R v Nasilowski - [2005] SADC 125

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v NASILOWSKI
Criminal Trial by Judge Alone
Reasons for the Verdict of His Honour Judge Rice
14 September 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - CULTIVATION
Accused charged with taking part in the production of cannabis - cannabis sites on a property adjoining accused's property - prosecution case entirely of a circumstantial nature.
Held: combination of all circumstances insufficient to establish guilt - verdict of not guilty.
Controlled Substances Act 1984 s 32(4), referred to.

R v NASILOWSKI
[2005] SADC 125
Introduction

The accused is the sole owner of a rural property near Robertstown, about 150 kilometres north-east of Adelaide. He is charged with knowingly taking part in the production of 201 cannabis plants at two separate sites on the adjoining property.
The expression “takes part in the…production of…” cannabis in s 32(4) of the Controlled Substances Act 1984 is given a very wide definition. It would be sufficient if he participates in any step, or causes any step to be taken, in the production. Of particular relevance is s 32(4)(c). It would be sufficient if he:-
(c)provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which he or she is the owner, or in the management of which he or she participates.
The real question for me is whether, despite there being no direct evidence that the accused was on his property or the adjoining property, his guilt has been established within the terms of that definition.
The prosecution case rests upon the combination of the following circumstances:-
(a)The fact that the accused was the sole owner of his property.
(b)The accused was the registered owner of a trail bike found in the locked shed on his property.
(c)Materials used in the construction of the plots at the crop sites can be linked back to the locked shed on the accused’s property.
(d)The accused was a director of a company that was the registered owner of an ex-ambulance that was seen near his property.
(e)The ex-ambulance had a large water tank in its rear section, together with a pump and hosing.
(f)The accused’s property did not have any farming activities.
(g)Crop sites found on the accused’s property had previously been used to grow cannabis and these were remarkably similar to the new crop sites on the adjoining property.
As was his right, the accused did not answer police questions. He did not give or call evidence before me.
The accused’s property
The evidence shows that the accused was the sole owner of a rural property about 16 kilometres north-east of Robertstown. The Certificate of Title records it is 69.15 hectares. It is marginal country with about 14 inches of rainfall per year. Although some of the adjacent properties grew grain crops, in the main, the area is used for sheep grazing. There were no crops growing or sheep grazing on the accused’s property. The area was too remote to be on mains water.
The means of access to the accused’s property is along public, dirt roads. It is necessary in some places to open gates when going from property to property in the area, but none of the gates had locks.
On the property was what was called a “weekender”, a fairly basic timber‑framed, iron clad house with two bedrooms. The house was locked when the police attended and there was no-one present. There were a number of water tanks next to the house.
There were no cultivated areas on the property, let alone, for example, a vegetable garden next to the house.
Not far from the house was a Volkswagen car registered to a James Giannaros of Zircon Cresent, Highbury, Adelaide. The police were unable to establish contact with this man and he was not called as a witness.
Nearby to the house was a locked shed. The police gained access by removing iron-work from the door. Inside the shed there were a number of items of relevance.
First, there were two trail bikes inside, one, a Yamaha, was registered to the accused. The other, a Kawasaki, was registered to a Michael Sedlmayer of Young Street, Exeter, Adelaide. The police could not locate this man and he was not called as a witness.
Secondly, inside the shed were star droppers, three roles of heavy duty black plastic, black rubber matting, roles of chicken wire, water containers, a sack of Dynamic Lifter fertiliser, black baler bind and a bale of straw.
Outside the shed was more chicken wire, sacks of manure and bales of straw.
Location of the crop sites
As mentioned, neither crop site was on the accused’s property. However, each site was just over the fence dividing the accused from his neighbours. Both sites were on the property of brothers, Neville and Christopher Heinrich, both of whom said in evidence that they had nothing to do with the cultivations.
The crop sites were readily accessible from the accused’s property. To reach the sites the police drove south along a track, past the weekender to a point where the track divided into two. Site A was further along the right fork, Site B along the left fork.
The crop sites themselves were about 150–200 metres apart, with undulating, rocky scrub in between. Each site was about 300 metres from the weekender but in a different direction by about 90 degrees.
Crop sites themselves
Each site consisted of three plots about the same size, 1.5m x 3m, with a black plastic base and edging, and a perimeter of chicken wire held up by star droppers. The wire was fixed to the droppers by twine and, in each case, a strip of red cloth. Each plot had about 30 plants and all plants were in need of water.
There was no water source at or near each crop site. A car or four wheel drive vehicle could drive close to some of the plots but not all of them.
Each plot was covered with a mixture of straw and manure.
Where the track divided and led to the two sites, the police located a length of red thread caught in grass.
Old crop sites
The prosecution also led evidence of what were referred to as old crop sites, these actually being on the accused’s property. These sites consisted of three plots at one site and one plot at the other.
I permitted this evidence to be led on the basis I would rule upon it at the conclusion of the prosecution case. I indicated that if I reached the conclusion that the evidence had no proper use, I would ignore it and it would play no part in my deliberations.
