Lapic v Police No. DCCRM-02-45

LAPIC v POLICE
[2003] SADC 87
Judge Sulan
Criminal

Anita Lapic, the defendant, is charged with possessing cannabis for sale. Particulars of the offence are that on 19 October 2001 at Enfield she knowingly had cannabis, a prohibited substance, in her possession for the purpose of selling it to another person. The prosecution allege that the offence involved in excess of 2 kilograms of cannabis.
The defendant pleaded not guilty and the trial commenced on 31 March 2003. A late application was made for trial by judge alone. Mr Mancini who appeared for the defendant informed the Court that he had discussed the question of trial by judge alone with his client, and he had then forgotten to raise it with her again, until just prior to trial. He candidly admitted that he had overlooked obtaining detailed instructions from his client within the time required for making an election. Mr McEwen who appeared for the prosecution did not oppose the application. I extended the time for the application to be made, dispensed with the rules and ordered trial by judge alone.
I was informed by counsel that if the Information were amended to allege possession for sale or supply the defendant would plead guilty, and there would then be a disputed facts hearing on the question of whether she possessed cannabis for sale or possessed it for supply. In R v Hoang[1] the Court of Criminal Appeal decided that possession of cannabis for sale or supply is one offence. The question which might remain is whether a person possessed the drug for sale or for supply. That is a question to be determined by the judge.
[1] (2003) 83 SASR at 254
Mr McEwen submitted that it was open for me to proceed in that way. The prosecution case was that the defendant possessed cannabis for sale. Mr Mancini informed me that his client admitted possessing the cannabis in question, but she denied she possessed it for any commercial purpose. She admitted that she intended to supply some of the cannabis to her father. I therefore embarked upon a disputed facts hearing.
The Facts
The prosecution case is that police attended at premises at 2A Turnbull Avenue, Enfield at about 5.00pm on Friday, 19 October. The defendant was home and when police entered the premises they saw a room (the rear bedroom) which had been set up as a hydroponically-operated growing room for cannabis. In the main bedroom they found four small money bags containing cannabis head and a brass pipe in a drawer. In the rear bedroom they observed six small ballasts, two large ballasts, six light shades, six light globes, a set of electronic scales and nine bags containing dry cannabis head. These items were seized. Photos were taken of the premises. Police searched the premises. They also seized a number of documents. Constable Jamieson gave evidence of having taken possession of the various items I have described, including numerous documents. A field receipt was prepared and handed to the defendant’s mother who was at the premises. The field receipt described the documents as “various documents”. I will come to those documents in more detail later in these reasons.
The drying cannabis head was packed in nine plastic bags which were tied at the top. They were later examined by Gregory Webber, a forensic scientist, who prepared a certificate of analysis. The cannabis contained in five of the bags weighed exactly 449 grams. Of the remaining bags one weighed 445 grams, another 443.5 grams and another 447 grams. One bag contained cannabis weighing 65 grams. The certificate describes the cannabis as “female cannabis plant natural”. He also weighed the cannabis found in the main bedroom in four small plastic bags. They weighed 3.5 grams, 5.5 grams, 2.5 grams, 1.5 grams respectively. The certificate describes that cannabis as “mouldy female cannabis plant material”. He noted that the weight reported at the time of the analysis was rounded down to the nearest whole or half gram.
It is the prosecution case that the eight bags each containing cannabis weighing about 449 grams or thereabouts had been packed in those quantities for wholesale sale. The evidence is that 449 grams is approximately one pound. The prosecution relied upon a statement of Mr Peter Foulis, a member of the Drug and Organised Criminal Investigation Branch who had 14 years experience in investigating drug offences. He stated that the flowering heads of the female cannabis plant are the most prized portion of the plant and a good portion of flowering heads in a one pound lot of cannabis for sale would command a much higher price than a pound made up wholly of leaf. He is familiar with the way in which cannabis is packaged, and in the case of large quantities, he stated that it is packaged in larger plastic shopping bags and sealed, or alternatively packaged in cardboard boxes. He said that the larger quantities can be sold in one pound lots and, depending upon supply and demand, would command a price of $2,000-$4,000 per pound.
