R v Koutouzis
[2017] SADC 143
•20 December 2017
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KOUTOUZIS
Criminal Trial by Judge Alone
[2017] SADC 143
Reasons for the Verdicts of His Honour Judge McEwen
20 December 2017
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - CULTIVATION
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
Accused charged with two counts of cultivating a Large Commercial Quantity of Controlled Plants for Sale and one count of Trafficking in a Large Commercial Quantity of a Controlled Drug. Police located 113 cannabis plants growing in vineyard, 170 cannabis plants being grown hydroponically and 5.262 kg of loose cannabis material. DPP alleges that the accused’s involvement was for the purpose of sale. Defendant gives evidence but Court finds his version totally implausible.
Held: combination of all circumstances sufficient to establish guilt – verdict of guilty to two counts of cultivating a Large Commercial Quantity of Controlled Plants for Sale; and guilty to the alternative of Trafficking in a Commercial Quantity of a Controlled Drug.
Controlled Substances Act 1984 (SA) s32(1); s32(5); s33b(1); s33B(5), referred to.
R v KOUTOUZIS
[2017] SADC 143
Sotirios Koutouzis is charged with two counts of Cultivating a Large Commercial Quantity of Controlled Plants for Sale; and one count of Trafficking in a Large Commercial Quantity of a Controlled Drug.
The particulars of the charges are as follows:
First Count
Statement of Offence
Cultivating a Large Commercial Quantity of Controlled Plants for Sale. (Section 33B(1) of the Controlled Substances Act, 1984).
Particulars of Offence
Sotirios Koutouzis between the 1st day of December 2015 and the 19th day of December 2015 at Berri, cultivated a large commercial quantity of controlled plants, namely 113 cannabis plants, knowing or being reckless as to the fact they were controlled plants and intending to sell any of them of their products or believing that another person intends to sell any of them or their products.
Second Count
Statement of Offence
Cultivating a Large Commercial Quantity of Controlled Plants for Sale. (Ibid).
Particulars of Offence
Sotirios Koutouzis between the 1st day of December 2015 and the 20th day of December 2015 at Berri, cultivated a large commercial quantity of controlled plants, namely 170 cannabis plants, knowing or being reckless as to the fact they were controlled plants and intending to sell any of them of their products or believing that another person intends to sell any of them or their products.
Third Count
Statement of Offence
Trafficking in a Large Commercial Quantity of a Controlled Drug (Section 32(1) of the Controlled Substances Act, 1984.
Particulars of Offence
Sotirios Koutouzis on the 20th day of December 2015 at Berri trafficked in a large commercial quantity of a controlled drug, namely cannabis, knowing or being reckless as to the fact the substance was a controlled drug.
On 19 December 2015 police officers from Berri CIB investigated a complaint of what sounded like gunshots, from a vineyard, which was a short distance from the Berri Police Station. The noise turned out to be a faulty gas gun; a device to scare birds from vineyards.
Serendipitously police discovered 113 cannabis plants growing within the rows of vines. The majority of the cannabis plants were estimated by police to be 30 to 40 centimetres tall. The plants were individually staked, with the stakes attached to the wire of the vineyard rows. Police also found a few items of equipment and fertiliser at the vineyard.
Police photographed, and pulled up, the cannabis plants and took samples for analysis.
The cannabis plants located in the vineyard are the subject of Count 1.
Late the following afternoon, police returned to the vineyard location. They observed and filmed the accused walking in the vineyard from the area in which the plants had been removed. Police then attended and searched his address at 1 Kunoth Street, Berri.
In each of two sheds in the back yard, police discovered hydroponic set ups for the growing of cannabis. There were growing plants in each of the grow rooms, together with plants in pots and polystyrene boxes. There were 170 cannabis plants, in all, located at Kunoth Street. Those plants ranged from small unhealthy seedlings to larger vigorous plants. The growing cannabis plants located at Kunoth Street are the subject of Count 2.
Within two separate freezers (one in each shed) police located polystyrene boxes containing loose cannabis material; and also some loose material in bags. The total of loose cannabis material was 5.262 kilograms, and that is the subject of Count 3.
It is for the prosecution to prove its case beyond reasonable doubt; the accused carries no onus to prove or disprove anything. However, Mr Allen, for the accused commenced his closing address with the following appropriate concession:[1]
Given the final state of the evidence, I concede that the presumption is engaged in relation to each of the counts and, therefore, Mr Koutouzis bears a persuasive burden, at least in terms of what his intention was with the plants or their products or the loose cannabis found in his sheds.
[1] T269.
