Kohari v The Queen
[2018] VSCA 307
•23 November 2018 First Revision: 26 November 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0011
| ROSS WILLIAM KOHARI |
| v |
| THE QUEEN |
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| JUDGES: | KAYE, T FORREST and ASHLEY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 November 2018 |
| DATE OF JUDGMENT: | 23 November 2018 First Revision: 26 November 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 307 |
| JUDGMENT APPEALED FROM: | (County Court of Victoria, Unreported, 21-24 November, 5 December 2017, Judge Quin). |
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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of one charge of cultivation of a commercial quantity of cannabis – Whether applicant intended to cultivate a commercial quantity of cannabis – Whether jury verdict unreasonable or unsupported having regard to the evidence – Whether substantial miscarriage of justice resulted from prosecutor’s address to jury – Adequacy of judge’s directions – No substantial miscarriage of justice – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Ms J Croxford | Falcone & Adams |
| For the Respondent: | Mr J Lewis | Mr J Cain, Solicitor for Public Prosecutions |
KAYE JA
T FORREST JA
ASHLEY JA:
The applicant was convicted, following a trial in the County Court, of one charge of cultivation of a commercial quantity of cannabis contrary to s 72A of the Drugs Poisons and Controlled Substances Act 1981 (‘the Act’). Following a plea, he was sentenced to serve a community correction order for a period of 4 years, with conditions that he perform 200 hours unpaid community work, that he attend for drug assessment and treatment as directed, and that he be under the supervision of a community corrections officer for the period of the order.
The applicant seeks leave to appeal his conviction on the following grounds:
1.The Jury Verdict is unreasonable or cannot be supported having regard to the evidence.
2.The references (by the prosecutor in his final address) to ‘Blind Freddy would know that … there is a real or significant chance that these plants would weigh at least 25kg’ gave rise to a miscarriage of justice.
Circumstances of the offending
At the time of the offending, the applicant was 31 years of age, and was residing at premises at 2 Inez Avenue, Ringwood (‘the premises’) with his three children.
On 21 November 2014, police executed a search warrant pursuant to the Act at the premises. The applicant was present at the time that the search warrant was executed. He led police to the rear of his garage which he unlocked by entering a code into a security pad. Having entered the garage, police observed a CCTV camera, an air conditioning unit, ballast, fertiliser and spare globes. The applicant then led police to the rear of the garage, where he showed them a room that was concealed behind a brown cupboard. That room was referred to as ‘growing room number 1’. In the room, police located two large clear zip lock bags containing cannabis, eight small glass jars of cannabis, hydroponic equipment, and a calendar containing cultivation entries. The total weight of cannabis, pooled from the two plastic bags of the substance, was 724.1 grams dry, and the total weight of the cannabis in the eight glass jars was 77.9 grams dry. Growing room 1 was also fitted with an operating CCTV camera. The monitor to that camera, and to the camera in the garage, as well as to the external cameras fitted at the premises, was located in the kitchen.
Growing room number 1 contained a small cupboard which was being used to grow cannabis. Inside that cupboard, police located five cannabis plants, and hydroponic equipment. The cannabis plants were in fresh condition and measured approximately 35–60 centimetres in height. They were slightly bushy and immature, and weighed 1.25 kilograms each. Those five plants were ‘mother plants’, and they were unlikely to have grown to maturity.
Growing room number 1 had another door, which opened to a second room that was used to grow cannabis (‘growing room number 2’). The room contained sixteen power transformers, sixteen light bulbs, sixteen light shrouds, a power board, a fan, ducting, and filters. In the room, police located sixteen cannabis plants and a quantity of loose cannabis leaf. The loose cannabis was found to be mixed with material which was not identified, and it weighed 1.04 kilograms. The cannabis plants were in a wilted condition and measured approximately 90–110 centimetres in height. They were bushy female plants that were immature, and they weighed a total of 34 kilograms.
One of those sixteen plants was stripped. The leaves and flowering heads were found to constitute 59 percent of the total weight of the plant. Thus, of the sixteen plants, the leaves and flowering heads constituted approximately 20.1 kilograms of the total weight. Those plants would have increased in weight had they reached maturity resulting in an increased yield.
