R v Kasumovic & Kiddeh No. DCCRM-96-1126 Judgment No. D3640

[1997] SADC 3640

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Reasons For The Verdict of His Honour Judge Kitchen

Hearing

04/06/97 to 06/06/97.

Catchwords

The accused Kasumovic was the driver of a Toyota Tarago van stopped by police at Truro - accused Kiddeh and three other male persons were passengers in the vehicle - seven packages containing a total of 3.1555 kilograms of female cannabis plant material were found secreted in the panels of the vehicle - there was evidence at the trial that the panels behind which the packages were found were held by a couple of clips which were easily removed so that access could be gained to the area behind the panels - a police surveillance team member observed "shadowy figures" / silhouettes of persons moving between the house where the packages of cannabis were found to have been assembled and the vehicle but the light was poor - there was evidence sufficient to raise a reasonable doubt that the accused or either of them knowingly had possession of the cannabis packages found in the vehicle - His Honour could not find beyond reasonable doubt that the accused or either of them were present when the packaging was done - verdict of not guilty returned in relation to each accused.

Materials Considered

• Controlled Substances Act 1984 subs 32(1)(e) and (3), referred to.

Representation

Director Of Public Prosecutions R:
Counsel: MR J PEARCE - Solicitors: CROWN SOLICITORS OFFICE

Accused RASIM KASUMOVIC:
Counsel: MR D PEEK - Solicitors: JON LISTER

Accused MOHAMMED KIDDEH:
Counsel: MR W BOUCAUT - Solicitors: ARMOUR &; ALLEN

DCCRM-96-1126

Judgment No. D3640

1 July 1997

(Criminal)

R v KASUMOVIC and KIDDEH

Criminal

Judge Kitchen

Reasons for Verdicts

The accused are jointly charged with possessing cannabis for sale contrary to section 32(1)(e) of the Controlled Substances Act 1984. The particulars of the charge are that they on 30th May, 1996 at Truro knowingly had cannabis a prohibited substance in their possession for the purpose of selling it.They elected for trial by Judge alone.

I do not propose to set out each and every relevant principle applicable to all criminal trials. If I fail to mention one it should not be assumed I have overlooked it.

Apart from the elements of the offence with which the accused are charged, it should be sufficient if I direct myself broadly by only mentioning such subject matters as the prescription of innocence, the standard of proof beyond reasonable doubt and the burden of proof resting with the Crown without any burden being on the accused to prove anything (except as to one matter to be mentioned in a moment) and the necessity for the Crown to exclude all rational explanations consistent with the innocence of the accused and reasonably open on the evidence.

I direct myself that the elements or ingredients of the offence charged against the accused which the Crown must prove beyond reasonable doubt if the particular accused is to be found guilty are:

ù That the material was cannabis

ù That cannabis is a prohibited substance under the ControlledSubstances Act

ù That the cannabis was knowingly in the possession of the particular accused that is in his physical control with an intention to exercise control over it.If a person does not know of the existence of a thing he cannot be in possession of it.

ù That the particular accused was aware the material was cannabis or at least is was a substance the possession of which was prohibited

Wherever in these Reasons I use the word "satisfied" I mean satisfied beyond reasonable doubt.

At about 12.36am on 30th May, 1996, a Toyota Tarago van was stopped in the main street of Truro by the police. It was being driven by the accused Kasumovic. The accused Kiddeh and three other male persons were passengers in the van. They were Emeldin Kasumovic, Edin Kasumovic and Basic Kasumovic.

Police officers, including Detective Sergeant R J Kelly, searched the van and found seven packages of green vegetable matter each contained in a white plastic shopping bag wrapped in plastic cling sheets, referred to in the trial as "glad wrap". Three of the packages were hidden behind an inside panel on the passenger side of the rear of the van and the other four packages were discovered similarly hidden on the driver's side of the rear of the van. The hiding places are shown in photographs 3 to 6 of Exhibit P4.Exhibit P4, photos 7 and 8, show the seven packages laid out on the floor after they were removed from the van. Each package was placed in a separate plastic bag by Detective Sergeant Kelly which he individually marked with one of the series "RJK1" to "RJK7" inclusive.Kelly said (in cross-examination) that the panels behind which the packages were found were held by a "couple" of clips which were easily removed so that access could be gained to the area behind the panels.

