R v Francis-Wright
[2005] VSCA 79
•13 April 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 21 of 2004
| THE QUEEN |
| v. |
| KEVIN FRANCIS-WRIGHT |
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JUDGES: | CALLAWAY and BATT, JJ.A. and WILLIAMS, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 21 February 2005 | |
DATE OF JUDGMENT: | 13 April 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 79 | |
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Criminal Law – Drug trafficking – Trafficking in not less than the commercial quantity of cannabis – Statutory interpretation – Whether a cutting is a “plant” under Drugs, Poisons and Controlled Substances Act 1981 – Whether a jury question – Adequacy of directions to jury – Whether directions sufficiently related facts to issue of possession for sale – Whether verdict could not be supported having regard to the evidence – Whether acquittal appropriate – Whether proviso applicable - Drugs, Poisons and Controlled Substances Act 1981, ss.70(1), 71(1)(a) - Crimes Act 1958, s.568(1).
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | Mr S. Carisbrooke, |
| For the Applicant | Mr O.P. Holdenson, Q.C. | Kenna Teasdale Lawyers |
CALLAWAY, J.A.:
I have had the advantage of reading, in draft, the reasons for judgment prepared by Williams, A.J.A. I agree in the orders that her Honour proposes for the following reasons.
The word “plants”, as used in the definition of “commercial quantity” in s.70 of, and in Schedule 11 to, the Drugs, Poisons and Controlled Substances Act 1981, as in force between 1st October and 7th December 2000, is an ordinary English word. The expert botanical evidence led, both by the prosecution and the defence, was inadmissible. The jury should not have been left to decide the meaning of “plants” for themselves in the light of that evidence, but nor should they have been left at large to determine whether the cuttings were plants. It was for the judge to tell them the meaning of the word in its statutory context, to the extent that that meaning was relevant to the issues at the trial. They could not be told simply that “plants” was an ordinary English word, because it has a wide range of meanings and the fate of an accused person should not depend on whether a particular jury thinks that a pruning lying on the ground is a plant or that something more is required.[1]
[1]Compare R. v. Salvo [1980] V.R. 401 at 431.
In my opinion, a cutting[2] becomes a plant, for present purposes, when it develops a root. That is a meaning that fits the context and conduces to a practical system of criminal justice. It does not depend on the intention of the accused or anyone else. The root need not be a root system, nor need it be viable. Once a cutting becomes a plant, it continues to be a plant even if it dies. There is no reason to think that Parliament intended proof of the number of plants to depend on expert evidence, whether as to the viability of a root system, the viability of a substrate, the capacity of a putative plant to photosynthesize, whether fungi or algae are plants or other similar matters.
[2]I confine myself to the facts of this case, saying nothing about plants other than cannabis and nothing about seeds or vegetative propagules other than cuttings of the kind in issue here. My conclusion does not depend on the references in the Act to parts of plants.
Applying the definition at the beginning of [3] above, on the evidence most favourable to the applicant, there were 102 plants. Dr Drinnan said that the cuttings which comprised item 2 included 84 cuttings with “well-developed” root systems and 13 which had “poorly developed” root systems. Five dead plants were the subject of item 4 on the certificate. The Crown did not have to prove that the applicant was in possession of at least 100 of those 102 plants in order to sell each of them as a whole, as distinct from a part such as its foliage. R. v. Coviello[3] was a case concerned with the weight of plant material. It is readily distinguishable. I agree with Williams, A.J.A. that there was evidence on which it was open to the jury to convict the applicant, even when the criminal standard of proof is taken into account.
[3](1995) 81 A.Crim.R. 293.
If the matter rested there, it would follow that the applicant did not lose a chance of acquittal that was fairly open to him by reason of the erroneous approach adopted at the trial and, accordingly, subject to the adequacy of the judge’s other directions, the proviso to s.568(1) of the Crimes Act 1958 would apply. The difficulty is that the jury may have applied her Honour’s directions not to the 102 plants that I have identified, but, in reliance on Mr Azzopardi’s evidence, to items of material that did not qualify as plants.[4] Accepting Dr Drinnan’s evidence, it would have been necessary for them to be satisfied beyond reasonable doubt that the applicant had at least 100 of those 102 plants in his possession for sale.
BATT, J.A.:
[4]In particular, they may have excluded the five dead plants but made up the number from other material that should not have been counted.
I agree with Williams, A.J.A. I add only the following. Even if the meaning of the word “plant” in the Act in question is a matter of fact, directions as to its meaning were “necessary and practical”[5] and so were required to be given by the judge. In this respect the case is different from those concerning words such as
“insulting”, “serious” or “obscene”, which involve value judgments of which jurors are the arbiters par excellence without expert evidence[6].
WILLIAMS, A.J.A.:
[5]R. v. Miletic [1997] 1 V.R. 593 at 604-605.
[6]Cf. Transport Publishing Co. Pty. Ltd. v .Literature Board of Review (1956) 99 C.L.R. 111 at 119; R. v. Anderson [1972] 1 Q.B. 304 at 313; R. v. Stamford [1972] 2 Q.B. 391 at 397-8; and Director of Public Prosecutions v. Jordan [1977] A.C. 699.
