R v Kotz - [2009] SADC 138

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KOTZ
Criminal Trial by Judge Alone
[2009] SADC 138
Reasons for the Verdict of His Honour Judge Nicholson
11 December 2009
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - CULTIVATION
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
Trial by Judge alone.
Accused charged with the offences of Cultivating Controlled Plants for Sale contrary to s33B(2) of the Controlled Substances Act 1984 and Trafficking in a Controlled Drug contrary to s32(3) of the Controlled Substances Act.
Verdict:-
Not Guilty of the offence of Cultivating Controlled Plants for Sale but Guilty of the alternative of Cultivating more than the Prescribed Number of Cannabis Plants (s33K(1)(b)).
Not Guilty of the Offence of Trafficking in a Controlled Drug but Guilty of the alternative offence of Being in Possession of Cannabis Intenting to Supply it to Another (s33I(2)(b)).
Controlled Substances Act 1984 s4, s32(3), s32(5), s33B(2), s33B(5), s33I(2), s33L, s33K(1), s33R; Firearms Act 1977 s11(1), referred to.

R v KOTZ
[2009] SADC 138
Introduction

The accused, Stephen Kotz, was charged by Information dated 12 January 2009 with three counts: Cultivating Controlled Plants for Sale, contrary to s33B(2) of the Controlled Substances Act 1984 (the “CSA”), Trafficking in a Controlled Drug contrary to s32(3) of the CSA and Possessing a Firearm without a Licence contrary to s11(1) of the Firearms Act 1977.
The accused pleaded guilty in this court to the third count, the firearms charge, on 12 January 2009. On that same day, he pleaded not guilty to the two drug related counts and was committed for trial. I heard the trial concerning counts 1 and 2 sitting as a judge alone.
On 8 April 2008, police attended at the accused’s residential premises. They searched the house and also a shed located in the backyard. The shed was divided into two rooms, one of which had the appearance of being a “grow room” under construction. They also found a trap door in the shed which led to a third room, underneath the shed. Inside the underground room which was set up as a “grow room”, police found a total of 53 cannabis plants. Inside the accused’s bedroom in the house, police found a 0.25 calibre pistol loaded with ammunition located in a pocket of a pair of trousers hanging behind the bedroom door. The police also found $3,900 in a tin under the accused’s bed and the sum of $500 in a plastic bag in a jacket; all of the money was in denominations of $100 notes and $50 notes. They also found cannabis, both leaf and female head, in plastic bags and tubs in various locations in the house. The loose cannabis weighed in total 833.5 grams. Whilst in the bedroom, the police observed a closed circuit television display showing live images from the shed and the front of the house.
At the beginning of the trial, I was told that the prosecution case had been agreed in the sense that the written declarations relied upon by the prosecution could be admitted without objection and the defence did not require any of the declarants to attend for cross-examination. The accused, through his counsel, told the court that no issue was joined with respect to the cultivation of the plants or with respect to the cannabis, as found, having been grown by him and being in his possession. The only issue in contention was, as counsel put it, the question of commerciality. In other words, as far as the first count was concerned, the accused denied having, at any time, an intention to sell one or more of the controlled plants or their product and as far as the second count was concerned, the accused denied having trafficked or any intention to traffic in the controlled drug, cannabinoid.
The Charges and their Elements
The accused was charged on the Information with the following offences:
First Count
Statement of Offence
Cultivating Controlled Plants for Sale. (Section 33B(2) of the Controlled Substances Act, 1984).
Particulars of Offence
Stephen Anthony Kotz between the 28^th day of March 2008 and the 9^th day of April 2008 at Prospect, knowingly cultivated a commercial quantity of a controlled plant, namely cannabis, intending to sell one or more of them or their products or believing that another person intended to sell one or more of them or their products.
Second Count
Statement of Offence
Trafficking in a Controlled Drug. (Section 32(3) of the Controlled Substances Act, 1984).
Particulars of Offence
Stephen Anthony Kotz on the 8^th day of April 2008 at Prospect, knowingly trafficked in a controlled drug, namely cannabinoid.
In order to prove the accused guilty of count one, the Director of Public Prosecutions must prove five elements.
(i)The first element is that the accused knowingly cultivated plants. The definition of “cultivated” set out in s4 of the CSA is very wide.