To support its contention that the large bags of cannabis were for sale, the prosecution relied upon, inter alia, the observations of the various witnesses, the manner in which the cannabis had been packaged and the presence of scales in the room. It was submitted that together with the sophisticated hydroponic set‑up the only reasonable inference to be drawn is that the cannabis in the bags was in the defendant’s possession for the purpose of sale.
In summary, the defence case is that the defendant was a heavy user of cannabis. Furthermore, her father was also a heavy user of cannabis. The cost of purchasing cannabis in the retail market had become prohibitive and she decided to grow her own. She intended to supply half of the cannabis to her father who had assisted her in setting up the equipment.
I must be satisfied beyond reasonable doubt that the cannabis in the possession of the defendant was held by her for the purpose of sale. If I consider the defendant’s explanation is reasonably possible then I must sentence her on the basis that she possessed the cannabis for supply and there was no commercial purpose in the offending.
The evidence of growing and packaging the cannabis
The defendant gave evidence. She said that she lived at the premises at 2A Turnbull Road, Enfield, which she had purchased some years before using some monies which she had received in a settlement of a personal injuries claim resulting from a car accident in September 1993. On 27 October 1995 she had received a payout from SGIC of $101,457.68. She had purchased the property at Enfield and used $62,000 from the proceeds of settlement towards the purchase price. She had borrowed approximately $45,000 and had taken out a mortgage.
She gave detailed evidence about her work history. In March 1999 she re-financed the mortgage and borrowed approximately $63,000 from the Members Trading Credit Union. She had been working at Ansett until March 1999 but had suffered an injury in another accident. Between March 1999 and August 1999 when her employment was formally terminated she had received a temporary disability benefit. After August 1999 she did some part‑time work. In about January 2002 she qualified for a disability pension. She also received a further payout of $22,000 from a settlement of a claim from the second car accident. She said that, of that amount, she gave some to her parents and paid off some debt. She was also receiving a payment from a disability policy. She lived at the house at Enfield on her own.
She said that she commenced to use cannabis not long after the accident in 1993. She suffered psychological problems as well as physical problems and she found that cannabis helped her to relax and sleep at night. She said that she would smoke it through a pipe or roll it. She used cannabis on a daily basis and it was eventually costing her $25 per day. She said that she purchased it in small quantities. She was also drinking alcohol.
She gave evidence that she made a decision to grow cannabis at about the end of the year 2000 because it was getting too expensive to purchase it. She said that she had seen other people growing cannabis, both indoors and outdoors, and that she did a bit of research over the internet. She said that she purchased a number of magazines. She purchased the hydroponic equipment from a hydroponic shop. Some of it was purchased through the Trading Post. The equipment cost her approximately $3,000. She said that her father assisted her in setting up the equipment. She purchased some cannabis clones and she initially commenced to grow them using two lights over a period of approximately four weeks. She then purchased two further lights and had four lights for approximately four weeks. Then she purchased another two lights and had six lights for approximately eight weeks. After that she purchased another two lights. She had placed mesh up on top and woven the cannabis through it. The last two lights were placed under the mesh. She was asked the following questions[2]:
“Q What food were you using.
A.I was using a product called Powder. It is measured in grams and it’s mixed with 10 litres of water. It’s just called A, B, C and D. A, B and C is used for the growing stage. From memory, it’s 9 grams of A, 6 grams of B and 3 grams of C, and then I mix that with 10 litres of water, which was used in that first stage. In the budding stage or the flowering stage A, B and D was used; so 9 grams of A, 6 grams of B and - off the top of my head - it was 1.3 grams of D and that was also mixed with 10 litres of water.
QWhere did you get that material.
AFrom a hydroponic shop.”
[2] Trial Transcript page 59
She said that initially the lights were operating for 18 hours per day and then for 12 hours per day when the cannabis turned to flower. She said it took approximately 6 months to grow the cannabis.
