R v Guirgis - [2019] SADC 193

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GUIRGIS
Criminal Trial by Judge Alone
[2019] SADC 193
Judgment of Her Honour Judge Deuter
17 December 2019
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - CULTIVATION
Accused charged with one count of cultivating a commercial quantity of a controlled plant for sale contrary to s 33B(2) of the Controlled Substances Act. Accused elected to give evidence - whether elements of the offence were made out.
Verdict: Not Guilty
Controlled Substances Act 1984 s 4, s 33B(2); Controlled Substances (controlled Drugs, Presursors & Plants) Regulations 2014 Scedule 3 Part 2; Juries Act 1927 (SA) s 7(1)(a), referred to.

R v GUIRGIS
[2019] SADC 193
Introduction

The accused, Michael Guirgis, is charged with one count of cultivating a commercial quantity of a controlled drug (cannabis). The Information reads as follows: -
“INFORMATION
Michael Abel Guirgis is charged with the following Offence:
Statement of Offence
Cultivating a Commercial Quantity of Controlled Plants for Sale. (Section 33B(2) of the Controlled Substances Act, 1984).
Particulars of Offence
Michael Abel Guirgis between the 13^th day of April 2018 and the 15^th day of May 2018 at Kingston Park, cultivated a commercial quantity of controlled plants, namely forty-five 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 another person intended to sell any of them or their products.”
The accused is charged under s 33B(2) of the Controlled Substances Act 1984 (SA) (‘the Act’). The relevant parts of that section read as follows:-
“33B—Cultivation of controlled plants for sale
(2) A person who cultivates a commercial quantity of a controlled plant intending to sell any of them or their products or believing that another person intends to sell any of them or their products is guilty of an offence.
…
(5) If, in any proceedings for an offence against subsection (1), (2) or (3), it is proved that the accused cultivated a trafficable quantity of a controlled plant, it is presumed, in the absence of proof to the contrary, that the accused had the relevant intention or belief concerning the sale of the plants or their products necessary to constitute the offence.
Maximum penalty: $200,000 or imprisonment for 25 years, or both.”
By s 4(1) of the Act a “trafficable quantity of… a controlled plant” is defined as follows: -
“      (a)     ...
(b)     …
(c)     in relation to a controlled plant—
(i)    a number of the plant that equals or exceeds the number of plants prescribed as a trafficable quantity for the plant; or
(ii)     a weight of the plant that equals or exceeds the weight prescribed as a trafficable quantity for the plant;”
A “commercial quantity of a… controlled plant” is defined in s 4(1) of the Act in the same terms.
The Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) (‘Regulations’) under the Act, at Part 2 of Schedule 3, prescribe that a trafficable quantity of cannabis plants is ten or more plants and that a commercial quantity of cannabis plants is twenty or more plants.
Referring again to ss 33B(2) and (5) of the Act if, it has been proved that the accused cultivated a trafficable quantity of plants then the presumption is that the accused intended to sell the plants or their products or believed that another person intended to sell any of them or their products. The burden falls upon the accused to prove to the contrary, on the balance of probabilities. Proof to the contrary means that the accused must prove on the balance of probabilities that he did not have the relevant intention or belief concerning the sale of the plants or their products necessary to constitute the offence.
Summary
On 12 May 2018, a housekeeper at the Brighton Caravan Park entered Hillside cabin No. 4 (“the cabin”) to conduct the weekly linen change. The cabin had been rented by the accused from 14 April 2018. Upon entering the cabin, the housekeeper observed a box, covered by a blanket, in the hallway. She lifted the blanket and found forty-five small cannabis plants in a plastic box covered by a light. The presence of the cannabis plants was reported to the park manager who later removed the plants from the cabin and contacted the police.
The police attended the caravan park on 14 May 2018, where they located forty-five healthy, immature cannabis plants in rockwool growing medium. A search of the cabin located a grow light and shade in the wardrobe alcove in the hallway, and a plastic container containing approximately 10 grams of loose cannabis.
The accused elected to have a trial by Judge alone under s 7(1)(a) of the Juries Act 1927 (SA). At the commencement of the trial the accused pleaded not guilty to the charge the subject of the information, but guilty to a charge of ‘simple cultivation’. The accused’s counsel confirmed that this was a plea to a charge under s 33K of the Act, in that it was not disputed that the accused was cultivating forty-five cannabis plants (an offence under s 33K(1)(b) of the Act). The dispute in the trial was the reason for him having those plants, with it being the accused’s case that it was not for any commercial purpose, including sale by him, or any other person.
Overview: the elements of the offence
The prosecution must satisfy beyond reasonable doubt the following elements in order to establish that the accused cultivated a commercial quantity of a controlled plant: -
That the accused cultivated a controlled drug, namely cannabis;
When the accused cultivated the controlled drug, he did so knowing that the substance involved was cannabis, or at least that it was an illicit drug;
The accused cultivated the controlled drug intending to sell one or more plants or the product thereof, or believing that another person intended to sell one or more plants or the product thereof; and
The quantity of drug was a commercial quantity.
Cultivation
The term “cultivate” is defined in s 4 of the Act as follows: -
“cultivate a controlled plant means—
(a)     plant a seed, seedling or cutting of the plant or transplant the plant; or
(b)     nurture, tend or grow the plant; or
(c)     harvest the plant (including pick any part of the plant or separate any resin or other substance from the plant); or
(d)     dry the harvested plant or part of the plant; or
(e)     take part in the process of cultivation of the plant.”
The cultivation element of the offence, was admitted by the accused by his plea of guilty to “simple cultivation”. In his evidence, the plaintiff admitted that he watered, and generally nurtured the cannabis plants after he had purchased them. Having regard to those admissions, I am satisfied beyond reasonable doubt that the first element is proved.
Controlled drug
The second element which must be proved beyond reasonable doubt is that the drug seized from the property was a controlled drug.
I am satisfied, having regard to the contents of the Act and Regulations, that cannabis, the drug seized from the cabin, is a controlled drug. That matter was not put in contention in the trial.
Intention to sell
In relation to this element and having regard to the content of s 33B(5) of the Act, the burden falls upon the accused to prove, on the balance of probabilities, that he did not have the relevant intention or belief concerning the sale of the plants or their products necessary to constitute the offence. It is upon this issue that the trial generally turned.
Commercial quantity of controlled plants for sale
It is not in contest between the parties that by virtue of the discovery of the forty-five plants growing in the cabin that there was the cultivation of a legislatively defined commercial quantity of controlled plants. The commercial element of the cultivation is the issue in dispute, and the burden is upon the accused to prove on the balance of probabilities that there was no commercial intent.
