R v Kolaj
[2004] SADC 102
•23 July 2004
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KOLAJ
Criminal Trial by Judge Alone
Reasons for the Verdict of His Honour Judge Smith
23 July 2004
CRIMINAL LAW
Accused charged with taking part in production of cannabis and possessing cannabis for sale - Crown alleged joint enterprise with co-offender - accused at "cannabis grow house" at time of police raid - protested he was a mere visitor - circumstantial evidence implicating him - trial by Judge without Jury - consideration of whether Crown evidence as to incriminating documents which were neither seized nor produced in evidence was inadmissible hearsay - consideration of whether police officer could refresh memory from document compiled from original but destroyed contemporaneous notes - circumstantial evidence did not exclude as a reasonable possibility that accused was merely present and not otherwise involved - verdict accused not guilty of both counts.
R v Shea (1978) 18 SASR 591; R v Calides (1983) 34 SASR 355, considered.
R v KOLAJ
[2004] SADC 102Introduction
The accused Lush Kolaj is charged together with Marin Gjoni with:
First Count
Taking part in the Production of Cannabis. (Section 32(1)(b) of the Controlled Substances Act, 1984).
Particulars of Offence
Marin Gjoni and Lush Kolaj between the 1st day of May 2003 and the 11th day of June 2003 at Sefton Park, knowingly took part in the production of cannabis, a prohibited substance.
Second Count
Possessing cannabis for sale. (Section 31(1)(e) of the Controlled Substances Act, 1984).
Particulars of Offence
Marin Gjoni and Lush Kolaj on the 10th day of June 2003 at Sefton Park, knowingly had cannabis, a prohibited substance, in their possession of the purpose of selling it to another person.
It is further alleged that the said offence involved more than two kilograms of cannabis.
Lush Kolaj pleaded not guilty and duly elected to be tried by Judge without a Jury (see s7 Juries Act 1927 (SA)). The alleged joint offender, Marin Gjoni, on the other hand pleaded guilty to both counts and on the 22nd December 2003 was sentenced by Judge Herriman in this Court.
So the trial before me proceeded over the last three days, namely the 20th, 21st and 22nd July 2004. On the afternoon of Thursday the 22nd July 2004 I adjourned to consider my verdict.
I turn to the evidence.
Crown evidence
Much of the Crown evidence was uncontested. I received as evidence the following declarations:
William Tuplin dated 07.07.03, 24.09.03 and 31.10.03
Michael Reinhardt dated 11.06.03 and 9.11.03
Justin Thompson dated 02.07.03
Peter Kitto dated 13.06.03
Russell Nash dated 07.07.03, 10.08.03, 24.09.03 and 31.10.03
Sarah Butler dated 18.11.03
Susan Thompson dated 04.07.03
Mark Marzano dated 2.07.03
Nicol Sly dated 19.08.03 and 15.09.03
Peter Felgate dated 18.07.03
Gregory Webber dated 18.06.03
Enid Holmes dated 15.10.03
Franceso Salandra dated 12.11.03
David Finlay dated 20.10.03
Robin Kelly dated 20.10.03
Darren Bonnici dated 24.10.03The defence consented to the tender of all the above declarations save that it contested the admissibility of the declarations of Constable Sarah Butler, on the ground that her evidence as disclosed in the declaration was inadmissible hearsay. Accordingly, I received Senior Constable Butler’s declaration and her evidence, as it were, on the voir dire.
The Crown called oral evidence from:
·Constable Russell Nash;
·Senior Constable Sarah Butler; and
·Francesco Salandra.
At the conclusion of Constable Butler’s evidence on the voir dire after hearing argument I ruled that her evidence as to documents she allegedly located in the house, and in particular in the accused’s van which was parked in the driveway was inadmissible hearsay. Constable Butler did not seize and produce in evidence, for instance, the documents she alleged were in the accused’s wallet in the console of the van but rather the Crown sought to rely on her description of those document in a report prepared by her called “General Information Report” and in her declaration. The documents were not otherwise produced in the Crown case. So, the Crown were wholly dependent on Constable Butler’s second-hand description of the documents. I regarded this as an issue of admissibility not discretion. Her evidence as to the content of these missing documents was plainly hearsay. The purpose of adducing this evidence was as to the truth of what was in the documents as well as their location. I refused to admit the evidence as to the documents.
The documents which Constable Butler described in her evidence and in the General Information Report and declaration were highly incriminating of the accused’s connection to the house. Necessarily I must put this out of my mind.
There was a protracted dispute about whether, given that Constable Butler had destroyed her original contemporaneous notes as to the contents of these documents she could nonetheless refer to documents subsequently compiled from the now non-existent original notes. It was my view it was permissible for her to do so (see R v Shea (1978) 18 SASR 591 per King CJ at 596, 597). Nothing turned on this because my upholding of the hearsay objection by counsel, Mr Moffa, overwhelmed this debate about refreshment of memory.
I find the following is proven by the Crown evidence.
