Dhroso v The King
[2024] VSCA 281
•25 November 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0068 |
| ARMANDO DHROSO | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | McLEISH, BOYCE and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 October 2024 |
| DATE OF JUDGMENT: | 25 November 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 281 |
| JUDGMENT APPEALED FROM: | DPP v Dhroso (Unreported, County Court of Victoria, Judge Holding, 13 March 2024) |
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CRIMINAL LAW – Application for leave to appeal against conviction – Cultivation of cannabis in not less than a commercial quantity – Theft – Hydroponic cannabis cultivation operation at house owned by applicant – Crown cases of applicant acting as ‘principal’ or alternatively intentionally ‘assisting’ by making house available – Whether characterisation of alternative Crown case as ‘assistance’ in error – Whether trial judge’s failure to give a unanimity direction in error – Jury not required to be unanimous as to which alternative established – No direction required – Leave to appeal refused.
CRIMINAL LAW – Application for leave to appeal against conviction – Whether applicant’s possession of cannabis at residence admissible in proof of applicant’s guilt of cultivation at different house – Circumstantial evidence – Whether probative value of evidence outweighed prejudicial effect – Evidence admissible – Leave to appeal refused.
CRIMINAL LAW – Application for leave to appeal against conviction – Whether applicant’s reliance on ‘sham’ lease of property used to cultivate cannabis incriminating conduct – Whether open to jury to conclude that lease a ‘sham’ – Evidence admissible as incriminating conduct – Leave to appeal refused.
CRIMINAL LAW – Application for leave to appeal against conviction – Evidence of gloves found at scene allegedly ‘planted’ by police – Evidence of gloves not relied upon in proof of prosecution case – Whether ‘substantial and compelling reasons’ requiring trial judge to direct jury to ignore evidence of gloves – Direction not required – Leave to appeal refused.
CRIMINAL LAW – Application for leave to appeal against conviction – Whether verdicts of guilty unreasonable and cannot be supported having regard to the evidence – Circumstantial Crown case – Evidence sufficient – Open to jury to convict – Leave to appeal refused.
Crimes Act 1958, ss 323, 324B; Jury Directions Act 2015, ss 12, 15, 16 & 18; Evidence Act 2008, s 137.
R v Walsh (2002) 131 A Crim R 299, Lanciana v The King [2023] VSCA 78, Wilson v The Queen [2016] VSCA 62, Davidson v The Queen (2009) 75 NSWLR 150, Bembo v The Queen [2018] VSCA 42, R v Rohan (a pseudonym) (2024) 98 ALJR 429, discussed; M v The Queen (1994) 181 CLR 487, Dansie v The Queen (2022) 274 CLR 651, Coughlan v The Queen (2020) 267 CLR 654, R v Hillier (2007) 228 CLR 618, applied.
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| Counsel | |||
| Applicant: | Mr M Stanton SC with Ms P Tat | ||
| Respondent: | Mr J McWilliams | ||
Solicitors | |||
| Applicant: | Sarah Tricarico Lawyers Pty Ltd | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
McLEISH JA
BOYCE JA
KAYE JA:
Introduction
The applicant faced trial in the County Court. The indictment filed charged him with having cultivated not less than a commercial quantity of cannabis (charge 1), stolen electricity (charge 2), and trafficked in not less than a commercial quantity of cannabis (charge 3). The applicant was convicted by a jury of charges 1 and 2. He was acquitted of charge 3, but convicted of a statutory alternative to this charge — the offence of possession of cannabis. The applicant pleaded guilty to a further charge of possession of cannabis (charge 4).
The applicant was sentenced as follows:
Charge
Offence
Maximum
Sentence
Cumulation
Indictment M11538420.1 1 Cultivation of a narcotic plant — commercial quantity[1] 25 years 3 years Base 2 Theft[2] 10 years 6 months N/A 3 Possession of a drug of dependence[3] 1 year 1 month N/A 4 Possession of a drug of dependence[4] 1 year Fine $100 N/A Total Effective Sentence: 3 years’ imprisonment Non-Parole Period: 1 year 10 months Pre-Sentence Detention Declaration pursuant to s 18(1) of the Sentencing Act 1991: 27 days Section 6AAA Statement: N/A Other Relevant Orders: N/A [1]Contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981.
[2]Contrary to s 74(1) of the Crimes Act 1958 (‘Crimes Act’).
[3]Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981.
[4]Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981.
The applicant seeks leave to appeal against his conviction. His initial proposed grounds of appeal were in the following terms:
GROUND 1: In relation to Charges 1 and 2, there was a substantial miscarriage of justice because:
(a)The prosecution alleged two pathways to conviction that were fundamentally inconsistent in light of the evidence it sought to rely upon; that the applicant was a principal offender engaged in acts of cultivation, or in the alternative that he ‘assisted’ unknown principal offenders contrary to s 323(1)(a) of the Crimes Act 1958 (Vic); and/or
(b)The learned trial judge did not direct the jury that, in order to find the applicant guilty, they had to be unanimous as to a particular pathway to conviction.
GROUND 2: The convictions of the applicant on Charges 1 and 2 are unreasonable or cannot be supported having regard to the evidence.
GROUND 3: In relation to the cannabis the subject of Charge 3:
(a)The learned trial judge erred in ruling that the evidence was admissible and able to be used by the jury when considering whether the applicant was guilty of Charges 1 and 2; and
(b)The manner in which the learned prosecutor addressed the jury on this evidence caused a substantial miscarriage of justice.
GROUND 4: The learned trial judge erred in ruling that the prosecution could rely on the applicant’s assertion to police that he had tenanted the property at 138 Wilson Street, Cheltenham, and his provision of documents in support of that assertion, as incriminating conduct pursuant to s 20 of the Jury Directions Act2015 (Vic).
At the hearing of the application for leave to appeal the applicant was granted leave to amend his notice of appeal by adding a fifth proposed ground of appeal. This additional ground was in the following terms:
GROUND 5: There was a substantial miscarriage of justice caused by the trial judge not directing the jury that the gloves seized at 138 Wilson St, Cheltenham, were not relied on by the prosecution and irrelevant to its case.
For the reasons that follow, we consider that the applicant’s application for leave to appeal against conviction must be refused.
The prosecution case
Introduction
Two addresses in the Melbourne suburb of Cheltenham feature in this case: Unit 2/22 Wilson Street (‘Unit 2/22’) and 138 Wilson Street (‘Number 138’). Both addresses are, as it appears, on the same street. They are about a kilometre apart. The applicant and his mother owned Number 138; they purchased it jointly in November 2019. The applicant and his mother were tenants at Unit 2/22.
On 8 January 2021, police executed search warrants at Number 138 and Unit 2/22. Police discovered numerous cannabis plants being grown hydroponically in various rooms inside Number 138. An electrical bypass system had been installed at that property. Police also found cannabis at Unit 2/22.
Police ultimately charged the applicant. The applicant’s cultivation of cannabis at Number 138 — charge 1 — was alleged to have extended between the dates 11 September 2020 and 8 January 2021. The theft of electricity at Number 138 — charge 2 — was alleged to have occurred over the same period. The search of Unit 2/22 revealed some 6.69 kilograms of cannabis stored in a garage located at this property (charge 3). Cannabis was found at various other locations either in, or nearby to, Unit 2/22 (charge 4).
Much of the evidence led at trial was not in dispute. It was agreed, for instance, that the applicant and his mother had lived at Unit 2/22 since October 2017. It was agreed, also, that over the charged period the applicant held the account for the electricity supply at Number 138, and that he had received and paid invoices concerning this supply. The applicant and his mother were joint account holders for the water supply at Number 138 during the charged period. The applicant had paid invoices that related to the water supply at Number 138.
The search of each property arose, in part, out of the events of 6 January 2021. On that day police drove past Unit 2/22. They saw two vehicles parked at those premises. One vehicle was registered to the applicant, the other to the applicant’s mother. Police drove further down Wilson Street and parked nearby to Number 138. No vehicles were parked in the driveway of that property. A police officer walked past the driveway of Number 138. He smelt cannabis and heard what sounded like exhaust fans.
The search of Number 138
The search of Number 138 commenced at around 7 am on 8 January 2021. Entry was by force; the property was unattended. It was apparent that several rooms inside the house were being used to grow cannabis by means of a hydroponic system. Police’s initial estimate was that there were around 30 plants being grown. There were heat lamps strung from the ceiling. The windows of the premises were covered. Temporary fencing blocked access to a garage situated at the end of the drive way. An electrical bypass system had been installed. There were CCTV cameras under the guttering on the roof line.
Police initially made a visual recording of both the interior and exterior of the premises by conducting a video walk‑through. Photographs were then taken. Potential exhibits were recorded in an exhibit log.
Police found two rubber shoes. DNA swabs were taken of the shoes. A DNA expert later opined that both swabs revealed a partial mixed DNA profile with, most likely, two contributors. The expert concluded that it was more likely than not that the applicant was not a contributor to the mixed DNA profile obtained from both samples.
The electrical bypass system was connected to numerous lights, transformers and exhaust fans. It was later established that the operational period of this bypass extended from 11 April 2020 to 8 January 2021. The bypass permitted electricity to be used without such use being registered by the relevant service provider.
Cannabis found at Number 138
Police seized the cannabis plants found at Number 138. A botanist called by the prosecution at trial gave evidence concerning the nature of these plants. She also described certain general characteristics of the business of the commercial cultivation of cannabis.
The botanist said that a substance known as Delta‑9‑Tetrahydrocannainol, or ‘THC’ for short, is found within a cannabis plant. THC constitutes the narcotic aspect of the plant considered desirable by the user. The greatest amount of THC is found in the flowering heads of the plant as well as in the little leaves associated with these flowering heads. The clustering of flowering heads found on the plant is sometimes referred to as the ‘bud’. Only female cannabis plants produce the flowering heads.
The botanist said that the level of THC found in the leaves of a cannabis plant, other than the small leaves associated with the flowering heads, is lower than the level of THC found in the flowering heads. The smaller leaves associated with the flowering heads have a lot of glands with THC on them, but the leaves found elsewhere — known as ‘vegetative leaves’ — possess less glands of this nature. The botanist agreed that it was consistent with her understanding that vegetative leaves might only contain between ‘1 percent and 4 percent THC’. The flowering heads, by comparison, can possess as much as 25 percent THC. The botanist said that generally the bud (which includes the smaller leaves with a greater number of glands containing THC) which is confiscated from ‘grow houses’ contains about 15 percent THC by volume.