This, in relation to Counts 1 and 2 is a reference to s33B(5) of the Controlled Substances Act 1984 (SA) which is as follows:
33B—Cultivation of controlled plants for sale
(5)If, in any proceedings for an offence against subsection (1), (2) or (3), it is proved that the defendant cultivated a trafficable quantity of a controlled plant, it is presumed, in the absence of proof to the contrary, that the defendant had the relevant intention or belief concerning the sale of the plants or their products necessary to constitute the offence.
In relation to Count 3, Mr Allen’s concession is a reference to s32(5) of the Controlled Substances Act 1984 (SA) which is as follows:
32—Trafficking
(5)If, in any proceedings for an offence against subsection (1), (2), (2a) or (3) it is proved that the defendant had possession of a trafficable quantity of a controlled drug, it is presumed, in the absence of proof to the contrary—
(a) in a case where it is alleged that the defendant was taking part in the process of sale of the drug, that the defendant—
(i) was acting for the purpose of sale of the drug; and
(ii) had the relevant belief concerning the sale of the drug necessary to constitute the offence; or
(b) in any other case—that the defendant had the relevant intention concerning the sale of the drug necessary to constitute the offence
I bear in mind that pursuant to each of sections 33B(5) and 32(5), the onus upon the accused is on the balance of probability.
For the moment I will continue with a very brief outline of the prosecution case. As well as evidence form the various police who attended the two scenes and searched and seized exhibits; there are photographs of the vineyard crop; the hydroponic setups at Kunoth Street; and some items located within the house. The prosecution called Detective Sergeant Mark Nelson of the Drug and Organised Crime Taskforce to give evidence describing what the hydroponic setup entailed; and describing the standard methodologies for preparing and packaging cannabis for sale, and the broad range of values.
The prosecution also called Tanya McKew a forensic scientist, to give evidence of the examination and the analysis of the cannabis; and evidence of the growth phases of cannabis plants and related matters. I shall return to specific aspects of the evidence of Detective Nelson, and Ms McKew.
I turn to the accused evidence. Firstly I will set down a brief summary of what he told the court.
He is 43 years of age and owns several properties in Berri. He believes he suffers from depression, post-traumatic stress disorder, and schizo-type personality.
He admits that he grew the cannabis in the vineyard and in the two grow rooms out the back of his house. He also admits he was in possession of the material in the freezers.
He describes his reasons for growing the cannabis as ‘a hobby, research, escape’.[2] He denies he was intending to sell any of the cannabis or any of the plants.
[2] T222.
As for the digital scales shown in Exhibit P5, tab 1, page 2, he tendered a copy of a tax invoice for the purchase of those scales on 22 December 2014. These were for his enterprise selling grapes at the farmers market, and he tendered a photograph depicting him, at the Riverland farmers market on 24 January 2015, with the scales.
As to Exhibit P5, tab 4, page 2, the scales depicted no longer work, and were replaced by the scales purchased in December 2014.
He was asked whether, prior to growing the cannabis, he had conducted research in relation to cannabis. He described being a farmer all his life and noticing that the Riverland was dependant on Murray River water. He wondered if there was a high value crop using ground water. He says he spoke to the University of South Australia about ground water but not about growing cannabis:[3]
[3] T227.
Q. What was it that turned your mind to cannabis being one of these crops.
A. High value for medicine, I could see medical cannabis as being legalised pretty soon and Riverland farmers do want to grow medical cannabis, it's been in the media.
Q. What sort of research did you do.
A. What I want to do is grow organically outdoors so research different strains and how they adapt to the external elements, pests, disease and salt of the bore water, time of planting, all I wanted was a sample of what they produce.
Q. Did you initially conduct this research physically with the plants or did you do your research elsewhere.
A. The research at first but there wasn't much information.
Q. Where did you get your information from.
A. Internet.
Q. What sort of things did you look up.
A. Varieties, medical varieties, effects, different effects, different strains, different effects, what would suit different, like, different patients, different diseases, yeah, why they take cannabis, cancers and things like that.
He told the court he purchased some cannabis seeds through the internet. They germinated but did not survive. He then purchased another 40 cannabis seed and germinated these. This was in 2014. From each of the 40 resultant plants, he took 10 clones giving a total of 400 plants in all:[4]
Q. In terms of the plants that you were growing, how many different strains did you have.
A. There was four different strains, but 40, you know, like genotypes.
Q. What were the names of the strains, you might have to help with some of the spelling.
A. Holy Grail Kush.
Q. That's kush; K-U-S-H.
A. Yes. Super Lemon Haze, LA Woman, Silver Haze. That's what I was growing at the time.
[4] T231.