At about 12.50pm on the 10th June 2003 a number of police officers attended at the rented house at 19 Lauder Avenue, Sefton Park. The house was owned by Francesco Salandra. At the time of the raid the sole tenant, according to the Residential Tenancy Agreement, was Marin Gjoni. Both Marin Gjoni and the accused, Lush Kolaj, had jointly leased the house in the previous year, that is from 11.11.01 to 11.11.02.
Both Marin Gjoni and the accused, Lush Kolaj, were in the house at the time of the raid. Neither answered the door. There was a suspicious five minute or so lapse before police officers forced entry. The police located Gjoni in the hallway behind the front door. The accused Lush Kolaj was discovered seated in the kitchen or lounge area and said he was at the toilet at the time the police arrived at the door. In the room marked “1” on the house plan Exhibit P1 there were six large cannabis plants growing in individual pots in a sophisticated hydroponic set-up. The lights were on at the time of the raid. In the room marked “2” there was cannabis obviously drying on the floor. There was a manhole cut in the floorboards of room 2 and under the floorboards in the area of the manhole was loose drying cannabis, together with plastic bags. There was also hydroponic equipment in room 2 and police also found some plastic gloves near the doorway. In the room marked “3” there were five large cannabis plants and six small cannabis plants together with hydroponic equipment. Again, four plastic gloves were found in this room.
In the lounge area, which was adjacent to the kitchen, police found a bag of cannabis on the floor up next to a lounge chair.
In the hallway cupboard there were electronic scales on which there was traces of cannabis.
All told there were 17 cannabis plants growing hydroponically in the house and 7.1635 kilograms of loose cannabis material.
The house was wholly devoted to the hydroponic growing of cannabis. The cupboards were bare. There were no cooking or eating utensils and no bedroom furniture, bedding or clothing located.
At the house the accused, Lush Kolaj, protested to the police that he did not live in the house and was just a visitor. Both Gjoni and Kolaj were arrested. The accused shoes were examined and found to have fragments of cannabis adhering to them. So too, cannabis leaf fragments were found adhering to his tracksuit pants. Swabs were taken from his hand and were found to contain compounds found in cannabis. A pink disposal plastic glove located in room 3 in a plastic rubbish bag was analysed and found to contain a mixture of DNA. The accused could not be excluded as a major source of the DNA in that glove. A second glove found in room 3 was again found to contain a mixture of DNA. The accused could not be excluded as a possible source of that DNA.
Police interviewed the accused at 7pm that evening. He said, inter alia, that he had known Mr Gjoni for four to five years and that on this occasion he called in to visit him and have a drink. He said that he had only been there half an hour when the police raid occurred. He said that he had not been to 19 Lauder Avenue before and that he had not lived there.
The Crown case was that both Marin Gjoni and Lush Kolaj were jointly involved in the production of the cannabis, that is the 17 plants, and were in possession of the 7.1635 kilograms of loose cannabis for the purpose of selling it or some of it.
The case against the accused, Lush Kolaj, was based on circumstantial evidence. The Crown contended that I could infer that the accused, together with Marin Gjoni, was producing cannabis at the house and was possessed of the seven or so kilos for the purposes of selling it, from the following proven circumstances:
·the presence of Kolaj at the house at a time when 17 plants were growing hydroponically and over 7 kilograms of cannabis was lying about drying together with the extensive hydroponic set-up;
·the accused previous connection with the house and with his co-offender Marin Gjoni, namely his leasing of the house with Gjoni for the year commencing the 11 November 2001;
·the fact that the DNA found in the two gloves found in room 3 was consistent with that of Kolaj and in respect of one of the gloves there was a high likelihood that it was Kolaj’s DNA rather than someone else’s;
·the cannabis on Kolaj’s tracksuit pants, shoes and hands.
Defence Evidence
The accused gave evidence. He is a 30 year old Albanian. He fled Albania in 1991 and arrived in Australia in 1993. He moved to Adelaide from Queensland in January 2000. He had relatives here in Adelaide. He said he was a painter and since arriving in Adelaide has worked as a sub-contractor with Foster Brothers Painting Contractors. He tendered an invoice book showing the regularity of his work as a painter. He accepted that he owned the van discovered in the driveway of the house at 19 Lauder Avenue and that his wallet detected by Constable Butler was indeed in the console of that vehicle.
He said he met Marin Gjoni in Queensland and they became friendly.
In November 2001 they jointly leased the house at 19 Lauder Avenue, Sefton Park. He said he lived there with Gjoni for three months. He said that whilst they remained friends they were not all that compatible living together and so he moved out in February 2002 to live with his brother and sister-in-law at 134 Portrush Road. The accused explained in his evidence that the landlord, Frank Salandra, wrote Mario Kolaj on the lease document Exhibit P6 but that it was really Marin Gjoni. He said that when he moved out of the house in February he took all his gear with him, though he did say later that he might have left some drums of paint behind.