The applicant pleaded not guilty in the County Court to a charge under s.71(1)(a) of the Drugs Poisons and Controlled Substances Act 1981 (“the Act”) of trafficking in not less than the commercial quantity of the drug of dependence, Cannabis L., between 1 October 2000 and 7 December 2000, and an alternative charge, under s.72(1)(ab) of the Act, of cultivating not less than the commercial quantity of the drug, between the same dates.
On 16 December 2003 a jury returned a verdict of guilty in relation to the charge under s.71(1)(a). On 13 February 2004 the applicant was convicted and sentenced to a term of imprisonment of four years with a non-parole period of two years. He seeks leave to appeal against his conviction.
The Act
At relevant times the Act provided :
“4. Definitions
(1)In this Act unless inconsistent with the context or subject-matter –
‘drug of dependence’ means a substance that is –…
(b)any fresh or dried parts of any plant specified in column 1 of Part 2 of Schedule Eleven …
‘sell’means sell, …-
(a)… keep or have in possession for sale, …and
(b)… attempt any of the acts or things mentioned in paragraph (a) -
and ‘sale’ …and each of the other derivatives of ‘sell’ have corresponding meanings;
5. Meaning of “possession”
Without restricting the meaning of the word “possession”, any substance shall be deemed for the purposes of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him … unless the person satisfies the court to the contrary.
70. Definitions
(1)In this Part …, unless inconsistent with the context or subject-matter –
‘cannabis’ means any fresh or dried parts of a plant of the genus Cannabis L;
‘commercial quantity’, in relation to a drug of dependence– …
(b)the name of which is specified in column 1 of Part 2 of Schedule Eleven, means the quantity, or the number of plants, that is specified in column 2 of that Part of that Schedule opposite to the name of that drug of dependence; …
‘narcotic plant’ means any plant the name of which is specified in column 1 of Part 2 of Schedule Eleven;
‘traffick’ in relation to a drug of dependence includes-
…
(c)sell, exchange, agree to sell, offer for sale or have possession for sale, a drug of dependence;
‘traffickable quantity’ in relation to a drug of dependence –
…
(b)the name of which is specified in column 1 of Part 2 of Schedule Eleven, means the quantity, or the number of plants, that is specified in column 3 of that Part of that Schedule opposite to the name of that drug of dependence; …
71.Trafficking in a Drug of Dependence
(1)A person who without being authorised … to do so trafficks … in a drug of dependence is guilty of an indictable offence and liable -
(a)where the court is satisfied beyond reasonable doubt that the offence is committed in relation to a quantity of a drug of dependence that is not less than the commercial quantity applicable to that drug of dependence –
(i)to level 2 imprisonment (25 years maximum); and
(ii)in addition to imprisonment, to a penalty of not more than 2500 penalty units; or …
(b)in any other case – to a penalty of not more than 1000 penalty units or to level 4 imprisonment (15 years maximum) or to both that penalty and imprisonment.
72. Cultivation of narcotic plants
(1)A person who without being authorised … to do so cultivates or attempts to cultivate a narcotic plant is guilty of an indictable offence and liable-
(a)where the court is satisfied on the balance of probabilities that the offence was not committed by the person for any purpose related to trafficking in that plant – to a penalty of not more than 20 penalty units or to level 8 imprisonment (1 year maximum) or to both that penalty and imprisonment;
(ab)where the court is satisfied beyond reasonable doubt that the offence is committed in relation to a quantity of a drug of dependence, being a narcotic plant, that is not less than the commercial quantity applicable to that narcotic plant –
(i)to level 2 imprisonment (25 years maximum); and
(ii)in addition to imprisonment, to a penalty of not more than 2500 penalty units; or
(b)in any other case – to a penalty of not more than 1000 penalty units or to level 4 imprisonment (15 years maximum) or to both that penalty and imprisonment.
(2)In this section ‘cultivate’ in relation to a narcotic plant includes –
(a) sow a seed of a narcotic plant; or
(b)plant, grow, tend, nurture or harvest a narcotic plant.
73. Possession of a drug of dependence
…
(2)Where a person has in his possession, without being authorised by or licensed under this Act or the regulations to do so, a drug of dependence in a quantity that is not less than the traffickable quantity applicable to that drug of dependence, the possession of that drug of dependence in that quantity is prima facie evidence of trafficking by that person in that drug of dependence.”
Part 2 of Schedule 11 to the Act was, so far as material, in the following form:
Part 2 Column 1 Column 2 Column 3 Column 4 Plant Quantity Quantity Quantity Kilograms Grams Grams Cannabis L. 25.0 kilograms
or 100 plants250.0 Grams
or 10 plants
50.0 grams
The Act provided no definition of the word “plant”.
The trial
The prosecution alleged that the applicant had trafficked in Cannabis L. by having in his possession, for sale, a number of plants and cuttings which, it was common ground, had been seized from premises occupied by him.
