R v Gardner[2014] QSC 275

SUPREME COURT OF QUEENSLAND

ANN LYONS J:

Background

1. The applicant, Kristen Gardner, has lived for long periods of time overseas. It is alleged that whilst he was in Australia during two periods he unlawfully produced and trafficked in cannabis. He is currently charged on a four count indictment with two counts of trafficking in the dangerous drug cannabis and two counts of producing the dangerous drug cannabis in excess of 500 grams at Inglewood in Queensland. The first period of offending is alleged to have been from January 2005 to September 2005 and the second is the period from September 2007 to June 2008.

2. The charges against the applicant essentially arise as a result of his alleged involvement with his father Michael Gardner (senior) who ran large scale, commercial, cannabis plantations on a property known as Kinvarra, outside Inglewood, Queensland, between June 2004 and December 2008. Michael Gardner (senior) had purchased that property on 9 June 2004 in the name of his brother Kim and his then wife Kelly Millard.

3. The charges against Kristen Gardner are ready to be listed for trial. The evidence at trial will include evidence of witnesses who allegedly saw him working on cannabis crops at the property. That evidence comes from members of his extended family including his brother Michael Gardner (junior), who has provided s 13A statements against the applicant, as well his father’s ex wife Kelly Millard and her teenage children, Samuel Millard, Ammie Millard and Laura Millard. The prosecution also intends to rely on a series of articles the applicant wrote in Canadian magazines between 2001 and 2007 which outline his expertise and involvement in cannabis production in Australia and the United States.

This application

4. Pursuant to s 590AA of the Criminal Code 1899 (Qld), the applicant now applies for a pre trial ruling that the articles the prosecution seeks to attribute to him be excluded from the trial on the basis that the articles are irrelevant to the proof of the charges against him.

The charges

5. The details of the charges on the indictment are as follows:

Count 1:Section 5(1)(b) Drugs Misuse Act 1986

that between the first day of January, 2005 and the first day of September, 2005 at Inglewood in the State of Queensland, KRISTEN GARDNER carried on the business of unlawfully trafficking in the dangerous drug cannabis.

Count 2:Section 8(d) Drugs Misuse Act 1986

that between the first day of January, 2005 and the first day of September, 2005 at Inglewood in the State of Queensland, KRISTEN GARDNER unlawfully produced the dangerous drug cannabis.

And the quantity of the dangerous drug exceeded 500 grams.

Count 3:Section 5(1)(b) Drugs Misuse Act 1986

that between the ninth of September, 2007 and the thirtieth day of June, 2008 at Inglewood in the State of Queensland, KRISTEN GARDNER carried on the business of unlawfully trafficking in the dangerous drug cannabis.

Count 4: Section 8(d) Drugs Misuse Act 1986

that between the ninth of September, 2007 and the thirtieth day of June, 2008 at Inglewood in the State of Queensland, KRISTEN GARDNER unlawfully produced the dangerous drug cannabis.

And the quantity of the dangerous drug exceeded 500 grams.

The prosecution case against Michael Gardner (senior)

6. The applicant’s father, Michael Gardner (senior), pleaded guilty to the charges of unlawful trafficking in cannabis sativa over a four and a half year period and was sentenced on 13 June 2012 to a period of imprisonment of 13 years. The prosecution case against this applicant is linked to those drug trafficking charges against his father. The factual background to Michael Gardner (senior)’s offending is set out in the 2012 decision of the Queensland Court of Appeal^[1] in relation to his appeal against sentence as follows:

6. “The statement of facts recites:

“Over more than a four and a half year period between mid 2004 to December 2008 the defendant [Michael Gardner (senior)] was the central figure of a large scale trafficking operation involving the production, packaging and distribution of cannabis on a[n] heroic scale.

The defendant’s [Michael Gardner (senior)] unlawful activities yielded profits in the hundreds of thousands of dollars. He was not a heavy user of cannabis. The operation was a sophisticated and elaborate commercial venture. Large sums of money were invested by the defendant in the infrastructure required to undertake the production of the crops …

In the first two years of the production, members of the defendant’s [Michael Gardner (senior)] young family also worked on the crops and received payment from the defendant. They were aged between 11 and 14 years of age when they commenced their duties.

The defendant [Michael Gardner (senior)] continued to traffic in large quantities of the drug even after his incarceration in June 2008.”

7. The production of the cannabis took place on a property which had been purchased by the applicant [Michael Gardner (senior)] in 2004 for that purpose located in an isolated area between Stanthorpe, Texas and Inglewood. On 30 June 2008 police executed a search warrant on the property. They found eight different cannabis fields. All but one of the sites had been harvested, although one crop, which was approximately 50 metres by 100 metres, had about half of its plants remaining - approximately 22,000 plants. A representative sample of 100 plants was weighed with the roots removed and totalled 51.9 kilograms. There were various sheds on the property containing drying cannabis. The total weight of useable cannabis in the drying sheds was 3.59 tonnes. The statement of facts recites that the approximate black market value of the cannabis located on the property was $68.95 million, comprising $50 million value in respect of the crop and $18.95 million in value for the drying material.

8. The statement of facts recites:

“$10,000 in cash was found in a locked shipping container. The police also located a quantity of weapons at the camp sites consisting of 2 leg shackles, 7 pairs of hand cuffs, two extendable batons, concealable pen guns, military night vision goggles, long range rifle scopes, hand gun carry cases and in excess of 10,000 rounds of live ammunition.””

(footnotes omitted)

The preliminary evidence against the applicant

7. When police executed that search warrant at his father’s property, Kinvarra, on 30 June 2008, the applicant was not present at the property at the time. There is some forensic evidence, however, which links him to the property as his fingerprints were found on photographs which were located at the property and on a packaged amount of cannabis found in one of the drying sheds. Police also located a computer which is alleged to be the applicant’s in the shipping container found on the property.

