Mogilevsky v The Queen

[2010] NSWCCA 92

New South Wales
Court of Criminal Appeal

CITATION:	Mogilevsky v R [2010] NSWCCA 92
HEARING DATE(S):	2nd October 2009
JUDGMENT DATE:	7 May 2010
JUDGMENT OF:	Latham J at 1; Fullerton J at 30; Schmidt J at 31
DECISION:	1. The appeal allowed 2. The conviction on the second count quashed and a verdict of acquittal entered in respect of that count
CATCHWORDS:	CRIMINAL LAW-Conviction appeal-Supply (deemed) a prohibited drug (cannabis)-Crown confusing concepts of joint criminal enterprise and joint possession-Whether Trial Judge erred in failing to conclude knowledge of drugs essential to joint possession -Whether Trial Judge erred in refusing no case submission and allowing charge to go before Jury
CATEGORY:	Principal judgment
CASES CITED:	Jackwitz v R; Franklin v R [2006] NSWCCA 419 R v Amanatidis [2001] NSWCCA 400
PARTIES:	Gilla Mogilevsky - Appellant Regina - Crown Respondent
FILE NUMBER(S):	CCA 2007/16071
COUNSEL:	S Buchen - Appellant M Cinque- Crown Respondent
SOLICITORS:	Steve O'Connor (Legal Aid Commission) - Appellant S Kavanagh (Solicitor for Public Prosecutions) - Crown Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2007/11/0603
LOWER COURT JUDICIAL OFFICER:	Finnane QC DCJ
LOWER COURT DATE OF DECISION:	20 June 2008

2007/16071

LATHAM J
FULLERTON J
SCHMIDT J

7 MAY 2010

GILLA MOGILEVSKY v REGINA

Judgment

1 LATHAM J : The appellant appeals against her conviction on one charge of supply (deemed) a prohibited drug (cannabis). The appellant was also convicted on one count of cultivate a prohibited plant, but there is no appeal in relation to that offence. There is no appeal against sentence.

2 The Crown case on the cultivate charge was at all times conducted on the basis that the appellant was a participant in a joint criminal enterprise to cultivate approximately 1000 plants, found growing inside three adjacent residential premises at St Ives in July 2006. The other parties to this enterprise were the appellant’s three sons, two of whom lived with her in another adjacent property.

3 There was only one piece of direct evidence against the appellant implicating her in the commission of the cultivate offence. That evidence was about 90 minutes of film footage, obtained by the use of a surveillance device in one of the three houses (referred to as number 80), showing the appellant vacuuming and cleaning the floor and the immediate surrounds of the plants, and spraying the plants with an unidentified liquid from an atomiser on 28 June 2006. There was no evidence of the appellant’s presence in number 80, or in either of the other two houses where cannabis was growing, prior to that date. The appellant gave evidence during which she sought to cast an innocent explanation on her activities at number 80, namely, that she was conducting a “pranic healing ritual” in an effort to rid her sons of their addiction to cannabis. The jury clearly rejected that explanation.

4 The cannabis the subject of the deemed supply charge was found in 11 bags inside a cupboard in the hallway, loose on the kitchen table and in large plastic tubs and garbage bags in a back room of number 80. There was no evidence capable of demonstrating that the harvested cannabis was the product of the crop that was growing in number 80 as at 28 June 2006. There was no fingerprint or DNA evidence capable of linking the appellant to the bags of cannabis. The appellant made a no-case submission on the supply charge at the close of the Crown case, but was unsuccessful in that regard. The substance of this appeal is that the Judge was wrong to have allowed the case on the supply charge to go to the jury.

5 A good deal of confusion was introduced into the Crown case by the framing of the indictment and by the trial advocate’s opening. Both counts were expressed in terms of “knowingly take part in” the relevant offence, between the dates of 22 April and 19 July 2006. In the closing stages of the trial, the charges were amended to refer simply to “cultivate” and “supply”. That amendment arose in part out of the no-case submission by the appellant’s counsel, but the amendment did not address the fundamental problem with respect to the supply charge. Regardless of whether the appellant was a party to the joint criminal enterprise to cultivate, the supply charge was based on the appellant’s possession, jointly with her sons, of the 8.5kg of cannabis found in number 80. Proof of that possession depended upon her knowledge of the cannabis in the house, including the cupboard. That knowledge could not be inferred from the mere fact that the appellant participated in a limited way in the enterprise to cultivate.