The applicant conceded that he was deemed to have been in possession of the cannabis under s.5 of the Act. He acknowledged that s.73(2) operated to establish a prima facie case of trafficking against him, provided that the requisite amount of cannabis had been in his possession. He contended, however, that he had not had the cannabis in his possession for sale and he contested the allegation that the number of cannabis plants in his possession was “not less than the commercial quantity” for the purposes of the Act.
The prosecution sought to establish the offence under s.71(1)(a) by reference to the number of plants in the applicant’s possession, rather than on the basis of the weight of the material seized. Preliminary questions arose, both as to the meaning of the word “plant” in the Act and as to whether the determination of that meaning was one of fact to be made by the jury.
The ruling
It was in that context that the prosecutor sought a ruling as to whether a cutting would fall within the definition of a “plant” under the Act. The learned trial judge ruled that a cutting was not ipso facto a plant for the purposes of the Act and went on to say that the question as to “[w]hether the cuttings seized by police … [were] plants for the purposes of the Act [was] a question of fact to be determined by the jury”. In her reasons, her Honour referred to a ruling by Judge Duggan in R v Farmer[7] which was to the effect that a cutting needed roots or, at least, root cells, to be characterised as a plant for the purposes of an offence under s.72(1)(ab) of the Act.
[7](Unreported, The County Court of Victoria, 28 March 2000).
The trial proceeded before the jury. The informant, Senior Detective Adrian Woodcock, gave evidence that police had attended premises occupied by the applicant on 7 December 2000, after having received a report of a fire. They had found what appeared to be cannabis in irrigated tubs, as well as equipment which included irrigation tubing, lights and heat trays. The material which appeared to be cannabis was seized and, on 12 December 2000, inspected by a botanist, Mr Scott Azzopardi, of the Victorian Institute of Forensic Science. It was kept in a shed at the Lilydale Police Station and made available for inspection on two occasions by Dr Andrew Drinnan, a botanist retained by the applicant.
Mr Azzopardi’s evidence
Mr Azzopardi set out his findings in a certificate dated 14 December 2000, given under s.120 of the Act and tendered during the Crown case (“the certificate”). The certificate referred to five items of plant material examined and identified by Mr Azzopardi. Item No. 1 was described as one Cannabis L. plant, Item No. 2 as 202 Cannabis L. plants, Item No. 3 as five plants which could not be identified, Item No. 4 as five Cannabis L. plants and Item No. 5 as 77.1 grams of Cannabis L.. The Item No. 5 material has no relevance, having regard to the way the prosecution put its case, and it was common ground that the Item No. 1 plant could not be identified as having come from the applicant’s premises.
Mr Azzopardi gave oral evidence:
(a) as to the 202 Item No. 2 plants that:
(i)they were found on trays in small squares of rock-wool, a common hydroponic substrate;
(ii)104 plants had what he described as vestigial root systems; and
(iii) 98 had no roots;
(b) as to the five Item No. 4 plants that:(i) they had roots and were in rock-wool;
(ii)they had been harvested and their main branches removed;
(iii) they were “dried to heavily wilted”;
(iv) they were “on their way” to death; and
(v)it was possible or most likely that their branches had been removed for the propagation of the 202 Item No. 2 plants.
Mr Azzopardi acknowledged that there was a dispute “for legal purposes” in Victoria as to what constituted a plant and that it was clear that there were varying scientific opinions on the point. He expressed the opinion that a plant was an organism which had, or has, the ability to sustain life through photosynthesis. Once a cutting had been planted in some sort of suitable substrate, it became a plant. He said that a cutting generally formed roots between one and two weeks. According to his definition, it was not necessary for a plant to have roots. Mr Azzopardi maintained his position under cross-examination which included questions relating to the ability of a cutting to photosynthesise and to differing definitions of the word “plant”. He also expressed the opinion that it was impossible to distinguish between roots which were viable and those which were not. He included a dead plant within his definition of a “plant”.
Dr Drinnan’s evidence
The defence witness, Dr Drinnan, expressed the opinion that a “plant” was “a viable vegetative entity that is capable of sustained and independent life”. A cannabis cutting became a plant, in his view, once it had developed a “good” root system which was viable in the sense that the cutting was capable of maintaining photosynthesis through it. A “good” root system was to be contrasted with one which was “poor”. He disagreed with Mr Azzopardi’s opinion as to when a cutting became a plant.
Dr Drinnan gave evidence about the items described in the certificate. In relation to the Item No. 2 material he said that:
(i)on 12 July 2001, at the Lilydale police station, he had counted 189 cuttings, 84 of which had viable root systems, 13 had “poor” roots and 92 had none;
(ii)assuming the correctness of Mr Azzopardi’s account of 104 cuttings with roots and subtracting from that number the 13 cuttings with poor roots, on the basis of his own definition, Item No. 2 would have comprised 91 “plants”; and
(iii)if the 13 Item No. 2 cuttings with “poor” roots were to have been tended, they might have produced one, five or ten “plants”.
Dr Drinnan also expressed the view that the five Item No. 4 plants were dead, having been cut back to stumps a couple of centimetres high, with only a few side branches left at each base.