The botanist agreed that it would be an inefficient way to get ‘high’ to smoke cannabis leaves that were not associated with the flowering heads of the plant. She agreed that ‘if you were smoking a gram of head you’d have to smoke 150 grams of leaves to get the same THC’.
The most merchantable part of the plant is therefore the flowering head. The heads of the plant would need to be dried in order for them to be smoked. So a drying room or racks are needed. Thus, when cannabis is harvested, the commercial harvester wants the bud and the leaves around the bud. These are plucked off the plant and then dried. After this harvest, what is left constitutes waste for the purposes of the commercial enterprise. It is normal for the commercial, or merchantable, parts of the plant to be weighed, placed in clip-seal bags, compressed into a block, or packaged in vacuum‑sealed bags, all for the purposes of sale.
The witness divided the cannabis found at Number 138 into various ‘items’.
‘Item 1’ consisted of 37 cannabis plants which were immature and in a slightly wilted condition. 23 of these plants were slender females that weighed 99.1 grams (excluding roots) and measured approximately 10 to 34 centimetres in height. The remaining 14 plants contained in this item — which were all slightly bushy — measured 84 to 139 centimetres. These 14 plants weighed 5.2 kilograms (excluding roots).
‘Item 2’ consisted of seven cannabis plants, 160 to 172 centimetres in height; these weighed 31.3 kilograms (excluding roots). These plants were bushy females close to maturity.
‘Item 3’ consisted of five cannabis plants that were 168 to 170 centimetres high. These were also bushy females, close to maturity. They weighed 26.5 kilograms (excluding roots). One of these plants had been stripped into separate components with leaves and flowering heads constituting some 60% of its total weight (again, excluding roots).
‘Item 4’ consisted of five cannabis plants that were 165 to 170 centimetres in height and weighed 21.7 kilograms (excluding roots). These plants were bushy females, close to maturity.
‘Item 5’ consisted of cannabis mixed with other material weighing 996.7 grams.
The prosecution case was that the combined weight of the cannabis found at Number 138 was 85.8 kilograms; a commercial quantity for the purposes of charge 1 being 25 kilograms.
The leaves and flowering heads constituted approximately 47.7 kilograms of the weight of the 17 plants in Items 2, 3 and 4. This equated with an air‑dried weight of approximately 11.9 kilograms had the plants been fresh at the time of examination. However, as the plants were in a wilted to partly‑dried condition, it was expected that the leaves and flowering heads would have lost less than three‑quarters of their weight upon drying, which would have resulted in an air‑dried weight in excess of 11.9 kilograms. Given that the 37 plants in Item 1 were immature, it was not possible accurately to estimate their projected weights at maturity, or their projected yield of leaves and flowering heads. The air‑dried weight of leaf and flowering material in Item 5 could not be accurately estimated.
In Item 1, 23 of the plants were aged up to six weeks since propagation (that is, since they had been planted). The other 14 plants making up Item 1 were five to seven weeks old post ‘nursery phase’. Nursery phase was defined as the first four weeks of growth. Other plants in Items 2, 3 and 4 were aged at least 17 weeks post nursery phase.
The search of Unit 2/22
When police arrived at Unit 2/22 on the morning of 8 January 2021, they came across the applicant exiting the garage of the premises. He was making his way towards a white van that was parked nearby.
Inside the garage, police found a black garbage bag that contained cannabis. There were three plastic tubs in the garage; each of these tubs contained cannabis. The cannabis found in the garage was the subject of charge 3 (‘the charge 3 cannabis’). Collectively, the cannabis in the garage — the charge 3 cannabis — weighed 6.69 kilograms.
The botanist gave evidence concerning the charge 3 cannabis. She testified that it was dry and in a slightly mouldy condition. It consisted, in the main, of leaves and leaf fragments. There were some flowering heads. The witness described this cannabis as ‘more likely to be a byproduct of the commercial aspect’. This cannabis did not appear to be bagged for sale. The witness said that it was at least a week since this cannabis had been detached from a plant.
Two glass jars containing cannabis were found in the applicant’s bedroom inside Unit 2/22. Cannabis was found in a snap‑lock bag located in the bottom drawer of the applicant’s bedroom drawers. Cannabis from a grinder was found in a bag on a shelf in the applicant’s bedroom. There was a bag found in the van parked nearby to Unit 2/22. Inside this bag police found a snap-lock bag containing cannabis. All of this cannabis, that is to say the cannabis other than the cannabis found in the garage, collectively gave rise to the applicant’s commission of the offence the subject of charge 4 (‘the charge 4 cannabis’).
The botanist said that the charge 4 cannabis consisted of a mixture of leaf, female flowering fragments and heads. The material in the two jars weighed 355.8 grams. The combined weight of the remainder of the charge 4 cannabis was a little over 30 grams.
The arrest of the applicant
Police arrested the applicant at Unit 2/22. The applicant handed to police a set of keys for Number 138. These keys did not fit the lock on the door at Number 138.
At an initial interview, the applicant expressed surprise when he was shown photographs of the hydroponic system that was in operation at Number 138. He exclaimed: ‘Jesus fucking Christ’ and ‘Wow. The house was a piece of shit anyway, but that looks terrible’. The applicant told police that someone else was responsible for growing the cannabis at Number 138. He told police that Number 138 was tenanted. He said that he would provide police with the tenant’s details.
The applicant was interviewed a second time, a little over three months later. This second interview was prompted by the fact that, by this stage, police had obtained DNA results from a pair of work gloves that had purportedly been found at Number 138. It will be necessary to return to these work gloves later. The applicant again denied knowledge of the hydroponic operation that had been conducted at Number 138. The applicant said that he had not been in the house at Number 138 since it had been rented out.
Incriminating conduct
One part of the prosecution case presented against the applicant was to rely upon certain post-offence conduct engaged in by the applicant which it was said by the prosecution amounted to incriminating conduct. Mindful of the applicant’s stated intention, as expressed during his first interview with police, that he would furnish police with details of the tenant supposedly in occupation at Number 138, on 8 February 2021 police wrote to the applicant’s legal advisors asking whether it was the applicant’s intention to provide such information. The applicant did provide his legal advisers with information of this nature, with instructions that it be handed to police. This information was that the applicant had leased Number 138 to a Mr Vasilis Varidis. The applicant supplied police with materials that were said to be supportive of this claim (‘the Varidis lease materials’).
It is sufficient, for present purposes, to record that the Varidis lease materials consisted of a telephone number for Mr Varidis; a standard form written residential tenancy agreement (dated 27 April 2020) between the applicant and ‘Vasilis Varidis’ describing a 12‑month lease of Number 138 at a monthly rental of $2,470.00; a Greek identity card and European Union identity card each containing a photograph of a male person purporting to be ‘Vasilis Varidis’ born on 8 November 1989; as well as certain ANZ bank documentation connected with an account in the applicant’s name revealing various transactions conducted over the period of December 2019 to January 2021.
It was the prosecution case that the falsity of the applicant’s claim to have leased Number 138 to Vasilis Varidis could be established through the falsity of the Varidis lease materials. The prosecutor described the lease included with the Varidis lease materials as a ‘sham’. It was contended that these materials had been provided by the applicant to police so that the applicant might distance himself from the hydroponic operation at Number 138. It was argued by the prosecution that the applicant’s reliance on the Varidis lease materials could establish that the applicant believed himself to be guilty of the theft and cultivation offences committed at Number 138.
At the close of the prosecution case, the trial judge ruled — over objection — that the prosecution could argue that the applicant’s reliance on the Varidis lease materials amounted to incriminating conduct. The trial judge ultimately directed the jury that the applicant’s reliance on the Varidis lease materials could be used for this purpose. It will be necessary, later, to examine this matter in greater detail.
A complicity alternative
The prosecution presented two pathways to guilt in the instance of charges 1 and 2. The first pathway was to allege that the applicant had acted as a ‘principal’; that is, that the applicant had personally committed acts of cultivation and theft at Number 138 between the charged dates. The second pathway was to allege that the applicant was ‘involved’, or complicit, in the commission of the offending at Number 138. In this latter respect the prosecution relied on s 323(1)(a) of the Crimes Act 1958 (‘the Crimes Act’). Thus the prosecution alleged that the applicant had intentionally ‘assisted’ another, or others, in the offending at Number 138 and had done so by making Number 138 available for the purposes of cultivation and theft.
It is convenient at this stage to note that in presenting the alternative, or complicity, case, the prosecutor acknowledged in his closing address to the jury that ‘[t]here may or there may not have been some formal or informal arrangement between’ the applicant and the person, or persons, who were directly responsible for the offending at Number 138.
Cross-admissibility
One final aspect of the prosecution case that requires brief mention, at this stage, is that the prosecution relied on the applicant’s possession of the charge 3 cannabis as evidence admissible in proof of his involvement in the offending at Number 138. This was also a matter of controversy. In a pre-trial ruling the trial judge ruled, again over objection, that the evidence of the applicant’s possession of the charge 3 cannabis was admissible for this purpose. This matter will be returned to in greater detail below.
The defence case
A pair of work gloves ‘planted’ at Number 138?
Evidence concerning a pair of work gloves allegedly discovered by police at Number 138 assumed prominence in the defence case. It is important to record that this evidence was not led by the prosecution as part of its case. Rather, this evidence was adduced by defence counsel through cross-examination of prosecution witnesses.
As noted above, police initially made a video-recording of the premises at Number 138. This video was meant to document how things appeared when police first arrived. Part of the interior of the premises at Number 138 recorded on this video was a bench area situated in the kitchen. The video of this bench area did not reveal the presence of any work gloves. Nevertheless, a subsequent photograph taken by police of this kitchen bench did reveal the presence of such gloves. The meta-data connected with this particular photograph suggested that the photograph had been taken at 8.42 am.[5] An exhibit log maintained by police recorded that work gloves had been found on the kitchen bench. The exhibit log noted that these work gloves were logged at 9.13 am. It was agreed, however, that the gloves had not been found at this time.
[5]Meta-data revealed that a later photograph of these gloves — after they had been removed from the kitchen bench — was taken at 8.43 am.
The police witness who took the video of the interior of Number 138 was unable to explain why this video did not depict a pair of work gloves on the kitchen bench, whereas the 8.42 am photograph did depict them.