The total weight of the combined 21 cannabis plants, that were located at the premises, amounted to 35.25 kilograms. The combined weight of all dry cannabis that was located at the premises was 838.1 grams. The total combined weight of all the cannabis, including the material that could not be identified, was 37.12 kilograms. Pursuant to s 72A of the Act, a commercial quantity of cannabis is not less than 25 kilograms.
At the trial, it was not in dispute that the applicant had cultivated not less than a commercial quantity of cannabis at the Ringwood premises. The critical issue was whether the prosecution could prove, beyond reasonable doubt, that the applicant intended to cultivate not less than a commercial quantity of the plant. In order to prove that element of the charge, the prosecution was required to prove, beyond reasonable doubt, that the applicant was aware that there was a significant and real chance that he was cultivating not less than a commercial quantity, that is not less than 25 kilograms, of the plants.[1]
[1]See R v Nguyen; Re DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299, 309–310 [26]; R v Bui [2005] VSCA 300 [25] (Eames JA); R v Garlick [2006] VSCA 127 [25].
Summary of evidence
The prosecution called two witnesses in support of its case, namely, Kylie Slattery, a forensic officer in the Botany Unit at the Victoria Police Forensic Services Department, and the informant, Detective Senior Constable Leigh Kellett.
Ms Slattery gave evidence as to her examination of the plant material that was seized from the applicant’s premises, and of the weight of that material. She stated that the sixteen plants (that had been located in growing room 2) were immature. They had commenced producing flowers, but they had not reached the point where they would be harvested. She said if they had been left, the plants would have taken between three to four weeks to reach maturity, during which time the weight of the plants would have increased. Ms Slattery stated that the combined weight of the 21 cannabis plants, seized from the premises, was 35.25 kilograms.
In cross-examination, Ms Slattery could not state how much higher the plants would have grown if they had been left to grow to maturity. Accordingly, she was unable to provide an estimate as to what the weight of those plants would have been. She agreed that there is no such thing as a standard weight of a cannabis plant. She said that if she was provided with a mature plant as a point of reference, she might be able to give an estimate, but she would not be able to say how big the plant would have grown. Ms Slattery also agreed that the tasks, that were involved in the cultivation process that was adopted by the applicant, could be described as simple. Ms Slattery said that a person could by use of a computer gain the level of knowledge, that is required to grow cannabis hydroponically.
In November 2014, Detective Leading Senior Constable Kellett was working in the Croydon Divisional Tasking Unit. He described the circumstances in which the search warrant was executed on the applicant’s premises in Ringwood, and he gave evidence in relation to the location of the two grow rooms, and the seizure of the equipment and plants. He also gave evidence identifying a series of photographs of the items that were observed at the premises, and those photographs were tendered in evidence. On the day of the search, a video was taken to record a walk-through that was conducted of the premises, and the video recording of that walkthrough was also tendered. In addition, the audio recording of the interview, conducted by Detective Senior Constable Kellett with the applicant, was played to the jury and tendered.
In cross-examination, Senior Constable Kellett said that when he executed the search warrant, the applicant told him that he did not want to say anything, but he said that he would show the police where the cannabis was growing. The applicant told him that the children, who were living at the premises, did not know that cannabis that was growing in the back of the property. Senior Constable Kellett agreed that the applicant was cooperative in pointing out where various items were located. He confirmed that there were no scales found in either grow room, nor were there any documents or recordings containing information as to the weight of the plants. He agreed that the garage in the applicant’s house was very tidy and well organised, and that everything seemed to be in its proper place. There was nothing on the applicant’s computer that suggested that the applicant was aware of how much cannabis he was going to grow from the present crop at the premises.
At the conclusion of the viva voce evidence, the prosecutor read to the jury what was described as a transcript of a recording of ‘things’ that the applicant had said ‘on other occasions’. (In fact, what was read was an extract of evidence given by the applicant to this Court on an earlier successful application by him, in effect, to withdraw the plea of guilty that he had on a previous occasion made in relation to charge 1).[2]
[2]Kohari v The Queen [2017] VSCA 33.