I am satisfied beyond reasonable doubt from Exhibit P33 the certificate of Gregory Webber an analyst appointed under the Controlled Substances Act ("the Act"), that the seven packages contained a total of 3.1555 kilograms of female cannabis plant material. The accused, by their respective counsel, admitted that cannabis is a prohibited substance within the meaning of the Act.

By section 32(3) of the Act a person who knowingly has in his possession more than 100 grams of cannabis is deemed in the absence of proof to the contrary to have that cannabis in his possession for the purpose of the sale or supply of it to another person. Proof to the contrary is upon the balance of probabilities.

The van had been hired by Delta Car and Truck Rentals ("Delta"), West Terrace, Adelaide, to a person whom Gavin Sheahan, the State Manager of that business, identified as and I am satisfied was the accused Kasumovic who signed the hiring agreement (Exhibit P3) at about 1.45pm on 29th May, 1996 and took possession of the van.

Sheahan, over the objection of the accused, gave evidence of an earlier occasion on 11th May, 1996, when the accused Kasumovic with Kiddeh, Constantinos Gounas and a fourth un-named person attended at the premises of Delta and Kiddeh hired from Delta a Toyota Tarago van to be used to go to Sydney and return. On that occasion the accused Kiddeh was described in the rental agreement (Exhibit P1) as the "renter/driver". The accused Kasumovic was described as an additional driver and so was Gounas. Sheahan identified the accused Kiddeh as the person who signed the agreement P1 and who telephoned him on 18 May 1996 to ask whether he might return the van the following day because he was tired, then returned it to Delta on 19 May 1996. The van had travelled some 6,000 kilometres.After Kiddeh was arrested on 30 May 1996, police searched his house and found a receipt for the purchase of petrol on 17 May 1996 at Gumly Gumly in New South Wales.

Sheahan said that on 28th May, 1996, he received a telephone call at his place of work with Delta. The caller identified himself as "Ray", the forename, Sheahan said, which the accused Kasumovic had used on the occasion of the previous hiring on the 11th May, 1996. Sheahan said that Ray told him he wanted to hire a vehicle, a Tarago, beginning the next day.At about 12 noon Kasumovic arrived at Delta in company with three other persons one of whom had been with Kasumovic on the prior occasion, but whose name he did not know. Sheahan saidhe had not previously meet either of the other two, a male of Asian appearance and a female, but the female was identified to him, by Kasumovic I think, as Kasumovic's sister. Sheahan said he told Kasumovic he would telephone him, at a number given to him by Kasumovic, to inform him when the vehicle was ready. He intended to provide the same vehicle which had previously been hired, but that was not returned in time so he had to obtain a Tarago van from another rental business which he went to collect on 29th May and brought back to Delta's premises. He said that van had been "detailed" that is it was in a clean and tidy condition. On returning to Delta's premises with the van, the van was searched internally by Constable Williamson who in evidence said he did not look behind the inside panels where the packages of cannabis were subsequently found. Constable Williamson had been alerted to the proposed hiring.

Sheahan related that after Williamson had searched the van Sheahan telephoned the number Kasumovic had given him, the same four persons came to Delta's premises about an hour later and the hiring agreement, Exhibit P3, was made out and signed by Kasumovic, an imprint of Kasumovic's sister's credit card being used as the security for the hiring. Sheahan said he was told that the same persons who had been authorised to drive the van hired on the previous occasion, may also drive this time so he did not bother to complete that section of the hiring agreement. He also said he was told (by Kasumovic he thought) that the van would be used locally and be taken to Sydney or Melbourne. There is some uncertainty in his evidence about where the van would be used - on Exhibit P3 he wrote "Sydney" - but I do not think that it is of any moment; I am satisfied that Sydney was mentioned.