(ii)The second element is that the plants cultivated were controlled plants. By s4 of the CSA, “controlled plant” includes a growing cannabis plant or cutting of a cannabis plant (provided that the cutting has been planted or otherwise placed in a growing medium).
(iii)The third element is that the accused knew that the plants were controlled or, at least, that it was illegal to cultivate them.
(iv)The fourth element is that the quantity of controlled plants cultivated was a “commercial quantity”. A “commercial quantity” of cannabis plants, as prescribed by regulation under the CSA, is a quantity in excess of 20 plants.
(v)The fifth element is that the accused intended to sell one or more of the plants or their products or believed that another person intended to sell one or more of the plants or their products.
In order to prove the accused guilty of count two, the Director must prove four elements.
(i)The first is that the accused knowingly had possession of the loose cannabis found in his premises.
(ii)The second is that the loose cannabis found is a controlled drug. Cannabinoid comprising or comprised of dried plant material including flowering and fruiting tops, leaves, seeds or stalks, is a prescribed controlled drug, pursuant to regulation under the CSA.
(iii)The third element is that the accused knew that the material found in his possession was a controlled drug or at least that it was illegal to possess the same.
(iv)The fourth element is that the accused intended to sell some or all of the controlled drug in his possession.
In accordance with the accused’s concessions, the trial was conducted, from the defence perspective, on the basis that only element (v) for count one and element (iv) for count two were in issue.
In any event, the following exhibits were tendered without objection in the Crown case:
Exhibit P1 – A bundle of colour photographs depicting the various items observed and seized at the premises.
Exhibit P2 – Declarations of Copley 11/5/2008 and 20/8/2008, Tepavcevic of 23/10/2008 and 31/9/2009, Brain of 11/5/2008, Hanssen of 11/5/2008, Grant of 11/5/2008, Stendt of 16/6/2008, Hunt of 2/5/2008 and 21/8/2008, Neilson of 28/8/2008, McKew of 13/1/2009 together with Certificate of Analysis dated 23/5/2008, Kelsey (two reports of 4 pages and 12 pages respectively) each dated 17/8/2009 together with a DVD referred to therein, Wicks of 24/8/2009 and Moore of 19/10/2009.
Exhibit P4 – Video cassette recording taken at the search scene on 8/4/2008.
Exhibit P5 – Video cassette containing record of interview of the accused by police on 8/4/2008.
Exhibit P6 – Transcripts of the two VCR recordings in P4 and P5, received as an aide memoire only. In this respect, I remind myself that the evidence before me is what is on the recordings and that, if I were to discern any difference between the recordings and what is contained in the transcripts, I am only to have regard to what I hear and see on the recordings.
Notwithstanding the accused’s concessions, I reviewed the evidence tendered on behalf of the prosecution together with evidence given by the accused himself and adduced on his behalf to which I will refer later in these reasons. I find, beyond reasonable doubt, that elements (i) to (iv) inclusive of the alleged offence of Cultivating Controlled Plants for Sale and elements (i) to (iii) inclusive of the alleged offence of Trafficking in a Controlled Drug have been established.
Legal Considerations and General Directions
Whilst the Court of Criminal Appeal in this state has made it plain that it is not necessary for the court having conducted a trial by judge alone to set out in reasons for verdict the standard or obvious directions of which the trial judge is bound to be aware, I do nevertheless record that I have reminded myself of the following.
(i)An accused is presumed to be innocent of all charges unless and until guilt on any particular charge has been proved.
(ii)The prosecution bears the burden of proving each particular charge beyond reasonable doubt. Ordinarily, this requirement extends to proof beyond reasonable doubt of each and every element of the offence under consideration.
(iii)Each of the two charges concerns a separate offence and I must treat each separately and consider only evidence relevant to that charge. If I were to find the accused guilty of one of the charges, on the evidence relevant to that charge alone, I must not use that evidence nor the fact of that finding to assist in the proof of the other charge, save that such evidence may be relevant to the background or circumstances surrounding the events said by the prosecution to give rise to each of the offences charged.
(iv)The charges do not stand or fall together. If I were to be satisfied that the accused committed one of the offences charged, it does not follow that he also should be found guilty of the other offence charged. Depending on my findings on the evidence, I may find the accused not guilty of both offences charged, guilty of one or guilty of neither of them.
