Director of Public Prosecutions v Lisi
[2022] VCC 2088
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-01127
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EDON LISI |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | La Trobe Valley |
| DATE OF HEARING: | 27 & 28 October 2022 |
| DATE OF RULING: | 8 November 2022 |
| CASE MAY BE CITED AS: | DPP v Lisi |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 2088 |
REASONS FOR RULING
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Subject: CRIMINAL LAW
Catchwords: Judge Alone Trial – possession of a drug of dependence – permitting the use of land for the cultivation of a drug of dependence – no case to answer on second charge – deeming provision for possession considered – conduct and mental element of possession considered – accused found to have negated both the conduct and mental element
Legislation Cited: Drugs Poisons and Controlled Substances Act 1981 s5
Cases Cited: R v Nguyen [2008] VSCA 172
Sentence: Charge dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Pezzimenti (Judge Alone Trial) Mr M. Taylor (Ruling) | Office of Public Prosecutions |
| For the Accused | Mr H. Rattray (Judge Alone Trial) Mr A. Malkoun (Ruling) | Malkoun & Co Lawyers |
HIS HONOUR:
1Edon Lisi is charged with possession of a drug of dependence, being Cannabis L and permitting the use of land for the cultivation of a drug of dependence. Both charges are brought under the Drugs Poisons and Controlled Substances Act 1981 (the Act).
2At the end of the prosecution’s case, I upheld a no case submission in relation to the second charge but ruled there was a case to answer on the other charge. In doing so, I ruled s 5 of the Act applied in this case. It provides:
‘Without restricting the meaning of the word "possession", any substance shall be deemed for the purposes of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him or is used, enjoyed or controlled by him in any place whatsoever, unless the person satisfies the court to the contrary.’
3The prosecution case comprised an agreed statement of facts (contained in Exhibit 1), eleven other exhibits and the oral evidence of Valon Lisi. The defence case involved the oral evidence of Edon Lisi.
Circumstances
4The agreed statement of facts reads:
‘Edon LISI is the accused in this matter. He has no prior convictions and is entitled to a direction to the effect that he is a person of prior good character.
Valon LISI is the older brother of the accused. He has pleaded guilty to cultivating the cannabis the subject of these proceedings.
Search Warrant and Address
A search warrant was executed at 172 Gordon Road, Yarragon (the address) on 15 December 2020.
Edon LISI had purchased the address earlier that year with settlement occurring on 18 August 2020. As at the date of the execution of the search warrant Edon LISI was the owner of the address. His was the only name on the title of the address .
The address is a residential rural property of approximately 10 acres. On it there is a single dwelling and a number of sheds (see exhibit 2 - 3 aerial photographs of the address depicting the dwelling and sheds).
When police entered the dwelling at about 8:30am, Edon LISI was found asleep in a bedroom.
At the same time police located Valon LISI, exiting the large red steel shed at the back of the address. VaIon was observed to be dripping with sweat and trying to lock the shed with a padlock. After police identified themselves Valon was seen to throw the keys he was holding onto the ground (see exhibit 3 - 3 photographs of the shed, padlock and keys).
The cannabis
Inside the red coloured shed police located Cannabis (see exhibit 4 - certificate of botanist).
Police photographed the cannabis cannabis in situ (see exhibit 5 - 3 photographs of cannabis plants in situ).
Police dismantled the crop and photographed the cannabis after it was removed from the ground (see exhibit 6 -14 photographs of the cannabis plants).
Field interview
Police record their interaction with Edon LISI using body worn camera (BWC footage) (see exhibit 7 - extract of BWC footage). When Edon LISI is asked who is out the back with the plants, he attempts to get up and see and is told to sit down. Edon LISI then answers "I don't know".
Throughout his dealing with police, Edon LISI denies:
a. going out the back of the property;
b. going into the shed;
c. knowing anything about what is in the shed; and
d. knowing anything about any plants.
Occupation at the address
From the date of settlement (18 August 2020) Edon LISI resided at the dwelling on the address at times. He and his family also resided at an address in Hallam. (See Exhibit 8 - Images Obtained from Accused Mobile Phone and Exhibit 9 - Text Message to "Tanya" dated 4 September 2020.