It is clear that the police had become interested in the movements of Kasumovic at least. Sheahan said, that on the return of the van rented on the earlier occasion, it had been made available by him to be searched by police, a police officer had searched it, and as I have related the van to be used for the second hiring was searched.Further a surveillance group of six police officers had been assigned to watch the movements of the van which Kasumovic (as I am satisfied) drove from Delta's premises at about 1.47pm on 29th May, 1996. Several of those officers gave evidence. Also Exhibit P8 was admitted by both accused, pursuant to the Evidence Act, as recording in a summary way the evidence of the observations made by the surveillance team members which they would have given if called. Each observation includes the time it was made. The schedule covers the period from 12.55pm on 29th May, 1996, when as I infer Sheahan returned to Delta's premises with the van he had obtained from another hirer of vehicles, until 12.36am on 30th May, 1996, when the van was stopped by police at Truro and searched.

It is apparent from Exhibit P8 that on three occasions the surveillance team lost sight of the van, for 4 minutes at about 2.34pm in the suburb of Kilkenny, for 52 minutes at about 7.57pm after it left 41 Cedar Avenue, West Croydon until it returned there at about 8.49pm and for 5 minutes at about 9.21pm in the suburb of Brooklyn Park.Also, when the van was followed as it travelled from 41 Cedar Avenue, West Croydon, beginning at about 11.37pm, to the point where it was stopped by police at 12.36am in Truro observations of it in the course of that journey were intermittent.

The house premises at 41 Cedar Avenue, West Croydon, the address from and to which the van was seen to travel on many occasions, is the address appearing on Kasumovic's driver's licence and is that where Kasumovic told Detective Sheldon he resided. Except that he gave his personal particulars to the police after his arrest and said "You explained to me about some drugs I don't know anything about and that's it" and "but how can I be charged with something I didn't even know about" Kasumovic declined, as was his right, to answer further questions. Kiddeh also declined to answer any questions. I remind myself that no inference of guilt can be drawn from the exercise of the right by an accused person to refuse to answer questions put to him by a police officer.

None of the members of the surveillance team who were called to give evidence purported to identify either accused as the driver or a passenger in the van on the occasion of their observations of it during the course of 29th May, 1996. Each of them described one or more male persons being aboard the van when it was mobile or next to it at the time it was seen at some of the premises it went to in the suburbs of Adelaide.

Detective Sergeant Bor was the surveillance team member who made what I think was the most extensive single observation of the van. He was positioned in the grounds of the school across the road from 41 Cedar Avenue and, as he estimated, about 75 paces from the gates at the driveway into those premises. He said he saw the van arrive in Cedar Avenue and reverse into the driveway to a position near the front of the house, four or five persons alighted and one of them closed the gate. It was about 11.06pm. He described the light as poor and all he could make out was the "shadowy figures" of persons who over the following minutes moved between the house and the van, the light on the verandah of the house being put on and then off once or twice. He said he could not see if any of them was carrying anything. He said he then saw the van reverse further into the driveway to a position (he said in cross-examination) about three or four car lengths distant from the driveway gates, some 16 metres. He continued to watch and saw the light of a torch at the rear of the van "flashing around the place" and heard voices. He said he then "heard some banging noises. This torchlight and the banging noises intermittently went on over 10 or 15 minutes", the noises "happened two or three times and when it did it was clearly audible ......... but not loud ........... it was a muffled sound not a metallic sound .......... it was consistent with say perhaps a mallet or fist being struck against the body work of the car" (p 196). He said he was able to see, very briefly, the silhouettes of persons at the rear of the van, but not how many there were. He related that nothing happened for a while then "people came out of the house. They loaded into the van. The gates were opened, it moved forward, and sounded the warning device twice and then drove off along Cedar Avenue and along South Road and out of my view" (p 197). From Exhibit P33 it was 11.37pm. The van had been in the driveway for a little more than 30 minutes.

