R v Franco

[2020] SADC 154

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v FRANCO

Criminal Trial by Judge Alone

[2020] SADC 154

Reasons for the Verdicts of His Honour Judge Kimber

30 October 2020

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES

The accused charged with: Trafficking in a Large Commercial Quantity of a Controlled Drug, Cultivating Controlled Plants for Sale, Possessing Prescribed Equipment and Abstracting Electricity. All alleged offences at the same house.

Verdict: Guilty of Trafficking in a Large Commercial Quantity of a Controlled Drug, but not guilty of the remaining counts.

Controlled substances Act, 1984 s 52; Evidence Act, 1929 s 53; Expiation of Offences Act, 1996 s 15(4); Electricity Act 1996 s 85(3), referred to.
R v Nikolic [2019] SASCFC 32; R v Baftiroski [2018] SASCFC 83; R v Becirovic [2017] SASCFC 156, discussed.

R v FRANCO
[2020] SADC 154

Introduction

1. Mr Franco is charged on an information dated 20 September 2019 with the following offences:

   First Count

   Statement of Offence

   Trafficking in a Large Commercial Quantity of a Controlled Drug. (Section 32(1) of the Controlled Substances Act, 1984).

   Particulars of Offence

   Enrico Franco on the 7^th day of June 2018 at Newton, trafficked in a large commercial quantity of a controlled drug, namely cannabis, knowing or being reckless as to the fact the substance was a controlled drug.

   Second Count

   Statement of Offence

   Cultivating Controlled Plants for Sale. (Section 33B(3) of the Controlled substances Act, 1984).

   Particulars of Offence

   Enrico Franco on the 7th day of June 2018 at Newton, cultivated controlled plants, namely two cannabis plants, knowing or being reckless as to the fact they were controlled plants and intending to sell any of them or their products or believing that any other person intends to sell any of them or their products.

   Third Count

   Statement of Offence

   Possessing Prescribed Equipment (Section 33LA of the Controlled Substances Act, 1984).

   Particulars of Offence

   Enrico Franco on the 7th day of June 2018 at Newton, possessed prescribed equipment, namely 37 Ballast boxes, 51 hydroponic light globes, 41 lamp shades and two carbon filters, without reasonable excuse.

   Fourth Count

   Statement of Offence

   Abstracting Electricity from a Power System. (Section 85(1)(a) of the Electricity Act, 1996).

   Particulars of Offence

   Enrico Franco on the 7^th day of June 2018 at Newton, abstracted electricity from a power system without proper authority.

2. Mr Franco elected for trial by judge alone.  For the reasons which follow, I find Mr Franco guilty of count 1, but not guilty of counts 2, 3 and 4. 

3. It is not necessary for a Court having conducted a trial by judge alone to set out the standard and obvious directions of which a judge is bound to be aware. However, I remind myself of the following matters. 

   General Directions

4. An accused person is presumed to be innocent unless and until his guilt has been proven beyond reasonable doubt.  This requirement extends to proof beyond a reasonable doubt of every element of the offence. To the extent that an accused puts forward a defence, he does not have to prove it. It is not sufficient for the prosecution to show a suspicion of guilt or to demonstrate that the accused is probably guilty.  In making findings of fact I must rely upon the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense. 

   Circumstantial evidence

5. In this case, the prosecution relies upon circumstantial evidence.  A guilty verdict cannot be returned unless the proven facts are such as to be inconsistent with any reasonable hypothesis other than guilt.  Guilt must be the only rational inference which the proven facts enable me to draw.

   The accused’s evidence

6. Mr Franco gave evidence. By doing so he did not assume any burden of proof.  I must assess the evidence of Mr Franco in the same way that I assess the evidence of the other witnesses who gave oral evidence.

   Background

7. Much of the evidence given in the prosecution case is not in dispute. 

8. At about 8.20am on 7 June 2018, three police officers attended a house at 7 Liascos Avenue, Newton (‘Newton’). The police were in possession of a warrant pursuant to s 52 of the Controlled Substances Act, 1984. All doors to the house were secure. To one side of the premises was a locked roller door. To the other side, there was a locked gate.  Shortly after arriving police manipulated the gate and accessed the rear of the house.  Once at the back of the house police forced entry through a door, which provided access to the kitchen and the balance of the house.  Police entered at about 8:20am, but at that time did only a cursory examination of the house before calling for assistance. 

9. The front door had been secured by more than just locking the front door.  The house was unoccupied.  It had been turned over to the growing and storage of cannabis.  A substantial amount of equipment suitable for growing cannabis was in more than one room.  At least some of that equipment was being utilised.  The electricity had been bypassed.

10. The two plants the subject of count 2 were growing in one room and the cannabis the subject of count 1 was drying, or dry, in another.  This was about 3.83 kilograms of female cannabis plant material. 

11. In terms of the equipment, the following was found: 37 ballast boxes, 51 hydroponic light globes, 41 lampshades and two carbon filters.

12. Shortly after the three police officers arrived at Newton and once they had conducted a very brief inspection of the house they exited to wait for other police to attend. At about 8.30am, while the three officers were at the rear of the property, Mr Franco arrived.  He was driving onto the property and into the carport. He was in possession of a remote control for the roller door (‘the remote’). He was using the remote to raise that door so that he could drive into the carport. Police heard the movement of the door and saw Mr Franco begin to drive into the carport.  The police officers directed Mr Franco to stop his vehicle.  He reversed a short distance and stopped outside the carport and in the driveway.  The key to the car was taken by the police. Once Mr Franco exited the car, he identified himself.  He provided his name, some identification and his home address of 38 William Street, West Croydon (‘West Croydon’). Mr Franco also provided an explanation for his presence at Newton. That explanation was not recorded. However, it included Mr Franco stating that he was there to conduct an appraisal on the property.   

13. There was a conflict between the evidence of the police and Mr Franco as to whether police had forced entry into the house by the time that Mr Franco arrived.  Contrary to Mr Franco’s evidence, I find that police had forced entry before he arrived.  Although I prefer the evidence of the police on that topic, I have not found that material to my assessment of Mr Franco’s credibility or reliability on other matters.  I think Mr Franco was merely mistaken.  This aspect of the evidence is not relevant to my assessment of the balance of Mr Franco’s evidence and the issues I must decide. 

14. While Mr Franco was still at Newton, he and the car in which he arrived were searched.  Within the car were business cards bearing his name. Mr Franco was a real estate agent working at Harcourts at Seaton.  That Mr Franco was a real estate agent, working from the office at Seaton set out on his business cards, was confirmed by the evidence of Mr Beshara.  A focus of the searches of the car and Mr Franco was for a key to the house at Newton.  No key was found.  In addition, no key to the Newton house was found at that property. 