Bunnings Purchases
Valon had an account with Bunnings Warehouse under the name of "Don's Painting". This was his account and used by him. The business "Don's Painting" is registered under Valon's name with ASIC. Analysis of Valon's mobile phone revealed receipts in his email and receipts kept in the "Bunnings Power Pass" phone application.
On 14 September 2020, Valon obtained a quote under the account of Don's Painting for clear, polycarbonate roofing squares ("laser life" roofing).
Valon also made several other purchases from Bunnings under the Don's Painting account.
a. 13 September 2020: rake (Spear and Jackson brand)
b. 23 September 2020: plasterboard and wooden frames
c. 26 September 2020: plasterboard and wooden frames
d. 1 October 2020: roofing related materials (screws)
e. 2 October 2020: roofing related materials (screws, caulking gun, guttering)
f. 17 October 2020: door, and power cables
g. 9 November 2020: watering cans and shade cloths
h. 10 November 2020: duct tape and rope
i. 6 December 2020: extension cables
j. 12 December 2020: duct tape’
5The police analysed the shed. They took fingerprints and DNA swabs. There was no evidence that related Edon Lisi to the scene.
Valon Lisi
6Valon Lisi is the older brother of Edon Lisi. He lives at an address in Hallam with his mother, his brother Edon, Edon's wife and child. He is a carpenter by occupation.
7In February 2022, Valon Lisi was convicted of two charges including cultivation of cannabis, and sentenced to a term of imprisonment.
8He first visited the property at 172 Gordon Road, Yarragon, in September 2020. He wanted to inspect the property his brother had bought. He did so. He also inspected the shed, the subject of this proceeding. He did so without his brother.
9One cannot see the shed from the dwelling. The view is blocked by three other sheds and trees. There are two driveways; one leading to the shed, the other to the dwelling.
10With the permission of his brother, in October 2020, Valon Lisi started using one of the sheds on the property to ostensibly store the machinery and materials of his carpentry and painting business. The former included his trailer and the latter included timber. There were no sheds at his home in Hallam to store those things.
11In mid-October 2020, Valon Lisi planted his crop of cannabis in the shed. This was the first time he had done so. He told no one about his plan. The crop was intended to produce cannabis oil. For several years, his mother used cannabis oil for her mental health issues. She was badly affected by a war in 1999 where 24 members of her family died. Valon Lisi had been buying cannabis oil for his mother. It was costing him too much and he thought he would grow cannabis himself.
12Valon Lisi made alterations to the shed. He removed part of the roof of the shed and replaced it with clear sheets of sky-lighting. This was to provide natural light for his crop. He built frames and plastered the interior of the shed. He installed six ventilation fans to remove the smell of the cannabis from inside the shed. He denied you could smell the cannabis outside the shed.
13Exhibit 3 comprises three aerial photographs. The first and the second show the shed's roof before the installing of the sky-lighting and the third, the shed afterwards. He, that is Valon Lisi, replaced the original roofing inside the shed. Working alone, replacing the roof took, perhaps, three and a half days.
14He then erected wooden frames on most of the walls inside the shed. There were existing frames which he retained. Using a shovel, he dug small holes in the floor to install posts for the frame. After the framing, he then plastered the internal walls. This created a space between the plaster wall and the external wall of the shed.
15The three photographs of Exhibit 5 show the crop, the plastered walls and the ventilation. He used pulleys to install the ventilation. These works were completed by early November 2020. At most it took him five days of 10 hours each day to make these alterations.
16As soon as he could lock the shed, he sowed the cannabis seeds. This occurred before he finished the alterations to the shed. He used a shovel to prepare the soil for the seeds. He watered the seeds by hand, using a jug, every two, three or four days. This meant he attended the property every two, three or four days to water the crop. Sometimes, he stayed at the dwelling on the property and sometimes in the shed. Sometimes, he watered on his way to a workplace. Perhaps twice, he met his brother at the property.
17The water came from an external water tank, which contained rainwater. This water tank was connected by a hose to an internal drum. The flow from the tank to the drum was due to gravity, the tank was higher than the drum.
18He purchased items for the shed through his business, Don's Painting, using his PowerPass account. Exhibit 10 contains copies of tax invoices for purchases at Bunnings. Some of the invoices related to legitimate purchases for his business. He did not identify which ones.
