R v Leventeris - [2004] SADC 87

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v LEVENTERIS
Criminal Trial by Judge Alone
Reasons for the Verdict of Her Honour Judge Kelly
4 June 2004
CRIMINAL LAW
POSSESS CANNABIS FOR SALE
6 plants growing in accused's house. Apprximately 1.8 kg of useable cannabis in lounge. No indicia of sale present in house. Evidence of consumption of cannabis by more than one person in lounge. Accused rebutted presumption in section 32(3) Controlled Substances Act. Accused acquitted.

R v LEVENTERIS
[2004] SADC 87

The accused George Leventeris is charged with two offences of Possessing Cannabis for Sale and Producing Cannabis contrary to section 32 (1) (e) and section 32 (1) (a) of the Controlled Substances Act 1984.
Upon his arraignment the accused pleaded not guilty to the first charge of possessing cannabis for sale but guilty to the second count of producing cannabis.
Counsel for the accused Mr Retallic made certain admissions on behalf of his client in relation to count 1. He said that his client would admit that he was in possession of the cannabis the subject of count 1 and the premises at which the cannabis were found were the premises in which he was then residing.
Mr Retallic then submitted that his client wished to plead guilty to count 1 but that the factual basis of the plea would be disputed. The basis of the dispute was that his client would deny being in possession of the cannabis for sale but would concede that he was producing the cannabis and it would have been supplied to friends of his who came to his premises from time to time.
The Director opposed that course of action. A number of authorities were cited by Mr Retallic in support of the proposition that given that the charge of possession for sale or supply is one offence his client was able to plead as charged and still dispute the basis of the plea.
In the end given the nature of the particularisation of the charge in count one I ruled against Mr. Retallic’s submission.
As a consequence of that ruling the accused then elected pursuant to section 7 of the Juries Act 1927 to be tried by Judge Alone. The Director in the circumstances did not oppose that application and notwithstanding the fact that the application was out of time I ruled that it was in the interests of justice on the facts of this case to proceed in that way. The trial then proceeded in respect of count one only.
The Prosecution Case
The prosecution case was in a nutshell that on 27 day of February 2003 at Hackham the accused knowingly had cannabis in excess of 2 kilograms in his person for the purpose of selling it.
In order for the offence to be proved I must be satisfied beyond reasonable doubt of the following matters:-
That the material in question was cannabis.
That the cannabis was in the possession of the accused.
That cannabis is a prohibited substance.
The accused knew that the material was cannabis or at the very least was material which was illegal.
He had it in his possession for the purpose of sale.
Through his counsel the accused admitted that the cannabis was in his possession, that he knew it was cannabis and knew it was illegal.
Given the particularisation of the purpose for which the accused possessed the cannabis the prosecution is required to prove beyond reasonable doubt that the particular purpose which existed was the purpose of sale.
The Course of the Trial
Evidence was presented by way of the tender of the following statements and documents:-
Tony John Knott dated 28 March 2003.
Neil Innes dated 8 April 2003.
Jamie Paul Rose dated 13 March 2003.
Paul Andrew Dayman dated 22 April 2003 together with a record of interview.
Richard Andrew Hoare dated 13 March 2003.
Paul Fellows dated 10 February 2004
Samuel Peter Thomas dated 11 March 2003.
Phillip Jeffery dated 17 July 2003, 22 April 2003 and 20 March 2003.
Thomas Sobieraj dated 21 day of October 2003.
Craig Anthony Potter dated 26 August 2003.
In addition a number of documents were tendered including a bundle of 45 photographs exhibit P1, a certificate of analysis of Gregory Webber dated 12 March 2003, exhibit P2, a South Coast Exhibit Log consisting of five pages, exhibit P3, and a plan of the property at 70 Glynville Drive, Hackham West, exhibit P4. In addition to the documentary evidence tendered the prosecution called three witnesses to supplement the tendered statements, namely Craig Anthony Potter, Gregory Webber and Phillip John Jeffery.