A copy, of what the prosecutor read, was provided to the jury. Relevantly, on that previous occasion, the applicant said that he had been focused on getting some ‘dry weed’ to smoke, and it had not crossed his mind to consider how much the plant weighed. He said that he had never intended to grow any specific amount of cannabis, he ‘just grew it’. The applicant also said that he knew he would have ended up selling some of it ‘for sure’.
Ground 1
In support of ground 1, counsel for the applicant submitted that, based on the evidence in the trial, the jury, acting reasonably, could not exclude the reasonable possibility that the applicant was not aware that there was a significant and real chance that he was cultivating not less than 25 kilograms of cannabis at the premises. Accordingly, counsel submitted that the jury must have entertained a doubt about the guilt of the applicant, so that the verdict was unreasonable and cannot be supported having regard to the evidence.
In support of that submission, counsel relied on each of the following factors which, she contended, were based on the evidence, namely:
(1)There was no direct evidence ― such as by way of admission or contemporaneous recordings made by the applicant ― that the applicant knew, or was aware of, the weight of the plants. Rather, on the previous occasion (which was read into evidence), the applicant had said that he had not turned his mind to the question of how much the plants weighed.
(2)In her evidence, Ms Slattery stated that there was no standard weight of a cannabis plant. Accordingly, the applicant could not have applied a simple rule of thumb by multiplying the amount of plants at the premises by some fixed or standard weight of such plants.
(3)The applicant’s premises did not contain any of the usual paraphernalia of a commercial trafficking enterprise, such as scales, deal bags, or drying racks.
(4)The fact that the growing rooms were carefully concealed at the premises could be, and was, explained by the fact that the applicant had three young children living with him, and he did not wish them to know that cannabis was being grown on the premises. Thus, that fact did not support the guilty inference contended for by the prosecution.
(5)The number of the plants located at the premises was not sufficient, of itself, to give rise to an inference that the applicant must have known that the weight of the plants exceeded 25 kilograms. Similarly, the combined weight of the plants ― just over 35 kilograms ― was not of such magnitude, by itself, to found an inference that the applicant must have known that the weight of the plants was at least 25 kilograms.
(6)On the previous occasion, the applicant said that he had never handled a whole plant, but, rather, he used to cut the buds off the plant, dry them and smoke them. Thus, it was contended, the applicant had not been in a position to assess the weight of an individual plant by holding it.
(7)The security measures, consisting of CCTV cameras, at the premises did not support an inference that the applicant knew that he was cultivating more than 25 kilograms of cannabis. The jury was entitled to consider, and should have taken into account that such security measures are now becoming common place in the suburbs of Melbourne. The cameras in the garage and the growing room were explicable by the fact that, whatever weight of cannabis that was being grown, the applicant wished to protect it from intrusion by others who might have coveted it.
(8)No inference, as to the knowledge by the applicant of the weight of the crop, could be drawn from the manner in which the cultivation process had been set up at the premises. The same set-up would be established irrespective of the number and weight of the plants being cultivated. Further, in cross-examination, Ms Slattery agreed that a person could learn, how to set up such a process, by accessing a computer and undertaking a couple of hours study.
(9)The applicant’s premises were quite different to the usual type of premises at which drug cultivation, in a commercial amount, is undertaken. The premises were used by the applicant and his children for residential purposes, and thus they were not leased for the specific purpose of cultivating a commercial quantity of cannabis. There was no evidence that there was any rotating crop at the premises. The applicant’s garage contained a number of tools and other appliances that are quite normal paraphernalia of a family home.
In response, counsel for the respondent commenced his submissions by addressing each of the factors relied on by counsel for the applicant. In particular, counsel for the respondent contended as follows:
(1)The fact, that there was no direct evidence as to the applicant’s knowledge of the weight of the plants, is not unusual. It simply had the effect that the prosecution was required to prove its case against the applicant by a process of inference. That is quite common for a case, in which the state of mind or knowledge of the accused person is in issue. The jury was not obliged to accept, as truthful, the applicant’s statement on the previous occasion that he did not know, and had not turned his mind to, how much the plants at the premises weighed.