19He purchased two padlocks, one for the door to the shed and the other to a gate leading to the shed. He alone had the keys.
20He provided power to the shed by running an extension cord from a power point in a shed 30 or 40 metres away. He put the cord into conduit and buried the conduit. The trench was about 150 millimetres deep. Digging the trench took about three hours.
21On 15 December 2020, both he and his brother were at the property. He was arrested as he left the shed. His brother was arrested within the dwelling. Valon had been on the property since about midnight.
22He had never told his brother what he was doing in the shed. He was given permission to store his machinery and materials for his business only.
Edon Lisi
23Edon Lisi is the younger brother of Valon Lisi.
24He contracted to buy the property in May 2020. He bought it as an investment property and for his prospective children. Settlement occurred on 18 August 2020. At that time he was living at the address in Hallam with his wife, child, brother and mother. After settlement, he primarily resided at the Hallam address. However on 4 September, he notified Tanya of his new address. He also notified VicRoads, his bank and an electricity provider. Tanya had found him a job with Australia Post. His workplace was in a massive warehouse in Dandenong South. He operated forklift trucks.
25His employment was full time, up to seven days a week and, even 14 consecutive days. The effects of the pandemic was the reason he worked so much. He worked an afternoon shift, starting at midday and ending as late as 1 am.
26After settlement, he first visited the property after 28 August. In the two weeks after settlement, he looked at the buildings on the property including the shed. He knew the shed had a red tin or steel roof. The shed was about 280 centimetres high. The shed was about 100 metres from the dwelling. He denied he could see the roof of the shed from a distance. In the manner of estimates, his evidence about the frequency he attended the property varied between two or three times a month, to once a week or once a fortnight. He would say overnight. His wife and son never stayed there if he was not there. He would clean the inside of the dwelling. He did little gardening. He mowed the lawn once in this period. His mowing took him near the shed. The mower was kept in a bigger shed (see Exhibit 11).
27At no stage after settlement, did he look inside the shed. He did not hear unusual sounds coming from the shed or smell anything from the shed. He never suspected anything untoward was occurring in the shed, including the growing of cannabis.
28He knew his mother used cannabis oil. He was not involved in buying it.
29He saw Valon at the property two or three times. He never asked him why he was there because he already knew about the storage of machinery and materials. He did not ask him what jobs he was working on. Most of the time they lived in the same house at Hallam.
30Apart from the agreed statement of facts, there is evidence derived, in part, from the oral evidence of Edon and Valon Lisi.
31Valon grew his crop in a shed. Using aerial ‘Nearmap’ images, the shed is shown in three images in Exhibit 2. Two of the images show the shed with its reddish roof. The other shows a laser lite roofing to most of the shed's roof. One of the images in Exhibit 3 shows a side of the shed with an open door. The image was taken at ground level. It is not possible to see any part of the roof in that image.
32Edon Lisi contracted to buy the property in May 2020. With settlement on 18 August 2020, he was entitled to vacant possession. This property was bought as an investment and for his children. Throughout the period from 18 August to 15 December 2020, Edon Lisi lived at his mother's home in Hallam. He lived there with his mother, wife, son and Valon Lisi. During this period he worked as a form of contracted work for Australia Post in Dandenong South. Australia Post was very busy at the time and he worked most days of the week and on the afternoon shifts, finishing at about midnight. One imagines he had little time to visit the property in Yarragon.
33Images were taken from his mobile phone. They show him and members of the family on the property at various dates. Although some of the times shown on the images are wrong, the dates were not disputed: 3 October, 8, 25 November, 6, 8 and 14 December. There is a traffic infringement notice alleging an offence on 9 November 2020 at, it appears, Nilma, which is near Warragul. This is consistent with his evidence of visiting once a week or fortnight.
34Valon Lisi conducted a carpentry business. There was no room for his machinery and materials at the Hallam property. There was room at the Yarragon property. He asked for, and was given, permission to store his machinery and materials in the shed. One would expect him to visit the property frequently, given what he was allegedly storing in the shed, one would expect him to place padlocks on the door to the shed and on the gate leading to it.
Legal Considerations
35As I have previously ruled, on 15 December 2020, Edon Lisi was the occupier of the property at 172 Gordon Road, Yarragon. Section 5 of the Act applies to deem him to be the possessor of the drugs on the property that day. After all the evidence, I remain satisfied as to the application of the section.