Defence counsel adduced evidence from a prosecution DNA expert that a swab taken from the left work glove allegedly found at Number 138 revealed a partial mixed DNA profile with three contributors. Defence counsel adduced from the expert that a statistical likelihood ratio suggested that this DNA evidence was 7.2 million times more likely if the applicant was a contributor to the sample than if he was not. Defence counsel also established, through this witness, that a statistical likelihood ratio of this nature provided ‘extremely strong support’ for the proposition that the applicant was a contributor to the DNA profile found on the left glove.
Through cross-examination of the informant, defence counsel established that the informant was initially present at Unit 2/22 when the search warrants were executed on 8 January. Nevertheless, defence counsel established that the informant, later that morning, departed Unit 2/22 at 8.38 am and went to Number 138. It was established that, after having left Unit 2/22, the informant remained at Number 138 from 8.40 am to 8.45 am.
Relying on the pictorial discrepancy concerning the gloves (as between the video and the 8.42 am photograph) and the informant’s admitted presence at Number 138 only minutes prior to the time when meta-data suggested that the photograph of the gloves positioned on the kitchen bench had been taken, defence counsel put directly to the informant that he had ‘planted’ these work gloves at the scene. The informant rejected this suggestion. The informant said that the meta-data connected with the photograph of the work gloves was not up to date.
In re-examination, the informant gave the following evidence in explanation of the visual discrepancy between the video and photograph that had been relied on by defence counsel. The informant said:
It was just a — when we do searches, we do overall video first, and then we move onto photographs. Clearly, from my opinion, what’s happened is that they’ve started searching after the video, and then someone’s told them, ‘No, wait. I haven’t done all the photographs.’ And then they’ve appeared on the kitchen bench. That — that’s my explanation. And then no one wanted to put their hand up cause they’ve — they’ve searched incorrectly.
The police evidence was that gloves of the type photographed and logged as having been found at Number 138 were not found at Unit 2/22.
Evidence from a structural engineer
The defence called a structural engineer. This witness had known the applicant for around 10 years. He had been contacted by the applicant about overseeing the development of Number 138. It took a year to get the necessary permit from the relevant council. The Covid‑19 pandemic had slowed the process down. Nevertheless, the applicant was desperate to get the building on Number 138 knocked down so that he could get on with the process of rebuilding. The applicant wished to commence this process as soon as he was able. The witness saw design and architectural drawings for the proposed new structure. The applicant wanted to build three new dwellings at Number 138 — one to sell, and one each for the applicant and his mother. The witness considered the applicant to be ‘very honest’, and a ‘very good’ bloke.
Evidence from an architectural draughtsman
The defence called evidence from an architectural draughtsman. This witness had been put in contact with the applicant by the previous witness. The witness organised a planning permit, building drawings and building permits so that the applicant could commence construction of his planned three-unit development. The applicant had paid an invoice issued by the witness. It was planned that this witness would organise a ‘feature survey’ of the property. From November 2019, it was expected that it would take between six to eight months to obtain a planning permit. The Covid‑19 pandemic slowed this process down to a halt.
The witness completed architectural drawings for the applicant. The drawings were made for the purpose of the planning permit. The witness dealt with the applicant up until sometime in 2022. The applicant was keen to get a permit ‘asap’ and start building works ‘the next day if [they] wanted to’. There was regular contact with the council in order to ensure compliance. The process of negotiating with the council took two years.
Evidence of good character
The applicant had no prior criminal convictions; nor was he the subject of any outstanding investigations.
Proposed ground 1
Submissions
The applicant made various interrelated arguments under the cover of this proposed ground of appeal.
The applicant submitted that the prosecution’s reliance on the complicity pathway of reasoning towards guilt caused him substantial injustice. It was submitted that — in essence — the prosecution’s case of complicity was, in substance, one that was based on s 323(1)(c) of the Crimes Act; that is to say, it was one which alleged ‘an agreement, arrangement or understanding with another person’ to commit charges 1 and 2.
It was submitted that perhaps the clearest example of unfairness brought about by this approach lay in the prosecution’s inconsistent treatment of the Varidis lease materials. It was submitted that as part of the case which alleged that the applicant was a ‘principal’ offender it had been contended by the prosecutor that the Varidis lease materials were false. Yet, on his alternative complicity case, it was submitted that the prosecutor had sought to buttress this case by suggesting that the Varidis lease was true.
It was argued that it was erroneous to characterise the applicant’s actions as ‘assistance’ when the evidence — in particular the establishment of the electrical bypass at Number 138 on 11 April 2020 — occurred months prior to the date on which it was alleged that an unknown principal, or principals, had commenced their acts of cultivation.
It was submitted that the prosecution had run markedly different pathways to conviction in respect of charges 1 and 2 and that each pathway relied upon quite different uses of evidence. It was submitted that the prosecution’s alternative pathways to guilt did not depend on ‘the same or substantially similar factual foundations’ but, rather, involved ‘materially different issues or consequences’. As such, it was necessary — so it was submitted — that the jury be instructed that to convict the applicant they must be unanimous as to which ‘particular pathway’ to conviction was found proven. The jury needed to be directed that that they had to be unanimous as to whether they found the applicant to be a ‘principal’ offender; or alternatively, whether they found that he was complicit by having intentionally ‘assisted’ another, or others, through having made Number 138 available for the purposes of the commercial cultivation of cannabis.
It was submitted that the erroneous characterisation of the prosecution’s alternative case as one of ‘assistance’, rather than ‘agreement’, must have confused the jury. Such confusion was said to be evident from questions that the jury asked after it had retired to consider the verdicts.
It was submitted that — in answer to certain jury questions — the judge, by directing the jury in terms of a ‘plan amongst either [the applicant], himself, or the others’[6] to cultivate cannabis, had caused the applicant unfair prejudice. It was submitted that this late conversion of the prosecution case, from one of ‘assistance’ to one which alleged a ‘plan’, prevented the applicant from meeting directly the true prosecution alternative case at an earlier stage.
[6]Emphasis added.
In response, the respondent submitted that the prosecution case — properly characterised — was one of ‘assistance’ and that any direction by the judge which raised the prospect of a ‘plan’ did not alter the essence of this case in any manner which operated unfairly to the applicant. Further, it was submitted that the evidential basis for the alternate prosecution bases of liability were the same, and the treatment of the Varidis lease materials by the prosecutor in his closing was not such as to require directions to the jury that concerned unanimity across the different bases of liability.
Analysis
There was, in our view, nothing inherently erroneous in the prosecution characterising its alternative case as one that alleged intentional ‘assistance’ on the applicant’s part pursuant to s 323(1)(a) of the Crimes Act. If the evidence was able to establish that the applicant intentionally made Number 138 available to drug cultivators for the purpose of drug cultivation, and that he did so while also remaining responsible for the electricity and water accounts connected with that property, it was not erroneous for the prosecution to allege a case of complicity based on s 323(1)(a).
Insofar as the judge introduced into his directions concerning complicity the idea, or notion, of the applicant having been a party to a ‘plan’ with others to cultivate at Number 138, there was — we consider — no error in this.
It is necessary here to examine how the judge’s direction, which is impugned in this respect, actually came about. As the applicant’s submissions describe, after the jury had retired to consider the verdicts, they asked the judge a number of questions. One such question concerned the prosecution’s complicity case and whether, in order to find the applicant guilty of charge 1, it was necessary to prove that the applicant knew that Number 138 was to be used to cultivate cannabis ‘from the start of the lease agreement’. The judge answered this question in the affirmative. Nevertheless, the judge also directed the jury that there could be different interpretations concerning when, in fact, it was that any such lease had actually commenced. The judge directed the jury that it was required that the applicant possess an intention to cultivate cannabis from the time that the property was leased, whenever that may have been.
Defence counsel took exception to this direction. He did so on the basis that the jury needed also to be told that the applicant possessed an intention to cultivate in not less than a commercial quantity of cannabis at the time that Number 138 was made available for the purpose of cannabis cultivation. The judge then redirected the jury in accordance with the exception that had been taken. This redirection was in the following terms:
I just wanted to have another crack and see if I can make it any clearer for you. That mental element that I was talking about, the intent to grow a commercial quantity, that has to be present at the time of the act of assistance, that is, when he provides his house, even though there might not be any cannabis growing at that stage, that is the allegation, that is the plan amongst either him, himself, or the others that he might be assisting and there is two things here. Let us cultivate cannabis, let us cultivate a commercial quantity of cannabis. It does not mean he has to know what the law defines as a commercial quantity obviously, just that, what I have talked about, the significant likelihood, appreciation, that the quantity is going to be over 25 kilograms.
So that is cultivation of a commercial quantity. That is the intent at the beginning, when he provides his house. If you were not satisfied of that mental element, but you were satisfied that there was the plan to cultivate cannabis, that is where the alternative comes in. You do not need to worry about the prosecution proving the mental element and that is where you consider have they proved — he provided the assistance, he was involved in the act of cultivation. His intent was to cultivate cannabis. I hope that has been of some further assistance to you.[7]
[7]Emphasis added.
There were no exceptions to this direction.
An element of mutuality, that is to say a meeting of minds, between persons is required when a relevant ‘agreement’ is alleged pursuant to s 323(1)(c) of the Crimes Act.[8] This is not required in the case of ‘assistance’ according to s 323(1)(a).[9] But ‘agreement’ and ‘assistance’ need not be mutually exclusive; the fact that a person has relevantly ‘agreed’ with another to commit an offence may not prevent that same person also from having ‘assisted’ the other in doing so, for the purposes of s 323(1)(a) of the Crimes Act.
[8]R v Rohan (a pseudonym) (2024) 98 ALJR 429, 438 [41] (Gageler CJ, Gordon and Edelman JJ).
[9]Ibid 437–8 [40].
The trial judge gave the jury necessary directions on ‘assistance’ and no complaint is made about these directions. To the extent that, in the redirection extracted above, the judge introduced into the equation the notion of a ‘plan’, this might — at first blush — be thought to have been favourable to the applicant. In one sense it merely erected an additional, and perhaps quite unnecessary, hurdle for the prosecution to clear.
But, in substance, characterising the alternative case as one involving a ‘plan’ did no more than describe the essence, or heart, of the prosecution’s case of ‘assistance’. As set out above, that case was that the applicant — intending to cultivate in not less than a commercial quantity of cannabis — intentionally made Number 138 available for use by a commercial cultivator of cannabis. That conduct, in making Number 138 available for this purpose, by any realistic assessment necessarily involved or included at least some sort of relevant plan or agreement amongst the protagonists.
