R v David Wayne Pick No. DCCRM-02-906

R v DAVID WAYNE PICK
[2003] SADC 25
Judge Burley
Criminal

On 20 September 2002 the defendant pleaded guilty to producing cannabis contrary to Section 32(1)(a) of the Controlled Substances Act 1984. The Crown subsequently entered a nolle prosequi in relation to the second count contained on the Information. Count 1 on the Information is as follows:
“David Wayne Pick between the 1st day of February 2002 and the 28th day of March 2002 at Lewiston, knowingly produced cannabis, a prohibited substance.
It is further alleged that the said offence involved in excess of 19 growing cannabis plants.”
There is a dispute on the facts as to whether or not there was a commercial element to the admitted production of cannabis by the defendant. A disputed facts hearing took place on 17 December 2002 and 15 January 2003.
The Crown relies upon the declarations of the witnesses Kschammer, Attard, Schwanz, Carpenter, Bussenschutt, Webber, Cox, Gillan, Kelly, Carroll and Bonnici. The declarations of these witnesses were admitted without opposition from the defendant. It was not necessary for any of the witnesses to be called for cross-examination. The defendant does not challenge the evidence of those witnesses except to the extent that there was a commercial element to the production of cannabis the subject of Count 1.
In broad outline, the Crown case was that the police attended at the home of the defendant on the evening of 27 March 2002. The accused was present at the house on that occasion. Inside a shed to the rear of the premises police observed three other males, all wearing gloves, in the process of cutting up cannabis. A search of the rear yard of the premises revealed 40 growing cannabis plants. When the house was searched, police located a hydroponic system in which were placed 8 cannabis clones, 5 of which had observable root systems. An amount of loose cannabis (about 650 grams) had been placed on racks to dry. Two sets of scales were located along with unused plastic money bags.
The accused was interviewed by police but he declined to answer questions.
The approach to be taken by the Court on a disputed facts hearing such as this is referred to in Anderson v The Queen (1993) 177 CLR 520 where the majority (Deane, Toohey and Gaudron JJ) said (at 536):
“If, on a sentencing hearing after a plea of guilty, the Crown wishes to rely on some alleged, but disputed, factual circumstance as aggravating the offence, the ordinary rule is that the onus lies upon the Crown to establish the existence of that circumstance. It is common ground, and rightly so, that the standard of proof which rests upon the Crown in such a case in South Australia is the ordinary criminal standard, namely, beyond reasonable doubt. If the Crown fails to establish the disputed circumstance of aggravation to that standard of proof, the offender must be sentenced on the basis that that circumstance of aggravation has not been shown to exist. Thus, in the present case where the Crown relied on commercial purpose as a circumstance of aggravation, it was for the Crown to satisfy the sentencing judge beyond reasonable doubt that the appellant had had such a purpose. If the Crown failed to discharge that onus, the appellant was entitled to be sentenced on the basis that his cultivation of cannabis had not been shown to have been for such a purpose.” (Citations omitted.)
Although that decision dealt with the provisions under the Controlled Substances Act 1984 which has subsequently been amended, I consider that the statement of principle set out above remains unaffected by subsequent amendments to Section 32 of the Act. I also take into account what was said by the High Court in R v Olbrich (1999) 199 CLR 270 at 281 where the majority said that if the prosecution wishes to rely upon additional facts, the prosecution must establish those facts beyond reasonable doubt. An assertion as to commerciality comes within this requirement. Olbrich was applied in R v Lobban (2001) 80 SASR 550.
In applying the standard of proof beyond reasonable doubt I must take into account a number of things. Reasonable doubt is not created by having recourse to fanciful or unreal possibilities. In this case, the Crown relies upon circumstantial evidence to establish beyond reasonable doubt that there was a commercial element to the production of the cannabis the subject of the charge. I must consider any reasonable explanation which exists on the evidence produced by the Crown and the defendant which exonerates the defendant in respect of this particular assertion by the Crown. In order to find the Crown case proved beyond reasonable doubt on the question of commerciality, all reasonable possibilities consistent with the defendant’s contention that the production was not commercial must be excluded. I remind myself also that it is not merely a matter of whether or not I accept the evidence adduced by the Crown on the one hand or the evidence given by the defendant on the other hand. If I remain uncertain as to where the truth lies, reasonable doubt necessarily arises: R v Calides (1983) 34 SASR 355.