At about 9.00 pm on the 27^th February 2003 Constables Innes and Rose were in the vicinity of the accused’s house at 70 Glynville Drive Hackham West performing unrelated traffic duties. Whilst in the street near that address both the police officers noticed a very strong smell of cannabis and formed the opinion that the smell was emanating from number 70 Glynville Drive.
They then contacted their police communications branch and requested the assistance of other police. At about 9.30 that night Detective Constable Dayman and a number of other police officers arrived at the house and knocked on the door. The accused answered the door and the accused then permitted them to enter the house via the rear door.
Inside the house the police immediately located a large amount of cannabis, the appearance of which, indicated that the accused had been harvesting cannabis at the very time when the police came to the house. There were boxes of cannabis on the floor of the lounge room, with trimmed female cannabis head inside, 5 trays were stacked upon each other containing cannabis head drying.
The police located 6 plants being grown hydroponically in a rear bedroom. It would appear that the plants in that bedroom had been trimmed. The cannabis found in the lounge room together with the discarded leaf and stem was consistent with those plants having been harvested recently.
In and about the lounge room the police found 5 pairs of scissors, several pairs of rubber gloves, a marijuana growers guide, in other parts of the house they located lighting equipment both used and unused and five bottles of fertiliser, an air purifier and a number of other items consistent with the production of cannabis by hydroponic means.
In the lounge room the police also saw a number of items consistent with cannabis being smoked at the premises. These included a pipe, a number of cigarette papers and zig zag brand filters, a rolling machine next to a bowl of cannabis which had clearly been prepared for smoking.
In addition there were a number of VB beer cans on the coffee table and in another part of the lounge room. The scene was consistent with more than one person having been involved in the harvesting and/or consumption of cannabis in those premises.
The photographs P1 show the position of all these items and the cannabis when the police attended on 27 February 2003.
Constable Jeffery said that there were no phone calls made to any phone at the house while the police were there, no scales were found and no cash. In addition later witnesses said that the packaging consistent with street level dealing in cannabis was not found during the police search. The six cannabis plants found growing in the rear bedroom of the house were identified by the Forensic Scientist Mr Webber as female cannabis plants.
The results of his analysis of the plant material which was found on the trays and in various boxes within the lounge room and other parts of the house was a total weight of 8968 grams. That plant material consisted of a mixture of female cannabis head, and a slightly moist and mouldy cannabis leaf and stem. The photographs exhibit P1, in particular numbers 31 and 32 of those photographs show two larger plastic bags containing cannabis leaf and stem. It was not disputed at the trial that those bags were to be discarded.
Mr Webber was requested to reweigh the material again on 5 August 2003. It was not in dispute when reweighed in August 2003 the cannabis weighed something in the order of 2.339 kilograms, consistent with the cannabis drying out over a period of time. The prosecution did not dispute that when the discarded stem and leaf shown in photographs 32 and 33 of exhibit P1 was deducted from that weight that the amount of useable cannabis was in the order of approximately 1.8 kilograms.
Mr Potter is an experienced police officer with particular expertise into the investigation of producing, transporting, packaging, distribution and dealing in cannabis. He gave evidence of the prices likely to be paid for cannabis in South Australia, the price obviously depending on a number of variable factors, for example the availability of the drug, the quality, the mix of leaf and head material and the quantity purchased.
Prices in South Australia as of 27 February 2003 were in the following range
For a 3 gram money bag $30 - $50.00.
One ounce (approximately 28 grams) $180 to $350.
One pound, $2,500 to $3,500.
Mr Potter agreed in cross examination that investigators often look for indications of sale at premises such as the presence of scales, plastic packaging bags of varying size, cash and mobile phones and other like items. He said however although investigators look for indications of sale at premises, given that some production is wholesale, in his experience they do not always find these common indicia of sale.
Given the weight of cannabis found in the accused’s possession, the prosecution relied on section 32 (3) of the Controlled Substances Act to establish that the accused had the cannabis in his possession for the purpose of sale.
