In a prosecution for cultivating a commercial quantity of cannabis under s 72A of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), the Crown must prove beyond reasonable doubt that the accused knew or believed that the number of plants was not less than 100 (a commercial quantity), and the trial judge must direct the jury on this element even if it is not raised as an issue by the defence. However, failure to give such a direction may not result in a substantial miscarriage of justice where the evidence is overwhelming and the defence was conducted on an all-or-nothing basis. The Gilbert v The Queen principle concerning the assumption that juries would not adopt a mechanistic approach to fact-finding is confined to murder cases (or possibly cases where a lesser included offence should have been left to the jury) and does not apply where the lesser offence did not arise on the way the case was presented.
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