15. Mr Franco was not arrested, but remained at Newton for about an hour and a half before returning to his home at West Croydon.

16. At about 10:10am on 7 June 2018, police officers attended at Mr Franco’s home at West Croydon.  A woman was present at the house, likely Mr Franco’s wife or his mother.  Nothing turns on the identity of that person.  Mr Franco arrived at West Croydon very shortly after the police, at about 10:16am. Under the authority of a general search warrant held by Detective Millard (‘Millard’) a search was conducted of the house at that property and a shed.  No keys to the Newton property were found, nor were any items found inside Mr Franco’s house which might have connected Mr Franco to cannabis or Newton. Items of interest were found in the shed. I will return to those items later.

17. On 7 August 2018, police took Mr Franco’s fingerprints. They also had the fingerprints of a Mr Duntoni. 

18. The investigation suggested that Mr Duntoni may have been a tenant at Newton before 7 June 2018. Without objection, a tenancy agreement for the Newton property was tendered as part of a bundle of documents (Exhibit P1). On the face of that agreement the property had been leased by a Mr Ceravolo to Mr Duntoni in the period from 10 April 2017 to 10 April 2018. I was told that the prosecution and Mr Franco agreed this tenancy agreement was a “business record” in accordance with s 53 of the Evidence Act, 1929 (‘the EA’).[1] If that is so, then the tenancy agreement is evidence of the facts stated within it. Although not the subject of submissions, there may be some uncertainty as to whether the tenancy agreement is a “business record” as defined in s 53 of theEA.  Nothing turns on this.  Even if it is not a “business record” I treat the approach of the parties at trial as being an agreement that Mr Duntoni had been a tenant at Newton in the period set out in the agreement and that the balance of the matters set out in that agreement are true. 

    [1]    T286

19. A copy of a “rent book” for the property also forms part of Exhibit P1.  It was provided to police by Mr Ceravolo after 7 June 2018.  Mr Ceravolo was not called.  The rent book records regular rental payments up to, and including, 7 May 2018. The date and amount of the first payment, and the date of the commencement of the tenancy agreement, are consistent with rent being paid in advance. Neither the prosecution, nor Mr Franco, submitted that the rent book was admissible as a “business record” under the EA.[2] 

    [2]    T286, 381-2.

20. Given the approach of the parties, I do not find the rent book to be a “business record”.  However, the key matters within that rent book can be found in any event. That Mr Ceravolo was the owner is an agreed fact. That Mr Ceravolo was the landlord, Mr Duntoni the tenant and the latter was obliged to pay monthly rent of $300 are set out in the tenancy agreement.  I infer that rent was paid as Mr Duntoni’s fingerprints were on items associated with the cannabis found on 7 June 2018 and cannabis was being grown and stored.  That is, I infer that Mr Duntoni had some role in one, or both, of those things.   That rent was paid after the end of the tenancy agreement (i.e. - after 10 April 2018) is only in the rent book, but I find it is reasonably possible that Mr Duntoni was still a tenant after the end of the tenancy agreement.  It would not be surprising for a tenancy to continue after a formal agreement has come to an end, particularly when the tenancy agreement was between the owner and the tenant (i.e.- no real estate agent was involved).  As I understand Mr Franco’s case, this approach is consistent with his case. 

21. That Mr Ceravolo provided the rent book to the police after 7 June 2018 and in doing so held out he had leased the property to Mr Duntoni in the period set out in the rent book and that rent was paid adds nothing to the tenancy agreement, the inference I draw from that agreement that rent was paid and my finding it is a reasonable possibility that the agreement continued after 10 April 2018.   

22. Mr Franco’s fingerprints were located on three items of prescribed equipment located within the house at Newton. Those fingerprints included:

    ·   The impression of the right ring-finger taken from a ballast box located in the hallway of the Newton property;

    ·   The impression of the right ring-finger taken from a ballast box located in grow room 4 of the Newton property; and

    ·   The impression of the right thumb taken from a lampshade located in grow room 1 of the Newton property. 

23. Mr Duntoni’s fingerprints were found on two items. Those items were:

    ·   A light globe located in the hallway of the Newton property; and

    ·   A ballast box located in grow room 4 of the Newton property.

    Discreditable conduct – items in the shed at West Croydon

24. While searching the shed at West Croydon on 7 June 2018, Millard located two items of interest.  First, within a tin there was a ‘bud’ of what Millard concluded had both the appearance and smell of cannabis.[3]  Second, Millard saw more than one white bucket.[4] All were empty.[5]  He removed the lid on one white bucket.[6] The bucket was approximately 60 to 90 centimetres in height[7] and smelt of what he believed to be cannabis.[8]  

    [3]    T128. 9-16. 

    [4]    T129.19-20.

    [5]    T130.31-33; T132.17-19.

    [6]    T129.22; T130.26-27. 

    [7]    T129.5-11.

    [8]    T129.16-7, 28-31.

25. In advance of trial, there was argument as to the admissibility of what was found in the shed at West Croydon (the voir dire). Mr Franco submitted that the above evidence should not be admitted.  Having heard the evidence of Millard and submissions, I admitted Millard’s evidence of what he saw, and smelt, in the shed at West Croydon.  Given that, for reasons I will give, I have not used that evidence in any way against Mr Franco, it is not necessary for me to address in detail the permissible and impermissible uses of that evidence and the requirements for admissibility set out in section 34P of the EA.It is also not necessary for me to set out the directions which would have been necessary had I used the evidence.  It is enough that I record the reasons I admitted the evidence, my conclusions on some disputed issues relevant to this evidence and why I did not use the evidence once I had heard all the evidence.   

26. I admitted the evidence of the ‘bud’ as it could shed light on whether what was smelt in the bucket was in fact cannabis, that being a matter that Mr Franco did not accept on the voir dire. I was satisfied that use met the test set out in s 34P(2)(a) of the EA and that it could be kept separate from any impermissible use (s 34P(3) of the EA).  I admitted the evidence of the ‘bud’ for a further purpose which was the same purpose for which I admitted the evidence of the smell of the bucket.  I admitted both as they could show that Mr Franco had an interest in cannabis and that such an interest was relevant to the issues likely to arise in the trial.  More particularly, that an interest in cannabis could shed light on whether there was an innocent explanation for Mr Franco’s presence at Newton on 7 June 2018, being in possession of the remote and whether there was an innocent explanation for the presence of his fingerprints on items within that house. I was satisfied that the use of the evidence for this purpose satisfied the test set out in s 34P(2)(b) of the EA.  