Section 32 (3) of the Act provides as follows:
“For the purposes of this section, a person who knowingly has in his or her possession more than a prescribed amount of a drug of dependence or a prohibited substance, being an amount that is prescribed for the purposes of this sub-section, will, in the absence of proof to the contrary, be presumed to have that drug or substance in his or her possession for the purposes of the sale or supply of that drug or substance to another person”.
It is not in dispute that the regulations at the relevant time provided that the prescribed amount of cannabis for the purposes of section 32 (3) of the Act was 100 grams.
Given that the matters which the prosecution had to establish beyond reasonable doubt were admitted by the accused the onus of proof then shifted to the accused to satisfy the Court on the balance of probabilities that he did not intend to sell any of the cannabis in his possession.
The Defence Case
The accused gave evidence in his own defence. He told the court he was a thirty seven year old divorced man who shared the custody of his eight year old child with his former wife. At the date of this offence he was residing in the house at 70 Glynville Road, Hackham West.
Although he had been employed consistently since leaving school after Year 11 at Daws Road High School he was forced to resign from his previous employment after sustaining an injury to his lower back. He had originally trained as a motor mechanic and specialised as an LPG specialist, eventually becoming an Assistant Manager with a company known as Parnell LP Gas Systems. It was during that job that he sustained the injury which eventually caused his retirement from the workforce. At the present time his sole form of income is a carer’s pension.
The accused said that after sustaining the back injury he found that taking cannabis was beneficial as a relief from the inflammation and pain. In essence he began to use cannabis in preference to using Voltaren.
As a result of this he began to grow cannabis for his personal use. He said he was under the misunderstanding that expiation notices would be issued for up to three plants grown for his own personal use. He was given six plants which he was under the impression at the time may or may not become female. He was unaware of whether they were cloned or from seeds as when they were given to him they were already seedlings. In the event they were all female and on the day when the police came to his house he and two other friends were harvesting cannabis off those plants.
His friends obviously ran out the back of the house when the accused went to the front door to speak to the police.
The accused conceded that he would have shared the cannabis with his friends. He told the court he spent about $2,000 setting up the hydroponic method of growing in the rear room of the house. Most of the advice he got about growing cannabis came from the hydroponic shop where he purchased the equipment. The accused said his intention was only to grow the one crop.
Conclusion
The presumption which arises by virtue of Section 32 (3) of The Controlled Substances Act is a rebuttable presumption. It may attribute to the accused a purpose which he in fact did not entertain.
It is for the accused to establish on the balance of probabilities, that is, that it is more likely than not that he did not have that cannabis in his possession for the purposes of sale to another person.
I take into account the fact that there were none of the usual indicia of sale present in the accused’s house. I accept the accused’s evidence that he suffered a back injury and eventually used cannabis in preference to Voltaren to alleviate pain and inflammation from that injury.
I do not accept the accused’s assertion that he only intended to grow one crop in that house. The time, trouble and expense that he went to to set up the hydroponic growing method in the rear room of the house, together with the equipment and unused fertilizer lying around in the house tends to indicate that this was an ongoing venture. Nevertheless the fact that I do not believe the accused on this topic does not mean that I should necessarily disbelieve him on the rest of his evidence.
The circumstances in which the police found the accused at the house on 27 February 2003 evidenced in the photographs P1 and confirmed to some extent by the accused in evidence indicate that there were a number of people at the house at that very time, in all probability engaging in recreational use of cannabis as they trimmed the usable part of the cannabis from the plants.
When I take into account the whole of the evidence, notwithstanding that I have some reservations about certain aspects of the accused’s evidence, I am satisfied on the balance of probabilities that it was more likely than not that the accused did not intend to sell any of that cannabis. I am satisfied that he would have supplied some of that cannabis to his friends, but the Director of Public Prosecution set out to prove the intention the accused had in relation to the cannabis was one of sale not supply. The accused is therefore acquitted in relation to Count 1 on the Information.
On the alternative charge which then arises for consideration, namely Possession of Cannabis, I find the accused guilty.