R v Bednarz - [2012] SADC 91

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BEDNARZ
Criminal Trial by Judge Alone
[2012] SADC 91
Reasons for the Verdicts of His Honour Judge Stretton
5 July 2012
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
The accused was charged with 3 counts of cultivating a commercial quantity of cannabis. In August 2010 he was located by police harvesting a 26 plant cannabis crop in a concealed mezzanine area of a warehouse he had leased at Allenby Gardens 9 months earlier. Police apprehended an accomplice who gave evidence that the accused was involved with him and others in the business of cannabis production, and in pursuance of that, had also cultivated an earlier crop at those premises, and a further 85 plant crop at premises at Gepps Cross. The accomplice was corroborated by forensic and other evidence linking the accused to the crops.
Held: Accused convicted of the 3 offences, as charged.
Controlled Substances Act 1984 s 4, s 4(4), s 4(7), s 33B(2); Evidence Act 1929 s 34R; Controlled Substances Regulations 2000 Regulation 6(3)(c), Schedule 3, referred to.
R v Lanciana (1996) 84 A Crim R 268 (VCCA); Go v The Queen (1990) 102 FLR 299; R v Brown (1986) 43 SASR 33; R v Hurley [1967] VR (FC) 526, considered.

R v BEDNARZ
[2012] SADC 91
Introduction

On 3 August 2010 police attended a warehouse in Charles Street Allenby Gardens. They located the accused Kevin Bednarz and his partner Christine Walker in the process of harvesting a 26 plant cannabis crop. The crop was being grown under a sophisticated hydroponics system located in 4 purpose built rooms in a concealed mezzanine area atop the offices at the front of the warehouse. A wooden wall, painted to look like concrete, containing a concealed remotely controlled magnetically operated door, concealed the 4 mezzanine grow rooms from the open rear warehouse area. A fake beam had been built across the ceiling of the warehouse to further conceal the hydroponic rooms. A stairway entrance from the office area had been sealed off.
The accused told police that his occupation was “cutting dope”, and that he had been doing that in the upstairs rooms from 11.30 the previous day and from 8.30am that day, packing the cannabis heads into white foam boxes. He said he anticipated it would take 3 or 4 days, and he was getting $50 an hour for it, which would be left there for him by persons unknown. He said he was going to leave the cut cannabis and someone he did not know was going to pick it up. He said a bloke called “Steve” had rung him two weeks ago and asked him to do it.[1]
[1] See transcript of 3 August 2010 record of interview P37.
He told police the premises were owned by a commercial group “or something” and he helped a handyman named George now and then, on maintenance work. He said that while he had been there when the plants had been put in, they just turned up one morning and he did not know who had done it.[2]
[2] See transcript of 3 August 2010 record of interview P37.
Documents seized at the premises revealed that the accused was the lessee of the premises and had been since 26 November 2009.[3] His fingerprints were located on three of the hydroponic shades in the grow rooms.
[3] Exhibits P8, P9 and P45.
11 days later, on 14 August 2010 police attended another warehouse, this time at 702 main North Road Gepps Cross. A very similar hydroponic setup, this time for 82 plants, was located there, although it is plain from the empty pots and cannabis debris that the plants had been harvested and removed prior to police arrival. The accused’s fingerprint was located on one of the hydroponic shades set up in one of the grow rooms. That is count 3 in the information.
While there, a Mr Vrynios attended and was arrested by police. Mr Vrynios eventually co-operated with the police, pled guilty and gave evidence at the accused’s trial.
He gave evidence that he, together with the accused, a Mr Bechara and a Mr Donjerkovic had established an ongoing cannabis production business. He said that as a result the accused took out the lease for that purpose at Allenby Gardens in November 2009. The group then constructed the grow rooms on the mezzanine floor, including the fake concrete wall and fake ceiling beam and set up the hydroponic system, taking about 4 to 6 weeks to do so. The group then established the first crop of 26 plants, which they harvested, dried, packed and disposed of in March/April 2010. That is count 2 in the information.
Mr Vrynios gave evidence that a few weeks later they planted a second crop, which they tended and maintained, and that was the crop the police eventually caught the accused and his partner harvesting on 3 August 2010. That is count 1 in the information.
Mr Vrynios gave evidence that the group including the accused had set up a further cannabis production facility at 85 Main North Road Nailsworth not long after Allenby Gardens had been set up, and they grew 20 cannabis plants there. He said that did not last long as the owner put the property on the market and as a result they harvested the immature plants, dismantled the set-up and removed the hydroponic equipment. That venture is not the subject of any charges, but the evidence was tendered as relevant to the accused’s role in the overall alleged criminal enterprise conducted by the 4 participants, to show that the accused was involved in the business of cultivating cannabis for the purpose of sale and had an interest in and knowledge of growing cannabis.[4]
[4] See MFI P53, Notice of Intention by the DPP to Adduce Evidence of Discreditable Conduct, para 6.
Mr Vrynios gave evidence that the group had leased another property, this time at 702 Main North Road Gepps Cross, on 11 January 2010,[5] and together set up the cannabis production facility there, and planted and grown a crop of about 85 plants. He said that after the police raided Charles Street Allenby gardens on 3 August and arrested the accused, he and others had quickly harvested and removed the plants, prior to the police attendance on 14 August 2010.
[5] See lease agreement P31.
Two months later police attended premises leased by the accused at 55 West St Torrensville. While police were searching it, the accused and Ms Walker arrived at 54 West Street opposite. Police found a locked room at 55 West St and asked the accused for the key. The accused retrieved the key to that room from 54 West St, and police opened the room and located a similar hydroponic grow room therein, although without plants. The accused said he had nothing to do with it, but that he knew his house was being used to grow cannabis by someone else, ultimately accusing the police of not having the balls to grow cannabis themselves. That venture is also not the subject of any charges, but also tendered as relevant to the accused’s role in the overall alleged criminal enterprise conducted by the 4 participants, to show that the accused was involved in the business of cultivating cannabis for the purpose of sale and had an interest in and knowledge of growing cannabis.[6]
[6] See MFI P53, Notice of Intention by the DPP to Adduce Evidence of Discreditable Conduct, para 6.
There was no dispute at trial that cannabis and hydroponic production facilities for the production of cannabis were variously found at the charged locations.
At trial the accused gave evidence that he had nothing to do with any cannabis or hydroponic set up that may have been at Gepps Cross, Nailsworth or 54 West St Torrensville. He said that he was only involved with the Allenby Gardens crop on 2 and 3 August 2010, and only then due to threats from Mr Bechara which he submits through his counsel amount to the legal defence of duress.
The 3 charges against the accused
Count 1 alleges the accused cultivated a commercial quantity of controlled plants, namely cannabis, between 1 May 2010 and 3 August 2010 at Allenby Gardens, intending to sell them or their products, or believing that another person intended to sell them or their products.
Count 2 alleges the accused cultivated a commercial quantity of controlled plants, namely cannabis, between 1 November 2009 and 30 April 2010 at Allenby Gardens, intending to sell them or their products, or believing that another person intended to sell them or their products.
Count 3 alleges the accused cultivated a commercial quantity of controlled plants, namely cannabis, between 1 January 2010 and 14 August 2010 at Gepps Cross, intending to sell them or their products, or believing that another person intended to sell them or their products.
Each charge is separate and must be considered separately and on the basis of the evidence relevant to that charge only.
Elements of the Offence
To establish the offence of cultivating a commercial quantity of a controlled plant, the prosecution must prove beyond reasonable doubt that:
1.The accused cultivated plants. Cultivate is very widely defined.[7]
2.That what the accused cultivated were controlled plants, in this case allegedly cannabis. Cannabis is a controlled plant, so the prosecution must prove that that what the accused cultivated was cannabis.
3.That it was a commercial quantity. A commercial quantity is 20 plants.[8]
4.That the accused knew it was cannabis or at least some illegal drug; and
5.That the accused intended to sell the plants or their product or believed that another person intended to sell them or their products.
[7] Cultivate includes planting, nurturing, harvesting, picking any part of the plant, drying part or all of the harvested plant or taking any part in the process of cultivation, which is itself also widely defined to include directing, taking or participating in any step in the process of cultivation, such as acquiring, storing, transporting, loading or unloading, guarding or concealing the plant, substances or materials for the purpose of cultivation of the plant. Cultivate also encompasses providing or arranging finance or providing or allowing the use of premises or jointly occupying premises for the purpose of cultivation of the plants. See sections 4, 4(4), 4(7) and 33B(2) of the Controlled Substances Act 1984.
[8] Controlled Substances Regulations 2000, regulation 6(3)(c) and Schedule 3.
If however the prosecution proves that the accused cultivated a “trafficable quantity” of plants, it is assumed in the absence of proof to the contrary that he had the relevant intention or belief concerning the sale of the plants or their products necessary to constitute the offence.[9] A “trafficable quantity” is 10 plants.[10]
[9] Section 33B(5) of the Controlled Substances Act 1984.
[10] Controlled Substances Regulations 2000, regulation 6(3)(c) and Schedule 3.
Where the defence to an alleged offence is duress, if the accused satisfies an evidential burden, then it is for the prosecution to prove beyond reasonable doubt that duress is not made out on the facts of the case.[11]
[11] R v Lanciana (1996) 84 A Crim R 268 (VCCA); Go v The Queen (1990) 102 FLR 299
The issues in the case
There is no doubt whatsoever on the evidence that someone was growing a commercial quantity of cannabis, a controlled plant, at each of the locations particularized in the three charges against the accused. The scale, expense, concealment and sophistication of the hydroponic set ups at Allenby Gardens and Gepps Cross leave no doubt whatsoever that the purpose of each enterprise on the part of whoever was involved must have been to grow cannabis with the knowledge that it was an illegal drug and with the intention of sale, without even considering the “trafficable quantity” deeming provision just referred to.
The accused was caught in the act of harvesting the 26-plant cannabis crop at Allenby Gardens as particularized in count 1. He claims he did so only under duress, and on that basis that he is not guilty of that offence.
The accused denies any involvement in the earlier crop at Allenby Gardens as particularized in count 2.
The accused denies any knowledge whatsoever of the premises, hydroponic set-up or any crop at Gepps Cross as particularized in count 3.
Whilst it always remains for the prosecution to prove each and every element of an offence beyond reasonable doubt, the real issue in the case of count 1 is whether if the evidential onus of duress has been adequately raised, the prosecution has proved an absence of duress beyond reasonable doubt.
The real issue in relation to counts 2 and 3 are whether the prosecution has proven beyond reasonable doubt that the accused was one of those involved in the obvious clandestine commercial cannabis cultivation that was occurring.
The law of duress
“Duress” can be a defence to a criminal charge. In South Australia it arises at common law rather than under any statute.
As earlier mentioned, the accused has an evidential onus to raise duress, however once sufficiently raised, the prosecution must prove beyond reasonable doubt that there was no duress.[12]
[12] R v Lanciana (1996) 84 A Crim R 268 (VCCA); Go v The Queen (1990) 102 FLR 299; R v Brown (1986) 43 SASR 33.
The basic principle is that where a crime is committed because of a threat of injury to an accused or some other person should an accused refuse to obey the threatener, then the law will excuse that crime.[13]
[13] Laws of Australia para 9.3.
There are some subtleties to the defence of duress. The law is conveniently stated in R v Hurley [1967] VR (FC) 526, per Smith J at 543:
Where the accused has been required to do the act charged against him (i) under a threat that death or grievous bodily harm will be inflicted unlawfully upon a human being if the accused fails to do the act and (ii) the circumstances were such that a person of ordinary firmness would have been likely to yield to the threat in the way the accused did and (iii) the threat was present and continuing, imminent and impending … and (iv) the accused reasonably apprehended that the threat would be carried out and (v) he was induced thereby to commit the crime charged and (vi) that crime was not murder, nor any other crime so heinous as to be excepted from the doctrine and (vii) the accused did not, by fault on his part when free from the duress, expose himself to its application and (viii) he had no means, with safety to himself, of preventing the execution of the threat, then the accused, in such circumstances at least, has a defence of duress.
