R v Drygan
[2009] NSWDC 249
•14 September 2009
NEW SOUTH WALES DISTRICT COURT
CITATION:
R v Drygan [2009] NSWDC 249
FILE NUMBER(S):
2009/00006015
HEARING DATE(S):
8 - 11 September 2009
JUDGMENT DATE:
14 September 2009
PARTIES:
Regina
Rene John DRYGAN
JUDGMENT OF:
Murrell SC DCJ
COUNSEL:
M Fernandez for the Crown
J Healey for the accused
SOLICITORS:
NSW Director of Public Prosecutions
Mark Douglass Criminal Law
CATCHWORDS:
CRIMINAL LAW - Judge alone trial - particular offences - offences against the person - drug offences - possession - possession for supply - abandonment of drug
LEGISLATION CITED:
Drug (Misuse and Trafficking) Act 1985 s 25
CASES CITED:
TEXTS CITED:
DECISION:
JUDGMENT:
On 7 September 2009, the accused filed an election to be tried by judge alone to which the Director of Public Prosecutions had consented. I was satisfied that, before he made the election, the accused had sought and received advice from a legal practitioner.
On 8 September 2009, the accused was arraigned and pleaded not guilty to the charge that, on 10 September 2008 at Woollamia, he supplied the prohibited drug cannabis leaf (particularised as 9708.5g).
General Directions
The Crown has the task of proving the accused’s guilt beyond reasonable doubt. The Crown does not have to prove the truth of each statement of each Crown witness. What the Crown must prove beyond reasonable doubt is each legal element of the charge. If I have a reasonable doubt in relation to whether the Crown has proved any element that it is required to prove, I must return a verdict of not guilty. In this trial, the Crown case is one of "deemed supply". Consequently, if the Crown proves the legal elements that it is required to prove, including possession of the prohibited drug, the onus shifts to the accused to prove on the balance of probabilities that he possessed the drug for a purpose other than supply.
In making findings of fact, I must rely upon the evidence, i.e. the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.
As a matter of practical reality, in this trial the issues are: first, whether I am satisfied beyond reasonable doubt that the accused possessed the cannabis leaf in the old bus on his property (in effect, whether he intentionally exercised exclusive control over it); and, second, whether I am satisfied on the balance of probabilities that the accused possessed cannabis leaf for a purpose other than supply.
The accused gave evidence on oath. He was not obliged to do that. It is not for an accused to prove his innocence but for the Crown to prove his guilt beyond reasonable doubt. The accused could have said nothing but he chose to give evidence and subject himself to cross-examination. That does not mean that his evidence was necessarily true. In assessing the reliability of the accused’s evidence, I adopt the approach applicable to assessing the reliability of any witness.
The accused is 62 years old. The Crown conceded that the only matters recorded against the accused are traffic matters and the last traffic offence occurred in 1992. The evidence of good character is to be taken into account in relation both to the accused’s guilt and to his credibility as a witness. The fact that the accused is a person of prior good character is to be considered both when determining whether the accused conducted himself in the manner alleged and when determining the reliability of his evidence.
Elements of the Offence
At law, the meaning of "supply" is broader than its ordinary meaning. Inter alia, a person "supplies" a drug if he/ she has the drug in his/ her possession for the purpose of supply.
Parliament foresaw the potential difficulty in proving that a person is in possession of a drug for the purpose of supply, so it introduced the concept of the "deemed supply" of a drug. A person who has in his/her possession an amount of a prohibited drug that is not less than the "trafficable quantity" applicable to that drug is deemed to have the drug in his/her possession for the purpose of supply, subject to a defence to which I will refer. The "trafficable quantity" is a quantity set by the Parliament. It differs for different prohibited drugs.
Where, as in this trial, the Crown relies on the deeming provision to prove possession for supply, the Crown must prove three legal elements beyond reasonable doubt.
The substance was a prohibited drug. Cannabis leaf is a prohibited drug.
The accused was in possession of the drug. A person possesses a drug if, at the relevant time, he/she intentionally has exclusive physical control of the drug, or has the ability to control it to the exclusion of others. "Intentional" possession means that the possessor knows that he/she possesses the substance and intends to possess it. The possessor must know of the presence or likely presence of the substance. He/she must know that the relevant substance is or might well be a prohibited drug. It is the accused's actual knowledge or belief that must be proved, not what a reasonable person would have known or believed. Knowledge of a thing and intention to control it may be inferred from the circumstances.
The drug weighed not less than the trafficable quantity applicable to that drug. The "trafficable quantity" of cannabis leaf is 300g. It is not necessary that 100% of a substance is a prohibited drug. It is only necessary that a prohibited drug forms part of the mixture.
If the Crown proves each of these legal elements beyond reasonable doubt, then the onus shifts to the accused to prove on the balance of probabilities - that it is more likely than not - that he possessed the drug other than for supply.