He was taken in evidence to some writing on polystyrene, boxes and to numbers on paddle pops, which were effectively small stakes for two of the numerous small cannabis seedlings.
He described using the grow rooms as a nursery and then planting seeds in the vineyard to see how they would survive as an outdoor crop. He planted his 2014 crop in December. He lost a number of those plants, down to about 30 per cent. As for the crop in the vineyard, he described a similar methodology of using his home premises as a nursery and then planting the cannabis plants into the vineyard. As I understand it, his evidence is that this crop was also to see how various strains of cannabis would grow in Riverland conditions. He said the loose cannabis material in boxes and bags was harvested from the 2014 crop:[5]
[5] T244.
Q. Can you tell his Honour in relation to the cannabis that was in the deep freezers in the boxes to the best of your recollection how long it had been in those boxes for.
A. About 10 months.
Q. Is that from your previous crop.
A. Yes, previous.
Q. What were you going to do with the crop that you had in the ground at the vineyard.
A. That was going to replace, I was going to compare what I had from last year and replace that lot.
Q. When you were harvesting the plants previously did you keep all of the product that you harvested.
A. No.
Q. What did you do.
A. A lot of it got thrown out.
As to a photograph of a ladybird beetle, his evidence was:[6]
Q. Who took that photo.
A. I did.
Q. And what did you take the photo of.
A. I had an interest in the beneficial insects as well with the research for the cannabis so those lady beetles they get rid of the spider mites so yeah I was trying to encourage beneficial insects as well, it's part of the organic growing.
[6] Exhibit P6, page 3; T245.
I turn to an analysis of the evidence relating to the central issue in this trial.
I state at the outset that I do not even come close to being persuaded of the accused’s version of why he was growing and in possession of this cannabis. I consider his evidence totally lacks credibility. It is necessary that I set down why I take this view of his evidence.
I commence with the purpose that was said to be behind the enterprise. In this regard, I entirely agree with the submission of Ms Litster for the prosecution in her closing address that ‘the accused account tended to ambulate to a degree as to his primary purpose’.
The ambulation covered a number of bases: the search for a crop that would exploit ground water in the Riverland; a high value Riverland crop; the prospect that at some stage there would be permits for medicinal cannabis; an interest in different strains of cannabis and the extent to which they could withstand outdoor conditions in the Riverland; a desire to grow cannabis organically; or an interest in using cannabis oil to treat particular medical conditions. Whilst all of these were touched on, the accused evidence lacked a consistent or coherent theme as to just what it was that he was researching, investigating, or setting out to achieve, with this enterprise. Little wonder that his counsel needed to resort to leading questions on a number of these topics, as very little actual information was forthcoming from the accused.
He could point to no actual evidence of any research that he embarked on, such as articles, notes or the like. Similarly, there was no evidence of any results of this research, investigation, or experimentation that he says he was conducting. He did say he had a diary which recorded the location of specific plantings, but this was destroyed.
His evidence lacked cohesion, or a ring of truth, as to the various topics he touched upon. True it is, in his evidence he used words such as genotype or trichrome; but these and other phrases were used in a superficial fashion and lacking in any meaningful context or explanation. Similarly he displayed a total absence of any detailed knowledge on topics such as plant pests, plant diseases, and salinity issues.
Importantly, if this was some sort of research project into those issues, it is extraordinary that he would not have a single note, chart, or other record linking those sorts of topics to the specific strains that he said he planted. That is one of the primary purposes he proffered, for the enterprise.
His evidence also omitted to give any explanation of how it was that he would know what strains he was cloning and planting in 2015, given that were no notes or records of the strains that made up the 30 per cent survivors of the 400 plants comprising the 2014 crop.
For those reasons I found the overall theme or themes of his evidence totally implausible. In addition to that, there are a number of specific issues upon which his credibility is seriously undermined in my view. These include the following:
Firstly, his evidence relating to numbering the stakes.
It was sometime after the police raid that he gathered the stakes into a pile and took a photograph of them, with some stakes showing clear numbers. The police did not notice numbers on the stakes, although true it is that it was at night when they were pulling up the crop. There are no numbers visible on the numerous stakes shown in the photographs. He initially told the court that ‘I labelled each plant with a number or symbol on a bamboo stick’[7]. And that he subsequently took the photographs to show that ‘each plant was individually labelled’[8]. However, when asked why the photograph depicted a great deal of the pulled up bamboo stakes had no numbers, his evidence changed to putting a numbered stake at each end of the row and knowing they would all be of the same variety.
