R v Janette Elisa Tripodi No. DCCRM-02-67

R -v- JANETTE TRIPODI
[2002] SADC 125
His Honour Judge Robertson
Criminal
The Charge

Janette Elisa Tripodi, (“the Accused”) is charged with taking part in the sale of cannabis contrary to Section 32(1)(d) of the Controlled Substances Act, 1984 (“the Act”). Particulars of the offence provided in the Information are that the accused and Guiseppe Tripodi on 15 October 2001 at Waterloo Corner, knowingly took place in the sale of cannabis, a prohibited substance, to another person.
Background to the application for Trial by Judge Alone
At the commencement of the Trial, the accused made an application for the exclusion from evidence of an audio tape record of interview between Detective Copland and the accused on 16 October 2001, which was held at the accused’s home at Taylors Road, Waterloo Corner. The accused relied on provisions of Section 74D and Section 74E of the Summary Offences Act 1953 in support of her application. The Crown conceded that the interview should have been undertaken by video camera and recorded on video tape. It was accepted the police officer failed to comply with the provisions of Section 74D. In her interview the accused made admissions which implicated her in the offence charged. I refused the application to exclude the evidence as I was satisfied that the record of interview should be admitted in the interests of justice pursuant to Section 74E(1)(b) of the Summary Offences Act. I have published written reasons for my decision.
Following my decision refusing the application, Mr Edwardson, Counsel for both accused, indicated that both accused wished to be tried by Judge Alone. With respect to the accused, Janette Tripodi, the decision was to a large extent a matter of expediency. Mr Edwardson accepted that the admissions contained in the Record of Interview were of such a nature that they could be relied upon by the Crown to prove its case against the accused beyond reasonable doubt. Mr Edwardson said that the accused wished to appeal against my decision refusing to exclude the record of interview and an expedient way of achieving that end with respect to the accused Janette Tripodi would be to have the Trial proceed by Judge Alone. It was acknowledged that it was not open to the accused, Janette Tripodi, to plead guilty to the charge and then challenge my decision by appealing to the Court of Criminal Appeal. (The Queen v Day (2002) 219 LSJS 348 per Gray J. at 365-366).
Mr Weir, Counsel for the Prosecution, accepted that the procedure outlined by Mr Edwardson was the most expedient way of achieving the required result for the accused, Janette Tripodi.
Before making any application for Trial by Judge Alone, a voir dire hearing was held with respect to a number of applications for the exclusion of evidence by the accused, Guiseppe Tripodi. Guiseppe Tripodi is the son of the accused Janette Tripodi. The Crown had, prior to this hearing, agreed that his record of interview with a police officer should be excluded from evidence in the Trial on the grounds set out in the Form 9 Application. I made an order excluding some evidence which the accused sought be excluded and refused the application with respect to some other evidence.
After the voir dire hearing with respect to the accused Guiseppe Tripodi was completed, Mr Edwardson made an oral application indicating that both accused wished to be tried by Judge Alone. I was informed by Mr Edwardson that before making the election, both accused had received advice from him in relation to the election. As a result of what Mr Edwardson told me I was satisfied both accused had received advice in accordance with the provisions of Section 7(1)(b) of the Juries Act 1927. Pursuant to Rule 17 of the Juries Rules 1996 I extended time, for both accused, to make the application for Trial by Judge Alone. I also dispensed with concurrence with the requirements of the Rules pursuant to the power provided in Rule 16 of the Juries Rules. Having done this, I then ordered, pursuant to Section 7 of the Juries Act, that the trial of both accused proceed without a jury.
The Trial.
No oral evidence was called in the Trial before me. The evidence was provided first, by a Statement of Agreed Facts and secondly by the admission into evidence of a number of documents and other material including the record of interview of the accused Janette Tripodi. After the agreed Statement of Facts and the other material was received into evidence, the Crown closed its case. Immediately thereafter the accused, Guiseppe Tripodi made an application for no case to answer. Having heard submissions with respect to this application, I ruled that Guiseppe Tripodi had no case to answer. As a result of that ruling I brought in a verdict of not guilty with respect to the charge against him.
