R v Kola - [2004] SADC 140

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KOLA
Criminal Trial by Judge Alone
Reasons for the Verdict of His Honour Judge Millsteed
14 October 2004
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION
Defendant charged with possessing cannabis for sale - election for trial by judge alone - prior conviction for an offence of possessing cannabis for sale - permissible use of evidence relating to earlier charge - whether defendant continued to possess cannabis for the purpose of sale - issue of commerciality.
Ruling: Not established that the defendant had possessed the cannabis for sale. Defendant had abandoned his intention to sell the cannabis.
Controlled Substances Act 1984 ss 32(1)(e), 32(3); Juries Act 1927 s 7(1)(a); Juries Rules 1996 Rules 8 & 16; Controlled Substances (Prohibited Substances) Regulations 2000 Regulation 6 & Schedule 2, referred to.
R v Corrigan (1999) 74 SASR 454; R v Machin (No. 2) (1997) 69 SASR 403; R v Hoang (2002) 83 SASR 254; McDermott v R (1987) 45 SASR 335; R v Dossi (1918) 13 Cr App R 158; R v Pfitzner (1976) 15 SASR 171; R v MacDonald (1995) 65 SASR 322; R v Winning S6511 delivered 24/12/97; Pfennig v The Queen (1995) 182 CLR 461; R v Palaga (2001) 80 SASR 19; R v Long & McDonnell [2002] SASC 426, considered.

R v KOLA
[2004] SADC 140
Judge Millsteed
Criminal
Introduction

The accused, Alfred Kola, is charged with possessing cannabis for sale contrary to s32 (1)(e) of the Controlled Substances Act (CSA). The particulars of the offence are that on 3 March 2002 at Paralowie, the accused knowingly had cannabis, a prohibited substance, in his possession for the purpose of selling it to another person. The particulars further allege that the amount of cannabis exceeded two kilograms.
By notice dated 28 July 2004, the accused elected, pursuant to s7(1)(a) of the Juries Act1927, to be tried by judge alone. He failed to make the election before he was first arraigned in this Court, on 15 July 2002, as required by Rule 8 of the Juries Rules 1996. Before the commencement of the trial Mr Moffa, counsel for the accused, submitted that I should invoke Rule 16 of the Juries Rules and dispense with compliance with Rule 8. The application was supported by Ms Sutcliffe, counsel for the prosecution. I was informed by counsel that the issues to be canvassed at trial would require evidence to be adduced of the accused’s prior conviction for an offence of possessing cannabis for sale. In the light of that information, I was satisfied that it would be unjust not to grant the dispensation sought. Accordingly, I made an order that the trial proceed before me sitting without a jury. That trial has now taken place.
Prosecution Case
Cannabis found in the accused’s home
On 3 March 2002 police went to the accused’s home at 21 Young Boulevard Paralowie. The accused was at home when they arrived. Two sheds in the backyard were found to contain equipment suitable for the hydroponic cultivation of cannabis plants. A large shed was lined with plastic and fitted with an exhaust fan and ventilation ducts. Lights with large shades were suspended from the ceiling. Electrical equipment including 12 transformers, extension cords and two pedestal fans (suitable for drying cannabis) were stacked together near the rear wall of the shed. Inside a small garden shed the police located two large light shades, a transformer, part of a ventilation duct and plant nutrients.
On searching the house the police found items that could be used in connection with the hydroponic cultivation, weighing and packaging of cannabis. In particular a machine for heat-sealing plastic bags, a number of electrical timers and cubes of fibrous material (designed to facilitate the cultivation of plants from seeds) were found in a spare bedroom. In addition, a number of clear plastic bags were found in a drawer in a bedroom occupied by the accused’s brother. This room was marked “bedroom 1” on the floor plan of the house, Exhibit P2. No relevant items were located in the main bedroom in which the accused and his wife slept. The police also found a set of digital scales in a linen press in the hallway.
The cannabis that is the subject of the charge was found in the roof of the house inside a large plastic garbage bag. The bag was positioned near a manhole in the laundry ceiling. The cannabis was dry and weighed 6442.5 grams. Its street value was about $35,000 to $50,000 if sold in quantities weighing one pound (454grams). The cannabis was worth considerably more if sold in smaller amounts. The cannabis was examined later by Mr Gregory Webber a forensic botanist. He was unable to determine the age of the cannabis and could not discount the possibility that the cannabis had been in the roof for the previous 18-24 months.