(2)Properly understood, Ms Slattery did not state, in her evidence, that it is not possible to postulate the approximate weight of a cannabis plant by looking at it. Rather, Ms Slattery’s evidence, in cross-examination, was directed to the issue whether she could predict how much an immature plant would weigh when it reached maturity.
(3)The fact, that the premises contained none of the usual paraphernalia of drug trafficking, is of little relevance. The applicant had admitted, on the previous occasion, that he would sell some of the cannabis that was being sold at the property, and thus, on his own admission, he was conducting a commercial enterprise.
(4)The steps taken by the applicant to conceal the cannabis crop were part of the highly organised set up at the premises. When viewed as a whole, the equipment and drug cultivation paraphernalia, together with the calendar, and the placement of the CCTV cameras, demonstrated the level of attention that was paid by the applicant to the cannabis crop that was being grown at the premises. The evidence demonstrated, in particular, that the applicant was intimately involved in the growing of the cannabis crop, and he was well aware of what was being grown there.
(5)The number of the plants involved was not insignificant. Indeed, the combined weight of the plants was more than 10 kilograms in excess of the minimum necessary to constitute a commercial quantity. In other words, this was not a case in which the combined weight of the plants was only marginally in excess of the prescribed minimum.
(6)The fact that the crop was not a rotating crop, and that the premises did not have the indicia of a large commercial enterprise conducted from rented premises with a ‘crop sitter’ in residence, was irrelevant. It was not suggested by the prosecution that the applicant was conducting such an enterprise.
(8)The jury was not obliged to accept the statement by the applicant, on the previous occasion, that he had never handled a whole plant.
(9)While the equipment, that was used at the premises, was quite standard for growing cannabis, nevertheless the level of organisation was quite substantial. The enterprise conducted at the premises was capable of growing cannabis plants well in excess of 25 kilograms; in other words, it was directed to growing that quantity of cannabis at the premises.
(10)While the applicant did use the premises for residential purposes for himself and his children, nevertheless it is clear, from the nature of the set-up of the growing rooms, that he had spent a not insubstantial part of his time tending to the cannabis crop.
Taking those matters into account, counsel submitted that it was open to the jury to be satisfied, beyond reasonable doubt, that the applicant was aware that there was a real and substantial chance that he was cultivating not less than a commercial quantity of cannabis at the premises. In particular, counsel referred to the weight of the cannabis, the photographic and video evidence of the cannabis plants, the fact that the applicant had admitted that he was intending to sell some of the product of the plants, the fact that the applicant had conducted a well organised set up in which he was actively involved, and the fact that the enterprise was directed to producing an amount of cannabis that could be substantially in excess of 25 kilograms.
The first ground of appeal, relied on by the applicant, is based on s 276(1)(a) of the Criminal Procedure Act 2009 (Vic), that the Court must allow an appeal if it is satisfied that the verdict of the jury ‘is unreasonable or cannot be supported having regard to the evidence’.
In order to succeed on that ground, the applicant must demonstrate that it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused, because the jury must ― as distinct from might ― have entertained a reasonable doubt about the applicant’s guilt.[3] In the present case, there was no direct evidence ― by way of admission or otherwise ― that the applicant knew that the cannabis plant, grown at the premises, exceeded 25 kilograms. Rather, the prosecution case, in relation to that element of the charge, was based on an inference to be drawn by the jury from the circumstantial evidence adduced at the trial. In such a case, in order to convict the applicant, the jury was required to be satisfied that the only reasonable inference, available on the evidence, was that the applicant knew that there was a real and substantial chance that the cannabis that was grown at the premises exceeded 25 kilograms in weight.[4] Accordingly, on this application, the applicant must demonstrate that the jury could not have excluded an innocent hypothesis, namely, that the applicant was not aware that the cannabis that was grown at the premises weighed in excess of 25 kilograms.
[3]Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (Hayne J); R v Klamo (2008) 18 VR 644; SKA v The Queen (2011) 243 CLR 400, 405–6 [11]–[14] (French CJ, Gummow and Kiefel JJ).
