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District Court of Western Australia |
Last Updated: 26 March 2014
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION : PERTH
CITATION : DIRECTOR OF PUBLIC PROSECUTIONS (WA) & THE ATTORNEY GENERAL FOR WESTERN AUSTRALIA (INTERVENING) -v- TRAJKOSKI [No 3] [2014] WADC 32
CORAM : WAGER DCJ
HEARD : 28-29 NOVEMBER & 2 DECEMBER 2013
DELIVERED : 19 MARCH 2014
FILE NO/S : CIVO 94 of 2012
BETWEEN : DIRECTOR OF PUBLIC PROSECUTIONS (WA) & THE ATTORNEY GENERAL FOR WESTERN AUSTRALIA (INTERVENING)
AND
SOTIR TRAJKOSKI
Catchwords:
Application for drug trafficker declaration - Whether
court hearing criminal indictment is functus officio - Whether s 32A Misuse
of Drugs Act is invalid - Exercise of prosecutorial discretion - Ch III
Constitution - Substantive hearing turns on its own facts
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal
Procedural Act 2004 (WA)
Criminal Property Confiscation Act 2000
(WA)
Criminal Property Forfeiture Act 2002 (NT)
District
Court of Western Australia Act 1969 (WA)
Evidence Act 1906
(WA)
Misuse of Drugs Act 1981 (WA)
Misuse of Drugs Act 1990
(NT)
Sentencing Act 1995 (WA)
Rules of the Supreme Court
1971
Commonwealth of Australia Constitution Act
Result:
Sotir Trajkoski declared a drug trafficker pursuant to s
32A(1)(b)(ii) Misuse of Drugs Act 1981
Representation:
Counsel:
Applicant : Mr R M Mitchell SC
Respondent : Mr A J Papamatheos
Solicitors:
Applicant : State Director of Public Prosecutions
Respondent : Mr S S Sandhu
Case(s) referred to in judgment(s):
Attorney-General (NT) v Emmerson [2013] HCATrans 244
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559
Birks v State of Western Australia [2007] WASCA 29
Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133
Director of Public Prosecutions v Trajkoski (No 2) [2012] WADC 81
Director of Public Prosecutions v Trajkoski [2012] WADC 35
Donohoe v Director of Public Prosecutions (WA) [2011] WASCA 239
Emmerson v Director of Public Prosecutions [2013] NTCA 4; [2013] 33 NTLR 1
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Forge v Australian Securities Investments Commission [2006] HCA 44; (2006) 228 CLR 45
Hinch v Hogan [2011] HCA 4; (2011) 243 CLR 506
International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319
Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51
Lipohar v The Queen (1999) 200 CLR 485
Magaming v The Queen [2013] HCA 40; (2013) 87 ALJR 1060
Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; (2004) 219 CLR 365
Neilan v The Queen [1992] VicRp 5; [1992] 1 VR 57
Palling v Corfield [1970] HCA 53; (1970) 123 CLR 52
Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412
Rowe v Stoltze [2013] WASCA 92
Sandwell v The State of Western Australia [2012] WASCA 15
State of South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1
Trajkoski v Director of Public Prosecutions (WA) 
[2010] WASCA 119 
Trajkoski v Director of Public Prosecutions (WA) [2013] WASCA 222
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107
Wainohu v State of New South Wales (2011) 243 CLR 181
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
1 WAGER DCJ: Following Mr Trajkoski's conviction on 3 August 2007 of an offence that between 1 July 2002 and 27 December 2002 at Mimegarra (near Lancelin) he cultivated a prohibited plant, namely cannabis with intent to sell or supply it to another contrary to s 7(1)(a) Misuse of Drugs Act 1981 (WA) (MD Act), counsel representing the State advised the court of the Director of Public Prosecutions' (DPP) intention to make an application pursuant to s 32A MD Act that Mr Trajkoski be declared a drug trafficker.
2 The DPP proceeded with the application on Mr Trajkoski's sentencing date and an order was made on 29 August 2007 declaring Mr Trajkoski to be a drug trafficker pursuant to s 32A MD Act. The declaration was made because the State led evidence at trial that Mr Trajkoski had cultivated 254 plants and the quantity relevant to the determination of a declaration pursuant to sch VIII was not less than 250 plants. However, Mr Trajkoski disputed the number of plants and evidence was not called nor was the issue determined prior to the s 32A MD Act declaration being made.
3 The making of the declaration was the subject of appeal: Trajkoski v Director of Public Prosecutions (WA) [2013] WASCA 222. The merits of the appeal required that the appeal be allowed. The application under s 32A MD Act that Mr Trajkoski be declared a drug trafficker was remitted to the trial judge for determination according to law.
History since application remitted
4 The matter proceeded in a protracted manner following its relisting on 25 November 2011. Mr Trajkoski was, at that time, represented by Bennett & Co solicitors who submitted that s 32A MD Act proceedings were civil proceedings (ts 1 – 12). Orders were made in respect of how the evidence would be received and how the matter would proceed. The matter was adjourned until 16 February 2012.
5 On 16 February 2012 counsel for Mr Trajkoski made an oral application for my recusal. The application was listed for hearing on 27 February 2012.
6 On 27 February 2012 the application for recusal was heard. The application was dismissed on 7 March 2012: Director of Public Prosecutions v Trajkoski [2012] WADC 35.
7 The matter was next listed before Martino CJDC on 15 March 2012 when a substantive hearing date for the s 32A MD Act application of 18 May 2012 was confirmed and programming orders were made.
8 However, on 10 April 2012 counsel for Mr Trajkoski applied for a permanent stay of the proceedings, primarily because original exhibits had been destroyed following the trial in 2007. The substantive hearing date was vacated and Mr Trajkoski's application to permanently stay the hearing was dealt with on that date. A permanent stay was not granted: Director of Public Prosecutions v Trajkoski (No 2) [2012] WADC 81, Trajkoski v Director of Public Prosecutions (WA) [2013] WASCA 222 delivered 14 March 2013.
9 Programming orders were made on 27 March 2013. The substantive hearing was listed to commence on 25 July 2013.
10 On 10 July 2013 the matter was listed on the court's motion because Mr Trajkoski's solicitors had ceased to act. An order was made in Mr Trajkoski's absence that the court attempt to effect service on him to ensure his appearance on 25 July 2013.
11 On 25 July 2013 Mr Trajkoski appeared and was self-represented. He opposed the substantive hearing proceeding on that date because he wanted to be legally represented. Given the potential for prejudice to Mr Trajkoski, the substantive hearing was vacated and relisted for 28 and 29 November 2013. A directions hearing was listed on 28 October 2013 so that the court could satisfy itself that Mr Trajkoski was prepared for the proceedings.
12 On 28 October 2013 without filing a notice of solicitor acting in either the criminal or civil jurisdiction Mr Papamatheos appeared as counsel on Mr Trajkoski's behalf instructed by Mr Sandhu, barrister and solicitor. Mr Papamatheos submitted on that date that he intended to make two applications on Mr Trajkoski's behalf that the application should not proceed being firstly, that the court had completed its statutory function and was functus officio in respect of the application, and secondly, that the application could not be dealt with because s 32A MD Act is unconstitutional.
13 The matter was listed for a further directions hearing on 21 November 2013. It proceeded to substantive hearing on 28 November 2013. The solicitor for Mr Trajkoski was not formally on the record in respect of civil or criminal proceedings until after the hearing commenced.
14 Written submissions in respect of the substantive hearing were filed on Mr Trajkoski's behalf on 21 January 2014. The State advised it did not wish to file further submissions in reply on 31 January 2014.
Section 32A MD Act Hearing
15 It is argued on Mr Trajkoski's behalf that:
16 The State argues on behalf of the DPP that the court has the power to make a declaration pursuant to s 32A MD Act. The institutional integrity of the court is not impaired. The State submits that on hearing and on determining the evidence the court should be satisfied on the balance of probabilities that Mr Trajkoski was convicted of a serious drug offence and that the offence related to not less than 250 plants. Once the requirements of s 32 MD Act are satisfied a declaration pursuant to s 32A MD Act should be made.
Is the court functus officio?
17 Section 32A MD Act provides:
(a) a serious drug offence and has, during the period of 10 years ending on the day, or the first of the days, as the case requires, on which the serious drug offence was committed, been convicted of 2 or more —
(i) serious drug offences; or
(ii) external serious drug offences; or
(iii) offences, one or more of which are serious drug offences and one or more of which are external serious drug offences;
or
(b) a serious drug offence in respect of —
(i) a prohibited drug in a quantity which is not less than the quantity specified in Schedule VII in relation to the prohibited drug; or
(ii) prohibited plants in a number which is not less than the number specified in Schedule VIII in relation to the particular species or genus to which those prohibited plants belong;
or
(c) a relevant drug offence and, at the time of the commission of the offence, was a member of a declared criminal organisation,
the court convicting the person of the serious drug offence first referred to in paragraph (a), or the serious drug offence referred to in paragraph (b), or the relevant drug offence referred to in paragraph (c), as the case requires, shall on the application of the Director of Public Prosecutions or a police prosecutor declare the person to be a drug trafficker.
18 By s 32A(2) MD Act an application for a declaration under s 32A(1) MD Act may be made at the time of the conviction giving rise to that application or at any time within six months from the day of that conviction, and more than one such application may be made in respect of that conviction. The offence of cultivation of cannabis with intent to sell or supply it to another is a 'serious drug offence', being a crime under s 7(1)(a) MD Act. The number of plants relevant to sch VIII referred to in s 32A(1)(b)(ii) MD Act was, at the relevant time, not less than 250.
19 The history of s 32 MD Act and its interaction with the
Criminal Property Confiscation Act 2000 (WA) (CPC Act) is set
out by Buss JA in Trajkoski v Director of Public Prosecutions
(WA) [2010] WASCA 119 [35] – [36]:
Although s 32A of the MD Act provides for an application for, and the making of, a drug trafficker declaration, the MD Act does not specify any consequences for the offender arising from the making of the declaration. Those consequences are to be found in the CPC Act. The confiscation of a drug trafficker's property occurs automatically under s 8(1) of the CPC Act when he or she is declared to be a drug trafficker under s 32A(1) of the MD Act.