27. Other issues arose on the voir dire with respect to this evidence. Because of certain answers Millard gave in cross-examination on the voir dire, Mr Franco submitted that I could not be satisfied that the ‘bud’ was cannabis and that I could not be satisfied that what Millard smelt in the bucket was cannabis.  I was satisfied that the ‘bud’ seen by Millard was cannabis and that what Millard smelt in the bucket was also cannabis.

28. As for the bud, Millard had been a police officer for about a decade in June 2018.[9]  I was satisfied that he had acquired sufficient familiarity with both the appearance and smell of cannabis to be able to identify it[10] and that it is inherently unlikely he made a mistake when he had not just the opportunity to smell the bud, but to see it. For these reasons, I was satisfied the ‘bud’ was cannabis.  However, I note that when he gave evidence in the trial Mr Franco said that he had smoked cannabis as a young man[11] and that he saw the bud that Millard found.[12]  Mr Franco told me he recognised the ‘bud’ as cannabis.[13]  I pause to record that although Mr Franco’s admitted use of cannabis as a young man is evidence of discreditable conduct I have not used that evidence in any way. In argument on the voir dire it was submitted by Mr Franco that to admit the ‘bud’ I had to be satisfied beyond a reasonable doubt that it was cannabis. I do not agree. That the bud was cannabis is not an element of any offence with which Mr Franco is charged, nor is it an intermediate fact requiring proof beyond a reasonable doubt.  It is just one piece of circumstantial evidence in the case. 

    [9]    T122.45; T128.18-19.

    [10] T128.20-33.

    [11] T358.6-7; T363.1-3.

    [12] T362.35-38.

    [13] T363.4-6.

29. As for the smell in the bucket, I was also satisfied that what Millard smelt was cannabis.  Millard is an experienced police officer, with experience of the smell of cannabis.[14]  His concession that it might have been the smell of something other than cannabis[15] does not mean that I must conclude it may have been something else.  The presence of what I was satisfied was a cannabis bud in the same shed on the same day, supports the conclusion that what was smelt in the bucket was in fact cannabis.  For those reasons, I was satisfied that what Millard smelt in the bucket was cannabis.  As with the bud, it was submitted by Mr Franco that I could not admit this evidence unless I was satisfied beyond a reasonable doubt that what Millard smelt was cannabis.  I disagree for the same reasons I have expressed with respect to the bud.

    [14] T128.18-28.

    [15] T131.38; T132.1-3; T132.13-16.

30. I turn to why I have not used what was seen and smelt in the shed at West Croydon despite having admitted the evidence.  

31. When I admitted this evidence after the voir dire, I did not have the evidence of Mr Franco. Mr Franco only gave evidence at trial. Given his evidence, I am not satisfied that he was in possession, or had knowledge, of the bud before it was found by police.  His evidence was to the effect that as at 7 June 2018, two of his adult children lived in the house.[16]  The amount of cannabis (i.e.- a single bud), and its presence in a tin,[17] is consistent with use of cannabis. While Mr Franco did not give evidence that the bud might have belonged to one of his children, it may have belonged to one of them.  There was no evidence as to the security of the shed, nor as to whether the tin was hidden.   While Mr Franco admitted that he had paid an expiation notice given to him by Millard with respect to that bud,[18] the payment of the expiation notice is not an admission of possession[19].    

    [16] T287.17-27.

    [17] T288.16-21; T324.32-38.

    [18] T363.7-10.

    [19] Section 15(4) Expiation of Offences Act, 1996.

32. Mr Franco did not deny in evidence that he knew of the presence of the buckets.[20] His answers with respect to the buckets were consistent with him knowing of their presence and having used them, albeit for innocent purposes.[21]  While I am satisfied that he was in possession of the relevant bucket in the shed and am satisfied it had contained cannabis in the past, I am not satisfied that Mr Franco was responsible for the cannabis which had been in that bucket, nor that he knew that cannabis had been in the bucket before it was smelt by Millard on 7 June 2018.  That a person other than Mr Franco may have been in possession of the ‘bud’, means that same person might have been responsible for the cannabis which had been in the bucket. Both were in the same shed at the same time.  My conclusion on this issue might have been different if I were satisfied that the ‘bud’, and/or the cannabis which had been in the bucket had come from Newton, but I am not satisfied of that.  There is no evidence of how long the smell of cannabis might last, nor any evidence as to over what period cannabis may have been grown at Newton, nor any evidence as to how much cannabis might have been grown there (e.g.‑ whether the two plants found might have produced more than the cannabis the subject of count 1).  

    [20] T288.25-30; T325.8-11. 

    [21] T363.11-18; T364.8-17.

    The evidence of Mr Franco

1. Mr Franco gave evidence in the trial.   

2. Mr Franco’s evidence was that his presence at the Newton property was unrelated to what was occurring inside of the house.[22] He had no knowledge of, nor involvement in, what was taking place inside.[23]  He came into possession of the remote about a week before 7 June 2018.[24] He was given it by Mr Ceravolo.[25]  Mr Franco had first met Mr Ceravolo many years before 2018.[26]  Their contact had been limited.[27]  He did not know him well.[28]  In March 2018, Mr Ceravolo asked Mr Franco to appraise the property at Newton.[29]  Mr Ceravolo led him to believe that the appraisal would be used in negotiations to settle the interest that another person had in the property.[30]  Mr Franco attended the property to appraise it.[31]  He did not go inside.[32]  As to the interior he acted on what he had been told by Mr Ceravolo.[33]  He inspected it from outside and only from the front.[34]  Having attended at Newton Mr Franco caused a written appraisal of the property to be prepared.[35]  That appraisal is dated 20 March 2018.[36]  Mr Franco delivered it to Mr Ceravolo,[37] but heard no more from him until Mr Franco contacted him about a week before 7 June 2018.[38] 

   [22]  T292.27-35; T298.1-4, 9-12. 

   [23] T343.10-16; T358.29; T360.33.

   [24]  T296.22-27; T297.23-24; T319.6-8. 

   [25]  T296.35-36; T319.6-8.

   [26]  T290.38; T291.1-8.

   [27]  T291.15-20; T323.32. 

   [28]  T291.15-20; T323.32.

   [29]  T291.25-26; T331.8-12, 16-19. 

   [30]  T291.26-29; T294;34; T330.34-38; T331.1-4, 27-30.

   [31]  T292.27-28.

   [32]  T293.2-5.

   [33]  T329.35-38; T330.1-5.

   [34]  T293.2-5; T298.1-4; T318.2-12. 

   [35]  T293.18-21; Exhibit D3.

   [36]  T294.18-23; Exhibit D3.

   [37]  T294.28-35; T365.8-10.

   [38]  T295.1-3; T324.10-12. 

