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Barry Lane
21 May, 2007  
More "unintelligible conundrums" from VicAppeals

Another variation on the unintelligible conundrum theme: I don’t know nothing, but if I did know something then what I knew wasn’t enough to make it illegal


imageThere’s nothing the law likes better than to sink its teeth into an “unintelligible conundrum”.

I drew your attention to one such event, identified by Justice Tadgell in R v Kear (1997) 2 VR 555.

That “conundrum”, relied on by an accused charged with assault, went like this:

“I did not do it – someone else did – but, if I did do it, I believed that it was necessary to do it in self-defence.”

Now I discover that earlier this month the Court of Appeal (Maxwell P, Eames and Nettle JJA) in Le v DPP [2007] VSCA 72 contemplated a similar refrain from Ms Le, the wife of a commercial cannabis cultivator, who was trying to fend off the asset confiscation authorities who had confiscated the suburban residence where her hubby practised his horticultural skills.

On August 15, 2003, Chinh Quang Do, Le’s husband and joint proprietor of the locus in quo, pleaded guilty to one count of commercial trafficking and one of the usual companion counts of stealing electricity.

The premises were graphically described as follows by the County Court judge who sentenced Do:

“I have viewed a video which was taken by the investigating police at the scene. That discloses what appears to be a sophisticated and professional set-up. Material was used to cover the windows, high intensity movable grow lights were located about the plants. A water irrigation system was installed and holes were cut into the roof to enable the removal of fumes by way of a system of ducting. Carbon filters and exhaust fans were used to remove odours.

The plants were examined by Mr Azzopardi, a forensic officer, and his statement revealed that the plants in one room numbered 21 and were close to maturity. They weighed some 26.2 kilos, excluding roots. The second group of plants, some 22 plants, were immature plants in the other room and weighed 8.55 kilograms. And a further 18 immature plants, which I think were located in the garage, were found which weighed 415-odd grams. The total weight of the plants was approximately 36 kilograms, which is well in excess of the minimum weight required under the Drugs, Poisons and Controlled Substances Act in order to constitute a commercial quantity.”

As articulated by VicAppeal’s Geoffrey “Stinging” Nettle, with whom the other members of the court agreed, Le’s case was:

”(a) that she did not know of and was not wilfully blind to the cultivation of the cannabis; or

(b) that she did not know of and was not wilfully blind as to there being a significant or real chance that the cannabis was a commercial quantity; or

(c) that she did not know of and was not wilfully blind as to there being a significant or real chance that the cannabis was being cultivated for sale.”

Ms Le’s primary contention was that she had no idea at all what her hubby was up to in two bedrooms of the house and a shed they shared. She also had no idea how $20,000 cash found its way into a pot in her cupboard, but that’s another story.

The County Court judge who heard her exclusion application laid out in careful detail Le’s position:

“Under cross examination she maintained that there were doors on the two bedrooms on the day the police came which contradicted the evidence of Senior Detective Tomlinson and the video film itself. She admitted that she could hear the noise of the water pumps when the video recording was being played but claimed that she could not, while living in the house, because of the locked doors. She did not know why her husband put a large light in the hallway cupboard to which she had access but the light was never on. She was never conscious of any heat or warmth coming from either of the children’s bedrooms when she walked down the hallway nor of any odour emanating from the rooms in question. She hardly ever went into the shed added onto the garage because her husband did the gardening and lawn mowing and she was not present when any of the hydroponic equipment was brought to and installed in the house. Her explanation was that this must have occurred when her husband asked [her] and the children to go and do some shopping or when she was at her husband’s sister’s home. If there were chemicals in the bathroom cabinet she would not know what they were and could not read English. She asked her husband what they were and he did not answer. She did the cooking but had no knowledge of the $20,000 which the police found in a pot [which she said was] used only once a year on their Lunar New Year which is normally in February. She was suspicious because the windows in the boys’ bedrooms were blacked out but when she asked, her husband did not say anything and she was afraid that if she kept asking he would hit her.”

Showing great perspicacity, the judge who listened to Le was unpersuaded by her account. He said that he found her “evidence completely lacking in credibility”.

But was that where the matter ended? Not a bit of it. The judge didn’t actually set out the basis on which contentions (b) and (c ) above were rejected along with the rest of La Le’s cock and bull story.

Thankfully the Court of Appeal was satisfied that notwithstanding the judge …

“did not analyse the point in that fashion (because) his Honour appears to have accepted the crown’s submission, which was wrong, that a person may be involved in the offence of trafficking in a commercial quantity of cannabis regardless of the person’s state of knowledge of the quantity of the cannabis. Strictly speaking, therefore, his Honour may be said to have erred. But in this case such an error could not have made any difference to his Honour’s decision. For as I have stated, on the evidence before him, it appears to me that his Honour could not properly have been persuaded that the applicant did not know or believe that there was a significant or real chance that the cannabis was of a commercial quantity.”

That last little “conundrum” seems to mean, as best I can understand it, that notwithstanding that what Le told the judge was arrant nonsense, he was obliged to deal with the other contentions dreamed up by her even though they were equally fanciful.

I say that because it seems to me that if Le had any of the knowledge in contentions (b) or (c ), and that had been established by the DPP, she would have been in the dock with her beloved.

Why the Court of Appeal expended more than a nanosecond on these contentions is beyond me because Le had the burden of proof, not the DPP, and she had to establish that she was not involved in any way in the commission of the offence and did not know that her husband used or intended to use the property in, or in connection with, the commission of the offence – see s.22(b) of the Confiscation Act 1997.

Le’s lawyers seemed to argue that before the asset confiscation people could permanently expropriate her property, the DPP had to prove that she knew, or ought to have known, not only that there was a “veritable indoor forest of cannabis” in the house but also that it was a commercial quantity as defined and that it was being cultivated for sale.

As I’ve said, if the DPP was in a position to prove that Le had that knowledge she would have been co-habiting with her hubby in the slammer rather than simply trying to get half her house back.

In summary, the “conundrum” in Le’s case was that on her evidence she didn’t know her husband was cultivating a “forest of cannabis” in their suburban bungalow at 11 Dalpura Drive, West Sunshine, but if she did know she was not caught by the relevant provisions of the Confiscation Act 1997 because she didn’t know that the crop was commercial in size or that it was being cultivated for sale.

Until appeal courts roundly reject the raising of such sophist “conundrums”, briefs will continue to employ these insults to commonsense and taxpayers will have to fund them.