(v)I have reminded myself of the normal directions given in this state to jurors concerning the proper approach to assessing the witnesses who gave evidence, their credibility and reliability and the proper approach to drawing inferences of fact. In this case, the accused himself gave evidence. He was not obliged to do so and always had the right to remain silent. I am required to assess his evidence in exactly the same way as I would assess the evidence of any other witness and I keep in mind that by going into the witness box, the accused did not thereby assume any burden of proof.
The standard direction set out in (ii) above applies in the ordinary case where the prosecution retains the burden of proving each element of a charge beyond reasonable doubt. This requirement does not apply in the present case with respect to element (v) of the first count and element (iv) of the second count.
As far as the first count is concerned, s33B(5) provides, in effect, that if the Crown were to prove beyond a reasonable doubt that the accused knowingly cultivated a trafficable quantity of plants, being more than 10, the relevant intention or belief as required by element (v) is presumed in the absence of proof, on a balance of probabilities, to the contrary.
As far as the second count is concerned, s32(5) provides, in effect, that where an accused is in possession of a trafficable quantity of cannabinoid, that is, more than 250 grams, the necessary intention required by element (iv) is again presumed, in the absence of proof, on a balance of probabilities, to the contrary.
In reliance on the uncontested evidence of the Crown, I find, beyond reasonable doubt, that insofar as count one is concerned, the accused was found to have been cultivating in excess of 10 cannabis plants and insofar as count two is concerned, the accused was found in possession of more than 250 grams of cannabinoid, in the form of cannabis leaf and flowering female head. Accordingly, in the event that the accused were to adduce no evidence directed at his intention and/or belief at the time, both charges would be made out.
However, the accused did adduce evidence in an effort to persuade the court on a balance of probabilities with respect to count one, that he had no intention to sell one or more of the plants or their products and no belief that another person intended to sell one or more of the plants or their products and, insofar as count two is concerned, that he had no intention to sell any of the loose cannabis found in his possession.
The Crown and Defence Cases in More Detail - Determination
The matters set out in the following sub-paragraphs are not in dispute and, in any event, I find them to have been established on the evidence beyond reasonable doubt.
(i)The shed in the backyard was divided into two rooms. At the rear of the shed was a trapdoor which led to a room underneath in which was an operating hydroponic set-up. Also in the underground room were 27 small cannabis plants, the foliage of which had been stripped, 24 small cannabis plants still at a growing stage, and 2 larger cannabis plants, each of which were about 75 centimetres tall – making a total of 53 plants.
(ii)Also found in the shed was a significant quantity of hydroponic equipment including electrical transformers, lights, shades, globes, a thermostat controller, water pumps, a power board, a large carbon filter, a small carbon filter, a large exhaust fan, an odour sock filter, a water filter, an air pump and two electrical timers. The accused, when he gave evidence, admitted that he was in the process of renovating and refurbishing one of the above ground shed rooms so as to convert it into an hydroponic grow room.
(iii)Located in the premises were more than 20 separate containers[1] of cannabis with a total weight of 833.5 grams. The weights of the individual containers varied considerably; only a few appeared to contain a standard commercial or saleable weight.[2]
(iv)Found in the accused’s bedroom was a closed circuit television set which comprised a four way screen showing first, the roadway at the front of the house in a southern direction; second, the roadway at the front of the house in a northern direction; third, the backyard including entry to the shed; and fourth, the front door of the house. There was also an alarm designed to go off when somebody walked towards the front door of the house. There was a sensor at or near the front door connected to an alarm at the back of the house. The sound was similar to that heard when walking into an unattended shop.
(v)The estimated yield obtainable from the two large plants seized was approximately 150 grams for each plant. It was not possible to estimate a yield for any of the other plants as they were too small.
(vi)The accused was in the process of converting a portion of the shed itself into an upstairs “grow room” involving the use of hydroponic equipment.
(vii)Also located in the premises was the sum of $4,400 and the loaded pistol.
(viii)Downloaded from the accused’s mobile telephone seized from the premises and tendered in evidence was the content of a series of telephone text messages received by the accused. However, no record of the accused’s replies, if any, was available. The Crown relied upon messages received from the accused’s teenage daughter apparently asking if her father would sell a friend of hers some marijuana on credit if they were to come over to his house.
[1] Including plastic bags, envelopes and brown paper bags.