3. A copy of the appraisal is Exhibit D3.[39]  Mr Franco says that it is genuine.[40]  The prosecution put to Mr Franco that it is a false appraisal.[41] In effect, that it was created on 20 March 2018 as a cover, should Mr Franco be connected to the illegal activity at the Newton property.[42] Mr Franco denied that the appraisal was not genuine.[43]

   [39]  T294.26-27.

   [40]  T294.13-23; T336.17-22. 

   [41]  T337.18-20.

   [42]  T337.18-20.

   [43]  T337.21.

4. Mr Franco told me that about a week before 7 June, he contacted Mr Ceravolo to follow up on the status of the Newton property.[44]  He was short of listings.[45]  Mr Ceravolo now told him that he wanted to sell the property.[46] Mr Ceravolo told Mr Franco that he had lost contact with the tenant.[47]  He asked him to reappraise the property, to see if he could locate and get rid of the tenant and to ascertain what needed to be done to get the house on the market.[48] Mr Ceravolo told him that he wanted this done as soon as possible.[49] Mr Ceravolo provided him with the remote,[50] but no key to the house.[51]

   [44]  T295.1-5; T324.10-12. 

   [45]  T295.6-11.

   [46]  T296.1-5; T335.11-12. 

   [47]  T296.11; T335.11-12; T342.7-9. 

   [48]  T296.22-27; T341.38; T342.1-14. 

   [49]  T296.32-33; T344.1-3. 

   [50]  T296.35-36; T348.14-19. 

   [51]  T297.2-5.

5. Having come into possession of the remote, Mr Franco told me he went to the property on four occasions.[52]  Putting aside 7 June, there were two occasions he used the remote.[53]  On one of those occasions he saw a table at the rear and touched it.[54]  Items on top of the table fell to the ground.[55]  He did not associate them with items which might be used in the cultivation of cannabis.[56]  He picked them up and placed them back on the table.[57]  Mr Franco says his handling of items on this day explains the presence of his fingerprints on the items found within the house on 7 June 2018.[58]  Although on no visit to the house did Mr Franco succeed in having any person answer the door,[59] if Mr Franco told me the truth, someone must have taken the items into the house between when Mr Franco handled them and the morning of 7 June. 

   [52]  T297.30-36; T353.14-22. 

   [53]  T298.9-12; T301.13-16; T340.17-19. 

   [54]  T299.6-9; T354.15-16; T355.8-9

   [55]  T299.18-19; T355.10-12. 

   [56]  T316.19-23.

   [57]  T299.29-31; T355.13-16; T356.14-16; T357.32-38; T358.1-2.

   [58]  T357.16-25.

   [59]  T298.5-7; T299.2-3, 32-34; T301.15. 

6. On each occasion that Mr Franco attended after coming into possession of the remote, other than on 7 June, Mr Franco knocked and sought to raise a response from inside.[60]  On no occasion did anyone answer.[61] On the occasion items fell from the table, Mr Franco wrote a note on a business card for the tenant to contact him and left it in the back screen door.[62] Mr Franco was not contacted in response to this note.[63]

   [60]  T298.5-7; T299.2-3, 32-34; T301.15, 30-33; T353.32-33.    

   [61]  T298.5-7; T299.2-3, 32-34; T301.15, 30-33; T354.4-7. 

   [62]  T299.32-34. 

   [63]  T301.27-28. 

   The prosecution case

7. The prosecution case is that the whole of the evidence permits only of the conclusion beyond a reasonable doubt that Mr Franco attended at the Newton address on 7 June because he had knowledge of, and involvement in, the cannabis being stored, and grown, at the premises. As to Count 1, the prosecution case is that Mr Franco was either solely, or jointly, in the possession of the cannabis in what was described as grow room 1.  As to Count 2, the prosecution case is that Mr Franco took part in the cultivation of the two plants in what was described as grow room 2.  As to Count 3, the prosecution case is that Mr Franco was in sole possession of the equipment the subject of that charge. As to count 4, the prosecution case is that Mr Franco committed some act directed towards the abstraction of electricity, or that he is presumed to have done so because he is an occupier and that presumption has not been rebutted. 

8. In support of its case, the prosecution identified the following pieces of circumstantial evidence, which it said together proved each count beyond a reasonable doubt. Bearing in mind my approach to the items in the shed at West Croydon, the circumstantial evidence identified by the prosecution was:

   ·   The Newton property being set up for the dominant, if not sole, purpose of cultivation of cannabis;

   ·   The Newton property being secured with steps taken to make entry difficult;

   ·   The attendance of Mr Franco at the Newton property on 7 June 2018;

   ·   The access Mr Franco had to the rear of the Newton property by way of the remote for the roller door;

   ·   The apparent familiarity of Mr Franco with the Newton property by way of driving his vehicle under the roller door and into the carport; 

   ·   The fingerprints of Mr Franco located on two different ballast boxes and a lampshade inside the Newton property;

   ·   The substantial amount of drying, or dry, cannabis located in grow room 1 of the Newton premises at the time of Mr Franco’s attendance on 7 June 2018;

   ·   The Newton property containing two growing cannabis plants located in grow room 2;

   ·   The offcuts of cannabis located in the Newton property;

   ·   The existence of a substantial amount of prescribed equipment located in the Newton property;

   ·   The electrical meter at the Newton property being interfered with, in order, for electricity to be abstracted;

9. Obviously enough, given that one of the real issues in the trial is what the prosecution has proved was the reason for Mr Franco’s attendance at Newton on 7 June, the key pieces of circumstantial evidence are: his presence, his possession of the remote, the use of the remote, his fingerprints on prescribed equipment inside the house and in more than one location, the loose cannabis inside and that cultivation of cannabis had been, or was, taking place.

10. The prosecution submitted Mr Franco’s denial of any knowledge of, or involvement in, the cannabis and equipment and related activity within the Newton house should be rejected in the light of the circumstantial case.  As for Mr Franco’s evidence, it was not submitted that there was anything in his demeanour which would entitle me to doubt the evidence that he gave.  I agree with that submission.  However, it was submitted that the innocent explanation for his presence at Newton given by Mr Franco on 7 June 2018 and the innocent explanations given by him in evidence for his fingerprints being present on items inside the house and for him being present on that day using the remote should be rejected as a consequence of what was said to be: the strength of the circumstantial case; the unsatisfactory nature of his explanation for being at the property on 7 June, given the absence of any involvement in, or responsibility for, the tenancy agreement, which is within Exhibit P1, and the absence of any formal agreement that established that he had been engaged by the owner to sell the Newton property; the unsatisfactory nature of his explanation for his fingerprints being on prescribed equipment within the house and the improbability that he would use the remote and enter the carport on 7 June when he had not established that the tenant was not present and when he had not met those whom he said he believed were present as a result of a car parked outside (i.e. - a person/s who had an interest in the property, but not Mr Ceravolo).  

