The Misuse of Drugs Act provides that the term 'to cultivate' includes relevantly to grow, sow or scatter the seed produced by it or to plant, nurture, tend or harvest the prohibited plant. The term 'to cultivate' is intended to deal with the whole process of production of the drug from the soil and covers such things as preparing the soil, sowing, fertilising, tending and caring for the plants and as I said, finally harvesting the crop. The harvesting aspect of cultivation includes not only the actual removal of the plant or part of the plant from where it is growing but the ancillary activities necessary for the production of the drug.
In respect of this issue, it is necessary for you, the jury, to determine as a question of fact what activity was being embarked upon and then having determined that activity, whether you are satisfied beyond reasonable doubt that that activity is harvesting within the definition I have given you (ts 569).
The appellant's counsel submitted to this court that the cannabis which the appellant 'clipped' or cut up on 24 June 2005 was from plants that 'were already out of the ground'. It was submitted that the learned trial judge's direction to the jury that 'harvesting' (within the definition of 'to cultivate') included 'the ancillary activities necessary for the production of the drug' was erroneous. Counsel submitted, in essence, that if the plants have already been cut from the ground, or the containers in which they are growing, before the 'stripping' of the cannabis commences, then the 'stripping' activity (which includes 'clipping' or cutting up) is not harvesting or otherwise within the definition of 'to cultivate'.
The State's counsel submitted to this court that the activities undertaken by the appellant at the dining room table in the house at 192 Belmont Avenue came within the definition of 'to cultivate' because those activities constituted, or were a component of, harvesting. According to counsel, the learned trial judge's directions concerning 'cultivation' and 'harvesting' were comprehensive and proper. Counsel asserted, in particular, that his Honour was correct to instruct the jury that 'harvesting includes not only the actual removal of the plant from the soil but also the ancillary activities associated with the production of the drug from the soil to its consumable form' (ts 522). Counsel also contended that his Honour's further direction, in response to the jury's request, was correct. On that occasion, his Honour said that 'the harvesting aspect of cultivation includes not only the actual removal of the plant or part of the plant from where it is growing, but the ancillary activities necessary for the production of the drug' (ts 569).
In R v Giorgi (1982) 31 SASR 299, the Full Court of the Supreme Court of South Australia considered the meaning of the word 'cultivate' in the Narcotic and Psychotropic Drugs Act 1934 (SA). Section 5(2) of that Act provided, relevantly, that a person who 'cultivates a prohibited plant', knowing it to be a prohibited plant, shall be guilty of an indictable offence. The word 'cultivate' was not defined in the Act. King CJ (Matheson J agreeing) referred to dictionary meanings of the word 'cultivates'. His Honour said, in relation to the dictionary meanings:
They fall into two broad categories. In one category the meanings are narrow, the emphasis being on the growth of the plant and on the tending and caring for the plant during the process of growth. In the other category the meanings are broader and encompass the whole process of production from the soil, including preparing the soil, sowing, tending and caring for the plant during growth, and reaping or harvesting.
Examples of the second category are 'to produce or raise by tillage' (Shorter Oxford (Murray) New English Dictionary) and 'to raise by cultivation' (The Encyclopaedic Dictionary). Some of the dictionary meanings expressly refer to 'reaping' (Funk & Wagnalls' Standard Dictionary (1974) vol. 1 at p. 314; Black's Law Dictionary Revised, 4th ed. (1978), at p. 454) (302 ‑ 303).
King CJ held that the Parliament intended that 'cultivate' in s 5(2) of the Act should bear its broader meaning. His Honour said that the harvesting aspect of cultivation would include 'not only the actual removal of the plant or portion thereof from the soil, but also the ancillary activities of laying out, stacking, removal to nearby sheds and placing in those sheds' (ts 303). Also see R v Palaga [2001] SASC 174; (2001) 80 SASR 19 [135]‑ [136] (Gray J).
In R v Stratford and McDonald [1985] 1 Qd R 361, Macrossan J (Ryan J agreeing) considered the meaning of 'cultivate' in the context of cultivating a prohibited plant, contrary to s 130(2)(b) of the Health Act 1937 (Qld). The word 'cultivate' was not defined in the Act. After referring to dictionary definitions and the decision Giorgi, Macrossan J said:
Confident that it is the limits of the ordinary meaning of the word 'cultivate' which are to be considered it may be observed that although, no doubt, an isolated act may constitute cultivation, in its ordinary conception the activity of cultivation is a continuing one and, in this sense, it is constituted by repeated and perhaps varying acts performed with a view to fostering the growth of plants, most frequently with the purpose of achieving a final harvest from those plants. In such cases, while the whole of the continuing activity would represent the totality of the cultivation, the individual acts comprising the whole of the cultivation would themselves be acts of cultivation. In other words each and all of such acts are acts of cultivation. It may be necessary to distinguish non-purposive or accidental applications of water and other acts which might be performed having an unintended effect of encouraging the growth of plants. These may not be included because both physical activity and intention accompanying that activity are involved in the notion of cultivation. The concept of cultivation involves taking seeds or plants into care for the purpose of fostering growth or further growth from them, most frequently with a view to harvesting the plants. When plants are taken into care in this sense, I would not consider that relevant acts of cultivation cease before the harvest is taken. In my opinion, it would be an unduly narrow view to suggest that a farmer’s activity of cultivation ceases with his last act of tilling, fertilising, irrigating etc occurring before he commences to gather his crop. He holds himself ready to tend his crops and supply their needs as they become manifest. He remains engaged in cultivation until he takes his crop. In practice, of course, an allegation of cultivation by a person will be established by proving that he has performed one or more specific physical actions. I consider that the correct view in the example which I have given of the farmer is that the act of harvesting itself is one of the acts of cultivation. I emphasize that in this discussion I intend to refer to plants taken into care in the sense discussed and I do not mean to suggest that a stranger who takes a leaf from a cannabis plant, which he happens to encounter, thereby is concerned in any act of cultivation and, similarly, in the case of a boy who steals grapes from a farmer's vine. In taking the fruit, he is neither engaged directly in cultivating nor in acting in aid of the farmer in his activity of cultivation. On the other hand, the meanings which I suggest and which include a final act of harvesting as part of the concept of cultivation of a growing plant taken into care, seem to make best sense of the purpose of the statute and to give proper effect to the ordinary meaning of the word (368 ‑ 369).
In R v Ruiz‑Avila [2003] NSWCCA 264; (2003) 142 A Crim R 459, the Court of Criminal Appeal of New South Wales construed the definition of 'to cultivate' in s 3 of the Drug Misuse and Trafficking Act 1985 (NSW). The term was defined to include to 'plant, grow, tend, nurture or harvest' a prohibited plant. In that case, the appellant was convicted at trial of, relevantly, knowingly taking part in the cultivation of cannabis. He leased a residential unit. Police searched the unit and found a large amount of cannabis drying on racks, as well as equipment for packaging it. Hidden J (Greg James J and Newman AJ agreeing) held that there may be circumstances in which the storage of a crop might constitute the last stage of the harvesting process [23]. Whether storage of a particular crop was part of the harvesting process was a question of fact to be determined in the particular circumstances of each case [23]. It was erroneous to regard the word 'harvest' as embracing, as a matter of law, storage of a crop [23]. Hidden J also said, in relation to the case before the court:
It is difficult to see how the storage of the cannabis at the unit in the present case could be classified as part of the harvesting process, given the reasonable possibility, acknowledged by the Crown prosecutor at trial, that it had been grown elsewhere and brought to the unit for the purpose of drying and packaging. Its presence in the unit is far more consistent with its being prepared for supply (the allegation embraced by the first count). In my view, if the question whether the storage was part of the harvesting process had been left for the jury to decide, it would not reasonably have been open to them to conclude that it was. In the light of the confined manner in which the case was left to the jury, the verdict in respect of count 3 could not be sustained in any event.
It may be that the Crown case need not have been limited in the way it was, and that the question whether the cultivation was undertaken, in whole or in part, at the unit might have been left to the jury. However, it would not be appropriate for the Crown to have the opportunity at a new trial to make out a different case: cf R v Anderson (1991) 53 A Crim R 421 at 453 per Gleeson CJ. The verdict on count 3 should be quashed and a verdict of acquittal entered [24] ‑ [25].
More recently, in Mouroufas v The Queen [2007] NSWCCA 58, the Court of Criminal Appeal of New South Wales considered again the meaning of the concept of 'harvest' within the definition of 'to cultivate' in s 3 of the Drug Misuse and Trafficking Act. The appellant in that case had been convicted at trial of cultivating a number of prohibited plants, namely cannabis, which was not less than the commercial quantity applicable to that plant, namely 250 plants, contrary to s 23(2)(A) of the Act. The Crown case against the appellant included evidence from a witness that she had seen the appellant on two or three separate occasions sitting on a chair in a shed. The shed was on a property at which cannabis plants had been grown. On each occasion, the witness saw the appellant sitting down with scissors in his hand and clipping heads from the stems of cannabis plants, and putting the heads in a bucket. Hoeben J (Sully and Bell JJ agreeing) referred to the decisions in Giorgi and Ruiz‑Avila, and said:
The question of whether cutting the cannabis plants is part of the harvesting process is a question of fact to be determined in the light of the circumstances of each case. In my opinion, cutting down the cannabis plants was clearly a part of the harvesting process on the facts of this case.
In that context it is not necessary for the Crown to prove that the appellant actually harvested the whole crop or actually handled in excess of 250 plants. It is sufficient if the Crown proves beyond reasonable doubt that the appellant carried out an act involved in the harvesting of a crop which comprised in excess of 250 plants. The evidence of Mr Multari was clear that crop site B comprised a crop of this kind. There was evidence of the appellant cutting and clipping cannabis plants from crop site B over a number of days. In my opinion that evidence, if accepted by a jury, was sufficient to establish the elements of the offence [55] ‑ [56].