[4]Barca v The Queen (1975) 133 CLR 82, 104 (Gibbs, Stephen and Mason JJ).
Having reviewed the evidence, we are not persuaded that it was not open to the jury to conclude that the only reasonable inference, available on the evidence, was that the applicant knew that there was a significant and real chance that he was cultivating not less than 25 kilograms of cannabis at the premises. In other words, it was open to the jury to draw that inference.
The starting point, for that conclusion, is that this was not a case in which the combined weight of the plants, cultivated at the premises, only exceeded the prescribed amount by a small margin, such as by one or two kilograms. Rather, their combined weight, of 35 kilograms, was some 40 percent in excess of that prescribed limit. Put another way ― and as the prosecutor argued to the jury ― each of the twenty one plants only needed to weigh 1.2 kilograms, in order that, in combination, their total weight would exceed the prescribed weight that constituted the plants to be a commercial quantity.
Further, as counsel for the respondent has contended, the evidence demonstrated that the applicant was, and had been, attentive to, and conscientious about, the cultivation of the plants at the premises. In other words, he was a person who was well aware of the amount of cannabis that he was growing, and of the progress of the plants as they were being cultivated at the premises. The photographs, and the walk-through video, that were tendered in evidence, gave the jury a visual picture of the crop that was being tended by the applicant at the premises on a regular basis, and which the applicant would have seen on each occasion on which he attended the two growing rooms.
In addition, there was substantial evidence that the applicant was involved in cultivating the cannabis plants, not only for his own use, but also for commercial gain. In the extracts of what the applicant had said on the ‘previous occasion’, that were read to the jury, the applicant had said that he would have ended up selling some of the plant.
In addition to that admission, there was abundant evidence that the enterprise, that was conducted by the applicant at the premises, had a commercial aspect to it. The 16 plants, in growing room number 2, had not reached maturity. The fact that their combined weight, with the five ‘mother plants’, well exceeded 35 kilograms, was a firm foundation for an inference that the applicant had set up the premises in a manner that was directed to growing a reasonably substantial quantity of cannabis, well in excess of that which he would require for his own personal use. The presence of the ‘mother plants’ was indicative of an intention to conduct an ongoing enterprise at the premises. The value of the cannabis plantation, together with the equipment that he had installed, was such that the applicant had instituted security measures, not only to protect his house, but to protect the specific crop that was under cultivation. In the interview conducted by the police, the applicant accepted that there was a quite substantial set up of cannabis plants inside the growing room.
The evidence revealed that the applicant had installed a reasonably sophisticated cannabis cultivation process at the premises, comprising hydroponic equipment, power transformers, light bulbs, light shrouds, ballasts, air conditioning, and air filtration. His premises were efficiently set up with that equipment for the purpose of cultivating the plants. Ms Slattery, in cross-examination, accepted that it would have been possible for the applicant to have learnt how to establish such an enterprise at his premises by accessing the relevant information on a computer. Nevertheless, it was clear from the evidence that the applicant had carefully and efficiently established a viable cannabis growing enterprise at his premises, and that he had tended it on a regular and coordinated basis.
Taken collectively, the matters, to which we have referred, supported a reasonable inference that the applicant had intended to undertake the cultivation of cannabis at the premises on a reasonably substantial scale, that he was a person who was conscientious in attending to the detailed steps that were necessary to ensure that the crop was successfully grown, and that he was a person who was intimately familiar with the nature and progress of the crop that was being cultivated by him at his premises. In those circumstances, the fact that the weight of the cannabis plants at the premises exceeded the prescribed amount, not just by a margin, but by some 10 kilograms ― or 40 percent of the prescribed amount ― was substantial support for the proposition that the only reasonable conclusion, from the evidence, was that the applicant knew that there was a real and substantial chance that the weight of the cannabis being cultivated by him at the premises exceeded 25 kilograms.