After his preliminary search of the van at Truro Detective Sergeant Kelly drove it to the Elizabeth CIB. There it was more thoroughly searched and the cannabis packages were removed and photographed (Exhibit P4) and marked. In the course of his search he found in the console of the van a facsimile addressed to "Con Gounas. Security/escort" from "George Said Promotions" dated 29th May, 1996 timed at 1800 and indicated to be "Urgent". It is Exhibit P26. The text is:

"Dear Con,

As per our phone conversation it is with my pleasure that I invite your counterparts to visit my office in Sydney this week in relation to them gaining full time employment with our company.

I will discuss the job offer with them in person upon their arrival.

Could they please contact me on 018 279 959.

With regards

George S."

Several items which were in the van when it was stopped in Truro were removed during the course of the search at Elizabeth. They included drums, cymbals, music stands and a number of bags. They are shown in the video film RK27. Detective Patterson said he moved drums aside to access the side panels behind which the packages of cannabis were hidden.

Following his search of the van Kelly went with other police officers to 41 Cedar Avenue, arriving at 5.30am on 30th May, 1996. He said there were four persons there, two males, both dressed, one of whom was elderly and the other in his 20s and two females, the older of whom he thought was in night attire. A search of the premises was made. In a wheeled dust bin six cartons (RJK 10) containing rolls on some of which there was unused gladwrap were seized. They and the bin containing them are shown in photographs 10, 11 and 12 of Exhibit P4. In the drawer of a cupboard in the garage and on the floor of a lean-to behind the garage quantities of green vegetable matter were found which Kelly put in bags marked RJK11 and RJK12 respectively. On a table in the garage there was green vegetable matter which Kelly said was like that in the lean-to and green vegetable matter was also found in an old clothes drier - Kelly said that green vegetable matter looked "drier" than the other similar material he found.

The certificate Exhibit P33 of Mr Webber identifies the contents of RJK11 and RJK12 to be, and I am satisfied it is, cannabis leaf material the first weighing 4 grams, the second 157 grams. Photograph 14 and 15 of Exhibit P4 show the places where that cannabis was found by Kelly.

The remnant rolls of gladwrap (RJK10) as I am satisfied were ultimately received by Detective Sergeant Van Dijk. He has made a career in the police force since 1971 in comparative analysis of tool marks and footprints, and physical matching that is to say pattern recognition between two objects. He is the supervisor of the Central Crime Scene Section of the South Australian Police Department.

Van Dijk's evidence is that he and an assistant, Senior Constable Reynolds, on 3rd June 1996, carried out a task which involved removing the gladwrap from each of the packages RJK1 to RJK7. On 20th June 1996 they removed the remnants of gladwrap on the cardboard cylinders in four of the six gladwrap cartons RJK10; he said the cylinders in the other two gladwrap cartons did not have any gladwrap remaining on them. He described that each of the packages, RJK1 to RJK7, had a number of sheets of gladwrap of different lengths wound around a "sausage" of cannabis contained in a white plastic shopping bag. The number of sheets varied from package to package, some had only two sheets (RJK5 and RJK6) and another one (RJK2) had seven sheets. His evidence is that each sheet as he observed had two "ends" which had been either cut or torn. He cut off those ends and placed each of them on a separate piece of acetate sheeting, marking the ends to indicate from which package it had been removed. He said that, what I will describe as, the leading edge of the gladwrap on the cardboard cylinder in the cartons RJK10 was then cut off and each of them was placed on a separate sheet of acetate.

Each of the acetate sheets holding the sections of gladwrap placed on them in the manner Van Dijk had described was produced by him to the court.

It seems the Crown had originally intended to call Reynolds to give evidence about what was done to obtain the various pieces of gladwrap and mount them on acetate so that observations could be made as to which if any of them "matched" another.Reynolds, as counsel for both accused accepted, became indisposed by illness and was not able to attend to give evidence.Van Dijk was therefore called and gave evidence with reference, inter alia, to Reynolds'notes, some of which were made at the time he and Reynolds carried out the task and were contemporaneously read and approved by him as accurate, but others of which were made later by Reynolds.Van Dijk was questioned at length on the voir dire about his memory of what was done and the extent to which his evidence might rely entirely on Reynolds' notes.He said that about two weeks before trial he went through the process of identifying the various items in Exhibit RJK1 to RJK7 and RJK10 and the 'ends' recovered from them to equip himself to give evidence.Having reviewed the evidence on the voir dire I am satisfied that Van Dijk's evidence of what was done, and by what means, to produce the physical object, the acetate sheets holding sections of gladwrap and which he identified, can be accepted by me without any doubt that what he produced in evidence was obtained and assembled from the gladwrap on the packages RJK 1 to RJK 7 and the remaining gladwrap in the cartons RJK 10 in the manner he described.