Just before the bag was discovered the accused informed police that there was cannabis in the roof. He remarked that the cannabis had been there for a long time and that he had “told them [about it] in the court”. These comments were a reference to evidence that the accused had given in an earlier trial in relation to another charge of possessing cannabis for sale. The accused was arrested in relation to that charge on 25 August 2000. He pleaded not guilty and was tried by a jury in the District Court in December 2001 (hereinafter referred to as the first trial). He was convicted. On 18 February 2002 he was sentenced to three years imprisonment with a non-parole period of two years. His sentence was suspended upon him entering into a bond to be of good behaviour for two years.
Prosecution put on notice as to the contentious issues
Before the commencement of the present trial the accused’s legal representatives informed the prosecution that it was the defence case that the cannabis found in the roof had been there since before the accused’s arrest on 25 August 2000 in relation to the earlier matter, that the police failed to find the cannabis when they searched his home on that day and that he never possessed an intention to sell the substance. The prosecution challenged each of these assertions. The prosecution contended that the cannabis found in the roof had been harvested from plants cultivated by the accused after 25 August 2000 and that he intended to sell it.
Evidence relating to earlier charge
The prosecution and the defence agreed that the events that took place on 25 August 2000 were relevant to the issues in this trial. As a result, evidence of those events was tendered as part of the prosecutions case. The evidence comprised oral testimony from police witnesses and a set of agreed facts. Later in my reasons I discuss the manner in which the evidence could properly be used. The following is a summary of the non-contentious aspects of the evidence.
On the evening of 25 August 2000 the accused was driving a motor vehicle that was stopped and searched by police at a random breath testing station. Twelve plastic bags containing cannabis were found in two suitcases inside the vehicle. The total weight of the cannabis was 5295 grams.
Later that night Detective David Clohessy, Sergeant David Kirk and Constable Mark Webber searched the accused’s home in the presence of the accused. Upon entering the house Kirk could smell cannabis and asked the accused if there was cannabis on the premises. The accused admitted that there was cannabis in the house but claimed that he did not know where it was located. He said the cannabis was for his personal use.
A subsequent search of the house revealed that “bedroom 1” and the large shed in the backyard had been devoted to the hydroponic cultivation of cannabis. The bedroom (which was not occupied by the accused’s brother at the time) was equipped with ventilation ducts and lights with large shades suspended from the ceiling. The floor and windows in the room were covered with white plastic. Fragments of cannabis were scattered on the floor.
The large shed was set up in a similar manner. The shed was lined with white plastic and equipped with an exhaust fan, ventilation ducts and lights identical to those found inside the house. It was not in dispute that the equipment found in the large shed and “bedroom 1” was the same equipment located by police on 3 March 2002. In addition, fragments of cannabis were found on the floor of the shed and in a cardboard box located near the carport. The results of the search indicated that cannabis plants had been recently grown and harvested in the large shed and “bedroom 1”.
In the course of searching the premises the police inspected the roof cavity but failed to find anything relevant to their investigation.
The accused was arrested and charged with possessing cannabis for sale. The charge related to the cannabis found in the motor vehicle. He was not charged with any offence relating to the production or cultivation of cannabis and the police allowed him to keep the hydroponic equipment found on his property.
Evidence from first trial
As part of its case the prosecution also tendered transcript of segments of evidence given by the accused at the first trial. Counsel for the accused objected to the tender. He asserted that the evidence was inadmissible unless the accused gave evidence in the present trial inconsistent with his previous testimony. I rejected that submission. Evidence given by an accused at an earlier trial is admissible on the same basis as any other out of court statement made by an accused and can be presented by the prosecution as part of its case: see for example, R v Corrigan (1998) 74 SASR 454; R v Machin (No2) (1997) 69 SASR 403. The test of admissibility is relevance. In the present case the accused’s evidence from the first trial was, as defence counsel conceded, relevant to an evaluation of the accused’s claim that the cannabis found on 3 March 2002 had been in the roof since before 25 August 2000. It was also relevant for other purposes that I will outline shortly.
The following is a summary of the accused’s evidence from the first trial that was put before me. The accused testified that he grew a total of five cannabis plants between about May and early August 2000. He said that he grew three plants in the large shed and two plants in “bedroom 1”. The plants were cultivated hydroponically using equipment that he purchased from Trash and Treasure for $2,200. He maintained that the plants were grown for his personal consumption and to share with his brother and friends. He denied possessing an intention to sell the cannabis.