The Crown relied upon a combination of circumstances which, it was contended, establish beyond reasonable doubt that there was a commercial element to the production of the cannabis. Those circumstances included the number, age and sex of the plants, the fact that there was a second tier of young plants being cultivated, that there was an amount of dried cannabis located in the house and that there were indicia of sales, such as plastic bags and two sets of scales, one of which had the remnants of cannabis on the balance. The Crown contended that it was inherently improbable that the enterprise of production undertaken by the defendant was entirely for the accused’s personal use. The Crown contended that the production set-up was elaborate and continuing and that helpers had been enlisted for the purposes of harvesting the crop. The police raid on the relevant premises took place when a number of people were involved in harvesting the crop and at a time when there was nearly a kilogram of drying cannabis inside the house.
The defendant gave evidence. He is aged 37 years and has two sons, one aged 17 and the other 6. He resides at the premises raided by police, namely 18 Gilks Road, Lewiston.
The defendant has an interest in reptiles. He keeps in excess of 50 reptiles, including lizards, venomous snakes and crocodiles. These are housed at the subject premises.
He operates a snake removal business covering the area within a radius of 120 kilometres from his residence. He has been engaged in the snake catching business on and off for about 12 years. He has had his own business for about 5½ to 6 years.
A bundle of 11 photographs was tendered and marked as Exhibit D3. It shows a number of vivariums housing different types of snakes. The vivariums are heated by a lighting device or by heat mats which enable the reptile to absorb the heat but also to move away from that area in order to cool down. The light bulbs used range from 25 to 200 watts. The defendant says that the keeping of the vivariums consumes a lot of electricity, ranging from $500.00 to $800.00 per quarter depending upon the season.
The defendant also referred to having a queen sized waterbed and his eldest son, who lives with him, having a single sized waterbed. In addition, the defendant’s youngest son, when he stays with the defendant on weekends and during school holidays, has the use of an additional waterbed. I assume, although it is not clear, that the water in these beds is electrically heated.
Reference was also made to a large freezer kept by the defendant. It is used to store food for his animal collection. That food is stored in clip seal bags and retained in the freezer. Photographs of the food in the containers have been tendered in evidence.
I understand this evidence to be offered because part of the prosecution case is that abnormally high amounts of electricity had been consumed by the defendant prior to the police raid. The Crown asks for the inference to be drawn that the abnormally high consumption of electricity is attributable to electricity consumed by the hydroponic cultivation of cannabis, the set-up for which was discovered on the police raid. The evidence also relates to the fact that the police found clear plastic bags on the premises which were of the type commonly used to package cannabis for sale.
This aspect of the dispute between the Crown and the defendant cannot be approached with any precision. However, it seems to me that the above average consumption of electricity by the defendant is as much consistent with the lawful purpose of keeping animals as it is with the unlawful purpose of producing cannabis. It must also be said that the keeping of plastic bags by the defendant is consistent with the packaging of animal food in those bags as it is with the packaging of cannabis.
The defendant also said that he had other uses for plastic bags kept by him. He said that he collected native gum tree seeds for the purposes of revegetating areas that have been cleared. Exhibit D5 is a photograph of 19 such bags which the defendant said contained various types of seed.
The defendant referred to police evidence that small plastic bags were found inside a safe which was kept by him in his bedroom. He said that he stored the bags in the safe because his elder son lived with him and he wanted to keep his son from having access to the bags and any cannabis that he kept for his own use. I find this aspect of the evidence unconvincing, particularly when it is compared with the Crown case relating to the three persons, wearing gloves, one of whom was the defendant’s son, assisting with the harvest of the plants and the defendant’s explanation of the presence of his elder son.