The contention that the applicant suffered unfairness by the judge’s reference to a ‘plan’ in the redirection extracted above cannot, in our view, be sustained. The evidential basis for the prosecution’s complicity case remained the same. And as has already been observed, no exception was taken to the now-impugned redirection. Defence counsel did not suggest to the trial judge, by way of exception, that the defence case might have been presented differently had the judicial reference to ‘plan’ never been made. In fact, to the contrary, analysis of the transcript reveals that in answer to a later jury question defence counsel himself adopted the nomenclature of ‘plan’ when he encouraged the judge to direct the jury that they needed to be satisfied that ‘the unknown persons that he had the plan with were the same unknown persons five months later who cultivated the crop, which is the subject of the charge’.[10]
[10]Emphasis added.
The applicant’s submission that the prosecution’s two pathways to conviction — the applicant acting as ‘principal’, as opposed to the applicant merely ‘assisting’ — were so inconsistent so as to require directions as to unanimity must also be rejected.
In endeavouring to make good this submission, the applicant raised for consideration, and sought to rely upon, a common law principle identified, after examination of much authority, by this Court in R v Walsh (‘Walsh’).[11] The Court in Walsh observed that in cases of ‘murder, manslaughter and the like’ the ‘clearest example’ where a jury is permitted to arrive at a result by ‘different routes’ is found when the prosecution puts its case in the alternative but where the prosecution is ‘unable to choose’ between those alternatives. In such an instance:
It may be alleged that the victim was killed by the accused either personally or by an aide, the evidence leaving it unclear which, and in such a case it is enough if the jury agree that it was one or the other; beyond that, agreement is not required.[12]
[11](2002) 131 A Crim R 299 (‘Walsh’).
[12]Ibid 311 [45] (Phillips and Buchanan JJA, Ormiston JA agreeing at 300 [1]).
According to the principle identified, when alternative legal bases of guilt are proposed by the prosecution but they depend substantially on the same facts there is no need for a direction on ‘unanimity’ about one or the other, or more, of those bases, at least if those bases do not ‘involve materially different issues or consequences’.[13]
[13]Ibid 316 [57].
The Court in Walsh considered that perhaps the authority of R v Carr (‘Carr’)[14] should be seen as an example where jury unanimity was required because in that case ‘alternative bases of criminal liability … involve[d] materially different issues or consequences’.[15] In Carr, the defendant was charged with murder but was found guilty of manslaughter. It was alleged that the defendant had killed the deceased while ejecting him from a club. There was evidence that death had been caused by a karate kick. There was also evidence which suggested that death was caused by a punch. Different defences applied in respect of each separate cause. The defence was identification in the instance of the karate kick; self-defence applied in the instance of the punch. The Court in Carr determined that the jury needed to be unanimous, in these circumstances, concerning the act which they found was causative of death. Writing for the Court, Lord Bingham CJ observed:
[T]he difference between the two forms of assault did not depend on fine factual differences, but on stark differences in the evidence of witnesses describing the two events, those two forms of assault giving rise to very different defences.[16]
[14][2000] 2 Cr App R 149 (‘Carr’).
[15]Walsh (2002) 131 A Crim R 299, 312 [48] (Phillips and Buchanan JJA, Ormiston JA agreeing at 300 [1]).
[16]Carr [2000] 2 Cr App R 149, 158–9.
The applicant, in the present case, relied upon the notion of alternative legal bases for conviction that ‘involve materially different issues or consequences’. The applicant contended that such ‘issues’ or ‘consequences’ arose in the present case by virtue of the two nominated prosecution pathways to conviction.
The principle relied on by the applicant, as described in Walsh, has been applied in instances other than homicide. For instance, in Lancianav The King (‘Lanciana’)[17] this Court, after tracing the principle’s development and giving expression to various instances of its application,[18] considered how the principle might apply in the instance of armed robbery where the prosecution contended, primarily, that the accused had acted as a ‘principal’ pursuant to a joint criminal enterprise; but where, alternatively, it was said that the accused had acted as a mere counsellor and procurer. It was argued, on appeal, in Lanciana that directions as to unanimity were required which differentiated between these different bases of liability. The ‘materially different issues or consequences’ that were said to arise in Lanciana, and that were said to require directions as to unanimity, lay in a perceived evidential conflict: evidence of two confessions allegedly made by the accused supported his guilt as a ‘principal’ offender, whereas a third confession went solely to the accused’s alleged activities as a counsellor and procurer. This Court held that the nominated evidential discrepancy was not of sufficient magnitude to require directions as to unanimity.[19]
[17][2023] VSCA 78 (‘Lanciana’).
[18]Ibid [22]–[33] (Beach, McLeish and Kennedy JJA). The same history was traced in Walsh (2002) 131 A Crim R 299, 311–16 [46]–[57] (Phillips and Buchanan JJA, Ormiston JA agreeing at 300 [1]) and Wilson v The Queen [2016] VSCA 62, [26]–[34] (Weinberg AP, Priest and Beach JJA) (‘Wilson’).
[19]Lanciana [2023] VSCA 78, [35]–[39] (Beach, McLeish and Kennedy JJA).
In this case the applicant emphasised the two alternative prosecution pathways leading to guilt: that the applicant had acted as a ‘principal’ as distinct from him having given intentional ‘assistance’. The applicant contended that the jury in this case needed to be directed that they must be unanimous as to the particular basis of liability found proven. The main feature of the present case which was said to justify such an approach was the prosecutor’s allegedly inconsistent treatment of the Varidis lease materials. It was said that the prosecutor had contended that these materials were false, or that the Varidis lease was a ‘sham’ in the case alleging that the applicant had acted as a ‘principal’; whereas aspects of these materials were said to be ‘true’ when it came to the prosecution’s complicity case.
This submission must, in our view, be rejected. In the first instance, the applicant’s submissions do not correctly characterise the precise manner in which the prosecutor utilised the Varidis lease materials in his closing to the jury.
Analysis of the prosecutor’s closing argument to the jury reveals that the prosecution case for incriminating conduct, based upon the falsity of the Varidis lease materials, was not confined to any particular basis of liability, and was not limited to the case which alleged that the applicant had acted as a ‘principal’. And albeit that on the prosecution’s complicity case the prosecutor countenanced that there may have existed some ‘formal’ or ‘informal’ arrangement between the applicant and the cultivator at Number 138, it was not contended that the Varidis lease materials constituted evidence of any such arrangement. The judge’s directions on incriminating conduct did not confine use of this form of reasoning to any one basis of liability.
Nevertheless, it is apparent that the prosecutor, in closing, did present an alternative argument to the jury when it came to the Varidis lease materials.
The primary argument mounted by the prosecutor (repeated numerous times throughout his closing) was that the Varidis materials were false, and the Varidis lease a ‘sham’. It was argued that the only reasonable explanation for the applicant’s reliance upon these materials was that the applicant believed himself to be guilty of charges 1 and 2. Nevertheless, the prosecutor developed two alternative arguments in respect of the Varidis lease materials. Each such argument found its source in a preparedness to accept that certain aspects of those materials may perhaps have been true.
It was argued, in the alternative for instance, that if it was accepted that the applicant’s claim that the Varidis lease commenced on 27 April 2020 was true, this would have left unexplained the setting up of the electrical bypass at Number 138 on 11 April 2020. Also, the prosecutor drew attention to certain special conditions that had been handwritten into the lease included with the Varidis lease materials. One such condition stipulated that the owner of Number 138 was to retain sole use of the tin shed, and the left-hand-side temporary fencing, located at Number 138. This condition permitted the applicant access to the tin shed ‘four to six times a week’ via the driveway. It was argued, in the alternative, that if it was the applicant’s intention on 27 April 2020 to attend at Number 138 some four to six times a week throughout 2020, and that the applicant had actually done so, then he would necessarily have become aware of a number of matters, namely, that the windows of the dwelling at Number 138 were sealed up, that there was the sound of fans emanating from the house, and that there was an obvious odour of cannabis. It was argued that, in such circumstances, the applicant would necessarily have become aware that Number 138 was being used to cultivate cannabis.
These arguments by the prosecutor were put, as had been said, in the alternative to the primary ‘sham’ argument. These arguments were thus hedged about with phrases such as: ‘[b]ut even if you accept [the applicant’s] claim’, ‘[a]nd if it was his intention’ and ‘[o]n his version’.
At most, the alternative arguments made by the prosecutor in respect of the Varidis lease materials did no more than provide to the jury an alternative form of reasoning, applicable in the instance of the Varidis lease materials, referable to the prosecution case of complicity. But the evidential substructure to the two alternative bases of liability alleged by the prosecution remained the same.
It has been held, in the context of a murder trial, that where different bases of liability are proposed but where the ‘essential facts underpinning each of the bases’ are of ‘sufficient similarity’, then directions as to unanimity concerning each basis of liability will not be required.[20] That is the case here.
[20]Wilson [2016] VSCA 62, [35] (Weinberg AP, Priest and Beach JJA).
As has already been noted, the jury were directed, in respect of the prosecution’s complicity case for liability, that it was a matter for them to determine when any arrangement to let, or make available, Number 138 entered into by the applicant commenced (so long as at that point the applicant was possessed of the necessary criminal intent). A complicity argument made in the alternative to the effect that such intent could be inferred due to an arrangement having arisen after the date of the electrical bypass installation (say, on 27 April 2020) did not constitute a case substantially different to the prosecution’s case which alleged that the applicant had acted as a ‘principal’. On that case, also, the contention was, of course, that the applicant was responsible for the electrical bypass at Number 138. On each basis of liability, the cannabis cultivated was that found at Number 138 — the cannabis whose age, it seems, was influential in setting the parameters of the relevant charged dates.
The trial judge, in the present case, directed the jury that they needed to be unanimous when it came to their ultimate verdicts. But the judge also directed the jury that
this requirement does not mean that you must all reach your verdict for the same reasons. Indeed you may each rely on quite different reasons for making your decision. For example you may each rely upon different parts of the evidence or you may each emphasise different aspects of the evidence. What is important is that no matter how you reach your verdict you all agree your verdict of guilty or not guilty in relation to each and every charge must be unanimous, the agreed decision of you all.
This direction was appropriate to cover such differing reasoning processes as were posited by the prosecutor in argument concerning the Varidis lease materials. On either basis of liability, the applicant made available Number 138 for the purpose of cannabis cultivation. The principle, cited in Walsh and relied on by the applicant here, did not have application so as to require unanimity directions.
