R v GJERGJI - [2020] SADC 51

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GJERGJI
[2020] SADC 51
Ruling of her Honour Judge Fuller
14 February 2020
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - REASONABLE HYPOTHESIS CONSISTENT WITH INNOCENCE
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY
The accused was charged with trafficking in a large commercial quantity of a controlled drug, namely cannabis, and cultivating controlled plants for sale. Both offences were alleged to have been committed between 24 June 2015 and 4 September 2015 at a ‘grow’ house.
The case against the accused was a circumstantial one. In particular, the prosecution relied upon forensic evidence to link the accused to the grow house and prove his involvement in the cultivation and trafficking.
At the close of the prosecution case, counsel for the accused made a submission that there was no case to answer on both counts as the evidence was not capable of excluding a hypothesis with innocence that was reasonably open on the evidence.
Held: There was no case to answer on each count. Accordingly, the accused was found not guilty of both charges.
Controlled Substances Act 1984 (SA), referred to.
R v Bilick & Starke (1984) 36 SASR 321; Questions of Law on Acquittal (No.2 of 1993) (1993) 61 SASR 1; R v Brady and Smythe (2005) 92 SASR 135; R v Fitzgerald [2014] HCA 28; R v Arrol [1999] SASC 293; R v Tartaglia [2011] SASCFC 88; R v Anderson [2004] SASC 201; R v Dimitropolous Unreported CCA 18 September 1992, considered.

R v GJERGJI
[2020] SADC 51

The accused is charged with trafficking in a large commercial quantity of a controlled drug, namely cannabis, and cultivating controlled plants for sale. Both offences are alleged to have been committed between 24 June 2015 and 4 September 2015.
The case against the accused is a circumstantial one. In respect of count 1, the prosecution alleges that the accused was in possession of 19.57 kg of cannabis located at Hawthorn, but also that he took a step in the process of sale by guarding or concealing the drug, packaging the drug, separating the drug into discrete units and preparing the drug by laying it out to dry.
On count 2 the prosecution case is that the accused tended and nurtured the growing cannabis plants found at the premises. I have referred to and also that he stored plant or equipment and guarded or concealed plant or equipment.
The prosecution case is that the accused was not the only person knowingly involved in the activities at the premises and that other unknown persons were involved.
At the close of the prosecution case, Ms Powell QC for the accused made a submission that there was no case to answer on both counts. The principles governing the question of whether there is a case to answer in a circumstantial case are set out in R v Bilick & Starke (1984) 36 SASR 321. King CJ said at 337:
The case against the appellant Starke was circumstantial in character. The same test is to be applied in deciding a submission of no case to answer in a case depending upon circumstantial evidence as in a case depending upon direct evidence, although the manner of its application will be different. The question to be answered by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt. Where there is direct evidence of the actus reus and that evidence is capable of supporting an inference of mens rea, there is a case to answer except in the extreme case, as perhaps of testimony which is manifestly self-contradictory or the product of a disorderly mind.
Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: on the assumption that all the evidence of primary fact considered at its strongest, from the point of view of the case for the prosecution, is accurate and on the further assumption that all inferences most favourable to the prosecution which are reasonably open are drawn, is the evidence capable of producing, in the mind of a reasonable person, satisfaction beyond reasonable doubt of the guilt of the accused? That, it seems to me, was the question which the learned trial judge was required to answer in deciding on the submission of a no case to answer.
Subsequently in Questions of Law on Acquittal (No 2 of 1993) (1993) 61 SASR 1 King CJ restated those principles as follows:
If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends on circumstantial evidence and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt - could not exclude all hypotheses consistent with innocence.
Those principles were affirmed by the Court of Criminal Appeal in the case of R v Brady and Smythe (2005) 92 SASR 135.
I turn now to a synopsis of the evidence. The prosecution called five witnesses at the trial and a statement of agreed facts was tendered. In summary, a house at Hawthorn was searched by police on 3 September 2015 pursuant to a Controlled Substances Act 1984 warrant and the search revealed that the house was being used for the growing and harvesting of cannabis. In the vernacular, it was a grow house.