8. On that computer, police found references to articles by “Joe Walsh” and “Boy Scout” that had been published in a Canadian magazine called Cannabis Culture between December 2005 and June 2007. The prosecution intends to rely on those articles at the applicant’s trial on the basis that they were authored by the applicant and demonstrate not only his horticultural knowledge and business acumen in cannabis production, but also his inter-related business interests with his father Michael Gardner (senior).

A summary of the Committal evidence

9. In order to assess the significance of the articles it is necessary to consider the state of the other evidence against the applicant. Statements have been provided to police by Michael Gardner (senior)’s son, Michael (junior), his former wife, Kelly Millard, and three of her children Laura, Ammie and Samuel. All gave evidence of the cannabis operation and the role they played in its cultivation. The Millards all gave evidence in relation to Counts 1 and 2 which are alleged to have occurred in 2005. Michael Gardner (junior) and Ammie Millard gave evidence about the applicant’s presence at the property in 2007. All those witnesses have indicated that the applicant was at Kinvarra at various times in 2005 and 2007 taking photos and that he otherwise ‘helped out’ and to some extent. The contentious issue in this case is to what extent he was involved with the cannabis crop at Kinvarra and what his expectation was about the profit from the crop. It is necessary to consider that evidence in some detail in order to understand the true significance of the articles.

10. It is clear that Kelly Millard’s evidence is only relevant to the first period of the alleged offending as she separated from Michael Gardner (senior) due to his ongoing violence in 2006, which is prior to the second period of alleged offending in 2007. She stated that she went to the property in the period from 2004 to October 2006 and that the property had eventually been purchased by her husband in her name and the name of his brother Kim. She indicated that initially her husband had wanted Kristen to purchase Kinvarra with her, but that his application for finance had been refused. Ms Millard stated that as it took some time to put the money together the property had been leased to them prior to the actual purchase in June 2004. Her evidence was that she did not visit the property often but she saw Kristen there when the property was initially purchased and then twice after that. One of those occasions was when the cannabis was being planted shortly after the property was purchased. Her evidence was that the applicant taught them the difference between male and female plants.

11. Ms Millard stated she was not aware of any financial arrangements between Kristen and his father, but acknowledged that there were firearms at Kinvarra and that Kristen owned a couple of them. She also indicated that she had seen Kristen carrying a gun whilst he was on the property. Ms Millard also gave evidence of an abusive phone call between Michael Gardner (senior) and Kristen when Michael Gardner (senior) went ‘ballistic’ about the fact that Kristen was not doing his job in deseeding the male plants and “there was a yellow mist going up the hill from the pollen from the male plants”.^[2] She stated, however, that Kristen’s main role was in taking photographs of the crop, of which his father ultimately disapproved. She indicated that there had then been a falling out between the applicant and his father in late 2005 and Kristen returned to Canada saying he was sick and tired of being pushed around and bullied by his father.

12. The evidence of Laura Millard was that she visited Kinvarra in 2005 and that Michael Gardner senior would make them go there to plant and to male the crop. She stated that others who were present were Samuel Millard, her mother Kelly, and Ammie Millard as well as the applicant. She stated the applicant taught them to male/de-weed the crop and that “he was the main one giving the instructions” and that “he was helping as well”.^[3] She stated that she saw the applicant there on at least three or four occasions, possibly more, “but less than 10”.^[4] She stated that he was not the “boss” but he was taking photos. She does not recall him being present when harvesting was taking place. When asked if he was only there “rarely” she replied that, “[h]e was there enough to do the work as well”.^[5]

13. The evidence of Samuel Millard was that, whilst he saw the applicant taking photos, he did not see him working the crop.

14. The evidence of Ammie Millard was that the applicant was present at the property on every occasion she went there in the first season, but that he then went back to Canada. She stated that he showed them how to “male” the plants and was involved in “get[ting] the tanks and stuff going.”^[6] She indicated that mainly he was just taking photos and identified that some of the photos in the articles had been taken at Kinvarra as she recognised some of the growing areas. She could not recall the applicant being present at harvest time or being involved in harvesting of the crop.

15. Ammie Millard stated that she continued to go out to the property after her mother separated from Michael Gardner (senior) in 2006 and gave evidence of a “planting weekend” in relation to the later crop in 2007, which is the subject of counts three and four. On that occasion some 10,000 plants were planted and she stated that the applicant was present. She also saw him watering the crops. Her evidence was that he was there from late 2007 until 2008 and that he was living “up at the back of the property”.^[7]

16. Michael Gardner (junior) gave evidence at the committal pursuant to an s 13A undertaking. In his evidence he outlined the relationship between him and his father and the rest of the family. He stated he moved out to the property in mid 2006 and that season they harvested about 1400 pounds of cannabis which his father sold in Nimbin.

17. He then left the property and when he returned in October 2007 Kristen, who he had not seen for about eight years, was living there. He gave evidence about the role that Kristen played at Kinvarra in late 2007 and early 2008. He stated that he was involved in a planting weekend in late 2007 when they planted some 10,000 plants. He also explained that they subsequently put up drying sheds and that he and Kristen built a second base camp in order to be closer to the patch they were tending. He stated that when he arrived back at the property in late 2007 there was a new living area “up the back” and “a new patch had been pushed”. He explained that he and Kristen lived there at that time and that they put up a fence around the patch. He also put in new sprinkler heads. He stated that Kristen was primarily involved with filming the crop and ‘helping out’ which he explained in the following terms:

“He did a lot of - he - um, he wanted to make a document - a documentary so he had his camera there and he spent a lot of time on that. Um, yeah.

Yep. So just putting that aside, other than the photography and the documentary work, was he assisting you in any of the other tasks manually that you were doing around the property?-- Yeah, he'd help out, help out about, yeah um, helped me when I put the fence up, um he would have helped with the pipe, yeah.