It is relevant to note that no exception was taken to the judge’s charge on the basis that unanimity directions were required. It was not suggested at trial, for instance, that the judge ought direct as to unanimity in light of any inconsistent treatment of the Varidis lease materials across the alternative bases of liability. This suggests that defence counsel did not apprehend any risk of unfairness to his client consequent upon the judge having failed to give the direction that is now sought.
For the reasons discussed, the prosecution did not allege two pathways to conviction that were ‘fundamentally inconsistent’. Nor did the trial judge err by failing to direct as to unanimity in the manner now described. Leave to appeal in respect of the applicant’s proposed ground 1 must be refused.
Proposed ground 3
Submissions
The applicant submitted that the judge erred in admitting the evidence of the applicant’s possession of the charge 3 cannabis in proof of charges 1 and 2. It was submitted that the reasoning process in respect of the charge 3 cannabis that the jury were invited to employ did not rise above ‘rank speculation and propensity reasoning’. The applicant emphasised that the prosecution had not attempted, in seeking to use the charge 3 cannabis evidence in this manner, to invoke tendency reasoning (including as to the applicant’s state of mind) with the protections that could have been afforded by ss 97(1) and 101(2) of the Evidence Act 2008 (‘EA’).
It was conceded that the applicant’s possession of the charge 3 cannabis might have demonstrated that the applicant had an interest in possessing cannabis. Nevertheless, it was put that proof of such an interest on the applicant’s part could not support a proper reasoning process in proof of the applicant having an interest in (or participating in) the cultivation of cannabis, in particular, in circumstances where an alternative reason had been proffered which explained the applicant’s possession of this cannabis, namely, that the applicant’s possession of cannabis oil was for his personal consumption. Whatever probative value the charge 3 cannabis evidence possessed, it was submitted that it did not outweigh the danger of unfair prejudice to the applicant for the purposes of s 137 of the EA.
It was submitted, further, that the prosecutor had reversed the onus of proof when, at the very end of his closing argument to the jury, he had submitted:
The last thing, perhaps the most important, key piece of evidence in this case that will bring you to the conclusions that [the applicant] is guilty of Charges 1 and 2, what explanation is there for the cannabis leaves being found in his garage at Unit 2/22 Wilson Street other than his knowledge of and involvement in the cultivation of cannabis at 138 Wilson Street.[21]
[21]Emphasis added.
It was submitted, additionally, that this argument was essentially one which relied on incriminating conduct reasoning, where the relevant conduct was the applicant’s possession of the charge 3 cannabis.
The respondent submitted that the applicant’s possession of the charge 3 cannabis was admissible, as a circumstantial fact, in proof of charges 1 and 2. This was so, in particular, due to the charge 3 cannabis’ status as a likely by-product of a commercial operation. It was contended that the prosecutor did not reverse the onus of proof in the impugned passage taken from his closing extracted above; nor, it was submitted, had the prosecutor treated the applicant’s possession of the charge 3 cannabis as incriminating conduct.
Analysis
As noted above, it was a matter of controversy pre-trial whether the prosecution would be permitted to rely upon the applicant’s possession of the charge 3 cannabis in proof of the applicant’s guilt of the offending which occurred at Number 138. The trial judge gave a ruling on this matter prior to the jury’s empanelment. In ruling that the applicant’s possession of the charge 3 cannabis was admissible for such a purpose, the judge reasoned as follows:
However, I am persuaded that the cannabis that is the subject of Charge 3 is admissible in relation to Charge 1.[22] In forming that conclusion, I have had particular regard to the characteristics of the cannabis as depicted in the photos within the brief. The cannabis was found in large plastic bags and tubs in a state that is consistent with a plant or plants having been harvested. I would not have allowed cross admissibility if this feature was not present.
I am persuaded that it is admissible through similar reasoning processes as outlined in the cases of Davidson[23] and Bembo,[24] as applied to the specific circumstances of this case. It is in that way neither coincidence nor tendency evidence. I accept that it cannot be directly proven by any scientific process that the cannabis in the garage at 2/22 Wilson Street was grown at 138 Wilson Street.
However, it is a different question as to whether the evidence is probative in relation to the material issue in dispute in relation to Charge 1. It is a trite proposition that circumstantial evidence should not be looked at in isolation. In my view it is open to the jury to consider all the evidence in combination and consider the likelihood that the cannabis in the garage was cultivated at 138 Wilson Street. The evidence does, in my view, demonstrate a familiarity with cannabis, and an association and willingness to possess harvested cannabis.
During the argument, I asked the prosecutor to outline how he would put it to the jury that the cannabis in the garage was cross admissible in relation to charge 1; that is, the cultivation of the crop at 138 Wilson Street. In my view, he outlined a logical process of reasoning that was a legitimate use of the evidence. This accorded with arguments 1 and 2 of his most recent written submissions.
[22]This ruling speaks only of admissibility in proof of charge 1. His Honour did not mention charge 2 in this ruling. The jury were ultimately directed that the charge 3 cannabis evidence could be relied on to prove ‘what was happening at 138’, that is to say, the commission of charges 1 and 2.
[23]Davidson v The Queen (2009) 75 NSWLR 150 (‘Davidson’). In that case the relevant charge was importation of a border controlled drug. Evidence had been admitted that traces of the same type of drug had been found in the accused’s bedroom. Simpson J, with whom Spigelman CJ and James J relevantly agreed, found that this evidence had been properly admitted. Although it did not prove the importation, the evidence of the drug found in the accused’s bedroom was capable of establishing that the accused ‘had an interest in having the drug and a willingness to have it in his possession’.
[24]Bembo v The Queen [2018] VSCA 42 (‘Bembo’).
The judge, in a footnote to his ruling, summarised ‘arguments 1 and 2’ taken from the prosecutor’s written submissions. His Honour’s summary read as follows:
Argument 1 (rebuttal argument): It may be inferred from the evidence that [the applicant] had an interest in storing harvested cannabis leaves on his property. [The applicant] harvested them himself or obtained them from somebody who had. The person who harvested them is also likely to have tended to the cannabis plant before they harvested it. Having regard to the fact that 54 cannabis plants were found growing in his property down the road which he owned and controlled, the evidence of the cannabis leaves in the garage at 2/22 substantially undermines [the applicant’s] claims that he knew nothing about the crop and his suggestions that it was an errant tenant who was responsible (analogous argument in Dunn and Watts v R [2017] VSCA 371 [33]; Bembo v R [2018] VSCA 42).
Argument 2 (indicia of cultivation argument): The leaves, in the state that they were, are an item of evidence, along with other evidence (including, in particular, evidence of [the applicant’s] ownership and control of 138 Wilson Street) indicating [the applicant’s] intention to cultivate cannabis at that property. The fact that the cannabis found in [the applicant’s] garage must have come from cannabis plants other than those which were found at 138 Wilson Street on 8 January 2021, does not detract from the strength of the inference that the cannabis found at 2/22 was part and parcel of [the applicant’s] acts of cultivation between the charged period of 11 September 2020 to 8 January 2021.
The judge’s reasons continued:
In forming my view that the evidence is admissible I have taken account of the recognised prejudice, and the possibility that the jury will attribute too great a weight to the evidence, and the risk that the jury will embark on impermissible propensity reasoning. I have formed the view that the danger of that reasoning and prejudice can be ameliorated sufficiently by judicial directions.
As has already been summarised, one kilometre separated Unit 2/22 and Number 138. Both properties were in the same street. The applicant owned Number 138 and paid both the electricity and water bills for that property. It was clear that at Number 138 a commercial hydroponic cannabis cultivation operation was being conducted. The evidence of the botanist called by the prosecution was that, in carrying out such an operation, the merchantable or commercial part of the plant (the flowering heads or bud) would be removed or harvested from the cannabis plant itself. This process would leave the less merchantable or commercial by-product or waste.
The botanist’s evidence was, also, that of the plants found growing at Number 138, some were quite immature; some plants were only aged up to six weeks since propagation. It was known that the electrical bypass had been installed at Number 138 since 11 April 2020. The charge 3 cannabis (6.69 kilograms of largely cannabis leaf found in a garbage bag and tubs) was described by the botanist as ‘more likely’ to be a ‘by-product of the commercial aspect’.
In our view, the applicant’s possession of the charge 3 cannabis was admissible as an item of circumstantial evidence which, in conjunction with all the other evidence relied on by the prosecution, was capable of founding an inference that the applicant had a connection with the hydroponic cannabis cultivation operation found in existence at Number 138.
In Bembo the applicant was charged with conspiracy to import a commercial quantity of high-purity methamphetamine from China. The prosecution alleged that the applicant had been selling low-purity methamphetamine from South Africa and that his motive for the planned importation was to source the drug from China on account of its higher purity. The applicant’s defence was that he had been concerned in the importation of black market diamonds and not methamphetamine. 14.3 grams of methamphetamine was found in the applicant’s garage; it was of a poor quality in comparison to the drug that it was alleged had been sought from China. This Court determined that the drug found in the garage was admissible in proof of the conspiracy because it revealed the applicant’s interest in possessing this drug and because the drug that was found was of a purity lower than would normally be expected in Australia, and lower than the expected purity of the drug allegedly to be imported from China.
The drug found in the accused’s garage in Bembo was described as ‘one piece’ of a ‘jigsaw’, given this particular drug’s low purity and the prosecution motive which alleged that the accused was seeking a drug of increased purity from China.[25] So, in the present case, the applicant’s possession of the charge 3 cannabis revealed that the applicant, at Unit 2/22, was in possession of a relatively large amount of cannabis that was likely the by-product of a commercial hydroponic cannabis operation. Such an operation was being conducted merely one kilometre down the road at a house owned by the applicant and in respect of which he paid the electricity and water bills. That the applicant may have also had an interest in converting the charge 3 cannabis into cannabis oil did not tell against the probative force of the charge 3 cannabis evidence as applied in proof of an apparent drug connection between the applicant and Number 138.
[25]Bembo [2018] VSCA 42, [51]–[52] (Whelan JA, Beach and Kyrou JJA agreeing at [62]–[63]).
To utilise the applicant’s possession of charge 3 cannabis as a circumstantial fact in this manner did not, we consider, engage in rank speculation or propensity reasoning.
The charge 3 cannabis evidence had relevant probative value in proof of the applicant’s involvement in the offending at Number 138. Its probative value was not outweighed by the danger of unfair prejudice to the applicant.[26] Relevant to the balance to be struck between probative value and the danger of unfair prejudice were the protective directions that the judge gave to the jury which warned against misuse of the charge 3 cannabis evidence.