Prior to the closing addresses and after Dr Drinnan’s evidence, counsel for the defence submitted that there was insufficient evidence fit to go to the jury to prove that there was not less than the commercial quantity of the cannabis involved for the purpose of either of the charges. He submitted that it followed from the preliminary ruling that, in order to find either of the charges made out, the jury must be satisfied beyond reasonable doubt as to the correctness of Mr Azzopardi’s definition of the word “plant”, without having been provided with “any effective criteria” for selection between the two competing definitions provided by the experts.
The application was rejected. The trial judge noted that evidence had been led by both parties as to the meaning of “plant” and as to the calculation of the number of cannabis plants. Her Honour went on to say that it was a question for the jury as to whether the cuttings, or any of them, were “plants” for the purposes of the Act.
The Charge
The main thrust of the challenge to the verdict related to the trial judge’s failure to interpret and direct the jury as to the meaning of the word “plant”, for the purposes of the determination whether the applicant had trafficked in or cultivated “not less than the commercial quantity” of cannabis. In the relevant passage from the charge, her Honour instructed the jury as follows:
“The third element that the Crown must prove is that the quantity of cannabis alleged to have been trafficked in the first count was a commercial quantity.
Now, what is a commercial quantity of a drug? The Act defines a commercial quantity of cannabis as being 100 plants. In this case you must be satisfied beyond reasonable doubt that the quantity of cannabis that the accused had in his possession for sale was at least 100 plants.
On that issue, evidence was led on both sides. The Crown called Mr Azzopardi to give evidence. He defined plant as an organism which has or has had the ability to sustain life through the process of photo-synthesis. In his opinion, a cutting becomes a plant once it is planted in some sort of suitable growth substrate because it is able to maintain its own existence. He said that the definition of a plant as something with roots excludes too many plants, such as aquatic plants or duck weeds or welpatia that just sit on top of the water without roots.
On the basis of that definition, Mr Azzopardi said that he received a total of 213 items located on the premises … and identified 207 of those items as cannabis plants. Mr Azzopardi also gave evidence that 104 of the cuttings he had examined had vestigial root systems. The defence called Mr Drinnan [sic] to give evidence. He defined plant as a viable vegetative entity that is capable of sustained and independent life. Viable means that it has the potential to live. Vegetative means that part of the plant which is basically the main body of the plant, stems, roots and leaves as opposed to seeds. Capable of sustained and independent life means something that you can expect to live through to its mature stage. He said that cannabis cuttings are capable of achieving the status of a plant. In his opinion, they reach that stage once they have developed a root system and are capable of maintaining photo-synthesis based on that root system. From then on they are able to sustain independent life and they will continue to grow. He would not define a cutting with no root system as a plant. He said that until a cutting develops a root system, it will not start to grow again. He also said that it was not safe to categorise a cutting which had produced a poor root system as a plant because it does not have the capability to sustain and continue life.
Dr Drinnan gave evidence that he examined 189 cuttings. He said that he would only categorise 84 of those cuttings as a plant because they had well developed root systems and each of them was a viable vegetative entity capable of sustaining independent life. Dr Drinnan also said that applying Mr Azzopardi’s figures, of the 202 cuttings stated by Mr Azzopardi, there were 91 plants, and 13 are poorly rooted and 98 have got no roots at all.
You have to determine the quantity of cannabis located at the premises … . You have to ask yourselves whether you are satisfied beyond reasonable doubt that the quantity of cannabis plants was in excess of 100 plants of cannabis.
Before you can find the accused guilty of trafficking in a commercial quantity, you must be satisfied beyond reasonable doubt that he was trafficking in a quantity of not less than 100 cannabis plant [sic]. …
The second count on the presentment is the count of cultivating a narcotic plant, namely cannabis L, in a quantity that was not less than the commercial quantity applicable to that drug of dependence. Counts 1 and 2 on this presentment arise out of the same alleged transaction and are laid in the alternative. The Crown does not suggest that the accused should be convicted of both of them, but of one or the other. The elements of that charge, that is Count 2 are first, the Crown must prove that the accused cultivated the plant, and that means, caused it to grow, and includes, because you will recall the statutory definition, sowing a seed of narcotic plant, planting, growing, tending, nurturing or harvesting a narcotic plant. If he has done any of those things, then, as a matter of law, he is guilty of cultivating. The Crown alleges that the accused was clearly cultivating plants. The plants were growing in his house with his permission. The accused stated in his record of interview with police that he watered the plants. The defence concedes that the accused was guilty of cultivating the plants.
… The defence however, says that the accused is not guilty of cultivating cannabis L in a commercial quantity.
The second thing that the Crown has to prove beyond reasonable doubt, that it was in fact a narcotic plant that he was cultivating. As a matter of law, I instruct you that cannabis is in fact a narcotic plant because the Act says so. It says cannabis is a narcotic plant.