    The defence case

11. Mr Franco’s case is that the circumstantial evidence is insufficient to establish guilt. 

12. Among the matters emphasised by Mr Franco were: the innocent explanation given by Mr Franco in evidence, and on 7 June 2018, for his presence at Newton on that day and on earlier occasions; the absence of any dispute that he was a real estate agent; that documents supported the property was rented to Mr Duntoni; an appraisal for the property had been printed on 20 March 2018 and that he had taken steps to ascertain whether the property could be sub-divided and at what cost; that the Newton house was secure and that Mr Franco was not found in possession of, or with access to, a key to that house; the absence of anything related to cannabis being found on Mr Franco, within the car he was driving or at his home (other than the items in the shed, which I ignore); the absence of evidence connecting Mr Franco to Mr Duntoni whose fingerprints were found on equipment within the house and whom it was agreed had entered into a tenancy agreement which, while it had expired about two (2) months before the police searched the house at Newton did not mean that he was not still a tenant and had access to the house.   

    Discussion

13. The prosecution and Mr Franco agreed that in considering my verdicts an appropriate starting point is to consider whether I am satisfied beyond a reasonable doubt that Mr Franco attended the Newton address on the morning of 7 June for some purpose related to the cannabis and equipment within the house. Put another way, whether Mr Franco attended with knowledge of what was taking place inside and intending to do something related to what was inside. 

14. I make some preliminary observations about some aspects of the prosecution case, but without drawing any conclusions. 

15. Mr Franco’s conduct in using the roller door is consistent with him wishing to place himself behind that door and out of sight.  He was doing so when, by his own admission to the police on 7 June 2018, the property was not his.  Mr Franco’s fingerprints were on three items within the house, all of which were items used in the cultivation of cannabis by the method being used inside.  Mr Franco’s fingerprints must have been left on the items before 7 June 2018.  However, Mr Franco was a real estate agent and had an interest in selling properties.  Consistent with this, a written appraisal had been printed on 20 March 2018, he took steps to investigate the possibility of a sub-division either shortly before 7 June 2018, or after that date, and the tenancy agreement proves any formal agreement had come to an end.  As was submitted, the existence of these documents was consistent with Mr Franco’s evidence.   

16. The failure of the police to locate a key to the premises and any evidence connecting Mr Franco to cannabis beyond his presence at Newton weighs against Mr Franco having any involvement in what was occurring inside, but is not decisive.  Given that there were fingerprints of more than just Mr Franco on the items inside, including those of a person who appears also to have had access to the house but who was not living there, there is a strong inference more than one person was involved in what was occurring inside. When more than one person is involved in cannabis cultivation and the house is unoccupied, it would not be surprising if a key had been hidden somewhere at the property without it being found by the police. As a matter of common sense, hiding a key would be an appropriate way to permit more than one person to gain access, but at the same time minimize the risk of a person being found in possession of a key.  The absence of anything in Mr Franco’s car, at his house, or on his person linking him to cannabis weigh against the prosecution having proven its case, but must be viewed in light of the fact that cannabis was still growing and loose cannabis was still at the house (i.e. - cannabis might not have yet been removed).  

17. It would be going too far to say that Mr Franco cannot be connected to Mr Duntoni.  First, their fingerprints were on items inside the house being used to cultivate cannabis.  Second, Mr Franco was attending the house of which Mr Duntoni was the tenant at least up until 10 April 2018.  Third, he was in possession of a remote that operated the roller door.  Fourth, Mr Franco was using that remote to access the rear of the property.  Nonetheless, Mr Franco cannot be connected to Mr Duntoni in any other way and that is of significance.    

18. The appropriate approach is not to draw any conclusion on an issue of importance without considering the whole of the evidence.  The whole of the evidence includes the evidence of Mr Franco.  

19. I have carefully considered Mr Franco’s evidence.  As I have set out, there was nothing in the way that Mr Franco gave his evidence (i.e. - his demeanor) which assisted me in the assessment of his evidence.  I then turn to some of the key aspects of what he said.

20. It is common ground that on/about 20 March 2018 Mr Franco had written, or caused to be written, an appraisal of the property.  There is no dispute that a written appraisal, Exhibit D3, must have been printed on 20 March 2018.  If that appraisal is genuine, then it is consistent with Mr Franco’s presence at the house on 7 June 2018 being innocent.  It makes it more likely Mr Ceravolo might contact Mr Franco closer to 7 June 2018 and seek his assistance to advance a sale of the property.  As was submitted, that document, and others, are consistent with Mr Franco’s evidence and that is important.  That said, a genuine appraisal and Mr Franco being involved with the cannabis are not necessarily inconsistent. 

21. Mr Franco told me that the appraisal was done without going inside the house.  Information about the inside, including the condition, was provided to him by Mr Ceravolo.  While it might be difficult to do a meaningful appraisal without going inside, I do not reject Mr Franco’s evidence for that reason.  Mr Franco told me the appraisal was just to be used in negotiating about a family interest in the property.  I do not discount that such an appraisal might be done without going inside.  If I am to reject Mr Franco’s evidence as to his reason for being at the property on 7 June 2018, it must be for reasons other than what Mr Franco told me about the appraisal dated 20 March 2018. 

22. Mr Franco told me that once in possession of the remote, he attended Newton on four (4) occasions before 7 June 2018.[64] Up until it was taken by the police on 7 June 2018, Mr Franco had Mr Ceravolo’s phone number in his phone.[65]  Despite Mr Ceravolo having told him that he wanted the property on the market as soon as possible,[66] Mr Franco did not give any evidence that he contacted Mr Ceravolo about his efforts to locate the tenant.  This has not caused me to doubt Mr Franco’s evidence as the period was a relatively short one.     

    [64] T297.30-36; T353.14-22.

    [65] T325.30-36.

    [66] T296.32-33; T344.1-3. 

23. Mr Franco told me that Mr Ceravolo wanted him to see if he could get rid of the tenant.[67] I initially entertained some doubts about this aspect of Mr Franco’s evidence for the following reasons, in combination.  First, there was no evidence Mr Ceravolo told him the tenancy agreement had expired, a matter Mr Ceravolo might have mentioned if he wanted the tenant moved on.  Second, it is common ground that Mr Ceravolo not only had a copy of that agreement,[68] but it bore the name of the tenant, a phone number and email address.  Mr Franco said that none of that detail was passed on to him (other than that the number had changed).[69]  This is despite the terms of Mr Ceravolo’s request and despite Mr Franco having raised with Mr Ceravolo the tenant could be sent an email or letter.  Third, it is common ground that Mr Franco was a real estate agent, but there was no evidence that Mr Franco asked what, if any, agreement existed with the tenant.  However, my doubts with respect to the above have not caused me to reject Mr Franco’s evidence. Mr Franco was a real estate agent and knew Mr Ceravolo.  Mr Franco may simply have accepted what Mr Ceravolo said, knowing that other information could be sought later. 