[26]Evidence Act 2008, s 137.
Having directed the jury as to the positive use which could be made of the impugned evidence in proof of charges 1 and 2, the judge also gave the jury significant warnings. The judge told the jury that:
In considering this evidence, there are two very important directions of law that you must bear in mind. Again, this is not to suggest what inferences you should or should not draw, that is a matter for you, but you must apply my directions regarding the drawing of inferences. One, you must only draw reasonable inferences from the evidence. Two, you must not use the evidence of the cannabis in the garage in any other way. As I have told you, you must not decide the case on the basis of feelings of sympathy or prejudice because of what you learn about [the applicant].
You must not reason, for example, that just because [the applicant] may have committed a crime associated with cannabis at 2/22, he must be guilty of the other offences associated with cannabis, that is, reason that because he is the type of person who would commit a crime at 2/22 Wilson Street. He is the type of person who would commit a crime at 138. The law prohibits that kind of reasoning.
Now while I told you that you may use the evidence of the cannabis in the garage in consideration of Charge 1 and the alternative offence of cultivation, the reverse is not the case. You cannot consider the evidence relating to the cultivation at 138 in consideration of Charge 3. Charge 3, trafficking cannabis in the garage, is limited to the evidence of the cannabis in the garage and the circumstances surrounding that cannabis. It is only that cannabis in the garage that you must consider when deciding whether it has been proved beyond reasonable doubt that it was in possession for sale.
These directions properly ameliorated any risk to the applicant of unfair prejudice. We consider that the judge was correct to rule that the evidence of the applicant’s possession of the charge 3 cannabis was admissible in proof of the applicant’s involvement in the cannabis cultivation operation being carried out at Number 138.
As to the second aspect of this proposed ground of appeal, we do not consider that in the impugned part of the prosecutor’s closing address he reversed the applicable onus of proof. Nor do we consider that there is any risk that the prosecutor might have been understood by the jury to have done so.
First, the prosecutor began his address to the jury by emphasising that the onus of proof lay upon the Crown.
Secondly, and allowing the prosecutor a reasonable degree of rhetorical licence, it is clear that the prosecutor was doing no more than submitting that the only reasonable explanation for the applicant’s possession of the charge 3 cannabis lay in his connection with the hydroponic cannabis operation being carried out at Number 138. The prosecutor’s submission was that the argument made to this effect was a strong one. The meaning that the prosecutor intended to convey, and the meaning the jury would have understood was in fact conveyed, was not to suggest that the applicant had failed to proffer any explanation for his possession of the charge 3 cannabis, but rather to argue that there was no such valid reason available.
Thirdly, it is significant that experienced defence counsel, immersed in the atmosphere of the trial, did not perceive there to be any risk of unfairness to his client caused by what the prosecutor had said. No exception was taken.
Fourthly, the judge’s directions to the jury, which at various stages positively emphasised the importance of the applicable onus of proof, also dwelt in some detail upon how the jury could make nothing of the fact that the applicant had not given evidence. The judge specifically directed the jury that the fact that the applicant did not give evidence could not be used as evidence against the applicant and, indeed, did not constitute evidence in the case. The jury were warned that the fact that the applicant did not give evidence did not constitute an admission by the applicant, and nor could that fact be used to fill gaps in the evidence led by the prosecution. As the judge put it:
[The applicant’s failure to give evidence] proves nothing at all. You therefore must not draw any conclusions against the [applicant] because he did not give evidence, or even consider the fact that [the applicant] did not give evidence when deciding whether the prosecution has proved its case beyond reasonable doubt. You must not speculate about what [the applicant] might have said if he had given evidence. You must decide this case solely on the evidence which has been given in court.
In view of all these matters we do not consider it tenable to suggest that the impugned part of the prosecutor’s closing might have been understood by the jury as having placed an onus on the applicant. For these reasons, also, we do not accept that there was any risk that the jury might have thought that the prosecutor was relying on the applicant’s possession of the charge 3 cannabis as conduct that amounted to incriminating conduct. Apart from anything else, incriminating conduct must, by definition, be an ‘act or omission of the accused which occurs after the event or events alleged to constitute an offence charged’.[27] Clearly the applicant’s possession of the charge 3 cannabis could not be so characterised.
[27]Jury Directions Act 2015, s 18 (emphasis added) (‘JDA’).
But leaving formal definitions aside, it is difficult to comprehend how, in virtue of what was said by the prosecutor, he might have been understood by the jury as having suggested that the applicant had somehow impliedly admitted his guilt of charges 1 and 2 simply on account of his possession of the charge 3 cannabis.
We consider also, for these reasons, and for completeness, that the manner in which the prosecutor addressed the jury concerning the applicant’s possession of the charge 3 cannabis did not cause the probative value of the applicant’s possession of the charge 3 cannabis, led in proof of his involvement in the cultivation operation at Number 138, to be outweighed by the danger of unfair prejudice to the applicant for the purposes of s 137 of the EA.
Leave to appeal in respect of the applicant’s proposed ground 3 must be refused.
Proposed ground 4
Submissions
The applicant submitted that it was an error for the judge to permit the prosecution to argue that the applicant’s reliance on the Varidis lease materials amounted to evidence of incriminating conduct. This error was said to arise, in the first place, due to the prosecutor — in closing his case on the complicity basis of liability — having countenanced the possibility that there may in fact have been a ‘formal or informal’ lease entered into between the applicant and any cannabis cultivator at Number 138.
Secondly, it was submitted that the prosecution case for incriminating conduct was flawed from its inception because investigative police had not done enough to establish the falsity of the Varidis lease materials. It was submitted that insufficient investigatory work had been carried out so as to establish, for instance, that the Varidis lease was a ‘sham’. In particular, police had failed to contact Greek authorities or authorities connected with the European Union to investigate the authenticity of the two identity documents that were included with the Varidis lease materials. Police had not obtained call charge records connected with the telephone number provided by the applicant that was said to relate to Mr Varidis. It was submitted that calling other telephone numbers listed on relevant call charge records might easily have established whether or not the proffered telephone number was indeed one that had been used by Vasilis Varidis.
The respondent submitted that the prosecution case alleging that the Varidis lease materials were false was in no manner compromised by the prosecutor’s acknowledgement that, insofar as his argument for complicity was concerned, there may have been some ‘formal’ or ‘informal’ arrangement between the applicant and the actual cultivator or cultivators at Number 138. It was submitted, also, that on all the evidence it was well open to the jury to conclude that the Varidis lease materials were false, and that the Varidis lease was a ‘sham’.
Analysis
Part 4, Division 1 of the Jury Directions Act 2015 (‘the JDA’) deals with ‘Post-offence conduct’. Section 18 of the JDA defines ‘conduct’ to mean:
[T]he telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged.
‘Incriminating conduct’ is defined to mean:
[C]onduct that amounts to an implied admission by the accused—
(a)of having committed an offence charged or an element of an offence charged; or
(b)which negates a defence to an offence charged …
In Director of Public Prosecutions v Lynn,[28] this Court examined the test to be applied by a trial judge in deciding, in accordance with s 20(1)(b) of the JDA, whether to permit the prosecution at trial to rely on evidence of incriminating conduct. The Court described the judge as performing a ‘gate-keeper role’ in this regard. The Court noted that s 20(1)(b) is a ‘broad filter as to whether the evidence is fit for the jury’s consideration as an implied admission of guilt’.[29]
[28][2024] VSCA 62.
[29]Ibid [115].
Upon examination of the s 20(1)(b) test, and after analysis of this test’s interplay with the mandatory direction provision located at s 21(1)(a) of the JDA, the Court formulated the following statement of principle concerning the admissibility of evidence of incriminating conduct:
[T]he trial judge must make a determination, based on the whole of the evidence, that the conduct evidence was such that the jury could rationally conclude that the only reasonable explanation for it was that the accused held the belief that he or she committed the offence charged. That the jury might not so conclude, because the conduct evidence might be reasonably explicable of a belief that the accused had committed a different offence (or for any other reason) is, generally, a matter for them.[30]
[30]Ibid [126].
In this case, however, the applicant’s objection lies at the threshold. The applicant submits that it was not open to the prosecution to characterise the applicant having furnished police with the Varidis lease materials, as ‘conduct’ for the purposes of s 18 of the JDA. It is therefore contended that it was not open to the prosecutor at trial, for instance, to characterise the Varidis lease materials as false, and the Varidis lease as a ‘sham’.
The evidence relied on by the prosecution to establish that the Varidis lease materials were false was adduced largely in the form of agreed facts. Some of this evidence has already been described. It included:
(a)that the applicant continued to pay the electricity account connected with Number 138;
(b)that the applicant and his mother continued to pay the water account connected with Number 138;
(c)that the Victorian Residential Tenancies Bond Authority (‘RTBA’) held no record of a residential tenancy bond ever having been lodged in connection with Number 138; and nor was there a residential tenancy listed with the RTBA where the tenant was named ‘Vasilis Varidis’;
(d)that a search of the records and databases maintained by VicRoads revealed that no person by the name of ‘Vasilis Varidis’, born on 8 November 1989, ever held a driver’s licence in the State of Victoria;
(e)that a search of the records and databases maintained by the Registry of Births, Deaths and Marriages in Victoria revealed no record of birth for Vasilis Varidis, born on 8 November 1989;
(f)that a search of the records maintained by Australian Border Force revealed nothing to suggest that a ‘Vasilis Varidis’, born on 8 November 1989, had ever travelled into, or out of, Australia during the period 8 November 1989 to 28 January 2021;
(g)that the purported rental payments into the applicant’s account with the ANZ Bank for Number 138 included cash deposits which revealed, for instance, three deposits on 14 July 2020 by an unidentified person at the Bentleigh ANZ branch at 10.08am, 10.10am and 10.11am in separate amounts of $2,470.00.
Police also checked for any record of Mr Varidis on various internal police databases. It was said — for instance — that if Mr Varidis had ever been arrested, was a victim of crime, or had been a witness, then this search would have produced a record of him. No such record was found.
Police tried a few times calling the Varidis mobile phone number that had been supplied by the applicant. All police got when they dialled this number was a ‘beeping noise’. Checks with a telecommunications company database revealed that the number provided was registered to a Ms Ali Irfan. The address registered with this telephone number was a vacant block of land situated at an industrial estate in Bendigo. No record of Ms Irfan, or the telephone number provided, could be located on police databases.