In my opinion, the meaning to be ascribed to the word 'harvest' in the definition of 'to cultivate' in s 3(1) of the Act must be determined in the context of the offence created by s 7(1), the nature and characteristics of the particular prohibited plant in question, and the scheme of the Act as a whole. Subject to that context, 'harvest' bears its natural and ordinary meaning, namely, to gather the crop or part of the crop of a prohibited plant from the place where it has been growing. See the definitions of 'harvest' in the Macquarie Dictionary, 4th ed, 2005, page 653, and the Shorter Oxford English Dictionary, 2001, page 1202.
The concept of 'harvesting', within the definition of 'to cultivate' in s 3(1), includes severing a prohibited plant from the ground or other place where it has been growing. Also, it includes cutting or dismembering the plant while it is growing in the ground or other place, and also cutting or dismembering the plant after it has been severed or removed from the ground or other place. Further, the concept of 'harvesting', within the definition, includes gathering the part of a prohibited plant which contains the active drug constituent.
It is unnecessary and undesirable, in this appeal, to endeavour to state exhaustively the ambit of the concept of 'harvesting' for the purposes of a cannabis plant or prohibited plants generally. Plainly, the concept has a broad connotation. However, whether or not a particular activity which is alleged to contravene s 7(1) may properly be regarded as 'harvesting' or not will depend on the particular facts and circumstances of the case.
I have no doubt, on the facts and circumstances of the present case, that the appellant's 'clipping' or cutting of the cannabis plant material on 24 June 2005 constituted 'harvesting' within the definition of 'to cultivate' in s 3(1) of the Act. The object of his activities was the separation of the desirable part of the plant (that is, the head) from other parts. Those activities would have constituted 'harvesting' if they had been undertaken while the plants were still in the tubs (or, indeed, if they had been carried out in relation to plants growing, without containers, in the ground). It is immaterial that someone else may have removed the plants from the tubs in which they were growing, before the appellant commenced 'clipping' or cutting.
In my opinion, the appellant's activities were sufficient to establish that he was engaged in the cultivation of cannabis.
Ground 3 fails.