The evidence disclosed that, in April, 1995, the police attended at this property and found cannabis growing in four plots, three plots being near to what became Site B after the police raid in December, 2003, and the single plot being not far from the point where the dirt track divided. Each of those plots was about the same size as those discovered in 2003. Further, the construction of each plot was also much the same, namely, a black plastic base, chicken wire attached to steel droppers and straw as mulch. There were about 150 plants found growing in 1995.
The accused was charged with producing the cannabis found in 1995. There were two trials and, on each occasion, the jury failed to reach a verdict. The prosecution did not proceed again and a nolle prosequi was entered.
The prosecution submitted that the relevance of the 1995 crop was solely to rebut any suggestion of innocent association with the 2003 cultivations.
Although the evidence is probably sufficient for me to conclude that someone grew cannabis on the property of the accused in 1995, there is certainly not enough for me to conclude that the accused was involved in that production or even knew of its existence. Even though there is a strong similarity between the nature and extent of the cultivations in 1995 and 2003, there being insufficient connection between the 1995 crop and the accused, in my view I cannot properly use that evidence. I ignore that evidence for the purpose of my deliberations.
Connection between 2003 sites and the accused’s property
There is a clear link between the items found at the crop sites and the locked shed on the accused’s property. Essentially, each of the materials used at the crop site is to be found in the shed, namely, black plastic or rubber, star droppers, chicken wire, baler bind, mulch and manure.
I also note from the evidence that none of those types of items was in use at any place on his property.
The connection between the sites and the locked shed is stronger in some instances than others. It must be acknowledged that most of the items used in the construction of the plots would be found on nearly all rural properties. However, there is a proved link between black plastic or rubber found at one of the sites and a role of the same material found in the accused’s locked shed (see Sergeant Tully, particularly exhibit P2, TP23-24). The conjunction of that proved link with one of the sites and the other materials used at the sites, satisfies me that the construction materials came from the accused’s locked shed.
Although I have not expressly said so far, it is plain that the same person or persons constructed the plots at each site. That is confirmed by the use of strips of red cloth to secure the chicken wire at each site. The evidence also shows that that material is the same colour, physical appearance and composition as red thread found in grass near the fork in the track that leads to the two sites.
Evidence concerning the ex-ambulance
It was not disputed that a Ford Panel Van, an ex-ambulance, registered number VGX-883, was registered to Paragon Constructions Pty Ltd. The evidence showed that the accused was the secretary of that company and the accused and Christopher Nasilowski were its directors.
The evidence also showed that an ex-ambulance, registered number VGX‑883, was seen and photographed by the police at Black Top Road, Hillbank on 6 March, 2003. There was no evidence that the accused was with the vehicle or at the property when the police attended. There is no evidence as to the ownership of that property.
Importantly, the evidence and photographs show that the vehicle had a large water tank in the rear section, together with a pump and hose. There was also a make-shift bed in the rear section. On a rear door of the vehicle was a “P” sign suggesting a driver had a provisional licence.
There were two men at the property when the police attended, one aged about 25, the other about 35. Their identities are not known.
Neighbours of the accused were called to give evidence. I accept that none of them had anything to do with the cannabis being grown.
One neighbour, at a time before the police found the cultivations in December, 2003, saw an ex-ambulance, registered number VGX-883, near to the entrance of that neighbour’s farm. This neighbour took note of strange vehicles in the area. There was one person in the vehicle, a male, dark skinned or tanned, aged about 45 to 50 years. The neighbour was only sure of one sighting and was not any more precise as to when it was made.
Another neighbour had seen an ex-ambulance on the dirt road leading to the accused’s property. All he could say was that he had seen it more than once before the police located the cultivations.
Yet another neighbour had seen an ex-ambulance in the area prior to December, 2003 but could not really say much more.
Conclusion
As deeply suspicious as the overall circumstances are, I am not satisfied as to the guilt of the accused. This being a case based purely on circumstantial evidence, I would have to exclude every other reasonable hypothesis before I could convict the accused.
There is no acceptable evidence that the accused was at his property at the relevant time. There is no evidence he was on the adjoining property where the cannabis was being grown.
There is no evidence that the accused knew the cannabis was being grown on the adjoining property. There is no evidence that he knew any of the items from his locked shed were being used to construct the plots. There is no evidence that the accused bought any of the materials or supplied them knowing their intended purpose.
There is no evidence that he knowingly allowed his property to be used by others to store or use materials for the construction of the crop site.
I am not prepared to infer the accused’s involvement in the absence of such evidence.
Further, there are other reasonable possibilities that I am not prepared to exclude. Other people, family or friends of the accused may have access to the accused’s property. It also should not be forgotten that a car and trail bike located on the property were not registered to the accused.
The inference is that the ex-ambulance was used to water the cannabis, but there is no evidence it was in the accused’s possession at the relevant time, remembering it was in someone else’s possession six months earlier.
The accused’s involvement in taking part in the production in any of the ways prescribed in s 32(4) has not been proved to my satisfaction.
I enter a verdict of not guilty.