Just going back a step. You talked about how there'd been a campsite set up and the additional crop cleared, do you know who was involved in doing those tasks?-- I know Kristen said he put up the campsite.”^[8]

18. Michael Gardner (junior) detailed the applicant’s activities in filming the crop in order to make a documentary about cannabis production indicating that there was over 300 hours of film. He also stated that one of Kristen’s friends from the United States came out to be interviewed in the film. He explained that Kristen filmed some of the harvesting, but that he left the property around May 2008, a month before the property was raided by police in June 2008. He explained the purpose of filming the crop as follows:

“I mean he didn’t want to – he didn’t want to grow, he wanted a different way to make money. He wanted to basically to have an income through that. I mean he – like he wanted to, yeah, um, and to have some insurance against the old man.

All right? - - Yeah. I mean basically they didn’t trust each other very much, it was a – um, a sort of break down from of, you know, from whatever happened those years before.

All right. But from Kristen’s perspective, you understood from what he said to you that he didn’t want to be involved in cannabis crops anymore, he wanted to – if he could – make a living out of his love for filming and photography? - - That’s right, yeah.”^[9]

19. Michael Gardner (junior) also gave evidence that names “Joe Walsh” and “Boy Scout” were names used by Kristen. Michael Gardner (junior) stated that he had an agreement with his father whereby he would benefit by receiving a percentage of the crop but he was not aware if Kristen had a similar agreement. He also confirmed that there was friction in the family as they considered that Kristen was not carrying his fair share of the workload given he was always filming.

The articles

20. The 11 articles^[10] are in evidence in this application and are to be found in Issues 58, 60, 62 63, 64 and 66 of Cannabis Culture Marijuana Magazine published from December 2005 to June 2007 and are written by either “Joe Walsh” or “Boy Scout”. The details of those articles and the exact publication dates are as follows:

“Cannabis Culture…Marijuana Magazine” Issue 58 December/January 05/06

Australian bush paradisephotos and story by Joe Walsh

“Cannabis Culture…Marijuana Magazine” Issue 60 May/June 2006

Australian bush paradise 2photos and story by Joe Walsh

“Cannabis Culture…Marijuana Magazine” Issue 62 September/October 2006

Harvesting in the Bush – when disaster strikesby Joe Walsh

How to Harvest properlyBy Joe Walsh

“Cannabis Culture…Marijuana Magazine” Issue 63 November/December 2006

Humboldt Harvestby Boy Scout

Seattle’s Best Budsphotos by Boy Scout

“Cannabis Culture…Marijuana Magazine” Issue 64 January/February 2007

Humboldt Heaven Indoorby Boy Scout and Ema/photos by Boy Scout

Humboldt Heaven Outdoorby Boy Scout

Manicuring 100 lbs of Potby Joe Walsh

Manicuring When Wetby Boy Scout

“Cannabis Culture…Marijuana Magazine” Issue 66 May/June 2007

Article and photographs about Ieisha (growing cannabis, glassblowing and music group, PYRX) by Boy Scout

Submissions for the respondent

21. The Crown argues that the 11 articles are admissible for three different but inter-related reasons.

1. Parts of the articles are direct confessions by the defendant of his involvement in the cannabis cultivations at Kinvarra and the trafficking of that cannabis. 

2. Parts of the articles relate to the applicant’s concurrent partnership in trafficking in cannabis with his father, Michael Gardner senior, in northern New South Wales, which was continuing contemporaneously with the Queensland trafficking and which, on the authority of R v Goulden,^[11] forms part of the Queensland trafficking.

3. Parts of the articles relate to the defendant’s personal skill and administration expertise in the growing and processing of large scale cannabis crops for commercial sale. 

22. Counsel argues that the three bases of admissibility are interlinked because parts of those articles, which constitute a direct confession by the applicant as to his involvement at Kinvarra, cannot be properly understood without knowledge of his partnership with Michael Gardner (senior), as well as his skill level, which was greater than Mr Gardner (senior)’s in the large scale cultivation processing of cannabis. Counsel argues that the fact the applicant’s activities in New South Wales were simultaneous with those in Queensland is important, and because the conduct was occurring across State lines, this does not render the evidence any less relevant.

23. Essentially the Crown contends that the evidence constitutes direct admissions of the applicant’s role in the cultivation and production of cannabis and relates to both the Qld and NSW activities conducted in partnership. Alternatively it is argued that if the NSW partnership is not relevant then the evidence explains the applicant’s role in advising and assisting in relation to the Qld cultivation.

24. Counsel argued that the articles are relevant because they explain the relationship between father and son. The Crown’s argument was in the following terms:

“MR POWER:   Your Honour, I think the critical issue is that if Michael Gardner's evidence were accepted in relation to the second period of trafficking, then that would be one situation, but it's not, and so what's going to happen on any trial is that Michael Gardner Junior is going to be called a liar, he's going to be told that he's falsely blaming Christian (sic) for tasks that he himself performed or other people performed, and that he's a liar. 

His account makes it very clear that although Gardner Senior was the controlling force, others had roles to play, and that there were a sharing of profits, in anticipative profits, and what he said at the committal proceedings is quite in accordance with what he said in his statement.  It's not that Christian (sic) Gardner could have just unilaterally decided to close down Kinvarra, but his expertise was being used, and based on what Michael Gardner says, he was very actively involved in cultivating the crops. 

Now, we've got a situation where the Crown case with regards to the second period relies on Michael Gardner, but it also relies on an understanding of the relationship between this defendant and Michael Gardner Senior, and what the articles show is that they were in a business relationship.  It's not to say that they were in a business relationship that was completely equal, but it was certainly a business relationship. 

Now, in order to understand that first period of trafficking it's necessary to understand the business relationship between the two of them preceding this where (a) the defendant has felt cheated, implicitly has been promised something, was aware that the money that he regarded as being his share was going to be used to purchase property.  He's now come on to a property in Queensland, the Kinvarra property, and done things to aid his father.