Conclusion

In summary, ground 1 of the appeal has been made out, it is unnecessary to consider ground 2, and ground 3 fails.
In my opinion, the wrongful admission into evidence of the appellant's prior conviction was an irregularity which occasioned a miscarriage of justice within s 30(3)(c) of the Criminal Appeals Act 2004 (WA). The inadmissible evidence was highly prejudicial to the appellant.
It is true that I have held, in the course of considering ground 3, that the appellant's 'clipping' or cutting of the cannabis plant material on 24 June 2005 constituted 'harvesting' within the definition of 'to cultivate' in s 3(1) of the Act. This point is relevant to count 1 (which alleged cultivation of cannabis with intent to sell or supply) but not count 2 (which alleged possession of cannabis with intent to sell or supply). As I have mentioned, count 1 related to the plants growing in the two rooms (61 in total) and the cannabis on and near the dining room table. On the State's case, the number of plants the appellant was cultivating exceeded the number specified in sch VI to the Act in relation to cannabis (10 plants). As a result, for the purposes of count 1, which alleged a breach of s 7(1)(a), if the jury was satisfied beyond reasonable doubt that the appellant had been cultivating the 61 plants then the appellant was deemed, unless he proved the contrary on the balance of probabilities, to have cultivated those plants with intent to sell or supply. See s 11(b) of the Act. The appellant's case was that his involvement with the cannabis at 192 Belmont Avenue was confined to 'clipping' or cutting up some cannabis at the dining room table on 24 June 2005.
Although the State had a strong (primarily circumstantial) case against the appellant on each of counts 1 and 2, the natural limitations of appellate review on the record preclude my being satisfied beyond reasonable doubt that the appellant was guilty of the offences. The jury's

verdict of guilty, which necessarily involved a rejection of the appellant's evidence as to his limited involvement in the cultivation of the cannabis, may have been influenced by the inadmissible evidence. The learned trial judge told the jury they were entitled to take into account the facts relating to the appellant's prior conviction in analysing the State's case against him at the trial (ts 530). I am not affirmatively satisfied that no substantial miscarriage of justice has occurred as a result of the irregularity which occurred at the trial. It is not possible satisfactorily to evaluate the appellant's evidence solely from the transcript.

I would therefore allow the appeal, quash the convictions and order a retrial.
MILLER JA: I agree with Buss JA.
MURRAY AJA:

The proceedings at first instance

The appellant was indicted in the District Court with two offences:
1.An offence of cultivating cannabis with intent to sell or supply, allegedly committed with three other persons at Kewdale, between 1 January and 25 June 2005.
2.An offence of possession of cannabis with intent to sell or supply, committed at the same place, with one other offender, on 24 June 2005.
He was tried by a judge and jury in the District Court with his alleged co‑offenders from 21 January 2008 to 31 January 2008, over a period of 9 days, a weekend intervening. He was convicted of both offences.
On 18 February 2008, the appellant was sentenced to an aggregate term of 20 months imprisonment with eligibility for parole, backdated to the date of his conviction. At the earliest, therefore, he will become eligible for parole at the end of November 2008, after having served 10 months.

The appeal

The appellant has appealed against both convictions, asking for orders that they be set aside, and for a new trial. On 20 May 2008, Miller JA granted leave to appeal on specified grounds and, having regard to the position in respect of the appellant's sentences, his Honour made an

urgent appeal order under the Supreme Court (Court of Appeal) Rules 2005, r 46. The hearing of the appeal has accordingly been given priority.

The grounds as amended at the hearing are as follows:
1.The trial Judge erred in admitting into evidence conduct of the Appellant's past conviction under Section 31A of The Evidence Act 1906 in that;
Particulars:
a)it did not have significant probative value, and;
b)it cannot be said that the probative value of the evidence compared to the degree of risk of an unfair trial was such that fair minded people would think that the public interest of adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
2.The trial Judge failed to adequately direct the jury on the circumstantial evidence of the past criminal conduct, which failure led to a miscarriage of justice because, although the circumstances required it;
Particulars:
a)he failed to direct the jury about the distinction between 'propensity' and 'prejudice' arising from the previous conviction;
b)he failed to identify and elicit what was distinctive about the propensity evidence;
c)he failed to direct the jury that the facts of the previous conviction were markedly different to the evidence at trial.
3.The learned trial Judge erred when he misdirected the jury as to a defence open to the Appellant, such that there was a miscarriage of justice;
Particulars:
a)the Appellant's defence to Count one was that he merely 'clipped' the cannabis ;
b)such activity is not included within the definition of 'cultivate' contained within the Misuse of Drugs Act 1981;
c)His Honour misdirected the jury concerning both 'cultivation' and 'harvesting';
d)a re‑direction on point failed to adequately redress the error;
e)His Honour's misdirection meant a defence open to the Appellant was not properly left to the jury.