The defendant sought in his evidence to minimise his son’s access to and use of cannabis by, first, saying that he kept plastic bags locked in a safe in his room, the implication being that his son was thereby prevented from using those bags to package cannabis taken from elsewhere on the premises. Secondly, he denied that his son was taking part in that harvest. The defendant said (T67/4):
“I did not have him out there harvesting. He went out to take marijuana for his own personal use. He was not out there harvesting my marijuana or anything at all. He was out there for his own use, for his own - for want of a better, word ‘feathering his own pocket’. My son does smoke marijuana. I think in the position I am at it would be very hard for me to say ‘No, you can’t have it’ because he will go somewhere else. I do ration his marijuana. He thinks that is not called for, he is 17 and he thinks he is 35. He can’t understand I can lock things up and only give him certain amounts. That was why he was out there, when dad is not out there and everyone is out there having a little chin wag but at the same time getting stuff for himself.”
By this evidence the defendant denied that his son was helping with the harvesting of the plants. There are at least two reasons why this evidence cannot be accepted. First, the defendant’s own evidence is that at the time the harvesting was taking place he was not present in the area where that activity was carried on. He was exercising in another area which he took pains to point out was separated from the harvesting area to the extent that he could not observe the activities of those participating in the harvesting whilst he was in the exercise shed. Second, the evidence given by police officers as to the observations of the activities of those in the area where the crop was being harvested is at variance with what was said by the defendant.
The statement of Detective Senior Constable Daniel Gillan dated 20 August 2002, refers to the police raid on the premises on 27 March 2002.
At page 2 of the statement he sets out his observations of the area where the harvesting was taking place. He said:
“At this time I saw a male person sitting in a chair with his left side facing the opening. I now know this male to be a juvenile, Ryan Pick. He appeared to be talking to someone sitting in front of him. I watched Ryan Pick for a short time and he appeared to be cutting something. The odour of cannabis was stronger from this location and was coming from the shed area. As I was opening the gate to approach the shed, he looked around at me. He then turned to look back to his original position and continued to do as he was doing.
Both Schwanz [another police officer] and I approached the shed and upon entering I saw two other males making a total of three males. ... All three males were sitting on chairs in a semi circle arrangement with containers on the floor in the centre. All three males were wearing gloves and holding scissors in their hands. When I first approached the males, all three were also holding cannabis and cutting the head from the stalks. I saw that the containers had cannabis head in some and leaf in others. There was also cannabis stalks on the ground in the centre of the semi circle. It appeared that stalks had been removed from plants and taken to the shed for pruning.”
I prefer the evidence of Detective Gillan where it conflicts with evidence given by the defendant. In accepting that evidence I find that the defendant’s eldest son was assisting with the harvesting of the plants in conjunction with two other male persons present. The defendant’s evidence to the contrary is but one example of the tendency of the defendant to reconstruct events where he considers it in his own interest to do so.
I have formed the view that it would be unsafe to rely upon the evidence of the defendant except where it is corroborated by other credible evidence. That view is based on the unsatisfactory nature of the defendant’s evidence just referred to and other such instances referred to later in these reasons.
I do not accept the defendant’s original explanation as to the presence of plastic bags in the safe kept by him in his bedroom. Such evidence is quite at variance with the evidence given by Detective Gillan about the part played by the defendant’s eldest son in the harvesting of the crop. In other words, it is unlikely that the defendant would have kept plastic bags in a locked safe in order to reduce his son’s access to the packaging of cannabis when in fact the same son participated in an unsupervised way with the harvesting of the crop grown by the defendant.
The defendant said that he had been a user of cannabis since he was about 13. He said that his use of cannabis increased markedly after 1994 because he had been involved in a motor vehicle accident and he used cannabis as a means of controlling the pain that he sustained from extensive facial injuries he received in the accident. This is not disputed by the prosecution. In particular, the Crown accepts that the defendant is a heavy user of cannabis and that part of whatever crop he produced would be used for his own personal use.
He stated that he smoked some cannabis but he would also use relatively large amounts in cooking. He baked biscuits and cake containing the substance. In that way he said he could use up to 6 or 7 ounces a week.
However, the consumption of 6 or 7 ounces in a week by a single person is a substantial amount. Consumption by smoking over a period of a week would only explain the use of only a small part of that quantity. The consumption of the remainder may be consistent with the use of the substance in cooking.