The prosecution case
The prosecution tendered an affidavit of the evidence of Ms Ellie Gray, the house keeper employed at the Brighton Caravan Park (Exhibit P1). By this evidence Ms Gray confirmed that she had been employed at the Brighton Caravan Park for about two years and that part of her duties were to clean the cabins in the park. The policy for all long stay cabins was that there would be a linen change once per week, usually performed on Saturdays.
Ms Gray’s evidence is that on the morning of Saturday 12 May 2018 she attended the cabin to perform a linen change, having waited until she had seen the accused’s car leave. She used the master key to gain access to the cabin. As Ms Gray walked to the bedroom she saw something suspicious in the hallway, which appeared to be a box covered by a blanket. Ms Gray lifted the blanket and immediately saw what appeared to be small cannabis plants in the box. There was a light over the top of the plants which was turned on. Ms Gray reported the find to the park manager, Mr Kym Colbey.
In her affidavit Ms Gray stated that she had been in the cabin the week before to change the linen. She did not see the box of plants in the cabin at that time.
The manager of the Brighton Caravan Park, Mr Kym Colbey, gave evidence that as of May 2018 and continuing, he has been the manager of the Brighton Caravan Park.
Mr Colbey’s evidence was that he knew the accused. He had commenced his stay at the caravan park on 6 February 2018, originally living in a tent. On 14 April 2018, he moved into the cabin until he was arrested on Wednesday, 16 May 2018. In relation to the discovery of cannabis plants in the cabin, Mr Colbey confirmed the evidence of Ms Gray. He did not go to the cabin to inspect the plants, until Monday 14 May 2018, when he found a plastic box of cannabis plants, which he removed and took to the back deck of the reception area. Mr Colbey was shown photographs of those plants, being the photographs in exhibit P4 and confirmed that these were the plants that he took from the cabin together with the light that had been placed over the top of the plants.
Mr Colbey gave evidence that the cabin was relatively small, measuring approximately 8 metres by 3 metres. The layout was of a lounge/kitchen area with a hallway that went past some bunks into a bedroom. This layout is depicted in the plan at exhibit P3. Mr Colbey marked on that plan where he had found the box of cannabis plants, described as an alcove area of the hallway. This alcove area is depicted in photographs 4 and 5 of exhibit P5. All of the photographs in P5 were confirmed by Mr Colbey to be of the cabin, and show the compact dimensions of the space in which the accused lived.
Having removed the cannabis plants from the cabin Mr Colbey contacted the police, who attended at the caravan park, searched the cabin and took the plants away. During this time, the accused had not been in the caravan park and Mr Colbey gave evidence that he returned after the police had attended and seized the plants, at approximately 11.45 pm on Monday 14 May 2018. Mr Colbey notified the police that the accused had returned.
Mr Colbey gave evidence that the accused made regular payments for his accommodation at the caravan park, paying by credit card. He was ordinarily up to date with his payments until he owed $360 when arrested. Under cross- examination Mr Colbey confirmed that the accused did not pay for his rent by cash. He also confirmed that the accused had completed a registration card when he first began living at the caravan park. This card included his full name, email and postal addresses, and also the registration number of his vehicle. Mr Colbey confirmed the chronology of what had occurred in relation to the plants, noting that they were discovered by Ms Gray on Saturday 12 May 2018 and that the accused did not return to the caravan park until late in the evening of Monday 14 May 2018. The police did not attend at the caravan park until Wednesday 16 May 2018 when they arrested the accused.
In cross-examination Mr Colbey confirmed that the cannabis plants had been located in an alcove, which is next to the thoroughfare passage through from the bathroom to the double bed area, and that there was no door on that alcove. He agreed that the cannabis was in an open area in the thoroughfare.
Detective Brevet Sergeant Richard Leonard’s evidence was by affidavit tended as exhibit P2. He confirmed that on 14 May 2018, in company with Constable Cormack, he received a tasking to attend at the Brighton Caravan Park. Drugs had been located at that address.
Sergeant Leonard and Constable Cormack attended at the caravan park and were met by Mr Colbey, who explained how cannabis plants had been located in the cabin. Mr Colbey told the police officers that he had removed the plastic box containing the plants to a secure location behind the office before calling police. The police officers observed what appeared to be in excess of forty cannabis clones growing in growth medium in a plastic box. They were then let into the cabin and conducted a search noting that it was a small cabin with a living room/kitchenette, one main bedroom, basic bathroom and a corridor which also housed some bunkbeds. Located in the corridor was a light stand with two fluorescent light tubes which was next to a blanket. All equipment and the plants were seized. The plants were counted and found to number forty-five in total. Sergeant Leonard’s evidence was that they were not mature plants but clones which had been placed in a sponge growth medium. Each plant was removed from the growth medium and it was noted that root systems had started to form on the stems.
Constable Cormack, gave evidence at trial and he confirmed that he and Sergeant Leonard were shown the cannabis plants found by Mr Colbey and that they searched the cabin, where the fluorescent lamp was located. Constable Cormack also gave evidence that some loose cannabis, in a plastic container, was found in the cabin. In relation to the plants, Constable Cormack confirmed that there were forty-five plants within a plastic box, each being between 10- 20cms in height. They were the cannabis plants in photographs 1 and 2 of exhibit P4, and had been located in the cabin. The cannabis in the plastic box in photograph 3 of exhibit P4 was the dry cannabis found in the cabin. The white fluorescent light depicted in photograph 4 of exhibit P4 was the light that had been found in the alcove area of the cabin.
Constable Cormack gave evidence that he and Sergeant Leonard collected ten “snip and save” samples from the cannabis plants, they being plant samples taken from separate plants to submit for scientific analysis. Those samples were placed in police property and the remaining plants were destroyed.
In cross-examination Constable Cormack confirmed that the only item located in the cabin relating to hydroponic growing of cannabis was the light, with there being no other hydroponic equipment located.
Tanya Lenore McKew was called by the prosecution as an expert in her role of assessing and analysing cannabis at the Forensic Science Centre. I confirm that in relation to her evidence the ordinary rule is that witnesses may speak only as to facts and not express their opinions. An exception to that general rule is that if a person is duly qualified to express opinion in a particular area of expertise they are permitted to give evidence of their opinions upon relevant matters within that field of expertise. I direct myself that I am not bound to accept such opinion evidence and I am entitled to assess, and accept or reject any such opinion evidence as I see fit.
Ms McKew is a Forensic Scientist who has worked at the Forensic Science Centre since 2000, involved primarily in assessing and analysing cannabis. Her expertise was not challenged. She informed me that cannabis could be grown indoors or outdoors, but the risk for outdoor growing was that the grower was at the mercy of the elements. Indoor growing provides a controlled environment and the highest yield from the plants. Ms McKew gave evidence that there are two phases of growth with cannabis. The first was the vegetative phase, where the plant grows in bushiness and height, and the second phase is the flowering phase. The level of THC varies between male and female plants, and the plants look and form differently. In particular, when female plants flower, there is a head formed and individual female flowers grow in a conglomerate, whereas male flowers do not grow in groups. Her evidence was that the female flower has a higher concentration of THC, the active ingredient in cannabis plants, and therefore the female cannabis plant has a higher concentration of THC than the male cannabis plant.