The accused further testified that he harvested the plants a few weeks before the police attended his home on 25 August 2000. He said that he put a quantity of the harvested cannabis in a bag that he placed in the roof near the manhole and claimed that the police failed to find the bag when they searched his home. He said the bag of cannabis was about the size of a soccer ball. He said that the cannabis weighed approximately 250 grams. He said that the material found in the cardboard box near the carport consisted of cannabis that was unsuitable for smoking. No evidence was tendered of the accused’s explanation for the cannabis found in the motor vehicle.
Defence Case
In the present trial the accused gave evidence in his defence. His evidence was similar to the testimony he gave at the first trial. He reiterated that the cannabis found in the roof had been harvested from five plants that he had grown before his arrest on 25 August 2000. He said that he cultivated the plants hydroponically using the equipment found at his home. He maintained that the plants were grown for his own use. He testified that it was his habit to smoke less than one gram of cannabis in a pipe one to two times each day on weekends. In other words he would not use more than four grams per week.
The accused explained with greater specificity where he secreted the bag of cannabis in the roof. He said that he placed the bag behind an air conditioning duct near the manhole in the laundry. He maintained that the police failed to find the bag when they searched his home on 25 August 2000. The accused said that he abandoned the idea of smoking the cannabis after he was arrested on 25 August 2000. He said that he left the cannabis in the roof because he did not know what to do with it. As I understood his evidence, he was frightened that he would get into further trouble if he was caught trying to dispose of the drug.
The prosecutor put to the accused in cross-examination that he retained possession of the hydroponic equipment following his arrest on 25 August 2000 so that he could continue to grow cannabis. He denied this accusation and said that he had received advice from his lawyers prior to the first trial to leave the equipment on the property because “the court might come and have a look at it”.
Mr. John Ibbotson, counsel for the accused at the first trial, was called by the defence to give evidence on this topic. Mr. Ibbotson said that just prior to a voir dire hearing on 22 May 2001 he advised the accused to leave the equipment on the property so that he could inspect it. He also told the accused that he wanted the court to view the equipment on his property when the matter came on for trial. Mr Ibbotson repeated his advice later in the year before the trial commenced. He could not recall giving the accused any further advice on the matter after the trial was completed.
Directions on law
Elements of the offence
The elements of the offence of possessing cannabis for sale are as follows:
1.     That the substance in question was cannabis;
2.     That it was a prohibited substance under the CSA;
3.     That the accused was in possession of the cannabis in the sense that –
(a)the accused had physical control over the disposition of the substance;
(b)the accused knew that the substance was in his physical control; and
(c)the accused knew that the substance was a drug prohibited by law; and
4.That the accused’s possession of the cannabis was for the purpose of sale.
The defence acknowledged that the prosecution had proved the first three elements of the offence. I am satisfied that they have been proved beyond a reasonable doubt. The contentious issue was whether or not the drug was in the accused’s possession (on 3 March 2002) for the purpose of sale.
To establish that the accused intended to sell the drug, the prosecution relied upon the deeming provision contained in s32(3) of the CSA. That section provides that a person who knowingly has in their possession more than the prescribed amount of a prohibited substance will be assumed in the absence of proof to the contrary to possess the substance for the purpose of sale to another person.
The prescribed amount of cannabis for the purpose of this provision is 100 grams: Regulation 6 and Schedule 2 of the Controlled Substances (Prohibited Substances) Regulations 2000. In this case the accused was found in possession of more than the prescribed amount. Consequently he carried the onus of proving, on the balance of probabilities, that he did not intend to sell the cannabis found in his possession: R v Hoang (2002) 83 SASR 254.
As I have outlined the accused asserted that he never intended to sell the cannabis. Indeed he maintained that by the time the cannabis was found in his possession on 3 March 2002 he had abandoned his intention to smoke the substance because of his arrest and subsequent prosecution in relation to the earlier charge. If I am satisfied that his account in this respect is probably true then I must acquit him of the charged offence.
Prosecution Elect to be bound by Particulars of Offence
The particulars of the offence contained in the information specify the date of the offence as 3 March 2002. Before the close of the defence case I raised with counsel the question of whether the accused could be convicted of the charged offence if the accused had placed the cannabis in the roof before 25 August 2000 with the intention of selling it but had abandoned that intention by 3 March 2002.