During the course of the defendant’s evidence, a plan of the defendant’s house block was tendered. It is Exhibit D6. The defendant said that he planted cannabis from seeds in the areas marked “2” and “4” in about September 2000. He said that he observed that these plants did not look very healthy, so a week or two later he planted further seeds in the area marked “1”. The police located 12 plants in the area marked “4”, 6 plants in the area marked “3” and 16 plants in the area marked “1”. Photographs forming part of Exhibit P1, according to the defendant, showed that some of the plants were discolouring.
The defendant referred in his evidence to an additional reason for planting these seeds in differing areas. He said (T23/2):
“... I thought if someone looks over the fence and finds those and takes those plants, they would be, for want of a better word, decoy plants, and I would still have something left over if someone wanted to take them, which is an unlikely event, but I know people who do know that I smoke, and it was in the back of my mind. The chance was that they could have been taken, and I wanted to make sure, if they did, I had some backup that they hopefully wouldn’t find.”
I understand from this evidence that the defendant sought to explain the multiple plantings and the combined quantity thereof as being consistent with his personal use rather than with having an excess crop which could be disposed of commercially.
The hydroponic set-up found in the defendant’s house was planted towards the end of February 2001. The defendant was asked why he resorted to hydroponic cultivation of a small number of plants given that he had plants growing outside. He said (T23/29):
“Basically, I just wanted to make sure I had stuff that was going to last me through the winter. You can’t grow any of this sort of stuff outside during the winter. I just wanted a backup plan so, if I did use that, I had that as backup and didn’t have to use stuff I didn’t like using. Basically, it was the one plant put in there; the rest were little tiny sticks stuck in the dirt, which weren’t really growing anyway. They weren’t really healthy at all. I think there is some evidence photographs with dead plants in there. They weren’t really being looked after; I thought if they were there in the middle of winter, I’ve still got something and I could take what I need to take.”
The defendant said that the cost of the hydroponic set-up to him was about $100.00. He bought second-hand equipment. He used a small pump which he had taken from his crocodile enclosure.
The defendant said that he was hoping to obtain a crop from his plantings which would last him for about a year and a half to two years. He said (T24/23):
“... I detest buying marijuana from anybody. I don’t think anybody should be making money out of growing it and I have spent a lot of money on cannabis, and I don’t like doing it. I don’t like giving a penny of my money to smoke or use dope. So, I was hoping a year and a half to two years, maybe more. But then the amount I use, too, probably two years at the most, maybe a year and a half.”
He was asked whether he had given any cannabis to anyone else. He said (T24/33):
“Yes; I give cannabis to anybody who comes up and wants any, basically. Like I said, I don’t believe in people selling it, so if people want cones, I give it to them. There is a few of us left that - I don’t have great monetary values on anything. I like to live a bit of a greenie type of life. I like to be self sufficient; chickens, I like to have vegetables. The way I look at it, if you can pay your bills, if your family is happy, I don’t need to make money out of this. I’m quite happy to give it to people and they can save money and other people aren’t making heaps of money for nothing; that’s pretty much it.”
The defendant said that his girlfriend was a user of cannabis and he intended to provide some of the crop to her.
The defendant was asked by his counsel about the fact that traces of cannabis were found on a set of scales on the premises. He said (T25/38):
“I can say that I physically put no cannabis on those scales. The only assumption I could come to is the day beforehand I had two brown snakes that were being sent to Victoria. My bedroom door is the only room in the house that has got a keyed lock, so what I tend to do is, if I’ve got to handle anything that is majorly venomous, I take them into my room. I put the snakes into my bedroom; brown snakes I keep in plastic drums, plastic storage units which I put heat pads and stuff into. So, I took them into my bedroom, opened the top of one cage. To catch a snake you have to get it out on to the floor first. You use a hoop, like a round basketball hoop on a stick. On to that is connected a calico bag, so the snake is put on to the ground, picked up by the tail and placed into the bag. Then the bag has to be spun off really quickly because the snake tries to come back out the bag at you. So, you drop the bag on to the ground, and you spin the handle so the calico twists into a knot. Then you put your snake onto the calico bag, itself, and tie the calico off on the opposite side to where it is, so the snake can’t get back up to bite your hands. Being that there was cannabis in that room, it’s a 100 per cent certainty that there would have been cannabis on the floor, and all I can say is the cannabis would have been picked up by the calico bag and that’s where I weigh the snakes. Two snakes were sent to Victoria and the two snakes I weighed so I could work out what the shipping costs would be before they were sent, so I could ask the recipient for the money first.”