[7] T237.
[8] T239.
Secondly, the four plastic bags of cannabis according to Ms McKew, they contained the following weights of cannabis: 27.4g, 26.2g, 26.9g and 9.1g.[9]
[9] Exhibit P9, Certificate of Analysis dated 24 May 2016.
This evidence is consistent with the bags being effectively ‘ounce bags’ of cannabis; with the fourth bag containing whatever was leftover at the time the bags were packed. He says he did not weight this cannabis, but put it into the bags to throw it away. The accused evidence that this cannabis was mouldy is at odds with the evidence of Ms McKew. He explains this by suggesting it was mouldy from the ‘inside out’ whatever that is supposed to mean. It is implausible that he would go to the trouble of putting it into individual bags in order to throw it away. It is equally implausible that three of the bags would be very close to an ounce, simply because that was all that could fit in the bags.
Thirdly, I find it equally implausible that he would have thrown out most of the product from the 2014 crop; but kept the remainder for some sort of comparison with the 2015 crop; or that he proposed to throw away the 2015 product as well. True it is that a couple of the boxes had some writing on them. But the same observation can be made about the boxes, as for the stakes or indeed the paddle pops for the pots with small plants in them: The accused is able to point to some letters and some numbers on some of these items. But the majority appear unmarked and unnumbered. The evidence falls well short of amounting to any meaningful or systematic record keeping that is consistent with some sort of research project for different strains of cannabis.
I have given careful consideration to the submission of Mr Allen relating to the evidence on Count 3.
That Count relates to the loose cannabis material in the bags; and the loose cannabis material in the polystyrene boxes.
As to the four bags depicted in Exhibit P5, tab 2, page 16, Detective Nelson said they appeared to contain cannabis head and appeared to be or be similar to ounce bags.
However, with respect to two of the polystyrene boxes, depicted in Exhibit P5, tab 2, page 12 and 13, they appeared to him to depict what he would class as ‘rubbish’. It looked to him like ‘a bit of dried leaf and a bit of stalk and things’. He considered it would be difficult to sell.
This evidence of Detective Nelson is from his viewing of the photographs of two of the four boxes of loose cannabis material.
Ms McKew examined the exhibits themselves. In her Certificate of Analysis she described the four exhibits as follows:[10]
A sealed foam box containing 1.68kg of female flowering Cannabis plant material on cut partially stripped stem pieces up to approximately 25cm long.
A sealed foam box containing 778g of female flowering Cannabis plant material on cut partially stripped stem pieces up to approximately 25cm long.
A sealed foam box containing 1.30kg of female flowering Cannabis plant material on cut stem pieces up to approximately 25cm long.
A sealed foam box containing 1.74kg of female flowering Cannabis plant material on cut stem pieces up to approximately 20cm long.
[10] Exhibit P9, Certificate of Analysis dated 24 May 2016.
Ms McKew was asked to give further detail of her observations of the material in the four boxes:[11]
Q. Those details recorded in the Certificate of Analysis, did you make any observations about how many flowers were located on each of those samples of cannabis taken from each of the boxes or the proportions of different type of plant material within each of those boxes.
A. Yes, I did. At the time I made an estimation as to the proportion of leaf, stem and female flowers and in the first foam box described I estimated that there was approximately 60% female flower 35% stem and 5% leaf, in the second foam box described I estimated approximately 50% female flower 40% stem and 10% leaf, in the third box described I estimated approximately 50% female flower, 40% stem and 10% leaf, and in the last foam box described approximately 50% flower 40% stem and 10% leaf.
Q. When you looked at the proportion that was female flowers in each of those boxes could you make an assessment of how mature those flowers were or is that something that is not possible to do.
A. My notes indicate I was able to identify this material macroscopically by the naked eye and they were female flowering heads on the stem pieces.
Q. Did you make any observations about whether the plant material appeared to be cut or anything like that.
A. I describe them as on cut partially stripped or cut stem pieces and how long they were which indicates to me that they have been cut from a plant.
Q. How long were they in general.
A. 20-25 cm long.
[11] T194-195.
Insofar as there is a divergence between the evidence of Detective Nelson and Ms McKew on this topic, I prefer the evidence of Ms McKew. Detective Nelson was giving his evidence purely from viewing the photographs. His evidence related to only two of the boxes. Ms McKew made a thorough examination of the material itself, and gave a specific description of the contents of the four boxes in the Certificate of Analysis. Moreover, at the time of her examination she turned her mind to, and noted, the respective proportion of female flower, stem and leaf.