She said that she had discovered that her father also smoked cannabis. He had had a severe back injury and she had come to an arrangement with him that he was to receive half of what was grown. He assisted her in setting up the equipment. About three days before the police came he had helped her to harvest the cannabis. She said it took them approximately two days to cut the cannabis and lay it on the floor to dry. She said that after it had dried she used a dustpan and placed approximately three to four scoops into each bag and tied the bag over once. She wanted air to get into the bag so that the cannabis head would not go mouldy. She intended to organise a deep freezer for herself in which to freeze the cannabis. She said that her father also had to get a freezer. She was asked why she was going to freeze it and she said that in order to store it to prevent it from becoming too dry and useless, she wanted to spray it with water and freeze it. She said that it can be thawed out as and when required and then smoked.
She gave evidence about the police coming to her home. She said that when she returned to her home after having been arrested and charged she found that the house was almost the way she had left it, except a lot of things had been gone through. She said that she was told that documents had been taken although she did not know what they were. She described the three cannabis plants that she had grown, and said that if she had wanted to, she could have grown more plants in that room. She said that she had been given the field receipt and that the documents seized from her home were described in that receipt as “numerous documents including one ATO account, one FSA account”. She agreed that the cost of electricity had increased as a result of her using the hydroponics lights. She said that her father had contributed towards the cost of electricity.
She said that when she initially commenced to grow the cannabis she had problems with spider mite. She was asked[3]:
[3] Trial Transcript pages 74-75
“QCan you tell us whether these plants grew well.
AI had a few problems but they were overcome by spraying. I had an episode of what’s classed as Spider Mite, so I sprayed it. They kept going. It didn’t put me back but it still kept going.
QWhat about in terms of how much you ended up with; did these three plants grow at the same rate.
ATwo were growing better than the other one. One wasn’t growing as well as the other two but I never harvested it before so I didn’t know what to expect. I just grew what I thought was legal, which was three plants.
QDid you end up with any seedlings.
AThere was a few, but nothing -
QWhat did you do with it.
AThat was with the rubbish.
QThat is the rubbish that ended up in the garage, in the rubbish.
AThat’s right.
QDid the plants mature all at the same time.
APretty much.
QWhat did you think when you had finished cutting and separating the bud material from the rubbish.
AI realised I had a fair bit, and even after I halved it with dad I still had a reasonable amount.
QHow long did you think that might last.
AProbably just over a year, I think.
QDid you know how much in weight you had.
ANo.
QIn terms of what you were going to do to give half to your father, how were you going to physically do that.
ABasically we put, as I said earlier, three, four scoops in each bag, that’s close enough, and then we had the eight or so bags and just half and half, and that was it. Whatever was in the bag, was in the bags.”
She was asked about the scales which had been found in the bedroom. She said the reason that she had the scales in the bedroom and the purpose for having them there was so that she could weigh the nutrients which she was using to assist the growth of the plants. She said that in respect of those nutrients the amount of nutrient respectively of nutrients A, B, C and D was 9, 6, 3 and 1.3 grams. She used the scales to weigh the powder. She denied that the scales were used to weigh the cannabis. She said that she did not weigh the nutrients to the exact amount. In respect of the nutrient that required 1.3 grams sometimes it would be 1.5.
The scales were shown to the defendant in cross-examination. She accepted, after examining them, that they only gave weights in whole numbers and it was not possible to weigh an amount of 1.3 or 1.5 grams on them. She denied that the scales had been used to weigh the cannabis.
I consider her evidence in respect of the use of the scales was unconvincing. I do not accept that the scales that were located in the room with the hydroponic equipment were used to measure the nutrient. In fact it was accepted by the defendant that it was not possible to weigh 1.3 or 1.5 grams of nutrient on those scales.
Further I did not find the defendant’s explanation of how she packed the cannabis in the bags convincing. She said that she randomly placed about four scoops of dry head into each bag. In my view the weight of cannabis in each of the eight bags containing approximately 449 grams did not occur by chance. It is more than coincidental that in respect of eight bags of cannabis, the weight varied from 443.5 grams to 449 grams and that in respect of five of those bags the weight was approximately 449 grams. I am satisfied that the scales were used for weighing the cannabis head. I do not accept the defendant’s explanation that the scales in the bedroom were for weighing the nutrients. I am satisfied that the defendant intended and did prepare bags weighing close to one pound per bag.