Ms McKew also explained the different growth patterns of cannabis plants grown from seeds and from cuttings or clones. Her evidence was that clones are normally taken from a female mother plant with the benefit being that the grower knows in advance the sex of the plant and therefore its THC yield. If seeds are planted, the sex of the plant and therefore the yield cannot be known until the plant has fully grown. There is then no guarantee that all of the plants will be female. Ms McKew also gave evidence in relation to the optimum conditions for outdoor and indoor growing, yields from outdoor and indoor growing and the size of the plants. Smaller plants are generally found in outdoor growing areas, whereas the larger plants are found where an indoor hydroponic set-up is used.
In relation to growing cannabis in-doors, Ms McKew gave evidence that the plants are usually grown in pots or some other receptacle that can hold growing medium, with artificial lighting and watering systems or irrigation to water the plants. She confirmed the clear benefits of growing from cuttings as the grower can be sure that the plant will be a female plant if the cutting is from a female plant. In those circumstances, in hydroponic crops from clones, there is usually no male plants.
Ms McKew’s evidence was that growing cannabis indoors in a hydroponic situation, allows the grower to completely manipulate the environment in terms of providing light, water and nutrients to the plants to provide the most ideal conditions for the plants to grow. This enables the grower to bring the cannabis plants to a certain height and maturity and obtain the greatest yield of female flower head, in the shortest amount of time. This occurs as the growing conditions are manipulated by the lighting conditions rather than being at the mercy of the elements. Ms McKew’s evidence was that in ideal hydroponic conditions the growth takes about five weeks, with light provided for eighteen hours of the day. During this growth phase water and nutrients are required and Ms McKew’s evidence was that it was not un-common to see fans of some description, or air conditioning in order to keep the grow room cool and to provide artificial wind to make the plants more stable. When growing plants hydroponically the grower can change the length of time that the plant is subject to light to stimulate the flowering phase. The evidence was that usually the lighting conditions change to twelve hours on and twelve hours off in the flowering phase, and that this can be brought on earlier or later by altering the lighting conditions and by changing the period of light. Ms McKew’s evidence was that after the plant enters the flowering phase the plant will usually reach full maturity within eight weeks.

In relation to the “snip n save” samples of the cannabis plants taken from the cabin, Ms McKew gave evidence that they were tested at the Forensic Science Centre by one of her colleagues Mr Abroe, who examined the samples macroscopically and also under a microscope. His certificate of Analysis was exhibit P6. The results were that of the ten samples, two were found to be a female cannabis plant sample, and the other eight were simply identified as cannabis leaf.
Ms McKew was shown the photographs of the forty-five cannabis plants that were found in the cabin and it was her opinion that those plants were in the propagation phase, they had the appearance of having been grown from cuttings. Her evidence was that although the plants were in a growing medium, known as rock-wool, if the plants were left in the plastic tub in which they were found, it was very unlikely that they would grow to maturity as there was not room for them to do so. More space would be required for the plants to grow to full maturity, together with ideal lighting and watering conditions. For forty-five plants to reach full maturity (1-1.5metres tall) with flowers a lot more space would be required. Ms McKew noted that:
“…it’s not uncommon for me to have seen perhaps three or four plants in a room of, you know, dimensions of about 3 metres by 3 metres and that’s only three or four plants and they be fully flowering and the height I mentioned”.[1]
[1] T31.9-15.
In relation to cannabis plants generally, if a plant reaches maturity of between 1 and 1.5meters tall, then the average amount of useable leaf and flower material, to be expected from the plant is between 600grams and 900grams, as set out in the yield guide.[2] Ms McKew confirmed however, that much depended upon the condition of the plant.
[2] Exhibit P7.
In cross-examination Ms McKew confirmed that, it was not possible to conclusively state that all of the cannabis plants found in the cabin were either female or male, or that all of the cuttings were from the same parent plant. She was also not able to provide a conclusive estimate of potential yield for the forty-five plants, as they were too small and immature for such an assessment to be made. She also agreed that of course not all of the plants may have survived, and much depended on the growing conditions.
The final prosecution witness was Detective Sarah Odell who confirmed her experience as a police officer in relation to drug matters and particularly in the growing and trafficking of cannabis. She confirmed that as part of her experience she kept abreast of the latest drug trends and personally had attended at crime scenes where there had been cannabis growing hydroponically. Detective Odell gave evidence regarding the typical hydroponic set up and confirmed the reasons for using a hydroponic set up, particularly given the shorter growth period for the plants.
Detective Odell was asked about pricing and packaging and the price paid for cannabis generally in the State of South Australia. She confirmed that the head or bud of the female cannabis plant is what is usually sold, and that the plant material is dried before it is packaged. Detective Odell informed the court that cannabis is typically sold in weights of grams, ounces, pounds or kilograms and as at May 2018, an ounce of dried cannabis would sell at between $200.00-$250.00.
Detective Odell also gave evidence as to the ways cannabis is consumed, namely smoked through a metal pipe (from a cone), or a water pipe/water bong or through rolled cigarettes, (a ‘joint’). Her evidence was that generally cannabis is consumed by using a bong or pipe at a rate of between 0.2 gram to 0.5 gram.
In relation to the sale of cannabis, Detective Odell gave evidence that cannabis grown in South Australia may be sold inter-state where the price is generally higher. She also gave evidence of her knowledge of cannabis being cultivated and sold through groups of people, known as “cannabis syndicates”. These syndicates are organised, so that different people perform different parts of the process from growing the cannabis, to drying it and then on-selling it. This can involve one person being involved in the very early stages of the cultivation (the rooting process) and another person taking over for the growth phase. She also gave evidence of her experience of plants being moved to larger areas in order to grow to full maturity.
Detective Odell was briefly cross-examined and a number of factual matters arising from her evidence were not challenged. She agreed that in relation to the ways in which cannabis can be consumed that it can be used in cooking, by the preparation of a cannabis butter like substance and it is also possible for the leaf matter to be used in the production of cannabis oil or cannabis resin, known as ‘hash’.
In relation to the cultivation of cannabis using hydroponic methods Detective Odell agreed that most hydroponic set-ups involve artificial lighting, heat, irrigation, nutrients and regulation of the atmosphere. She also agreed that it was common to see a diversion of electricity with commercial hydroponic cannabis cultivation, and that often people who are involved in the growing of illicit cannabis for commercial purposes would do so in premises that are rented under false names. Alternatively, they may get other people to rent the property and pay the landlord. Detective Odell also agreed that in such commercial enterprises the persons growing the cannabis may have other people attend the post office to pay the AGL power bill for them. She agreed that these steps were taken by the growers of cannabis to avoid detection by the police. Finally, she agreed in cross-examination that one of the often-seen signs of involvement with commercial cannabis production was obvious unexplained wealth.