The evidence reviewed

It will be seen that in count 1 the allegation was that the appellant, with three others, in a defined period, cultivated cannabis with intent to sell or supply it to another. As to count 2, the allegation was that the appellant and one other had cannabis in their possession on a specific date, 24 June 2005, with intent to sell or supply it to another.
The date of 24 June 2005, which marked the end of the period of alleged cultivation, was the day of a police search of a property in Belmont Avenue, Kewdale. Police located a quantity of cannabis and a hydroponic garden established in the house. The police had had the property under surveillance for some time. On 13 June 2005, the appellant's car was seen parked at the house, and on that day he was observed to drive to a hydroponics shop in Cannington called 'The Grow Room'. He was observed leaving that shop with piping and tubs. His vehicle was again seen at the house on 14 June 2005.
On 24 June 2005, at about 11.30 am, surveillance operatives saw the appellant drive a co‑offender's Landcruiser to the Belmont Shopping Centre, where he parked. Shortly afterwards, a silver Holden Commodore arrived. It parked next to the Landcruiser. The appellant got out of the Landcruiser with a green shopping bag which he placed in the boot of the Holden. He then removed a white polystyrene container from the boot and put it in the Landcruiser. He drove back to the Belmont Avenue house, arriving at about 11.40 am.
When the Landcruiser was searched later that day, a white polystyrene container corresponding to that seen to have been placed in the vehicle by the appellant was found on the front passenger seat. Inside it was a green recyclable shopping bag, like that which the appellant took to the silver Commodore. This bag contained another plastic bag and a small amount of cannabis in the form of green plant material. When the items were subjected to DNA analysis, a mixed profile was found. The appellant could not be excluded, and might have been a contributor to the mixed profile.
Having observed the Landcruiser driven by the appellant return to the Belmont Avenue address, the police moved in quickly, armed with a search warrant. The appellant was still at the house. He tried to escape through a sliding door at the rear of the house. He was wearing pink rubber gloves. Later analysis of the gloves found that green plant material adhering to them was cannabis. The appellant had in his possession the keys to the Belmont Avenue house, and $3,000 cash. When his car was searched, a further $650 was found in his wallet in the car.
On a table in the dining room of the house there was a large amount of green cannabis material which was in the process of being cut up. There was about 650 grams of material there. On the floor by the table, the police located a further 900 grams of cannabis material. In the lounge room adjacent to the dining room, in front of a gas heater, a large amount of cannabis, some 4 1/2 kilograms, was found in bread crates, evidently being dried. This was cannabis head material, the most valuable part of the plant.
Two rooms were set up as a sophisticated hydroponics growing system, with lights, a watering system and a power board in the roof space to bypass the meter and provide power for the fluorescent growing lights without cost. In pots in these rooms the police found a large number of cannabis plants in various stages of growth. In short, the evidence was that the house constituted a sophisticated and elaborate hydroponics cannabis factory. I would have thought there was strong evidence to establish that on these premises cannabis was being cultivated and prepared for sale on a large scale.
The appellant gave evidence in his own defence. Putting it shortly, he said that he was an expert in hydroponics. He advised people about this process of growth and sold the equipment that was required. He had had an interest in The Grow Room shop. He agreed that he was at the house on 24 June 2005, but he said that he was only 'clipping' or cutting up the plants, which were not his and in which he had no interest. He said he otherwise had no involvement in whatever was occurring in the house.

An application to admit 'propensity evidence'

On 20 December 2007, a directions hearing was conducted before a District Court judge who did not, in fact, ultimately conduct the trial by jury. It seems that an oral application was made by the prosecution to admit at the trial 'evidence of the past offending' of accused persons, including the appellant. The application was supported by written submissions. The evidence desired to be led had apparently been included in the prosecution brief for the trial. As the application was developed by counsel, it seems that it concerned the appellant's previous conviction in the District Court, upon his plea of guilty, on 18 November 2002, of an offence of cultivating cannabis with intent to sell or supply cannabis to another. The offence was committed on 11 December 2000 at Glen Forrest.
It appears that the appellant was dealt with by the judge in 2002 on the basis that, when the police executed a search warrant at a house in Glen Forrest, they found the appellant and his girlfriend there. The house contained a highly sophisticated hydroponic cannabis growing system. The value of the crop was estimated to be about $800,000 on the street.
It appeared that the appellant had met a man through the business in which he was then a partner, known as The Grow Room. This man told him he had commenced the purchase of the Glen Forrest property, but could not obtain a loan to enable him to completely finance it. He persuaded the appellant to take the property in his name, obtain the loan, enter into a mortgage and rent the property to its true beneficial owner so as to cover the mortgage payments. This arrangement was entered into, and later the appellant discovered that the beneficial owner of the property, who was living there, had established the hydroponic cannabis growing facility. The appellant said nothing to the police.
He was in residence when arrested, because the beneficial owner was away and had offered the appellant the opportunity to spend the weekend there, with his girlfriend, in return for which the appellant was asked to keep an eye on the hydroponic system.
On the basis of those facts, on 22 November 2002 the appellant was sentenced to imprisonment for 2 1/2 years, suspended for a period of 2 years. He was sentenced upon the basis that he had aided the commission of the offence of cultivation with intent by the person I have described as the beneficial owner of the property, who was also the owner of the cannabis crop.
The application to adduce such evidence depended upon s 31A of the Evidence Act 1906 (WA). I shall return to this provision shortly. The application was dealt with before the trial commenced before the jury, pursuant to s 98 of the Criminal Procedure Act 2004 (WA). Under s 98(2)(a), the court is empowered to give directions and making rulings necessary or convenient in order to facilitate the conduct of the trial. Rulings about the admissibility of evidence are commonly made in such proceedings which, by s 98(6), are taken to be part of the trial so that, although the trial may be conducted before a different judge, the rulings made at such a directions hearing may not ordinarily be revisited at the trial. That was the position here. Counsel for the appellant at the trial formally placed on record an objection to the admissibility of the evidence, but nothing more occurred in relation to that question.
In giving his ruling on the admissibility of the evidence on 20 December 2007, the judge did no more than generally identify the evidence concerning the previous offending of the appellant, in much the same terms as I have described it. His Honour pronounced himself to be satisfied that the requirements for admission of the evidence in s 31A of the Evidence Act were met. His Honour said that he considered that the evidence had a high probative value upon, 'the question whether the only inference reasonably open in each case is that the accused person is a party to the offence charged' (ts 83).
Given his Honour's view about the significant probative value of the evidence, he went on to say that a careful direction to the jury at trial would, 'be likely to prevent the evidence being used simply for its prejudicial effect' (ts 83). His Honour then referred to the test whether fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. His Honour said he was satisfied on that point. His Honour made it clear that in the case of the appellant, evidence could be led of the conviction and the appellant's plea of guilty (ts 83).