The Crown Case
On 10 September 2008, police executed a search warrant at a property at Woollamia. The accused resided alone at the property. He had owned the property since the 1980s. The property was just under 10 acres in size. At the beginning of the search, the accused was cautioned. During the search, the accused conversed with police. Police seized vegetable matter and other items from a bathroom/laundry area and other parts of the residence. They found $20,845 in a safe within the residence. They seized a firearm, ammunition and a crossbow from the residence. These items are the subject of charges to which the accused has pleaded guilty.
After leaving the residence, police searched a caravan, where they seized further vegetable material and other items. They went to a shed that contained a growing area. They seized plants from inside the shed and from a garden just outside the shed. The plants are the subject of a cultivation charge to which the accused has pleaded guilty. Police then seized more vegetable material from an old bus located in dense undergrowth.
Exhibit A, an analyst's certificate under section 43 of the Drug (Misuse and Trafficking) Act 1985, provides evidence that all the vegetable material that was seized by police was cannabis leaf and that the total quantity was 9708 g. Some of the cannabis leaf was "head", a more potent and valuable part of the drug that - according to the officer in charge - typically retails for about $4000 per kilo. The remaining drug was "leaf". "Leaf" commonly retails for about $2000 per kilo. Of the total quantity of 9708 g, 373 g was found in the house (345 g of "head" and 28 g of "leaf"), 3010 g was found in the caravan (625 g of "head" and 2385 g of "leaf"), and 6326 g was found in the bus (483 g of "head" and 5843 g of "leaf").
On the basis of the analyst's certificate, I am satisfied beyond reasonable doubt that the vegetable matter that was seized by police was cannabis leaf and that the total quantity exceeded the "trafficable quantity" for cannabis leaf. The accused did not argue to the contrary.
The accused denied any knowledge of the cannabis leaf found in the bus. He conceded that he knew about the other cannabis leaf. The other cannabis leaf was located on property that the accused owned and in relation to which he was the sole occupant, I find beyond reasonable doubt that he "possessed" the other cannabis leaf in that he intentionally exercised exclusive physical control over it.
Despite the accused's prior good character, I reject his evidence that he knew nothing about the cannabis in the old bus and, based on the following circumstances, I conclude that the only rational inference is that the accused knew that there was vegetable matter in the bus, knew that the vegetable matter was cannabis leaf and intentionally exercised exclusive control over that cannabis leaf.
The cannabis leaf in the bus was not the only cannabis that was stored away from the house. As the Crown submitted, "there was cannabis everywhere on the property". The accused was well aware of the cannabis leaf elsewhere on the property.
The accused resided alone on the property. The property was only 10 acres in size. The accused had owned the property for a long time and had resided on the property for a significant period of time.
Although the bus was situated in dense scrub, there was a "fairly well worn" bush track to the bus and the bus was quite close to the house (Exhibit C, page 82).
There was a large quantity of cannabis leaf in the bus. It had been there for a considerable time. Although it was of poor quality, according to the officer in charge, it was saleable. It is most unlikely that someone other than the accused would have abandoned a valuable item on the accused's property.
When the officer in charge informed the accused that police had seen the bus and intended to search it, the accused responded "oh, shit", suggesting concern about the outcome of the search (Exhibit C, page 80).
In relation to all the cannabis leaf found on the property, the Crown has established each of the three legal elements beyond reasonable doubt.
The Case for the Accused
The accused gave evidence that he had intended to smoke the cannabis "head" found in the bathroom that became Exhibit A items 1.2 and 1.3.1. As to the remainder of the cannabis in the residence and caravan, he said that it was discarded "rubbish", much of which he had intended to burn.
On the balance of probabilities, I am prepared to accept that the accused intended to make personal use of items 1.2 and 1.3.1 (a total quantity of 207 g). At the outset, the accused told police that it was for personal use. He has consistently maintained that, in the period preceding the offence, he used small quantities of cannabis to relieve arthritic pain. He told police that he used a small quantity every day or every second day (Exhibit C). In evidence, he referred to using a gram or two grams per session, but said that he did not use cannabis every day. He agreed that he may have used a bit less or a bit more than 365 g a year.
On the balance of probabilities, as to the cannabis in the bus I find that it may well have been permanently discarded. At least, as at 10 September 2008, the accused had no intention to supply it and did not possess it for that purpose. By all accounts, the cannabis was relatively old and of low quality. It was not stored in a manner that would protect its value. Most of the cannabis was stored in open plastic shopping bags. During the search, an officer remarked of the "head" in the bus that it looked as though it had been there for a long time (Exhibit C page 81). The bus had no door and was open to the elements. Unlike the caravan, the bus was not locked or secured in any way. There was a rat's nest in the bus and an old paper (2004), suggesting a lack of recent human activity in the bus (Exhibit C page 81).
However, I do not accept the accused's assertion that the other cannabis found in the house and the cannabis in the caravan was "rubbish" which he had no intention of supplying and which, generally speaking, was not fit for consumption.
In assessing the accused's credibility, I take into account his prior good character. Nevertheless, I find that he was not a credible witness.
For the reasons stated above, I am satisfied beyond reasonable doubt that he lied when he said that he knew nothing of the cannabis in the old bus.