The availability of duress is subject to a condition that the accused has not failed to take an opportunity which was reasonably open to him to render the threat ineffective. What constitutes a reasonable opportunity must be determined in the light of all the circumstances.[14] That is an issue in this case, as what the accused says he did under duress occurred some time after the suggested threats and in the absence of the threatener. As King CJ said in R v Brown (1986) 43 SASR 33 at 39:
The question whether the accused has failed to take an opportunity reasonably open to him to render the threat ineffective has been said in the cases cited to be a question for the jury. … The test … is whether, on the version and interpretation of facts most favourable to the accused on the issue, there is material upon which a reasonable jury could find, at least as a reasonable possibility, that the accused did what he did in consequence of his will being overborne by threats to harm his son, that such threats were such as might cause a person of reasonable firmness of mind and will to yield to such threats as the accused did, and that the accused has not failed to avail himself of an opportunity which was reasonably open to him to render the threat ineffective.
… The ordinary way in which a citizen renders ineffective criminal intimidation is to report the intimidators and to seek the protection of the police. That must be assumed, under ordinary circumstances, to be an effective means of neutralizing intimidation. If it were not so, society would be at the mercy of criminals who could force pawns to do their criminal work by means of intimidation.
… in particular situations an opportunity to seek the protection of the authorities may not be an effective way of neutralizing the threat. It would be naive to ignore the existence of situations in which no amount of police protection would be effective or in which it would be unreasonable to expect a person to avail himself of such protection. But such situations must be considered to be the exception. If there is evidentiary material which raises a real issue as to whether the opportunity to seek police protection was a reasonable opportunity to render the threat ineffective, that issue must be left to the jury.
[14] R v Brown (1986) 43 SASR 33.
The evidence of an accomplice
Much of the evidence against the accused in this case was given by Mr Vrynios. Mr Vrynios was an alleged accomplice, in that he gave evidence that he also committed each of the crimes the accused was charged with, and said that the crimes were part of an agreed course of conduct between he, the accused and others. Both counsel agreed that on Mr Vrynios’ evidence, he was plainly an accomplice.
At the time he gave evidence Mr Vrynios had been convicted and sentenced for one offence of cultivating a commercial quantity of cannabis at each of the two addresses the accused was charged with, and had been convicted and sentenced for those two offences, having received a discount for agreeing to co-operate with the police and give evidence.[15] He also received immunity from prosecution in relation to any other matters his anticipated evidence might disclose.[16] He had also pled guilty and been sentenced for other offences.
[15] Transcript of evidence page 148.
[16] Transcript of evidence pages 148-149 and P34.
In those circumstances the law requires that the court observe that experience in the courts has shown that the evidence of accomplices can be unreliable. Accomplices often have interests of their own to serve. They may wish out of malice to implicate others. They may be seeking to shift the blame or part of the blame for the wrongdoing on to others. They may blame a particular person in order to shield another. They may be seeking to curry favour with the authorities in order to improve their own situation, or having curried favour and secured an advantage, may feel obliged or even compelled to stick to the story they used to gain such favour. Also, in a sense, evidence from a person who has himself been involved in the crime comes from a tainted source. These are just some examples of the many ways the evidence of an accomplice may be unreliable.
For those reasons a court must bear in mind that it is dangerous to convict on the evidence of an accomplice unless that evidence is corroborated.
A court may nonetheless act on an accomplice’s uncorroborated evidence if, after subjecting the accomplice's evidence to close and careful scrutiny and considering the evidence for the defence, and giving full consideration to the warning, the court is nevertheless satisfied beyond reasonable doubt as to the guilt of the accused.
Even if there is corroboration, it is still necessary to examine the evidence of any accomplice with care, bearing in mind the issues associated with them being an accomplice, and not convict unless satisfied beyond reasonable doubt as to the guilt of the accused.
Corroboration of the accomplice
It is the court’s duty to consider whether there is any evidence capable in law of amounting to corroboration of the accomplice.
Corroboration is evidence from a source independent of the witness to be corroborated which implicates the accused in the crime charged by tending to show both that the crime was committed and that the accused committed it.
Evidence of “discreditable conduct” was led against the accused

Shortly before the commencement of the trial the Evidence Act was amended to include a division providing for the “Admissibility of evidence showing discreditable conduct or disposition”.[17]
[17] The heading to Division 3 of Part 3 of the Evidence Act 1929.
The prosecution sought to lead evidence of “discreditable conduct” that at around the time of the alleged events the accused also cultivated cannabis at premises located at 85 Main North Road Nailsworth, and had hydroponic equipment set up in a locked room at his own premises at 55 West Street Torrensville. The evidence associated with 85 Main North Road Nailsworth was led as evidence of his ongoing alleged business of cultivating cannabis for the purpose of sale with Mr Vrynios and others, and all the evidence was led as relevant to prove the accused had an interest in and knowledge of growing cannabis.[18]
[18] See MFI P53, Notice of Intention by the DPP to Adduce Evidence of Discreditable Conduct, paras 4 and 6.
It was not disputed between the prosecution and defence that the evidence did allege “discreditable conduct”, and the statutory conditions of admissibility per section 34P of the Evidence Act had been satisfied, in that the required notice had been given, and that the proffered evidence if accepted had the required probative weight. Notwithstanding that agreement I have independently concluded that the statutory requirements of section 34P(2) and 34P(3) are satisfied in this case.
The prosecution case is that the accused agreed with certain named protagonists to embark on and did embark on a significant ongoing enterprise of growing cannabis crops in commercial quantities for sale, and did so at 1 Charles Street Allenby Gardens and 702 Main North Road Gepps Cross, in circumstances where the accused denied to police and at trial any involvement or interest in cannabis except cutting it at Allenby Gardens at the time of the police attendance, claiming at trial that he only did that under duress in fear of his own and others’ safety.
Evidence that at around the same time he was involved in growing cannabis plants with the same protagonists at a third warehouse at 85 Main North Road, and had a clandestine hydroponics room set up at his own house, all set up in a similar way with similar equipment, is potentially strong evidence of a role in the overall criminal enterprise alleged by the prosecution between the protagonists that is reflected in the charged acts, and of a strong interest in and knowledge of growing cannabis.
In the final analysis I am satisfied in accordance with section 34P that the evidence has the requisite probative value having regard to the issues arising at trial, and that the probative value substantially outweighs any prejudicial effect it may have on the defendant.
The purpose for which the evidence of “discreditable conduct” may be used
The law requires that the court must identify and explain the purpose for which evidence of discreditable conduct may and may not be used.[19]
[19] Section 34R of the Evidence Act 1929.
I have identified the purpose for which the evidence is sought to be used. In all the circumstances the court finds it is relevant and admissible evidence, if accepted, that the accused was involved in an ongoing business of cannabis cultivation for the purpose of sale, and had an interest in and knowledge of growing cannabis, which two pieces of evidence are circumstantial evidence in support of the prosecution case that at the times and places alleged in the information the accused was cultivating a commercial quantity of cannabis plants for the purpose of sale as alleged.
The evidence may not be used in any other way, and the court will not use it in any other way. In particular, the evidence may not be used to reason that simply because of the alleged discreditable conduct the accused is guilty of the charged offences, nor that because of the discreditable conduct he is of bad character and is for that reason guilty of the charged offences, nor that because of the discreditable conduct he is the sort of person who would be likely to be guilty of the charged offences.
The law provides that if the discreditable conduct is essential to the process of reasoning leading to a finding of guilt the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence is admitted are established beyond reasonable doubt.[20]
[20] Section 34R(2). As required, the court hereby directs itself accordingly.
The prosecution case – the accomplice
Mr Vrynios gave evidence. He gave evidence that he was married with 4 children, his wife being the sister of a Mr Anton Bechara. A sheet metal worker by trade, in 2009 he decided to work for himself doing maintenance and handyman type work. He set up the business Adelaide Maintenance and Cleaning with the assistance of Mr Bechara and his accountant a Mr Bruno Battistella. Mr Bechara was also involved from time to time.
At around that time Mr Vrynios was in debt, and Mr Bechara offered to help.
In the latter part of 2009 Mr Bechara raised the topic of growing cannabis,[21] and Mr Vrynios eventually agreed.
[21] Transcript page 155-6.
Mr Vrynios said that he had met the accused in probably around June/July 2009 when on a few occasions he attended the accused’s car cleaning business “KC Buff and Shine” on Ashwin Parade at Torrensville, to see about vehicles for Mr Bechara.
He said that Mr Bechara also raised the idea of growing cannabis with the accused, the first meeting he could recall being present for being around September or October 2009 at the accused’s house at West Street. He recalled Mr Bechara doing all the talking, with the idea that they would find premises to grow cannabis and Mr Bechara would fund it.[22] After that Mr Bechara also got another man, a Mr Anthony Donjerkovic who had cannabis growing expertise, to be involved.
[22] Transcript page 159.
In pursuance of the plan they started looking for premises, with he and the accused inspecting perhaps half a dozen properties, before they located premises at 1 Charles Street Allenby Gardens. He said that the accused rang up and had the lease papers, with Mr Vrynios eventually witnessing the lease papers with the accused in the agent’s office.[23] He said that the initial agreed plan was that because of the accused’s knowledge of cars they would ostensibly run his car detailing business there as a ‘front’, but that did not transpire as there was no drainage inside for water.[24] He said the whole purpose of the lease of the premises between the three of them was to grow cannabis. They moved into the premises around November-December 2009. He said the three of them pretty much straight away started modifying the mezzanine to construct a concealed area to grow cannabis, including a fake wall, frames, insulation and a fake polystyrene ceiling beam. He said that the accused was not present for all the construction but assisted with it. He said they put some office furniture in the downstairs office area to make it look like there was a legitimate business there, although none of the computers were connected up or worked.[25]
[23] Exhibit P9, transcript page 165.
[24] Transcript pages 163-164.
[25] Transcript page 169.
Mr Vrynios gave evidence that he and Mr Bechara purchased the hydroponic equipment new from “Rob’s Garden”, paid in cash, taking perhaps 20 or 30 trips in all. He said that the setting up of the equipment at Allenby Gardens took perhaps 4 to 6 weeks, laying out the tubs, lining the walls with plastic, cutting holes in the ceiling, installing fans and the like.[26] He said the accused assisted, in the role of assistant or “lackey”, getting this and that and assembling small items such as the lighting, although he said the accused had limitations on what he could do due to his ankles and general health. The plants were planted by Mr Vrynios and Mr Donjerkovic, although the accused was present on occasions.[27] Mr Donjerkovic provided written instructions for how to grow cannabis[28] and instructed Mr Vrynios and the accused who initially tended the plants each day. The accused would be at the Allenby Gardens premises every day, variously sitting in the office, watering the plants behind the fake wall on the mezzanine, or otherwise occupying himself.[29] Mr Vrynios described in detail how they performed a range of other tasks in relation to tending the plants including covering them with wire mesh, raising the lights on pulleys, operating the extraction fans and equipment and the like.
[26] Transcript page 171.
[27] Transcript pages 173-4.
[28] Exhibit P13.
[29] Transcript page 178.