That house was owned by a Mr and Mrs Damaskos who had been renting it out since 2003. Mrs Damaskos gave evidence that from 21 March 2012 the house was rented to an Antonio and Sara Molinari. An executed lease agreement and renewal of that lease were tendered in evidence. The premises were inspected in the first year of the lease to the Molinaris a number of times and thereafter on at least an annual basis by Mrs Damaskos.
On the occasion of each inspection it was found to be in order and the residence had the appearance of being lived in. The last inspection she carried out was around January 2015. Initially weekly rental payments of $390 were made in cash to the Commonwealth Bank at Castle Plaza. Following a lease renewal in 2013 the rent was increased to $400 and the payments continued to be made in cash and, on most occasions, at the Commonwealth Bank at Castle Plaza.
When the police searched the premises they located a grow room with nine cannabis plants between 80 cm and 1 m tall and in other rooms drying cannabis and bagged cannabis, the total of which weighed 19.57 kg. No person was present in the house at the time of the search and, although the house had been surveilled by police since 8 August 2015 on an ad hoc basis after a tip-off, no person had been seen to enter or leave the house.
CCTV cameras were installed in various positions on the outside of the house and the police watched some approximately 490 hours of footage taken between 28 August and 3 September 2015 and no person could be seen on that footage coming or going from the house. The accused was not seen at or in the vicinity of the house at any time.
The following items were found and seized by police from the premises at Hawthorn on 3 September 2015:
1.A pair of blue and white gloves, found in the kitchen;
2.A pair of black gloves found in the shed;
3.A hi-vis orange and black jumper with a hood found in the kitchen;
4.A box of latex gloves found on the kitchen floor;
5.An alarm control panel found in the kitchen;
6.Containers of nutrients labelled 'Cocos A' found in the kitchen.
The gloves, hi-vis jumper and box of latex gloves were sent to Forensic Science South Australia for examination and analysis. The witness Tanya McKew gave evidence of her analysis of the gloves and hi-vis jumper for cannabis and Rebecca Pinyon gave evidence of her analysis of the gloves and hi-vis jumper for DNA. The analysis at Forensic Science of the box of latex gloves was the subject of agreed facts 8 to 11 in Exhibit P17.
In summary, the analysis of those items revealed the following:
In respect of the box of latex gloves, two latent fingerprints were located which were an identical match for the left thumb impression of the accused. They were located at the top of the open box pointing downwards in a direction towards the barcode and numbered label. The position of those impressions was consistent with the box being handled from above, although other means of deposit could not be excluded. The date upon which the impressions were made could not be determined.
In respect of the white and blue gloves, residue was found attached to the outer fingertips and outer palmar of the right glove. Upon microscopic analysis, that residue was found to be THC. It was not possible to say whether the THC was on the fingertips or palmar or both. A tape lift was taken of the inner right glove revealing a mixed DNA profile of four contributors. The DNA profile of one contributor was greater than 100 billion times likely to be obtained if the accused was the contributor than an unknown person. That contribution was 90%, with the other contributors being 2%, 6% and 2%.
In respect of the hi-vis jumper, plant material was removed from the hood of the jumper, examined microscopically and found to be cannabis. A tape lift of the inner neck and inner cuffs of both sleeves revealed a mixed DNA profile with three contributors. The DNA profile of one contributor was greater than 100 billion times likely to be obtained if the accused was the contributor than an unknown person. That contribution was 87%, the other 1% and the remainder 13%.
In respect of the black pair of gloves, a swab was taken from the outer right glove and was found to contain THC. A tape lift was obtained from the inner right glove and had a mixed DNA profile with three contributors. The DNA profile of one contributor was greater than 100 billion times likely to be obtained if the accused was the contributor than an unknown person. That contribution was 99%, the other 1% and after rounding the third was 0%.
In respect of the DNA on the three items mentioned, Ms Pinyon said that it was not possible to say when the DNA was lodged, how long it had been there or the circumstances of how it got there. She said that the testing for DNA is not able to determine whether the DNA was primary or secondary transfer. In respect of the gloves, Ms Pinyon said that, because of the manner of packaging, it was possible that DNA from the outside of the gloves was transferred to the inside.