The Trial of the accused Janette Tripodi proceeded. Mr Edwardson indicated that there would be no evidence called by the accused. I then heard a brief closing address from the Crown Prosecutor. Consistent with Mr Edwardson’s approach that the accused accepted that the admissions contained in the record of interview were sufficient for the Crown to prove its case against the accused, Mr Edwardson declined to make a final address.
Preliminary observations
Before I turn to consider the elements of the charge I need to raise a number of important points. Mr Edwardson has conceded that the admissions made by the accused in the record of interview are sufficient for the Crown to prove its case against the accused beyond reasonable doubt. However, my duty is to bring in a verdict based upon the evidence before me. The accused is presumed to be innocent until and unless there is a finding that the charge against the accused has been proved. Whilst, in the course of considering the voir dire application by the accused, Janette Tripodi, for the exclusion of the record of interview, it seemed to me that the admissions implicated the accused in the offence charged, it is still necessary to consider all of the evidence in the Trial, including the accused’s record of interview for the purposes of determining whether the Crown has been proved beyond reasonable doubt that the accused has committed the offence.
This is not simply an idle exercise. It is the right of every accused to have the trier of fact, consider the evidence presented at the trial for the purpose of reaching a verdict. Even where concessions are made by an accused person, through Counsel representing them, the accused is still entitled to have the Judge reach a verdict after considering the evidence presented at the Trial. That is what I propose to do.
Elements of the Offence
There are four elements that the Crown is required to prove beyond reasonable doubt in order to sustain the charge against the accused and they are:
·First, that the material in question was cannabis.
·under the Act. Secondly, that the material is a prohibited substance under the Controlled Substances Act. Cannabis is a prohibited substance
·Thirdly, that there was a sale of the cannabis. Section 4 of the Act extends the ordinary meaning of the word “sell” to include “offer” or “expose for sale”.
·Fourthly, that the accused knowingly took part in the sale of the cannabis. Sub-section (4) of Section 32 of the Act provides that a person takes part in the sale of a prohibited substance if that person participates in any step or causes any step be taken in the process of the sale of the prohibited substance.
Evidence in the Trial.
On 15 October 2001 an employee of Toll Ipec at Hudson Court, Netley attended to a male person who said that he wished to send a box to an address to Queensland. The box was addressed to:
“Mr John White, Brake and Excavate,
58 Sharon Drive, Eagleby, Queensland, 4207”.
Later in the morning a police officer attended at Toll Ipec, in company with police dog “Inga” to conduct a routine drug search of freight at Toll Ipec. Attention was directed to the box. The box was opened and inside was a wooden box which was also opened. As a result of viewing the contents of the wooden box the police officer contacted the Drug and Organised Crime Investigation Branch of the Police Department.
Early in the afternoon of the same day Detective Copland and other police officers attended at Toll Ipec. They observed a number of plastic packages containing green vegetable matter in the wooden box which was later analysed and found to be cannabis. The weight of the cannabis was 2,515 grams.
A consignment note for the box had been completed by a man who attended Toll Ipec. One portion of the consignment note referred to the address to where it was to be sent. The other part of the consignment note was reserved for the name and address of the sender and in that section the male wrote:
“Joe Tripodi, Lot 17, Taylor Waterloo Corner”.
Following enquiries made by the police through the Police Information Management System, the police ascertained persons by the name of Tripodi lived at Lot M, Taylors Road, Waterloo Corner. The police undertook further investigations and reached the conclusion that the address “Lot 17, Taylor, Waterloo Corner” written on the consignment note was in fact “Lot M, Taylors Road, Waterloo Corner”.
On 16 October 2001 Detective Copland, with other police officers, attended at the house property at Lot M Taylors Road, Waterloo Corner. Police entered the property exercising the power provided by General Search Warrants held by a number of the officers including Detective Copland. The occupants of the house were absent at the time.
There was a shed on the premises. Detectives Copland and Woods, observed, through a rear window, that there were items associated with the cultivation of cannabis inside the shed. When the contents of the shed were examined later, the police located materials and equipment used in the cultivation of cannabis. There were present bags of cannabis cuttings, and there were six cannabis plants contained in pots cut off at the stem base.
