R v Geroudis No. DCCRM-96-315 Judgment No. D3465

[1996] SADC 3465

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Ruling of His Honour Judge Pirone

Hearing

22/07/96.

Catchwords

Disputed facts - production of 24 plants of cannabis - production admitted - Crown says that the cultivation had a commercial flavour about it - defendant denies aggravating circumstances - defendant says that the cultivation was for personal use with casual and gratuitous social supply - estimated potential yield between 3 and 5 kilograms.Defendant does not give or call evidence - onus discharged by the Crown - aggravating circumstances found to exist - commercial element proved - R v. Carbone 36 SASR 306; R v Bridge (1964) 118 CLR 600 @ 615; Weissensteiner (1993) 178 CLR 217 @ 227-229 applied - other cases referred to.

Representation

R:
Counsel: Ms. K. Juttner - Solicitors: Director of Public Prosecutions

Accused DIMITRIOS GEROUDIS:
Counsel: Mr. J. Bennett - Solicitors: John Bennett

DCCRM-96-315

Judgment No. D3465

26 July 1996

(Criminal)

R v GEROUDIS

Criminal

Judge Pirone

The above-named defendant, Dimitrios Geroudis has been charged with the offence of knowingly producing a prohibited substance, namely cannabis, contrary to the provisions of Section 32(1)(a) of the Controlled Substances Act of 1984, as amended.

The defendant has pleaded guilty to that charge.A dispute, however, has arisen as to the facts.The resolution of that dispute is essential in order to determine the appropriate sentence which should be passed upon the defendant with respect to his admitted offence.

The Crown contends that there are aggravating circumstances in that, so the Crown says, there was a commercial purpose associated with the production of the prohibited substance.The defendant contends otherwise.He denies the allegation that there was a commercial purpose associated with his production of the cannabis, and says that the cannabis which he produced was for his own use in the main, although, when questioned by the police, he conceded the possibility that at some time in the future he may well have given some of it away to some of his friends if they had asked for it when they didn't have any of their own.

It has been settled for many years that a plea of guilty carries with it an admission of the essential legal ingredients of the relevant offence but no more than that and just that.It follows therefore that any facts on which the Crown relies beyond simple admission of the essential legal ingredients of the offence, and in particular any facts on which the Crown relies as constituting an aggravating circumstance must be established by the Crown by means of some acceptable procedure.Any dispute as to those facts must be resolved by ordinary legal principles.Those legal principles in the case at bar dictate that it is not for the defendant to give an explanation, or to validate such an explanation if one is given.The law is that it is for the Crown to prove that which it asserts, and to do so to the satisfaction of the Court beyond reasonable doubt.There is no burden upon the defendant to prove anything at all.

Ms. Juttner of counsel for the Crown accepted that this is indeed the position, and having undertaken the requisite burden of proof has set about her task of satisfying me as aforesaid.She tendered and relied upon the declarations of police officers Gary Alexander Howden, Craig Joseph Elsworthy, Sidney James Nankivell, Darren James and Nigel Paul Savage.Ms. Juttner also tendered an analysis report from Gregory Webber and a statement from Christopher John Pearman but called no oral evidence.

Most of the witnesses whose statements had been tendered were made available for cross-examination and were in fact cross-examined by Mr. Bennett of counsel for the defendant.

The case for the Crown is based on circumstantial evidence.The strength of that evidence says the Crown should lead me to conclude not only that the facts and circumstances as proved are consistent with the activities of the defendant possessing a commercial element about them, but also that those facts and circumstances are such that they are inconsistent with any other rational, reasonable or possible inference that I can draw from them.

Has the Crown proved its case?

The facts which I find proved by the Crown beyond reasonable doubt are as follows:-

The police attended at the premises of the accused on the 15th day of January 1996.Upon searching those premises the police found a total of 24 growing plants of cannabis.12 of those plants were located in a shed.They were 3' to 7' high.Seven further plants were found growing among the southern fence. They were 4' to 5' in height.The remaining five plants were found growing along the western fence and were about 2' in height.

None of the plants were flowering at the time.All of them were of good quality but spindly in nature.Culling had not occurred.It is probable that fifty per cent of the plants would have produced flowering heads.The remaining would have probably been males.The yield likely to be produced by the plants at maturity was estimated at being not less than three kilograms and not more than five kilograms of dry useable material.There was no evidence before me indicating any past production and/or sale by the defendant, nor was there any evidence before me suggesting that the police had found any of the paraphernalia normally associated with the sale of cannabis and/or with its production for sale.