The defendant gave an explanation that she intended to freeze the cannabis and that her father also intended to freeze his share of the cannabis, in order to preserve it over a longer term. When she was questioned about whether she owned a freezer she said that she had not yet purchased a freezer but had been looking for one secondhand. Ms Lapic gave evidence that it had taken almost six months for the crop to grow. Evidence of an employee for AGL South Australia Proprietary Limited demonstrated a significant increase in the use of electricity for the periods ending 2 May 2001, 31 July 2001, 30 October 2001 being a period over six months. If the defendant had intended to produce a large quantity of cannabis, which she intended to preserve for her own use by freezing it, it seems to me that it is unlikely that she would not have purchased a freezer sometime during that six month period, so that when she harvested the cannabis she could immediately freeze it. If she had not purchased a freezer by the time that the cannabis was harvested there was a real risk that the cannabis may go mouldy. I find the defendant’s explanation for not having purchased a freezer unconvincing. I conclude that it was never the defendant’s intention to keep and freeze the cannabis.
The evidence of the defendant’s financial affairs
Mr McEwen cross‑examined the defendant at some length about her financial affairs. This evidence was taken de bene esse, after an objection by Mr Mancini to its admissibility. In the course of cross‑examination Mr McEwen produced to the defendant statements of her account with Members Australia Credit Union for the period 2 July 2001 to 31 August 2001. The statements include transactions relating to the mortgage. They evidence that a sum of $9,500 was deposited to Ms Lapic’s account on 16 July 2001. A further amount of $1,000 was deposited on 17 July 2001 and yet a further amount of $3,000 was deposited on 20 July 2001. She said that during that period of July 2001, the only significant amount of money that she recalled that she had received from her parents was a contribution to an electricity account of some hundreds of dollars. She said that she could not recall how that sum would have been paid into her account and that she would need to look at other documents including her diary. She said that it may have been her parents who deposited it in her account. The following questions were asked[4]:
[4] Trial Transcript page 106
“QGoing back to July 2001, do you recall anything about another cash deposit the previous day - and we are now back to Monday, 16 July - also off your mortgage of $9,500.
A      No.
Q      That doesn’t ring a bell.
A      Not unless it was deposited by my parents, no.
HIS HONOUR
Q      Nearly $10,000 and it doesn’t ring a bell.
ANo, not unless my parents deposited themselves because they have access to my card.
Q      Surely they would have told you.
A      I honestly - your Honour, I don’t recall it.
XXN
QAre you seriously suggesting to his Honour that one of your parents might have made a cash deposit off your mortgage of $9,500 in July 2001 and you wouldn’t have known about it.
AYes.”
She acknowledged that the effect of the three deposits was to reduce her mortgage from $45,900 to $36,000. She said she had no direct memory as to how that may have occurred. She said that she occasionally looked at her bank statements but cannot specifically recall looking at the balance of her account when it had been reduced so significantly. Ms Lapic agreed in the year ended 30 June 2001 her taxable income was in the vicinity of about $25,000.
Mr Mancini submitted that I should exclude the evidence relating to the defendant’s financial affairs, and in particular, the cross‑examination relating to the three deposits in July 2001. He submitted that the cross‑examination was by way of ambush and that the Director of Public Prosecution should have provided copies of the documents to the defence prior to the matter proceeding. He submitted that it was unfair to permit the cross‑examination. The matter was adjourned to enable Mr Mancini to take instructions for re‑examination and to enable his client to obtain any further documents. Further, Mr Mancini indicated that he wished to make inquiries of financial institutions and consider whether there was any further evidence he needed to call. On 10 April 2003 I adjourned the matter.

When the hearing resumed on 15 May, Mr Aitken appeared for the defendant and advised the court that Mr Mancini’s instructions had been terminated.
Mr Aitken submitted that the evidence relating to the financial affairs of the defendant, which had been taken de bene esse, should be excluded in the exercise of my discretion. Mr Aitken submitted that it was unfair to permit the cross‑examination as the defendant had been taken by surprise and there had been a failure by the DPP to disclose the documents to the defence prior to trial. Mr Aitken conceded that at the time the documents were seized a property receipt had been provided to the defendant’s mother. The receipt disclosed that certain documents had been seized from the defendant’s house but it did not particularise those documents.