The plain inference from the evidence of the material in the boxes and the bags is this: when that material was harvested and dried, partially stripped stem pieces were placed into the polystyrene boxes. These required further stripping or culling of stem and leaf before they could be bagged as saleable female cannabis head. The four bags found with the polystyrene boxes are examples of this further processing of the material from the polystyrene boxes, into saleable material in the bags.
My analysis of the evidence set out above is in the context of the proper concession that the relevant statutory presumptions are operable. In relation to each of the counts the accused has failed to displace the operation of the statutory presumption because I totally reject his evidence as to his intention for cultivating the plants and his intention for being in possession of the harvested material. As noted above, his intention in relation to each of the three counts was the only issue at trial. In relation to Counts 1 and 2, I conclude that the prosecution has established each count to my satisfaction beyond reasonable doubt.
In relation to Count 3 the matter is not so straight forward. In order to prove Count 3 as charged, the prosecution need to prove the intention to sell a large commercial quantity of cannabis, namely 2 kilograms. The statutory presumption does not avail the prosecution in this regard. I need to be satisfied beyond reasonable doubt that the accused had an intention to sell at least 2 kilograms of the loose cannabis material in order to convict of Count 3.
As noted above, I consider the clear inference is that the accused would have further refined the material in the polystyrene boxes down to female flowering head; in other words removed the stem and leaf material. His intention to sell related to the flowering head component of the material in the boxes. I have already referred to Ms McKew’s evidence of her estimations of the percentage weight of flowering head material. She estimated they contained sixty per cent; fifty per cent; fifty per cent; and fifty per cent flowering head. She agreed with Mr Allen in cross-examination that where she estimates fifty per cent; it could have been lower than that; even down to 40 per cent, because they are estimates; although her evidence was that on occasions she has specifically weighed materials in order to check on her estimations. However, she acknowledged that there is a margin of error in her estimations.
The total weight of the material in the four boxes was 5.498 kilograms. Even rounding Ms McKew’s estimates down to 40 per cent across the board, this would still be 2.2 kilograms flowering head in the four boxes. In addition to this there are the four bags that have already been processed down to saleable flowering head material: Their total weight was 89.65 grams.
For the reasons I have already set out, I consider his intention to sell related to the female flowering head component of the loose cannabis material. That is the inference I draw, and the finding I make beyond reasonable doubt.
On Ms McKew’s rounded down estimates, the amount exceeds two kilograms, but by a fairly narrow margin. She acknowledged they were estimates, and readily agreed to a margin of error from 50 per cent down to forty per cent. In other words, she was not purporting to be giving any more than fairly broad estimates.
In these circumstances, and given that the amount of flowering head exceeds the two kilogram benchmark by a narrow margin; I consider I should give the accused the benefit of the doubt. It is a reasonable possibility that the total flowering head he intended to sell, was under the two kilograms: close to, but under. Plainly it exceeded one kilogram, and I so find beyond reasonable doubt, based upon the evidence of Ms McKew.
I wish to point out that even without the operation of the statutory presumptions, I would have reached the same conclusion on each of the three counts. Whilst it is not strictly necessary for me to do so, I wish to briefly note why it is that I would have come to the same conclusion as to the accused intent in relation to each of the crops and the loose cannabis material, even without the operation of the statutory presumptions. That evidence, very briefly stated is as follows:
·the number of plants in the vineyard and at the accused’s home premises;
·the nature of the operation involving a nursery at his home and an outdoor crop concealed in the vineyard;
·that the accused had gone to some trouble and expense to set up the two grow rooms comprising the nursery and the crop in the vineyard;
·that he was in possession of a significant amount of harvested material from a previous crop;
·that some of the harvested and retained material had been further processed into the material in the three ‘ounce bags’ and the remnants in the fourth bag;
·that whilst the digital scales referred to above may well have been used by the accused at the farmers market to sell grapes, police discovered them in a bedroom of the house in which there was also a box of vacuum packaging bags under the bed;
·as well as that set of scales, there was another operable set of scales (a third set in all) depicted in Exhibit P5, tab 3, page 18, along with further vacuum packaging bags;
·that all the plants and all of the harvested material comprised female cannabis plants material;
·that this was a continuous operation involving cloning plants; getting them started in the grow rooms; transplanting them to the vineyard as required; harvesting, drying, and retaining the product and bagging the product.
For those reasons, my verdicts are as follows:
On Count 1: Guilty
On Count 2: Guilty
On Count 3: Not Guilty, but Guilty to the alternative offence of Trafficking in a Commercial Quantity of a Controlled Drug.
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