Police attended the accused's home at Cumberland Park on 7 March 2016. It was an agreed fact that the accused had been living there since 1 June 2015. The accused arrived shortly after police and was driving a Volkswagon caddy with a registration commencing XJS976 and told police it was not his car but was a friend's and he used it for work.
The accused's home was searched and three mobile phones, an iPad and a laptop were seized but were not analysed. A brand new alarm system comprised of a panel and three detectors was located still packaged in a box. That alarm system panel was of the same or similar type to the alarm panel found in the kitchen of the grow house. In the accused's shed were located three containers of Cocos. A nutrient fertiliser, the same brand of nutrient fertiliser found in the grow house.
Documents addressed to Pjerin Laloshi were located at the accused’s home at Cumberland Park on 7 March 2016. It was an agreed fact that Pjerin Laloshi arrived in Australia on 10 June 2011 and departed on 15 October 2015. One of the documents addressed to Mr Laloshi was photographed by police, in part, and it appeared to be an application for the renewal of a vehicle registration in the name of Pjerin Laloshi with an address at Brooklyn Park and a signature. The evidence of the investigating officer, Detective Brevet Sergeant Carmen, Exhibit D16 and the agreed facts revealed that the Volkswagon van with registration commencing XJS976 had been registered to Pjerin Laloshi from 5 May 2015 until 10 June 2016 and on 16 June 2016 it was reregistered to another man.
No indicia of drug dealing, as that term was explained by the witness Timothy Cooper, were found at the accused's premises.
The prosecution case was not put on the basis that Mr Molinari was the accused, particularly given the fact that Mrs Damaskos, when participating in a photo identity procedure, did not select a photo of the accused but instead selected the photographs of two other men who she said, in combination, most resembled Mr Molinari. Inquiries by Detective Brevet Sergeant Carmen revealed that Antonio and Sara Molinari were not recorded on the SAPOL database or on the Births, Deaths and Marriages database.
In his record of interview on 7 March 2016 the accused told police that he had his own maintenance business, Edmond's Maintenance and Lawn Mowers, and he would use gloves if he was trimming trees but did not use plastic gloves and had never bought any. He told police that the vehicle with registration commencing XJS976 was a work car but it was a friend's car.
The prosecution contends that the circumstantial evidence in this case permits the reasonable inference to be drawn that the accused was one of the persons who attended the grow house and tended to the plants while wearing the blue and white gloves, the black gloves and the hi-vis jumper. This, it is said, is because the coincidence of there being three separate items of apparel with the DNA of the accused on them, as well as the accused's fingerprints on a box of latex gloves was such that it excludes any reasonable hypothesis consistent with innocence. In other words, the only rational inference from this combination of circumstances is guilt. Ms Chang submitted:
It is too much of a coincidence to have separate items, not just DNA but including a box with DNA[1] on it – inside a grow house, the gloves having THC on them, the jacket having a fragment of cannabis on them.
[1] The reference to DNA should be fingerprint
On the other hand, Ms Powell QC submitted:
My friend obviously has to say that the only reasonable hypothesis and all else can be excluded is that these four items were touched, handled, used by the accused within the grow house. That, of course, is the issue.
In my submission, there was one thing that my friend was talking about when she was talking about the coincidence of there being four items. Not only are these items movable, and perhaps I should say that the latex gloves box is a bit different, but sets of gloves and a hi-vis jacket, your Honour knows from the Crown case that this man is involved in the maintenance business and he says that Laloshi's VW van is his work vehicle. So it is not a combination of either things specifically connected to the grow house and only a grow house, it is actually movable things which one would expect the accused to have, wear and use innocently. They are things associated with the accused's legitimate purpose and they are things which one would expect someone to borrow, take or use unauthorised in the grow house. So they have a distinctly movable nature and innocent and guilty nature. As far as the box is concerned, if you get into a car and the box is sitting in the console or on your seat you would move it and that's how you could innocently get the thumbprint on it.
I have had regard to cases such as R v Fitzgerald [2014] HCA 28, R v Arrol [1999] SASC 293, R v Tartaglia [2011] SASCFC 88, R v Anderson [2004] SASC 201 and R v Dimitropolous unreported CCA 18 September 1992, noting that all turn on the application of established principle to a close appreciation of the evidence that was before the trier of fact in each case.