The cultivation was unsophisticated.The conditions under which the substance was being grown were poor.

The defendant was questioned by the police.A copy of the transcript of the record of interview was tendered by the Crown.Counsel for the defendant agreed (pages 11,12) that the record of interview, as well as all the declarations of the witnesses as tendered, were in evidence before me and constituted the evidence in the case for the Crown.

According to the transcript of the record of interview, when the defendant was questioned by the police in relation to the cultivation of the cannabis, he frankly admitted that he was "guilty as hell".He was adamant, however, that the total produce from all the plants was intended to be for his own personal consumption, although he conceded that he would have given some of it to his mates gratuitously if they had asked for it.He went on to say, according to the record of interview, that he had smoked cannabis for quite a while, and that he had used about "a couple of pipes a night".

The Crown did not refer me to any authority but submitted that having regard to the number of plants being cultivated, and to the size of the likely harvest, I should be satisfied beyond reasonable doubt that the activities of the accused in fact involved a commercial element.

Mr. Bennett, for his part, referred me to various authorities and urged me to hold otherwise.

I have carefully considered all of the authorities to which I was referred by Mr. Bennett and have consulted others on my own initiative in an endeavour to seek some guidance or assistance in the determination of the matter now before me, particularly bearing in mind that, in my opinion, the case for the Crown was not a strong case.All the Crown had in its favour was the number of plants, the potential yield at maturity and the concession of the defendant that some of thematerial might have been given to his mates, if asked.

When dealing with the matter in R v Carbone 36 S.A.S.R. 306, His Honour White J, sitting as a member of the Court of Appeal said at pages 307, 308:-

"It has been established in a series of cases in the Court of Criminal Appeal in the last year or so that the two most important factors to be taken into account by the sentencing judge in such cultivation offences are the size of the likely harvest and the use to which the harvest is to be put.See such cases as Reg. V Shultz Unreported.Court of Criminal Appeal 19 April 1982; Reg. V Vourlis and Migioudis (1982) 30 S.A.S.R. 223; Reg. V Stevenson, Stevenson and McRae (1984) 35 S.A.S.R. 237.....These two factors are most important factors but naturally not the only factors as there are factors personal to the offenders.Further, the number of plants planted is not entirely relevant (because it is illegal in itself).But the main purpose of concentrating upon the size of the likely harvest is that it gives some reasonable indication of the real nature of the offending as well as the outcome and purpose of the venture.The amount of leaf available as an end result is a sound pointer to the likely use to which the cultivator intends to put his crop - either to personal use or commercial use or some use in between those two extremes."

It may be of course, as I readily acknowledge, that whilst the remarks of His Honour White J were undoubtedly justified in the case in which they were made because of the large cultivation which was involved in that case, those remarks or observations should not be held to apply to the defendant's type of backyard cultivation, a cultivation which in truth and for practical purposes lacked any real expertise, was other than sophisticated, was carried out in average if not adverse conditions, and in any event cannot be said to have involved a greater number than 24 plants in all.It may be, therefore, that as Mr. Bennett submitted on behalf of the defendant. I should not find that the alleged circumstances of aggravation have been proved by the Crown beyond reasonable doubt.I should entertain a doubt about that, says Mr. Bennett, or at the very least I should conclude that I cannot be sure as to where the truth lies.

That argument would have had a lot of force if there had been some evidence before me in support of it.In the circumstances, however, having given careful thought to counsel's submission, I have concluded that at the end of the day I am unable to accept it.

The defendant tendered no documents.He called no evidence.He elected not to give evidence himself.I draw no inference adverse to the defendant from any of that, of course, because the course adopted by the defendant was one which was lawfully open to him.It was a course which he could legitimately take.I have reminded myself that it is not for the defendant to prove anything at all.Accordingly therefore I have proceeded on the basis that it is always for the Crown to satisfy me that the activities of the accused in fact involved a commercial element and to do so beyond reasonable doubt. Having said that, however, I cannot help thinking that certain consequences flow from the failure of the defendant to give some evidence on the topic of his purpose or intention in producing the substance and on the question of how much substance he reasonably required in order to satisfy his own personal needs.It is true of course that according to the record of interview with the police, the defendant says that he produced the cannabis for his own personal consumption and that he did so because he was a user of the substance and had used it for some time at the rate of a couple of pipes a night, but he chose not to say so on oath.