The Evidence at Trial

6 The appellant leased premises in Cowan Road, St Ives and lived there with her sons Roni and Aitan Mogilevsky. Roni and Aitan were the registered proprietors of the property next door. Roni and his partner were the registered proprietors of a house in Killeaton Street, St Ives and the appellant's third son, Uri, was the registered proprietor of the premises next door to that house. The four houses formed an L-shape near the corner of Cowan Road and Killeaton Street. The backyard of the houses in Cowan Road adjoined the side boundary of Roni’s premises in Killeaton Street.

7 The four premises had been the subject of police interest for some months prior to the execution of a search warrant on 18 July 2006. On 23 June 2006 warrants for four integrated listening devices were issued. Two of these devices were installed in number 80 on 27 June 2006.

8 During the period that the houses were under police surveillance, it was noted that the Killeaton Street properties and one of the Cowan Road properties appeared uninhabited, that the electricity to one of the houses had been diverted from the meter box, and that a strong smell of cannabis came from the premises when walking in that vicinity.

9 The appellant’s three sons were observed on various dates in May, in and about the premises in Killeaton Street. On 28 June 2006 between 3:30 and 5 pm, Aitan and Roni were captured on the integrated listening device in number 80, opening large bags, working on hydroponic trays and cleaning up. The appellant was also seen in that area for that period of time using an atomiser to spray near the plants, picking up rubbish from the floor, placing it into a clear plastic bag, and vacuuming the floor.

10 When police entered the three uninhabited premises on the morning of 18 July 2006, they found active and sophisticated hydroponic cannabis plantations in each home, which included lighting systems consisting of 600 and 400 watt high intensity discharge lights with timing devices attached.

11 A very strong odour of cannabis emanated from number 80. The windows had been covered with plastic sheeting, and ventilation fans had been installed in the ceilings and in the fireplace. Each bedroom contained hydroponically grown cannabis. There were 11 heat-sealed clear plastic bags of cannabis leaf found in the hallway cupboard which had a total weight of 4.855 kg. A total of approximately 4 kg of cannabis leaf was found elsewhere, including loose cannabis on the kitchen table and a further quantity in large plastic tubs and garbage bags in a back room of the house. A vacuum heat sealer labelled "Foodsaver" was found in a room at the front of number 80, containing 138 plants.

12 A number of items from the four premises were tested for fingerprints. A fingerprint of Uri Mogilevsky was found on a transformer in the Cowan Road house and a fingerprint of Aitan Mogilevsky was found on a transformer and lampshade in a house in Killeaton Street. Otherwise, no fingerprints were identified on any items, including the 11 plastic packages of cannabis from the hallway cupboard of number 80. This result was consistent with the use of disposable gloves, a large quantity of which was found on the lounge room floor of the property in which the appellant lived.

13 In the appellant's bedroom, police found a large locked safe inside a cupboard. When the safe was opened, police found $50,000 in cash, consisting mainly of $100 and $50 notes. The appellant's explanation for the presence of this safe was that one of her sons had placed it there and she knew nothing of the contents.

14 The expert evidence at trial established that the cannabis plants ranged in maturity from seedlings to plants, consistent with an ongoing operation where cuttings are produced to replace the harvested plants. The appellant was observed on the video taken on 28 June 2006 to be using an industrial vacuum cleaner, which was said to be extremely important in maintaining a very clean environment for plants that were susceptible to fungus and pests.

15 The police could not say when the 11 packages of cannabis found in the hallway cupboard were placed there. There was evidence allowing the inference to be drawn that some, if not all, of the cannabis in the bags came from number 80, that evidence being signs of a recent harvest, that is, within the previous month, and empty rooms in those premises.

16 In the course of the appellant's evidence at trial, she maintained that she did not look in the hallway cupboard and did not see cannabis in that cupboard.

The Conduct of the Trial

17 The trial advocate’s opening to the jury canvassed the evidence that he anticipated the jury would hear, then embarked upon the following explanation of the Crown case :-