I was informed by counsel for the accused that prior to trial the accused’s legal representatives requested the prosecution to particularise their allegations in relation to the date of the offence. They were advised that it was the prosecution’s case that the accused had acquired the cannabis after his arrest on 25 August 2000 and that he harboured an intention to sell the drug as at 3 March 2002. This was confirmed by counsel for the prosecution. Ms Sutcliffe explained that the prosecution did not rely upon the hypothesis that I had raised as an alternative basis for conviction and indicated that, for the purposes of this case, the particulars as to the date of the offence should be treated as binding.
The general rule is that the date of an offence specified in an information is not a material matter unless it is an essential element of the alleged offence: McDermott v R (1987) 45 SASR 335 at 337; R v Dossi (1918) 13 Cr App R 158. In the present case it could not be said that the date of the offence is an essential element of the charged offence. However, even if the specified date is not an element of the offence, considerations of fairness may dictate that the prosecution should be bound by the particulars as stated in the charge: R v Pfitzner (1976) 15 SASR 171; R v McDonald (1995) 65 SASR 322; R v Winning unreported Judgment CCA No. S6511 delivered 24 December 1997.
Here the prosecution did not argue against being bound by the particulars of the date of the offence. On the contrary I was asked to treat the particulars as binding. The prosecution sought a conviction only on the basis that the accused possessed an intention to sell the cannabis as at 3 March 2002. It was open to the prosecution to bind itself in that manner. Furthermore, the prosecution and defence cases were conducted from beginning to end on the footing that the accused had to meet that specific allegation. The alternative hypothesis was not canvassed in the evidence presented by the defence or the prosecution or in counsel’s addresses. Against that background it would be unfair, in my view, to treat the date of the offence alleged in the information as immaterial though it is not an essential element of the offence. Accordingly, I have approached the case on the basis that the accused cannot be found guilty of the charged offence if he possessed an intention to sell the cannabis before 3 March 2002 but had abandoned that intention by that date.
Permissible use of evidence relating to earlier charge
The finding of cannabis in the motor vehicle driven by the accused on 25 August 2000, the results of the search of his home conducted on that day and the evidence that he gave at the first trial, in relation to his involvement in cannabis, could not be used to show that he had a propensity or disposition to commit crime or that he was the sort of person likely to commit the crime charged: Pfennig v The Queen (1995) 182 CLR 461 at 480-481. Putting it another way the evidence could not be used to show that he was the sort of person likely to have grown or acquired another quantity of cannabis some months after his arrest on 25 August 2000.
The evidence in question was, however, relevant and admissible for purposes that did not involve propensity reasoning. In particular:
·The discovery of cannabis in the motor vehicle explained why the police attended and searched the accused home.
·The evidence given by the accused at the first trial and the evidence relating to the search of the accused’s home on 25 August 2000 were relevant to an evaluation of the accused’s claim that the cannabis was in the roof at that time.
·The equipment and cannabis found at the accused’s home on 25 August 2000 and the evidence he gave in relation to his use of that equipment established that he had the knowledge and means to grow the cannabis found in the roof (which the prosecution claimed occurred after the abovementioned date): see R v Palaga (2001) 80 SASR 19; Rv Long and McDonnell [2002] SASC 426. In the end this fact was not in dispute.
·The evidence given by the accused at the first trial also showed that he invested a considerable amount of money and effort in setting up the hydroponic operation. This was relevant to the question of whether the cannabis found in the roof was the product of a commercial operation.

I have used the evidence relating to the accused’s involvement in cannabis in 2000 only for the abovementioned purposes.
The contentious issues
I turn to consider in more detail the contentious issues in this case namely:
·Whether the cannabis had been in the roof since before 25 August 2000?
·Whether the accused intended to sell the cannabis?
·And if he did whether he had abandoned that intention by the time the cannabis was discovered on 3 March 2002?
When was the cannabis put in the roof?
The prosecution submitted that the evidence of the search conducted by police on 25 August 2000 refuted the accused’s claim that he placed the cannabis in the roof before that date. The evidence in question was given by Clohessy and Kirk.