Police were criticised, in cross-examination, for not having done more to establish the authenticity of the Varidis lease materials. Police conceded, for instance, that they had not conducted checks with Greek or European Union authorities. Police conceded that they had not obtained call charge records connected with the telephone number that had been supplied by the applicant.
Bearing very generally upon the issue of validity of the Varidis lease materials, the agreed facts also described the various social restrictions that had been imposed in the greater Melbourne metropolitan region during the Covid‑19 pandemic. These facts described the nature of ‘Stage 3 restrictions’ in place from 31 March 2020 to 12 May 2020, and 9 July 2020 to 1 August 2020; as well as the stricter ‘Stage 4 restrictions’ which applied from 2 August 2020 to 27 October 2020.
The trial judge ruled, after the close of the prosecution case, that it was open to the prosecution to argue that the Varidis lease materials were false and that the applicant’s reliance on them could amount to incriminating conduct. The judge reasoned as follows:
I am of the view that if the jury form the view that the accused created the lease knowing it was a sham, it would be open for the jury to regard this as incriminating conduct in relation to offences 1 and 2 on the indictment.
The more pertinent question is whether the jury could acting rationally reach the conclusion that the accused created the sham lease. I am of the view that this is open to the jury acting rationally. In reaching that conclusion, I am of the view that other circumstantial evidence makes this an inference that is open on the evidence. It is, of course, not a conclusion of mine that the jury should regard the evidence as supporting such an inference.
In my view, the fact that the bypass was installed before the date on the lease is stated to be operable in conjunction with the overall circumstances of the house being only a kilometre away from the residence of the accused; his continuing payment of the electricity and water; and the presence of what might be considered the remnants of a harvested plant of cannabis, as well as the somewhat unusual payments into the bank account allow such an inference to be open.
I take into account, and it is agreed, that many of these events occurred during strict lockdown conditions. However, in my view, an argument that the inference should not be drawn in all the circumstances is different from a conclusion that the inference in favour of the Crown is not open on the evidence. I therefore rule that the Crown may rely upon the evidence of the lease as incriminating conduct.
Of course, the jury will be directed that they could only treat the lease in this way if they were satisfied that the only reasonable explanation as to the provision of the lease to the police was in circumstances where [the applicant] knew the lease was a sham.
As noted above, and in conformity with this ruling, the prosecutor closed to the jury on the basis that the Varidis lease materials were false, that the Varidis lease was a ‘sham’, and that the applicant’s reliance on these materials constituted evidence of incriminating conduct on the applicant’s part. The argument made before the jury, as to the falsity of the Varidis lease materials, was premised on the following propositions:
(a)that in fact there was no tenant at Number 138;
(b)that because Mr Varidis was untraceable, it was clear that he had not tenanted Number 138;
(c)that only the applicant was named as a landlord on the Varidis lease;
(d)that no bond had been lodged with the RTBA, as was required by law;
(e)that the Varidis lease agreement had not been lodged with the RTBA;
(f)that the applicant had continued to pay the electricity and water bills for Number 138, throughout the entirety of the charged period;
(g)that the applicant had not used a real estate agent to manage the lease;
(h)that the alleged rent payments into the ANZ Bank were irregular and untraceable; and
(i)that the mobile phone number supplied by the applicant ‘[led] the police nowhere’.
It has already been noted that the prosecutor’s ‘sham’ argument with respect to the Varidis lease, and the judge’s directions on incriminating conduct, were not confined to any particular basis of liability on the applicant’s part — be it the applicant acting as a ‘principal’, or him merely intentionally ‘assisting’ another. And, as has already been described, on two occasions in closing on the prosecution case for complicity, the prosecutor countenanced the possibility that ‘[t]here may or may not have been some formal or informal arrangement between [the applicant] and these other persons for them to use the property’.
We consider that the judge was correct to allow the prosecution to allege that the applicant’s reliance on the Varidis lease materials amounted to incriminating conduct.
First, it did not undermine the prosecution’s incriminating conduct argument to allow for the possibility, on the complicity case, of a ‘formal or informal arrangement’ between the applicant and any actual cultivator in occupation at Number 138. It may be assumed, under that case, that there had to have been at least some form of arrangement of this nature. The point made by the prosecutor, in support of his case for incriminating conduct, was that this arrangement did not find expression in the Varidis lease materials.
Secondly, the bases relied on by the prosecution to establish the falsity of the Varidis lease materials were sufficient to permit the jury to reach such a conclusion. In the main, the prosecution case for falsity in this regard rested on the premise that ‘Vasilis Varidis’ was a fictitious tenant. It was open to the jury to conclude that this was so despite the fact that police had not contacted Greek and European Union authorities, and despite the fact that police had not obtained relevant call charge records. Such searches as were undertaken by police, which included checks of police databases as well as checks concerning entry into and exit from Australia, produced no record of Vasilis Varidis born on 8 November 1989. In addition, Mr Varidis’ telephone number was registered in a false name to a vacant industrial site in Bendigo.
For these reasons, leave to appeal in respect of the applicant’s proposed ground 4 must be refused.
Proposed ground 5
Introduction
This proposed ground of appeal relates to the evidence of the work gloves that, on the defence case, had to have been ‘planted’ at Number 138 by police. The relevant evidence adduced at trial concerning these work gloves has been summarised above. An examination must now be made of how this evidence was treated at trial in the closing arguments of counsel, as well as in the judge’s charge to the jury.
The prosecutor, in his closing address, eschewed all reliance — in positive proof of his case — upon the evidence of the work gloves. But he still sought to rebut the contention that had been made by defence counsel, in cross-examination of the informant, namely that these gloves had been ‘planted’ at the scene. In closing argument to the jury, the prosecutor submitted as follows:
The other issue raised by defence concerns this somewhat outrageous suggestion that police planted [the applicant’s] glove with his DNA in 138 Wilson Street to make him look guilty. That is a very serious allegation which I invite you to reject in its entirety. Consider [the informant’s] explanation. A police member may have moved the glove, not in accordance with police procedures; that was a mistake.
Bear in mind police have no idea whose glove that was at that stage and had no idea that [the applicant’s] DNA was in it. Also bear in mind this: Police did not plant the electrical bypass on 11 April 2020. Police also did not plant the cannabis leaves found in the garage at Unit 2/22 Wilson Street. There is no significance in the glove. Put it aside. The prosecution doesn’t rely on it. It’s not relevant.[31]
[31]Emphasis added.
Unsurprisingly, the work gloves featured prominently in defence counsel’s final address. It was argued forcefully by defence counsel that police had ‘planted’ this evidence. It is sufficient to extract only a portion of defence counsel’s closing address. It gives a flavour of the approach that defence counsel took:
Once evidence goes in, it doesn’t matter who introduces it, it’s part of the evidence in the case on which you can act. Now clearly you know the Crown had no intention of leading those gloves. It wasn’t part of their case. We all knew about it obviously. It wasn’t part of their case. Why wouldn’t they lead them? How could you not find that to be relevant? How could you not? In what world? In what world? It’s a disgrace.
So this is how much it moves around. This is why it’s so disingenuous. The evidence has now gone in. It’s clearly a massive issue, the fact that they cannot put the accused man at those premises at any relevant time; we all know that, they can’t. So the evidence having gone in, what would you — rather than this just be an invention because of how disastrously the evidence has gone — if it’s — I’m going to put to you it’s an invention of a submission, and I’m going to tell you why. I’m going to give you logical reasons.
It's been invented since Wednesday because of how disastrously the evidence went. Because the evidence is in now. So if I’m going to get up as the prosecutor and say to you, you’ve got to act on all the evidence, which you do, you have to consider it all, what am I going to put — because we find out much later it’s said to be reliable, I’ll come to that in a moment. What am I going to put front and centre in my argument to you as evidence that he was in the premises at a relevant time? What am I going to put? The gloves? It wasn’t part of his case to why you should find he’d been down at the premises. He didn’t put it.
Let’s take a step further back. If this was honestly the view of the learned prosecutor at the start of the trial, why did he lead it as part of their case and cop the criticism he knew would come? Because they knew it was unreliable. Why is it unreliable? Not because of DNA testing, no problems with that. Not because of the fact the gloves existed, no problems with that. Not issue with the fact [the applicant] said he owned gloves like that. He had 15 pairs, you heard he’s a painter. No issue with that. What’s the only thing that could make them unreliable? Because they were planted there.
The judge, in his final directions to the jury, instructed the jury that it was their responsibility, and their responsibility alone, to decide the facts of the case. The judge told the jury that such a decision was to be made ‘from all of the evidence that has been given during the trial’. The jury were told that it was open to them to disregard any comment that the judge might make about the evidence unless they agreed with such a comment. More particularly, the judge directed the jury in the following terms:
Throughout the trial, counsel have presented the prosecution and defence cases, while their comments and arguments have been designed to assist you to reach your decision. You do not need to accept what they have said. Of course, if you agree with an argument they have presented, you can adopt it. But if you do not agree with their view, you must put it aside. I have told you that it is your task to determine the facts in the case. In determining the facts, you consider all of the evidence that you heard from the witness box, you remember it is the answers the witnesses gave that are the evidence, not the questions they were asked and you must also take into account, the exhibits that were tendered. These include the photographs and the maps and the plans in the jury book.
When you go to the jury room to decide this case, the exhibits will go with you where you may examine them. Consider them along with the rest of the evidence in exactly the same way.
…
Nothing else is evidence in this case, as I have told you. This includes any comments counsel makes about the facts, it also includes anything you might have heard or read outside the courtroom. I am not suggesting that you have received such information, but you must remember it is only the evidence in the court that you consider. It is your duty to decide the case only on the basis of the witness’ testimony, the exhibits and the agreed facts. You should consider the evidence which is relevant to a particular matter in its individual parts and as a whole and come to a decision one way or another about the facts.
The jury were told by the judge that:
In making your decision, do not consider only the witness’ testimony, also take into account the exhibits and agreed facts, consider all the evidence in the case, use what you believe is true and reject what you disbelieve … Give each part of it the importance which you as the judges of the facts, think it should be given and then determine what in your judgment are the true facts.