Now, it's impossible, really, for that evidence to be properly adduced without understanding the preceding business relationships between him and his father, and also in earlier articles the detailed description of his much greater technical knowledge.”^[12]

25. The Crown argues that because the articles relating to events in NSW are being led as a direct part of the Crown case to indicate ongoing trafficking by the applicant and to prove his expert knowledge that evidence is admissible without any reference to the exclusionary principles of propensity evidence as outlined in Pfennig v The Queen.^[13] The Crown also argues that in any event the test in Pfenning would be satisfied.

The applicant’s submissions

26. For the purposes of this application, the applicant concedes he was the writer of the articles, but argues that the articles should be excluded as they have no relevance to any facts that the prosecution seeks to prove. Counsel for the applicant argues that careful analysis of the articles written by “Joe Walsh” indicate that the criminal activities referred to occurred at a different property in New South Wales and not at the Kinvarra property near Inglewood in Queensland. It is also argued that the evidence of Michael Gardner (senior)’s ex wife Kelly Millard also indicates that that location referred to in the articles was in New South Wales and not Queensland.

27. Accordingly, as the prosecution has charged the applicant only with trafficking at Inglewood, it is argued that any admissions in the articles which relate to activity in New South Wales, or at a place unknown in the bush, can have no probative value whatsoever because they relate to separate and distinct criminal activity.

28. Counsel for the applicant also argues that an analysis of the “Joe Walsh” articles reveals that they clearly refer to a period of time prior to the purchase of Kinvarra. It is also argued that the other articles published under the name “Boy Scout” relate to activities of other persons carried out overseas.

29. Counsel for the applicant relies on the decision in R v Hasler ex parte Attorney‑General (Qld),^[14] where Connolly J stated, “Evidence which shows no more than tendency or disposition to commit the offence charged contravenes a fundamental rule of the criminal law”.^[15]  Connolly J continued by referring to the decision of the Privy Council in Noor Mohamed v The King:^[16]

“It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.”^[17] 

30. Counsel for the applicant also relied on the decision of Gibbs J in Driscoll v R:^[18]

“[29]It has long been established that the judge presiding at a criminal trial has a discretion to exclude evidence if the strict rules of admissibility would operate unfairly against the accused.  The exercise of this discretion is particularly called for if the evidence has little or no weight, but may be gravely prejudicial to the accused.”

31. Counsel argues that the only parts of any of the articles that can be linked in time to counts one and two on the indictment (which are alleged to have occurred in 2005) are in Issue 58, December/January 05-06.

32. Counsel for the applicant argues that, apart from those areas of accepted admissibility and relevance, the rest of the articles, which the prosecution wishes to rely on, have no relevance whatsoever to the question of whether or not the applicant was involved in the activities at Kinvarra in 2005, which are the subject of Counts 1 and 2. Counsel also argues that the only possible use that could be made of the material is to identify the applicant as a commercial cannabis grower and therefore the articles would be relied upon by the prosecution as evidence of a tendency or a criminal disposition unrelated to the prosecution which he faces. Counsel for the applicant argues that the evidence is irrelevant to the question as to whether the applicant was involved at Kinvarra, is gravely prejudicial and should be excluded.

33. Even in relation to the articles which are relevant and admissible, counsel argues that in the exercise of the discretion, the articles should be excluded because they carry only slight probative value and are highly prejudicial. Counsel argues that what the articles establish are an admission to being involved at Kinvarra in relation to the removal of some of the male plants, but it does not in any way implicate him in planting, harvesting, manicuring or the commercial exploitation of the crop. Accordingly, it is argued it is only of slight probative value.

34. It is also argued that, as the articles all pre-date Counts 3 and 4, they are highly prejudicial and there is a high potential for the evidence to overwhelm the jury and the risk of misuse is real. Counsel argues that the prejudicial effect of the evidence is out of proportion to its true evidential value.

Should the articles be excluded?

35. The four count indictment relates to two distinct periods. One period was in 2005, which was essentially a nine month period from 1 January to 1 September 2005. The second period is also a nine month period from 9 September 2007 until 30 June 2008. There is no doubt that the articles refer to some periods of time prior to the trafficking and production periods charged given that the articles refer to events going back to 2001. There is also no doubt that most of the articles refer to activities undertaken in New South Wales and California and not to Inglewood, the place of the current trafficking and production charges. Are the articles nonetheless relevant and admissible?

36. I have read all of the articles in question and in my view the articles fall into three groups. In the first group are the articles written by the applicant in the name of “Boy Scout” which refer to people and activities completely unrelated to Australia and indeed the applicant other than the fact he is the author of the article and they relate in some general way to cannabis. In my view theses articles are completely irrelevant to the present charges and should be excluded. In this group are the six articles by “Boy Scout” in Issues 63, 64 and 66. To the extent that they could possibly contain some marginal relevance I consider they should be excluded in the exercise of the discretion as the prejudicial effect outweighs their probative value. In the second group are articles written by the applicant under the name of “Joe Walsh” which outline his expertise and knowledge in relation to cannabis production in Australia. I consider that this group of articles is relevant and admissible. In this group are the articles which I consider contain either direct admissions of the applicant’s involvement with drug crops at Kinvarra or outline the history of the business relationship with his father which I consider to be an essential element of the charges. In my view the articles in the second and third group which comprise five articles in Issues 58, 60, 62 and 64 are relevant and admissible. I shall now outline my reasons for those conclusions.