The third element which the Crown must prove beyond reasonable doubt is that the quantity of the narcotic plant is not less than the commercial quantity applicable to that narcotic plant. I have previously told you that the commercial quantity applicable to cannabis L, is 100 plants. I have also referred you to the dispute between the Crown and the accused as to what constitutes a plant. Before you can find the accused guilty of the second count, you have to be satisfied beyond reasonable doubt that the accused cultivated not less than 100 plants.”
The jury question
In the course of their deliberations, the jury posed to the judge the question:
“While reading your summation you read out that, ‘A cutting is a plant.’ What part of the Act was that? We think it came up under the definition of what was cultivation?”
Counsel for the applicant submitted that, in light of her preliminary ruling, her Honour should respond in similar terms. Her Honour then answered the jury’s question by saying:
“Now there is no definition of plant in the Act. Whether a cutting is a plant is a question of fact for you to determine on the basis of the evidence you have heard in this case, and the definition of cultivate is irrelevant to the definition of a plant.”
The grounds of appeal
The applicant relies upon four grounds of appeal which were set out in a notice dated 23 February 2004:
“1. The verdict on Count One was unsafe and unsatisfactory in that:
(a)no jury acting reasonably could find that the accused possessed a commercial quantity for the purpose of sale;
(b)no jury acting reasonably could find that the accused possessed a quantity of narcotic plants not less than the commercial quantity applicable;
2.The Learned Trial Judge erred in her directions concerning the correct characterisation of the term ‘plant’ in Count One.
3.The Learned Trial Judge erred in her directions concerning the elements of the element [sic] of ‘commercial quantity’ in Count One.
4.The Learned Trial Judge erred in her directions concerning the manner in which the Crown case was put.”
Six more grounds were added by order of the Registrar on 14 October 2004:
“5.The learned trial judge erred in admitting evidence before the jury from:
(i)Mr Scott John Azzopardi, Forensic Scientist (who was called by the Crown); and
(ii)Dr Andrew Neil Drinnan, Reader in Botany at the University of Melbourne (who was called by the defence) –
as to:
(a) what constitutes a ‘plant’; and
(b) the meaning of the word ‘plant’ –
for the purposes of the Drugs Poisons and Controlled Substances Act 1981 (Vic) as amended (’the Act’), including Part 2 of Schedule 11 to the Act.
6. The learned trial judge erred in failing both:
(i) to determine herself; and then
(ii) to direct the jury –
that the meaning of the word ‘plant’ for the said purposes did not encompass or include a cutting which had not yet developed a viable root system.
7.The learned trial judge erred in failing to direct the jury that a cutting which had not yet developed a viable root system:
(i) was not a ‘plant’; and
(ii)did not fall within the meaning of the word ‘plant’ -
for the said purposes.
8.The learned trial judge erred in her directions to the jury by effectively directing the jury (or, in the alternative, permitting the jury) to select its own meaning of the word ‘plant’ for the said purposes from within the evidence given by –
(i) Mr Scott John Azzopardi; and
(ii) Dr Andrew Neil Drinnan.
9.The learned trial judge erred in her directions to the jury concerning ‘possession for sale’, such being the nature of the trafficking relied upon by the Crown for the purposes of Count 1 on the Presentment.
PARTICULARS
(i)The learned trial judge should have both directed the jury to consider the quantity of the plants which were both possessed by the applicant and were to be sold by him and drawn their attention to the evidence which bore on that question.
(ii)The learned trial judge should have directed the jury that, in order to convict the Applicant on Count 1, the jury had to find beyond reasonable doubt that the Applicant not only had 100 or more plants in his possession, but were so possessed [sic] by him for the purposes of being sold.
10.The verdict of the jury on Count 1 was unreasonable and could not be supported having regard to the evidence and, as a consequence, there has been a substantial miscarriage of justice.
PARTICULARS
(i)It was not open to the jury to find that (for the purpose of Part 2 of Schedule 11 to the Act) there existed at the premises 100 or more Cannabis L. ‘plants’.
(ii)It was not open to the jury to find that the Applicant possessed 100 or more Cannabis L. ‘plants’ (for the purposes of Part 2 of Schedule 11 to the Act) for sale.”
The grounds of appeal are grouped, according to topic, in the submissions made on behalf of the applicant.
Grounds 2 and 3 and 5 to 8 (inclusive)
In relation to grounds 2 and 3 and 5 to 8, the applicant contends that it was for the trial judge to decide the meaning of the word “plant” in the Act, as a matter of law, and that the jury should have been instructed as to that meaning and as to the facts of which they were required to be satisfied, as a result. The applicant argues that the judge erred in admitting evidence before the jury as to the meaning of the word “plant” and then directing the jury to determine that meaning with reference to the evidence of the “expert” witnesses.
The respondent concedes that the evidence from Mr Azzopardi and Dr Drinnan was inadmissible before the jury, submitting that the word was used in the Act in its ordinary sense, rather than as a technical scientific or botanical expression.
It was necessary for the trial judge to decide, as a matter of law, whether the word “plant” was used in the Act in a sense other than it would have in ordinary speech[8]. Her Honour erred in failing to make that determination.