The judge then turned to evidence that had been given by expert witnesses and, in particular, the evidence given by the DNA expert called by the prosecution. The judge summarised evidence given by this witness in the following terms:
She gave evidence of examining the left and right rubber shoes located within 138. She explained how one was able to do a comparison with the DNA profile obtained from [the applicant] and having done that comparison, it was her opinion it was more likely than not, that [the applicant] was not a contributor to the mixed profiles of at least two people obtained from those shoes. She also examined the gloves that were photographed on the kitchen bench and the blue sheet, that the defence has suggested were planted by the police. And she gave evidence there was extremely strong support for the proposition that [the applicant’s] DNA profile matched the sample taken from the gloves that she examined.
The judge then briefly summarised to the jury the competing arguments concerning whether the work gloves found at Number 138 had been ‘planted’:
[Defence counsel] argues that the evidence concerning those gloves can be considered in assessing the credit of the informant, his truthfulness on an aspect of the Crown case. For example, that the phone number provided by the accused for Mr Varidis had a non‑responsive tone when he rang it. He argues, as I understand it, well if you think he planted the gloves, how could you rely upon his truthfulness about another matter? [Defence counsel] argues that the investigation was biased. Lines of enquiry that may have borne on the question of guilt or innocence were not pursued. That is generally speaking the integrity of the investigation.
You are entitled to consider the evidence in that way. That is a matter for you. I am not saying you should or should not accept that line of reasoning. That is a matter for you. The prosecutor argued that the informant gave an explanation of what he believes occurred with how the gloves got there and in any event it is not as if the police planted the plants in 138 or installed the bypass.
The judge later summarised, in some detail, the respective closing addresses of prosecuting and defence counsel.
Submissions
The contention made by the applicant was that in circumstances where the work gloves (and, more particularly, the DNA found on them which connected the gloves to the applicant) formed no part of the prosecution case, it was incumbent upon the judge to direct the jury to disregard this evidence.
It was submitted that in circumstances where the prosecutor had asked the jury to reject defence counsel’s argument that the gloves had been ‘planted’; where the prosecutor had argued that the jury ought accept the informant’s explanation for why the gloves appeared on the kitchen bench in a police photograph; where the trial judge had directed the jury that they could accept or reject the arguments of counsel; and where the judge had directed the jury that they were the judges of the facts and, that in determining the facts, they should consider all the evidence including the exhibits; it was put that in all these circumstances:
The direction needed to be given with full force of judicial authority, that [the gloves] formed no part of the prosecution case and [were] not to be relied upon in support of the case … against the applicant, [and] could not be used for that purpose …
It was submitted that while counsel had not sought such a direction, there were ‘substantial and compelling reasons’ requiring that this direction be given.[32] It was submitted that the failure to give this direction could not be said to be immaterial; nor could it be said that the applicant’s conviction was inevitable. On this basis it was submitted that there had been a substantial miscarriage of justice.
[32]See JDA, s 16(1).
Counsel for the respondent, in this Court, adhered — in respect of the work glove evidence — to the position that had been adopted by his predecessor at trial. Quite properly, it was conceded that it would have been wrong for the jury to have taken into account the evidence of the work gloves in determining whether the applicant was guilty of charges 1 and 2. But the respondent submitted that there was no risk that the jury might have based their verdicts on the work glove evidence. The removal of such a risk flowed from what counsel — in particular, the prosecutor — had told the jury. It was submitted that in circumstances where the direction now contended for had not been sought, it was necessary for the applicant to establish that there were ‘substantial and compelling reasons’ for the giving of this direction. This, it was submitted, is a stringent test and one that could not be satisfied in the circumstances of the present case.
Analysis
We do not consider that there were ‘substantial and compelling reasons’ for the giving of the direction that it is now said ought to have been given in respect of the work glove evidence.[33] The respective cases presented by the parties at trial were clear. It was evident that the prosecution placed no reliance on the evidence of the work gloves in proof of its case, including the DNA that was found on the left glove. The prosecutor told the jury that this evidence was irrelevant and was to be put to one side. That the work gloves formed no part of the prosecution case was emphasised, at length, by defence counsel also.
[33]Ibid. Cf Dunn [2017] VSCA 371, [84]–[86] (Maxwell P, Beach and McLeish JJA).
The prosecutor sought to rebut the contention that the work gloves had been ‘planted’ at the scene through reliance on the explanation given in evidence by the informant; but this was the only significance that the work glove evidence took from the prosecution’s point of view. If, contrary to defence arguments, the jury had found the informant’s explanation persuasive, there is no reason to apprehend that they would then have been unable to put the work glove evidence entirely to one side, just as they had been advised to do. Indeed, the tenor of this proposed ground of appeal assumes the jury’s capacity to carry out such a task.
Lack of clarity, in this respect, is said to emanate, in part, from the judicial direction permitting the jury to ‘accept or reject the arguments of counsel’. But, taken in context, we do not consider that this particular direction would have been understood by the jury as carrying with it the notion that, contrary to what they had been told by counsel, the evidence of the work gloves was apt to be considered relevant as part of the prosecution case.
In the extract of the judge’s directions set out above, it is apparent that after reference was made to the respective ‘cases’ mounted by each of the parties, the jury was told that it was open to them to accept or reject ‘comments and arguments’ made by counsel. It is highly unlikely, we consider, that any member of the jury would have understood the prosecutor’s wholesale disavowal, in proof of his case, of reliance upon the work glove evidence as amounting to a mere ‘comment’ or ‘argument’; that is to say, as something that could freely be ignored.
Nor do we consider it possible that the judge’s direction to the jury exhorting them to consider ‘all of the evidence’ (including the exhibits) might have been understood by the jury as an instruction to them to include in such consideration the evidence of the work gloves when it came to an assessment of the prosecution case. It was necessarily implicit in what the judge had told the jury that the evidence to which they were to have regard, when considering the prosecution case, was the evidence that they had been told was relevant for this purpose. They had been told that the work glove evidence was irrelevant in this regard.
The decision by experienced defence counsel not to seek the direction that it is now said ought to have been given is, we consider, significant. It is clear that defence counsel considered that the work glove evidence, including its DNA aspect, had served its forensic purpose once the prosecutor was forced to jettison all positive reliance upon it in front of the jury. To then have had the judge, after the defence closing and with the authority of his office, remind the jury to put this evidence to one side might well have served to weaken the forensic power of the defence position concerning this evidence.
Leave to appeal in respect of proposed ground 5 is refused.
Proposed ground 2
Submissions
Under this proposed ground it was argued by the applicant that the evidence adduced by the prosecution could not establish, to the required standard, that the applicant ‘knew about the cultivation or the electrical bypass at [Number 138], or that he participated in the offending conduct that informs either charge 1 or charge 2’.
It was submitted that the prosecution’s case for complicity could not displace the reasonable possibility that the applicant was a ‘principal’ offender, and that the case alleging that the applicant was a ‘principal’ could not displace the reasonable possibility that the applicant was complicit by way of having furnished intentional ‘assistance’.
It was submitted that the verdicts on charges 1 and 2 could not be supported having regard to the evidence and ought be set aside. In the alternative, it was submitted that the element of intending to cultivate in not less than a commercial quantity of cannabis could not be supported in respect of charge 1.
The respondent submitted that in terms of the prosecution case relied on before the jury (which did not include the evidence of the work gloves), it was well open to the jury to be persuaded beyond reasonable doubt of the applicant’s guilt of charges 1 and 2.
Analysis
In determining whether a verdict of a jury is unreasonable or cannot be supported having regard to the evidence, ‘the question which the court must ask itself’ is ‘whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’, that question being ‘one of fact which the court must decide by making its own independent assessment of the evidence’.[34] In a circumstantial case, or one that is substantially circumstantial,[35] the court must ‘weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard’.[36] A circumstantial case must not be considered ‘piecemeal’.[37] The court is required to form its own judgment as to whether ‘the prosecution has failed to exclude an inference consistent with innocence that was reasonably open’.[38]
[34]M v The Queen (1994) 181 CLR 487, 492–3 (Mason CJ, Deane, Dawson and Toohey JJ).
[35]Dansie v The Queen (2022) 274 CLR 651, 659 [12] (Gageler, Keane, Gordon, Steward and Gleeson JJ).
[36]Coughlan v The Queen (2020) 267 CLR 654, 675 [55] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ) (‘Coughlan’).
[37]R v Hillier (2007) 228 CLR 618, 638 [48] (Gummow, Hayne and Crennan JJ).
[38]Coughlan (2020) 267 CLR 654, 675 [55] (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ).
We consider that there was ample evidence upon which it can be concluded that it was open to the jury to have been persuaded of the applicant’s guilt of charges 1 and 2 beyond reasonable doubt and, in particular, that the applicant possessed the relevant mens rea for charge 1. In our judgment, the evidence relied on by the prosecution excluded any inference consistent with innocence.
To repeat the essential facts in this matter. The applicant jointly owned Number 138. Number 138 was situated just a kilometre away, on the same street, from Unit 2/22 where the applicant lived. The vast majority of the cannabis possessed by the applicant at Unit 2/22 (that is to say, the 6.69 kilograms of cannabis found in the applicant’s garage the subject of charge 3) exhibited, in its nature and form, a close relationship with the kind of hydroponic commercial cannabis cultivation operation that was being carried out at Number 138 — an operation which had produced cannabis plants with a weight that was well in excess of the commercial threshold. The charge 3 cannabis was likely to have been a by-product of an operation of that kind. The applicant continued to pay the electricity and water bills for Number 138. By relying upon a ‘sham’ lease, included with other false materials, it was open to conclude that the only reasonable explanation for this was that the applicant believed himself to be guilty of having committed charges 1 and 2.
There is, we consider, nothing in the point raised by the applicant that the jury, on the prosecution complicity case, may have failed to exclude the reasonable possibility that the applicant was a ‘principal’, and that on the case which alleged that the applicant was a ‘principal’, the prosecution may have been unable to exclude the reasonable possibility that the applicant was complicit by way of him having furnished intentional ‘assistance’. Section 324B of the Crimes Act accommodates such a state of affairs, and the jury were directed in its terms. That section states as follows:
A person may be found guilty of an offence by virtue of section 324 if the trier of fact is satisfied that the person is guilty either as the person who committed the offence or as a person involved in the commission of the offence but is unable to determine which applies.[39]
[39]A person ‘involved’ in the commission of an offence is, by operation of s 324 of the Crimes Act, taken to have committed the offence. A person is ‘involved’ in the commission of an offence if the person is complicit in any of the ways described in s 323.
Leave to appeal on the applicant’s proposed ground 2 must be refused.
Conclusion
None of the applicant’s proposed grounds of appeal are reasonably arguable. The application for leave to appeal against conviction is refused.
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