So the Crown case in relation to the accused is that she and her three sons were involved in a joint criminal enterprise to cultivate and supply cannabis leaf between 22 April 2006 and 19 July 2006.
……………………………………………………………………………
Just going back to the indictment for a moment, it says that the accused did knowingly take part in either the cultivation or the supply of prohibited drug, which is cannabis. ………… "take part in" is defined in a certain Act of Parliament. … A person takes part in the cultivation or supply of a prohibited drug if a person takes or participates in any step or causes any step to be taken in the process of cultivation or supply, because we've got count one which is cultivation, count two is supply, a person who provides or arranges finance for any such step in that process, a person who provides the premises in which any such step when that process is taken or suffers or permits any such step in the process to be taken in the premises of which the person is the owner, lessee or occupier. In this case, as I have already said, she is the lessee, the accused.
………………………………………………………………………….
In relation to supply the Crown has to prove the accused supplied the prohibited drug. …… Supply includes sell, distribution. It also includes agreeing to supply, offering supply or keeping or having something in possession for supply. So here in this case in relation to count two there will be no evidence whatsoever called about anybody seeing the accused supplying, there will be none of that. There will be no evidence about seeing the accused’s sons supplying this cannabis leaf to anyone because the Crown would be relying on the fact that the accused and her sons had this drug in possession for supply. It was ready to go. It was packaged, ready to go.
There is also an extended definition of supply, which includes something called deemed supply. If the Crown can prove that the accused had in possession more than the trafficable quantity, which is 300 g, the law presumes certain things that you have that drug in possession for the purpose of supply. So the Crown is relying on that also, because in this case, as I have already told you, the Crown says that on this particular day at number 80 Killeaton St over 8.5 kg of cannabis leaf was found in those premises. So the Crown is relying on joint criminal enterprise between the accused and three sons. So the Crown says it's all these - so it's joint ownership.

18 The above passages disclose a number of bases upon which the jury were invited to find the appellant guilty of the supply charge. On the one hand, the Crown seemed to be alleging a joint criminal enterprise to supply the cannabis leaf that was cultivated and harvested between 22 April and 19 July 2006. On one view of the opening, the appellant was guilty of supply if she took any step in the process of supply. On another view, the Crown was relying upon joint possession of the cannabis in number 80 and the deeming provision.

19 At the close of the Crown case, the appellant's counsel submitted that the supply charge in the indictment was badly framed, because it was clear that the Crown case was one of deemed possession and logically one could not “knowingly take part in possession”. The trial judge responded by suggesting that the charge be amended to one of supply simpliciter, an invitation which the trial advocate took up, over the objection of the appellant’s counsel. Following the amendment, the appellant's counsel made a further submission that there was no evidence capable of allowing the jury to conclude beyond reasonable doubt that between the relevant dates the appellant was in possession of 8.5 kg of cannabis, in the absence of evidence that the cannabis was there on 28 June 2006.

20 There followed an extensive discussion between the trial judge, the appellant's counsel and the trial advocate on the subject of possession. The essence of the appellant's counsel's submission on this point was that, to the extent that the Crown was relying upon joint possession, the Crown must eliminate as a rational possibility that the appellant's sons were not individually or collectively in possession of the cannabis, to the exclusion of the appellant. In particular, it was submitted that the Crown was required to exclude sole possession in Uri Mogilevsky, the owner of number 80, who visited the premises a number of times, and who was the only person who was seen to have produced a key to the property in order to gain access.

21 At one point in the course of this discussion, the trial judge said :-

What concerns me, whilst there is clear evidence she was part of a cultivation agreement, it is not clear to me that those drugs in that bag were there on the day that she was there. It is not clear to me that they weren’t brought there subsequently by one of her sons, maybe as part of this. It's quite possible, I suppose, that they’re part of what is cultivated.

22 The trial advocate submitted in response to this comment that there was ample evidence allowing the jury to infer that the cannabis found on 18 July “came from the crop site”. The trial advocate referred to the packaging device and the loose quantities of cannabis in other rooms of number 80, together with evidence from the integrated listening device that one of her sons was in the premises four days before the execution of the search warrant. Once again, the trial advocate stressed that “the Crown case is based on joint criminal enterprise”.

23 The difficulty with this latter submission is that the trial advocate opened on a joint criminal enterprise to supply the cannabis harvested from all three premises, but by the time of the no-case submission, the Crown case had been confined to joint possession of the cannabis in number 80. The trial advocate appears to have confused the two concepts and used the terms “joint criminal enterprise” and “joint possession” interchangeably. They were not one and the same thing. In any case, if it was the former, the Crown was required to prove the appellant’s participation in an agreement between the appellant and her sons to possess the relevant quantity of cannabis, which in turn required proof that the appellant knew of the existence of the cannabis in number 80. If it was the latter, the Crown was still required to prove that the appellant knew the cannabis was in number 80 in the relevant quantity. There was no evidence that the appellant knew of the existence of the packaging device or of the harvested cannabis, all of which were located in rooms other than the main room of the house, where she was depicted spraying and cleaning.