Mr Vrynios said that eventually the cannabis plants were harvested in March/April 2010, with Mr Bechara, Mr Donjerkovic and the accused all taking part. 26 Cannabis plants were grown. The harvesting process took about three or four days, with the plants being dried then taken in white foam boxes to Gepps Cross to be packed into cryovac vacuum sealed plastic bags, amounting to about 50 one pound lots. He and the accused then delivered the bags, in two deliveries, to third parties at the direction of Mr Bechara. Mr Vrynios was given a lump sum of $8000 by Mr Bechara but did not see what the accused was paid. [30]
[30] Transcript pages 185-6
Mr Vrynios said that two to four weeks later a second crop was planted at Allenby Gardens, after he, the accused and Mr Donjerkovic had cleaned out the pots and replaced the growing medium in them. Cannabis clones were used from their other operation which by that time had been set up at Gepps Cross. A further 26 cannabis plants were planted.[31] The accused’s role then included attending the Allenby Gardens premises daily, keeping an eye on the crop, watering it from a tank on a trailer, and making the premises look occupied.[32] Mr Vrynios said that the accused never in fact worked on any cars at those premises. He said the accused arranged the electricity to be put in the cleaning business name, and described how they would pay the bills, with the money ultimately coming from Mr Bechara. Many of those bills would be addressed for the accused’s attention. He said the accused played a role in setting up the trailer and tank that was used for watering.[33]
[31] Transcript page 189.
[32] Transcript page 190.
[33] Transcript page 197.
Mr Vrynios also described how the operations at other premises were set up. He said he and Mr Bechara initially located warehouse premises at 85 Main North Road Nailsworth, and the premises were leased by the accused. The four of them, Mr Vrynios, the accused, Mr Bechara and Mr Donjerkovic, set up a grow room at the back of those premises, purchasing hydroponics equipment again from “Robs Garden”, and planting 20 cannabis plants. The accused’s role was to assemble the light shades, bring the equipment into the room and lay out and run the plastic up the walls. The plants were clones from the first Allenby Gardens crop which had at that stage been planted for 6 to 8 weeks. The accused performed a similar role after the plants were planted, attending regularly, helping out, and so on.[34] All was going to plan for a few months until the owner suddenly put up a sign at the front of the premises announcing that the building was for sale. At that they started getting enquires from people wanting to inspect the warehouse, so they panicked, harvested the partly developed plants, taking the undried cannabis to Gepps Cross to dry and package. He said that as the plants were not fully mature they only got about 10% of what they had got at Allenby Gardens. They then dismantled all the hydroponic equipment.[35]
[34] Transcript page 201.
[35] Transcript pages 201-3.
Mr Vrynios described how Mr Bechara located further premises at 702 Main North Road Gepps Cross, which was an office with cool rooms at the rear. He said it was he, Mr Bechara and Mr Donjerkovic who went to look at it, with those two deciding that it was suitable. Mr Bechara and the accountant arranged a business called “Total Cold Storage” to be set up. At the behest of Mr Bechara, Mr Vrynios took out the lease for that property, on 11 January 2010.[36] Then all four, that is Mr Vrynios, Mr Bechara, Mr Donjerkovic and the accused, set up hydroponic growing facilities in the large cold room building at the rear of the premises, with the accused’s role mainly placing the containers used as pots into position and assembling light shades, attending the premises maybe about half a dozen times in the course of setting it all up.[37] About 85 cannabis plants were planted. Once the plants were planted, it was mainly Mr Vrynios and Mr Donjerkovic who tended them, with the accused staying overnight on just one occasion when Mr Donjerkovic had to go out.[38] A $27,000 generator was purchased to ensure power for the crop,[39] with the finance arranged through Mr Bechara’s accountant’s office.[40] The generator was powered by diesel and it was Mr Vrynios and Mr Donjerkovic’s responsibility to purchase diesel for it from service stations. They also bought gas fired patio heaters to keep the crop warm in the cold storage rooms. He identified a similar patio heater in photo 11 of P18, photos taken of the lounge at 55 West Street, the accused’s premises, at a later time. [41] The accused would assist in filling the gas bottles required at 702 Main North Road. The plants were growing at Gepps Cross at the same time as the second crop at Allenby gardens.
[36] Exhibit P31, transcript pages 204-5
[37] Transcript pages 210-211.
[38] Transcript page 212-213.
[39] Exhibit P25, photos 22 and 25.
[40] Transcript pages 213-214, and P35 loan documentation and generator brochure.
[41] Transcript page 216.
On Mr Vrynios’ evidence, the whole purpose, agreed between he, Mr Bechara and the accused was to locate various premises and grow cannabis at them. On his evidence the accused was closely involved in most aspects of the two crops at Allenby gardens comprising counts 1 and 2 in the information, and assisted in relation to the crop at 702 Main North Road that comprises count 3 in the information. On his evidence, he was also involved in the crop at 85 Main North Road Nailsworth, an uncharged act that has been led as “discreditable conduct” in support of the inference that the accused was in a cannabis business with the others and had an interest and involvement in growing cannabis for sale.
Mr Vrynios was played various intercepted telephone communications. He told the court that the group had certain code words, such that the word “old lady” referred to the accused, “mum’s” was the Nailsworth warehouse, and “camel’s” referred to the Gepps Cross premises. He also explained other terms used in the calls. He identified his own voice, the accused’s voice, Mr Bechara’s voice and the accused’s partner Christine Walker. He explained several of these calls, including two calls which appear to relate to something going missing from a ledge, or at a shopping centre, and Mr Bechara getting upset and angry about that. In particular he explained that Mr Donjerkovic was referred to as “Rats” and in relation to call 261 there is discussion between the accused and Mr Bechara that may appear to be about ensuring there is diesel for the generator and gas for the heaters at Gepps Cross.[42]
[42] Transcript pages 228-229.
A number of specific issues were raised with Mr Vrynios in cross-examination. It was put to him and he denied he knew a Stephen Howe. He denied he’d found anyone to rent the upstairs area at Allenby Gardens or that there was ever any suggestion it was to be used as a data factory as suggested by a document ultimately tendered by the defence as D2, being a letter dated 2 December 2008, purportedly from a Stephen Howe to “George and Kevin” offering to lease the mezzanine floor at Charles Street Allenby Gardens paying all rent, power and council rates, for the purpose of a data centre.
He denied suggestions put to him by defence counsel that he told the accused that he was not able to do any panel beating at the Allenby Gardens property, and denied that there was any suggestion of spray painting affecting Stephen Howe’s data centre. He said there was never any discussion or argument about spray painting at Allenby Gardens. He said he never had any arguments with the accused.
Mr Vrynios was then asked about Mr Bechara. He agreed with the accused’s counsel's suggestion that Mr Bechara was as far as he knew involved in organised crime and could be a dangerous and intimidating person. He said that at times Mr Bechara yelled at him, similar to or worse than that which can be heard in some of the telephone intercepts. He agreed he had heard Mr Bechara yell at the accused but that most of the yelling was at he Mr Vrynios. He agreed that he heard Mr Bechara make threats to harm people.
He agreed that it was at Mr Bechara’s behest that he got into the drug trade and that variously Mr Bechara threatened and stood over him after that. He said that ultimately he tried to walk away, indeed he disappeared for four days, but was abused and threatened to continue involvement when he came back. He said Mr Bechara said it would cost him $300,000 to get out of the project. He said that at one stage Mr Bechara pulled a gun. He agreed that Mr Bechara would threaten people to get his own way. He agreed that Mr Bechara had variously threatened he and his wife and children.
Mr Vrynios said that as a result of all this that it all got too much, and Mr Vrynios left for four days, returning on 8 April 2010. He then agreed to continue in the enterprise after a further heated argument with Mr Bechara, as he thought he had no other choice. He agreed he would have talked to the accused and may have told him these things. He agreed the accused appeared frightened by Mr Bechara.
Mr Vrynios however denied that the accused at any stage told him that he didn’t want anything to do with cannabis, nor that he wanted out of the Allenby Gardens operation. Mr Vrynios flatly denied that he passed any threats on to the accused from Mr Bechara at any time. He repeated that he didn’t recall the accused saying that he wanted to get out or that he didn’t want to stay involved with cannabis at any time.
In further cross-examination Mr Vrynios agreed that the accused became quite ill in 2010, after all three of the warehouses had been established, but that he was not absent for any extended period, such as three weeks, nor did he say he did not want to be involved with cannabis at that time. He agreed that the accused had problems walking, had difficulties with his ankles and was taking medication. He agreed he would get tired going up the stairs.
Under further cross-examination Mr Vrynios repeated that the accused never said that he wanted nothing to do with the properties including the Nailsworth property, at any time. He reiterated that the accused knew about and was a voluntary party to all of the cannabis operations.
Mr Vrynios was cross-examined about the property at 55 West Street. He denied taking over that property, or indeed any lease at West Street. He said that the accused and Mr Donjerkovic were sharing the house at West Street and that the three of them set up the hydroponics room there. He said the accused had his furniture, clothes and heater in the house where the hydroponics room was. He said Mr Donjerkovic only lived there for a two to three week period. He said that the accused put the lock on the door of the hydroponics room after the crop was established. He said the accused took the cannabis out of the West Street premises and it was ultimately packed at the Gepps Cross premises.
Under further cross-examination Mr Vrynios repeated that he did not see Mr Bechara threatening Mr Bednarz, the accused, at any time, to keep him involved in the cannabis operation.
Mr Vrynios was cross-examined about phones. He said he would purchase phones and they would change phones every four to six weeks. He gave the accused a new phone every month. He said that was for the purpose of communication about the cannabis crops.

The court subjected Mr Vrynios’ evidence to the close and careful scrutiny that the law requires, both as it was given and in subsequent consideration of it, mindful of the warnings that courts must observe when considering the evidence of accomplices and the ways in which the experiences of courts over the years have shown that their evidence can be unreliable, and mindful of the dangers of convicting where the evidence of an accomplice is uncorroborated. In particular, I bear in mind that Mr Vrynios sought and received support from police in his sentencing process, and received credit in the form of a reduced sentence for his volunteering to give information and agreeing to give evidence against the accused. I bear in mind without repeating all that defence counsel put to Mr Vrynios on this topic in cross examination, and submitted on this topic in the course of his address.
At the conclusion of a very lengthy and searching cross-examination, I formed a provisional impression that Mr Vrynios was a good and consistent witness. His demeanour was straight forward, his delivery was matter of fact, and he did not seem to possess any malice against the accused, if anything, the opposite. The narrative of events he gave was clear, logical and apparently credible. His descriptions of the accused’s involvement at the various premises were detailed, consistent and apparently credible. His evidence remained consistent as to a very lengthy and detailed account of events over many months. His description of the role played by the accused and others was consistent with the respective qualifications of those concerned and the physical limitations that the accused had and his general health.
Overall he was a very good witness.
Police evidence
As earlier foreshadowed, on 3 August 2010 police located the accused at Charles Street Allenby Gardens in the process of harvesting a 26 plant cannabis crop. The crop was grown under a sophisticated hydroponic system concealed in purpose built rooms in a mezzanine area concealed above the offices. Unconnected office equipment had been left in the front offices to give the impression of a legitimate business. Significant building efforts had been undertaken to conceal the cannabis crop, including a fake ceiling beam and walls. Overall, the police evidence, the photographs and the police expert evidence establish that it was a well organised, a well constructed, sophisticated “state of the art” hydroponic cannabis production facility. It would obviously have taken some weeks to set up.
The accused’s fingerprints were located on three of the hydroponic shades in the grow rooms. The accused was also the lessee of the premises, having negotiated, signed and secured the lease in November 2009.
On 14 August 2010 police located another commercial premises set up in a very similar way, at 702 Main North Road Gepps Cross. The police evidence, photographs and the police expert evidence establish that the same type of hydroponic equipment was used to equip a large cold store at the rear of those premises, also locating pots and cannabis debris indicating that a large cannabis crop had been harvested recently. The accused’s fingerprint was located on one of the cannabis hydroponic shades set up in one of the grow rooms.