The court does not have a discretion in relation to the making of a drug trafficker declaration under s 32A of the MD Act. If the conditions specified in the provision are satisfied then the court must make the declaration.
20 In Trajkoski v Director of Public Prosecutions (WA) [2010] Buss JA concluded that a drug trafficker declaration made under s 32A of the MD Act is not part of 'the sentence imposed on the offender' or an 'order made as a result of the conviction' of the offender within s 23(1) of the Criminal Appeals Act 2004 (WA) (CA Act).
21 Buss JA reached this conclusion because [57] – [63]:
First, the sentencing options for an offender who is a natural person, as set out in s 39 of the Sentencing Act, do not include the making of a drug trafficker declaration.
Secondly, the Sentencing Act does not refer to a drug trafficker declaration as an order that may be made as a result of the conviction of an offender. Indeed, the Sentencing Act does not make any mention of s 32A or any other provision of the MD Act.
Thirdly, s 121 of the Criminal Procedure Act, read with s 29 of the Criminal Appeals Act, sets out the orders made as a result of the conviction of an offender in respect of which a stay order may be made pending an appeal to this court. The orders specified in s 121, read with s 29, do not include a drug trafficker declaration.
Fourthly, the provisions of s 32A of the MD Act are not linked to the sentencing process in relation to an offender. An application under s 32A must be made by the DPP or a police prosecutor. The court may not make a drug trafficker declaration of its own motion. An application by the DPP or a police prosecutor under s 32A may be made 'at the time of the conviction giving rise to that application or at any time within 6 months from the day of that conviction, and more than one such application may be made in respect of that conviction': s 32A(2). It follows that the DPP or a police prosecutor may make an application before or after the sentencing hearing, provided the application is made within the six-month period. There is no substantive or mandated temporal connection between an application for and the making of a drug trafficker declaration on the one hand and the sentencing process on the other.
Fifthly, any proceedings which culminate in the conviction and sentencing of an offender are between the offender and the State. By contrast, any proceedings under s 32A of the MD Act are between the DPP or a police prosecutor as applicant and the offender.
Sixthly, s 24 and some other provisions of the Criminal Appeals Act confer rights of appeal on the 'prosecutor'. The term 'prosecutor' is defined in s 3(1) of the Criminal Procedure Act. The definition of 'prosecutor', read with the definition of 'prosecution' in s 3(1) of the Criminal Procedure Act, does not include the DPP or a police prosecutor in his or her capacity as an applicant under s 32A of the MD Act.
Seventhly, the 'order' made as a result of the conviction, referred to in s 32(1) of the Criminal Appeals Act, must itself be an order provided for or referred to in the Sentencing Act or, alternatively, be an order which is ancillary or incidental to the sentence imposed on the offender. This is apparent from ss 31(4), 31(5) and 41 of the Criminal Appeals Act. By s 31(4)(a), this court may allow an appeal, in the case of an appeal by an offender under s 23 against the sentence imposed or any order made as a result of the conviction, if 'a different sentence should have been imposed'. No reference is made in s 31(4) to any order made as a result of the conviction. By s 31(5), if this court allows an appeal by an offender under s 23 against the sentence imposed or any order made as a result of the conviction, it must 'set aside the sentence' and may instead impose 'a new sentence that is either more or less severe'. Section 31(5) does not refer to any order made as a result of the conviction. Section 41 is concerned with sentencing or re-sentencing on appeal. It refers, relevantly, to imposing a sentence, varying or setting aside a sentence, and imposing a different sentence. Section 41 does not refer to this court (or any other appeal court) making any order that may be made as a result of the conviction.
22 His Honour further noted that by s 102(1) CPC Act proceedings on an application under the CPC Act are taken to be civil proceedings for all purposes. Section 102(2)(a) provides that, except in relation to an offence against the CPC Act, a rule of construction that is applicable only in relation to the criminal law does not apply in the interpretation of the CPC Act [34].
23 Accordingly, Buss JA held the Court of Appeal's jurisdiction to hear the appeal lay under s 79 District Court of Western Australia Act 1969 (WA) (DC Act).
24 Jenkins J also concluded that the appeal in Trajkoski v Director of Public Prosecutions (WA) [2010] lay under s 79 DC Act. Her Honour considered it was strictly unnecessary to make a determination as to the precise nature of the s 32A MD Act proceedings in the District Court, but Her Honour expressed the view that, in light of s 31(1) Criminal Appeals Act, a drug trafficker declaration is not an order made as a result of the conviction for the purposes of s 23(1) Criminal Appeals Act. Section 23(1) relevantly states:
Rights of appeal of offender
(1) An offender convicted of an offence on indictment may appeal to the Court of Appeal against any or all of the following decisions –
...
(b) the sentence imposed on the offender or any order made as a result of the conviction ...
25 Her Honour noted however that s 31(1) Criminal Appeals Act states amongst other things, that s 31 applies to an appeal against any order made as a result of a conviction on indictment [126]. Her Honour said [127] – [128]:
It is immediately apparent that s 31 does not say that an appeal may be allowed if the court is of the opinion that a different order should have been imposed or if no order should have been made. This is despite the fact that in respect of an appeal against a refusal to make an order that might be as a result of the conviction, s 31(4) provides that the court may allow the appeal if it is of the opinion that an order should have been made.
These provisions lend support to the view that the term 'any other order ...' in s 23(1)(b) is simply another reference to an order which forms part of a sentence and, therefore, does not include a drug trafficker declaration.
26 In a decision delivered in respect of s 32A MD Act, subsequent to Trajkoski v Director of Public Prosecutions (WA) [2010] the Court of Appeal held that when an application is made under s 32A MD Act the proceedings are civil 'at least for the purposes of s 79 of the Evidence Act 1906 [89], [14] (Buss JA, Murphy JA and Hall J agreeing): Donohoe v Director of Public Prosecutions (WA) [2011] WASCA 239.
27 Counsel for Mr Trajkoski submits that because the District Court does not have inherent jurisdiction (Rowe v Stoltze [2013] WASCA 92 [28]) and the District Court's jurisdiction is established by a statute with a separate criminal and civil jurisdiction (DC Act s 8(1)(c), s 42 and s 50), a s 32A MD Act application cannot be considered as both a criminal application and a civil application. The criminal jurisdiction is exercised subject to the Criminal Code and the Criminal Procedure Act 2004 (WA):(DC Act s 43), whereas the practice and procedure for civil matters in the District Court is the same as in the Supreme Court but subject to rules made by the majority of District Court judges governing its practice and procedure: (DC Act s 44 subject to s 42 and s 43, s 52, s 87 – s 88). A judge of the District Court in the civil jurisdiction has all the powers and authority of a judge of the Supreme Court in respect of matters within the jurisdiction of the court: (DC Act s 53(1)). The Rules of the Supreme Court are not intended to apply to any criminal proceedings before the District Court: (O 1 r 3(3)(a)).
28 Further, unlike s 16 of the Supreme Court Act that refers to mixed civil and criminal matters, the DC Act does not provide for a mixed jurisdiction. It is submitted for these reason the District Court cannot legislatively operate a mixed jurisdiction.
29 Counsel for Mr Trajkoski contends the Criminal Procedure Act by its long title is 'an Act to provide procedures for dealing with alleged offenders and related matters' with respect to the District Court. Part 4 deals with prosecutions in superior courts. Part 5 deals with provisions applicable to any prosecution. Section 148 CP Act is in pt 5. Section 148 provides:
Conviction, consequences of
If a court convicts an accused of an offence, then, subject to The Criminal Code section 5, the Sentencing Act 1995 and the Young Offenders Act 1994, the court must sentence the accused for the offence and may make other orders in respect of the accused under those Acts or any other relevant written law, as the case requires.
30 Although s 148 CP Act does not specifically state that it applies only to orders made as a result of conviction, counsel argues that because it is in pt 5 of the Act the section is restricted by pt 5. This means s 148 CP Act applies exclusively to procedures and orders arising from criminal offences and related matters. Counsel contends that the orders referred to in s 148 CP Act do not extend to orders in respect of civil matters.
31 Counsel for Mr Trajkoski also submits that the criminal jurisdiction of the court is spent once the indictable charge has been dealt with. Thereafter there can be no valid civil application before the court because the civil jurisdiction of the court has not been properly invoked.
32 However the State submits the term 'jurisdiction' may be used in a variety of senses: Lipohar v The Queen (1999) 200 CLR 485 [79] referred to in Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; (2004) 219 CLR 365 [68].
33 Ordinarily the word 'jurisdiction' is used in the sense of the court's authority to determine a matter: Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 [2] – [17] but the word 'jurisdiction' may also be used in the sense of the power to make particular orders and the exercise of that jurisdiction. The two are not discrete concepts.
34 The jurisdiction of the court in this case is derived from s 39(2) Judiciary Act 1903 (Cth) in the sense that s 32A MD Act is a matter arising under the Commonwealth of Australia Constitution Act (the Constitution) on which jurisdiction can be conferred on the High Court under s 76(i) of the Constitution and s 32A MD Act.
35 The State argues s 32A MD Act confers both a jurisdiction on the court convicting a person of the relevant serious drug offence to decide whether a declaration should be made and the power to make the declaration. It is immaterial whether s 32A MD Act is classified as civil, criminal or mixed because s 32A MD Act is clear in its terms and language. The court has jurisdiction.
36 The State submits s 32A(2) MD Act sets out that the application may be made at the time of the conviction giving rise to the application. This timing is consistent with the application being made immediately or soon after the conviction in criminal proceedings. The application may also be made at any time within six months from the date of that conviction. This period is consistent with the period within which sentencing shall occur pursuant to s 16(2) Sentencing Act 1995.