The evidence led at the trial

Senior counsel for the appellant at trial, as I have said, merely formally placed on record an objection to the State leading evidence of the offence committed by the appellant in Glen Forrest on 11 December 2000 (ts 142).
In opening the prosecution, counsel adverted briefly to the evidence which would be led. She made the point that part of the house in Glen Forrest had been converted into a sophisticated hydroponic cannabis growing system, and that the power had been bypassed. She implied that there was a parallel with the matter before the court in that part of the Belmont Avenue house had been converted into a sophisticated hydroponic system in which 61 cannabis plants were growing in two rooms. She referred to the bypassing of the meter to enable a supply of electricity at no cost (ts 147).
The evidence about the Glen Forrest offence led by the prosecution was that of Detective Sergeant Blackshaw. He was in charge of the execution of the search warrant at the Glen Forrest house. He described the search, which was videotaped, a process at which the appellant was present and during which he made some statements. The video was played to the court. It became exhibit 19 (ts 360 ‑ 364).
When Detective Sergeant Blackshaw was cross‑examined, counsel for the appellant led from him that the appellant had pleaded guilty to the cultivation with intent on the basis that he was merely temporarily looking after the crop for another (ts 364 ‑ 367). It seems that the conviction itself was not formally proved, and it was the offending behaviour in December 2000 upon which reliance was placed by the prosecution.
The appellant gave evidence in his own defence, in the course of which he referred to the previous offending. The appellant described how he came to be the registered proprietor of the house, and the arrangement he had with the other man whose home it was. The appellant said in evidence that the decision to grow cannabis there was not his, and he had nothing to do with the actual cultivation of the crop. While the appellant understood that cannabis was being produced on the premises, he did not see the set‑up until he went to stay for the weekend. The factual basis upon which the appellant was sentenced for that offence upon his plea of guilty was canvassed briefly (ts 385 ‑ 389).
When the appellant was cross‑examined, the commission of this offence was touched upon only briefly and no additional facts emerged (ts 418 ‑ 419, 423). In her closing address, the prosecutor referred to this previous offence by saying that it beggared belief that, having been convicted in the circumstances described, and having said his involvement was the most stupid thing that he had ever done, the appellant's evidence was that he was only involved in the offences before the court some years later by again agreeing to help a friend, whose crop it was, cut up the cannabis for one day (ts 502).

Was the propensity evidence admissible?

Against that background, I turn to the question of the admissibility, under s 31A, of the evidence of the Glen Forrest offence committed in December 2000, four years or more prior to the period covered by the indictment. I focus attention upon that section because it was pursuant to that provision that the evidence was sought to be adduced at trial. Ground 1 complains of error in relation to the decision taken to admit the evidence under s 31A, and it has never been suggested that the evidence would be admissible at common law.
As I have said, no attempt was made to precisely identify the facts in issue in relation to which the view was urged upon the court that the evidence sought to be adduced had significant probative value. However, it appears that the evidence was advanced upon the basis that it was probative of the facts that some time during the period identified in count 1, the appellant, with the others, was a party to the cultivation of the cannabis in the house, rather than that he was simply an occasional visitor to the property who in fact had nothing to do with the cultivation.
Further, it was suggested that the evidence was significantly probative of an involvement with the cannabis such as to implicate the appellant in possession of it with intent on 24 June 2005, not merely, as he said, by helping to cut it up, but possession not only of the cannabis on and in the vicinity of the dining room table, but also that which was drying in the adjacent room. As counsel for the respondent put it to us, the assertion was that the evidence about the Glen Forrest offence rebutted any innocent explanation which the appellant might advance for his presence at the Belmont house when it was raided on 24 June 2005.
It was conceded that the Glen Forrest evidence could not be regarded as similar fact evidence, but it was put that it was propensity evidence within the meaning of s 31A because it was evidence of the conduct of the appellant which showed a tendency to involve himself in large scale hydroponic cultivation of cannabis concealed in ordinary domestic premises, and it was therefore, so it is argued, highly probative of the identified facts in issue in relation to the Belmont address.
The difficulty with that, it seems to me, is that it was accepted that the appellant's involvement in the Glen Forrest offence was of a particularly limited kind. Certainly he was the registered proprietor of the house in which the hydroponic facility had been established, and certainly he supplied some of the hydroponic equipment from The Grow Room, but there was no evidence, and it was not accepted, that he supplied that equipment for the purpose of establishing a hydroponic growth facility for cannabis.
While he conceded that he knew generally that cannabis was being cultivated at the Glen Forrest house, there was no evidence that he knew the extent of the plantation and that it was a large commercial set‑up, growing cannabis with intent to sell or supply. It was accepted that his involvement in that offence was as he described, to keep watch over the plantation while he had a weekend away with his girlfriend. He was not found to be responsible for the way in which the enterprise had been established, or for the fact that the electricity meter had been bypassed.
In those circumstances, in my view, the appellant's relatively peripheral involvement in the Glen Forrest enterprise lent no significant probative value to the proposition that he was actively involved in the establishment of the Belmont Avenue set-up and, over a period of time, in the cultivation which occurred there on a large scale. There was, of course, direct evidence of the nature of that enterprise and of the appellant's involvement with it on 24 June 2005 and, to my mind, the inference available of his guilt of the offences charged was significantly supported by the circumstantial evidence and other evidence concerned with the events on 24 June 2005.
I have in mind that when the police raided the house, the appellant tried to make his escape through the back door. The gloves he was wearing had cannabis on them. He had the keys to the house in his possession. He had a large amount of money on his person and in his car. Earlier on the day, he had been seen engaging in suspicious behaviour and there was evidence capable of supporting the inference that he was involved in some kind of act of sale or supply of cannabis. Then there was the evidence of his involvement in the supply of hydroponic equipment and there was the observation that had been made of his attendance at the property on two previous occasions.
Finally, there was the sophisticated nature of the hydroponic set‑up which would have consumed significant amounts of electric power. There was the fact that the electricity meter had been bypassed, to enable the power required to be obtained without cost, and there was the evidence that it was undoubtedly a large‑scale commercial operation in which those who were involved were engaged.
If, having regard to that body of evidence, some direct and some circumstantial, as to the appellant's involvement, the jury were satisfied beyond reasonable doubt about his implication in the cultivation and his implication in the possession of the cannabis material in the house, it was almost inevitable that the jury would be satisfied beyond reasonable doubt of the intent to sell or supply cannabis, which was an element of both charges, even without recourse to the presumption of the existence of the intent in relation to the possession of a prescribed quantity of prohibited drug or the possession or cultivation of a prescribed number of prohibited plants for which provision is made in the Misuse of Drugs Act 1981 (WA) s 11.
It seems to me that the propensity evidence was inadmissible because of the limited nature of the appellant's implication in the Glen Forrest offence as a mere casual aider in its commission. The evidence admitted in that way, to my mind, added little, if any, probative weight to the other evidence available to establish the appellant's guilt of the offences charged in relation to the Belmont Avenue house in 2005. On the other hand, in my opinion, the prejudicial effect of the evidence would have been substantial because if it was to be used to aid in establishing the guilt of the appellant of the offences charged, there was a real risk that it would be by the use of impermissible propensity reasoning that that would be done.
In my opinion, ground 1 has been made out. That, of course, of itself does not mean that there was a miscarriage of justice occasioned by the wrongful admission of the evidence. Putting to one side the error of law involved, much will turn upon the directions of the trial judge.