This evidence is all clear and unchallenged.
The evidence is accordingly that the accused was involved in the leasing of the premises at Allenby Gardens, and he had been the lessee since November 2009, throughout the period when the construction of the grow rooms and installation of all the equipment must have occurred, and during the period when cannabis could have been and was grown at those premises, and that he was caught in situ harvesting the cannabis crop on 3 August 2010.
Police evidence also establishes that at Allenby Gardens there was a significant quantity of partially assembled hydroponic equipment in the office area of the premises, and that computer and office equipment installed to give the appearance of a legitimate business was largely unconnected. The cannabis and hydroponic equipment is plainly visible in some of the office rooms.
The photographs and undisputed police evidence establishes that there was a high degree of sophistication inherent in that property.[43] Police also located a number of invoices addressed to, or to the attention of the accused at Allenby Gardens, together with a bundle of hand written instructions about how to grow cannabis. All these papers were in the office area, not secreted in the upstairs mezzanine grow room area.
[43] This is immediately apparent from P2, the photos taken by police of the Allenby Gardens premises.
When police attended the 702 Main North Road Gepps Cross premises on 14 August 2010, no one was initially present. Police cut the padlock on the gate and forced entry. A number of photographs per P24 and P25 were tendered which reveal a similarly high degree of organisation, sophistication and the use of common hydroponic equipment, including the construction of new walls. Mr Vrynios was arrested as he approached and appeared to attempt to decamp from the property.
Police also searched the 55 Main North Road Nailsworth premises. They did so on 25 August 2010. Those premises comprised a warehouse with a reception and three offices at the front. The offices were sparsely furnished in a way similar to Allenby Gardens, with no sign of actual business activity. Wooden walls had similarly been constructed in the warehouse to make three grow rooms. There was similar ducting and piping to that located in the other two premises, but police did not locate any cannabis there.
On 14 October 2010 police attended the 55 West Street Torrensville property. Detective Bone gave evidence that no one was there upon arrival. The police forced entry pursuant to their search warrant, and searched all the rooms except two that were locked. A key was located which opened one of the rooms near the rear kitchen area. Police could hear electric humming behind the remaining locked door. While police were in attendance, the accused and Ms Walker arrived at 54 West Street, opposite the 55 West Street address. Detective Bone arrested the accused and interviewed him. He asked whether the accused had a key to the locked room. The accused obtained a key from 54 West Street and that was used to open the door at the searched premises at 55 West Street. That room contained hydroponic equipment consistent with but on a much smaller scale than the set ups found at the other locations.
Police interviewed the accused. He told police that he used to reside at 55 West Street address, but that despite the fact that his clothes were there, no one resided there now. He agreed there were hydroponics in the locked room, but said that the house had been occupied by someone called Tony Rogers, who had moved to the country some time previously. He agreed that documents located in the house were also his or his partner’s. When asked whether the police would find his fingerprints on the hydroponic equipment, he told police that they probably would as he had moved some of the equipment around. He told police he knew that the house had been used to grow cannabis.
As the interview proceeded, the accused became more agitated, ultimately accusing the police of being the only ones not growing cannabis and indeed that they did not have the balls to grow it.
Detective Stanborough gave evidence that he had attended on 3 August 2010 at Charles Street Allenby Gardens and that he interviewed the accused at that earlier time. The accused told Detective Stanborough that his occupation was “cutting dope” but that he had only been doing it since 8:30 the previous morning for $50 per hour. He said he had received a phone call from someone called Steve who asked him to trim the plants. He said he had been left a note at some stage to wipe down the lights. He said he would simply be left the money, he didn’t know by who.
There is no suggestion in either of the interviews that the accused was in fear of anyone, nor that he has been threatened by anyone whatsoever to take part in harvesting cannabis.
At the outset of 3 August 2010 conversation at Allenby Gardens, the accused told police that he has been cutting dope, but indicated that he has little other knowledge of the operation or the premises. As the interview proceeded, he agreed he had a key to the premises and anticipated that it would take three to four days to complete the task. He said he didn’t know who owned the premises, although it was “commercial group or something” and that a mate of his was running “Adelaide Cleaning Maintenance Services” who had a sign at the front. He said he didn’t know who would pick the cannabis up, nor who would pay him. He said he didn’t know what the electricity bill for the premises was, nor who paid that.
As the interview proceeded a little further, he told police that he became involved with the premises as he wanted to share the workshop to do maintenance and that he had nothing to do with what was happening upstairs in the mezzanine where the cannabis was located. He told police that he just came to the premises one morning and all the cannabis had been installed upstairs. He said he didn’t see the setting up of the cannabis operation upstairs, but that it just turned up when he came in.
In his 14 October 2010 interview at 55 West Street, the accused admitted that the house had been used to grow cannabis, the locked hydroponics room was there and initially denied having a key for the door. He then located the key to the locked door, in his own kitchen at 54 West Street and the locked door at 55 West Street was opened. He told the police that he had a “blue” with his partner the previous year, and he therefore lived at 55 West Street sharing it with a mate before returning to the property across the street. He said that mate was someone called Tony Rogers, but that he was no longer there. He agreed that his clothing and documents were in the house. He denied the hydroponics equipment was his, but when police told him it would be fingerprinted, said that he had probably moved it around. He said he knew Tony Rogers was growing cannabis at the house. He claimed Rogers had the room locked, notwithstanding he, the accused, had the key.
At that point in the interview accused appears to have lost his temper, accusing the police of not having the balls to grow cannabis and telling them they are the only people who would not be growing cannabis. Shortly afterwards the accused exercised his legal right not to answer any further questions.[44]
[44] The accused was perfectly entitled to not answer any questions at any stage, and there can be no adverse inference whatsoever where, as here, a person exercises their legal right to do so.
It was formally agreed that the accused had leased the Charles Street Allenby Gardens premises from 26 November 2009, taking possession of it on 2 November 2009. It was agreed that at that time the wall on the mezzanine floor had not been constructed and that such construction was never authorised by the landlord.
It was agreed that 702 Main North Road Gepps Cross had been leased by Mr Vrynios commencing on 11 January 2010 for 2 years. It was agreed that the accused’s fingerprint was located on the interior surface of one of the light shades that formed part of the police exhibit CAG18, a lightshade located in grow room 4 at the Allenby Gardens warehouse. It was agreed that the accused’s fingerprint was located on the interior surface of two separate lightshades located in grow room 1 at the Allenby Gardens warehouse, and a further fingerprint of the accused was located in grow room 2 at the Gepps Cross warehouse on a lightshade.
The accused’s DNA was found on the interior surface of six of the used gloves seized by Sergeant Surman at Charles Street at Allenby Gardens.
A range of other matters including the analysis of the cannabis located were agreed or tendered by consent.[45]
[45] See transcript pages 475-484 and exhibits P46, P47, P48, P49, P50, P51, and P52.
Amongst those matters was a statement from the proprietor of “Rob’s Garden Centre” which deposed that “Tony” and “George” on many occasions, and on one occasion someone called “Anthony”, purchased a large amount of hydroponic equipment for cash between 4 November 2009 and 24 July 2010. These comprised over 40 orders over that time and the purchases amounted to about $160,000. The proprietor said that enough tubs for 130 cannabis plants were purchased, and 70 lights (including shades, bulbs and ballast) were purchased by this group. He said that it is not necessary to have one light per plant.[46]
[46] See P50, statement of Francesco Antonio Leonello, owner and manager of “Rob’s Garden Centre”.
Putting aside for the moment the issue of whether any of the police and other evidence tendered amounts to corroboration of Mr Vrynios in a legal sense, which such issue I will consider later in this judgement, all of the evidence seized by police and tendered at the trial is broadly consistent with the account given by Mr Vrynios of the events in question and the involvement of the accused and others.
The defence case
It is important to remember that an accused is not obliged to give evidence or prove anything whatsoever, and it is always for the prosecution to establish every element of any charge against an accused beyond reasonable doubt. In this case however, the accused gave evidence on oath. In doing so it is important to acknowledge that he adopted a course that he was not obliged to take. He had the right to remain silent. He is accordingly entitled to credit for adopting a course he was not obliged to adopt.
The accused gave evidence that he has lived at 54 West Street Torrensville with his partner Christine Walker, since 2005. He gave evidence that his health was bad, and described a range of conditions that he was having difficulty with, and he said that it meant that he could not climb stairs.[47]
[47] Transcript page 498.
He gave evidence that in 2009 he moved out of 54 West Street for a short time due to domestic troubles. He said that that year he lost money and that had caused difficulties and their relationship had been affected. Domestic issues followed and he rented 54 West Street after temporarily being at other premises. He bought new furniture and clothes as his old furniture and clothes were all at 54 West Street. He said that he spent most of his time at number 54 between October 2009 and January 2010. He said that Mr Vrynios who he had come to know by that stage, said he would take over the lease in January 2010, and a person who the accused subsequently came to know as Tony Donjerkovic, moved in then.
The accused said he met Mr Bechara in 2005. The accused said that he the accused had been detailing cars for many years and was involved with them in various ways. He said he and Ms Walker were renovating her house at number 54 West Street and he borrowed $10,000 from Mr Bechara to assist with the plumbing. He took out more loans over time to assist with the renovations, paying them all back. He said the last loan was repaid in August 2008. At that time he said his business “KC Buff & Shine” was going well. He denied that loan documents tendered as P39 indicating a loan outstanding to Mr Bechara of $32,500 as at August 2008, were right. He agreed he had received $5,000 as indicated in a receipt dated 4 August 2008 in that file, but that was the last $5,000 he had borrowed from Mr Bechara and he subsequently paid it back.
Shortly after he paid Mr Bechara the $5,000 back, he said Mr Bechara proposed that they go into business together. Mr Bechara suggested that he would fund the accused buying cars, fixing them up and being sold for a profit, with the two of them sharing the profits. He agreed, and over time, he bought 30 or 40 vehicles, fixed them up and they were sold pursuant to the agreement. Mr Bechara handled all the money, and ultimately there was a cumulative profit of $80,000 but at that point he said Mr Bechara disappeared and he never got his share of that money. That was, he said, in late 2008, or early 2009.
The accused said he met Mr Vrynios in August 2008 in relation to a vehicle. Over time he saw Mr Vrynios a number of times, as they lived in the same area. He gave evidence that in about October 2009, Mr Vrynios proposed that they also become involved in a business. The idea was that he accused would assist Mr Vrynios with his work and the accused would also do his car painting and buffing. The idea would be that they would share the one workshop for these purposes. He said Mr Vrynios told him he had located a warehouse at Allenby Gardens and ultimately, at Mr Vrynios’ behest, he negotiated and leased the Charles Street Allenby Gardens premises in his own name. Mr Vrynios provided all the money.
The accused said that he commenced his business there buying several cars over the space of a few weeks. The accused said Mr Vrynios provided all the money to purchase these cars.[48] The accused said that he never got his share of the profit from Mr Vrynios either.
[48] Transcript p 521.
The accused said there was no mention of cannabis nor any suggestion that cannabis would be grown at the Allenby Gardens premises.
He said that things changed in mid December 2009 when he was told he couldn’t do any more spray painting. He said that a week or two after they moved into Charles Street Allenby Gardens, a person called Stephen Howe had come along and said he was interested in leasing the mezzanine area as long as a wall was built up there, for the purposes of a data centre. He said that Mr Howe said he would pay all the rent and outgoings for the whole property in exchange for being able to install and conduct that data centre.
The accused said he got a letter of intent from Mr Howe on 2 December 2009, or thereabouts, agreeing to pay all rent, power and council rates for the premises, and he tendered a document dated 2 December 2008 purportedly signed by a Stephen Howe to that effect.[49]
[49] Exhibit D2.