37 Further, the application shall be made by the DPP or a police prosecutor as the case requires. The relevant criminal prosecution would have been conducted by either a police prosecutor or counsel appearing on behalf of the State briefed by the DPP depending on the jurisdiction. The party making the application is therefore consistent with the party who would have the conduct of the criminal proceedings.
38 The State submits that given the application (or applications) may be made immediately following conviction or within a six-month period the application is aligned with the sentencing process. Section 148 CP Act applies.
39 The State argues that although pt 5 of the CP Act deals with prosecutions, the wording of s 148 CP Act differs from s 23 Criminal Appeals Act. Section 23(1)(b) CA Act refers to 'any order made as a result of a conviction'. The order envisaged in s 148 CP Act is not an order to be made as a result of a conviction. It is an order in respect of the accused. The relevant written law is not confined to criminal matters and the ability to make the application is clear from the words of s 32 MD Act itself.
40 The State says that although the DC Act does not legislate for a mixed jurisdiction there is no reason why a civil matter could not be commenced by oral application following conviction on a criminal matter. Consistent with the views expressed by Jenkins J in Trajkoski v Director of Public Prosecutions (WA) [2010] [142], a 'matter' is defined to mean a proceeding in the District Court which is commenced otherwise than by writ. Order 4 r 1 RSC states:
4.1 Commencement of civil proceedings
Subject to the provisions of any Act and of these Rules –
(a) every action in the Court must be commenced by writ;
(b) civil proceedings between parties to be heard in Chambers must be commenced by originating summons;
(c) all other civil proceedings must be commenced by originating motion.
41 I find the application is a matter. I do not accept the application is an action that must be commenced by writ because, consistent with O 4 r 1 SCR, it should not be commenced by writ and must be commenced by originating motion.
42 Although s 148 CP Act deals with criminal prosecutions, there is no requirement that the orders sought under s 148 CP Act must be part of or related to the sentencing or conviction process. Given that s 32A MD Act refers to the application being made by the DPP at a time and place consistent with the sentencing process, there is no reason why the order could not be made after sentencing consistent with s 148 CP Act.
43 In the present case, the statement of material facts sets out the DPP's intention to make a s 32A MD Act application on conviction. The court's jurisdiction under s 32A was engaged by oral application of the prosecutor on 3 August 2007 and the application was substantively dealt with on the day of sentencing. The prosecutor was authorised to act as agent of the DPP for the purpose of the exercise of the Director's functions pursuant to s 11 Director of Public Prosecutions Act 1991 to conduct the associated function of making the application under s 32A MD Act. There is no requirement that a particular form of application be made and there is no reason why orders cannot be made following a fair hearing and consistent with case flow management principles.
44 There is no reason why the court cannot proceed to deal with the oral application as being an originating motion made on behalf of the DPP in respect of a s 32A(1)(b)(ii) MD Act matter.
What if the action must be commenced by writ?
45 If I am wrong about the form of the application and the application is required to be commenced by writ, then the application could still be validated pursuant to O 2 r 1 RSC and r 6(1) DCR.
46 Rule 6(1) RSC provides that where in beginning or purporting to begin any proceedings, there has, by reason of anything done or left undone in the proceedings, been a failure to comply with the SCR, the failure shall be treated as an irregularity and shall not nullify the proceedings.
47 Consistent with r 6(2) DCR the court may, on the ground that there has been such a failure ... make such order (if any) dealing with the proceedings generally as seems fit.
48 Accordingly, even if the action must be commenced by writ, the application is not necessarily a nullity. However a decision to validate the legislation is discretionary. Discretion must be exercised taking into account the reason for delay, fairness and any prejudice likely to be suffered by the parties.
49 Counsel for Mr Trajkoski submits that by not commencing the matter by writ the court processes have been compromised and Mr Trajkoski has been robbed of the right to a fair civil hearing that would have occurred had the rules of civil practice been applied to the application. I do not accept that Mr Trajkoski is prejudiced because the rules and procedures of civil practice have not been fully complied with because:
50 Counsel for Mr Trajkoski further submits that Mr Trajkoski has been prejudiced because of the destruction of original exhibits and the destruction of the cannabis plants themselves prior to the determination of the application and submits the prejudice this causes should impact on the court's discretion not to validate the proceedings.
51 It is regrettable that the material was destroyed, however, the destruction was not due to any inappropriate conduct by the prosecuting authorities. The material was destroyed on the expiration of the appeal period and police were not notified of the likelihood of an appeal prior to its expiration. For the reasons outlined in respect of the substantive hearing, I find the exhibits tendered during the course of the s 32 MD Act hearing were identical to the exhibits tendered at the 2007 trial. The destruction of the cannabis plants may have been prejudicial, however there is no evidence that after 11 years in storage the cannabis plants would have been of forensic value. There is also no evidence to indicate that the plants would have been of any forensic value in 2007 after five years of storage following seizure.
52 I note that the delays in having the application dealt with after the matter was remitted to this court have been as a result of applications made by Mr Trajkoski or because of the potential prejudice to Mr Trajkoski on an occasion when he was not represented by counsel.
53 Counsel for Mr Trajkoski further submits that Mr Trajkoski and his family have suffered hardship as a result of the proceedings being brought in a form other than by way of writ. I have considered the affidavit of Ms Natasha Trajkoski made 12 November 2013. I accept that a successful declaration pursuant to s 32A MD Act would enable a forfeiture order to be made pursuant to the CPC Act and that this would be likely to lead to a degree of hardship not only to the person the subject of the declaration but also to members of his family because the family home is likely to be forfeited. However, I do not consider any hardship suffered by Mr Trajkoski or his family in respect of housing is due to the delay in having this application for a declaration heard. The family has remained in the home for a period of six years after the date on which the s 32A MD Act application was made. Ms Trajkoski has not been prejudiced by the delay.
54 Mr Trajkoski further submits that he has been prejudiced because when the application was listed in the District Court, the listing was displayed on a criminal court list in the public area of the District Court and he has therefore been re-victimised by the stigma of having his name associated with criminal matters. Given the presumption of innocence that applies to those whose names appear on a criminal list Mr Trajkoski has not been prejudiced by the listing of this matter on a criminal listings board.
55 Counsel for Mr Trajkoski has also raised that Mr Trajkoski was required to attend court in respect of this application and that the requirement to attend was prejudicial to Mr Trajkoski. The requirement to attend court occurred on one occasion only being when Mr Trajkoski ceased having legal representation. A two-day substantive hearing had been set 11 years after his initial arrest. It was not unreasonable for the court to enquire as to Mr Trajkoski's position as a self-represented litigant prior to the hearing. In the circumstances the court allowed Mr Trajkoski's application for an adjournment because of the potential prejudice in being self-represented at the substantive hearing. The adjournment application was heard and determined on the day Mr Trajkoski was required by the court to attend.
56 Counsel for Mr Trajkoski further submits that the seriousness of any irregularity in listing the matter is such that validating the process would mean that the court's processes have not been protected. It is recognised and accepted that court processes need to be protected. I accept an assessment of irregularity is required.
57 However almost all s 32A MD Act applications are not opposed. It would be a waste of the court's resources and contrary to case flow management principles to slavishly require every possible procedural rule to be followed in circumstances where the s 32A MD Act criteria for declaration are admitted by the offender.
58 In this case the DPP has been open and accountable in following its disclosure obligations and providing transcripts, affidavits, documents and copy documents. The institution of the court has not been compromised: Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412.
59 Accordingly, even if I am wrong in determining that the application was properly made following conviction by oral motion, there is no reason why orders pursuant to O 2 r 1 SCR and r 6(1) DCR should not be made enabling the application to proceed. There are no grounds on which the application should be set aside.
Is s 32A MD Act invalid?
60 Counsel for Mr Trajkoski submits the application for a declaration pursuant to s 32A(1)(b)(ii) is unconstitutional because the legislation impairs the institutional integrity of the court by making it a tool of legislative policy and executive decision-making.
61 The law recognises that the State legislature cannot confer upon a State court a function which substantially impairs its institutional integrity and which is therefore incompatible with its role under Ch III of the Constitution as a repository of Federal jurisdiction.
62 The plurality in Forge v Australian Securities Investments Commission [2006] HCA 44; (2006) 228 CLR 45 noted [63]:
Because Ch III requires that there be a body fitting the description 'the Supreme Court of a State', it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description. ... the relevant principle is one which hinges upon maintenance of the defining characteristics of a 'court', or in cases concerning a Supreme Court, the defining characteristics of a State Supreme Court. It is to those characteristics that the reference to 'institutional integrity' alludes. That is, if the institutional integrity of a court is distorted, it is because the body no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision-making bodies.
63 The parties do not dispute that a court must be, and must appear to be, an independent and impartial tribunal. Consistent with submissions filed by the State, the parties also agree that further defining features of a court of a State as identified by the High Court are:
64 Counsel for Mr Trajkoski argues that, consistent with the decision in Emmerson v Director of Public Prosecutions [2013] NTCA 4; [2013] 33 NTLR 1, s 32A MD Act is invalid because it does not enable the defining features of a court to operate.
Does Emmerson v Director of Public Prosecutions apply?
65 In Emmerson v Director of Public Prosecutions the legislative scheme constituted by s 36A Misuse of Drugs Act 1990 (NT) (MD Act (NT)) and s 94 Criminal Property Forfeiture Act 2002 (NT) were held to be invalid. Counsel for Mr Trajkoski argues s 32A MD Act is also invalid because it is in similar terms to s 36A MD Act (NT).
66 Counsel for Mr Trajkoski contends this court should apply the majority decision of Emmerson v Director of Public Prosecutions because it is a relevant decision of another Australian intermediate appellate court. However the State says that Emmerson does not bind this court. It is the decision of an intermediate appellate court but it is not dealing with uniform national legislation: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 [135].