The prosecution case concluded with a statement of several agreed facts as follows:-
Agreed Facts
Senior Constable Ashley Bowers took photographs of Hillside Cabin 4 at the Brighton Caravan Park contained in exhibit P5 on 6 November 2018.
Senior Constable Ashley Bowers conveyed the ‘snip n save’ samples, (exhibit no 18/A69724-1), to Forensic Science SA on 26 June 2018.
The accused was arrested on 16 May 2018 at around 8.40am.
During the search of Hillside cabin 4 at the Brighton Caravan Park on 14 May 2018, police did not locate any timers, bongs, pipes or papers to roll cigarettes.
As at 6 February 2018, the accused was the registered owner of 1994 Daihatsu sedan VPM-774.
At the conclusion of the prosecution case and taking account of the accused’s plea of guilty to “simple cultivation”, I found that the prosecution had proved beyond reasonable doubt all the elements of the offence in s 33B(2) of the Act.
That being the case the onus moved to the accused pursuant to s 33B(5) of the Act to prove on the balance of probabilities that he did not have the relevant intention or belief concerning the sale of the plants or their products necessary to constitute the offence under s 33B(2).
The Accused’s case
The accused gave evidence. He told me that he was qualified Diagnostic Radiographer having obtained a Bachelor’s Degree in Medical Radiation Sciences in 2011 from the University of Sydney. He is currently undertaking Post- Graduate studies in Medical Ultrasound at the University of Canberra. In addition to these professional qualifications the accused has undertaken yoga teacher training and is now a qualified Yoga Instructor currently teaching between three and six classes per week. The accused told me that he had grown up in a close-knit family in Sydney and apart from receiving one expiation notice for driving whilst using a mobile phone, he had never previously been in trouble with the police.
The accused’s family migrated from the Middle East, his father from Egypt and his mother from Lebanon. He told me that he was raised in a very strict Coptic orthodox culture and moved to Adelaide at the end of 2016 when there had been conflict with his father regarding the way he lived his life. The accused told me that he had been travelling around the world on and off for ten years, including mission trips in South Africa. His parents were upset that he had not married, bought a house and followed the strict lifestyle that they wanted him to lead. He therefore looked for options outside of Sydney and found work at the old Royal Adelaide Hospital. The accused accepted a six-month contract at the Hospital, living in the old nurses’ quarters. He continued with contract work until 2017 when he travelled to Peru, where he lived for six months. The accused made the decision to travel to Peru to investigate work being done by indigenous healers using plant medicines to heal both mental and physical ailments.
The accused’s evidence was that since the end of 2014 he has been suffering with severe stomach problems which caused chronic pain, fatigue and difficulty passing stools. In 2015 this was investigated and there was a positive blastocystis hominis result, indicative of him suffering from irritable bowel syndrome (“IBS”).
The accused told me that he began investigating alternative medical therapies to control the symptoms of his IBS. In December 2014, he travelled to Thailand and undertook a three day fast, together with other colon therapies in an attempt to improve his symptoms. He produced a two-page document signed by him in relation to a detox / fasting programme held at the Anda Wellness Resort in Thailand dated 14 December 2014.[3] The accused only gained temporary relief from the programme in Thailand and in early 2015 he was reviewed by his GP who confirmed the ongoing diagnosis of IBS. He recommended anti-biotics and the accused undertook several courses of anti- biotics with no improvement. The accused’s evidence was that as conventional medication had not helped his condition at all, he investigated other alternative therapies, including attending a centre at Paramatta in Sydney to undergo colonic and hydro-colonic therapies. He produced a treatment form for such treatments at a clinic known as Body Pure Health and Beauty, between 22 April 2015 and 13 January 2016.[4]
[3] Exhibit P8.
[4] Exhibit D10.
The accused told me that these treatments only provided temporary relief and it was then, that he made the decision to move to Peru and work with the local indigenous healers that practise the ancient Sharmanic Culture. This involved drinking a brew taken from the land in an attempt to detoxify the body whilst being surrounded by nature. Again, after six months the accused found that his symptoms had only been temporarily improved and he decided to return to Australia when his brother was getting engaged in January 2018.
In addition to the physical symptoms of IBS, the accused has also suffered from psychological symptoms, including anxiety and stress. These were not only related to the symptoms of his IBS but also the difficulties in obtaining treatment for those symptoms.
When the accused returned to Australia from Peru he only remained in Sydney for a few days and then travelled back to Adelaide as there were work opportunities for him at the hospital. The accused produced a Locum Assignment Schedule for a role as a General Radiographer at the new Royal Adelaide Hospital from 5 March 2018 until 8 June 2018. This was with Medacs Healthcare as the provider of locum services to the Royal Adelaide Hospital. This assignment schedule, in the accused’s name, sets out the pay rate for the position which included hourly rates for different shifts worked and a $100 accommodation allowance per week.[5]
[5] Exhibit D11.
I note from this schedule that regular rates were paid for forty hours per week and that the accused would be paid a higher over-time rate for any additional hours worked, up to $130.00 per hour. Regular Saturday night and Sunday rates were at $88.00 per hour.
The accused also produced two pay slips for his locum work as a Radiographer. The first was for the pay period 9 April 2018 – 15 April 2018, with payment after tax of $1,457.20. The second was for the pay period from 16 April 2018 – 22 April 2018, with payment after tax of $1,365.72.[6] I note from the second payslip that as at 24 April 2018 that the accused had earnings-year-to-date of $37,944.92 before tax of $13,046.00. In his evidence, the accused told me that at the time of his arrest he had no significant debts apart from his HECS debt, which was for repayment of his degree.
[6] Exhibit D13
In relation to the accused living at the Brighton Caravan Park, he told me that he made the choice to live there after having spent approximately six months in the mountains of Peru. He wanted to be close to nature and close to the beach. He confirmed that he had signed the guest registration card which had been shown to Mr Colbey during his evidence, and that he first took up residence at the caravan park on 6 February 2018. He confirmed that it was his name on the guest registration card and that he had registered his Daihatsu motor vehicle VPM-714. This was an old vehicle worth $600.00.[7] During cross-examination, the accused confirmed that when he first moved into the caravan park he was living in a tent. His evidence was that he wanted to be as close to nature as possible when he came back from Peru and he was happy to live this way. However, he moved into the cabin on 14 April 2018 after coming home late one evening and finding that his tent had been destroyed by storm and filled with water. He strongly denied that he had moved into the cabin with the intention of growing cannabis.
[7] Exhibit D12.