Before I canvass their evidence it is necessary to explain the proximity of the manhole to the air-conditioning duct that the accused claimed he hid the bag of cannabis behind. The manhole was situated in the south-east corner of the laundry. The manhole was rectangular in shape and measured 54cms x 60cms The air-conditioning duct was circular in shape with a diameter of 12 inches or 30cms. The duct ran parallel to the eastern edge of the manhole and rested on the floor of the roof cavity. The duct was about 30cms from the eastern edge of the manhole. As I have said it was the accused’s evidence that he placed the bag of cannabis behind the duct. In other words the bag was positioned east of the duct.
It is also necessary to mention that during the search of the accused’s home Kirk recorded on a hand held tape recorder conversations that he had with the accused. The tape-recorder was left on while Clohessy inspected the roof. At about the time Clohessy finished his inspection Kirk turned off the tape recorder to switch the tape from one side to the other. He re-activated the tape recorder about 80-90 seconds later and then resumed his conversation with the accused.
It was not in dispute that Clohessy inspected the roof cavity. The defence, however, challenged the adequacy of his search. The evidence established that he conducted his inspection in the presence of Kirk, Webber and the accused. He stood on a chair that had been obtained for him by the accused and removed the manhole cover. While standing on the chair he looked inside the roof with the aid of a torch. He could not recall whether his eyes were above the level of the ceiling when he looked through the manhole. He said that he did not see anything other than roof beams.
In cross-examination he agreed that his inspection was brief and less than thorough. Furthermore it is clear that he must have had a very limited view of the roof cavity from his position on the chair. The audio-tape (Exhibit D14) discloses, that in the course of his inspection, Clohessy remarked “ can only see one side of this Kirky.” Clohessy could not recall his reasons for making those remarks but one obvious explanation is that his view of the eastern side of the roof cavity was obscured by the air-conditioning duct. This explanation, coupled with the cursory nature of his inspection, may account for his failure to have noticed the bag of cannabis, if it was positioned behind the air-conditioning duct as the accused contends. I am not prepared to rely upon Clohessy’s evidence as a basis for rejecting the accused’s claim that the cannabis was in the roof at that time.
Kirk gave evidence that he also inspected the roof. Clohessy could not remember whether Kirk did so or not. In examination in chief Kirk said that he stood on an item of furniture, which he believed was a chair, and removed the manhole cover. He then inspected the roof cavity with a torch. He claimed that he conducted a thorough inspection from his position on the chair. He denied that there was a bag in the roof at the time.
Counsel for the accused challenged Kirk’s credibility. He submitted that Kirk’s evidence of having inspected the roof was a complete fabrication designed to bolster the prosecution case that the bag of cannabis had been placed in the roof sometime after 25 August 2000. The allegation of fabrication was founded on the contents of the audio tape (Exhibit D14). Recorded on the tape are conversations between the three police officers and the accused that occurred immediately before and during Clohessy’s inspection of the roof. However, there are no recorded remarks consistent with Kirk having conducted such an examination.
I reject the contention that Kirk’s evidence on this topic was a fabrication. Kirk gave evidence at the first trial that he inspected the roof. This evidence was given before the alleged motive for fabrication arose. I find that Kirk inspected the roof after he switched off the tape recorder to change the tape from one side to the other. I find that his search may have been prompted by Clohessy’s inability to gain an unobstructed view of the roof cavity and that the tape-recorder may have been switched off and momentarily put down by Kirk so that he could conduct the search.
While I accept that Kirk inspected the roof I do not accept that it was a thorough examination. Indeed Kirk conceded that at the first trial he described his inspection as “cursory”. Furthermore, he gave evidence at the first trial that when he looked inside the roof his feet were raised off the chair and that he had to support himself by resting his elbows on the edges of the manhole. He conceded that it would have been more difficult for him to conduct an effective inspection while in that position.
In addition, I have reservations about the reliability of Kirk’s memory. For example, in examination in chief he mistakenly believed that he removed the manhole cover and that he was the only person to inspect the roof. It was only after the audio-tape (Exhibit D14) was played to Kirk in cross-examination that he realised that his inspection must have taken place after an initial search by Clohessy. The search, of course, was conducted over four years ago and those sorts of inaccuracies are to be expected. While that is so I am not prepared to discount the accused’s account having regard to the deficiencies in Kirk’s evidence and the difficult circumstances in which he conducted his inspection of the roof.