36To defend the charge of possession following the application of s5, requires Edon Lisi ‘to satisfy the court to the contrary’. This means establishing, on the balance of probabilities, he did not possess the drug according to the common law definition of possession.
37That requires him to establish:
(a) the drug was not actually in his possession or control (the conduct element of possession); or,
(b) he did not intend to possess the drug (the mental element of possession).
38The former requires him to prove the drug was not physically in his custody or was not under his control. Whether it was not in his custody or control is a question of fact. He may not have custody or control: if he did not have the drug on him or within reach; or in a location where he maintained the power to place his hands on it and so have manual custody when he wished.
39The mental element may be established if:
(i)He did not know, or was not aware of the likelihood, that the relevant substance was present; or,
(ii)He did not know, or was not aware of the likelihood that the substance was a drug of dependence; or,
(iii)He did not intend to exercise control over the drug or the place it was kept.
40Counsel for the Director referred to paragraphs from R v Nguyen[1] for the proposition that ‘actual knowledge’ involves knowledge of the actual or likely existence of a relevant substance. 'Likely' in this context means a significant or real chance. A combination of suspicious circumstances and a failure to make inquiry may sustain an inference of knowledge of the actual or likely existence of a relevant substance.
[1][2008] VSCA 172 at [13], [14] and [15]
Discussion
Credit
41I was invited to find the brothers lied in their evidence when they said they could not smell cannabis outside the shed. There were six fans installed by Valon Lisi. Given the size of the crop, one might expect the odour of cannabis to seep from inside the shed. However, I do not know whether the fans dissipated the odour sufficiently to cause it undetectable at ground level outside. I could not find the brothers lied on the strength of an expectation of a smell.
42The aerial images show the grassed areas of the property. The image of 14 December shows Edon's son sitting on a blanket outside the house. One can see glimpses of grass in the background. Counsel submitted if Edon's evidence about mowing the grass only once was truthful, then it occurred near to the date of the image. If not, then his evidence of mowing once was untruthful because of the expected growth.
43I must say the glimpses of grass in the background of the image provide no basis to infer the grass had been mown recently. Although the grass does not appear to be feet deep, one cannot tell how long it is, and then move from there to draw any conclusion as to the timing of its' last mowing. It is too tenuous a basis to draw any inference.
44Counsel submitted Edon Lisi was deliberately evasive in two areas of his evidence: seeing his brother at the property; and spending about a week at the property in December.
45I would not conclude Edon Lisi was deliberately evasive, either on those particulars or generally. Given his vagueness about the frequency of his attendances, it is understandable his answers were less than certain. A similar consideration applies to the second point. This was complicated by the strange times associated with the images. The realisation of those times seemed to disconcert Edon Lisi when giving his evidence. Again, I would not conclude he was deliberately evasive.
46The statement of agreed facts points to Edon Lisi's lack of prior convictions and says he is entitled to a direction to the effect that he is a person of prior good character. This was not amplified during closing submissions.
47Accepting Edon Lisi is a person of good character, there are two ways in which I can use this fact.
48First, I can use it when assessing the credibility of his evidence and his denial of the prosecution case. As a person of good character is generally thought to be more trustworthy than other people, I may be less willing to accept the prosecution's evidence that he was not a person of good character.
49Second, I can use it when determining the likelihood Edon Lisi committed the offence. As it is generally believed a person of good character is unlikely to commit a criminal offence, I may be less willing to accept the prosecution's allegation Edon Lisi committed the offence than I would be if he was not a person of good character.
50In this case, the two ways are really two sides of the same coin. If Edon Lisi's good character bolsters his credit, it has the effect of making it less likely he committed the offence, and more likely his denial of possession is correct. His previous good character does enhance his credibility as a witness.
51Overall, I consider Edon Lisi is a truthful witness.
52Looking at the credit of Valon Lisi, he brought cannabis oil for his mother. It was not suggested he did so illegally. She was unwell and it helped her. He found it too expensive. He intended to use the crop at Yarragon to produce cannabis oil for her. The crop is depicted in the three photographs comprising Exhibit 5. There are many plants, 154, of some maturity, weighing 139.98 kilograms. At first sight, that seems an inordinate number of plants to produce cannabis oil for one person. However, there is no evidence about the production of cannabis oil from cannabis plants. I do not know what the yield of cannabis oil is, relevant to a cannabis plant.