[8]NSW Associated Blue-Metal Quarries Limited v Federal Commissioner of Taxation (1955) 94 C.L.R. 509 at 511-2 per Kitto, J..
The judge was also required to determine any special or particular meaning of the word in the relevant provisions and to direct the jury as to that meaning. Barwick, C.J. stated the applicable principle in Yager v The Queen:
“Where the resolution of the connotation of a word used by the legislature which is not self-explanatory is undertaken as a part of the interpretation of the statute, it is for the judge and not for the tribunal of fact to decide. To submit to the contrary is to fail to apprehend the real function of the judge in directing the jury as to the meaning of the statute which they may be asked to apply to some situation of fact or circumstance.”[9]
[9](1977) 139 C.L.R. 28 at 34; see also: R v Salvo [1980] V.R. 401 at 429, 435 and 437 per Fullagar, J..
Evidence as to any technical or trade meaning of the word would have been admissible before the judge, if the word had been used in such a sense. Otherwise, it should have been interpreted in accordance with its ordinary usage[10]. I agree with the respondent that the legislation was not directed to botanists. The Act generally regulated the production, possession and use of poisons and controlled substances including drugs of dependence. It provided for the authorisation and licensing of certain persons to engage in assorted activities, including research, in relation to the regulated substances. Part 5 created a number of offences relating to drugs of dependence. In my opinion, the botanical evidence as to the meaning of the word “plant” in relation to the subject offences would have been inadmissible, even before the trial judge. Nevertheless, the judge would have been able to seek assistance from dictionaries and standard reference works in interpreting the ordinary meaning of the word[11].
[10]Pepsi Seven- Up Bottlers v Commissioner of Taxation (1995) 62 F.C.R. 289 at 297 per Hill, J.; Federal Commissioner of Taxation v Hamersley Iron PtyLtd (1980) 33 A.L.R. 251 at 271-3 (SC(Vic)) per Gobbo, J.) (affirmed without reference to this point: (1981) 37 A.L.R. 595.)
[11]Pepsi Seven-Up Bottlers v Commissioner of Taxation (1995) 62 FCR 289 at 296-7 per Hill, J.; Australian Gas Light Co v Valuer- General (1940) 40 SR(NSW) 126 at 137 per Jordan, C.J.; Bendixen v Coleman & Ors (1943) 68 C.L.R. 401 at 415 per Latham, C.J..
However, the Act did differentiate between “plants” and “parts of a plant”, even in the definitions in s.70(1). I consider that it was unclear, in relation to offences under s.71 and s.72, whether a “plant” included a cutting without roots, a cutting with non-viable roots or only a cutting with a viable root-system. As the use of the word “plant” in respect of the charges brought against the applicant was not self explanatory, its meaning in the relevant sections required interpretation by the trial judge, with reference to the facts, and an appropriate direction to the jury.
In my view, her Honour erred in leaving it to the jury to interpret the word “plant” as a necessary step in its determination of the issue of fact as to the number of plants trafficked by the applicant.
The meaning of the word “plant” in the Act
The applicant also submits that, for the purposes of the offences charged, the trial judge should have construed “plant” as a cutting with a viable, rather than a “poor” or “poorly developed”, root system, and that her Honour erred in failing to do so and in failing to direct the jury accordingly.
Senior counsel for the applicant notes the apparent inconsistency between the definitions of the word “plant” as including a “cutting” in The Shorter Oxford English Dictionary[12] and a “growing slip” in The Macquarie Dictionary[13], on the one hand, and, on the other, the description of “cuttings” as ”pieces of plants which, when separated from the plants and maintained under good conditions, produce new roots and growth and become separate plants” in the Encyclopaedia of Australian Plants[14]. He submits that the standard work supports a distinction being drawn between a plant and its parts consistent with Dr Drinnan’s opinion.
[12]The Shorter Oxford English Dictionary (3rd ed. 1993) Vol II at p. 1599.
[13]The Macquarie Dictionary (3rd ed. Macquarie Library, 1997) at p. 1641.
[14]Elliot W. R. and Jones D. L., Encyclopaedia of Australian Plants suitable for cultivation, (Lothian Publishing Company Pty Ltd, 1980) at p. 217.
When interpreting legislation it is proper to avoid consequences which are apparently unjust or irrational[15]. The construction for which the applicant argues would seem likely to produce such results. The point is made by contrasting the position of a seedling with that of a cutting with roots. Applying Dr Drinnan’s definition, it would appear that the seedling would always be properly regarded as a “plant”, whereas the cutting would only fall within that category if it had a viable root system. Further, it would seem inevitable that relevant expert scientific evidence would be required in almost every case of a cutting which had apparently struck root, even if the cutting had died. In the case of any dead cutting with roots, the first question to arise would be as to whether death had occurred because of the non-viable state of the roots. If another cause, such as fire, had resulted in the cutting’s demise, the potential viability of the roots at the time of death would need to be determined. In my view, the legislature should not be taken to have intended that the meaning of the word “plant” would turn upon such a technical distinction and the word should not be given the restricted interpretation for which the applicant contends.