The accused said that a wall was built in the mezzanine, which he helped to construct. He said he received notes from Mr Vrynios what to do, and he would cut up the timber. He said he would return a few days later to find it framed up. He said he didn’t go up to the mezzanine. He said a lot of work occurred at night when he was not there.
He agreed that notes located by the police in his handwriting indicating that he would be “back soon” were at the premises.
The accused said he was upset that he had been told he could not spray paint. He said that for that reason Mr Vrynios told him that he would fund the accused to locate other premises where he could conduct his car business. In the meantime, he took three or four vehicles to another spray painter Mr Maiolo. Mr Maiolo subsequently gave evidence that indeed the accused did have vehicles spray painted at Mr Maiolo’s premises at around that time. The accused said he did help set up the trailer located by police at the premises, but that it was for legitimate gardening and maintenance work.
The accused said that as a result of Mr Vrynios’ offer to fund it, he secured premises at 85 Main North Road Nailsworth in very late 2009. Notwithstanding that, the accused said he was never able to pursue his car business at Nailsworth as Mr Vrynios never obtained any cars and because the accused was ill for an extended period around February. He said he did spend time there, painting the front of the building and setting up the office.
The accused gave evidence that he first thought something was wrong when he saw the May 2010 power bill for Charles Street Allenby Gardens. That bill was $8,402.00. The accused said he approached Mr Vrynios about it and he accused Mr Vrynios of growing cannabis upstairs in the mezzanine area. He said Mr Vrynios didn’t agree or deny that.

The accused said he was then told to attend a meeting with Mr Bechara at Nailsworth. The accused said that he was at Nailsworth speaking with Mr Vrynios when Mr Bechara came in yelling and screaming and threatening that if he, the accused, did anything Mr Bechara was going to crack his head open and he would be in a wheel chair for the rest of his life.[50] The accused responded he wanted nothing to do with cannabis. What is clear from his evidence at page 540 of transcript, is that the accused was saying that he was told that if the accused did anything Mr Bechara was going to crack his head open. In other words, that Mr Bechara was telling the accused not to do anything about the cannabis and not tell anyone about it.
[50] Transcript p 540.
Although he is not entirely clear about the respective time scales, the accused said that that around that time Mr Vrynios told him that he had been forced into the cannabis operation and wanted to get out.
The accused then gave evidence of other threats that he said he received from Mr Bechara, although it was never very clear from his evidence exactly when these occurred. The accused gave evidence that on one particular other occasion at Mr Bechara’s mother’s place, Mr Bechara told him that if he was to say anything or lag on anyone, Mr Bechara was going to dig a hole and bury him. He said that Mr Vrynios told the accused that Mr Bechara wanted to meet his son and that at one stage Mr Bechara also told the accused that he wanted to meet his son, and the accused took that as a threat as well.[51]
[51] Transcript pp 546-547.
The accused said that Mr Bechara said that if the accused ever dobbed in on him, or told anyone what he was doing, Mr Bechara was going to get his son and kidnap his grandchildren. The accused said he was threatened on many occasions between then and 2 August 2009. He described screaming, and said that on another occasion Mr Bechara took out a pistol. As a result the accused said he feared for his life.
The accused said that Mr Bechara would tell Mr Vrynios to pass on instructions as to what he was required to do, and he believed he had to do it or he would be “got” in some way. He said he witnessed Mr Bechara threatening Mr Vrynios when Mr Vrynios was trying to get out of the cannabis business. He said he saw an occasion when Mr Bechara gave a guy a called Johnny a hiding. He gave evidence of other threats.
The accused gave evidence that even after he had been arrested on 3 August, he was picked up by Mr Bechara and Mr Bechara’s accountant, and was threatened in the vehicle by Mr Bechara. Unfortunately, that had not been put to Mr Bechara’s accountant who had given evidence earlier in the trial. The accused said that Mr Vrynios would pass on threats to him from Mr Bechara.
The accused said that he did see some hydroponic marijuana lightshades in the driveway at Charles Street Allenby Gardens in May of 2010. He said that he thought “what the hell are those doing here?”, but that he brought them in and put them in the side room of the office area. Ultimately, the defence case was that those actions explain why a lightshade located at Gepps Cross contained the accused’s fingerprint.
The accused said that over the ensuing months from May to August 2010, the accused would do debt collection work for Mr Bechara, essentially travelling around Australia to places such as Cairns, Wollongong and Sydney to pick up loan money that was owed to Mr Bechara. He said he would occasionally deliver that money to Mr Bechara at a café in Prospect, and did so in the presence of Mr Bechara’s accountant. The accused said he did this because he was in fear of his life. This was somewhat incongruous evidence, as to that point the accused did not give evidence that Mr Bechara had threatened him to get him to actually do anything, rather his primary thrust was that Mr Bechara had threatened him in the context of warning him not to tell anyone or do anything about the cannabis.
The accused gave evidence that indeed he had lived at 55 West Street after an altercation with his partner, but said that a person called Tony Rogers lived at 55 West Street after Mr Vrynios, he claimed, had taken over the lease payments from him. He denied putting a lock on the door of the hydroponic room at 55 West Street and said he did not know how it got there. He said he had nothing to do with the hydroponic equipment found in that room. He said he didn’t know anything involving cannabis was going to happen at that place, and that he would not have allowed anyone to live there for that purpose.
The accused said that he knew nothing about cannabis being grown at 702 Main North Road Gepps Cross. He told the court he didn’t even know where that place was until the police told him that he was charged in relation to that place. He said neither Mr Bechara, Mr Vrynios nor “Tony” ever told him about Gepps Cross.[52]
[52] Transcript p 566.
On the next day of trial the accused continued his examination in chief and was asked by his counsel whether he had ever been threatened with a weapon. The accused said that there was a day in late July when Mr Bechara pulled out a large long barrel gun and said “if you don’t get there and cut the dope I will bury you”. The accused said that was a week before he attended to harvest the cannabis and was apprehended by police on 3 August 2010.[53] The accused said he feared he would have been shot if he did not comply.
[53] Transcript p 574.
The accused then said that prior to the threat with the gun, perhaps a week beforehand, Mr Vrynios had conveyed a message to him from Mr Bechara that he had to cut the cannabis and he had told Mr Vrynios that he did not want anything to do with it. The accused said that because of the threat, he feared for his life and the safety of his family. He said he was too scared to go to the police because he knew what Mr Bechara could do, and he claimed that Mr Vrynios said to him “if he can’t get to you someone else will get to you”. The accused said they were the worst threats he received in his life. He thought he or his children would be harmed if he did not comply. He said he thought even if he went to the police “I still feared that he would get to me somehow”.[54]
[54] Transcript p 577.
The accused said that as a result of the threat he received from Mr Bechara with his gun, he subsequently told Mr Vrynios he would go to Allenby Gardens on 2 August and cut the cannabis, which he did. He said he took his partner, Christine Walker, with him.[55]
[55] In later cross-examination as to why he would do that, and involve his partner in cannabis harvesting for a violent and threatening criminal who had threatened to harm his family, he said it was to get it done quickly.
The accused gave evidence of his attendance on 2 and 3 August. He said that there were some electricity bills, but that none of the documents police claimed they had located reflected in exhibit P8 and P9, the real estate brochure for 1 Charles Street and the memorandum of lease, were anywhere on the premises. He said some papers, those reflected in exhibits P42 to P48, were in fact on or in a bench located in the warehouse area.
The accused then gave evidence about his record of interview with police on 3 August 2010. The accused said he lied to police in a number of respects in that record of interview. Indeed much of that record of interview is quite inconsistent with his evidence at trial. The accused said that he lied to police that he would be paid $50 an hour, or that he’d been offered any money at all to cut the cannabis. He went through the interview and said he’d lied in relation to a number of other answers given to police, and said he did so because he was scared.
Many of the accused’s denials are not explicable on the basis that he was scared. He was plainly prepared to and did answer police questions. The responses have the immediate flavour of somebody caught harvesting cannabis, attempting at the time to minimise their involvement to what the police actually located him doing. A number of answers given in the record of interview are quite inconsistent with his subsequent evidence and with the suggestion that he was scared for his life of Mr Bechara. In particular, he told police the reason his partner Christine was there because she wanted to earn some money. He told the court that his reason for her presence was that he was petrified of Mr Bechara and wanted to get the harvest over and done with quickly.
He told the court that his comment to police that he had been paid $150 for wiping down the lighting was not true. When asked why he told police that, he said “because it was mentioned to me, but I knew nothing was going to happen. I didn’t want to do it”. His answers on this topic, like many other topics he was taken to in cross-examination concerning his interviews, were jumbled and inconsistent.[56] It is telling that much of this confusion arose in his own examination in chief, let alone in cross-examination. He told the court that many of his other answers to police such as for example that he had received a phone call from Steve asking him to cut the plants, were lies and had been fabricated for various reasons.
[56] Transcript pp 601-602.
The accused also gave evidence about the interview he had with police on 14 October 2010 at West Street. He told police that he knew that dope had been growing in a locked room. He said to the court that he only knew that because since his 3 August arrest, he had gone over there and the key had been in the door at the time, and he opened the door and had seen all the hydroponic equipment there. He said he had nothing to do with the hydroponic equipment put in that room, nor had he permitted the house to be used for growing cannabis.
He said he told police that he did not have a key, meaning he did not have one on himself, but that there was one in the kitchen. He told the court that he made up his answer in relation to someone going to Roxby Downs and made up that there was a Tony Rogers living at West Street. The accused claimed that he had clothing at 55 West Street as he had nowhere to put it in his house at 54 West Street. When asked about whether his fingerprints were possibly on the items at 55 West Street, he told the court he moved the items around as they were messy. He told the court that all of his answers about how to contact Tony Rogers were lies. He said those lies were because he was angry with police. That, as with many other of his answers in evidence, was illogical and highly unconvincing.
As a further example, he said he told the police he knew his house was being used to grow cannabis, because he was angry with the police. That answer was similarly illogical and unconvincing. There are many other examples.
He said that he accused the police of not having enough balls to grow dope themselves because he was angry with the police because he regarded them as having made smart comments to him.
Overall, his explanations to the court of the answers he gave to police in the interview conducted at 55 West Street were at least as inconsistent and unconvincing as the answers themselves.
The tenor of his responses in both his records of interview is quite inconsistent with the suggestion that he was frightened and threatened at any time in relation to his involvement with the cannabis at Allenby Gardens.
The accused denied that there were any code names between the group to describe each other or any premises, as suggested by Mr Vrynios in his evidence.
The accused also gave evidence as to the meaning of the various conversations that were recorded and tendered. He was asked to explain why the conversations between he and Mr Bechara and his partner Christine Walker appeared so happy and positive at all times. He responded that he had told Ms Walker to never say anything negative to Mr Bechara at any time and be happy at all times. The accused’s explanations of the various phone calls put to him were, regrettably, as jumbled and confusing as were his answers attempting to explain his two records of interview.
The accused was then cross-examined extensively by the Crown.
In cross-examination counsel for the prosecution highlighted the incongruity of the business proposal that the accused had suggested was in place, that Mr Vrynios would pay the entire cost of the Allenby Gardens premises initially, and then that the mysterious Mr Howe also agreed to pay everything in exchange for a concealed data centre being set up upstairs, which the accused never saw installed or operated. The incongruity of Mr Vrynios then offering to completely fund the new premises at 85 Main North Road Nailsworth simply to allow Mr Bednarz to conduct his car detailing business there, was also highlighted.