On the 10th June 2003 he said that he left for work which was at a site at the corner of Main North Road and Montague Road which he called Cross Keys. He said he picked up another painter Cesk Doci en route. Then according to him, his boss rang and said the job was not ready. So the accused said he returned home and in the course of doing so, dropped off his workmate. He then rang Marin Gjoni and he accepted the invitation to come around.
He said that he had previously visited Gjoni once or twice. Accordingly, he arrived with his dog at the house at 19 Lauder Avenue at about 11.30 to midday.
He said he sat down with Gjoni and smoked cannabis. He said he was in the toilet when the police arrived. He said that he told them immediately that he did not live in the house and was only visiting. He said that he did not know Gjoni was growing cannabis in the house or had a store of it there, until the police uncovered it in his presence, and that is when he protested that he did not live there.
In the later video recorded interview the accused admitted that he lied to the police in two respects, namely that he had never lived at the house and that the 10th June was the only time he visited. He said he lied in an effort to distance himself from the offending.
The accused in his evidence accepted the forensic evidence. As to the gloves he explained that he used gloves in his work as a painter and the DNA in two of the gloves could well have been his. He explained that he probably left the gloves behind in the house when he left as indeed he had left some drums of paint there also. As to the traces of cannabis on his clothing, shoes and hands, he explained that that could have arisen from, for instance, shaking hands with Gjoni when he arrived, and smoking cannabis in the lounge area.
Such was the essence of the accused’s evidence.
It can be seen that the defence is one of no involvement in the offending at all. As to Count 1, the accused says effectively that he did not take any part in the production of the cannabis. As to the second count, he says that he was not in possession of the harvested cannabis or any of it let alone possessing it for the purposes of selling.
Some matters of law – directions
I direct myself as to the elements of the two offences. It is clear law that neither presence in the same house as the cannabis nor even knowledge of the presence of the cannabis is sufficient for possession. There must be control and intention to exercise dominion. I remind myself of the onus and burden of proof save that in respect of the second offence there is a shifting onus as to the final element, namely the purpose of the possession.
The Crown alleges a joint enterprise and I direct myself as to the pre-conditions for such. In particular, in this case I remind myself of what was said in R v Calides (1983) 34 SASR 355 per Wells J at 358:
“... there are really, for all practical purposes, three possibilities: the jury may be completely satisfied with the evidence led from the Crown, in which case, assuming all other matters to be properly established, the verdict will be guilty; the jury may be perfectly satisfied with the version presented by the accused, in which case there will inevitably be a verdict of not guilty; and there is the third possibility, which must never be overlooked, and that is that the jury, after a full and careful consideration, may arrive at the result that they are unable to say where the truth lies, or that they are unable to say who is telling the truth. If that is the situation, then, of course, the verdict must also be not guilty.”
This is a circumstantial evidence case. I have particularised the items of circumstantial evidence relied upon by the Crown and acknowledge that I must look at the united force of those factual circumstances, mindful of course that any inference of guilt must reasonably arise therefrom. Speculation is not drawing reasonably inferences from proven circumstances. In particular, at the end when considering the circumstantial evidence I must be satisfied not only that the accused guilt is an inference reasonably arising but that it is the only rational inference. Put another way, I must be satisfied that hypotheses, consistent with innocence, are not reasonably open on the evidence.
The accused has admitted lying to the police. The Crown do not rely on the lies as an indication of a consciousness of guilt, but rather contend that his lies impair his credit. The accused explained that he lied to the police to distance himself from involvement in what was happening at 19 Lauder Avenue. Accordingly, I agree that his lies should only be used as impacting on his credibility. They are not probative of the alleged offending but simply impact on the believability or credibility of his innocent explanation.
Decision – Verdict
The accused evidence, on its face, throws an innocent light on his presence at the house. It also accounts innocently for the forensic evidence upon which the Crown rely. Accordingly, assessing the accused’s evidence and its impact on the Crown evidence is crucial. I rejected a “No Case and Prasad submission” because I took the view that accepting all the inferences most favourable to the prosecution I could reach a conclusion of guilt beyond reasonable doubt (see Question of Law Reserved No. 2 of 1993 (1993) 61 SASR 1). In assessing the accused’s evidence I put demeanour on the bottom of the list. In my view, it is an elusive indicator of reliability and credibility. What the accused has said is not wholly implausible. His evidence is internally consistent and moreover it fits in with other plausible evidence. For instance, his explanation of being at the house is not wholly improbable. The DNA on the glove is highly incriminating but his explanation of using gloves in his work and perhaps leaving them behind is difficult to reject as not being a reasonable possibility. So too, his explanation of the presence of traces of cannabis on his clothing, shoes and hands, namely that he smoked some cannabis at the house and shook the hand of his friend, Gjoni, on arrival, cannot be put aside as not being a reasonable possibility.
Accordingly, whilst I harbour suspicions about the accused’s involvement in the activities in the house I cannot be satisfied beyond reasonable doubt that he participated in the production of the 17 cannabis plants and nor that he was in possession of the loose cannabis or any of it found at the house.
In respect of both counts, I enter a verdict of not guilty.
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