[15]Public Transport Commission of NSW v J. Murray-More (NSW) Pty Ltd (1975) 132 C.L.R. 336 at 350 per Gibbs, J..
The respondent, on the other hand, argues for a wide interpretation of the word. Senior counsel for the respondent submits that the classification of a cutting as a “plant” for the purposes of the Act could depend upon the surrounding circumstances. Citing the example of the characterisation of a knife as an offensive weapon on the basis of its intended use, he submits that, once a cutting was planted in a suitable growth medium, with the expectation that it would develop, it was relevantly a plant. He goes so far as to suggest that even a pruning which had not yet been trimmed and was lying on the ground might have fallen into that category, if it were intended that it be planted.
I am not persuaded by the respondent’s submissions. It strikes me as both irrational and unjust to determine whether a cutting was a plant on the basis of any external factor, subject to variation, such as objectively ascertainable intent or the item’s location.
In my opinion, the meaning of the word “plant” under the relevant provisions of the Act included a cutting which had struck or established roots. It could then be regarded as an entity separate from the plant from which it had been cut and differentiated from a “part” of that plant. The meaning also included a dead “plant”. The judge erred in failing to so direct the jury, with reference to the facts.
Grounds 4 and 9
Grounds 4 and 9, however, challenge the adequacy of the directions relating to the need for proof that the applicant had each of the requisite number of plants in his possession for the purpose of sale. The applicant submits that the trial judge failed to draw the jury’s attention to the evidence bearing on the issue and did not relevantly distinguish between a plant and the foliage which constituted only a part of a plant. The respondent, however, argues that the charge was adequate in this regard, in the context of the issues at trial and in the absence of any relevant exception.
In my view, there is no merit in the applicant’s argument that the judge should have directed the jury that it should be satisfied, in relation to the offence of trafficking, that the applicant intended to sell a whole plant, as opposed to its foliage. Section 71(1) proscribes trafficking in a quantity of cannabis, characterised as “the commercial quantity” by reference either to the weight of the cannabis or to the number of plants by which it is constituted. When the quantity of the drug is determined by weight and the prosecution case is that the cannabis was possessed for sale, the relevant issue is as to the weight of the portion which was possessed for sale[16]. The usable and unusable parts of the cannabis plant are properly characterised as cannabis and no distinction between them is required, except in so far as it bears upon the question as to the purpose for which they are possessed[17]. When, as in this case, the prosecution seeks to establish the existence of the commercial quantity by reference to the number of plants, the issue is as to the number of plants which were possessed for the purpose of sale.
[16]R v Coviello (1995) 81 A. Crim. R. 293.
[17]R v Coviello (1995) 81 A. Crim. R. 293 at 297.
In the charge, the learned judge pointed out that there was an issue as to whether the applicant had trafficked in cannabis: the Crown contending that he had not less than 100 plants in his possession for sale and the defence case being that he had allowed a third party to use his premises to grow the cannabis and that there was no evidence that the applicant intended to sell or otherwise traffick in the drug. Her Honour also referred to the requirement that the prosecution should satisfy the jury beyond reasonable doubt, on the whole of the evidence, that the applicant had at least 100 plants in his possession for sale. She explained the evidentiary effect of s.73(2)[18]. She referred to Mr Azzopardi’s evidence as to the condition of the five Item No. 4 plants.
[18]As was required because there was an issue as to whether the plants were possessed for sale: see: R v Clarke and Johnstone [1986] V.R. 643 at 658-60; R v Tragear [2003] VSCA 222 at [42].
During the charge, in the absence of the jury, counsel for the applicant referred her Honour to the decision of the Court in R v Coviello[19]. He called for a direction to the effect that the jury must be satisfied that the commercial quantity of plants was in the applicant’s possession for sale, as opposed to being simply in his possession. By way of exception, counsel for the applicant also later expressed the concern that the jury might be confused as to the effect of the presumption resulting from the operation of s.73(2) of the Act and might conclude that it absolved the prosecution from the need to prove the element of trafficking. He invited the judge to refer not only to the evidence of trafficking resulting from possession, but also to the evidence as to the early stage of development of the plants and the absence of evidence of any admission of trafficking or of the presence of associated paraphernalia, such as scales.
[19](1995) 81 A. Crim. R. 293 (application for special leave to appeal to High Court refused (5 February 1996) (1996) 187 C.L.R. 704 n.).
Her Honour then relevantly redirected the jury:
“And I just want to say one thing about the charge that I’ve given to you. The evidence of trafficking is that the accused has got 10 plants, … possession of ten plants, but it is also relevant to consider that there is no paraphernalia of trafficking and no evidence of trafficking otherwise and that it is a matter for you to determine whether to convict or acquit on that basis. I remind you that the inferences against the accused man have to be proved beyond reasonable doubt and as to the real issues between the parties, the onus is on the Crown to prove matters beyond reasonable doubt. There is no issue as to possession in this case because the defence has conceded it in this case.”.
(I note that ten plants is the “traffickable quantity” of cannabis specified in Schedule 11 and referred to in s.73(2) of the Act.)