The accused explained that he was happy to sign the lease for Allenby Gardens and be liable for a very significant ongoing lease payment because he had little assets for anyone to have recourse to. He agreed he did not have a dealer’s license to do any buying and selling of cars, but that Mr Vrynios was going to organise one for him. He agreed there are no receipts or group certificates to substantiate any payments of a legitimate nature to the accused by Mr Vrynios for work in Mr Vrynios’ maintenance business. He agreed he also signed the 55 Main North Road Nailsworth lease incurring a further $3,000 per month liability for rent. Again someone else paid the electricity bills and he never received accounts for those premises.
The cross-examination about the person Stephen Howe highlighted the incongruity and unlikelihood of someone simply appearing and offering to pay the entire rent and outgoings of the premises just so that they could conduct a concealed data resource centre, which no-one ever saw installed or operating.
The accused was taken through his evidence again and overall his responses were as jumbled and inconsistent as they were in examination in chief, and in the final analysis, unconvincing.
The accused suggested that the various lease documents located by police allegedly at the warehouse were in fact found at his own house, and were not at the warehouse at all where the police claimed they found them.
When the accused was asked what he thought when he saw a wall appear in the upstairs mezzanine area of Charles Street, painted and camouflaged like concrete without a door, he said he didn’t wonder why any of that was the case. He said he never knew that the other entrances, which appeared plainly blocked from the photos, had been blocked off. He said he never saw anyone enter or exit the upstairs area or ever gave it a thought. These answers were not credible. Whether the upstairs premises were being used as a data centre, or for growing cannabis, or for anything else, it is obvious that they were being used for something and that it was something that was being actively concealed. It is highly unlikely that someone such as the accused who held the lease for the premises in his own name would have had no interest or suspicion about what was going on there, as the accused claims.
The accused’s answers in cross-examination about his records of interview were similarly as jumbled and unconvincing as his answers in examination in chief about them had been. There were numerous examples of this. For example, he asserted in court that when he told police that he simply saw the cannabis plants at Allenby Gardens when he came back in one morning, he was in fact referring to 2 August, the day before the police interview. This explanation in cross-examination is completely unconvincing. The whole flavour of the record of interview is that he was referring to a time when the plants had been put in some months beforehand. The prosecution suggests that he couldn’t admit that in cross-examination, because that was inconsistent with the defence he was now mounting in court that he did not see the plants until 2 August 2010.
Also, for example, at one point the accused claimed his health would not have allowed him to go up the stairs to the mezzanine to construct the mezzanine or tend the plants, and that he was incapable of climbing stairs, but at other points he agreed he’d been up on the mezzanine floor harvesting the plants when the police arrived and indeed either on that occasion or some other occasion, wiping down the lights as directed.
Further inconsistencies abound. His explanation about how his fingerprint was located on the mezzanine lightshades is inconsistent with the location of those prints. He said he wiped down lightshades after the removal of the wire mesh, but it was formally agreed that the prints were found in the area where the wire mesh had not been removed.
The accused’s answers in cross-examination on all the topics raised with him were jumbled, inconsistent and incredible. Overall, he was an extremely poor witness.
The defence tendered an Evans and Clarke tax invoice for a 1994 Ford Courier, auctioned on 6 November 2009 and sold to Mr Bechara, and an Evans and Clarke tax invoice dated 4 January 2010 evidencing the sale of a 1992 Mercedes Sedan to Mr Bechara on 17 December 2009. Those documents were lead in support of the accused’s evidence that he indeed worked on vehicles purchased by Mr Bechara in late 2009 and early 2010.
Finally, the defence called Mr Maiolo, a panel beater who confirmed that he did do work on perhaps half a dozen cars for the accused, including mixing paint for the accused to paint a trailer.
It was also agreed that prior to the trial the accused approached the police about the possibility of providing information about Mr Bechara, but that no statement had been taken from the accused about that matter, and that the court should not draw any inference, adverse or otherwise from these facts.
Addresses of counsel
Both prosecution and defence counsel addressed the court at length.
I have had regard to both addresses in their entirety and all the issues raised therein. I do not propose to repeat every point raised herein, but I have closely considered everything said.
The prosecution argued that the evidence plainly establishes that the accused voluntarily involved himself in growing cannabis at the properties in the circumstances alleged in each of the three counts in the information. The prosecution pointed to the direct evidence from Mr Vrynios of the accused’s hands on involvement in every crop from the outset. The prosecution argued that Mr Vrynios’ evidence was clear, detailed and consistent and that he should be accepted. The Crown conceded that Mr Vrynios evidence must be scrutinised with care, fully cognisant of the risks of acting on the evidence of an accomplice, the incentive he had to cooperate and provide evidence against the accused, the credit he has received, and the immunity that he was granted in relation to revealing any other offences in the course of his evidence.
The prosecution argued that Mr Vrynios was straightforward, full and frank in his evidence, and did not try and minimise his own involvement in the matter. The prosecution also pointed to circumstantial evidence against the accused in the form of the fingerprints located on the lightshades at both Allenby Gardens and Gepps Cross. They argued that his explanation about those fingerprints was patently fabricated. The prosecution argued that his involvement in the leasing of Allenby Gardens was central and inconsistent with the minor role he claimed he took in relation to those premises. The prosecution pointed to the negligible effort the accused apparently made to set up or pursue any legitimate business at the Allenby Gardens premises.
The prosecution argued that both his records of interview lack credibility, and the incongruity of his claimed defence of duress with all the objective evidence by way of telephone intercepts, records of interview with his own evidence. I mention just two incongruities highlighted by the prosecution.

The accused claimed he would not have continued harvesting the plants if he felt cold, and the prosecution argued that how could this possibly sit with his evidence that he was compelled to harvest the plants in fear of the murder of himself, his son and the kidnapping of his grandchildren.[57]
[57] Transcript p 748.
A second incongruity is the inexplicability of exposing his partner, Ms Walker, to such extreme danger by involving her in Mr Bechara’s cannabis business, if he had any concerns whatsoever that he and his family were under actual threat.[58]
[58] Transcript p 749.
These are just two of the persuasive arguments proffered by the Crown that the accused held no genuine belief whatsoever that he was under any threat at the time of his involvement in the cannabis activities of Mr Bechara and Mr Vrynios alleged in the charges before the court.
On the other hand, the defence argued that the Prosecution had not proven beyond reasonable doubt that the accused was involved in the first crop at Allenby Gardens reflected in count 2 in the information, nor in any aspect of the cannabis crop at Gepps Cross as particularised in count 3 of the information.
The defence argued that the accused’s involvement in those alleged offences was almost entirely based on Mr Vrynios evidence, and that Mr Vrynios should not be believed.
Defence counsel argued that it had adequately fulfilled its evidential onus in relation to duress, and that accordingly it was for the prosecution to negative duress beyond reasonable doubt, and that it had not done so.
Defence counsel argued the court should regard as a reasonable possibility the accused’s evidence that he had nothing to do with the crops particularised in counts 2 and 3 in the information, and that he was indeed summoned to a meeting with Mr Bechara whereupon the threats began. He argued that by 2 August 2010 it was a reasonable possibility that the accused was petrified of Mr Bechara and had received and witnessed a range of threats and other activities and received information about Mr Bechara which would make a person of ordinary firmness of mind have their will overborne. He argued that the accused’s evidence was supported by the anger displayed by Mr Bechara in some of the telephone intercepts, and supported by Mr Vrynios’ evidence of the various threats that Mr Vrynios said Mr Bechara made to him to do things and not to cease his involvement in the cannabis activities.
I take into account all the evidential references and matters raised and argued by defence counsel on that issue, and in relation to all of the issues.
Defence counsel emphasised Mr Vrynios’ evidence about information he had heard about Mr Bechara, and the things he had seen Mr Bechara do, and argued that ultimately a person may well not think that police could adequately protect against such a threat. He highlighted Detective Wright’s evidence about police investigations and suspicions of Mr Bechara in relation to other matters. Defence counsel highlighted the fact that Mr Vrynios was an accomplice and all the matters that were relevant to that. He argued that Mr Vrynios had every motive to fabricate evidence that the accused was involved, to curry favour with the police and get their assistance to secure himself a lesser sentence. I take all of those into account. He urged the court to accept the accused’s explanations about how his fingerprints were on hydroponic equipment associated with both hydroponic cultivations.
Defence counsel argued that his client’s evidence was a reasonable possibility, and that accordingly there was a reasonable doubt about whether the accused was involved at all in the earlier crops, and at the very least a reasonable possibility he acted under duress in being involved in count 1.
Consideration of the evidence
There is no doubt that an organised hydroponic cannabis growing enterprise had been conducted at both premises the subject of the three charges against the accused. Police raids on 3 and 14 August 2010 located sophisticated built-in hydroponic cannabis setups at each premises, and it was never suggested otherwise. Police found the accused in the process of harvesting the cannabis crop at the Allenby Gardens address on 3 August, and the cannabis debris located all around the pots at Gepps Cross leaves no doubt about the purpose of that hydroponic set up.
These set ups were consistent with the amount of hydroponic equipment sold for about $160,000 cash by “Rob’s Garden Centre” to two persons fitting the description and first names name of Mr Vrynios and Mr Bechara, between 4 November 2009 and 24 July 2010.
There was plainly a commercial quantity of cannabis plants at Allenby gardens where the accused was located on 3 August, and it was plain that the accused was in the process of harvesting it. It is plain from all the circumstances, including the accused’s record of interview that day, that he knew the plants were cannabis and it is plain that he would have known from the scale, concealment and obvious cost of such an operation that they were being grown commercially for the purposes of ultimate sale. In any event, there was more than a trafficable quantity of plants and there has been no attempt to displace the presumption that arises as a result of the legislation that the accused possessed the relevant intention. There is therefore direct evidence, without the need of recourse to Mr Vrynios’ evidence, that the accused was cultivating a commercial quantity of controlled plants with the relevant intention as alleged in count 1. The potential defence of duress has been raised.
Where duress is raised, the defence has an evidential onus, but once that onus is satisfied the prosecution must prove beyond reasonable doubt that there was no duress.
In determining whether the accused has satisfied the evidential onus he has to raise concerning the issue of duress, it is appropriate to assess the evidence of claimed duress uncritically at its highest and ask whether if that evidence were to be right, it is evidence that (i) there was an unlawful threat of death or grievous bodily harm if the accused fails to commit the offence, (ii) the circumstances were such that a person of ordinary firmness would have been likely to yield to the threat in the way the accused did and (iii) the threat was present and continuing, imminent and impending … and (iv) the accused reasonably apprehended that the threat would be carried out and (v) he was induced thereby to commit the crime charged and (vi) that crime was not murder, nor any other crime so heinous as to be excepted from the doctrine and (vii) the accused did not, by fault on his part when free from the duress, expose himself to its application and (viii) he had no means, with safety to himself, of preventing the execution of the threat.[59]
[59] R v Hurley [1967] VR (FC) 526 at 543
There is a real question whether, even on his own evidence at its highest, (viii) could be satisfied. It is plain that no-one was in attendance at Allenby Gardens co-ercing and threatening the accused to be involved in the harvesting of the cannabis crop, nor had there been any threats over the previous few days. The accused says that two weeks prior to his apprehension he had been threatened and told via Mr Vrynios to cut the crop, and perhaps a week prior to doing so that Mr Bechara had pulled out a gun and told him that unless he cut the cannabis “I will bury you”. The accused therefore had, on his own evidence, two weeks from the first threat and a week from the second threat to report the cannabis cultivation and the threats he said he had received to police and seek police protection. As King CJ stated in R v Brown (1986) 43 SASR 33, it should ordinarily be assumed that reporting such matters to the police will be an effective means of neutralising intimidation. King CJ went on to acknowledge that in some situations that may not be an effective way of neutralising such a threat, although such situations must be considered to be the exception. In the final analysis that court said that if there is evidentiary material which raises a real issue as to whether the opportunity to seek police protection was a reasonable opportunity to render the threat ineffective, that issue must be left to the jury.