    [67] T296.22-27; T341.38; T342.1-14.

    [68] Exhibit P1, pg 80.

    [69] T326.22-36

24. Mr Franco told me that after 7 June 2018 he did not contact Mr Ceravolo.  As set out above, he told me that the number was in his phone which was in the possession of the police.  That is true, but Mr Franco knew where he lived and knew people who knew him.  He does not appear to have used that knowledge to contact Mr Ceravolo. 

25. While I accept that if his attendance at the house on 7 June 2018 had been innocent, Mr Franco may not have wanted to have anything to do with Mr Ceravolo and the house and there would be nothing unusual in Mr Franco distancing himself from the house, that was not, at all times, his evidence.  Mr Franco told me in evidence-in-chief that after 7 June 2018 he “started in the process of doing the survey details (of the property) for a subdivision”.[70]  He explained that process, which included ringing with a company called State Surveys Planning. I find that Mr Franco’s evidence-in-chief was that this contact was made after 7 June 2018.[71]  Mr Franco changed his position in cross‑examination.  He said he could not recall when he requested the survey report.[72]  Mr Franco’s apparent change in position caused me to question that the obtaining of the report was genuine, but if other key aspects of his account might be honest, he may have made a genuine mistake.  He had obtained such reports before and he was recalling an event from about two years before.  I do not reject his evidence because of what he said about the timing of the request for survey report, nor because of a failure to contact Mr Ceravolo after 7 June 2018.  I bear in mind that the existence of the report is consistent with his evidence that he was asked by Mr Ceravolo to advance a sale of the property.  

    [70] T310.28-29.

    [71] T310-312, particularly 310.26-34 and 312.29-30. 

    [72] T349-350, 361-2. 

26. Notwithstanding that aspects of Mr Franco’s evidence are consistent with the fact he was a real estate agent and the documents (i.e. - the tenancy agreement, the appraisal and the survey report) I reject Mr Franco’s evidence that he attended on 7 June 2018 as a result of Mr Ceravolo asking him to assist him in locating the tenant with whom he had lost contact and to advance getting the property ready for sale.  I do so for the following reasons.   

27. A view of the evidence is that Mr Duntoni was involved in the cannabis cultivation within the house at Newton.  It is common ground that his fingerprints were on items within the house connected to the cultivation of cannabis.[73]  It is also common ground that he had a tenancy agreement until at least 10 April 2018.[74] There was about 3.83kg of female cannabis material inside the house.  That cannabis was valuable.[75]

    [73] Statement of Trisha Lyne GODDEN, dated 18 October 2018, [20] contained in Exhibit P1.

    [74] See [18-[21] above.

    [75] Affidavit of Belinda Anderson 5 July 2020, contained in Exhibit P1.

1. If Mr Duntoni was involved in the cannabis, he is unlikely to lose contact with a landlord who might then enter without notice and find what was inside. 

2. Another view of the evidence is that Mr Ceravolo was involved, without any involvement of Mr Duntoni, or with him but Mr Duntoni’s involvement had ended shortly before 7 June 2018.  If that were so, Mr Ceravolo is unlikely to have been asking Mr Franco to attend the property and search for the tenant while in possession of the remote for the roller door.  That would run the risk of Mr Franco discovering what was taking place.

3. Another possibility is that Mr Duntoni was not involved and nor was Mr Ceravolo.  That would mean that Mr Duntoni’s fingerprints came to be on equipment for reasons unrelated to the cultivation of cannabis despite it being common ground that he had a tenancy agreement until 10 April 2018.  That is unlikely.  But if Mr Duntoni was not involved, someone else must have been.  If it was not Mr Ceravolo, then Mr Duntoni must have given access to the property to someone without telling Mr Ceravolo, without staying in touch with Mr Ceravolo or with the unknown person being prepared to risk that the owner might attend and valuable cannabis be lost.  That is unlikely. 

4. Another possibility is that Mr Franco was there to advance a sale of the property with knowledge of, but no involvement in, what was occurring inside.  A difficulty with that is that it suggests a high level of trust between Mr Ceravolo and Mr Franco.  Mr Franco’s evidence of his past dealings with Mr Ceravolo was not consistent with that level of trust.  Another difficulty is that it was not Mr Franco’s evidence.  It also does not easily explain Mr Franco’s fingerprints being on items inside.   

5. Mr Franco’s evidence that Mr Ceravolo asked him to assist in locating the tenant and that he made the roller door remote available to him for that purpose is central to Mr Franco’s evidence on the key issues in this trial.  When viewed in the context of the evidence that Mr Franco’s fingerprints were on three items inside the house, all items which are used in the cultivation of cannabis, and on 7 June 2018 he was using the roller door remote to access the property, I find the different scenarios set out by me to be so unlikely as not to be reasonably possible.  I reject Mr Franco’s evidence that he was asked to attend the property because of what he said Mr Ceravolo had said to him.  I do so despite Mr Franco being a real estate agent and despite the documents consistent with his account. 

6. Mr Franco’s account of his conversation with Mr Ceravolo which caused him to attend on 7 June 2018 is so central to the other exculpatory aspects of his evidence that I reject all exculpatory aspects of his evidence and his exculpatory statements to the police on 7 June 2018.

7. I turn then to consider the whole of the evidence, mindful that my rejection of the key aspects of Mr Franco’s evidence is not evidence.  It also does not deprive the prosecution of the obligation to prove beyond a reasonable doubt that Mr Franco attended on 7 June 2018 with knowledge of what was taking place inside and intending to do something related to what was taking place inside, nor to prove each element of a count beyond a reasonable doubt before I can convict.  I also remind myself that the prosecution’s case is based on circumstantial evidence.  I cannot convict of any count unless satisfied that guilt is the only reasonable inference.  

8. Mr Franco’s fingerprints were on three (3) items inside the house.  Each was an item used in the cultivation of cannabis.  The house was unoccupied and devoted to the growing and drying of cannabis.  Mr Franco was in possession of a roller door remote which gave access to the rear of the property.  Going behind that door minimized the chance of being seen.  As the front door was barricaded, it also gave access to the only part of the house through which entry could be gained (i.e. - a rear door).  I am satisfied beyond a reasonable doubt that Mr Franco’s fingerprints came to be on the items because he played some role in taking those items to, or into, the house before 7 June 2018 and/or because he had been inside the house before 7 June 2018 and touched the items.  I am also satisfied beyond a reasonable doubt that Mr Franco attended on 7 June 2018 with knowledge of what was taking place inside and intending to do something related to what was taking place inside.  I am unable to determine beyond a reasonable doubt what he was going to do on that day.  It may have been simply to check on the security of the premises.     