The adequacy of the directions given to the jury

The trial judge discussed the evidence of other offending admitted in evidence in relation to the appellant and two other alleged offenders when charging the jury. He said:
In this case you have heard evidence that each of the accused persons has involved himself in hydroponic cannabis cultivation on an occasion other than that charged in the indictment. You will recall the evidence that on 11 December 2000 a hydroponic cannabis crop was discovered at 260 Jellicoe Road, Glen Forrest, being a property owned by Mr Buiks. He was charged with and pleaded guilty to cultivation with intent and in evidence he has given you his account of those events.
…
It is important that you realise you can't reason simply because the accused whose position you are considering has engaged in similar conduct on another occasion that he has done what is alleged against him in the charge in the indictment, and that would be obvious to you. The fact that you have offended before, it doesn't follow from that that you are guilty of a subsequent offence. The subsequent offence must be proved by the evidence. The fact that the accused has or is engaged in such activity, however, is a matter you are entitled to take into account in analysing the case against him. It's one of a number of circumstances which the state says is relevant to a consideration of and evaluation of the evidence presented against him and in determining the likelihood of his involvement in the enterprise the subject of the counts in the indictment (ts 530).
His Honour went on to say that such evidence would be relevant in assessing the evidence of the reasons behind the attendance of the appellant at the Belmont Avenue address, 'whether it was merely an innocent, casual association' (ts 530). By this means I think his Honour made it clear that the evidence might be considered in relation to the proof of the appellant's implication in the cultivation of the cannabis by hydroponic means. His Honour went on to say that the evidence of the previous offence was relevant, 'when considering issues such as knowledge and intent' (ts 530). The trial judge went on immediately to deal with the prosecution case against the appellant, contrasting it with a summary of the appellant's evidence. In summarising the cases of the prosecution and defence in that way, his Honour made no reference to the appellant's earlier involvement in the cultivation of cannabis in Glen Forrest.
In my opinion, no more was required of the trial judge to adequately direct the jury in relation to the previous offending and the use to which it might be put. Ground 2 is, in my opinion, not made out. In particular, I can see no utility in or requirement for an express direction by the trial judge discussing a distinction between 'propensity' and 'prejudice' arising from the previous conviction. His Honour told the jury in terms that were easily understood that they must not use that evidence to support impermissible propensity reasoning - that 'simply because the accused whose position you are considering has engaged in similar conduct on another occasion that he has done what is alleged against him in the charge in the indictment' (ts 530).
His Honour did not leave the matter there. He went on to explain what issues of fact the evidence about the Glen Forrest offending might relate to. The judge reminded the jury that the appellant had given an explanation of his involvement in the Glen Forrest offence. As I have said, there was no contest between the parties that that evidence about the extent of his implication in that offending was to be accepted. I do not see that in the circumstances of this case the direction should be held to be inadequate because there was not a detailed reminder of the nature of that evidence and the extent to which it portrayed a different factual situation from that which the jury might find to have been the case in relation to the offences charged.