Here it is clear that the accused, on his own evidence had ample opportunity to tell the police about the cannabis crop and the threats well before he had to embark on the offence that he says he had been told to commit. He had however, according to his evidence, received a number of other threats from Mr Bechara over time, seen or heard about violence on the part of Mr Bechara, seen Mr Vrynios threatened, and heard much about what Mr Bechara had done or was capable of. I also take into account Mr Vrynios’ evidence about Mr Bechara, and the evidence elicited in cross examination from police about Mr Bechara. I agree with the submissions of defence counsel that all those matters are relevant when considering and assessing the seriousness of the direct threat to commit the offence that the accused said he received from Mr Bechara, and the degree to which reporting the matter to the police would be an effective method of neutralising intimidation.
Whilst there is indeed much to be said for the argument that in modern South Australia, with the ready availability of police and the avenues available through them for on the one hand the apprehension and prosecution of Mr Bechara and his identified associates and denial of bail, and on the other hand for the active police protection of the accused and his family, that objectively speaking reporting the cannabis and the threats to police would in the words of the former Chief Justice “be an effective means of neutralising intimidation”.
In many respects the issue is finely balanced. In the final analysis however, if I am to err it should be on the side of the accused, and so while it is indeed finely balanced, I find that the defence has raised “evidentiary material which raises a real issue as to whether the opportunity to seek police protection was a reasonable opportunity to render the threat effective”,[60] and that accordingly it is for the prosecution to prove beyond reasonable doubt that the accused did not commit the offence of cultivating a commercial quantity of cannabis plants at Allenby Gardens between 1 May 2010 and 3 August 2010 as alleged in count 1 of the information as a result of duress.
[60] [60] R v Hurley [1967] VR (FC) 526 at 543
Whilst it was faintly argued by defence counsel that the court should also consider duress in relation to counts 2 and 3, there is really no material capable of satisfying the evidential onus required. The accused says he was being threatened from May 2010 by Mr Bechara not to tell anyone and not to do anything about the cannabis that the accused said he had told Mr Vrynios he suspected was being cultivated on the mezzanine floor of Allenby Gardens. He said he knew nothing at all about the cannabis enterprise conducted at Gepps Cross. Neither he nor Mr Vrynios make the slightest suggestion that the accused was threatened so that he would take part in events the subject of counts 2 and 3. If the accused had been subject to threats in relation to counts 2 and 3, it would have been an easy matter for the accused to say so when he gave evidence, and he made no such suggestion. In all the circumstances there is no evidence whatsoever of duress concerning those two charges, and accordingly the evidential onus is not satisfied and the prosecution does not need to prove beyond reasonable doubt an absence of duress concerning counts 2 and 3.
I now turn to discuss the issues in primary dispute, ie the nature of the accused’s involvement in count 1 and whether the prosecution has proved an absence of duress in relation to count 1, and whether the prosecution has proven that the accused was relevantly involved in the cultivations the subject of counts 2 and 3.
The evidence of Mr Vrynios is centrally relevant to the charges against the accused as it comprises an eyewitness account of the accused’s involvement in all three alleged crimes. It is also relevant to the issue of whether the accused committed count 1 under duress, as the accused suggests that some of the threats made to him by Mr Bechara were made through Mr Vrynios or in his presence.
I turn to consider his evidence in detail. I refer to but do not repeat the observations made about Mr Vrynios’ evidence made earlier in the context of describing the course of Mr Vrynios’ evidence.
I carefully consider and apply the warnings that must be applied in relation to the evidence of an accomplice. I have given the evidence the close and careful scrutiny that the law requires, and I have been particularly aware of the experiences over the years that courts have had that reflect the dangers of relying on the evidence of accomplices. I have carefully considered all the issues and submissions made by defence counsel on that topic in his extensive and comprehensive final address.
After having given it the closest scrutiny, both in isolation as it was initially given, and again against the entirety of the evidence given at trial, including all the defence evidence, and with the considerable assistance given by both counsel in their addresses, overall it must be said that in the final analysis Mr Vrynios was a very good witness. He gave evidence in great detail about a lengthy series of events over several days and was cross-examined in great detail with commendable thoroughness by defence counsel. His evidence was clear, straightforward and consistent throughout in all but a few matters where an inconsistency with an earlier police statement was highlighted.
I have considered those inconsistencies as they were raised with him and as discussed by each counsel in their helpful addresses. In the final analysis I find that they were honest errors of memory and that, as Mr Vrynios said in evidence, the evidence of his police statements given much nearer the events concerned reflected the facts. Compared with the very extensive, consistent and detailed scope of his evidence overall, these matters were very few and very far between, and I find are indeed the occasional lapse of memory that one might expect with a witness trying to recall in detail the complex activities of each member of a drug syndicate over several crops at several premises for over a year.
Mr Vrynios in giving evidence in the circumstances that he did, undoubtedly had obtained a material advantage in terms of his sentence in return for his assistance to police and his promise to give evidence. He also subjected himself to the risk of reprisals, whether to himself or his family.
There were a number of aspects of his evidence which strongly support its credibility. Firstly, the high level of detail he was able to provide, with such detail consistent over time and over many days of evidence. His evidence also distinguished clearly between the roles performed by the various protagonists and distinguished the role the accused played at the Allenby Gardens premises with the different role and degree of involvement he played at 702 Main North Road Gepps Cross.
The accused’s lesser involvement as alleged by Mr Vrynios at 702 Main North Road, is consistent with the smaller degree of implicatory forensic evidence found there. Further, apart from the issues associated with being an accomplice and the credit he received, I could detect no other reason for Mr Vrynios to lie and falsely implicate the accused in the cannabis operations at the various other premises. Mr Vrynios was frank about Mr Bechara and the threats Mr Bechara made to Mr Vrynios and his habit of threatening people both generally and specifically, and about events of that nature that the accused may have been present at, or the subject of.
Mr Vrynios’ demeanour, presentation and approach in the witness box was also convincing and compelling. The narrative he gave was logical, clear and straightforward. Overall he was an excellent witness, and he gave the clear impression he was telling the truth from start to finish. It had the distinct ‘ring of truth’ throughout.
Putting aside for the moment the issue of whether there was corroboration, Mr Vrynios’ evidence was consistent with all the other evidence located by police and called in evidence, whether it was their physical findings at all the various premises, the lease and other documentation located and tendered, or the telephone intercepts. I closely scrutinised all the other evidence called as part of the prosecution case to detect any inconsistency with Mr Vrynios’ evidence, or any other indication from it that might indicate that he may be untruthful or unreliable, and could detect no such indication.
I turn to consider the evidence given by the accused.
In stark contrast to Mr Vrynios, the accused was a very poor witness. Throughout both evidence in chief and cross-examination his answers were jumbled, often inconsistent and confused. Events were described without any clarity as to when such had occurred. It was often hard to distil a clear narrative of events, so much so that it necessitated the accused’s own counsel having to take him back over events clarifying and distilling his evidence on many occasions.
A number of aspects of his evidence were inherently incongruous. His evidence was that a stranger proposed to pay all the rent and all outgoings for the Allenby Gardens premises he had just rented if that person could construct a data centre on the mezzanine of that property, which such data centre the accused essentially never saw installed and which then must have commenced operations behind a concealed door. The accused said he never saw anyone coming or going from the business that was operating and paying all of the expenses, although the accused says he was told to cease spray painting as it would interfere with the data centre operations.
The accused said that he then got an $8,000 electricity bill and therefore accused Mr Vrynios of cannabis being grown in the mezzanine, although he never saw that happen, he never went up there to check, and the first time he saw the plants was when he turned up on 2 August to harvest them.
It was also incongruous that on the accused’s evidence Mr Bechara suddenly made threats to him and continued them over months to the effect that harm would come to the accused if the accused told anyone about the cannabis or did anything about it, yet suddenly about a week or 2 before 2 August 2010 directed the accused to harvest that crop, rather than get whichever unnamed persons Mr Bechara must have had planting and tending and growing that crop in secret behind the mezzanine walls for four to six months, to do it.
The accused’s evidence was also significantly inconsistent with both the records of interview he gave to police, in the ways highlighted in the course of discussing that evidence. To explain the inconstancies between his defence and those records of interview the accused told the court he lied throughout both records of interviews in various ways.
It is also highly unlikely that anyone would have signed two such significant leases for commercial premises[61] with a view to conducting a vehicle detailing business, and then do so little to actually pursue that business. Even on the accused’s own evidence, only about four or so vehicles were dealt with and the accused received no money for any of his work on those vehicles.
[61] For Allenby Gardens and for 55 Main North Road Nailsworth.
It is also significant that the accused played a central role in the leasing both the Allenby Gardens premises and in the 55 Main North Road Nailsworth premises and took the leases in his own name. It is inherently unlikely that a person who did that would know so little about what occurred there, and have as little interest in that as the accused claimed.

Overall, the accused was a very poor witness and his evidence was completely unconvincing.
Quite aside from any issue of corroboration, such was the nature and quality of the evidence of Mr Vrynios and the nature and quality of the evidence of the accused, that even after applying all the requisite warnings and scrutiny required by law of Mr Vrynios’ evidence, I would accept the evidence of Mr Vrynios beyond reasonable doubt generally and in particular prefer it beyond reasonable doubt over the evidence of the accused wherever it may conflict.
Some independent evidence was available that potentially sheds light on the issue of duress.
In that regard, three intercepted telephone calls featuring the accused were led in evidence. These calls represent objective evidence of communications between the accused and Mr Bechara prior to the police apprehending them. As such they give an indication of the tenor and nature of the communication between the two during the period when the accused says he and his family were under ongoing threat of injury and death from Mr Bechara. The first of the three calls was at 8.04pm on 10 July 2010.[62] It constitutes a fairly breezy conversation between the two of them, firstly about the house the accused seems to have just stayed in when in Queensland, the accused seeming having just arrived back, and him driving out of the airport with Ms Walker with a view to meeting up with Mr Bechara. The second of the three calls is at 1.18pm on 3 August 2010, in fact the day of the accused’s arrest at Allenby Gardens.[63] The initial discussion is about when the rent is going to be paid, the accused telling Mr Bechara that the real estate people had called with Mr Bechara replying that it was taken care of, then there is an apparently coded reference to a person called “rats”, who was apparently meant to be bringing tea for the accused the previous evening but had not returned, with Mr Bechara replying that he was going to find out where he was, concluding with the accused saying that everything was perfect and good. The third call is less than an hour later at 2.03pm on 3 August 2010.[64] That was about two hours before the police attended Allenby Gardens. Mr Bechara rings the accused back and tells him that “Rats” is now on his way, and the accused asks whether he is bringing lunch. The accused says he, that is “Rats”, was meant to organise diesel and gas the night before, and appears to be pursuing Mr Bechara to see that that gets done, otherwise something un-named won’t start, and Mr Bechara says he will talk to him. There is then a lengthy discussion about how the cutting is going, and the conversation concludes with Mr Bechara asking the accused to also say hello to Chris, presumably meaning Christine Walker.
[62] Call 5935 per warrant 10100, tendered as part of P19, the transcript of which was tendered with the consent of the defence as P20.
[63] Call 243 per warrant 11011-00, tendered as part of P21, the transcript of which was tendered with the consent of the defence as P22.
[64] Call 261 per warrant 11011-00, tendered as part of P21, the transcript of which was tendered with the consent of the defence as P22.