The accused was frank in telling me that he had used cannabis medicinally and recreationally for some time prior to his arrest. This was to reduce the anxiety and stress associated with his IBS and to assist with sleep and his chronic pain. He would also use it when listening to music, or when reading and writing. His evidence was at the time of his arrest he would smoke approximately three to five joints per week. The accused told me that the joints were rolled up using a cigarette paper, and on occasions he would use a small pipe.
The accused was cross-examined about his use of cannabis, and confirmed that he would smoke a joint approximately every second day. In relation to his work, he denied he would go to work under the influence of cannabis preferring to use cannabis in the evenings. His evidence was that he was aware that he could not function during the day if using cannabis, as the drug caused him to tire. He predominately smoked cannabis on his day off or in the evenings. He specifically denied that he would smoke a cannabis joint and then go straight to work. The accused would purchase cannabis in larger amounts of between ½ an ounce to one ounce, as he disliked dealing with those he described as being on the “black market”. He would pay approximately $250.00 for one ounce of cannabis. This evidence was consistent with the evidence of Detective Odell.
The accused explained that the amount of cannabis that he would buy would depend on what cash he had available, but he did prefer to purchase in larger amounts. He would purchase cannabis approximately every three months. He did not have a regular dealer, but would rather approach random people on the street who he believed were smoking cannabis at the time. He would do this by observing their behaviour and by noting the clear smell of a person smoking cannabis. The persons approached were not always helpful, but may suggest someone who may have cannabis to sell. Before his arrest in May 2018, after returning to South Australia, the accused had only purchased cannabis on one previous occasion before purchasing the plants which were found in his cabin.
In relation to the purchase of the cannabis plants, the accused gave evidence that the forty-five plants seized from his cabin were his.[8] His evidence was that he had purchased the plants in the hope of developing some flowering material that he could then boil down with ethanol to create cannabis oil, which he could take in an effort to improve the symptoms of his IBS. The accused’s evidence was that prior to obtaining the cannabis he had been doing research on- line through a medical web-site known as PubMed in relation to the medical uses of cannabis. PubMed is a data base of bio-medical literature which the accused was aware of as a result of his studies and his work in the health industry. The accused produced the synopsis of two articles that he had reviewed prior to obtaining the cannabis plants, which opined that various cannabis preparations could be considered a new and promising pharmacological tool in the therapy of inflammatory bowel diseases. The reviews highlighted the importance of Cannabidol (CBD) as being useful in the treatment of bowel diseases. I was told that CBD is a chemical component that is active in the cannabis plants. The two articles referred to by the accused were produced to me.[9]
[8] T62.1-9.
[9] Exhibitis D14 and D15.
Having considered this medical research regarding the ways in which CBD could be used, the accused concluded that ingesting CBD by way of cannabis oil was the best method of ensuring that the CBD entered the digestive tract. The accused’s evidence was that from that point he decided to obtain some cannabis plants and try and create his own cannabis oil.
The accused commenced researching cannabis in or about the year 2000 and then again at the end of 2017 heading into 2018. He was asked whether he was aware that at that time medical cannabis was available in South Australia and he responded by telling me that he was aware, although not at the time of his arrest in May 2018, despite the research that he had conducted. He also confirmed that prior to undertaking various alternative treatments, starting with his trip to Thailand, he had not consulted a Medical Professional/Naturopath or Nutritionist.
In relation to how the accused came into possession of the cannabis plants his evidence was that he had planned to travel to Sydney over the weekend of 12^th and 13^th May 2018 to visit his mother for Mother’s Day. He believed he left for Sydney on either Thursday 10^th May or Friday 11^th May 2018. He came into possession of the cannabis plants before he left. This occurred sometime in the week before he went to Sydney, after he had approached two suspicious men, who were smoking and carrying on inside a white four-wheel drive motor vehicle, during his walk from Brighton to Hallett Cove along the board walk. As a cannabis user, he well knew the smell of cannabis being smoked and therefore decided to approach the car and ask the occupants if they had any cannabis he could purchase, and also whether he would be able to get access to any plants. Although initially reluctant, the two males agreed to help the accused. The accused was not surprised by this as in his experience as a cannabis user over several years, it is common for fellow smokers to make enquiries of other cannabis users for the supply of cannabis.
The accused’s evidence was that he initially asked the two men for half an ounce of cannabis and then about the seedlings. When they agreed to assist him, they told the accused that the total cost would be around $800.00. Knowing that half an ounce of cannabis was generally $150.00, the accused was paying between some $600.00 and $650.00 for the plants. The accused exchanged details with the two men taking down their mobile telephone number. He then contacted them to make arrangements for them to attend at the caravan park with the plants. This occurred the day after the first contact, with the men attending the caravan park and bringing the plants into the cabin. They placed them in the alcove with the light on top. The accused allowed the men to set up the growing area without even having looked in the box to see how many plants were provided to him. The accused paid the $800.00 for the plants and some dry cannabis, and the three then went outside and smoked some cannabis together on the veranda of the cabin. During his evidence, the accused confirmed that the cannabis plants in the plastic box were those shown in photograph 1,[10] and that the dry cannabis was the cannabis depicted in a plastic box in photograph 3.[11]
[10] Exhibit P4.
[11] Exhibit P4.

The accused told me that after he had conducted the transaction with the two men he was keen for them to go, as he was concerned about having to “buy medicine on the black market”. The accused’s evidence was that one of the men gave him his name, but that he no longer remembers it as he deleted the phone number soon after he was arrested. He was aware that he was in serious trouble with the police. The accused has not seen the two men since the transaction took place.
After acquiring the cannabis plants, the accused travelled to Sydney to visit his family. He was concerned about leaving the plants in the cabin, and he decided to put a blanket over them to cover them up. When he returned from Sydney the accused was immediately aware that the plants had been removed and that he was likely to be in trouble. He expected that the police would come and speak to him. When asked whether he thought about leaving the caravan park, the accused frankly told me that he went for a drive to the city and spent a couple of hours considering his position, but ended up making his way back to the cabin.
The accused confirmed in his evidence that in relation to the plants, he was hoping that they would flower and he could then use the bud material with ethanol to create cannabis oil that he could ingest orally. He had researched the process on the internet and read articles on-line. At the end of the process he was looking to begin with 50ml of cannabis oil. He confirmed that at the time he was arrested he had no other hydroponic equipment apart from the light, and that he did not have a timer attached to the light. He did not know whether the cannabis plants where male or female and he told me that he had never grown cannabis plants before. The accused was very clear in his evidence that he was not going to sell any of the plants or their products and he only involved himself in the cultivation of the cannabis as he felt like he had exhausted all other options. It was an act of desperation to try and make cannabis oil which might potentially alleviate his IBS symptoms.