Cultivation on any version of the facts

Ground 3 relates only to the verdict on count 1, that the appellant was guilty of the cultivation of cannabis with intent to sell or supply cannabis to another. It complains of a misdirection which, it is said, resulted in a defence open to the appellant not being properly left to the jury. The point concerns the meaning of the word 'cultivates' in s 7(1)(a) of the Misuse of Drugs Act. That section defines, among other crimes, the crime of cultivation of a prohibited plant with intent to sell or supply the plant or any prohibited drug obtained therefrom to another.
At trial, counsel for the parties debated the meaning of the concept of cultivation. The defence case was opened to the jury on the basis that the accused had no involvement with the cannabis material which was drying in the lounge room. His only involvement was the operation of 'clipping' the cannabis - using scissors to cut from the cannabis plant material the heads of the plant, apparently the saleable portion, the part of the plant which, when dried, can be smoked to enable a person to ingest the active ingredient of the drug cannabis, tetrahydrocannabinol. Therefore, it was said, the appellant was involved merely in handling what was on the dining room table and, inferentially, the material on the floor which had had the heads removed by cutting them off the rest of the plant with scissors.
Senior counsel firmly raised the defence in relation to that activity when opening the case by telling the jury that:
what the state want is, through a process of tortured definitions and subterfuge and some fictions; they want to, for example, argue that you are cultivating something that is no longer in the ground. We say that is just plain nonsense. You take a plant out of the ground and put it on a table and then someone comes along and pulls it apart and they are cultivating it. I mean, the nonsense of that is quite obvious (ts 157).
That indeed, as I have mentioned, was the evidence given by the appellant of the extent of his involvement with the crop.
The term 'to cultivate' is defined in the Act, s 3(1), as follows:
'to cultivate', in relation to a prohibited plant, includes to grow, sow or scatter the seed produced by, or to plant, nurture, tend or harvest, the prohibited plant;
The prosecution case was that there was a compelling inference upon the whole of the evidence that the appellant, at least by the supply of hydroponic equipment, had been involved, as illustrated by his previous visits to the house, in the process of cultivation generally, as defined. But they also contended that if the jury were prepared to make no further finding of fact than that merited by accepting his own evidence in the context of the other evidence about what happened when the police raided the property on 24 June 2005, then that still constituted cultivation by the appellant because he was involved, on his own admission, in the process of harvesting the cannabis plants.
The word 'harvest' is not defined in the Act. It therefore bears its ordinary meaning. Three cases in which, in the context of similar legislation, the meaning of cultivation has been considered were cited to the trial judge and to us.
The first of them is a decision of the Full Court of SA in R v Giorgi (1982) 31 SASR 299. That was a case in which the appellant had been convicted of the offence of cultivation contrary to s 5(2)(b) of the Narcotic and Psychotropic Drugs Act 1934 (SA). Again, the appellant said he had not been involved in cultivation, but had simply been engaged to assist in harvesting a marijuana crop. It appears that the word 'cultivates' used in the definition of the offence was not itself defined in the Act. King CJ held that the offence of cultivation was intended to cover bringing a prohibited drug into existence by means of primary production. His Honour said:
Paragraph (b) is intended to deal with the whole process of production of the drug from the soil. The prohibition in (b) includes, in my opinion, all activities associated with production from the soil, including sowing, fertilizing, tending and caring for the plants, and finally harvested the crop. The harvesting aspect of cultivation would include, not only the actual removal of the plant or portion thereof from the soil, but also the ancillary activities of laying out, stacking, removal to nearby sheds and placing in those sheds. Other paragraphs of the sub-section define the prohibited activities in relation to the drug after the stage of harvesting, although there may be some overlapping. It would be strange indeed if bestowing labour on the crop during growth was prohibited, but not the other activities associated with production of the drug from the soil.
In separately delivered reasons, Zelling J at 308 ‑ 309, arrived at the same conclusion. Matheson J agreed.
Giorgi was discussed by the Court of Criminal Appeal of NSW in R v Ruiz‑Avila [2003] NSWCCA 264; (2003) 142 A Crim R 459. The appellant in that case had been convicted of an offence of knowingly taking part in the cultivation of cannabis contrary to the Drug Misuse and Trafficking Act 1985 (NSW). It appears that the appellant was found to be guilty on the basis that he was the lessee of a unit in which cannabis plants were found drying. The evidence did not exclude the possibility that the cannabis had been grown elsewhere and brought to the unit by others so that it might dry and be packaged.
Hidden J, with whom Greg James J and Newman AJ agreed, found that the trial judge had erred by directing the jury that, as a matter of law, the storage of the prohibited plants so that they might dry out fell within the statutory definition of 'to cultivate' in s 3 of the Act, which included to 'plant, grow, tend, nurture or harvest' a prohibited plant. At 464 [23], Hidden J did not exclude the possibility that in an appropriate case the act of storage of the plant might constitute part of the process of harvesting it. His Honour said that whether it did so or not was a question of fact, hence the error of law in effectively taking this issue from the jury. His Honour went on, at 465 [24], to observe that it was 'difficult to see' in the circumstances of that case how the storage of plant material which may have been grown elsewhere, removed from the soil elsewhere and brought to the unit for storage and drying, could be said to be being harvested during the last‑mentioned process.
Finally, there is the case of Mouroufas v The Queen [2007] NSWCCA 58. In that case, the judgment of the NSW Court of Criminal Appeal was delivered by Hoeben J, with whom Sully and Bell JJ agreed. The appellant had been convicted of cultivating a commercial quantity of cannabis plants, contrary to s 23(2)(A) of the Drug Misuse and Trafficking Act 1985 (NSW). In that case, the appellant had been arrested when the police raided a cannabis plantation in country NSW. The appellant had been employed to work at the property. His evidence was that when he arrived he discovered, to his horror, that he was to work on a commercially grown cannabis crop. Realising that he might be in trouble, he feigned a back injury and contrived not to work at all in relation to the cultivation, except peripherally in the process of harvesting the crop by cutting down plants. Relying on the two previous cases decided above, Hoeben J held that harvesting was within the concept of cultivation and it was not necessary to establish that the appellant had personally cut down a commercial quantity of the plants within the meaning of the statute [55] ‑ [56].
In my opinion, the harvesting of the crop within the definition of 'to cultivate' in the Misuse of Drugs Act includes any activity in connection with a prohibited plant which may bring it to the point that a prohibited drug may be extracted from it, or may bring it the point where, as a prohibited plant, it may be sold or supplied to another. As to whether what was done by an accused person in relation to a prohibited plant would, in the circumstances, constitute his involvement in harvesting the plant and, therefore, in its cultivation as defined, that must be a question of fact for the jury.
In this case, it was open to the jury to find that the appellant's admitted activity of cutting the heads from the rest of the plant constituted his participation in harvesting the plant and therefore in its cultivation. There was ample evidence, then, to establish that the intention which those who participated in the cultivation of the cannabis plants had was the sale of the drug cannabis to be derived from those plants, without the necessity to rely in relation to the cultivation offence upon the presumed intention which might be derived from the application of s 11 of the Act.

There was no misdirection

I have mentioned that the question of cultivation and the appellant's implication in the cultivation by his participation in harvesting the plants was debated at trial. When summing up to the jury and describing the elements of the offences charged, in relation to count 1, the cultivation charge, his Honour first mentioned generally how the words 'to cultivate' were defined, albeit not exhaustively, in s 3 of the Act. He explained:
To cultivate is intended to deal with the process of the production of the drug from the soil and covers all activities associated with that production, including of course preparing the soil, sowing the seed, fertilising the plant, tending and caring for the plant and, finally, harvesting the crop, and in the context of this case, the issue of harvesting is a matter that arises particularly for your consideration. Harvesting includes not only the actual removal of the plant or portion of the plant from the soil but also the ancillary activities associated with the production of the drug from the soil to its consumable form, and that's what harvesting means (ts 522).