In a letter dated 22 July 2002 Mr Mancini had sought copies of various documents which he specified. The documents seized and which are the subject of the general reference in the property receipt were not specified. Mr Mancini requested the Director of Public Prosecution to provide any further materials upon which the prosecution would seek to rely at the trial. He wrote again on 14 August 2002 requesting provision of some of the documents which had not been provided. No reference was made to the property receipt book. On 17 September 2002 Mr Mancini sought a copy of any field receipts, as well as numerous other documents. On 12 September 2002 Mr Mancini wrote again to the DPP. In his letter he said:
“I refer to the pre‑trial conference before Judge Anderson and my request for an undertaking that there would not be any further evidential material produced by the prosecution.
I proceed on the assumption that there is not any such material.”
On 11 December 2002 the DPP provided a computerised printout of exhibits to Mr Mancini. The computerised printout did not specify the documents the subject of this application.
Mr Aitken relied upon the decision of the High Court in The Queen v Soma[5]. At the trial the prosecutor did not lead evidence of an interview with the accused as part of his case. The prosecutor made the decision that objection might be taken to the admissibility of the record of interview and he therefore determined not to lead it. When the defendant was cross‑examined passages of the interview were put to him. The Court of Appeal concluded that if objection had been taken at trial to that line of cross‑examination, and because the prosecutor had not attempted to tender the interview as part of his case, the evidence should have been excluded. The Court of Appeal quashed the conviction. The prosecution appealed to the High Court. In a joint judgment, Gleeson CJ, Gummow, Kirby and Hayne JJ referred to the general rule that the prosecution must offer all its proof before an accused is called on to make his or her defence. The Court said[6]:
“In the present case, the prosecution had available to it evidence of statements made by the respondent to the police. The prosecution called the interviewing police officer. In this Court it was accepted that the statements which the respondent made to police were adverse to his interests; they were not merely and exclusively self‑serving denials. If there were doubts about the admissibility of the record of interview, those doubts could have been resolved on a voir dire. If necessary, the record of interview could have been edited to exclude any objectionable parts. None of these steps was taken.
If the prosecution case was to be put fully and fairly, the prosecution had to adduce any admissible evidence of what the respondent had told police when interviewed about the accusation that had been made against him.”
[5] [2003] HCA 13 (13 March 2003).
[6] Paragraphs 30 and 31.
The Court referred to the authorities of Killick v The Queen[7], Lawrence v The Queen[8] and R v Chin[9] each of which give effect to the general principle that the prosecution must offer all its proofs during the progress of its case. Their Honours confirmed the principle that if the prosecution has not lead the evidence as part of its case, then the trial court has the power to prevent cross‑examination on the grounds that it would be unfair to permit the prosecution to lead evidence in rebuttal.
[7] (1981) 147 CLR 565.
[8] (1981) 38 ALR 1
[9] (1984-1985) 157 CLR 671
Mr McEwen submitted that a decision in Soma (supra) is distinguishable as that case was dealing with the principle that a party is not entitled to split its case. If the prosecution elects not to lead evidence as part of its case then it should not be permitted to cross‑examine in respect of matters it should have lead as part of its case at trial. Mr McEwen submitted that the principle had no application in a disputed facts hearing, after a defendant had pleaded guilty. Further, he submitted that the defendant’s solicitor and the defendant were on notice about the documents as those documents were included in the document receipt handed to the defendant’s mother. In Killick v The Queen (supra) the question of whether the prosecution was entitled to lead evidence in rebuttal of an alibi, when the prosecution ought to have reasonably foreseen that that evidence would be raised at trial, was discussed in a joint judgment of Gibbs CJ, Murphy and Aiken JJ. The Court held that the Crown should not have been allowed to adduce the evidence in rebuttal of alibi. The majority held that in the case of alibi, where the prosecution foresees that a particular alibi may be part of the defence case, the prosecutor should inquire of the defence whether they intend to set up the alibi at trial. If the defence, as they are entitled to do, refuse to respond or alternatively respond that they do not intend to set up such defence, and subsequently they do, then it is open to the prosecution to lead evidence in rebuttal. On the other hand, if no such inquiry is made, and it would have been open to the prosecution to call the evidence as part of its case, then the Crown should not be permitted to lead the evidence in rebuttal if it could have been foreseen that an alibi would have been set up by the defence. In Shaw v The Queen[10] the principles relating to the presentation of evidence in rebuttal were stated by the Court. Dixon, McTiernan, Webb and Kitto JJ said[11]:
“Clearly the principle is that the prosecution must present its case completely before the prisoner’s answer is made. There are issues the proof of which do not lie upon the prosecution and in such cases it may have a rebutting case, as when the defence is insanity. When the prisoner seeks to prove good character evidence may be allowed in reply. But the prosecution may not split its case on any issue… It seems to us unsafe to adopt a rigid formula in view of the almost infinite variety of difficulties that may arise at a criminal trial. It is probably enough to say that the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proof during the progress of the Crown case and before the prisoner is called upon for his defence… Further… the English cases make it plain enough generally speaking an occasion will not suffice for allowing an exceptional course if it ought reasonably to have been foreseen.”