   Counts 1 – 4 inclusive  

9. Having made the findings above, I turn to consider each count. 

10. As to count 1, there is no dispute that cannabis is a controlled drug. 

11. An appropriate starting point for my consideration of the elements of this count is the matters of which I am satisfied set out at [67] above. It follows from those matters that Mr Franco had been to the house on at least one occasion before 7 June 2018. That is, at least on the occasion that his fingerprints came to be on the three items of equipment. Further, as I have found, he attended on 7 June 2018 intending to do something related to what was taking place inside.

12. The prosecution puts its case on count 1 and trafficking in two ways.  First, on the basis that Mr Franco was in possession of the cannabis inside, either solely, or jointly with a person/s unknown and intending to sell it.[76]  Second, on the basis that Mr Franco took part in the process of sale of the drug.  With respect to this basis the prosecutor put that Mr Franco was “storing the drug” or was “carrying, transporting, loading or unloading the drug”, both for the purpose of sale.[77] With respect to this second basis, the prosecution did not need to limit its case in the way it did. What is said in s 5(5) of the Controlled Substances Act, 1984 is not an exhaustive definition.  The prosecution did not submit that if I was satisfied that Mr Franco attended to check the premises were secure, with knowledge that loose cannabis and/or plants were inside, that would amount to “taking part in the sale of a controlled drug” if I was also satisfied that he knew the controlled drug was to be sold. 

    [76] See the definition of traffic in s 5 of the Controlled Substances Act, 1984 – “have possession of the drug intending to sell it”.

    [77] T246; see the definition of traffic in s 5– “take part in the process of sale of the drug” and s 5(5)(a) and (b) of the Controlled Substances Act, 1984. 

13. Section 4 of the Controlled Substances Act, 1984 states:

    possession of a substance or thing includes –

    (a)   having control over the disposition of the substance or thing; and

    (b)   having joint possession of the substance or thing. 

14. At common law, possession refers to the power and intention to exercise control over something to the exclusion of all others, except those in joint possession.  Whether the “included” meaning in paragraph (a) above restates the common law or provides a wider definition has not been decided.[78]  I proceed on the basis that the common law definition applies. 

    [78]  R v Nikolic [2019] SASCFC 32 at [16]; referring to R v Baftiroski [2018] SASCFC 83 at [31].

15. That Mr Franco was present outside and my finding he knew of the cannabis inside is relevant, but presence and knowledge are not enough to prove possession. That there is evidence giving rise to the inference others were involved in what was occurring inside the house is important. That alone can stand in the way of Mr Franco being in possession of the cannabis. Mr Franco will not be in possession unless I am satisfied beyond a reasonable doubt that another was not in sole possession and that others were not in joint possession to the exclusion of Mr Franco.

16. I have not found beyond a reasonable doubt that Mr Franco intended to go inside the house on 7 June 2018. It is reasonably possible that on this day he was only present to check on the security of the property. However, I am satisfied beyond a reasonable doubt that Mr Franco was in possession of the cannabis inside the house. I am unable to determine whether his possession was sole or joint, but I do not have to determine that. Either form of possession is enough to prove this element. I have carefully considered that in some cases the mere fact that one person might be in possession can prevent a finding that another person is in possession.

17. By 7 June 2018 the cannabis had already been harvested and was dry, or drying.  The final stage had been reached.  There was limited need for someone who was merely providing a service to the operation (e.g. – checking equipment) to attend.  Mr Franco’s possession of the roller door remote, his conduct in seeking to go behind that door on 7 June 2018, his fingerprints on three (3) items inside that house associated with the cultivation of cannabis, that the cannabis the subject of count 1 must have come from the two plants and that the house was turned over to the storage and cultivation of cannabis satisfy me beyond a reasonable doubt that he not only knew of the cannabis the subject of count 1, but was in possession of that cannabis.  I am satisfied beyond a reasonable doubt that Mr Franco knowingly had physical custody and control of the cannabis the subject of count 1 to the exclusion of others, other than another, or others, who might have been in joint possession with Mr Franco.  It follows that I also find beyond a reasonable doubt that Mr Franco knew that the plant material the subject of count 1 was cannabis.

18. It is therefore unnecessary to consider the second way the prosecution put its case on this count.  

19. My finding that Mr Franco was in possession of the cannabis the subject of count 1 means that he is in possession of more than 250 g of cannabis.  Mr Franco denied being a user of cannabis.  I accept that aspect of his evidence.  On the evidence, cannabis is a valuable commodity.  If Mr Franco was in possession of the cannabis, the only reasonable conclusion on the evidence is that he knew that it was to be sold.  I make that finding beyond a reasonable doubt, without relying on any presumption. 

20. Mr Franco will not be guilty of count 1 unless the amount of cannabis was at least 2 kg and Mr Franco knew that to be so.  It is an agreed fact that the cannabis the subject of count 1 was a little more than 3.8 kg.  As to Mr Franco’s knowledge that it was at least 2 kg, I must be careful not to assume knowledge of that amount simply because I have found he was in possession and had attended the premises at least twice, including on 7 June 2018.  Given I find that Mr Franco had touched equipment before 7 June 2018 (i.e. - taking equipment to, or into, the house, or touching equipment once inside), the house was turned over to the cultivation of cannabis, that he was in possession of the remote and used it to gain access to the rear of the property, that he was in possession of the cannabis and as the amount was significantly more than 2 kg, I am satisfied beyond a reasonable doubt that Mr Franco knew that he was in possession of more than 2 kg of cannabis (i.e.- a large commercial quantity of cannabis).  I am satisfied beyond a reasonable doubt that Mr Franco knew that at least 2 kg of cannabis was to be sold.

21. I find Mr Franco guilty of count 1. 

22. As to count 2, I am satisfied beyond a reasonable doubt that the plants the subject of this count were controlled plants.  Given my findings in [67] above, and having found Mr Franco guilty of count 1, I am also satisfied beyond a reasonable doubt that Mr Franco knew that the plants were cannabis plants. 

23. The prosecution alleges in the particulars of this count that Mr Franco cultivated the plants “on 7 June 2018” and did so with the intention of selling the plants or what they produced, or believing that another intended to do so.  However, in its opening and closing the prosecution relied upon Mr Franco having “cultivated by planting a seed, seedling, or cutting … or nurturing, tending or growing”.  Given the evidence, this can only be understood as directing attention to Mr Franco’s conduct before 7 June 2018. 