I do not propose to canvass fully Van Dijk's evidence as to each individual step that was taken by him and Reynolds to assemble the object and the enlarged photograph he produced to the court.

Van Dijk described that the gladwrap around the packages RJK 1 - RJK 7 was carefully removed and carefully smoothed so as to reveal as closely as possible the sides or edges which had been severed in some fashion from the continuous sheet of which it had once formed part.

Van Dijk identified Exhibit P18 to be the end of one of the remnant gladwrap pieces in RJK 10 and Exhibit P19 to be an end of one of the sheets of gladwrap around the package of cannabis RJK 7.He pointed to the shape of the ends and what he identified as the similarity, the "match" as he termed it between those ends.He also produced what he identified to be an enlarged photograph of those exhibits which I received (Exhibit P24) as an aid to more easily see what can be discerned by eye from looking at Exhibit P18 and P19.He also produced to the court "ends" from a sheet of gladwrap on package RJK 2 (Exhibit P21) and from the remnant gladwrap on one of the rolls in RJK 10 (Exhibit P22) together with Exhibit P23, a photograph of those ends in juxtaposition.

Van Dijk did not represent that he had any special expertise to express an opinion that the gladwrap ends had once been part of the same sheet of gladwrap.His expertise I accept lay in the assembling of the ends in the manner he described so that any observer could reach a conclusion on that matter.Having inspected the exhibitsP18 and P19 and P21 and P22 I am satisfied that the similarity, the "fit" as I will term it, between those ends is such that applying my own powers of observation I can conclude they could have formed part of the same sheet, and bringing the other evidence, the finding of the numerous gladwrap containers and other quantities of cannabis at 41 Cedar Avenue, to account I find to the exclusion of any other reasonable possibility on the evidence I have heard that the cannabis was wrapped in gladwrap taken from one or more of the gladwrap containers found at 41 Cedar Avenue.I am also satisfied that the cannabis packages were assembled at Cedar Avenue.

I dismiss it as being even possible, let alone reasonably possible, that the seven packages of cannabis, or any of them, had been placed in the van before Kasumovic took possession of it on 29th May 1996.

The Crown's case is that each of the accused knew that cannabis was in the van and that each of them had possession of it.

I am satisfied that Kasumovic had possession of the van.It was hired to him and he was authorised by Delta to permit others to drive it, those others being the persons whom he named by reference to the earlier hiring.But possession of the van does not mean that he had possession of everything in it - I must be satisfied that he knew the cannabis was in the van and he intended to exercise control over it.I must reach the same state of certainty concerning the accused Kiddeh.

Neither accused gave evidence but Kasumovic called Amanda Rologas as part of his case.Rologas said that since February 1997 she has been a student at Melbourne University studying for an Arts and Law Degree but in 1996 she was studying for similar degrees at Flinders University and living at Davenport Terrace, Wayville where Kasumovic, who was her boyfriend and whom she had known for two and a half years, frequently visited her.She said she also frequently went to and occasionally stayed overnight at 41 Cedar Avenue where Kasumovic lived with his parents, three brothers including Edin Kasumovic and a sister. She said she often saw Becin Kasumovic and Emeldin Kasumovic, both cousins of the accused Kasumovic, at Cedar Avenue who would also stay overnight on occasions.

The land and premises at 41 Cedar Avenue are owned by Bajram Kasumovic and Zinetta Kasumovic (Ex RK35) the parents of the accused Kasumovic.