[2] The various weights were: 27.5g, 19.0g, 20.0g, 7.5g, 43.5g, 6.5g, 8.0g, 7.5g, 10.0g, 364.0g, 107.0g, 1.5g, 45.5g, 50.5g, 42.5g, 1.5g, 28.5g, 28.0g, 9.0g and 6.0g. It is possible that the parcels containing 27.5g, 28.5g and 28.0g (each approximately 1 ounce) and 364g (approximately equal to 13 ounces) originally comprised the one parcel of 16 ounces or 1 pound. Cannabis is commonly sold and, of course, purchased in 1 ounce and 1 pound weights.
Independently of the operation of the presumption, the Crown case, if unanswered, was reasonably strong. There was a significant quantity of cannabis located, a significant number of plants located, a “grow room” underground, a second room being converted into a “grow room”, security systems, a loaded weapon and a substantial amount of cash, all of which, taken together, can be strongly indicative of a commercial operation.
However, the accused gave evidence and was in the witness box in examination in chief and cross examination for the best part of a day. The accused’s wife also gave evidence. Whilst the accused and his wife remain married, they have lived at separate premises since about 1994 essentially because of his extensive and unaffordable cannabis use. Mrs Kotz also said that the accused, when he drank, was abusive and obnoxious although not physically violent. They have three children, the youngest of which is a girl, 16, and who was the author of the text messages referred to above.
The accused told the court that he had been living at the house that was searched by the police all his life. He is now on a disability support pension. Prior to this, he was on a carer’s allowance whilst his mother was alive. The accused suffers from emphysema and a number of other conditions including bursitis of the shoulder, an ulcerated eye, chronic obstruction of the oesophagus and dental problems. He is on a variety of regular medications. Exhibit D7 gives some corroborative support for the accused’s evidence on this topic.
The accused had what can only be described as a sad and difficult upbringing and spent substantial periods of time in juvenile institutions. As an adult, he worked from time to time in a variety of unskilled labouring jobs. The accused became a heavy drinker on a daily basis and found himself in a lot of trouble with the law, largely caused or contributed to by excessive alcohol consumption. Exhibit D8 sets out the accused’s offender history which strongly suggests that alcohol has been a problem for the accused.
The accused told the court that because of the negative effects on him of excessive alcohol consumption, he reduced his drinking and increased his cannabis consumption. He described in some detail the amount of cannabis he consumed on a regular basis and the methods by which he consumed the cannabis. He provided an explanation for each of the matters raised against him by the Crown. These explanations were consistent with his innocence of the charges brought against him. It was the accused’s case that he grew cannabis only for his personal use although he would share it with friends from time to time. The number and small size of the plants cultivated was deliberate and resulted from the technique that the accused employed to grow his cannabis. He adopted a process described as “sea of green” which he downloaded from the internet (exhibit D12) and which was based on a theory of harvesting a large number of small plants that were allowed to mature early so as to get the fastest production of buds. In short, instead of growing a few large plants for a long period of time, the same space could be devoted to a large number of smaller plants with a small amount of cannabis taken off each in a very short period of time. In essence, a large number of small plants were to be rotated and cropped continuously. The accused also gave explanations for the security systems, the gun and the presence of cash monies in the house. I remind myself that people do have security systems and people do retain cash monies for various reasons and that these are not necessarily indicative of a commercial drug operation although they are often to be found where a drug operation is in place.

As far as the daughter’s text messages are concerned and contrary to the Crown submission, it is not possible to infer from this limited one way series of messages that the accused was in the business of selling. The accused gave evidence on this topic and said that he was not engaged in selling and that he would not in any event sell to his teenage daughter or her friends. Irrespective of the accused’s evidence here, it is simply not possible to infer from a series of one-way text messages that there had been a history of selling by the accused. Further, it is not possible to determine whether the accused accepted or rejected these overtures. In any event, having heard the accused’s evidence on this topic, I accept it. As I discuss further below, whilst it is not possible to be certain, I accept, on a balance of probabilities, that the accused, in general, was telling the truth.
As I say, the accused gave evidence for the best part of a day. It is unnecessary to summarise, in these reasons, all of the evidence he gave. His wife, in her evidence, corroborated some aspects of the accused’s evidence.
