R v Gross No. DCCRM-02-1150

[2003] SADC 37

R V GROSS
[2003] SADC 37

Judge Bishop

Criminal

Reasons for Verdicts

Roman Gross (“the accused”) is charged with possessing cannabis for sale on 15 July 2002 at Findon, that offence involving more than 2 kilograms of cannabis: contrary to section 32(1)(e) of the Controlled Substances Act. He here elected to be tried by judge alone.

The agreed factual position is conveniently set out in the document which was handed to me, the content of which I shall not here repeat. In essence, when police attended at the accused’s rented premises at Findon on 14 July 2002, they found a considerable quantity of female cannabis plant material drying in 10 plastic trays in a room constructed in the rear of shed on those premises. That cannabis had there been grown by the accused hydroponically upon four plants under four lights erected for that purpose. When weighed, that produce was found to comprise 4,128.5 grams of slightly moist, mouldy female cannabis plant material. Outside the house was found a rubbish bag containing cannabis leaf and stem which weighed 4,471.5 grams. When spoken to by the police, the accused admitted his possession of that cannabis, but said that it was not for sale.

Upon the requisite three elements of this alleged offence, which the Crown must establish beyond reasonable doubt, I am satisfied that those three elements have here been established, namely, that the accused did then knowingly have that cannabis in his possession; that cannabis is a substance to which the Controlled Substances Act relates or is applicable - that is, that cannabis is a prohibited substance; and that that prohibited substance was possessed knowingly by the accused - that is, that he knew that cannabis was a prohibited substance.

In those circumstances, the focus of attention in this case was upon the fourth element of the alleged offence, namely, whether the accused had possession of that cannabis (or some of it) for the purpose of selling it (or some of it) to another person. Upon that element, because the accused was admittedly in possession of more than the prescribed amount of 100 grams of cannabis, the deeming provision of section 32(3) of the Act is here applicable and the onus is upon the accused to satisfy the court that he did not possess that cannabis for the purpose of selling it to another person. In that regard, the onus of proof is upon the balance of probabilities, not beyond reasonable doubt.

In endeavouring to discharge that onus, the accused gave evidence that he has been a daily smoker of cannabis since he broke his neck in a vehicular accident in 1988 (smoking cannabis gives him relief from pain); that in 1992 he decided to grow his own cannabis, rather than purchase it from persons whom he described as “scumbags” in hotel for between $150 and $200 for a one ounce bag; that this was his third effort to grow cannabis (the first being unsuccessful and the second being only slightly better); that he had harvested the four plants the day before the police came to his house; that the cannabis leaf and stem in the rubbish bag he was going to throw out; that the produce from this crop would have lasted him for a couple of years; and that he did not intend to sell any of it.

In evidence, I found the accused to be frank or candid, direct, understated, consistent and reliable.

For the Crown, Mr Phillips submitted that the accused was in possession of too much cannabis for his personal use. In that regard, the amount and value of the cannabis are relevant considerations. When recently reweighed, the female cannabis plant material was found to comprise 2,400 grams, less paper and mould content; that is, about 1,800 grams less than when weighed in July 2002, the decrease being due, Mr Webber explained, to loss of moisture. Mr Webber gave evidence that, if dried out, that produce would weigh less than two kilograms. He could not rule out 1.5 kgs, but he thought it was unlikely to be as little as one kilogram. The street value of about one and a half kilograms of cannabis was, as Mr Phillips explained, at least about $8,000 (at $150 per bag), which amount, I observe, is, comparatively speaking, not a large amount.

Mr Phillips submitted that, at the rate at which the accused smoked cannabis, it would have been more economical for him to have purchased cannabis rather than spend money (a few hundred dollars according to the accused) to set up the hydroponic system in the shed. (That was not in the forefront of Mr Phillips’ submission, but it was in his cross-examination of the accused.) To that contention, the accused replied that his purpose in producing this cannabis was also to avoid dealing with the “scumbags" to whom he referred. Detective Connor alluded to the fact that indoor hydroponic crops are less likely to be “ripped off” by other persons.

There were not found at the accused’s house any of the usual indicia of a drug dealer, apart from about 18 small plastic bags which could be used to sell small amounts of cannabis. For the accused, Mr Stokes submitted that the relevant onus of proof has here been discharged. I shall not pause to set out in detail the content of his submissions in that regard which were made just a few moments ago.

Upon consideration of all of the evidence and the helpful submissions of counsel, I am persuaded that it is more probable than not that the accused did not have this cannabis in his possession for the purpose of selling it (or some of it) to another person. For these reasons, I return a verdict of not guilty in respect of the offence charged, but guilty of possession of cannabis.