To support this explanation, the defendant produced a permit (Exhibit D8) from the National Parks and Wildlife Authority to send two eastern brown snakes to a person in Victoria. The document is dated 27 March 2002. The police search of the premises took place on the evening of 27 March 2002.
The presence of the scales in the premises and the presence of cannabis material on those scales is strong circumstantial evidence that the defendant resorted to weighing out quantities of cannabis produced by him which, in turn, gives rise to the inference that some of the substance was weighed so as to obtain a known quantity for purposes of sale. The defendant had previously referred to using cannabis in cooking and that may have accounted for the presence of a weighing device and for the presence of cannabis on that weighing device but for the fact that the defendant denied that he put any cannabis on the relevant set of scales.
All of the plants growing outside the premises were female plants. However, the defendant said that it was his expectation, in planting from seeds, that 50 per cent of the plants would be female and the other 50 per cent male. The defendant said that the female plant produced flowering heads which were suitable for consumption, whereas the male plant only produced a substance which gave him a headache when consumed. The evidence of neither the prosecution nor the defence provides the answer to how it was that all of the 40 plants were female if planted from seed as opposed to cuttings from female plants. To that extent, the defendant’s expectations that only half of the crop would be usable does not assist with the question of whether the entire crop was for personal use.
During the course of cross-examination the defendant was asked about the other people present at the time of the police raid who were in the process of harvesting some of the cannabis plants. He was asked if he was going to harvest all of the 40 plants which had been cultivated. He said (T63/15):
“AI had - to be honest, I really didn’t think that we were going to harvest 40 plants. To be honest, I hadn’t thought that. I thought most of it would fall on the ground, the sheer volume of it. I didn’t expect it to grow like it did. There’s no way known that I could keep up and harvest that much myself anyway. Even with, you know, two friends that were helping, it was starting to fall down and fall apart, so we would have lost most of it anyway. The thing is I probably would have got half of it cut up before the rest of it; it was no good.
QHalf of that.
AMaybe if I was lucky, I would have got half of what was there cut before the rest of it fell to the ground and got wet and it was yellow and falling apart and was useless and not good for anything. So, when these friends came up and offered to give me a hand, I had accepted.”
The defendant then explained that all he had done by way of harvesting was to cut the top of the plants off. He estimated that it would have taken him about 200 hours to harvest all of the plants completely.
In essence, the Crown alleges that there was a commercial purpose to the production of the cannabis seized by the police. The Crown contends that the quantity of the cannabis seized exceeds the requirement of even a heavy user of the drug. The Crown accepts that the defendant was a user of cannabis but it asserts that at the very least there was a commercial flavour to the production of the cannabis.
Relying on the evidence of Mr Carroll, a botanist, the Crown says that each of the plants would have yielded approximately 100 to 300 grams of cannabis, giving a total production of somewhere between 4 and 12 kilograms. The value of the crop was somewhere between $19,000.00 and $57,000.00.
The Crown contends that immature plants were found on the premises, the inference being that they were there to replace the mature plants once they had been harvested.
Counsel for the Crown, Ms Downey, pointed to the presence of other persons assisting with the harvesting of the plants. The three persons present when the plants were being harvested were two friends of the defendant and the defendant’s son. I have already referred to the son’s role. The defendant explained the presence of the two friends by saying that they had called at the defendant’s house for a social visit and that when they were there they offered to help with the harvesting of the plants. The Crown submitted that this explanation was unconvincing.
Ms Downey relied on the fact that scales were found on the premises and that cannabis material was detected on the tray of one of the sets of scales. She said that the defendant’s explanation of the presence of cannabis traces on the scales (to which I have referred above) is incredible. I have to agree that the defendant’s explanation for the presence of cannabis material on one of the sets of scales stretches the bounds of credibility. I do not think the defendant was telling the truth when he put forward this explanation.