In relation to the use of cannabis oil, after his arrest the accused made further inquiries in relation to the medicinal use of cannabis. As a result, he contacted a company, known as PlantMed and made enquiries regarding obtaining cannabis oil. The accused obtained medical forms from his general practitioner, and through PlantMed he is now being prescribed legal cannabis oil as medication. The medication is sent to a pharmacy with a prescription, and the accused must attend to collect a 50ml bottle of oil which contains both THC and CBD. The doctors instructed that he should take the oil in the morning and afternoon by way of a little syringe placed in the mouth. The accused has been taking the oil for about three months and he told me that although it assisted with bloating and mental anxiety, it had not cured him completely.
One issue in dispute in relation to the accused’s evidence is whether he had a pipe or cigarette papers in the cabin when it was searched by police. In his evidence, he admitted that prior to the police attendance when he was arrested in May 2018, he was in possession of a small pipe. He also accepted the agreed facts, that upon the police search no smoking implements or cigarette papers were found in the cabin. His explanation for that was that he had discarded them after the police had come, or after he had seen that the cannabis plants had been taken from his room. In cross-examination, the accused agreed that the police had already attended and searched and removed the cannabis by the time he had returned from Sydney and became aware that the cannabis was gone. The accused stated quite candidly, that his cabin had been turned up-side down. When asked why the Police would not have found any smoking implements, the accused’s answer was that perhaps a pipe and some Tally Ho papers and matches would not have been of great concern to them at the time. The accused did not believe that he would have taken the items to Sydney, so believes that they would have been in the cabin at the time, and missed by police. I do not find this explanation by the accused convincing, but in the context of him being arrested (for the first time) soon after arriving back from Sydney, I accept that the accused simply does not know what happened to the smoking implements.
In relation to the purchase of the plants the accused was cross-examined in some detail about the fact that he approached strangers for the purchase. His response was that he was concerned about approaching strangers, but he felt desperate and had exhausted a lot of options regarding his illness. Asking strangers for supply of cannabis is a big thing and intimidating, and the accused described it as a “traumatising experience”. The accused denied that he had ever previously asked around for plants. The accused was also questioned regarding the price paid for the plants given that he agreed to pay around $600.00 for them, without knowing how many plants he would receive. While not totally satisfactory, the accused’s response was, that buying the plants, knowing that they were illegal meant that he wanted as little interaction as possible with the men he bought them from, and was of the opinion that the less questions the better. When asked whether he was worried that he would only get one plant for $600.00, the accused answered that that would be ‘…far-fetched…’[12].
[12] T86.25-26.
In relation to the sale of cannabis product generally, the accused on cross- examination stated that he had never researched how much dried cannabis might have been obtained from one plant; and had never checked the penalties for growing cannabis in South Australia, although he knew it was a criminal offence and was worried about the possibility of being caught by police with a large number of plants.
The accused’s evidence was that he had never discussed with the two men, who supplied the plants how to grow them, as he wanted his interactions with those men to be as short as possible. When asked how he thought he would be able to grow the plants the accused indicated that it was a “potential attempt” to grow them, but that he thought it was enough to have the light with a small area inside the cabin and put some water on the plants. He knew that cannabis plants had the potential to grow quite tall and wide, and when asked whether he knew that the plants would not have been able to reach maturity in the cabin, he stated that “…intuitively I knew that all of them wouldn’t be able to grow but potentially, two or three may be able to grow and I might be able to continue with the experiment”.[13]
[13] T90.4-6.
When asked whether he had considered the possibility of growing all forty-five cannabis plants to maturity, the accused responded by stating that this was ludicrous. He confirmed that his future plans were to remain living in the cabin. When asked why he had kept the forty-five plants, the accused’s answer was that he really hadn’t planned further than obtaining the plants, as the following day he was travelling to Sydney, so he had only been minimally involved in the plants to the time of his arrest. The accused denied emphatically that he was growing the cannabis on behalf of someone else, knowing it would be sold. He stated that such action would be contrary to his spirituality, prayer and meditation and his life in the healthcare system and as a yoga instructor. He denied any of the cannabis or the cannabis oil would have been sold. He explained that when he had told the court that he was in a lot of trouble, he denied that was because whoever he was growing the cannabis for was upset that they had had their crop seized. The accused clearly stated that he was in a lot of trouble because the cannabis had been seized and he had been taken by police to jail.
The accused called three other witnesses to give evidence on his behalf, none of those witnesses were cross-examined. Doctor Charles Christie gave evidence that he was a registered Medical Practitioner and a member of the Royal Australian College of General Practitioners. He has practiced as a General Practitioner for twenty years and the accused had consulted with him from 5 April 2018, although he had been attending his practice on North Terrace from 21 April 2017. Doctor Christie’s evidence was that the accused had a number of medical conditions which had been investigated widely, including chronic abdominal pain and chest pain, together with an anxiety disorder. The diagnosis in relation to the chronic abdominal pain was of Irritable Bowel Syndrome. The accused had told Dr Christie that he had been suffering from IBS and abdominal symptoms for a considerable period of time. Doctor Christie noted that complaints had been made by the accused for all of the period since the accused had attended the practice from April 2017. Symptoms included abdominal pain, bloating, bowel habit changes, and shortness of breath on inspiration.
Dr Christie identified a letter to him from Dr Sheetal Bull of PlantMed, dated 31 July 2019 in relation to the accused. Dr Christie confirmed that this letter was an approval for the accused to be prescribed with medicinal cannabis preparations under Dr Bull’s supervision. Dr Christie confirmed that although he had not prescribed the medicinal cannabis, the letter[14] was confirmation that the accused has been prescribed the medicinal cannabis, and that Dr Bull would review his progress in three months.
[14] Exhibit D16.
Character Evidence
The other two witnesses called by the accused were both character witnesses. Mr Kyle Hand gave evidence that he was the owner of a Yoga Studio in Christies Beach and that he had first met the accused when they were both undergoing a two-hundred-hour yoga teacher training programme approximately 1.5–2 years ago. Mr Hand described the accused as being genuine and authentic. He was a friend of his. Mr Hand was previously the owner of a Real Estate business in which he had worked for eleven years, before he sold it to turn to the life of a yoga instructor. His evidence was that the accused was an authentic person who lived by the holistic practice and philosophy of yoga, rather than being what he described as the new fad of an Instagram yogi. He respected the accused deeply and found him to be a truthful person and was somewhat surprised by the charges he was now facing. However, his evidence was that given the accused’s approach to life particularly in relation to natural medicines and the trips to Peru and his lifestyle generally, the use of cannabis oil made sense to him. Mr Hand was aware that the accused had spent a lot of time investigating medical options and trying to find some resolution for his stomach problems and irritable bowel. He was aware that the accused was now prescribed for medicinal cannabis.