The prosecution also relied on the evidence relating to the search conducted on 3 March 2002. The circumstances which resulted in the police finding the cannabis were these. A shortwhile after entering the house Sgt. Costello and Constables Matthew Smith and Brian Smith went into the laundry and searched it. At one point Costello and Matthew Smith lifted up Brian Smith by the legs so that he could remove the manhole cover and look inside the roof. Brian Smith gave evidence that he was lifted high enough for his body to enter the roof from the waist up. He saw the bag the bag in the roof cavity and he was then lowered to the floor. Matthew Smith then fetched a video camera from the police car. The police also obtained a ladder from the accused. Matthew Smith then filmed Brian Smith climb up the ladder and remove the bag of cannabis from the roof. The bag and its contents were then inspected.
The video-film (Exhibit P4) shows the bag of cannabis positioned next to the northern edge of the manhole adjacent to the north-east corner. It was not in the location described by the accused. The prosecution argued that if the bag was in the position shown in the film, against the northern edge of the manhole, then Clohessy and Kirk could not have failed to notice it when they looked into the roof cavity on 25 August 2000 even if their inspections were cursory.
I accept that submission. But was the bag in the position depicted in the video when Brian Smith first saw it? In cross-examination it was put to Brian Smith that he moved the bag from its original position after he first saw it and before he was lowered to the floor by Costello and Mark Smith. In other words the bag was moved before the video camera was obtained from the police car. Brian Smith denied that. No evidence was adduced from Costello or Mark Smith that shed any light on this issue.
There is an inconsistency in Brian Smith’s evidence on this topic. He said that he found the bag about 20cms from the eastern edge of the manhole. He indicated the approximate location of the bag by reference to photographs of the manhole (Exhibit P1) and the plan of the house (Exhibit P2). He was not shown the video in the course of his evidence. If the bag’s original position was east of the manhole as Smith deposed and not north of the manhole as shown in the video then it must have been moved before the filming commenced. The prosecution argued that Smith was mistaken about the bag’s location. That may be so. However, it is also feasible that Smith was correct about the bag’s location but mistaken in relation to not having moved it.
There is another aspect of Smith’s evidence that I should mention. Although Smith said that he found the bag on the eastern side of the manhole he denied that he located it behind the air-conditioning duct where the accused claims to have hidden it. There are two points to be made about this feature of Smith’s evidence. First he conceded in cross-examination that he could not remember whether or not there was a duct in the roof. Second the distance between the eastern edge of the manhole and the duct was only 30cms. Smith said that the bag was about 20cms from the eastern edge. The bag of cannabis was wider than 30cms. There was simply insufficient space between the eastern side of the manhole and the duct to accommodate the bag. If the bag was positioned east of the manhole it must have been located behind the duct as the accused claimed.
The prosecution also relied on evidence concerning the condition of the bag. Brian Smith and Costello said that the plastic bag did not appear to have any dust on it when it was brought down from the roof. To my mind it would be speculative to make any findings about how much dust should have been on the bag if it had been in the roof for the preceding 18 months. The dust evidence does not dispel the doubts that I have concerning the length of time the cannabis had been in the roof.
The prosecution also relied on the hydroponic equipment found on the accused’s property as a circumstance indicating that the accused had grown a crop of cannabis after his arrest on 25 August 2000. The prosecution submitted that the accused had no reason to keep the equipment other than to grow cannabis. I do not accept this argument. The equipment was on the accused’s property on 3 March 2002 because the police chose not to seize it. It was not unlawful for the accused to retain possession of the equipment and to sell those items at a time convenient to him. Furthermore he received legal advice to leave the equipment on his property at least until the end of the first trial. The search on 3 March 2002 occurred only 8-9 weeks after the trial was completed.
Furthermore the set up at the house on 3March 2002 was entirely consistent with the accused’s account The hydroponic equipment was not operational when the police attended his home on that day. Indeed some of the equipment was neatly stacked against the rear wall of the large shed. There were no cannabis plants found growing on the premises. There were no fragments of cannabis lying about the place. There were simply no signs of cannabis having been recently grown, harvested or processed on the accused property.