I found the accused to give his evidence in a clear and frank manner. He clearly has had a difficult life and now leads a simple lifestyle and is significantly dependent on cannabis use. The demeanour of a witness can be an unreliable guide. However, I did find the accused to be open with the court and to volunteer information. He was also clearly co-operative with the police during the search process. He addressed and gave a plausible explanation for each of the indicia of sale relied upon by the Crown. There was no indication of any previous sales having been made other than the equivocal (and explained) presence of cash on the premises. No lists of customers or telephone numbers were located. Whilst a set of scales was located, it was small and weighed up to a maximum of 200 grams. However, no small plastic bags typical of a street selling operation were located. The quantities of marijuana located in the various containers varied considerably as to weight and as to type of cannabis which itself was consistent with the disorganised and ramshackle house and lifestyle lead by the accused generally. There was no evidence of excess electricity consumption or spikes in electricity use. There was no telephone intercept evidence and no phone record evidence of any consequence apart from the text messages from the daughter.
At the end of the day, the onus is on the accused to persuade me on a balance of probabilities that he did not have the intention or belief as required by elements (v) and (iv), respectively, of the two offences before me. The accused in his evidence gave explanations consistent with innocence. I found him to be, in the limited sense relevant to my decision, an impressive witness. I accept, on a balance of probabilities, that the accused has told the court the truth. I accept the submission put during his counsel’s final address, that the accused is an eccentric person with a particular and somewhat eccentric lifestyle and who is a very high level consumer of cannabis whilst living his hermit-like existence.
I find that the accused has discharged the onus imposed upon him by ss33B(5) and 32(5), respectively, and that he is not guilty of the two drug related offences as charged.
Alternative Offences
However, the accused freely admitted, during his evidence, that he would share his cannabis with friends, particularly when they came over on Fridays to play darts. He said that he would have a communal bowl of cannabis available for anyone to consume and also would supply muffins cooked with cannabis butter.
In relation to count one (Cultivating Controlled Plants for Sale), s33K(1) of the CSA provides for various alternative offences.[3] Section 33K(1) materially provides:
(1)     A person who –
(a)     …
(b)     cultivates more than the prescribed number of cannabis plants; or
(c)     cultivates a cannabis plant intending to supply the plant or to supply or administer any product of the plant to another person,
is guilty of an offence.
[3] Section 33R of the CSA provides:
Alternative Verdicts
(1)If, in any proceedings against a person for an offence against this Part, the court is not satisfied that the person committed the offence but is satisfied that the person committed another equivalent or lesser offence against this Part, the court may find the person not guilty of the offence charged but guilty of the other equivalent or lesser offence (and the person is liable to be punished accordingly).
(2)For the purposes of this section, an equivalent or lesser offence is an offence for which the maximum penalty is the same as or less than the maximum penalty for the offence charged.
Given my findings that elements (i) to (iv) inclusive of the principal or charged offence have been made out beyond reasonable doubt, the accused is guilty of the offence set out in s33K(1)(b). However, the evidence does not permit a finding beyond reasonable doubt that, at the time of cultivating, the accused had the intention set out in sub-paragraph (1)(c). Accordingly, I am not satisfied beyond reasonable doubt that the accused committed the offence set out in s33K(1)(c).
As far as count two (Trafficking in a Controlled Drug) is concerned, a potentially relevant alternative offence is that under s33I(2)(b), which provides:
A person who
(a) …
(b) has possession of cannabis … intending to supply or administer the cannabis … to another person.
is guilty of an offence.
On the basis of the accused’s evidence as summarised above, I am satisfied beyond reasonable doubt that he intended to supply some of the 833.5 grams of loose cannabis found in his possession to another person and that the requirements of the offence under s33I(2)(b) have been established.
A further alternative offence open on the evidence is that in s33L(2)(a) – simple possession of cannabis. However, having found the accused guilty of the offence under s33I(2)(b), that is, Possession of Cannabis Intending to Supply, I will not enter a conviction for the offence of Simple Possession.
Verdicts
I enter the following verdicts:
(1)The accused is not guilty of the charged offence of Cultivating Controlled Plants for Sale but is guilty of the alternative offence of Cultivating more than the Prescribed Number of Cannabis Plants (s33K(1)(b) of the Controlled Substances Act).
(2)The accused is not guilty of the charged offence of Trafficking in a Controlled Drug, but is guilty of the alternative offence of Being in Possession of Cannabis Intending to Supply it to Another (s33I(2)(b) of the Controlled Substances Act).