Mr Pablo Santiago Allolio gave evidence having travelled from Sydney to do so. He is a social worker, with a Masters in Social Work and works as a case manager for a not-for-profit organisation in Sydney known as Exodus Youth Works. He explained that the program works with young people at risk, young people with mental illness, drug issues, homelessness and refugees and recent migrants. Mr Allolio met the accused five years ago through his work with Exodus. At that time, the organisation had two centres, one of them at Graville in Western Sydney. This centre confronted a lot of issues with youth homelessness, violence etc. The accused started a volunteer outreach program for Exodus known as Chaos. The Chaos programme provided a mixture of outreach for young people at risk, including working with young offenders and new migrants. The accused was also running a drop-in centre and ran activities for the young people who attended.
Mr Allolio’s evidence was that the accused is part of the Coptic Orthodox Community in Sydney and everybody knows each other, and if they have been in trouble. In the five years that he has known the accused, he had never heard anything untoward regarding his reputation. When he was asked to come to Adelaide to give a character reference it was completely out of the ordinary. Mr Allolio gave evidence that his boss, the Director of Exodus, was planning to give evidence on the accused’s behalf as she had known him for eighteen years, but unfortunately was overseas when the trial was listed. She had therefore asked him to come forward to support the accused and the organisation even though as a not-for-profit, paying for him to come to Adelaide would be a cost to the organisation. The accused’s situation was regarded as completely out of the ordinary for him.
Mr Allolio also gave evidence that the fact of the accused being charged with a commercial drug offence did not sit with the person that he knew, it simply was not him. The fact that he had been charged with that offence did not change Mr Allolio’s opinion of the accused, as in their organisation it is always very difficult to find volunteers who work with the organisation on a daily basis and the accused always gave himself and his time and effort to help the organisation while living in Sydney.
It was not disputed by the prosecution that the accused has no criminal convictions, and there are no police records of any other allegations in relation to cultivation or trafficking of illegal drugs having been made against him.
I have considered how I must direct myself as to the evidence of the accused’s good character. I bear in the mind the accused’s previous good character when considering whether I am prepared to find the accused guilty of the charge, and that the accused’s good character is a factor, effecting the likelihood of the accused committing the charged offence. I have also considered the accused’s previous good character when assessing the creditability of the explanations given by him in his evidence. I have given full weight to that good character, but have directed myself that this does not mean that I must find the accused not guilty if other evidence is convincing. Sometimes a person who was previously of good character is found to have committed a crime for the first time.
Analysis
It is not in dispute that the accused purchased forty-five immature cannabis plants in May 2018, which he began to cultivate and which he intended to cultivate to a point where those plants matured and there was some heading and flowering of the plant. The accused admitted that he had used a light to begin the cultivation process over one / two days and that he had intended to water and nurture the plants. As I have set out above, the accused’s admissions as confirmed by the evidence given by him, meets three of the four elements of the offence with which he is charged pursuant to s 33B(2) of the Act.
My decision in this matter, as to whether the accused is guilty of the offence is to determine the fourth element of the offence namely that the accused cultivated the cannabis (controlled drug) intending to sell one or more plants, or believing that another person intended to sell one or more plants. As a result of the presumption in s 33B(5) of the Act, to find the accused not guilty, I must be satisfied on the balance of probabilities that he did not have an intention or belief concerning the sale of the plants or their products.
The prosecution case was relatively simple, relying upon the large number of plants that had been found in the cabin rented by the accused. It is the prosecution’s case that as a matter of logic the accused was simply growing too many cannabis plants to convince me on the balance of probabilities that the sole intention of growing them was for his own medicinal use. The prosecution relied upon the potential yield of the cannabis plants of between 600 - 900 grams of dry useable material, if each plant reached 1-1.5 metres in height.
However, the prosecution did concede that in her evidence Ms McKew was not able to estimate how much cannabis the actual forty-five plants would have yielded, given they were so immature at the time that police seized them. Evidence of unknown potential yields is not particularly helpful in addressing the accused’s intention regarding the plants. Neither is the evidence of the profit which could have been obtained from the plants if they had all reached full potential, and had all produced the maximum amount of dried cannabis.
The prosecution rightly conceded that the cannabis plants were only valuable if they were all female. Although the evidence of Ms McKew was that plants such as these, which were grown from cuttings, were generally taken from female plants the analysis of the plants from the “snip n save” sample was that only two of the ten plants could be confirmed as female. I accept the evidence of Ms McKew that the analysis may have been impacted by the fact that no flower or head material was in the sample for each of the other eight plants. It is only by identifying flower material that there can be a positive analysis of a plant being male or female.
I am asked by the prosecution to infer that all of the forty-five plants were female upon the basis of the evidence of Ms McKew that generally cuttings are taken from female plants and that the way these forty-five plants were grown in rock wall medium is indicative of cultivation by cuttings. Ms McKew had never seen plants grow from seed in the type of rockwool blocks in which the forty-five plants were found.
Reasonable inferences
The process of ascertaining the facts involves not only assessing the weight to be attached to the various items, attached to various parts of the evidence testifying directly as to the existence or non-existence of facts, but also the drawing of inferences from the facts directly attested to. The drawing of inferences is a common-sense matter. Inferences may be drawn with greater or less assurance according to the circumstances.
I am happy to apply my common-sense and life experiences to the process of deciding what inferences are to be drawn from the facts of which evidence has been given and what degree of force or cogency attaches to those inferences.
In the end, I am to weigh the various items of evidence, with their varying degrees of force or cogency, and the inferences which I can draw from, with the varying degrees of force or cogency attaching to those inferences, in order to decide whether the final inference that the accused is guilty can be drawn to the exclusion of reasonable doubt.
I am not prepared to draw the inference that the prosecution asked me to draw in relation to all the plants being female. To do so, would be to disregard the certificate of analysis,[15] which is the result of both macroscopic and microscopic observations of ten different plant samples taken from the forty-five plants cultivated by the accused. That analysis very clearly states that only two of the ten plants were a female cannabis plant sample. In coming to this conclusion, I note the evidence of the accused that he purchased the plants from men unknown to him, in an act of desperation to find a way to have cannabis oil to treat his medical condition. He was prepared to pay for the plants without seeing them or even knowing how many plants he was paying for. There is no evidence where the plants came from, other than that they were handed to the accused by two unknown men in a plastic box. This was not a sophisticated operation. The evidence of the accused is that he spoke to men he did not previously know, but who he assessed as being cannabis users, regarding the possibility of being provided with some cannabis plants. It has been proved by photographs and otherwise that they arrived in a plastic box in a rockwool medium. That is the extent to which there is evidence regarding the plants. The accused in his evidence indicates a level of naivety regarding the plants and what he was prepared to pay for them. There is clearly serious potential for him to be duped by the two men who provided the plants.
[15] Exhibit P6.