[10] (1952) 85 CLR 365.
[11] (1952) 85 CLR 365 at pages 379-380
Fullagar J said[12]:
“…it remains true and important that the Crown should be permitted to adduce evidence after the close of the case for the defence only in exceptional circumstances and when it is reasonably clear that the accused will not be unfairly prejudiced by the admission of the evidence. A wide discretion must be conceded to the judge presiding at the trial, but it should be regarded as limited in that way, and it is to be remembered that the practical effect of evidence on the minds of a jury may differ according as the evidence is adduced in chief or by way of replication. But the discretion ought not to be regarded as further limited or as governed by any rigid rule or formula.”
[12] (1952) 85 CLR 365 at page 383-384
In The Queen v Chin[13] Gibbs CJ and Wilson J in a joint judgment held that the same factors are relevant to whether a trial judge should permit cross-examination upon a topic not led by the prosecution as part of its case. They said[14]:
“The trial judge, of course, retains his discretionary powers to ensure that the cross‑examination is not unfair. In general, it would be unfair to raise, in cross‑examination, some entirely new matter which was affirmatively probative of the guilt of the accused but which had not been the subject of evidence either at committal proceedings or in the prosecution’s case in chief, unless the accused had been given prior notice of such matter.”
[13] (1984-85) 157 CLR 671
[14] (1984-85) 157 CLR 671at pages 678-679
Dawson J said[15]:
“If in the course of cross‑examination of an accused person or his witnesses, the prosecution asks questions with a view to eliciting evidence for the first time which could and should have formed part of its evidence in chief, then that evidence may be exclude (sic) in the discretion of the trial judge if its admission for the first time during cross‑examination would unduly prejudice the accused, having regard to the obligation resting upon the prosecution to make its case known before the presentation of the defence case.”
[15] (1984-85) 157 CLR 671at page 686
His Honour went on to observe that generally cross‑examination of an accused person can extend to matters whether they have been lead in chief or not, but always subject to the principle that if it would be unfair to prevent such cross‑examination, then the trial judge can exclude it. His Honour went on to say that there is no general requirement that notice be given of evidence which the prosecution attempts to elicit during cross‑examination. He said that ultimately it is a matter of discretion of the trial judge in the circumstance of a particular case. His Honour said[16]:
“Necessarily, the discretion is not as confined, or cannot be as rigorously applied against the prosecution, as in the case of an application by the prosecution to call evidence by way of reply when only exceptional circumstances will justify the granting of the application.”
[16] (1984-85) 157 CLR 671at p 687
In my view the principles also apply to a hearing to determine the facts upon which a defendant is to be sentenced. In a disputed facts hearing the prosecution is required to prove matters of aggravation beyond reasonable doubt. If the prosecution has material which it could lead as part of its case, notice of that material should be provided to the defence. If there is an attempt to introduce the evidence in cross‑examination for the first time, the Court has a discretion to disallow that cross‑examination if it is unfair to the defendant to permit it.