The police entered the house premises, prior to the occupants of the house arriving home. There were a number of items of material located in the house which the Crown submits are relevant to the charge against the accused. Those items included:-
·   A piece of paper upon which had written on it “To Mr. John White, Brake and Excavate, 58 Sharon Drive, Eagleby, Queensland, Ipec Toll”.
·   A piece of paper on which was written references to gram weights and prices alongside the gram weight references.
·   A note book containing the name of “John White” with a mobile telephone number “0413 480238”.
·   A wooden box similar to that located at Toll Ipec inside the cardboard box.
·   Electronic scales.
·   Glad bags of varying sizes.
There were other items of material located in the house which the Crown submits are relevant to the charge against the accused in that it is alleged that some of these items were used in the packaging of the cannabis. I do not intend to itemise these. They are identified in the Statement of Agreed Facts.
Sometime after the police arrived at the house the accused Janette Tripodi arrived home. She was interviewed at the house by Detective Copland and, as I said earlier, that record of interview is part of the evidence in the Trial. I set out hereunder some of the relevant statements made by the accused :-
·   The wooden box inside the house was for “doing the cannabis or whatever”.
·   It was her writing on the box at Toll Ipec.
·   The buds or heads in the box at Toll Ipec came from the plants found in the shed on the premises.
·   She cut the buds off the plants with scissors and put them in the plastic bags.
·   She taped up the plastic bags found in the box.
·   She packed the box on Sunday 14 October 2001.
·   She copied the address from the piece of paper in the house.
·   The address to which the package at Toll Ipec was consigned was given to her by somebody else.
·    That she was hoping to receive money for the cannabis but she had not received any up until that time.
·   She did not know what she would have received for the cannabis as she had no idea about prices.
·   She intended to use the proceeds from the cannabis to do the front yard, the front ceiling and a verandah across the front.
Findings
I am satisfied beyond reasonable doubt that the box delivered to Toll Ipec contained cannabis. This was admitted by the accused in her record of interview. Further, Gregory Webber, in his Certificate of Analysis said that he analysed the contents of the packages and concluded that the material in the packages was found to be cannabis plant material. I accept that evidence and his evidence that the total weight of the cannabis was 2515 grams. Cannabis is a prohibited substance under the Act.
I am satisfied beyond reasonable doubt that the cannabis contained in the box delivered to Toll Ipec was the subject of a sale transaction. Whilst there is no evidence of the amount to be received by the accused, she admitted in her record of interview that she was to receive an amount of money for the cannabis.
With respect to the final element of the charge I am satisfied beyond reasonable doubt that the accused knowingly took part in the sale of the cannabis. I am satisfied that the admissions made by the accused in her record of interview, which I referred to earlier, prove beyond reasonable doubt that not only did she participate in steps in the process of the sale but she knowingly took part in the sale. The accused harvested the cannabis, packaged the cannabis, packed it in the carton and engaged in other activities required to have the cannabis transported to Queensland. It is unnecessary to itemise each step. The accused also admitted that she was to receive money for the cannabis.
There are two further matters which I wish to raise. First, there is circumstantial evidence which confirms some of the statements made by the accused in her record of interview. Such circumstantial evidence included:
·the cannabis leaf remnants found in the shed;
·the stalks in the pots found in the shed;
·the packaging material found in the house
·the address of “John White” on the piece of paper in the house, which is the same address as that placed on the consignment note for the box.
The other matter which I wish to raise relates to Section 74E(2) of the Summary Offences Act. That provides that if in the course of trial by jury the Court admits evidence of an interview in the interests of justice the Court must:
·Draw the jury’s attention to non-compliance by the investigating officer; and
·Give an appropriate warning in view of the non-compliance unless the Court considers the non-compliance was trivial.
I have only raised the sub-section to indicate that whilst I am aware of it, there is no obligation arising from the sub-section with respect to a trial conducted before a Judge alone.
The Verdict.
I am satisfied beyond reasonable doubt that the Crown has proved each element of the charge.
Accordingly, I find the accused guilty of the offence of taking part in the sale of cannabis, contrary to Section 32(1)(d) of the Controlled Substances Act, 1984.

[2002] SADC 125

18 September 2002