67 In Emmerson v Director of Public Prosecutions a judge at first instance declared Mr Emmerson a drug trafficker on the application of the DPP (NT) under s 36A MD Act (NT).
68 Prior to making the order a restraining order had been made over Mr Emmerson's property under s 44(1) of the Criminal Property Forfeiture Act 2002 (NT) (CPF Act (NT)). The relevant criminal charges had been finally determined and, by virtue of s 94 CPF Act (NT), Mr Emmerson's property was automatically liable to be forfeited, whether or not it was used or acquired from the commission of the crime or was unexplained wealth because, pursuant to the MD Act (NT) forfeiture occurred automatically following the making of a declaration.
69 On appeal the majority of the Court of Appeal held that s 36A MD Act (NT) alone and in combination with s 94 CPF Act (NT) was unconstitutional in that it offended against the Kable (Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51) principle by undermining the institutional integrity of the Supreme Court in depriving it of a defining characteristic of a court and of the reality and appearance of independence and impartiality. Further, the majority held the court at first instance had been forced to declare facts which may not be true and to impose double punishment on offenders selected by the executive, being those offenders against whom the DPP chose to make an application for declaration.
70 Special leave to appeal to the High Court was granted in respect of the matter on 11 October 2013: Attorney-General (NT) v Emmerson [2013] HCATrans 244 (11 October 2013). The matter was argued on 4 and 5 February 2014. The decision is reserved.
71 Counsel for Mr Trajkoski submits the similarities between s 36A MD Act (NT) and s 32A MD Act are such that the majority decision in Emmerson v Director of Public Prosecutions applies to s 32A MD Act making the section unconstitutional because:
72 The State submits the statutory jurisdiction conferred by s32A MD Act differs from s36A MD Act (NT) because s32A MD Act involves the exercise of judicial power. It requires the court to satisfy itself as to the number of plants cultivated consistent with sch VIII before making the order. The DPP is not required to exercise a judicial function.
73 I make the following comments in respect of each of the arguments:
1. Absence of discretion as to the extent of the freezing order
74 The ability to make a freezing order is set out in the CPC Act. The CPC Act legislates for objection to a freezing order to be made. Any person with an interest in the property the subject of a freezing order is entitled to object to the making of the order: Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133.
75 At the relevant time in the context of this case, s 32A(1)(b)(ii) MD Act required the exercise of judicial power to determine firstly, that the person had been convicted by the court of a serious drug offence and secondly, consistent with sch VIII, the person had cultivated 250 or more cannabis plants with intent to sell or supply the prohibited drug cultivated to another. In the present case the reason why the matter was remitted to this court for rehearing was because this court had not exercised its judicial function in respect of the determination of the number of plants. I find s32A MD Act requires the exercise of judicial discretion.
2 & 3. The exercise of discretion by the DPP
76 The court is only required to make a declaration on the application of the DPP.
77 In Magaming v The Queen [2013] HCA 40; (2013) 87 ALJR 1060 the discretion of the Commonwealth DPP to prosecute as it saw fit was considered. In that case the appellant crew member of a boat carrying passengers with no lawful right to come to Australia was convicted of an offence under s 233C(1) Migration Act that had a prescribed minimum sentence of five years imprisonment with a minimum non-parole period of three years. The elements of that offence were identical to the elements of an offence under s 233A(1) Migration Act save for the requirement in 233C(1) that the additional element needed to be proven that a minimum number of non-citizens had recklessly been brought into Australia. Unlike s 233C(1) a mandatory term of imprisonment did not apply to s 233A(1). The appellant argued that the sections were co-extensive and that by giving the prosecution discretion to choose which section it proceeded under judicial power was conferred on the prosecuting authority to determine punishment.
78 The plurality in that case said [20]:
It is desirable to say something about the decision to lay a charge where prosecuting authorities reasonably consider that the facts which it is expected will be proved at trial would establish the commission of more than one offence [19] ... It is well established that it is for the prosecuting authority, not the courts, to decide who is to be prosecuted and for what offences.
79 The plurality then referred to Palling v Corfield [1970] HCA 53; (1970) 123 CLR 52 and said [38]:
It is to be noted that Fraser Henleins was later considered and applied by this Court in Palling v Corfield and that no doubt was then cast upon what was said in the earlier decision. Nothing said or decided in Palling, or in subsequent cases, cast doubt upon the general proposition that it is for the prosecuting authorities (not the courts) to decide who will be prosecuted and for what offences. The decisions which a prosecutor makes about what offences to charge may well affect what punishment will be imposed if the accused is convicted. But that observation does not entail, as the appellant's argument necessarily assumed, that the prosecutor exercises judicial power in choosing to charge an aggravated form of offence rather than the simple form of that offence.
80 The DPP (WA) has discretion to make an application and to determine whether and in what form a prosecution should proceed. Relevant to this case it is for the DPP to determine whether to make an application under CPC Act. It is also for the DPP to exercise discretion and to determine whether a charge proceeds against an accused and the form of the indictment and to determine whether to make an application for a declaration pursuant to s 32A MD Act. This does not mean that judicial power is conferred on the prosecuting authorities because applying for a declaration is not a judicial function.
81 The court is required to exercise a judicial function in determining whether the DPP has proven on the balance of probabilities whether a declaration should be made in respect of any application the DPP makes.
4 & 5 Is the court bound to make an order contrary to the facts
82 Significantly the MD Act (NT) does not contain any provision equivalent to s 32A(1)(b)(ii) MD Act. Section 32A(1)(b)(ii) MD Act is confined to offences that have an intention to sell or supply the prohibited drug to another as an element of the offence whereas s 36A MD Act (NT) applies to offences relating to a quantity of prohibited drug without a requirement of an intention to sell or supply and also applies to offences of importation and exportation where intention to sell or supply is not an element: s 36A (6), s 307 Criminal Code (Cth).
83 In the context of s 36A MD Act (NT) Kelly J noted in Emmerson v Director of Public Prosecutions that an application may be made in circumstances in which the making of a declaration that a person is a drug trafficker could only be regarded as capricious [94] and Barr J observed in that case that the declaration could obscure or conceal the true facts so that a person who is subject to a declaration may be stigmatised inappropriately [104].
84 This concern cannot be raised in respect of an application under s 32A MD Act because s32A(1)(b)(ii) MD Act (at the relevant time) only applied when the offender had either:
(a) sold or supplied, or offered to sell or supply, 250 or more cannabis plants to another;
(b) possessed or cultivated 250 or more cannabis plants with intent to sell or supply the plants, or a prohibited drug obtained therefrom, to another;
(c) attempted or conspired to commit such an offence.
85 Although a conviction for any of the three categories of offences could result in circumstances where the offender has an intention to supply only part of the prohibited drug to another or others, the act of supply required to be proven involves the dissemination of prohibited drugs to others. Supply of even part of a quantity of a prohibited drug, including cannabis, is recognised legislatively as being a serious matter because the maximum penalty set by Parliament for an offence contrary to s 7(1)(a) MD Act is a fine not exceeding $20,000 or imprisonment for a term not exceeding 10 years or both: s 34(2)(a)(ii) MD Act.
86 The courts in this State have recognised that the quantity of a drug, or in the case of cultivation of cannabis, the number of plants cultivated, is directly related to the extent of harm that may be caused or potentially caused by the substance in question. The quantity of a prohibited drug is an important factor for a sentencing judge to take into account: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [67] – [71] (Gaudron, Gummow and Hayne JJ) and Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [50] (McLure J); Sandwell v The State of Western Australia [2012] WASCA 15 [15] (Mazza JA).
87 The effect of the making of a declaration is to enable a forfeiture application to proceed under CPC Act. There is no additional stigma or penalty imposed on the person declared to be a drug trafficker.
88 A declaration under s 32A(1)(b)(ii) MD Act in respect of cultivation of 250 or more cannabis plants with intent to sell or supply to another cannot be characterised as capricious or leading to inappropriate stigmatisation.
Chapter III Constitution – generally
89 Counsel for Mr Trajkoski submits s 32A MD Act confirms a limited declaratory jurisdiction on courts which is so markedly different from the historical power of courts to grant declaratory relief that it impairs institutional integrity.
90 Clearly, s 32A MD Act differs from the common law and equitable jurisdiction of the Supreme Court to grant declaratory relief because the declaration under s 32A MD Act is not discretionary once the court is satisfied of the statutory conditions. The legislation determines that the order is called a 'declaration'. Section 32A MD Act does not impair the exercise of any previously existing jurisdiction of any court nor alter the law relating to declarations as made by courts exercising common law or other statutory jurisdiction.
Substantive hearing
91 The hearing of the application proceeded on 28 and 29 November and 19 December 2013. Submissions were filed on Mr Trajkoski's behalf on 21 January 2014.
92 It is common ground that, consistent with s 32A MD Act, Mr Trajkoski had been convicted of a serious drug offence. Evidence had been led at trial that Mr Trajkoski had cultivated 254 plants, being four more than the number specified in sch VIII (not less than 250), however, that number was not accepted by Mr Trajkoski. The number of plants cultivated is the issue to be determined.
93 In allowing the appeal in Trajkoski v Director of Public Prosecutions (WA) [2010] (Buss JA said) [74]:
In my opinion, the appellant was entitled at the hearing of the DPP's application under s 32A of the MD Act to put the DPP to proof that the number of plants he had cultivated was not less than 250 plants. Also, he was entitled to cross-examine the DPP's witnesses, in particular Detective Senior Sergeant Van Der Schoor, in relation to that issue. Further, the appellant was entitled to give and adduce evidence as to the number of plants under cultivation. It was necessary for the number of prohibited plants, for the purposes of s 32A(1)(b)(ii), to be proved by the DPP by evidence which established that fact in relation to the conviction for the 'serious drug offence' in question. See, in the context of s 32A(1)(b)(i), Zuccala [62].