The articles which are irrelevant and inadmissible

37. In the first group of six articles are the articles all authored under the hand of “Boy Scout”.

“Cannabis Culture Marijuana Magazine” Issue 63 November/December 2006
Humboldt Harvest by Boy Scout             

Seattle’s Best Budsphotos by Boy Scout

38. In my view nothing in the article Humboldt Harvest is relevant to the charges against the applicant. The article relates to growing medicinal marijuana in California on certificates provided by the Government. It also refers to a campaign against marijuana planting. In my view this article should be excluded as completely irrelevant.

39. I also consider the second article in relation to Seattle’s Best Buds should also be excluded as it simply documents the seed bank that he set up to document strains of cannabis and to enable him to try new buds. In my view this is not relevant to the charges. It clearly relates to Seattle’s database of cannabis plants and of the 64 different varieties that had been identified.

“Cannabis Culture…Marijuana Magazine” Issue 64 January/February 2007

Humboldt Heaven Indoorby Boy Scout and Ema/photos by Boy Scout

Humboldt Heaven Outdoorby Boy Scout

Manicuring When Wetby Boy Scout

40. The article in Issue 64 of Cannabis Culture, under the heading “Humboldt Heaven Indoor”, reads as follows:

“When I was in the hills of Humboldt County photographing the outdoor beauties (check out Humboldt Heaven: Outdoors which begins on page 52), the grower casually mentioned that his good friend Ema had an indoor operation with some of the exact same genetics. Would I like to document it for Cannabis Culture magazine? Of Course!

As I took these photos, Ema told me about his garden and being a grower in Humboldt County.”

41. The article then outlined how the grower, Ema, possesses “four 215 medical marijuana permit cards that allow me to grow for three other medical exemptees, as well as myself”.^[19] The grower outlines why he grows indoors and how he copes with such pests as spiders, mites and mildew by using neem oil^[20] and states:

“Even though this is a legal grow, thieves are always sniffing around for an opportunity, so I need to remain clandestine. Grow-raiders are more of a threat to Humboldt gardeners than police.”^[21]

The article continues:

“I feel that being in Humboldt County is like attending a college of cannabis growing because there are so many people involved in the same hobby. If the good part about Humboldt is the wealth of information, the bad part is the cost of growing! … So of course, being able to legally grow medicine that works is liberating for me.”^[22]

42. The article also referred to keeping Tourmaline crystals and quartz clusters in his room and to playing music to the plants. Each page of the article is covered in photographs of cannabis plants and it is apparent that the author of the article has taken the photographs. However, the grower of the cannabis is “Ema”. In my view, there is nothing in this article which is of any relevance to the current charges and it should be excluded.

43. The article Humboldt Heaven Outdoor by “Boy Scout” documents how the applicant  spent several weeks photographing in what is sometimes call “the Emerald Triangle (Humboldt, Trinity and Mendocino counties of California)” and then “an outdoor grower” offered to give him a tour of his patch. “I was driven through giant redwood forests, down dusty winding roads, up steep mountain ranges, then into a lovely little nook in the side of a hill. The garden was efficiently laid out on the shoulder of the hill in a clearing, and received plenty of sunlight.”^[23]

44. The article states: “On the following pages, the gardener describes growing in the great outdoors of Humboldt County.” There are numerous photographs on each page and gives an insight into the 2006 growing year, yield and profitability. It reads:^[24]

“All growers in the Emerald Triangle were very satisfied with the outdoor harvest this year. I brought in just 25 pounds total in 2005, but the dry crop total for 2006 was between 60 and 70 pounds. My weed sells at a wholesale rate between $3,200 and $3,600 US per pound. … My outdoor garden is large enough to employ between eight and ten people four months out of the year, eight hours a day at $20 an hour (or better). I feel I’m just as economically supportive of the community as local restaurants.

I have been growing for about ten years …”

45. Again, it appears that the applicant is not the grower but the photographer. Accordingly, there is nothing in this article which I consider is of any real relevance to the current charges.

46. Accordingly, the article by “Boy Scout” in Issue 64 should be excluded.

“Cannabis Culture Marijuana Magazine” Issue 66 May/June 2007

Article and photographs about Ieisha (growing cannabis, glassblowing and music group, PYRX) by Boy Scout             

47. The article in Issue 66 is also in my view completely irrelevant to the current charges and relates to someone who is completely unconnected with the charges. It should therefore be excluded.

48. In the second group are the five articles which I consider to be relevant and admissible because they are, in my view, an essential component of the Crown case in relation to the current charges.

The articles which are relevant

“Cannabis Culture…Marijuana Magazine” Issue 58 December/January 05/06

Australian bush paradisephotos and story by Joe Walsh

49. The first of the articles in Cannabis Culture, Issue 58, in December/January 05-06 entitled “Australian bush paradise” recites the genesis and subsequent history of the business relationship between the applicant and his father. The applicant writes that his father got him involved in the cultivation of cannabis in early November 2001. His father had planted a crop in September of that year and had planted 900 square metres with cannabis plants. He states that by November 2001 the plants were about two feet high and his father suggested that he “give him a hand with his growing venture” and “If it worked we could split the profits”. It is clear from the article that Michael Gardner (senior) was dependent on the applicant’s skill, expertise and hard work. Michael Gardner (senior) had planted the plants too close together and the applicant had to assist by thinning the plants out. He also transplanted some of the pulled plants into an area that he had found. He eventually transplanted one and a-half thousand plants. He then lived out in the bush for six months and stated that for three days a week he helped his father in his patch and for four days a week he lived and worked in his own patch.

50. That article also identified that his father had very poor eyesight and that when it came to removing male plants he would only be able to identify the male plant when it was “almost too late”.^[25]  He also indicated that his father had a bad back so he did all of the hard physical work.  He then stated that after he had completely harvested his father’s patch he went and took care of his own patch. He stated that at the end of the season they harvested a total of 1,500 kilograms of wet pot, which became 160 kilograms of dried pot, which became 75 kilograms of manicured pot. He stated that in the first year he cleared around $150,000 but only kept $50,000 for himself as the rest went into “getting things ready for the next year”. He continued:^[26]

“It is very expensive to grow pot: I built sheds, bought vehicles and tools, acquired firearms, set up an extensive radio network, opened a business (on paper), rented a house, developed relationships with local businesses, and generally had to become a regular good citizen.