In this matter there are a limited number of incriminating facts which, in my view, are intermediate facts requiring proof beyond reasonable doubt. As Kourakis CJ observed in his dissenting judgment in Tartaglia:
The distinction between chain and rope type circumstantial cases does not depend at all on the number of items of circumstantial evidence but on the causal relationship, if any, between those items. The distinction can be simply illustrated by postulating an offence of assault with a weapon. A weapon might be connected to the accused by a set of circumstances like fingerprints, DNA profiling, previous possession or traces of the weapon left on the accused. Any two or more of those items would operate circumstantially as strands which reinforced one another. However, those circumstances do not advance proof of the crime very far unless the weapon connected to the accused is found to be the weapon which inflicted the harm. The weapon might be so connected by other set of circumstances, including bloodstaining, a match between the shape of the wound and the weapon, or location of the weapon at the crime scene. Any two or more of those items would operate as strands of circumstantial evidence to connect the weapon to the assault. However, to convict the accused the accused's connection to the weapon and the weapon's connection to the wound operate circumstantially as links in a chain and must be proved beyond reasonable doubt.
To convict the accused in this case the accused's connection to the gloves, the hi-vis jumper and the box of latex gloves and their connection to the grow house operate circumstantially as links in a chain and must be proved beyond reasonable doubt. In the circumstances of this case, it is an essential link in the Crown case that the accused's DNA and fingerprint were deposited by him on the relevant items when he was in the grow house.
It is only if that intermediate fact can be proved beyond reasonable doubt that the reasonable inference can then be drawn that he was in possession of the cannabis in the grow house or was otherwise taking a step in the process of sale of cannabis whilst at the grow house and that he was cultivating or taking part in the process of cultivation of the cannabis plants at the grow house.
The prosecution must prove that the only rational inference available on all of the evidence, applying the appropriate test, is that the DNA and fingerprint were deposited by the accused in incriminating circumstances, namely, whilst he was in the grow house.
If that is the only rational inference available then this link in the chain has been proved beyond reasonable doubt and permits the drawing of the reasonable inference that the accused was trafficking and cultivating cannabis.
I refer to the observations of Sulan J in Tartaglia:
There are cases involving circumstantial evidence in which it is possible to reason that the hypothesis of innocence becomes fanciful, as the arm of coincidence cannot stretch so far as to conclude innocence as a rational hypothesis. For example, if in a case there were numerous premises at which methylamphetamine was being produced and at each of those premises there was evidence connecting the accused to those premises, then it might be possible to conclude that the arm of coincidence does not stretch so far as to conclude as a reasonable possibility that the accused's presence at each of the locations was innocent.

In my view the evidence cannot be said to fall into this category.
The primary transfer of the accused's DNA on to the gloves and hi-vis jumper at a location other than the grow house and their subsequent transport to and use by another person at the grow house cannot be excluded as a reasonable possibility.
Secondary transfer of the accused's DNA on those items cannot be excluded as a reasonable possibility.
The making of the accused's thumbprint impression on the latex glove box at another location and in innocent circumstances cannot be excluded as a reasonable possibility.
Each of these items to which the accused is connected by DNA or fingerprints are not intrinsically and exclusively connected to the growing or harvesting of cannabis or any other step in the process of the sale or cultivation of cannabis. The coincidence of the accused having the same nutrient fertiliser and alarm panel as found at the grow house is a very weak item of circumstantial evidence because no evidence was led to exclude innocent coincidental possession. This evidence does not, in my view, reinforce or strengthen the other items of circumstantial evidence.
On the assumption that all of the evidence of primary fact, considered at its strongest from the point of view of the prosecution, is accurate, and on the further assumption that all inferences favourable to the prosecution that are reasonably open are drawn, the evidence is not, in my view, capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt of the guilt of the accused. In other words, the evidence cannot exclude all hypotheses consistent with innocence.
Accordingly, I find that there is no case to answer on counts 1 and 2.
That being my ruling, I find the accused not guilty of counts 1 and 2.