I have reminded myself, of course, that I must give the defendant the benefit of any reasonable doubt that I may have and that I must not draw the inference which the Crown urges me to draw unless I can positively exclude any other reasonable hypothesis or possibility which may be consistent with the defendant's contention or inconsistent with the stand which has been taken by the Crown.That hypothesis or possibility exists, says Mr. Bennett, and cannot be excluded if one has regard to what the defendant said to the police.I have had regard to that and I have made what use I can make of the out of court self serving unsupported assertion, but at the end of the day I reject the submission of counsel.

My view is that in the absence of at least some evidence in support of them, hypotheses or explanations, which may otherwise be thought to be consistent within innocence, or inconsistent with guilt, may cease to be rational or reasonable when the evidence in support of them, if existing at all, must be within the knowledge of the defendant and has not been given by or on his behalf.

When dealing with the guilt or innocence of an accused person in criminal trials, it has been said that the omission of a defendant to give evidence in answer to a prima facie case may, in some circumstances, make the inference of guilt less unsafe to draw than it might otherwise possibly appear.May v. O'Sullivan (1955) 92 C.L.R. 654; Zanetti v. Hill (1962) 108 CLR 433.

In the recent case of Weissensteiner v. R (1993) 178 CLR 217 Mason CJ, Deane and Dawson JJ said at pages 227-229:-

".... it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of the facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence.It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence.That is almost a truism.It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.

Of course, an accused may have reasons not to give evidence other than that the evidence would not assist his or her case.The jury must bear this in mind in determining whether the prosecution case is strengthened by the failure of the accused to give evidence.Ordinarily it is appropriate for the trial judge to warn the jury accordingly."

I have borne these words in mind and I have given myself an appropriate warning to the effect suggested by their Honours.

Their Honours cited this passage from the judgment of Windeyer J in Bridge v. R (1964) 118 C.L.R. 600 at 615:-

"An accused person is never required to prove his innocence:his silence can never displace the onus that is on the prosecution to prove his guilt beyond reasonable doubt.A failure to offer an explanation does not of itself prove anything.Nor does it, in any strict sense, corroborate other evidence.But the failure of an accused person to contradict on oath evidence that to his knowledge must be true or untrue can logically be regarded as increasing the probability that it is true.That is to say a failure to deny or explain may make evidence more convincing, but it does not supply its deficiencies.A direction by the judge on such matters ... might no doubt be helpful to the accused in some cases."

At page 614 Windeyer J said:-

"For various reasons other than guilt of the crime charged a man may decline to go into the witness box and submit to cross-examination.And the fundamental problem in the background of both the enactments of legislatures and the decisions of courts has been, and is, to reconcile the traditional repugnance aroused by any form of compulsory self-incrimination with the adverse inferences that insistently arise from a failure to answer a charge.The former attitude is, as Professor Glanville Williams has shown (the proof of guilt (1963) pp 37-71) largely the result of deeply rooted fears and memories of Star Chamber methods.The latter is the product of natural processes of reasoning.As Frankfurter J. put it in Adamson v. California (1947) 171 A.L.R. 1223 at 1233:-

"Sensible and just-minded men, in important affairs of life, deem it significant that a man remains silent when confronted with serious and responsible evidence against himself which it is within his power to contradict."

The conclusion which I have reached from the authorities to which I have referred is that in a criminal case, when the existence of aggravating circumstances is a reasonable inference and no other facts are proved which tend to support a contrary inference or one inconsistent with it, the omission of the defendant to advance evidence, which must be within his knowledge, may allow the Court more readily to draw the inference urged upon it by the prosecution.

The defendant could have told me on oath, amongst other things, that he is a user of the substance.He could have told me of his reasonable requirements and he could have told me that his cultivation was for personal use.He chose not to do so.I do not draw any inference adverse to the defendant because of that, but feel more comfortable in drawing the inference which the Crown urges upon me.

After reflecting on the matter, my conclusion at the end of the day, on the totality of the circumstances presented to me, is that I am prepared to draw the inference which has been urged upon me by the Crown because I can positively exclude every reasonable hypothesis which is inconsistent with the case for the Crown or which is consistent with the case for the defendant.

I find that the Crown has discharged its burden.I am satisfied and find beyond reasonable doubt that the purpose for which the defendant produced the 24 plants of cannabis on the occasion in question included his own personal use, as well as the casual but gratuitous supply of a small amount of it to his friends, if and when asked, and the sale of a portion of it by him to other persons for commercial purposes.

I find therefore that the defendant's cultivation of the 24 plants of cannabis in question did have a commercial flavour about it.For the reasons which I have given, in my opinion, sentence should be passed on that basis.