Rologas' evidence is that Kasumovic telephoned her, told her he had been arrested on his way to Sydney and came to see her at her house later the same day.She says that she had last seen Kasumovic the day before the phone call when he came to her house where she had arrived at about 4.30 p.m. from Flinders University after finishing a tutorial at about 4 p.m.She said she and Kasumovic were together in her house watching television and having something to eat and during the evening he asked if she would like to accompany him on a trip to Sydney that night but she declined because she had examinations "coming up".She said Kasumovic left her house at about 10.30 - 11 p.m.By reference to her diary she deposed that the day Kasumovic had come to her house and he asked her to accompany him to Sydney was 29th May 1996.She said she remembered the occasion because the following day Kasumovic had telephoned her and informed her he had been arrested on his way to Sydney.

Rologas was cross-examined at length.She produced and identified (Exhibit P36) a note she said she had made before going to the tutorial on 29th May and on which shesaid she had made a further note during the course of the tutorial.She said the note confirmed her memory that she had in fact attended her tutorial on the date the note bears, 29th May, and the tutorial had followed a number of lectures she had also attended that day at the University.

Her evidence is that Kasumovic told her he was going to Sydney with two of his cousins and a brother "for some sort of family get together, celebration type gathering" and although she did not know, she expected he would be away for a few days.She said that she and Kasumovic saw or were in contact with each other practically every day during this period and if he had gone away for about a week between 11th and 18th May 1996 and was in New South Wales on 17th May 1996 she should, or would, have been aware of it, but her only memory of Kasumovic being away was to go on a fishing trip although she could not remember when that was.

After his arrest Kasumovic was found in possession of a number of documents. They included bank deposit or ATM withdrawal slips, and receipts for petrol purchases, for transactions conducted in various places in New South Wales in the period between 13th May and 18th May 1996 and a traffic infringement notice, in Kasumovic's name recording his address and licence number, issued by the New South Wales Police Department on 17th May 1996 for the alleged offence of "exceed speed radar... upon Sturt H/w Sandigo".

Rologas accepted that she is close to Kasumovic's family and she "supposed" protective of them.She denied she was lying in her evidence about the events of 29th May 1996.She maintained that Kasumovic was in her company between about 4.30 p.m. and 10.30 p.m. to 11 p.m. in the evening of 29th May 1996 when he left, as she assumed although by what means she did not know, to go to Cedar Avenue which she said was about 20 minutes drive from her house at Wayville.I have reviewed her evidence against my own impression and assessment of her when she gave evidence.I see no reason to find she was deliberately untruthful in what she told the court and there is nothing to indicate she was mistaken in her memory that the events she related occurred on 29th May 1996.I therefore have credible evidence that the accused Kasumovic was not the person who drove, or one of the passengers who was present in, the van on the occasions it was observed as set out in P8, between the times, or approximately the times Rologas said Kasumovic was with her.

The effect of Bor's evidence I find is that he took up his position in the school opposite 41 Cedar Avenue shortly before 11.06 p.m.Kasumovic could have arrived at Cedar Avenue from Goodwood before Bor took up his position.I do not think it is possible from exhibit P8 that Kasumovic could have joined those in the van before Bor saw it arrive at Cedar Avenue.

After the van left Cedar Avenue at about 11.37 p.m. observations of it by Bor and others were intermittent but from all the evidence I am satisfied it is not reasonably possible that Kasumovic got into the van when it was en route from Cedar Avenue to Truro.It was submitted by Kasumovic's counsel that Kasumovic could have gone to Cedar Avenue unseen by Bor, perhaps entering in some way from the rear and out of sight of Bor.There is nothing in the evidence to suggest that is a possibility.

I find that Kasumovic was present at Cedar Avenue throughout the period of time Bor had those premises under his observation, and so were each of the persons, including the accused Kiddeh, who were in the van when it was stopped in Truro by the police.The van was observed at 10.47 p.m. to go to the group of flats at Grange Road where Kiddeh lived.I findthat is when Kiddeh first entered the van and he was then taken to Cedar Avenue.