It must be said that the tenor of these conversations is essentially inconsistent with the notion that Mr Bechara had been screaming at and threatening the accused and his family with harm and death regularly from May 2010 to July 2010 to ensure that the accused say nothing about and do nothing about the cannabis, and then had threatened to kill the accused and bury him if he did not suddenly become involved with the Allenby Gardens cannabis crop and harvest it in early August.
The tenor of the two records of interview are also in my view inconsistent with the notion that the accused was only involved with the Allenby Gardens crop under these imminent and dramatic threats of death and harm to his immediate family. One might think that if the accused was reluctantly at Allenby Gardens, being involved against his will in an illegal drug operation under threat of death to himself and family if he did not undertake it, he would have been at the least visibly agitated and upset when the police intervened and prevented him completing such a process, both about the supposedly imminent threats to himself and his family that may now presumably potentially be carried out, and also about caught by police and being implicated in a very serious crime when he was only involved against his will only due to threats. Rather, when interviewed on 3 August 2010 at Allenby Gardens the accused seems calm and collected and seems keen to establish to police that he only had the role of cutting the cannabis for a few dollars. When interviewed on 14 October 2010 at 55 West Street Torrensville the accused seems similarly calm, making up a series of what he now admits were lies about what had happened there, but at the end seemingly losing his temper at police when they indicate scepticism about his story, accusing them of being the only people not growing cannabis because they don’t have “the balls enough to do it”. The tenor of all this seems similarly inconsistent with a person who says he wanted nothing to do with cannabis and had only become involved with it under threat of harm and death in relation to the Allenby Gardens crop.
So, neither the intercepted calls between the accused and Mr Bechara, nor either of the records of interview, give the slightest indication that the accused was under threat from Mr Bechara or anyone else, nor is their overall content and tenor consistent with the existence of such threats.
I turn to the issue of whether Mr Vrynios’ evidence was corroborated in the requisite legal sense.
Corroboration
I apply all the usual directions concerning corroboration.
I find that Mr Vrynios’ evidence was corroborated in several ways.
A fingerprint was located on a hydroponic shade at Gepps Cross. The accused attempted to explain the presence of that fingerprint, whilst maintaining that he knew nothing about Gepps Cross, by saying that he found hydroponic lighting equipment in the driveway of Allenby Gardens and moved it into the store room.
At the time he said that would have happened, it is clear from the evidence that the Gepps Cross hydroponic system would already have been constructed. The effect of his evidence was that that must have been after the first time he suspected cannabis when whe saw the electricity bill in May 2010 and accused Mr Vrynios that there must be cannabis there. By May 2010 the hydroponic crop which was harvested at maturity some time between 3 and 14 August 2010 must have already been fully in place.
The accused’s suggested explanation also relies upon a fingerprint remaining on a hydroponic light fitting after it had been moved to a store room at Allenby gardens by him and stayed there for some unidentified period of time, then moved by others to a completely separate premises, being assembled, being used to grow a mature crop over some four to six months, and then remaining for a period after that until police arrived and fingerprinted the equipment.
Overall, I find that there is no possibility that the fingerprint could have been there for the reasons advanced by the accused and accordingly Mr Vrynios’ evidence as to the accused’s involvement in Gepps Cross’ premises is corroborated by that fingerprint.
In other words, I find that the fingerprint located on the hydroponic equipment at Gepps Cross is not reasonably explicable in any other way than that the accused was involved in the setting up or the maintenance of that hydroponic growing facility.
I also find that the fingerprints located in the grow rooms on the hydroponic light shades at Allenby Gardens are also not explicable for the reasons advanced by the accused. He said that those fingerprints got there when he wiped down the light shades after the mesh had been removed, however police evidence establishes that the fingerprints were located on light shades where the mesh was still in place. Accordingly, the existence of those fingerprints is not explained by the accused’s evidence and I find is only consistent with him having played a role in setting up or tending to those light shades in the course of tending the crop as it grew. In that respect, I also find Mr Vrynios’ evidence as to the accused’s involvement in the Allenby Gardens crop corroborated.
I also find that the accused’s lies to the police about his involvement in the premises at Allenby Gardens are not reasonably explicable for any of the reasons advanced by the accused at trial, and reflect attempts to conceal his real far more extensive involvement in that crop and those premises, and are also corroborative of Mr Vrynios’ evidence.
Assessment of the accomplice’ evidence
Taking everything into account, all the evidence called, the submissions of counsel and giving the fullest weight to the warnings required by the law as it relates to accomplices, and considering all the defence evidence and submissions, the overwhelming impression Mr Vrynios gave was that of a reliable and truthful witness and notwithstanding the accused’s record of interview and evidence at trial, I accept his evidence beyond reasonable doubt. I would have done so without any evidence amounting to corroboration. His evidence was however corroborated in the ways mentioned.
Discreditable conduct
In coming to the conclusions I have on the evidence it is not necessary to place any reliance on the evidence of discreditable conduct ultimately led by the prosecution against the accused, as the other evidence proves the case against the accused.
Although that evidence had the requisite probative weight for admission, I conclude that some caution should be exercised in assessing the ultimate weight of the discreditable conduct alleged against the accused. The discreditable conduct allegations that the accused cultivated cannabis hydroponically at 85 Main North Road Nailsworth and at his own premises at 55 West Street Torrensville rely not entirely but to some extent on the evidence of Mr Vrynios. There is the risk of a degree of circularity in finding the discreditable conduct proven partly on the basis of Mr Vrynios’ evidence, then using that finding to conclude that the accused had an involvement in the business of cultivating cannabis for sale with the other protagonists and had an interest in and knowledge of growing cannabis, and then using that evidence to support a prosecution case itself based around Mr Vrynios’ evidence. I take that into account, and guard against inappropriately using Mr Vrynios’ evidence in support of other aspects of Mr Vrynios’ evidence.
For completeness I indicate that based on my overall direct assessment of the witnesses and the other evidence tendered, I would accept the evidence of Mr Vrynios about discreditable conduct beyond reasonable doubt, supported as it is by a significant degree of circumstantial evidence connecting the accused with both those premises, over the evidence of the accused and conclude beyond reasonable doubt that the accused did cultivate cannabis at those two premises, and that this would constitute evidence that the accused was in the business of cultivating cannabis for the purposes of sale and had an interest in and knowledge of growing cannabis.
However, for the reasons given, in particular the risk of circular reasoning that would to some degree use the acceptance of Mr Vrynios in one area to support his evidence in another area, in an abundance of caution to ensure fairness to the accused I propose to not rely on the evidence of discreditable conduct insofar as it relies on the evidence of Mr Vrynios. Accordingly I disregard it.
For completeness I indicate that, putting aside Mr Vrynios’ component of the discreditable conduct evidence entirely, the other evidence relating to those premises, perhaps more so 55 West Street than Nailsworth, in my view circumstantially establishes an interest and involvement in the growing of cannabis on the part of the accused. In short, a fully operational hydroponic cannabis room was located by police in the house the accused leased at 55 West Street, opposite the accused’s residence at 54 West Street, the house was furnished and contained his clothes and papers, and he had the key both to the house and to the locked hydroponics room.
However, as I am of the view that the other evidence in the case is ultimately clear and compelling as to the guilt of the accused, and that it is unnecessary to rely the suggested discreditable conduct, it is ultimately unnecessary to rely on it.
I have however closely considered the evidence tendered as discreditable conduct to see whether any of it may assist the accused, or support, even partly or indirectly, a reasonable doubt concerning any element of any of the charges against him or cast doubt on any aspect of the prosecution case or the credibility of reliability of evidence given by any prosecution witness. In my view none of it provides any assistance to the accused in any of these ways.
Conclusion
I find that the defence has satisfied the evidential onus of raising the issue of duress in relation to count 1 in the information.
I accept beyond reasonable doubt that the account of events given by Mr Vrynios was true. It was consistent with all the other direct and circumstantial evidence of the accused’s guilt observed and located by police and tendered at trial, and it has been corroborated by fingerprints located on hydroponic cannabis production equipment located at the two premises concerning the three charges, and by the accused’s lies to police when interviewed. On the issue of duress, in particular I accept beyond reasonable doubt Mr Vrynios’ evidence that he never conveyed any threats from Mr Bechara to the accused as asserted by the accused, and that the accused never told him that he did not want to be involved with cannabis as asserted by the accused.
I entirely disbelieve the accused’s evidence that he knew nothing about any cannabis until he suspected something in May 2010, and his evidence that he had nothing to do with any crop until he was forced under duress to harvest the crop at Allenby Gardens in August 2010. I find his evidence was rambling, disjointed and inconsistent, and ultimately incredible. In my view it had this quality because he was unsuccessfully attempting to maintain a fabricated but lengthy narrative of his non involvement in cannabis prior to August 2010, and a fabricated but detailed account of threats he had received from Mr Bechara and from Mr Bechara via Mr Vrynios. I do not accept that his evidence of his non involvement prior to August 2010 and that he was threatened to commit count 1 was a reasonable possibility, nor that there is a reasonable possibility that the accused was under duress to commence or continue his involvement in the cannabis crop at Allenby Gardens.
I find proven beyond reasonable doubt that the accused was an active participant in an agreement made initially by himself with Mr Vrynios and Mr Bechara in the latter part of 2009 to locate, secure and set up premises to cultivate cannabis, and was an active participant in the locating and setting up of the premises at Allenby Gardens and Gepps Cross for the purposes of cultivating commercial quantities of cannabis, and that the agreement to cultivate cannabis was carried into effect. The accused negotiated and secured the lease as lessee for Allenby Gardens in around November 2009, and actively assisted in the setting up of each premises and the cultivation of each of the 3 crops as particularised in the information. He had a more hands on day to day role at Allenby Gardens, being there most days, tending the crops as directed and instructed by Mr Donjerkovic, and being there to maintain the appearance of the premises being legitimately occupied. I find proven beyond reasonable doubt that at no time was he threatened to become or remain involved. I find proven beyond reasonable doubt that he was never under duress to commit count 1.
I find proven beyond reasonable doubt in relation to each of the 3 counts in the information on the totality of the evidence that the accused knew that what he was cultivating was cannabis a controlled plant, knew how many plants were being cultivated, and that he knew each of the three crops the subject of the three charges were being cultivated for the purpose of sale.
Although it has been unnecessary to have recourse to the deeming provision concerning intent provided by the Controlled Substances Act to find the requisite mental element proven beyond reasonable doubt in relation to any of the three separate counts against the accused, for completeness I indicate I find it proven that in the case of each count the accused knowingly cultivated more than the traffickable quantity of 10 plants and has not displaced the statutory presumption that he had the relevant intention and belief necessary to constitute the offence.
Verdicts
Accordingly, I find proven beyond reasonable doubt that between 1 May and 3 August 2010 at Allenby Gardens, the accused cultivated a commercial quantity of controlled plants, namely cannabis. I find it proven beyond reasonable doubt that he intended to sell them or believed that another person, namely Mr Bechara, intended to organise sale of that cannabis. I find proven beyond reasonable doubt that he was not under duress.
I find proven beyond reasonable doubt that between 1 November 2009 and 20 April 2010 at Allenby Gardens, the accused cultivated a commercial quantity of controlled plants, namely cannabis. I find it proven beyond reasonable doubt that he intended to sell them or their products or believed that another person, namely Mr Bechara intended to organise sale of that cannabis.
I find proven beyond reasonable doubt that between 1 January 2010 and 14 August 2010 at Gepps Cross, the accused cultivated a commercial quantity of controlled plants, namely cannabis, by agreeing with Mr Bechara and Mr Vrynios to do so, assisting in hydroponic grow rooms and on at least one occasion staying overnight to monitor and guard the crop. I find it proven beyond reasonable doubt that he intended to sell them or their products or believed that another person namely Mr Bechara intended to organise the sale of that cannabis.
The accused is guilty of counts 1, 2 and 3.