I accept that Mr McEwen had determined not to lead the evidence if the case had gone to trial before a jury. That does not relieve the prosecution of the requirement to give notice of its intention to cross-examine the defendant on matters which the prosecution could have led as part of its case on the disputed facts hearing. Mr McEwen was aware of the existence of the documents at the time that he opened the case on the disputed facts hearing and in my view he should have put the defence on notice that he intended to adduce that evidence in cross‑examination. It could have been led as part of Mr McEwen’s case in establishing the aggravating features of this offending.
I have had regard to the submission by Mr McEwen that the documents had been seized from the defendant’s home and they were the defendant’s own documents so she was aware of their existence. In my view that is not to the point. The prosecution should have informed the defendant’s solicitors that it intended to rely on the documents either as part of its case or in cross-examination. I take into account that Mr McEwen became aware of the existence of the documents very late in the piece, and after he had commenced to prepare his case. Nevertheless, the defendant should have been informed that the prosecution intended to cross-examine her about the documents prior to her commencing to give her evidence. I consider it was unfair to the defendant to be confronted for the first time in cross-examination with documents which had been in the possession of the prosecution since her arrest.
I therefore exclude any evidence in cross‑examination or re‑examination relating to the financial affairs of the defendant. In particular I have no regard to the evidence relating to the three deposits made in July 2001.
Conclusion
The defendant was not an impressive witness. I consider that her evidence that it was a coincidence that the eight bags of cannabis each weighed approximately the same was not believable. The fact that there was a ninth bag containing 69 grams of cannabis leads to the inference that the eight bags were measured to approximately one pound each and the left over cannabis was placed in the ninth bag. If, as the defendant says, four bags were to go to her father, and four bags were to go to her for the purpose of their own personal use it is hard to accept that the ninth bag containing 69 grams would have been left over. One might have thought that when the cannabis was scooped into the eight bags it would have been unnecessary to leave 69 grams in a separate bag. It could have been distributed as eight lots into the eight bags.
Furthermore, I find the defendant’s evidence about the scales unconvincing. When she was made aware that her explanation for the presence of the scales in the growing room could not be correct, her further explanation was that other scales had been used. In my view that did not explain the presence of the scales in the growing room. I infer that the scales were there to weigh the cannabis.
I observed the defendant giving her evidence. I have made allowances for her nervousness and the stress that she is undoubtedly experiencing from having been charged and having to give evidence. On the other hand, I formed the view that she is an intelligent person who well understood the questions she was asked and well understood the importance and effect of her answers. I found her to be evasive at times and I consider that on other occasions she simply made up answers. An example of this was when she was asked about how she intended to preserve such a large quantity of cannabis and her failure to have purchased a freezer. Her suggestion that she had been looking to purchase one was not believable. I do not accept her evidence on the crucial question of her purpose in growing and harvesting the cannabis.
I direct myself that having rejected the defendant’s explanation, I must consider the evidence of the prosecution. I cannot and do not conclude that because I do not accept the defendant’s evidence I can therefore determine that she possessed the cannabis for sale.
However I am satisfied beyond reasonable doubt that the prosecution has established that the defendant was in possession of cannabis for sale. In my view the inference to be drawn from the manner of packaging the cannabis is compelling. It stretches the arm of coincidence too far to conclude that it is reasonably possible that the eight bags each of which weighed approximately one pound, were not packaged and weighed specifically for the purpose of wholesale sale. Further, the presence of the scales, which could not have been used to weigh small amounts of nutrient, but which were suitable for weighing up to 1 kilogram of material only in whole grams, leads me to the conclusion that the scales were there to be used for weighing any dried cannabis leaf into one pound lots. I have not referred to all the evidence upon which I rely, but I mention that other items of circumstantial evidence include the presence of hydroponic equipment and its value, the defendant’s knowledge of how to grow the cannabis, and the sophisticated set-up in the growing room. Having considered all the evidence I find that there is no reasonable hypothesis consistent with the conclusion that the cannabis was not grown for sale.
I find that the defendant was in possession of the cannabis. I reject her explanation that it was for her own personal use and for that of her father. I am satisfied beyond reasonable doubt that the cannabis was to be sold and was in the possession of the defendant for the purpose of sale.

[2003] SADC 87

6 June 2003