During the course of his evidence Detective Jeffries spoke of seeing the van go to a BP garage on Port Road at West Croydon at 5.22 p.m.He said he saw a tall male alight from the van and go into the garage.He identified him to be one of thepersons sitting in the public gallery of the courtroom.That person returned to the van, got in and the van drove away.Geoffreys said there were a number of other persons in the van whom, from seeing them later alight from the van at other places, he described as being dark haired males of ethnic appearance, smaller than the man he had identified to be sitting in the court. In other observations that evening and at other places to which the van went he said hesaw the same males in or around the van.

The Crown submitted that the only inference to the exclusion of any other hypothesis reasonably open on the evidence is that the 7 packages of cannabis were made up at 41 Cedar Avenue and that it was placed in the van in the period of time Bor was watching that address and saw persons moving between the van and the house and at the rear of the van, the noises he heard being consistent with items like drums being placed in the van or the side panels being detached and reattached.The Crown urged that it would be inconceivable that the cannabis would be placed in the van at some other time or some other place and then the van be driven to various places in the course of the day carrying cannabis.

The Crown was critical of the evidence given by Rologas focussing particularly on her claimed ignorance of Kasumovic being away for a week earlier in May 1996.On the view I take of her evidence it is reasonably possible that Kasumovic was at Rologas's house with her between the hours she stated, but as I have already found that does not place him away from Cedar Avenue between 11.06 p.m. and 11.37 p.m.;I think the only reasonable inference is that he was there in that period of approximately half an hour and so was Kiddeh.

The Crown relied on the evidence pointing to these accused having travelled to Sydney, or at least into New South Wales on a trip that accounted for a journey of up to 6,000 kilometres, in the van hired on the earlier occasion.I find that was the case, beyond reasonable doubt, from the inference to be drawn from Kiddeh's possession of a receipt for petrol purchased at Gumley Gumley on 17th May 1996 and Kasumovic's possession of a traffic violation citation in his name on the same date for an offence in New South Wales.The Crown urged that to journey again to or to the area of Sydney within the space of 3 weeks made the conclusion that the accused were knowingly in possession of the cannabis found on 30th May inescapable, when combined with, first, their presence at Cedar Avenue when the van was, as the Crown submitted, being loaded and, second, their presence in the van when it was stopped in Truro.

Mr Peek for Kasumovic pointed to the several occasions in Exhibit P8 when the van was seen to go to other premises as well as Cedar Avenue in the suburbs of Adelaide and remain there for significant periods of time and also the periods I have already mentioned when the members of the surveillance team lost sight of the van, on one occasion for 52 minutes, submittingtherefore thatthe evidence is not only did the van go to Cedar Avenue on several occasions before 11.06 p.m. but also to other places at any one of which the cannabis could have been placed in the van.I have considered those submissions but find that the only reasonable and rational hypothesis is that the cannabis was placed in the van at Cedar Avenue - my finding that the 7 packages were assembled at Cedar Avenue makes the possibility that it was placed in the van at some other place so unlikely as to be not reasonably possible.

In its several journeys from Cedar Avenue to other places and return no evidence was led topositively identify that the accused or either of them were in the van.As to Kasumovic there is credible evidence, from Rologas, that for several hours he was with her at her house in Wayville and as to Kiddeh there is evidence in the Crown's case from which it can be inferred that he got into the van at 10.47 p.m. and the van then went to Cedar Avenue via an address in Hardy Street, Findon.

Counsel for both accused submitted that were I to be satisfied, as I am, that the cannabis was packaged at Cedar Avenue there is no evidence as to when that was done.It could have been packaged at a time when neither of these accused were present and if that is allowed as a reasonable possibility then I must be satisfied that it was done with the knowledge of the particular accused or at least it was put into the van with that accused's knowledge.