24 The trial judge seems to have embraced the trial advocate's submission with respect to joint criminal enterprise. In the course of delivering reasons for refusing to take count two from the jury, the trial judge said :-

At the conclusion of the Crown case, … counsel for the accused submitted I should take the second count from the jury because there is no prima facie case that the accused possessed any cannabis and hence no evidence that she supplied any cannabis.
The Crown case is based on a joint criminal enterprise between the accused and her sons to cultivate cannabis and to supply it. The supply charge was based on a contention that there was evidence that those in the joint criminal enterprise possessed the cannabis for the purpose of the enterprise and it was not less in weight than the amount prescribed in the indictable quantity of cannabis.
[The trial judge then related the evidence]
The prosecutor pointed out that the video of the events of 18 (sic) June showed some stems of plants on the floor, some bags were on the floor and that was a reasonable inference that cannabis and the bag found on the day the search warrant was executed came from cannabis which had hydroponically grown on those premises. Furthermore, on the Crown case the entire operation involves growing, harvesting, bagging and selling.
The arrest of the accused and her sons prevented the selling of what had been bagged. The entire scheme was a joint criminal enterprise and the evidence showed she was part of it. I agree with this submission. Certainly it is true the prosecution has put to the jury that the supply charge is based on possession of the drugs in an amount greater than the indictable quantity. It does not have to prove that she had personal possession at all, but it must establish she is part of a joint criminal enterprise described above. In my opinion it does not have to prove she had knowledge of the bag of drugs in order to prove she is guilty. It must establish that she was part of a joint criminal enterprise and that enterprise included in it possession of drugs harvested in its operations. (italics not in original)

25 According to well-settled authority, the italicised part of these reasons is wrong in the circumstances of this case.

26 In R v Amanatidis [2001] NSWCCA 400, Giles JA, with whom Adams J agreed, said :-

Possession of a thing in the criminal law involves physical control or custody of the thing plus knowledge that you have it in your control or custody ( He Kaw The v The Queen (1985) 157 CLR 523 at 537-9, 546, 585-7, 599-600). The physical control or custody may be shared, but must be control or custody to the exclusion of other persons or persons other than those with whom it is shared ( R v Dib (1991) 52 A Crim R 64 at 66-7). It is not enough, however that you are one of a number of persons with access to the thing to the exclusion of other persons – that does not constitute your physical control or custody of the thing or physical control or custody shared with the others of the number of persons. So in R v Filipetti (1984) 13 A Crim R 335 finding drugs in the lounge room of a house occupied by six persons, to which all six had access, did not establish physical control or custody of the drugs by one of the occupants, because any physical control or custody of the one occupant was not to the exclusion of the other occupants and shared physical control or custody could not be inferred; see also R v Bazeley (CCA, 23 March 1989, unreported) and R v Sobolewski (CCA, 21 April 1998, unreported).

27 Simpson J (Barr and Hoeben JJ agreeing) in Jackwitz v R; Franklin v R [2006] NSWCCA 419 confirmed these “unremarkable propositions” at [34] :-

Reliance was placed on her behalf on R v Amanatidis [2001] NSWCCA 400; R v GNN [2000] SASC 447; and R v Filippetti (1984) 13 A Crim R 335. It may be accepted that, emerging from these authorities, knowledge of the presence of a prohibited substance is not sufficient to establish possession; the Crown must establish that the prohibited substance is not in the exclusive possession of another person; and must establish physical control and an intention to exercise control over it.

28 In my view, the appellant’s counsel’s no-case submission had merit. One could be justifiably suspicious about the appellant’s actual knowledge of the quantity of harvested cannabis in number 80, but the Crown firmly nailed its colours to the mast and based its case on joint possession on the 11 bags inside the cupboard, among other amounts scattered throughout the house. There was simply no evidence that the appellant knew of the existence of that cannabis, nor could her presence in the main room of the house for 90 minutes on one occasion justify an inference beyond reasonable doubt that she knew. The Crown was also unable to rule out exclusive possession of the cannabis in Uri Mogilevsky, who, as the owner of the premises, could be taken to have dominion and control over the cannabis in the cupboard.

29 The appeal ought be allowed, the conviction on the second count quashed and a verdict of acquittal entered in respect of that count.

30 FULLERTON J : I agree with Latham J.

I agree with Latham J.

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