53With Valon Lisi, he is guilty of discreditable conduct in growing this crop. He is not of good character, which means I must treat his evidence cautiously. Even doing so, I did not find his evidence untrustworthy.
Conduct Element
54The Director submits the crop was in a shed where Edon Lisi had the power to put his hands on the drugs. Although secured by what the prosecutor described as the small padlock, it was submitted it would be simple to use or for him to use a pair of bolt-cutters, small axe or something similar to break the lock. He would not be acting illegally in breaking the lock for it is his property, even though the lock was not his, but that of his brother.
55To an extent I agree with Edon Lisi's counsel that the submission is extraordinary in the context of control for it could bring others within the concept of control. I will not go as far as to say anyone could be brought within the concept.
56Edon Lisi permitted his brother to use the shed for what he believed was a lawful purpose. Ostensibly, it was the only use to which the shed would be used. It is surprising to think a locked shed, where Edon Lisi did not possess the key, is a location where he maintained the power to place his hands on the drugs and so have manual custody when he wished. To break into a shed is an impediment to having manual custody whenever he wished. I consider Edon Lisi has negated the conduct element.
Mental Element
57The mental element involves an intention to possess the drug. From Edon Lisi's perspective, he must negate such an intention on the balance of probability.
58Edon Lisi relies on his reaction when first confronted with the allegation. One of the exhibits contained video footage from a camera worn by one of the police members. He has been woken by the entry of the police. His wife and son are present. Among other things, it contains expressions of Edon Lisi's surprise at the allegations.
59There is a second piece of evidence relied upon. If Edon Lisi knew or suspected there was cannabis in the shed, it is unlikely he would bring his wife and son to the property at all or allow them to stay overnight or even bring his mother on one occasion. This is a telling consideration. It is not the actions of a guilty person.
60The brothers lived in the same house in Hallam. Valon Lisi visited the property every two, three or four days, to water the crop. Edon Lisi worked in Dandenong South and visited far less frequently. Valon Lisi ran his own business as a carpenter. Presumably, he travelled from worksite to worksite as part of his business. Would he tell his brother he was travelling to the property? I doubt it, for he was committing a criminal offence on his brother's property.
61When the brothers did run into each other, Edon Lisi did not query his brother as to why he was there. Why? The Director's counsel submits because he already knew or, in saying that he did not query his brother, he is lying. Equally plausible is he knew why his brother was there and the reason was legitimate. After all, they live in the same house and no doubt spoke to each other there.
62One of the aerial images in Exhibit 2 shows the property. At the top of the image is what appears to be an unsealed road. Moving down the image, there appears to be a tennis court, then a dwelling. Then there appears to be a shed, two tanks and two sheds behind them. The sheds appear at the boundary of the property. The distance between the dwelling and the sheds was estimated at 70 to 100 metres. The evidence was that one could not see the red shed from the dwelling and, judging from the image, that could well be so given the presence of the intervening structures and trees.
63At an early stage, Edon Lisi had inspected the property, including the sheds. The Director's counsel submits the roof of the shed is peaked. In Exhibit 3, the image of the side of the shed does not show a peak. It does show a slightly taller building attached to the structure with an open door. The aerial images do show a marked difference between the original roof and the clear light roof. That is the aerial view obtained from a service called Nearmaps. The view from the ground level and outside the shed does not reveal the clear light roof. It does not even give a hint of its' existence. If the existence of a clear light roof is not discernible at ground level then it does not matter the number of attendances made by Edon Lisi on the property until 15 December.
64To provide power to the shed, Valon Lisi ran a power line from another shed to the shed. He dug a channel from one shed to the other, which held the line. Edon Lisi kept his lawn mower in that other shed. If Edon Lisi saw the line or the trench, then he may have queried why there was the need for electrical power. Unfortunately, in his evidence he was not asked whether he knew of the existence of the line, and I could not infer that he did.
65Although there was a forensic examination, there is no such forensic evidence linking Edon Lisi to the shed.
66I am satisfied Edon Lisi has negated the mental element.
67I will dismiss the remaining charge.
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