94 Accordingly, after the matter was remitted back to this court, the following orders were made in relation to the taking of evidence and the procedure applicable to the re-hearing:
(a) It is necessary for the number of prohibited plants to be proved by the DPP by evidence which establishes that fact in relation to the conviction for the 'serious drug offence' in question: Trajkoski v Director of Public Prosecutions [74].
(b) The onus of proof is upon the DPP as the one applying for the declaration. The standard proof is the balance of probabilities. An evidentiary onus is on Mr Trajkoski (16 December 2011, ts 23).
(c) Given the evidence as to the number of plants that was led in the course of the trial in 2007, it is not necessary for the DPP to, although the DPP may, adduce further evidence in support of the application (16 December 2011, ts 23).
(d) A party may, instead of or in addition to witness statements, rely on the transcript of oral evidence given by any witness at Mr Trajkoski's 2007 trial as the evidence-in-chief of that witness (27 March 2013, ts 634; 16 December 2011, ts 23).
(e) Where a person is convicted of a 'serious drug offence' the facts implicit in the verdict of guilty cannot be controverted in the course of an application by the DPP for a drug trafficker declaration (Trajkoski v Director of Public Prosecutions (WA) [70].
(f) Unless the DPP choose to call further evidence in support of the application, Mr Trajkoski will have to call the police officers and the botanist (Trajkoski v Director of Public Prosecutions (WA) [103].
(g) The transcript of the oral evidence and any other evidence admitted at the trial is admissible at the hearing of the application. The court, with leave, can determine what other oral evidence it receives and the form the hearing may take (16 December 2011, ts 23).
(h) If the court so orders or Mr Trajkoski so requests, the DPP must ensure that the person who gave evidence at the trial attends the hearing of the application in order to be cross-examined. If the person who gave evidence at the trial does not attend their evidence at trial is inadmissible except with the leave of the court (16 December 2011, ts 23).
The Evidence
95 An order for destruction of the cannabis plants was made following conviction in 2007. As a result the cannabis plants, photographic and other original exhibits tendered at trial were destroyed. Mr Trajkoski applied for a permanent stay of the hearing and the determination of the application for the declaration because of the delay and the consequences that he submitted flowed from the destruction cannabis and the exhibits: Director of Public Prosecutions v Trajkoski (No 2) [2012] WADC 81, Trajkoski v Director of Public Prosecutions (WA) [2013] WASCA 222.
96 Although I dismissed the application for a permanent stay I said [35]:
If during the course of cross-examination by counsel for Mr Trajkoski, the DPP's witness does not accept that the disclosed images are consistent with the crop site located at Mimegarra taken on or about 27 December 2002 then I will reconsider whether it is appropriate to stay these proceedings.
97 Counsel for Mr Trajkoski generally objected to my receipt of the copy exhibits during the hearing however no specific application was made that I reconsider my decision not to stay the proceedings.
98 The DPP called evidence from seven witnesses. Four of the witnesses had given evidence at trial in 2007. Each of the four witnesses adopted the transcript of proceedings in respect of their previous evidence as being an accurate record of the evidence given at trial.
99 An expert witness, Mr Morgan Wilson was the only witness called on behalf of Mr Trajkoski.
Detective Senior Sergeant Lloyd Leendert Van Der Schoor
100 In 2002 Detective Senior Sergeant Van Der Schoor was attached to the organised crime investigation unit where he was the officer in charge of the clandestine laboratory team. He had also worked for the previous five years at the Drug Squad between 1992 to 1997 when he had been involved in seizures of cannabis crops. Detective Senior Sergeant Van Der Schoor was appointed the lead investigator for the search and seizure at Mimegarra. The officers assisting Detective Senior Sergeant Van Der Schoor were Detective Sergeant McKenner, Detective Alvey, Detective Selvey, Detective Smith, Detective Gerreyn and Detective Stray. They were later joined by a detective who drove a truck to the crop site in order to collect the bagged cannabis.
101 The search was conducted as a result of information provided by Sergeant Wenman who flew over the crop site on 26 December 2002. As a result of information received Detective Senior Sergeant Van Der Schoor started his investigation by leaving Perth at 6.00 am on 27 December 2002 arriving at the crop site later in the morning. Detective Senior Sergeant Van Der Schoor's team waited for other operational officers to arrive including the Tactical Response Group and then entered the crop site at approximately 1.00 pm to 2.00 pm. A determination was then made as to whether the officers would wait for the offender to return to the crop site or pull the plants up and take the drugs away during the night, which was the course that was followed. Bagging started at approximately 6.30 pm and was concluded at approximately 9.30 pm. Detective Senior Sergeant Van Der Schoor returned to Perth at around midnight.
102 On 27 December 2002 videos taken at the scene were recorded on VHS tape. Battery life for a VHS recorder was relatively short and accordingly a supply of additional batteries was taken to the crop site so that the scene and proceedings could be recorded. Detective Alvey was the officer designated to take the video footage but to some degree Detective Senior Sergeant Van Der Schoor was directing Detective Alvey as to what needed to be filmed. The team did not experience battery problems because they completed the task with the batteries that they had. A copy of the VHS recording of the video taken on 27 December 2002 was tendered during the course of the trial in 2007.
103 By affidavit made 28 September 2012 (exhibit 3) Detective Senior Sergeant Van Der Schoor states that he destroyed some exhibits from the 2007 trial prior to 9 April 2010 at the police headquarters in East Perth. At the time he was not aware of nor did he have written advice of a further appeal in this matter [4].
104 Detective Senior Sergeant Van Der Schoor deposes [11], [12]:
105 Detective Senior Sergeant Van Der Schoor created a number of DVDs from the VHS tape. The DVDs were created at about the same time as the copy that was tendered at the 2007 trial. The original master video cassette has not been destroyed and one of the additional DVDs created from the master video cassette was tendered as exhibit 4. I have referred to the transcript of exhibit 4 (prosecution brief 24 to 32) as an aide memoire and have satisfied myself as to its accuracy. The aide memoire is similar, if not identical, to the aide memoire provided for trial in 2007. I am satisfied the DVD is an accurate copy of the video/DVD tendered at trial in 2007.
106 The video commences as Detective Senior Sergeant Van Der Schoor walks from a parked hidden vehicle towards the crop site. The video shows a crop site enclosed in chicken mesh with black poly pipe that Detective Senior Sergeant Van Der Schoor describes as being 25 mm and 19 mm in diameter. The polypipe appears to go to the individual cannabis plants. He describes the plants as:
Approximately 1 m in height and still in an immature state which appear to be just at the beginning of the budding process. They're probably three to four weeks from maturity at this stage and they're in alignment in a number of rows and there is a number of locations in irregular fashions (ts 2).
107 He states to the camera that there are approximately 250 cannabis plants. This is before the cannabis plants are pulled up and counted. In cross-examination Detective Senior Sergeant Van Der Schoor says that this number was an estimate he made and it was based in part on the information he received from Sergeant Wenman who flew over the crop site on 26 December 2002 and 27 December 2002.
108 The search video records that the search was suspended but resumed after Detective Senior Sergeant Van Der Schoor walked a little bit up a hill from the crop site. He describes a number of dams, a number of car batteries and a timing configuration connected to a solar panel array. A GPS position is recorded. The items he describes are shown on the video.
109 At 2.10 pm he describes the camp site north east of the dams and cannabis plot. A GPS reading is confirmed. The items shown on the video are described for the transcript (ts 3).
110 Following another resumption of the video at 2.13 pm, a 'humpy' is located and filmed. The West Australian newspaper dated December 23 2002 located at the 'humpy' is videoed. A further resumption of the video records a visual pan of the crop site including the dams, camp and the bush (ts 3).
111 The video is next resumed at 6.17 pm. The detective narrating at the time states:
What's going to happen is Detective Sergeant Van Der Schoor is going to rip up the plants. We are going to put, if we can, four to a bag; if not, we will actually tell you how many has gone in a bag. They're going to be bagged, tagged and then marked onto exhibit log 65703 and obviously further on, if more bags get in.
Yep ok. We're going to attempt to put four plants into a bag, but as you can see some are a bit bigger so we may only get one or two in those bags, so we will stop the video and we will recommence when we are ready to tag. The time is now 6.18 pm (ts 4).
112 The interview is then suspended and resumes when the bags are tagged. On each occasion a hessian bag is picked up and an officer shakes and packs the plants down inside the bag. The plants are not visible on the screen nor are they removed from the bags prior to tagging. Detective Senior Sergeant Van Der Schoor loudly states the tag number for each bag and the number of plants in the bag. Each of the tag numbers and his verbal confirmation of the number of plants in each bag is recorded on video. Each number is consistent with the number recorded by Detective Sergeant McKenner in the exhibits log, exhibit 2. An area described as Site One that is adjacent to a second and larger area is recorded as having the bagging completed by 7.02 pm. The plants are placed in a total of 15 bags. Each bag had been described as having four plants in it at the time when the bag is sealed and tagged and the tag number recorded except for the final bag which is tagged and recorded as having the remaining three plants from Site One in it. This bag is recorded with tag strap T22171 (ts 4). The total number of plants from all 15 bags is stated on the video as being 59 plants (14 bags containing four plants and one bag containing three plants). On video Detective Sergeant McKenner later confirms the number of plants from Site One.
113 At 7.31 pm the tagging of the bags of cannabis plants at the area described as Crop Two commences (ts 5). The process is identical in that Detective Senior Sergeant Van Der Schoor states that four cannabis plants are being sealed in each bag at the time when the tag is put in place to seal the bag. The sealing and tagging process is videoed in respect of each and every bag.
114 There is no footage of any of the cannabis plants being placed in bags prior to the tagging process.
115 Detective Senior Sergeant Van Der Schoor states that four cannabis plants had been sealed into each bag in respect of all bags bar the final bag. Detective Senior Sergeant Van Der Schoor describes the final bag as containing seven cannabis plants. This is sealed with strap tag T22005.