However, the learned trial judge did not specifically relate the evidence as to the condition of any of the plants, including the five Item No. 4 plants, to the question, upon which it bore directly, as to the purpose for which they were possessed.
The evidence relating to the condition of the five Item No. 4 plants only assumes particular significance when my definition of the word “plant” for the purposes of the Act is taken into account. The jury was presented with two other conflicting interpretations of the word. If it had decided that a cutting with or without roots was a plant, then, even on Dr Drinnan’s evidence, there would have been more than the requisite 100, without taking the five Item No. 4 plants into account. However, the jury might have preferred Dr Drinnan’s definition. As Mr Azzopardi had expressed the view that it was impossible to differentiate cuttings on the basis of the viability of their roots, the only evidence as to the number of cuttings with viable roots which might have been possessed for sale came from Dr Drinnan, who counted 84. In those circumstances, the evidence as to the five Item No. 4 plants could not have provided the jury with a basis for concluding that the applicant possessed the commercial quantity, for sale, or at all. In that context, the failure to give a direction relating the evidence concerning the state of the five Item No. 4 plants to the issue as to whether the plants were possessed for sale is understandable. Nevertheless, because the evidence as to the condition of those plants raised that issue (at least in relation to them), it was necessary to give such a direction[20].
[20]See: R v Coviello (1995) 81 A. Crim. R. 293 at 298.
As a result, despite the absence of any request for a further redirection, I have concluded that grounds 4 and 9 are also made out.
Grounds 1 and 10
The verdict is challenged as unsafe and unsatisfactory, on the basis that it could not be supported having regard to the evidence[21]. The applicant argues it was not open to the jury on the evidence before it to conclude beyond reasonable doubt that he was in possession of 100 or more cannabis plants for the purposes of sale.
[21]M v R (1994) 181 C.L.R. 487.
In my view, there was admissible evidence before the jury upon which it could have been satisfied beyond reasonable doubt, both that not less than the commercial quantity of plants (properly so characterised under the Act) was in the applicant’s possession and that those plants were possessed for sale. Although the evidence of the scientists as to the meaning of the word “plant” was inadmissible before the jury, their evidence in relation to their observations as to the material seized by police was not. Mr Azzopardi counted 104 cuttings with vestigial roots as well as the five Item No. 4 plants. The defence witness, Dr Drinnan, stated that he examined 84 cuttings with viable roots, 13 with non-viable root-systems and the five Item No. 4 plants. The applicant also conceded that all the relevant material had previously been in his possession. Accordingly, as a result of the operation of s.73(2) of the Act, there was prima facie evidence before the jury of trafficking in not less than the commercial quantity of cannabis.
I am persuaded that, on the whole of the evidence, it was open to the jury to be persuaded beyond reasonable doubt that the applicant was guilty.[22] Grounds 1 and 10 should fail.
[22]M v R (1994) 181 C.L.R. 487 at 493; Knight v R (1992) 175 C.L.R. 495 at 511.
Section 568 of the Crimes Act 1958
The applicant submits that, if the appeal were successful, the Court should quash his conviction and direct a judgment and verdict of acquittal under s.568(2) of the Crimes Act 1958. I do not consider that an appropriate course.
In light of my conclusion as to the meaning of the word “plant”, I consider that the admissible evidence given at the trial was “sufficiently cogent to justify a conviction”[23] under s.71(1)(a) of the Act in respect of not less than the commercial quantity of cannabis, even if only the evidence of Dr Drinnan were taken into account. A new trial is warranted, there being no argument or material before the Court suggesting that it would otherwise be unjust for the applicant to stand trial again.
[23]Director of Public Prosecutions (Nauru) v Fowler (1984) 154 C.L.R. 627 at 630.
However, I agree with the applicant that the proviso to s.568(1) should not be applied. If the learned trial judge had properly interpreted the word “plant” and directed the jury correctly, the applicant might have been acquitted. The jury might have preferred Dr Drinnan’s evidence as to the number of plants in the applicant’s possession and might have had a reasonable doubt as to the purpose for which he possessed the five Item No. 4 plants, or that number of them required to make up the commercial quantity. It cannot be concluded from the verdict that the jury must have been satisfied that the five Item No. 4 plants were possessed for the purpose of sale. Assuming that the jury had adopted Mr Azzopardi’s interpretation of the meaning of the word “plant’, it might have decided that the offence was made out in relation to all, or a lesser number, of the cuttings counted by him, or of those examined by Dr Drinnan, without being so satisfied in relation to any of the five Item No. 4 plants.
Accordingly, in my opinion, it cannot be said that no substantial miscarriage of justice has occurred in that the applicant has not been deprived by reason of the identified errors of a chance of acquittal fairly open to him.[24]
[24]See: R v Weiss (2004) 8 V.R. 388 at 397-400 per Callaway, J.A.; Festa v The Queen (2001) 208 C.L.R. 593.
Orders
The application for leave to appeal should be granted and the appeal deemed to have been heard instanter. The appeal should be allowed, the conviction quashed and a retrial ordered.
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