Then to carry it all off, while still growing a patch of significant proportions, is actually a juggling trick. But as I said earlier, it is a business, and that is the only way to approach the job.”

51. In my view that article in Issue 58 is relevant to the current charges as it explains the business relationship between father and son. Significantly it also shows the applicant’s expertise which his father relied upon. It also shows that he invested money in the crop for the following year and that he and his father had agreed to “split the profits”.

52. I consider the article to be relevant to the current charges.

“Cannabis Culture…Marijuana Magazine” Issue 60 May/June 2006

Australian bush paradise 2photos and story by Joe Walsh

53. The subsequent article in Issue 60 entitled “Australian bush paradise 2” was published in May/June 2006 and set out in great detail the evolution of the cannabis plantations and the methods and equipment used over four seasons. It would seem to me that the article contains direct admissions not only of the applicant’s involvement in his own cannabis patch but of his ongoing involvement and interrelationship with his father and his father’s crops. It also outlined his father’s continuing reliance upon him and he refers to the second season where he and his father worked together and the fact that they concentrated on growing in one location.

54. The article also sets out in extensive detail the compound that the applicant built on his patch and outlines his excavation of the site and the equipment that he set up including a generator, broadband scanner as well as lights and a gas burner. He also built an underground storage shed which had shelves and a central walkway access. He then describes setting up an oil lab which was difficult ‘as Dad and I wanted a big area with good airflow as we would be working with some pretty volatile chemicals.”^[27]

55. The article also states that the results of the crop were poor, given that it was a drought year. He indicated that they produced a total of 100 pounds in that season which was just “$200,000 Australian dollars between us.” He indicated that because of the poor returns his father received the bulk of the proceeds of that crop. He stated:^[28]

“My father had a wife and five other kids, so it was very tight for him. I ended up giving him most of the money from my share. $70,000 in fact, leaving me $30,000 to live on ’til the next season.”

56. The article in Issue 60 then referred to the fact that problems arose in their third season and he stated that “we had decided that to grow pot in a proper commercial way we needed to have road access to the patch. That meant we needed to buy property. It needed to be of big enough size that no one would realize what was happening; and had to look legit. That meant big size and remote location and the property had to be able to generate an honest income. Thankfully we found a perfect place.”^[29]

57. It is clear from the article that the cost of the property meant that the applicant had to forego his profits for the season as it was needed to purchase the property. His father told him “You’ll just have to get by until next year somehow.” The applicant left. However by November 2004 this second article refers once again to the ongoing business relationship between the applicant and Michael Gardner (senior). The article recites that in November 2004, the applicant has received an email from his father in which Michael Gardner (senior) indicated that “he had secured the property we wanted with the last year’s proceeds, was growing a mega patch of his own, and had no time to take care of the old site as well.” It is clear that in June 2004 Michael Gardner (senior) had purchased Kinvarra.

58. The article states that Michael Gardner (senior) had thrown several thousand seeds into the old patch and that the applicant could have that patch if he returned. The indication was “as he had thrown in the seed, he said I could keep the first 100 pounds and then anything over that would be split 50/50 with him”^[30] (my emphasis). The article outlines therefore the basis of their ongoing business relationship as well as confirming an existing business relationship given the reference to “last year’s proceeds and the fact that last years proceeds had funded the purchase of Kinvarra in June 2004.

59. Australian Customs records are in evidence and indicate that Kristen Gardner returned to Australia on 18 January 2005.  The article in Issue 60 refers to the applicant visiting a property in January 2005 and states that he was “greeted by the biggest series of patches I have ever seen.  They were huge, all well over an acre in size.  About 100,000 plants!”  In the article^[31] the applicant sets out his concern that the plants would soon be full of seed and that whilst his father’s other children would assist in deseeding the crop, they were only teenagers. He continues:

“the kids did work hard but they were teenagers nonetheless.  Pulling out male cannabis plants on a 35 degree Celsius (95 Fahrenheit) day is painful on the hands and arms … The kids couldn’t work many hours like that, so I started helping.  The plants were getting to be 8 to 10 feet tall!  I helped as much as I could, but my own stuff also needed to be taken care of” (my emphasis).

60. It would seem to me that the article contains a clear admission that the applicant assisted with ‘deseeding’ the crop in 2005 at Kinvarra. Significantly the applicant admits that he took the photos in that article at Kinvarra. He clearly admits he was there at some stage during the relevant period.

61. It is also significant in my view that the articles do outline the history of the business relationship between the applicant and his father. There is also a clear statement in the article about the profit sharing in relation to the crop on his patch. He states:^[32]

“When he asked me how much I thought I had in my patch, I answered truthfully, ‘around 300 pounds’ and he said, ‘don’t forget to put aside my hundred’. I was expecting this as we had made an agreement, so I suggested that I couldn’t forget the fact that he took my share of the last years’ crop, and the $70,000 owed from the season before that. I thought that from his point of view it was a great deal. He did not.

‘How dare you try to rip me of what’s mine fair and square,’ he said heatedly. It followed along the line of ‘he had done everything for me’ and what do I do but ‘try to swindle him’. He insisted I had to pay him what was his. As for the previous years, it was me that ‘had screwed up the third season’ so I had to pay, according to him.

Well, I had been taking photos of all the patches as they grew and he had let me do this, with concern that I not capture any identifying landmarks. I assured him that I wouldn’t, as it would also land me in trouble. So during our dispute about the money, he demanded I give him the hundreds of photos, saying that he could no longer trust me, and the pictures were his. I said that as he had given me permission to take the photos, they were mine and there was no way I would give them up. I gave him his pot and said I would never work with him again.”