116 Detective Sergeant McKenner who is the exhibits officer is then filmed performing a calculation on the right-hand side of the cardboard sheet attached to the log book. This is consistent with the calculation written on the right hand side of the cardboard sheet attached to the log book, exhibit 2 which sets out numbers that total 254. Detective Sergeant McKenner confirms in evidence the total number of cannabis plants from Sites One and Two is 254.
117 The video is resumed at 11.33 pm when the bags described as containing the cannabis are padlocked into a hire truck.
118 In cross-examination Detective Senior Sergeant Van Der Schoor confirms that he is the only person who tagged the hessian bags containing the cannabis, although Detective Stray and Detective Gerreyn assisted him by placing the plants into the bags. The bags are approximately 1 m high and approximately 800 mm to 900 mm wide. Detective Senior Sergeant Van Der Schoor recalls they had a good supply of bags on the day of the search and seizure. He clarifies (ts 766) that the height of the plants was just over a metre to probably less than half a metre. Their girth varied from just under a metre wide to probably 30 cm in width. The wider plants had a lot of branches and multiple stems. The plants were pulled out of the ground as complete plants and the sand was shaken off the root ball of each plant before the plant was placed in a bag. Detective Van Der Schoor agrees that this involved some hitting of the plant somewhere and that little bits of leaf came off in the process. He also agrees that in the process of packing plants they can break.
119 In his affidavit made 28 September 2012, exhibit 3, Detective Van Der Schoor states at par 7 that he received four digital photographs of the crop site from Sergeant Wenman on or about 23 March 2012 and that these photographs were forwarded to Mr Wilson at the DPP. The images depict the crop site from 27 December 2002. At par 9 he states that on or about 23 March 2012 he received a video cassette from Sergeant Wenman and on viewing footage confirms that it was an aerial recording of the site from 27 December 2002. Detective Senior Sergeant Van Der Schoor confirms that at the time he left the crop site on 27 December 2002 he did not have a particular suspect in mind. No person had been nominated at that particular time (ts 769).
Detective Sergeant Paul McKenner
120 In 2002, Detective Sergeant McKenner was attached to the organised crime investigations unit. He had been a police officer for 14 years. At the present time, Detective Sergeant McKenner is attached to the detective training school at Joondalup. He has been a serving police officer for 23 years.
121 Detective Sergeant McKenner gave evidence at the trial of the indictment on 30 and 31 July 2007 (ts 541 – 573). At that time he had had significant experience dealing with cannabis investigations and had been involved in studies and organised crime investigations (ts 542).
122 At about 1.00 pm on 27 December 2002 he was called to attend the Mimegarra area just east of Lancelin. He attended with other officers from Organised Crime Squad and officers from the Tactical Response Group. The Tactical Response Group went into the area to make it safe and to observe whether anyone was in the crop area. At about 1.00 pm Detective Sergeant McKenner and other officers went into the area. He and Detective Senior Sergeant Van Der Schoor conducted a 'quiet' video of the crop site. He was later directed that he was to pull out the cannabis plants from the crop.
123 Detective Sergeant McKenner describes the crop as having two sites that were 10 m apart. Site One was not in any formation but Site Two seemed to be 'very much' in formation because the pipes were laid in straight lines. Site One had a lot less plants but they were a bit bigger and they were the ones closest to the dam (ts 543 – 544).
124 Site Two appeared to have been a tack on. The plants were slightly smaller indicating that the first site had been put in first. He describes three big dams and one small dam. Water was pumped to the two crop sites. The water was transported by large poly pipes being 25 mm whereas the poly pipe at the crop sites was 18 mm. He describes a solar panel and battery that was used to activate the pumps and confirmed his evidence from 30 July 2007 that the photographs tendered at trial (exhibits 5A to 5J) were photographs of the crop site he had observed on 27 December 2012. Detective Sergeant McKenner confirms in evidence in November 2013 that the copies of photographs shown were the same as the photographs shown and ultimately tendered at trial in 2007. I accept the photographs of the crop site tendered are copies of the original photographs.
125 Detective Sergeant McKenner was the nominated exhibits officer for the collection of the cannabis plants and for the crop site generally. He itemised the seized and collected items and marked a description of what was taken, where it was located, and bag or tag numbers. He recorded the number of plants seized.
126 On 30 July 2007 he said in relation to what happened to the plant itself:
... because you can't fit a plant in small little drug bags, we generally put them in – well, we always put them in large hessian sacks and we tie the hessian sack off at the top and put a red tag around the top of it, which is numbered. And that is where you will see these numbers like T19420, it's a unique number. That only exists, that number there so that number will follow the drugs where ever it goes unless again we cut it or the botanist would cut it open ... so it's like an auditing system for us. We know where all these drug bags and tags go.
127 In relation to the last bag from crop Site Two T22005 that was recorded as containing seven plants he said (ts 553):
That was the final lot because as you will see on the video ... there were actually quite a number of small plants there so they obviously would have been put into one pile to be placed in one bag but most of them ... it was very tight to put in a lot of them, four in one bag.
128 In cross-examination on 29 November 2013 Detective Sergeant McKenner confirms that he did not physically pull the plants out but was the officer responsible for recording the exhibits throughout the search. It was put to him that in 2005 at the first trial listed in relation to the indictment (that did not proceed to verdict) he had given the following answer in evidence to the question:
129 In evidence on 28 November 2008 he clarified 'As a team I was involved in the pulling of the plants out and counting them' (ts 805). It was put to Detective Sergeant McKenner that this was prior evidence that was inconsistent with his present testimony due to a failure in his memory, however he asserts that he has not forgotten nor embellished the details of the seizure and that he was speaking on behalf of the team.
130 I note that continuity in relation to the uprooting and bagging of cannabis plants was not an issue pursued by counsel appearing on Mr Trajkoski's behalf in 2005 who was Mr Ron Cannon. It may be that, consistent with the way in which the trial was conducted, Mr Cannon had indicated to the DPP that matters such as continuity would not be in issue. I accept Detective Sergeant McKenner's explanation that in context in 2005 he was giving evidence generally in relation to the team's actions in agreeing to the proposition that 'you physically were involved in pulling them out and counting them'. The evidence given in 2005, when considered in context, does not impact adversely on my assessment of Detective Sergeant McKenner's credibility.
131 Detective Sergeant McKenner confirms that Detective Senior Sergeant Van Der Schoor counted each plant as it went into the bag as did the officer assisting him being Detective Senior Constable Gerreyn at Site One and Detective Sergeant Stray at Site Two. Detective Sergeant McKenner was emphatic that he also counted each of the plants as part of his role in keeping the exhibits log. He was unshaken in his evidence that there were four plants in each of the bags bar the last bags from each site. At transcript 815 he said:
And as exhibit's officer, I am accountable for those plants going on that log ... I have to make sure there are four plants in that bag because it's a very accountable system. (ts 816)
132 Although Detective Sergeant McKenner agrees that the smallest plants were approximately 40 cm high x 40 cm in width, he clarifies that the final seven plants were obviously smaller because they were the ones at the end of the trip line (ts 817). He clarifies that when giving an estimate of smallest size in evidence he was speaking of the cannabis plants shown to him in still photographs prior to giving evidence. His assessment of the photographed plants was that they were 40 cm x 40 cm.
133 In cross-examination Detective Sergeant McKenner remained firm in his evidence that there were seven plants in the final bag. Detective Sergeant McKenner says (in relation to a tally recorded on the cardboard sheet attached to the exhibit log in exhibit 2), that the sheet was placed under the carbon copies in the log in order to ensure that the entries were not recorded on subsequent carbon copies in the log book. When the cannabis was being put into the bags in groups of four plants he was keeping a tally recording five plants before marking the next tally regardless of the number of bags involved. He completed the tallies of five plants for Site One, but did not continue to record tallies of five plants for Site Two because it became too dark soon after they moved to Site Two at 7.30 pm to 8.00 pm. He denies being confused in respect of tallies for five when there were four plants in each bag. He states he stopped recording the tally because he had to concentrate on counting and recording the number of plants and the bag and tag number. He further states that he could no longer see and he did not want to stand in front of the camera light in order to record the tally because it would be too difficult and because he was trying to keep the camera light on the people who were collecting the exhibits (ts 770).
134 In viewing exhibit 4 he agreed that on one occasion he had come before the camera, however, repeated that in his view it was not appropriate for him to be in front of the camera on each occasion.
135 Detective Sergeant McKenner confirms that he recorded the tally carefully. He also recorded the calculation on the left hand side of the cardboard page. The total ultimately added up to 254 plants. Detective Sergeant McKenner is observed carrying out this calculation in the video recorded at the time on the site (exhibit 4). The entries on the log book record the tag for each and every bag and record the number of plants contained in each bag as stated by Detective Senior Sergeant Van Der Schoor (exhibit 2). The log book has been signed by both Detective Sergeant McKenner and Detective Senior Sergeant Van Der Schoor. The exhibit log tendered in evidence is the last of three sheets being the bottom carbon copy. The copies are intact and are in the original log book. There is no evidence the top or second copy was provided or destroyed, however I accept that, consistent with the evidence given, the bottom carbon copy is identical to the two top copies and is part of the exhibits log that was recorded at the time of the search and seizure by Detective Sergeant McKenner.
136 Detective Sergeant McKenner confirms in evidence that his affidavit dated 24 September 2012 is accurate. Exhibit 5 is a copy of the affidavit. In relation to the exhibit logs, Detective Sergeant McKenner stated in the affidavit:
...
137 I accept the evidence of Detective Sergeant Van Der Schoor and Detective Sergeant McKenner that the logs produced are identical.
138 In re-examination Detective Sergeant McKenner confirms:
As we – as they are being counted by the detectives putting them in the bags, I am also counting behind the camera confirming – because as the exhibit's officer I am accountable for those to be counted and go to our drug receival unit. If they're missing or there's not the right number --- I've still got to count them as exhibit's officer, because at the end of the day it is my name that goes on the exhibit's list and it is my name that says that there's 254 plants. (ts 822)
139 Detective Sergeant McKenner says he recollected the counting process and the final number of plants perfectly.
Detective Sergeant Matthew Stray
140 Detective Sergeant Stray retired from the police service in early 2007 when he was at the rank of detective sergeant. He recalls giving evidence at the trial of the indictment on 31 July 2007 (ts 606 – 617).