The jury also had before it, as evidence, the two statements made by the applicant on a previous occasion, that he had not turned his mind to the weight of the cannabis grown at the premises, and that he did not intend to grow any specific quantity of cannabis at the premises. However, it was entirely a matter for the jury whether it accepted that evidence, or whether that evidence was such as to raise a reasonable doubt in its mind as to whether the applicant had the requisite knowledge of the weight of the cannabis that was cultivated at the premises.
The evidence that was elicited from Ms Slattery, in cross-examination, and that is relied on by the applicant, did not, as a matter of analysis, militate against the guilty inference found by the jury. Her evidence, that there is no such thing as a ‘standard weight’ of a cannabis plant, was given in response to questions whether she would be able to predict the weight of an immature plant after it reached maturity. It was in that context that Ms Slattery stated that there was no such thing as a standard weight of a cannabis plant. Properly construed, it would seem that, in that evidence, Ms Slattery was referring to the predicted weight of an immature cannabis plant after it reached maturity. Further, and in any event, even if that evidence of Ms Slattery related to the weight of a cannabis plant at any stage of its maturity, at most, it meant no more than that there was no such thing as a standard weight of a cannabis plant at a particular stage of its growth. That evidence would not preclude a person, who was involved in an enterprise of cultivating cannabis, from making some assessment, albeit approximate or ‘rough’, of the weight of a particular plant while it was growing to maturity. In other words, Ms Slattery’s evidence would not preclude the jury from concluding that the applicant must have been aware of at least the approximate weight of the cannabis plants that were under cultivation.
For those reasons, we consider that it was open to the jury to be satisfied beyond reasonable doubt that the applicant knew that there was a real or substantial chance that the cannabis that was cultivated at the premises exceeded 25 kilograms in weight.
Ultimately, the drawing of inferences is quintessentially a matter for a jury.[5] In R v Baden-Clay[6] the High Court stated:
It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact’. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.[7]
[5]R v Cengiz [1998] 3 VR 720, 722 (Ormiston JA), 737 (Harper AJA).
[6](2016) 258 CLR 308.
[7]Ibid 329 [65].
In the present case, the judge gave the jury unexceptionable directions as to the constituent elements of the charge, and as to the drawing of inferences. In particular, the judge directed the jury that it could not draw the inference, that the applicant had an intention to cultivate a commercial quantity of cannabis, unless it was satisfied that that was the only inference that was reasonably open in the circumstances; but if there was any other reasonable explanation available, then the prosecution would not have proved the element ― of intention and knowledge ― beyond reasonable doubt.
As discussed, the jury had a sound basis for concluding that the only reasonable inference, available on the evidence, was that the applicant was aware that there was a real and substantial chance that the quantity of cannabis cultivated at the premises exceeded 25 kilograms in weight Accordingly, the applicant has not made out ground 1.
Ground 2
Ground 2 is directed to the contention, by the prosecutor in her final address, that ‘Blind Freddy’ would know that … there is a real or significant chance that these plants would weigh at least 25 kilograms’.
After the conclusion of addresses, and before the judge commenced his charge, counsel for the applicant, at trial, took exception to that remark made by the prosecutor. Counsel contended that the remark was ‘massively problematic’, because it did not ‘prove one way or the other that the accused was aware of the weight of the plant at the time’. In response, the judge undertook to give a direction to the jury concerning that aspect of the prosecutor’s address. However, apparently by oversight, her Honour omitted to do so. After that matter was drawn to her attention by counsel for the applicant, the judge gave a re-direction to the jury in the following terms:
… in the course of the closing arguments … [the] prosecutor indicated that Blind Freddy could have seen that … if you looked at the photo of the plants, that they were well over the weight. I just want to remind you that it is not what you or anyone else thinks of the weight, it is what the accused man thought on the day that the police arrived, that there was a significant … and … real chance that the plants were over that amount. So what you have to focus on is the accused, as opposed to what anyone else would think.