62. At the end of the article there is a schedule of seasons, amounts and total gains and he details four years of amounts harvested and profit as follows:^[33]

“Seasons, Amounts and Total Gains

1^st year

150 lbs. each

gross: $120,000 for me;

$150,000 for dad

2^nd year

100 lbs. total (drought year)

gross: $30,000 for me;

$70,000 for dad

3^rd year

200 lbs. together

(seeded batch)

gross: $18,000 for me;

$200,000 for dad

4^th year

200 lbs. for me;

1,000+ lbs. for dad

gross: $360,000 for me;

$1,000,000 for dad”

63. It would seem to me that the article in Issue 60 does provide a detailed history of the business relationship. That relationship indicates a history of cooperation, an explicit reference to an agreement with his father to share profits, as well as clear admissions of helping to deseed and harvest his father’s crop at Kinvarra. Those admissions provide a basis for the conclusion that the applicant was not only in business with his father but that there were extensive profits and that the partnership continued over many years.

64. I consider that the article is therefore relevant to the current charges.

“Cannabis Culture…Marijuana Magazine” Issue 62 September/October 2006

Harvesting in the Bush – when disaster strikesby Joe Walsh

65. This next article refers to difficulties encountered when the applicant’s freshly harvested crop was subjected to 24 hours of solid rain and there was mould everywhere the next day.^[34] He also described coping with a crop when it rained continually for a month. The article outlined how he coped in those circumstances. He explained the process he used in trying to dry out the crops. He described driving into the outback and drying it all out in the arid semi-desert air.^[35] It is clear that the experience he was recounting occurred in his first season when he did not have the time or money to set up a drying facility. There is no doubt that that experience occurred whilst he was cultivating a plot in New South Wales and before there was any connection with the Kinvarra crop.

66. In my view however this article is relevant to the current charges as it does show his expertise in drying a wet crop. The article is therefore relevant to the current charges.

“Cannabis Culture…Marijuana Magazine” Issue 62 September/October 2006

How to Harvest properly.By Joe Walsh

67. This article was also in Issue 62 and essentially followed on from the first article in Issue 62 which recounted the disaster which occurred when the crop got wet. This article goes into detail as to how to cut the crop without damaging “the trichones” which he indicates are the most valuable part of the plant. The article also explains how to dry the cut crop. He also explains in detail how he made his first drying shed with a timber frame and heavy duty black builders’ plastic. He explained how to lift the sides during the day so that the cool breeze could dry the plants and how the pot should be left in total darkness for the whole time of curing and as cool as possible because heat destroys the THC.^[36]

68. The applicant then explained in the article how he developed a method involving excavating and creating an underground shed to house a small generator. He explained how putting the generator underground muffled the sound. He explained how the generator could then pump a constant stream of warm dry air into the harvested plants. He continued, “The generator had electric lines going to the heap of power outlets that connected industrial fans, inline fans, dehumidifiers and three fluorescent lights controlled by a switch.”^[37] He then revealed how he could dry 50 pounds of cannabis in three days and how he singlehandedly dried an entire crop. It is clear that this article related to his second season of growing in the bush.

69. It is clear from the article that this description of building the drying sheds related to the second season and described with photographs the set up he had on that property. It would seem clear from the articles and the accompanying photographs that they relate solely to the bush plot in New South Wales however in my view they are relevant to the current charges as Michael Gardner (junior) gave evidence at the committal to the fact that he and the applicant put up drying sheds at Kinvarra and that the applicant had set up a base camp “up the back” of the property by the time he arrived in October 2007.^[38]

70. The applicant’s admitted skill and prior experience in completing such tasks are relevant in my view to that issue which will no doubt go to the heart of the production charge and the issue of the extent and sophistication of the bush camp at Kinvarra.

“Cannabis Culture…Marijuana Magazine” Issue 64 January/February 2007

Manicuring 100 lbs of Potby Joe Walsh

71. I consider that this article entitled “Manicuring 100 lbs of Pot”, which is among the four articles in Issue 64, is relevant. In this article there is a connection to the article Aussie Bush Paradise referred to in Issue 58 and it gives tips on how to “manicure” a cannabis crop. In the article the applicant describes how after his first season he would no longer manicure the crop but would get in manicurists. He explains how he went to Nimbin to recruit them and the process that he adopted in relation to their recruitment, as well as the prices paid and how he tested the skill levels.^[39]

72. The article refers to the fact that his father had dropped him off in Nimbin in order to recruit the manicurists during the second season.^[40] In my view this article is relevant as it outlines his methodology and interrelationship with his father.

Are the five relevant articles admissible?

73. Clearly then there are five articles written by ‘Joe Walsh’ in Issues 58, 60 and 64 which explain the applicant’s partnership with his father, his method of operating and his level of expertise. I consider that those articles contain evidence which is not only relevant but is strongly probative of the prosecution case and are accordingly admissible without reference to the principles stated in Pfenning v The Queen.^[41]

74. In this regard I note that in R v Domokos & Ors^[42] Doyle CJ considered the admissibility of certain evidence in a Commonwealth drug trial involving the importation of ecstasy. The parcels the subject of the charge had arrived in April 2000 and May 2000. The prosecution case was that there was an overall enterprise involving sending money overseas, obtaining drugs and then sending the drugs to fictitious persons at genuine addresses linked to the accused. Evidence was led of money transfers between February and June 2000 prior to the charges as well as evidence of parcels being received that were not the basis of any charge. All of that evidence was subject to a challenge in relation to its admissibility. The prosecutor relied on the evidence as part of the ongoing enterprise and said that the evidence provided a context or background against which the evidence relating to the specific counts on the indictment could be assessed.