The fact that the defendant did not tell the truth, as I find, does not automatically mean that there was a commercial purpose behind the production of the cannabis. However, the false explanation he proffered in relation to the existence of cannabis on the scales goes to an important piece of circumstantial evidence relied upon by the Crown to support the Crown case that this was at least in part a commercial enterprise. It is that type of falsehood which indicates to me a guilty mind on the part of the defendant and therefore forms an important part of the process of the fact finding that it is necessary for me to make on this disputed facts hearing.
Ms Downey accepted that the prosecution case as to commerciality was circumstantial and that in those circumstances I have to be satisfied that the only rational hypothesis open on the evidence is that there was a commercial aspect to the defendant’s cultivation of cannabis.
At the commencement of his submissions Mr Ey, counsel for the defendant, contended that the Crown had not complied with the rule in Browne v Dunn (1894) 6 R 67, HL, by putting the Crown case to the defendant when he gave evidence. In my view, the Crown was not required to put its case as suggested by Mr Ey. In other words, I do not think that the rule in Browne v Dunn required the Crown to put in detail the Crown case to the defendant during the course of the defendant’s cross-examination. The hearing proceeded on the basis that the Crown had the obligation to establish beyond reasonable doubt that there was a commercial aspect to the defendant’s admitted cultivation of cannabis. The Crown presented its case to the Court by way of the tender of the declarations of the various witnesses relied upon by the Crown. The defendant then presented his case in defence of the Crown case.
The fundamental requirement of the rule is to give a witness in the witness box the opportunity to comment upon or explain matters arising from the opposition case where the opposing party has not yet presented its case: cf Karidis v GMH Pty Ltd [1971] SASR 422 at 425.5 per Bray CJ. The most common example of the application of the rule occurs where, during the course of the prosecution case, a prosecution witness is cross-examined in relation to matters which are challenged by the defence. In those circumstances the defence is required to put to the prosecution witness those facts upon which the defence relies which dispute the witness’s evidence. That is not the case here.
Mr Ey next submitted to me that, even if it is assumed that the rule in Browne v Dunn does not apply as he contended, it is not possible for me to be satisfied beyond reasonable doubt that there was an element of commerciality to the defendant’s cultivation of the cannabis.
As to the personal use of cannabis by the defendant, this is not disputed by the Crown. I am prepared to infer that the defendant was a heavy user of cannabis, particularly since he sustained serious injuries in a motor vehicle accident in 1994.
His other explanations as to the quantity of cannabis produced are less convincing. The presence of scales on the premises and the presence of cannabis material on those scales indicates that quantities of the cannabis were weighed on the scales and that, in turn, leads to the inference that there was a precise packaging by weight of at least some of the cannabis produced. That, in my view, is strong evidence of commerciality.
In summary, the indicia of commerciality, on the Crown case, are:
·    Plastic bags.
·    High electricity consumption.
·    Presence of two sets of scales.
·    The presence of cannabis traces on one set of scales.
·    The quantity of the plants produced.
·    The rotational nature of planting.
·    Others assisting with the harvest.
For reasons which I have expressed above, I think the presence of plastic bags and the high electricity consumption are as much consistent with purposes unassociated with the commercial production of cannabis as they may be consistent with any commerciality. However, the other indicia as set out above are, in combination, strong circumstantial evidence of commerciality. Having carefully considered the evidence of the defendant, I do not, for the reasons stated above, accept his explanations, to the extent that he gave such explanations, which were to the effect that there was an innocent explanation for the presence of these other factors. I do not consider that the defendant has raised any reasonable possibilities consistent with his contention that the production was not commercial. On the contrary, I consider that the circumstantial evidence adduced by the Crown establishes beyond reasonable doubt that there was a commercial element to the production of the cannabis the subject of the charge. It is impossible to say the extent of that commerciality with any degree of precision. The most accurate finding I can make is that there was a significant commercial purpose behind the cultivation of the cannabis the subject of the charge.

[2003] SADC 25

27 February 2003