On this application, counsel for the applicant submitted that there were a number of vices in the submission thus made by the prosecutor to the jury, which were not, and could not be, adequately offset by the direction by the judge to the jury. First, it was submitted, the prosecutor, by referring to what ‘Blind Freddy’ would know, in effect, invited the jury to apply an objective, rather than a subjective, test as to the state of knowledge of the applicant. Further, the comment made by the prosecutor distracted the jury from the requirement that, to convict the applicant, it must be satisfied that the only reasonable inference open on the evidence was that the applicant knew that there was a real and substantial chance that the cannabis cultivated at the premises exceeded 25 kilograms. In addition, it was contended, the submission by the prosecutor was contrary to the evidence, given by Ms Slattery, that there was no such thing as a standard weight of a cannabis plant.
In response, counsel for the respondent submitted that the prosecutor did not suggest to the jury that it should apply an objective, instead of a subjective test, in determining the requisite degree of knowledge by the applicant as to the quantity of cannabis that was being cultivated at the premises. Rather, it was submitted, the prosecutor’s remark, concerning ‘Blind Freddy’, consisted of the use of colourful language to emphasise that it must have been ‘blindingly obvious’ to the applicant that there was a real and substantial chance that the cannabis at the premises weighed more than 25 kilograms.
In our view, it is clear that, in referring to what ‘Blind Freddy’ would have known, the prosecutor did no more than resort to a colloquialism to emphasise that the applicant, who was familiar with the crop that was being cultivated at the premises, must himself have known that the plants would weigh at least 25 kilograms. Before the prosecutor made that remark, he drew the attention of the jury to the fact that the cultivation set up at the premises was ‘really an organised commercial enterprise’. He noted that the whiteboard and calendar entries at the premises revealed a high level of organisation on the part of the applicant. He then pointed out to the jury that, in order that the 21 plants weigh in excess of 25 kilograms, each of them would only have to weigh 1.2 kilograms. It was in that context that the prosecutor made the remark relating to ‘Blind Freddy’, contending to the jury that that person would know that there was a real and significant chance that the plants weighed at least 25 kilograms ‘… particularly with someone who’s going to the trouble to set this up in the way that it’s been set up’.
Thus, the part of the submission by the prosecutor, to which exception is taken, was made in the course of an argument in which the prosecutor emphasised the degree of care and organisation that the applicant had put into the cultivation of cannabis at the premises, so as to demonstrate the level of knowledge that he would have had as to the nature and dimensions of the crop that was under cultivation. The reference by the prosecutor to ‘Blind Freddy’ was not, nor could it have been perceived by the jury to have been, an invitation to adopt some type of objective test to determine the knowledge that the applicant had as to the weight of the cannabis at the premises.
Further, for the reasons that we have stated in considering ground 1, we do not consider that the submission, so made by the prosecutor, was contrary to the evidence given by the botanist, Ms Slattery. The fact that it might not be possible to postulate, of any particular plant, what its precise weight is, does not mean that the applicant, being familiar with the crop that was under cultivation at his premises, did not know, nor could have known, that there was a real and significant chance that the weight of that crop ― which was in fact 35 kilograms ― weighed in excess of 25 kilograms.
If, contrary to the views that we have just expressed, there was any risk that the comment made by the prosecutor might have distracted the jury and invited it to adopt some kind of objective test, that risk would, we consider, have been fully eradicated by the content of the judge’s charge to the jury, and by the re-direction to the jury which we have quoted. In her charge, the judge made it clear that the prosecution was required to prove beyond reasonable doubt that the accused intended to cultivate not less than 25 kilograms. Her Honour explained to the jury, in clear terms, that that element might be established by proof beyond reasonable doubt that the applicant was aware that there was a significant and real chance that he was cultivating not less than 25 kilograms of the plants. The judge’s directions to the jury, on that element of the offence, made it plain that the focus was on the applicant’s subjective knowledge. That principle was reinforced by the clear re-direction that her Honour gave to the jury at the conclusion of her charge.
For those reasons, ground 2 is not made out.
Conclusion
For the foregoing reasons, the applicant has not succeeded on either proposed ground of appeal. Accordingly, the application for leave to appeal must be refused.
Before departing from the matter, it is appropriate to record that in this matter the Court was substantially assisted by the well prepared, clear and coherent oral submissions presented to it by both counsel for the applicant and counsel for the respondent.
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