I am satisfied that Kasumovic and Kiddeh travelled to places in New South Wales in the van hired on the previous occasion.The Crown submits that a second journey to New South Wales two or three weeks after the first is a fact which the court can have regard to and so identify the purpose of the second trip as being the knowing carrying of cannabis.However, there is evidence, of varying weight, indicating a purpose or purposes for the second trip namely;the, admittedly self serving, explanation Kasumovic gave to Rologas, the presence in the van of items of musical equipment and the facsimile from Said to Gounas. Each of those, of course, may have been a contrived reason to conceal the true purpose but absent any evidence of cannabis being involved in the first trip there is nothing to link the illegal purpose someone had as a reason for the journey begun on 29th Maywith the journey in the period 11th to 18th May. The connecting factors are the identity of those who travelled on both occasions and the destination which, although exciting curiosity and perhaps suspicion do not indisputably point to an illegal purpose for both trips.

TheCrown referred to Weissensteiner v R (1993) 117 ALR 445 submitting that this was a case where the failure of the particularaccused to give evidence of facts peculiarly within that accused's knowledge would lead the court to more readily draw from the proved facts the inference that that accused knowingly had possession of the cannabis and for the prohibited purpose.The Crown referred also to R v Tsentidis & Ors.(CAA (SA) Judgment No S.4486 delivered 3rd March 1994 unreported).

The accused Rasim Kasumovic denied to Detective May any knowledge of cannabis being in the van (using the words I have set out earlier in these reasons) and he called Rologas.The accused Kiddeh neither gave nor called evidence on his own behalf.

Mr Peek submitted that apart from any other reason the accused Kasumovic may have had to not give evidence, on the evidence in the Crown case other members of his family are at least implicated in the packaging or the transportation of the cannabis and that is reason enough for Kasumovic to have chosen not to give evidence for fear of further implicating other family members.

I have canvassed the Crown's evidence on the important issues as I see them to make findings of fact or to identify alternative reasonable hypotheses inconsistent with the guilt of the particular accused.I do not think this is an appropriate case in which to direct myself in the manner of Weissensteiner buteven if I am in error on that point, in my view the conclusion I reach as to the Crown's case against each accused would have been no different.The Crown's case on the crucial issue of possession and knowledge leaves open a number of alternative reasonable hypotheses inconsistent with the guilt of the particular accused, and despite the suspicion which the Crown's case arouses that is quite different from being left with hypotheses "consistent with innocence (which) may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused".(Weissensteiner per Mason CJ, Dean and Dawson JJ at p. 552).

Other persons lived, or on the evidence of Rologas frequently visited or stayed, at Cedar Avenue including three of those who were travelling as passengers in the van when it was stopped by police in Truro, namely Becin Kasumovic, Emeldin Kasumovic and Edin Kasumovic.

I have no evidence, and probably there could be no evidence, as to how long it would take to make up the 7 packages of cannabis found by the police.I am prepared to use my common sense and conclude that it might be done in the space of as little as half an hour so it is conceivable the packaging was carried out immediately prior to the van leaving Cedar Avenue at 11.37 p.m. but that is not the only hypothesis as to when it might have been done and no particular period on 29th May, or indeed any earlier day, can be found to be more certainly the case than another.Therefore I cannot find beyond reasonable doubt that the accused or either of them took part in or were present when the packaging was done.

On the evidence, the placing of the packages in the place they were found in the vanwould have been but a moments work to unclip a side panel, deposit several packages in the space behind and reclip the panel.That could have been done by the accused, or one of them, or with their knowledge.It could have been accomplished by any other of those who were present and without the knowledge of the accused or either of them.Were I to have been satisfied that a particular accused was with the van throughout 29th May the inference could have been drawn that that accused could not but have known that the packages had been placed in it, and the means by which it was hidden would have been strong evidence that the accused knew it was an illegal substance.However, there is evidence that for a period of many hours neither Kasumovic nor Kiddeh were with the van or at Cedar Avenue and during that period it was in the possession of others and on several occasions it was parked in the driveway of Cedar Avenue for periods approaching up to one hour (for example from 8.57 p.m. to 9.40 p.m.)That, in combination with the other reasonable hypotheses open on the evidence is sufficient to raise in my mind a reasonable doubt that the accused or either of them knowingly had possession of the cannabis packages found in the van.

I return a verdict of not guilty on the charge against each accused.