The accused maintained that the crop in the shed was a poor crop which had largely been eaten by rabbits. However, the DVD of the search and the photographs in Exhibit E show apparently healthy plants. If the crop was useless then the accused would not have bothered maintaining it, and would not have kept it under lock and key.
The accused's explanation of the sum of $20,845 is not believable. In effect, he said that, despite having a bank account, he had kept the cash for 10 or 12 years (during which time the money had earned no interest) because it was convenient to have ready cash. It is true that some of the cash may have been in the safe for a long time (it was held by elastic bands that had perished) and that the evidence does not support the existence of a thriving cannabis business from which the accused derived a substantial income. However, I do not accept the accused's explanation about the money. Rather than being a circumstance consistent with the accused supplying drugs for profit, I treat the evidence about the money as tending to undermine the credit of the accused.
At the time of the search, the accused lied to the police. Initially, when he showed the police a small quantity of cannabis leaf in the bathroom which he said was for personal use, the accused assured them that he had nothing else to declare (Exhibit C, page 4). Whenever further cannabis was located, the accused dismissed it as forgotten "rubbish". When the police asked about the locked door at the back of the shed, the accused failed to disclose that it secured a growing area, instead stating that the door led to the back paddock (Exhibit C, pages 58 - 59). After the police discovered the cannabis leaf in the shed and before they announced that they had located and intended to search the old bus, the accused again stated that there was no further cannabis (Exhibit C, page 65).
The accused gave evidence of the amount of usable cannabis leaf that he had harvested from each annual crop grown between 2004 and 2007. That evidence must have been false because, had it been true, the accused would have consumed the entire harvest of each crop and, as at September 2008, he would not have possessed any cannabis leaf for personal consumption.
The following evidence is consistent with the accused possessing part of the cannabis leaf in the house and the cannabis leaf in the caravan for the purpose of supply.
The caravan contained a makeshift drying rack (Exhibit E, photographs 16 and 17) and had the appearance of being used to sort and dry cannabis, consistent with an operation designed to produce a significantly greater quantity of dried cannabis leaf than that which the accused required for his modest personal needs.
In the caravan, police located a set of scales and a box of zip lock bags packed into a cardboard box (Exhibit E, photograph 14). The 624 g of "head" found in the caravan was located in 14 re-sealable plastic bags (Exhibit E, photographs 12 and 13). In the residence, police located another set of digital scales. There was cannabis residue on the scales. If cannabis was grown solely for personal consumption, there would have been no need to weigh it on digital scales. Very often, cannabis leaf that is to be supplied to others is weighed on digital scales and stored in re-sealable plastic bags.
Although in Exhibit C at page 45 he said that "most (bags of leaf found in the caravan) are just harvested stem" and that the "head" in the caravan was "a tad mouldy", in evidence the officer in charge said that the "leaf" found in the caravan was reasonable but not high quality, contained some "head" and did not appear to be exceptionally old. He rated it 6 out of 10 for quality. He said that both the "head" and the "leaf" in the caravan were reasonable street quality. "Head" has a typical street value of about $4000 per kilo and "leaf" has a typical street value of $2000 per kilo. Accepting that the cannabis in the caravan was less than average quality, the accused was nevertheless in possession of an asset worth thousands of dollars. He had a modest annual income of approximately $24,000 to 30,000, which only just met his outgoings. Common sense suggests that a person in the accused's financial circumstances would not destroy or discard such a valuable commodity on the basis that it was "rubbish".
The caravan was locked. The accused had to open it with a key. This evidence suggests that the accused valued the contents.
In the house, the police located a vacuum sealing kit. Such an item may be used to seal bags of cannabis in order to preserve the drug. However, I place no weight on the finding of the vacuum sealing kit because such kits may be used for a variety of purposes and there is no evidence that any such kit was ever used in connection with cannabis. Similarly, in relation to the firearm and associated ammunition found in the residence, there is no basis to conclude that the accused possessed those items for the purpose of protecting his cannabis leaf rather than - as he asserted - for the purpose of killing vermin or putting down stock. As to the crossbow found at the residence, the police did not find any arrows. In relation to the scanner, there is no evidence that it was in working order. It is not illegal to possess such an item.
I accept the submission made on behalf of the accused that the search revealed a haphazard and unsophisticated operation. There was no evidence of a large-scale ongoing and profitable business operation. A relatively small quantity of cannabis leaf had been packed into re-sealable plastic bags. In relation to the cannabis that had been packed into re-sealable plastic bags, the quantity in each bag differed and no plastic bag held a typical sale quantity such as a quarter ounce, a half-ounce or 1 ounce of cannabis leaf.
However, the accused was an unreliable witness. Taking into account all of the evidence, I am far from satisfied on the balance of probabilities that the accused possessed some of the cannabis leaf in the residence and the cannabis leaf in the caravan for a purpose other than supply. Indeed, there is strong circumstantial evidence suggesting that the accused possessed that cannabis leaf for the purpose of supply, although the nature and method of such supply are unclear.
In relation to part of the drug found in the house and the drug found in the caravan, I return a verdict of guilty.
LAST UPDATED:
29 September 2009
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