In addition to the evidence that I have outlined the prosecution called Mr Dean Holloway, an investigation officer employed by AGL. At the request of police he examined the electricity meter at the accused’s home. The examination was conducted on 4 March 2002. His inspection revealed that the security seal on the face of the meter had been broken. Breaking the seal would have enabled a person to interfere with the components of the meter so that it produced false low readings. The prosecution contended that the accused had tampered with the meter to conceal electricity that was consumed through the hydroponic cultivation of cannabis. The accused denied this allegation. The meter tampering evidence, in my view, does not advance the prosecutions case. Even if the accused did interfere with the meter he may have done that before 25 August 2000 to conceal the electricity that he used to cultivate the cannabis plants that were grown before that date.
The prosecution also argued that the description of the cannabis in the roof given by the accused at the first trial was inconsistent with the cannabis found on 3 March 2002. At the first trial the accused said the cannabis weighed approximately 250 grams. However the cannabis found by police weighed over six kilograms. In the present case the defence suggested that the accused’s evidence at the first trial was the product of mistaken recollection. On the other hand the prosecution submitted that I should find that his evidence was a lie and that in fact there was no bag of cannabis in the roof at that time. In the alternative the prosecution submitted that the accused’s evidence at the first trial might have been the truth and that he was in fact referring to another bag of cannabis that he had stored in the roof. The prosecutions arguments are plausible. But it is equally plausible that the accused refused to admit that he had six kilograms of cannabis stored in the roof to distance himself from the prosecution’s allegation that he was involved in growing commercial quantities of cannabis.
It was also put to the accused in cross-examination that he acquired the scales and the heat-sealing machine some time after 25 August 2000 so he could weigh and package the cannabis for sale. The accused denied that allegation. He maintained that the items were on the premises when they were first searched. There is no need to canvass this point in any detail. There was no evidence from the police officers who searched the accused’s home on 25 August 2000 that the items in question were not on the accused’s property at that time. It is true that the accused gave evidence at the first trial that there were no scales in the house in August 2000 but again that is consistent with a false denial designed to distance him from the allegation that he was a commercial dealer. In the end the prosecutor conceded in her closing address that there was insufficient evidence to support the prosecution’s contention on this topic.
Having regard to the evidence as a whole I find that it is reasonably possible that the accused had been in possession of the cannabis since before 25 August 2000.
Why was the cannabis in the accused’s possession?
I do not believe the accused’s claim that he did not intend to sell the cannabis at the time he put it in the roof. The cannabis far exceeded what he required for personal use even if he did intend to give some of the cannabis to friends. Furthermore he spent over $2,000 purchasing the various items of hydroponic equipment The expense and effort invested in the creation of a relatively sophisticated hydroponic operation is difficult to reconcile with a non-commercial operation. In addition there are the items that were found in the accused’s home that could be used to weigh and package cannabis for commercial distribution namely the set of digital scales, the plastic bags and the machine designed to heat seal plastic bags. I reject the accused’s claim that these items were used for innocent purposes. I find that as 25 August 2000 the accused intended to sell the cannabis in the roof.
In reaching this conclusion I have not had regard to the large quantity (5.8 kilograms) of packaged cannabis found in the motor vehicle on 25 August 2000. The prosecution did not rely on the accused’s possession of this cannabis as evidence tending to show that the accused was involved in a commercial operation at that time. In my opinion, the evidence (though not his conviction) could have been used for this purpose. The accused’s total involvement in cannabis was relevant to the question of whether any cannabis that was in his possession at that time was intended to be sold. As I have said, the prosecution did not rely on this line of reasoning. Neither the prosecution nor the defence explored the question of why the accused had 5.8 kilograms of cannabis in the motor vehicle. No evidence was adduced on the topic other than to establish the fact that the cannabis was found in the car. Given the lack of attention paid to this topic, I considered that it was appropriate to deal with the issue of commerciality without having regard to this aspect of the evidence.
As I have said I find that the accused intended to sell the cannabis at the stage it was placed in the roof. But was that still his intention as at 3March 2002? I am satisfied on the balance of probabilities that the accused had abandoned any intention to sell the drug by the time the police located it. I accept the accused’s claim that the cannabis remained in the roof because he did not know what to do with it. In other words that because of his earlier arrest, his subsequent prosecution and his placement on a suspended sentence that he was too frightened to remove the material from the roof. He feared the repercussions of getting caught while trying to dispose of a large quantity of cannabis. It also seems unlikely that the accused would have held onto the cannabis for over 18 months if he were determined to sell it.
Verdict
Accordingly I find the accused not guilty of possessing cannabis for sale and guilty of simple possession.