75. The prosecutor argued that this evidence could establish “the requisite knowhow, expertise, context to carry out the specific importations”. Doyle CJ considered that not only was the evidence relevant but it pointed strongly to a conclusion of guilt. His Honour continued:

“43I am not persuaded that the challenged evidence had to satisfy the high standard that applies to the admission of similar fact evidence, as established by the High Court in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461. The test for the admissibility of such evidence was described by Mason CJ, Deane and Dawson JJ as follows at 481-482:

... [T]he basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged. In other words, for propensity or similar fact evidence to be admissible, the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged.

I discussed this principle, and the circumstances in which it applies, at some length in R v Palaga [2001] SASC 174; (2001) 80 SASR 19 at [38] – [54]. I will not repeat that discussion here. There I rejected a submission that whenever evidence discloses the commission of an offence other than the offence charged, and the evidence is tendered in proof of an offence, that evidence must meet the test stated in Pfennig. I drew on my reasons in R v Nieterink (1999) 76 SASR 56, and I do so again. On this point I refer also to the reasons of this Court in Burns and Collins [2001] SASC 263; (2001) 123 A Crim R 226 at [37] – [41].

44Because of the manner in which the challenged evidence was used in the present case, I consider that it does not attract the principle stated in Pfennig. The evidence was not used, as similar fact evidence is often used, to establish a pattern or distinctive feature of offending conduct, the presence of which in the case of incidents charged could then be used to identify the appellants as the offenders, the appellants having been identified by other evidence as the offenders in instances in which the pattern or distinctive feature was present. Nor was the evidence used to argue that if the appellants imported drugs in the Marinescu and Roberts parcels, it was improbable that some person other than the appellants committed the offences charged. The challenged evidence was not used to prove a propensity to commit a crime of a particular type, or a crime involving a particular person. When evidence of other offences is used in those ways, the principle in Pfennig is attracted.”

45In the present case, as in Palaga, the challenged evidence was used in a different way. It was used to prove a course of conduct over a period of about eight months. The course of conduct involved the sending of money overseas by the appellants and their associates, and the sending of parcels to addresses to which the appellants were linked but using false names. When the whole course of conduct is surveyed, with the other circumstantial evidence, in particular the evidence of associations between the appellants, the whole picture, including the challenged evidence, has a persuasive effect. To my mind this is a case of proving something akin to an ongoing business enterprise, the existence of which then gives to things occurring in the course of that enterprise a significance that they would not otherwise have.”

46For those reasons I consider that the evidence was relevant, was strongly probative of the prosecution case, and was admissible without reference to the exclusionary principle stated in Pfennig.”

76. In R v Palaga^[43] the defendant was charged with a number of offences involving the production of cannabis namely producing 646 plants at Bedford Park, attempting to produce at Hallett Cove by the propagation of cuttings and producing 8 plants at Hallett Cove. He pleaded not guilty to the first two charges but guilty to the third charge. It was argued that the evidence of cuttings at Hallett Cove was not admissible in proof of guilt of the offences at Bedford Park. Doyle CJ held (Nyland J concurring and Gray J concurring in the result) that it is not true in law that whenever evidence discloses the commission of an offence other than the offence charged and the evidence is tendered in proof of the former offence the evidence is propensity evidence. His Honour concluded that evidence of the cultivation of cannabis seedlings in count 2 was admissible in relation to count 1 as circumstantial evidence tending to show means, knowledge and involvement in two ways:  first, to reject the claim by the defence that the appellant had no involvement in the first crop; and secondly, that he was producing plants at one location in order to complete growing them at a second location. His Honour stated that the jury was not invited to reason that the evidence on count 2 showed that the appellant was the type of person likely to be involved in the crime alleged in count 1 or any other similar form of reasoning which invited application of the principles involved in propensity evidence.

77. I am satisfied that for similar reasons the articles indicate an ongoing enterprise with his father and a level of skill and expertise the existence of which then gives to things occurring in the course of that enterprise a significance that they would not otherwise have. In my view those articles are a necessary element in the case as argued by the Crown.

78. As Mc Hugh J stated in Harriman v The Queen:^[44]

“Moreover, circumstantial evidence, not amounting to similar fact evidence or “relationship” evidence, may be admissible although it reveals other criminal conduct. Evidence of previous crimes of the accused may be admissible because it supplies the motive for the crime charged or because it identifies the accused with the commission of the crime. It is a commonplace in trials for murder or assault for evidence to be tendered to show that the motive for the killing or the assault was a dispute over the proceeds of other crimes or a fear that the victim would inform on the accused in relation to other crimes: cf. Reg. v. Griffin [No.1] (17). In Reg. v. O'Meally [No. 2] (18), the Full Court held that evidence which showed that part of the proceeds of three robberies was found at the scene in the possession of the accused was correctly admitted. The evidence was circumstantial evidence which tended to identify the accused as the murderer.

Moreover, evidence may be admissible, although disclosing criminal conduct on the part of the accused, because it tends to corroborate the truth of part of a witness’ evidence.”^[45]

79. I am not however satisfied that those five articles would necessarily satisfy the strict test in Pfenning v The Queen, but do not consider it necessary to consider that basis for admissibility given they have been admitted on a different basis.

80. The evidence of all of the witnesses was that the applicant was at Kinvarra taking photos and the photos in the article have been identified by the witnesses as being photos of Kinvarra. The photos are clearly admissions that he was at the property at the various stages of the crop production that the photos were taken.

81. I can see no basis for the exercise of the discretion to exclude any of those five articles on discretionary grounds.

82. The application to exclude the articles by “Joe Walsh” in Cannabis Culture Magazine Issues 58, 60, 62 and 64 is therefore refused.

83. The application to exclude the articles in Cannabis Culture Magazine by “Boy Scout” in Issues 63, 64 and 66 is granted.

ORDERS

1. The articles in Cannabis Culture Magazine by “Boy Scout” in Issues 63, 64 and 66 are excluded from trial.