141 He states his physical position that evening was next to Detective Senior Sergeant Van Der Schoor at the time when the drug bags were being sealed at Site Two and he states in cross-examination on 29 November 2013 (ts 825) that he was next to Detective Sergeant Van Der Schoor who was doing the counting. He confirms that leaves and bits and pieces fell to the floor (ground). He agrees he would have pulled up some plants before bagging them and recalls shaking the sand off the roots. Detective Sergeant Stray denies cutting the roots of any cannabis plants on that day.
142 In relation to the actions of Detective Sergeant McKenner, Mr Stray states that he saw Detective Sergeant McKenner writing the details down and that he did not see him pulling any plants out. He confirms that Detective Sergeant McKenner was present when the plants were being counted. He denies that there was any possibility of double counting.
143 Prior to the tagging shown on video, Mr Stray states the plants had already been gathered into groups of four because it was pre-determined they would be placed into bags in groups of four for continuity (ts 829). He confirms that it was easier to put the plants into the bag root first. At ts 836 he says 'This was the biggest crop site I have gone to and processing this many exhibits, I hadn't been in another situation like this'.
144 He confirms his recollection of the counting process is accurate.
Detective Sergeant Richard Alvey
145 Detective Sergeant Alvey recorded the video exhibit 4 at the Mimegarra crop site on 27 December 2002. At that time, Detective Sergeant Alvey had been a police officer for approximately 14 years. He had taken part in three or four cannabis crop seizures.
146 He confirms he definitely did not edit the video. It was most likely that a discussion had occurred as to how the video should proceed before the footage commenced. He arrived at the crop site at approximately 1.00 pm and confirms the videoing was predominantly of the bagging and tagging of the hessian sacks recorded in the exhibits log. He believes he would have assisted in the pulling of the cannabis plants from the ground and that the camera would have been just 'there' at the time, however, he cannot remember exactly what took place. He agrees he would turn the video off and pull a plant or two to help out. He agrees there were three or four people all pulling plants up. He identifies the people as Detective Sergeant McKenner, Detective Stray, Detective Gerreyn and Detective Selvey.
147 Detective Alvey accepts that some plants possibly had a height of 1.8 m and that bits of leaf or foliage could have fallen to the ground, however he did not recall seeing a lot of broken vegetation from the plants that were seized. He cannot recall how many batteries he took with him to the site but states that they (police) would always try to take as many batteries as they could to a search so that they did not run out of battery. He notes there are still problems today with battery life in cameras (ts 845).
Senior Constable Darren Joiner
148 Senior Constable Joiner attended the Mimegarra site on 27 December 2002 as a forensic police officer. He had not given evidence in relation to his attendance prior to 29 November 2013. Senior Constable Joiner filmed a video of the area of the crop site but did not film the cannabis plants specifically (exhibit 7). Senior Constable Joiner identified a bundle of photographs as showing the Mimegarra crop site at the relevant time (exhibit 8) (ts 850). He does not believe that he was involved in pulling up cannabis plants but states he was assisting with the bagging although it was not his role to do so. He assisted with bagging purely because of the number of plants involved. He confirms that he and others remained at the site on 27 December 2002 until around 11.00 pm (ts 852). He assisted by carrying the bags out from the crop site to the truck prior to leaving the scene.
Sergeant Matthew Wenman
149 Sergeant Wenman was attached to the Police Air Wing in 2002. He had seen the crop site initially on 26 December 2002 when he was a passenger in an aerial fly-over. He again observed the crop from a plane on 27 December 2002. As an observer in a police aircraft, his duties included taking aerial still photographs and aerial video footage. He confirms that the crop site area was made more visible because it appeared that vegetation around the crop sites had been burnt. He confirms the magnified annotated photographs exhibits 13, 14 and 15 appear to be copies and magnifications of a photograph in exhibit 11.1 to 11.3. Sergeant Wenman confirms the contents of his affidavit sworn 10 September 2012 is correct, although the date recorded for the original recording in par 10 was incorrectly stated. He confirms the original recording was made 27 December 2002 (exhibit 9).
150 Sergeant Wenman said at pars 2 – 4 of the affidavit:
Exhibits Tendered at Trial
3.1 exhibit 1 – a printing of a digital JPEG photograph that I took of the crop site when I flew over the site for a second time on 27 December 2002; and
3.2 exhibit 3 – a photocopy of my flight log for 26 December 2002.
151 Sergeant Wenman confirms that the copies of the aerial footage and photographs (exhibits 10, 11 and 12) were the same as the stills and footage referred to in his affidavit (exhibit 9). I accept they are identical.
Mr Chang Sha Fang
152 In 2002 Mr Fang was an approved botanist at the WA Herbarium, a position he held for 13 years. He compiled the nine certificates of approved analyst. Exhibits 17.1 – 17.9 are copies of certificates of the approved analyst. He confirms the certificates were issued after some cannabis plants had been examined in the drug room. He says the copies of certificates containing his signature were identical to the original documents. In cross-examination Mr Fang confirms the number of plants does not appear on the certificates. He did not look at the cannabis plants nor did he test cannabis from each and every plant.
Senior Constable Julie Walters
153 Senior Constable Walters is a forensic officer who attended the Mimegarra crop site on 27 December 2002. She adopts the evidence she gave at trial on 31 July 2007 (ts 620 – 625) as being accurate. Senior Constable Walters collected items of relevance at the 'humpy' and camp site area adjacent to the cannabis site. It was probably the first cannabis crop seizure that she had attended. She arrived in the late afternoon because she was requested to assist the organised crime unit together with Senior Constables Chance, Joiner and Ward (ts 879). She assisted by conveying some of the exhibit bags containing cannabis back to the vehicle from the camp site, however, to her knowledge, she did not assist further in the collection of cannabis plants. Her role on the day was to act in a forensic capacity as a fingerprint officer and to identify items of forensic interest.
Mr Morgan Wilson
154 Mr Wilson is a photographer with 15 plus years of experience in traditional digital photographic printing and digital retouching. His curriculum vitae that is attached to his undated report (exhibit 18) was not challenged. I accept Mr Wilson has expertise in the field of photography.
155 Mr Wilson had been provided with a photograph (exhibit 10) of the Mimegarra crop site prior to giving evidence. He produced a 'version 2' of that image by sharpening the image to try and bring up the detail so it was 'better' than in the original (exhibit 13).
156 Mr Wilson was also asked to create 'version 3' of exhibit 10 (exhibit 14). He says that he cropped the photographed area depicted in exhibit 10 and tried to highlight the area of vegetation by darkening around the outside area, lightening the sand in the middle section and then applying some sharpening or definition. The reason for lightening the sand colour was because he was trying to provide some definition between the sand and the foliage in exhibit 14 (ts 869).
157 Mr Wilson also created 'version 4' of exhibit 10 (exhibit 15). This image is the same as 'version 3' (exhibit 14), however Mr Wilson has added arrows and lines over the top of the image and placed numbered boxes and a text for each letter in corresponding boxes onto the photograph. 'Version 5' shows an equidistant grid placed over the already embellished photograph 'version 4' (exhibit 14).
158 Exhibit 19 is a CD of all of the images created by Mr Wilson.
159 In cross-examination Mr Wilson states that his objective was to do his best to highlight the general area. Just to define ... the green foliage in general in that area (ts 872). He was not required to highlight a particular hue of green.
160 Mr Wilson confirms that the letter of instruction prepared by Mr Sandhu, solicitor, requested 'You are required to render these as clearly as possible so as to assist in the task of counting the number of plants with light green foliage'.
161 Mr Wilson confirms that is what he has tried to do by colouring and highlighting the area shown and that it was his job to highlight the area of light green foliage (ts 873).
162 Mr Wilson is not qualified as a botanist nor does he have any expertise in relation to cannabis plants. He agrees that reasonable minds might differ on where the rows of light green foliage in the photograph appear in respect of the grid depicted on exhibit 15. He also agrees that an assessment of what comprises a row of light green foliage might differ in that the assessment is a subjective assessment.
163 Mr Wilson also agrees that the original aerial image was taken from a fixed angle and for that reason each plant may not be clear (ts 875).
164 The DPP did not object to the admissibility of Mr Wilson's evidence but submits:
165 The subject of reconstructions and demonstrations was considered by the Court of Appeal in Birks v State of Western Australia [2007] WASCA 29, a decision relating to a conviction for murder and arson. At that trial at first instance a police officer was called to give express expert opinion about the likelihood that a lit cigarette caused a fire. He formed an opinion on his review of literature on the subject that it was difficult, but not impossible for a burning cigarette to start a fire in a bed. He also conducted a 'demonstration burn' or experiment that led him to express the opinion in evidence-in-chief that 'As you would have seen from the tests it is quite impossible to create a fire with a cigarette butt'.
166 The court unanimously allowed the appeal accepting there were differences between the circumstances prevailing at the time of the 'demonstration burn' and with the fire which occurred ... but the circumstances were sufficiently similar to make evidence about the 'demonstration burn' admissible. Buss J considered whether the admission of the video tape constituted a miscarriage of justice and referred to authorities including Neilan v The Queen [1992] VicRp 5; [1992] 1 VR 57. In that case, evidence was received of tests conducted by the police to determine whether the applicant could have seen intruders approaching his home as he claimed. Young CJ, Brooking and Marks JJ approved the following observations [74] – [75]:
One desiring to make an experiment or test in court or to introduce evidence of an experiment or test made out of court should first show that the experiment or test is to be made or was made, as the case may be, under conditions and circumstances similar to those prevailing at the time of the occurrence involved in the controversy; otherwise, the courts will not, as a general rule, permit the making of the experiments or tests or the introduction of evidence thereof. It is clear, however, that the conditions need not be identical with those existing at the time of the occurrence, but it is sufficient if there is a substantial similarity of conditions. Minor variations in the essential conditions go to the weight, rather than to the admissibility, of the evidence.