In relation to the obvious issue of it not being possible for all forty-five plants to grow to maturity within the confines of the cabin, as confirmed by both Ms McKew and the accused in their evidence, the prosecution’s case is that others would be needed to be involved in the cultivation process perhaps as part of a cannabis syndicate. The prosecution relied upon the improbability of the evidence of the accused that he had not really thought about what he would do when the plants began to get too big for his cabin, even though he had been researching the cultivation of plants to obtain material to manufacture cannabis oil for a period of six months. The accused’s evidence was that he thought that only a few cannabis plants would grow to maturity in the cabin, however, the prosecution’s case is that this did not explain why he was growing so many cannabis plants in the first place. Nor did his evidence regarding how he purchased the plants and his lack of enquiry to how many plants he was going to get for his $600.00-$650.00. The sheer number of plants and the value of the cannabis that they could yield, made it inherently unlikely that the accused would require all of that cannabis for personal use.
The argument of the prosecution does not address the factual chronological timeline. The accused had not had the forty-five plants for very long, and for no more than a day or two before he left them in the cabin to travel to Sydney. The case put by the prosecution is of somebody who had planned in advance to purchase forty-five plants and to set them up in a proper hydroponic growing environment and then maybe, with the help of a syndicate harvest the plants at their full possible yield. That yield could then be sold for a significant amount of money. That case ignores the evidence that is before me and I do not accept it.
On the unchallenged evidence, this is not a sophisticated hydroponic set up. The evidence from Mr Colbey and confirmed by the registration card[16] is that the accused had been living at the Brighton Caravan Park since 6 February 2018. When registering with the caravan park at the commencement of his stay, the accused provided his full name, his mobile telephone number, his postal address in New South Wales, his email address and the registration number for his vehicle. Mr Colbey confirmed that the accused paid for his rent at the caravan park until his arrest on the 16 May 2018 using a credit card. He never paid cash. I find on the basis of this evidence that the accused never attempted to hide his identity or his movements in and out of the caravan park using his car, by way of providing a false name or having others rent the cabin at the caravan park on his behalf. The evidence of Detective Odell, is that often people who are growing illicit cannabis for commercial purposes will do so in premises that are rented under false names or they have other people pay their rent on their behalf or other people to pay electricity bills on their behalf. She confirmed that these actions are taken to avoid detection by the police of their growing activities. The evidence supports a finding that the accused did not do any of these things and was quite open about his identity. He was known to Mr Colbey and the house keeper Ms Gray.
[16] Exhibit D12.
Other evidence that supports a finding that the hydroponic set-up within the cabin was not the usual commercial growing set-up, was that there was none of the equipment required for heating, irrigation, lighting timers, nutrients or diversion of electricity that are regularly found by police and referred to by Detective Odell in her evidence. There was one light in place for forty-five plants. There were no items found within the cabin usually connected with the sale of cannabis such as drying racks, scales or packaging. The only items found were the small amount of dry cannabis in a box and some scissors. The accused’s evidence was that he was a cannabis user and that the dry cannabis was for his personal use and the scissors were used to cut up the cannabis for that use. This was not challenged by the prosecution.
The forty-five cannabis plants could not have been in the cabin for any more than one week. The evidence of Ms Gray was, that there were weekly linen changes in the cabin normally on a Saturday. That was confirmed by Mr Colbey and the accused. The cannabis was found on Saturday 12^th May 2018 by Ms Gray. It was not present on the 5^th May 2018 when she had conducted the linen change the week before. The evidence of the accused is that he had purchased the cannabis plants on either the 10^th or 11^th May 2018 and had placed them in his cabin before he travelled to Sydney on the 12^th May 2018 to spend Mother’s Day with his mother. In that time, the plants had been left in a box with a light over them. They were placed in an open corridor. There was no attempt to hide them away. The accused knew the housekeeper attended the cabin on Saturdays.
Apart from the number of plants there is no evidence that this was a sophisticated hydroponic set up. The evidence is that if the plants were to remain in the cabin they could not have grown to maturity. They could not have been a full commercial crop. I find that the evidence does not establish that this was a commercial operation in any way.
However, I note the presumption that works against the accused and I am asked to accept that the forty-five plants were purchased for his personal use and that none of their products were to be used for sale. I have outlined the accused’s evidence as to his intentions regarding the plants and his journey in relation to his physical and mental health and trying to find an answer to his IBS. The accused’s evidence in relation to his medical condition is supported by his GP Dr Christie, and his attempts to find a solution for his problems supported by exhibits proving that he had attempted a detoxification programme in Thailand in December 2014 and colonic treatment in Sydney in 2015 and 2016. Evidence was provided by Mr Hand not only of the accused’s character but also of his desire to lead a holistic and alternative lifestyle and he confirmed knowledge of the accused’s travels to Peru to find an alternative cure for his abdominal symptoms.
In giving evidence, the accused did not attempt to over exaggerate the situation. He candidly gave evidence that he was aware that he was breaking the law by purchasing the cannabis plants and he felt dreadful in doing so. On several occasions, he attested to his dread of approaching those using cannabis to purchase some for his own use, and later the plants. He described the situation as “the black market”. Further, when explaining that after his arrest he was prescribed medicinal cannabis oil the accused’s evidence was again understated. He conceded that the cannabis oil had helped his symptoms but not totally cured them. One may have expected that within this trial the accused may have tried to argue that when he finally was able to use cannabis oil it provided a complete resolution of his symptoms.
In determining whether or not the accused purchased the forty-five plants and planned to cultivate them for a commercial purpose, I take into account the fact that he is a university educated medical professional who was employed on a salary of over $1,300.00 net per week at the time of his offending. There is no evidence of him having any debts and he was a person who lived a modest life. This was confirmed by Mr Hand when giving evidence regarding the accused living a yoga type, alternative lifestyle. There is no evidence before me to provide a reason why the accused would enter into a commercial operation for the growing of cannabis when he was fully employed, able to travel to Sydney and had the support of close friends and his siblings.
I am satisfied on the balance of probabilities that the accused, in cultivating the forty-five cannabis plants had no intention to sell the plants or their products, and did not believe that another person intended to sell any of the plants or their products. I find that the accused suffered from a medical condition and suffered symptoms for which he had gone to great lengths to try and resolve, but had been unsuccessful in doing so. He had the medical background to research the use of cannabis in reducing the symptoms of his illness (IBS), and being a cannabis user made the poor decision to purchase plants for his personal use. The fact that he purchased the plants and then left to go interstate merely covering them with a blanket, but leaving them in full view of a house keeper who would be coming into the cabin is I find, further evidence that he had no intention to set up some type of commercial operation. In coming to this conclusion, I also take into account the character evidence as a factor affecting the likelihood of whether or not the accused would have entered into a commercial operation. I have also considered his good character in assessing his creditability as a witness.
Verdict
I find the accused not guilty of the offence of Cultivating a Commercial Quantity of Controlled Plants for Sale (Section 33B(2) of the Act).
I find the accused guilty of the offence of Cultivating a Controlled Plant (Section 33K(1)(b) of the Act).