After the jury retired to their deliberations, there was further debate before the trial judge by counsel. So far as the appellant was concerned, it touched upon the need to make clear to the jury that whether he was to be regarded as implicated in the cultivation of the crop was a question of fact for them. The judge recalled the jury and redirected them. He said:
In respect of the issue of harvesting, I hope that I made it clear that it is a question for you, the jury. It is a factual question for you to determine the nature of the evidence, the nature of the activity being undertaken on 24 June 05 and whether that activity, having regard to what I have told you, can be categorised as harvesting. That is a jury question (ts 567).
His Honour then summarised very briefly the essential debate between the parties and said whether that constituted harvesting or did not amount to harvesting was a question for the jury, who were then retired again to continue their deliberations.
Coincidentally, as the judge came into the court to give those redirections, he was provided with a note from the jury. He did not look at it before the jury were again retired. The note said:
Can we please have the Australian law definition as described by your Honour for cultivation and harvesting?
It was therefore very evident that the jury were alive to the central question in relation to each of the accused persons as to whether they were guilty of the offence charged in count 1.
After a short time, the trial judge recalled the jury for further directions on the point. He said:
The Misuse of Drugs Act provides that the term "to cultivate" includes relevantly to grow, sow or scatter the seed produced by it or to plant, nurture, tend or harvest the prohibited plant. The term "to cultivate" is intended to deal with the whole process of production of the drug from the soil and covers such things as preparing the soil, sowing, fertilising, tending and caring for the plants and as I said, finally harvesting the crop. The harvesting aspect of cultivation includes not only the actual removal of the plant or part of the plant from where it is growing but the ancillary activities necessary for the production of the drug. In respect of this issue, it is necessary for you, the jury, to determine as a question of fact what activity was being embarked upon and then, having determined that activity, whether you are satisfied beyond reasonable doubt that that activity is harvesting within the definition I have given you (ts 569).
The short point made in support of ground 3 is that to 'merely' be involved in clipping the cannabis once it had been taken from the ground or cut from the growing plant was not harvesting and therefore not cultivation. As I have said, in my opinion, that proposition cannot be made out, when put baldly in that way. Under the Act, cultivation includes harvesting, and within the ordinary meaning of the word 'harvest' may be accommodated not only the removal of the whole or part of a growing plant from the soil, but also those peripheral or ancillary activities preparatory to the process by which the prohibited drug to be derived from the plant might itself be prepared to be available for sale or supply.
In my opinion, the trial judge did not state too widely what might be included within the concept of the 'harvest' and he rightly left to the jury as a question of fact whether such activity as they found to have been performed by the appellant constituted an involvement in the harvesting of the plants in the circumstances of the case as they found them to be. In my opinion, there was no misdirection, and ground 3 is not made out.

Was there a substantial miscarriage of justice

I would hold that ground 1 has been made out and that there was an error of law in the admission of evidence about the Glen Forrest offence committed in 2000. It follows that, pursuant to the Criminal Appeals Act2004 (WA), s 30(3)(b), both convictions are liable to be set aside. This paragraph provides that the appeal must be allowed if, in the opinion of the Court of Appeal, 'the conviction should be set aside because of a wrong decision on a question of law by the judge'. Not every error of law will persuade the court to that view. Specifically, the court will not be so persuaded unless the error of law may have adversely affected or procured the verdict of guilty upon which the conviction is based. In this regard, the provisions of s 30 of the Criminal Appeals Act replicate the statutory predecessor, s 689 of the Criminal Code (WA): as to which, see Smith v The Queen (1992) 7 WAR 527.
However, this is not such a case. Here, as I would hold, the error in admitting the evidence may have borne upon the guilty verdicts returned for both counts 1 and 2. The evidence was dealt with before the jury upon the basis that it was relevant to prove the appellant's implication in the cultivation of the cannabis plants and the possession of the cannabis produced by that cultivation, in each case with intention to sell or supply because of the overtly commercial nature of the enterprise being conducted at the Belmont Avenue address.
It is important, however, to bear in mind that if, as I would hold, it is right to consider that the directions of the trial judge were adequate and sufficient to dissuade the jury from impermissible propensity reasoning in relation to the use of this evidence, the error of law goes no further than the wrongful admission of the evidence on the ground of its lack of significant probative value.
The question then becomes one to be dealt with under s 30(4) of the Criminal Appeals Act. Is it the case that, despite the error of law and that ground 1 is made out, this court 'may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred'? That is a question to be resolved by taking the approach dictated by the High Court in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, 316 [41] ‑ 42]; and see Gassy v The Queen [2008] HCA 18; (2008) 82 ALJR 838.
This court must make its own assessment of the evidence properly admitted, excluding that which I would hold to have been wrongly admitted, and ask itself whether, having regard to the special position of the jury and the natural limitations applicable to the position of the Court of Appeal, the court is satisfied that the appellant was proved beyond reasonable doubt to be guilty of the offences charged. Regard should be had to the possible effect the error of law may have had upon the result of the trial.
In my opinion, that test is met in this case in relation to both offences. Upon the whole of the admissible evidence, which I have previously discussed in detail, which discussion I do not now repeat, I would be satisfied that the appellant's guilt was proved beyond reasonable doubt.
As to count 1, upon the uncontested evidence, he must have been involved with this crop over a period of time. He was a hydroponics expert who appeared to have been involved by reason of that expertise. He was involved in the cultivation actively on 24 June 2005, upon his own admission. The circumstances of the cannabis being grown and otherwise processed inside the house provided overwhelming evidence in relation to count 2 that he was implicated in the possession of the cannabis, including that which was drying in the lounge room. The nature of the enterprise was such that it was obviously a commercial enterprise. His involvement in the cultivation and his possession of the cannabis was therefore overwhelmingly, even without regard to the number of plants and the quantity of cannabis material there, an involvement with intent to sell or supply the cannabis which was to be obtained from the process of cultivation.
Having regard to the admissible evidence, I would conclude that the appellant's guilt of both offences was established beyond reasonable doubt and, applying the proviso, I would dismiss the appeal.