24. If count 2 demanded conduct on 7 June 2018, the prosecution case on this count would fail for that reason alone.  Mr Franco did not enter the house on 7 June.  Further, I would not find that on 7 June the plants were going to produce cannabis that could be sold.  The photographs of the plants are poor but suggest that they were relatively small and had been stripped, likely as the cannabis the subject of count 1 had been harvested.  There was no evidence the plants could produce more cannabis and, if so, how much.  I would not exclude that the plants were worthless but had been left as the crop was to be dismantled, or new plants cultivated, when the cannabis the subject of count 1 was removed.

25. Mr Franco was represented by senior counsel.  No point was taken about the particular of 7 June 2018 in this, or any other, count.  Given the way the trial was conducted, I do not believe that the date is a material particular in count 2.  However, it is not an issue I need resolve. 

26. While I am satisfied beyond a reasonable doubt that Mr Franco had either taken equipment to, or into, the house, or had touched that equipment inside the house before 7 June 2018, had knowledge before 7 June 2018 that cannabis was being grown and stored there and was in possession of the cannabis in count 1, I am not satisfied beyond a reasonable doubt that he committed an act matching any of the particulars given by the prosecution in its opening and closing.  The prosecution told me that count 2 was put on the basis that Mr Franco himself committed some act which amounted to the commission of the offence and disavowed any reliance on joint enterprise.[79]  It is reasonably possible that others were involved in the cultivation.  Given that, I am not satisfied beyond a reasonable doubt that Mr Franco himself undertook one of the types of conduct the prosecution particularised.  He may have simply touched an item when inside, but not in a way that was “nurturing, tending or growing”.  My verdict would have been different had the prosecution alleged that Mr Franco entered into an agreement to cultivate cannabis at the property and then participated in that agreement.  However, the prosecution did not put its case in that way and I do not regard it as appropriate for me to expand the way the prosecution put its case. 

    [79] T247.8-10; 248.6-16.

27. I find Mr Franco not guilty of count 2.   

28. As I understand the prosecution’s opening with respect to count 3, it did not open on the basis that Mr Franco was in joint possession of the equipment.[80] This is different to the way the prosecution put its case on possession in count 1. Given others may have been involved in what was occurring inside the house, that the fingerprints of at least Mr Duntoni were on equipment, that he was, or had been, a tenant and that before 7 June 2018 Mr Franco may merely have taken equipment to, or into, the house, or touched equipment when inside, I am not satisfied that he was in sole possession of the equipment.  Given my understanding of how the prosecution put its case at trial, I do not consider it appropriate to consider any basis of liability other than sole possession.

    [80] T248.8-12.

29. I find Mr Franco not guilty of count 3. 

30. As to count 4, there was no dispute that a meter or device for measuring the consumption of electricity supplied by an electricity entity had been interfered with at the house.  I am satisfied of those matters beyond a reasonable doubt.  An issue in this count is whether Mr Franco had done that. The prosecution did not allege a joint enterprise.[81] Given that it is at least reasonably possible that others were involved in the cannabis at the house, I am not satisfied beyond a reasonable doubt that Mr Franco had himself committed any act amounting to this offence. 

    [81] T248.

31. That is not the end of the matter.  As the prosecution has proved the matters in the first sentence of the paragraph immediately above, it is presumed, in the absence of evidence to the contrary, that the “occupier” of the land or place interfered with the meter or device for the relevant purpose.[82] An “occupier” of land or a place is defined in s 4 of the Electricity Act, 1996 as meaning - “a person who has or is entitled to possession or control of the land or place”.  The prosecution put that Mr Franco was either in joint possession or joint control of the house.[83] 

    [82] Section 85(3), Electricity Act, 1996.

    [83] T247.21-26.

32. Mr Ceravolo owned the house.  Mr Duntoni leased the property at least up until 10 April 2018 and it is, at least, reasonably possible that he was still involved with what was occurring inside as at 7 June 2018.  Given those matters, I am not satisfied beyond a reasonable doubt Mr Franco was in possession of the house.  Possession of a house (i.e.- physical custody and control) is a very different thing to possession of an item within that house. 

33. Control is not defined in the Electricity Act, 1996.  No submissions were made as to its meaning. 

34. Control has been regarded as being not materially different to possession,[84] but not in the context of the Electricity Act, 1996. Control cannot be the same as possession in this case. The meaning of occupier in s 4 of the Electricity Act, 1996 is consistent with “control” being something different to, and lesser than, “possession”.  The New Shorter Oxford Dictionary has within its definitions of control, “the act or power of directing or regulating; command, regulating influence”.  The Macquarie Dictionary has within its definitions, “the act or power of controlling; regulation; domination or command”.  Those concepts denote something less than possession.  A person might have the power to direct, regulate or command who can access a property, without having possession of that property (e.g. – a security guard tasked to control who can enter).   

    [84] R v Becirovic [2017] SASCFC 156 at [226]-[227].

35. I proceed on the basis that, just as with possession, whether a person is in control is a question of fact and that in determining whether a person is in control of a house, the whole of the circumstances must be looked at and assessed as a matter of practical common sense.  The circumstances to be considered include all the facts and matters which form constituent facts or ingredients of the transaction itself, or to explain or make intelligible the course of conduct pursued.[85]

    [85] R v Nikolic [2019] SASCFC 32 at [17].

36. In considering whether Mr Franco was in control of the property that it is reasonably possible that at least one other was in control is important.  That alone can stand in the way of Mr Franco also being in control.  

37. On 7 June 2018 Mr Franco was in possession of, and used, the roller door remote.  His fingerprints were on items inside, those items being used with respect to the cannabis inside.  The house was turned over to the cultivation and drying of cannabis.  The house was not being used for any other purpose.  I have found Mr Franco to be in possession of the cannabis the subject of count 1. I have found beyond a reasonable doubt that he attended on 7 June 2018 for some reason related to the cannabis inside.  Had the prosecution put its case on the basis that Mr Franco was part of a joint enterprise to cultivate the cannabis the subject of count 2 I would have found him guilty of that count. 

38. The matters immediately above give rise to a strong inference Mr Franco was “entitled to control” of the relevant land or place.  However, it remains the case that the property belonged to someone else and may still have been rented by another.  In my view, an “entitlement” to access a property because you are knowingly involved in the growing and drying of the cannabis within, and are in possession of the cannabis within, do not necessarily mean that there is an “entitlement” to control the land or place at which that is occurring, particularly when you are not the owner or tenant. 

1. I suspect that Mr Franco was in control of the property with another, or others, but I am not satisfied of that beyond a reasonable doubt. 

2. I find Mr Franco not guilty of count 4.

   Conclusion

3. I find Mr Franco guilty of count 1. 

4. I find Mr Franco not guilty of counts 2, 3 and 4.