There is no precise test or gauge to determine when the requirement of substantial similarity has been satisfied. This depends largely upon the purpose for which such evidence is to be introduced. Speaking generally, however, the measure of permissible variation of the conditions of the experiment or test from those of the occurrence is measured by whether such variation is liable to confuse or mislead the jury. When the conditions are so dissimilar from those of the occurrence in question as to tend to confuse or mislead the jury, the evidence of an experiment or test should be rejected. The question of similarity is one that lies within the sound discretion of the trial court, to be decided in the light of all the surrounding facts and circumstances.
167 I accept that Mr Morgan Wilson is a qualified photographer with significant expertise. However, he does not know which plants he embellished and he accepts the angle of the photograph is deceptive. The embellished photographs are of very limited relevance and carry very little weight. The embellished photographs do not assist the court to determine a precise aerial count of the number of cannabis plants growing at Site One and Site Two on 27 December 2002 prior to seizure.
Findings
168 I must therefore consider the other evidence presented in support of the application to determine whether the State has discharged its burden.
169 Counsel for Mr Trajkoski submits that I should not be satisfied on the balance of probabilities that 254 cannabis plants were seized from the crop site.
170 He submits the number of plants was estimated by Detective Senior Sergeant Van Der Schoor to be 250 before the process of bagging and counting commenced. The number being 254 is so close to that estimate that I should reject the counting process as being accurate. The process of bagging the plants is recorded on video as are Detective Senior Sergeant Van Der Schoor's contemporaneous verbal comments about the number of plants he says are in each bag. I accept the video as being accurate and I accept Senior Sergeant Van Der Schoor's evidence. I reject the suggestion that 254 was the number recorded by way of estimate only, or that the final number was tailored to meet a number equal to or slightly greater than the estimated number.
171 Counsel for Mr Trajkoski also submits that because the cannabis plants were already in the bags before they were counted on video, there was room for error in that parts of a plant could have appeared to look like a separate plant but may in fact have been large portions of broken branches. The evidence of detectives involved in the pulling out and packing of the cannabis plants was that the plants were pulled out by their roots. The evidence of all detectives is that individual plants were counted, not parts of the plant.
172 Counsel for Mr Trajkoski argues that there is a discrepancy in the evidence of detectives as to whether the plants, once pulled out of the ground, were put in piles of four or not. I find that even if the plants were pulled out and put in piles of four, Detective Van Der Schoor made a final pronouncement that there were four plants in each bag consistent with his evidence on the contents of each bag.
173 It is argued for Mr Trajkoski that the witnesses did not openly divulge how the police officers arrived at a number of 254 plants. The visual recording of the counting of plants and tagging coupled with the record from the log book totals 254 plants. Detective Sergeant McKenner who maintained the log book was clear in his evidence that it was important to have an accurate recording of the number of plants. As exhibits officer, he was aware of the responsibility he had to ensure that the number recorded was correct. The witnesses openly divulged the method of counting.
174 Counsel for Mr Trajkoski submits that there was no consistent narrative from police witnesses in relation to the process of pulling out plants, counting and bagging. He submits that voices can be heard on the video consistent with bundles of plants being placed into the bags. The video process occurred in 2002, over 11 years ago. At that time, detectives were less experienced in relation to the use of videos and their concerns for battery life were greater than the concerns presently raised because the camera quality was poorer. In 2014 it may now be appropriate to video the pulling of each and every plant. However, in 2002 a video of each bag being sealed and the number of plants in each bag spoken was, I find, appropriate.
175 Leave was given for counsel for Mr Trajkoski to have police witnesses recalled so that he could further cross-examine detectives in relation to Western Australian Police standard operating procedures relevant to 2002. The cross-examination revealed the actions of the detectives complied with the relevant standard operating procedures. Detective Sergeant McKenner noted that if the camera was turned off and relevant events were occurring then standard operating procedures mandated that when the camera was turned back on the officer was required to explain what had happened during the break. Detective Sergeant McKenner states that he did not repeat everything that had happened when the camera was off (because he would be talking to himself). He noted 'you modify them (standard operating procedures) when you need' (ts 896). Detective Senior Sergeant Van Der Schoor considers that by announcing the number of plants he adequately disclosed what had occurred off camera.
176 I accept the summary at the recommencement of the video was consistent with the Western Australian Police Service standard operating procedures relevant to 2002. There was no requirement for every action and conversation to be restated.
177 Counsel for Mr Trajkoski argues that prior to pulling the plants out Detective Sergeant McKenner stated that some of the plants were so large only one would be able to go in a bag, however, the evidence was that each bag contained on average four plants. I find that although the plants were over a metre high and were relatively wide, they had not reached maturation and were not in head. I accept the evidence that the plants could be bent so that four large plants could fit into one bag. The large hessian bags were of a type and size similar to bags that has historically been used for agriculture in Western Australia to pack quantities of wheat or wool. There is no evidence that the bags in question did not or could not contain the number of plants stated. Counsel for Mr Trajkoski submits that some bags appeared to have too much room left to contain four plants. This is speculation only.
178 Counsel for Mr Trajkoski argues Detective Sergeant McKenner was defensive in asserting 'we all counted' (ts 815) in respect of the number of plants. Detective Sergeant McKenner admitted in cross-examination on one occasion, he said 'four in there?' (exhibit 4, 19:35:07, ts 819). Counsel submits this comment by Detective Sergeant McKenner is a critical admission by him that he was not counting plants. I find the answer is equally consistent with Detective Sergeant McKenner clarifying with Detective Senior Sergeant Van Der Schoor that four plants had in fact been placed in the particular bag prior to the bag being sealed. The query was raised with Detective Sergeant McKenner to ensure that the log book record was consistent, accurate and properly reflected the number counted by Detective Senior Sergeant Van Der Schoor during the course of the video.
179 Counsel for Mr Trajkoski also argues I should reject Detective Sergeant McKenner's explanation that he stopped recording a tally on the cardboard sheet in the exhibits log book (exhibit 2) because it was dark and he did not want to interfere with the light required to video the bagging and tagging process because on one occasion he did appear before the camera after he stopped recording a tally of plants. I accept, consistent with the bagging and tagging of plants occurring at night time, that it was dark so light was required to operate the video camera. I also accept it was important that the bagging, tagging and counting process be recorded on video, consistent with the reason given by Detective Sergeant McKenner for staying behind the camera.
180 Detective Sergeant McKenner cannot give an explanation for some of the notations and calculations on the cardboard sheet in the exhibits log book. The cardboard flap has a variety of handwriting styles on it. I accept that he is not responsible for all of the notations and that some of the notations may not have been relevant to the Mimegarra search and seizure.
181 It is also submitted on Mr Trajkoski's behalf that Senior Constable Walters was the only female officer on site, and that a female voice can be heard faintly stating that she has cut the bases off plants. It is asserted this is said at 18:35:39 in exhibit 4. Senior Constable Walters was involved as a forensic officer in collecting and identifying items adjacent to the crop sites. If any words were spoken (and it is not clear what was said and I do not accept the words suggested were said) those words may be consistent with her duties at the camp site. I do not accept that the noise recorded is evidence from which I should reject that plants were not pulled up by their roots. The noise does not impact on my assessment of credibility.
182 I note the evidence of Detective Sergeant McKenner in relation to the size of the plants located is challenged because Detective Sergeant McKenner confirms in evidence that the smallest plants were about 50 cm tall, about 30 cm wide and about 35 – 45 cm in depth. He states in cross-examination however that the ones at the end of the trip line were smaller and that seven of the smaller end plants were placed into one bag. He states his evidence in relation to the size of plants was consistent with photographs from the crop site. The evidence of Detective Senior Sergeant Van Der Schoor is that seven plants were placed into the final bag from the end of the line. I accept that the last seven plants were smaller than the other 247 plants located. There was no evidence challenging whether seven small plants could fit into the hessian bag. I accept the evidence of Detective Sergeant McKenner, consistent with the evidence of Detective Senior Sergeant Van Der Schoor, that seven small plants were placed into the last hessian bag from Site Two.
183 Counsel for Mr Trajkoski asserts that by not requiring evidence-in-chief to be given on oath, the court should draw an inference that the State feared what the police officers would say about the lack of an organised and consistent collection and counting process. I reject this submission. The State relied on the evidence taken under oath or affirmation at trial in 2007, consistent with orders made prior to trial.
184 Counsel for Mr Trajkoski submits that a number of relevant witnesses were not called by the State and these witnesses may have been able to give evidence of the harvesting, counting and bagging procedure. Specifically Detective Sergeant Smith was named as being involved in pulling out of plants, Detective Gerreyn was involved and present and Detective Selvey was also present.
185 I accept the officers directly involved in the counting process were shown as part of the video recorded of the bagging and tagging however they do not look into the bags before tagging nor say how many plants are in each bag. Detective Senior Sergeant Van Der Schoor clarified the number of plants in each bag prior to the tagging process. There is no evidence from which the court could draw an inference against the State in relation to the accuracy of the number of plants in each bag as a result of all detectives who may have been present at the crop site on 27 December 2002 not being called to give evidence.
186 For the reasons I have outlined, I am satisfied on the balance of probabilities that the State has proven that a total of 254 cannabis plants were located and seized at the two crop sites at Mimegarra on 27 December 2002. Although it is regrettable that the cannabis plants were destroyed before the re-hearing and that the crop video footage did not include footage of the pulling up of each and every plant, I accept the evidence of Detective Senior Sergeant Van Der Schoor and Detective Sergeant McKenner in relation to the number of plants located and seized. The evidence is consistent with the video recorded, photographs taken, log book notations and aerial footage.
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