R v Niesen & Stephens - [2006] SADC 14

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v NIESEN & STEPHENS
Reasons for Decision of His Honour Judge Clayton
21 February 2006
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
Cannabis exhibits held by the prosecution allowed to deteriorate.
Evidence of the weight of the exhibits excluded to avoid unfairness caused by the reversal of the onus of showing that the cannabis was held for the purpose of sale or supply.
Controlled Substances Act 1984 s32(1)(e), s44, s52A, s53, s61, referred to.
R v Sincovich (1994) 175 LSJS 130; R v Lushington ex parte Otto [1894] 1 QB 420; Malone v Commissioner of Police [1979] 1 All ER 256; Ghani v Jones [1970] 1 QB 693; R v Coviello (1995) 81 ACrimR 293; R v Kardogeros [1991] 1 VR 258; R v Lord & Fraser (1983) Crim LR 191; Holmden v Bitar (1987) 47 SASR 509; R v Mehmed (2002) 223 LSJS 251; Duncombe-Wall v Police (1998) 197 LSJS 398; Ben Worsley Ltd v Harvey (1967) 1 WLR 889; R v Ireland (1976) 121 CLR 321; Bunning v Cross (1978) 141 CLR 54, considered.

R v NIESEN & STEPHENS
[2006] SADC 14

By separate applications the accused have applied for an order that the charges be permanently stayed or in the alternative orders that the allegations of the weight of cannabis in the particulars of counts 2, 3 and 4 of the Information be struck out and that the prosecution be precluded from leading evidence as to the weight alleged.
The two accused are jointly charged with three counts, one of taking part in the production of cannabis and two (counts 2 and 3) of possessing cannabis for sale contrary to section 32(1)(e) of the Controlled Substances Act 1984. In the second count the amount of cannabis is alleged to be in excess of 10 kilograms and in the third count the amount of cannabis is alleged to be in excess of 2 kilograms. Those offences are alleged to have taken place at Salisbury North.
In addition, Mr Stephens was charged with a fourth count, another count of possessing cannabis for sale, which was alleged to have been committed at Modbury North. In that case, the amount of cannabis was alleged to be in excess of 2 kilograms, but the prosecution has entered a nolle prosequi in respect of that count.
A fifth count against Mr Stephens alleges unlawful possession of a sum of money.
The applications do not relate to the first count of taking part in the production of cannabis. For present purposes it is only necessary to consider counts 2 and 3.
The grounds for the applications state that the applicants were arrested and the cannabis seized on 7 May 2004. On 25 May 2004 the solicitors for the applicants advised the officer in charge of the Elizabeth criminal justice section that the cannabis in respect of which the applicants were charged was “in a green/wet condition and intact with stalks and stems”. The officer was asked to supply “the actual dried weight of the harvested material”. The facsimile assumed that the cannabis had undergone a drying process between 7 May when it was seized and 25 May when the facsimile was sent. The grounds allege that the cannabis was examined at the Forensic Science Centre of 11 May 2004 and was thereafter kept in sealed plastic bags, which prevented the escape of moisture, and led to the decomposition of the exhibits. The grounds say that further requests were made which resulted in a reweighing of some of the exhibits, but because of the method of storage in sealed plastic bags the cannabis was not dried prior to reweighing. The applicants assert that they are prejudiced in the conduct of their respective defences in that they are unable to have the cannabis examined to determine what weight of cannabis is usable (and hence saleable).
Depositions
The depositions filed on behalf of the prosecution assert that on 7 May 2004 police who were in possession of a search warrant attended at premises at Salisbury North. The applicant, Mr Niesen, arrived at the premises and provided access to the police officers. Mr Stephens was inside. Mr Niesen owned the premises.
The police officers discovered eight cannabis plants which were being grown hydroponically. Four plants had been recently harvested. Loose cannabis weighing 16,128.5 grams was located in the house. That cannabis is the subject of count 2.
Police officers searched a Holden Statesman motor vehicle registered in the name of Mr Stephens which was parked in the driveway and found a bag containing 3,188 grams of moist cannabis in the boot. That cannabis is the subject of count 3.
Several hours later the police officers, together with Mr Stephens, went to a property at Modbury North where a bag containing moist cannabis leaf and stem weighing 3,071.5 grams and other items were found. That cannabis is the subject of count 4. In the evidence, that cannabis has been referred to as “the Stephens cannabis”. While it is no longer relevant by reason of the nolle prosequi of count 4, the cannabis does form part of the surrounding circumstances and the dealings with that cannabis help understand the relevant events.
Senior Constable Porch was the investigating officer for the file relating to Mr Niesen. Constable Andrew was the investigating officer for the file relating to Mr Stephens.
A statement of Constable Andrew described the cannabis which is the subject of count 4 as “Item 1: 1 x garbage bag of cannabis off cuts and stalks, located on the kitchen floor of the premises”. In another statement he refers to that as exhibit S/S-2 “garbage bag containing cannabis stalk and leaf (police property No (04/B81490-2)”. Constable Andrew said that he took the items into his possession and entered the exhibits into the police property section. He described the cannabis located in the rear of the vehicle as Exhibit S/S-1 “cannabis head in garbage bag ... police property No (04/B81490-1)”.
Constable Buckmaster says that on searching the Statesman a large blue garbage bag was located in the boot. He said it was “three-quarters full of what appears to be cannabis head”.
Constable Ludgate took property items 81490 to the Forensic Science Centre on 10 May 2004. He described the exhibit as “... two green garbage bags containing cannabis (loose)....”.
Mr G Webber is an analyst appointed under section 53 of the Controlled Substances Act 1984. Property items 81489 were examined by him on 11 May 2004. He certified as follows:
RESULTS:
Item
1A large sealed garbag containing 3188.0g of slight moist female Cannabis plant material.
2A large sealed garbag containing 3071.5g of slightly moist Cannabis leaf material and cut stripped stem pieces up to approximately 50 cm long.
The weights reported in this Certificate are those obtained at the time of the analysis and are rounded down to the nearest whole or half gram. The total weight of Cannabis material weighed above (calculated as the sum of the rounded down weights) was 6259.5 grams.
Item 1 was the cannabis found in the Statesman motor vehicle which formed the basis for count 3. Item 2 was cannabis stalk and leaf found at Modbury North which formed the basis for count 4.
So far as the other cannabis is concerned, Constable Lapidge conveyed the items that he seized at the Salisbury North address to the Elizabeth Police Station on 7 May 2004 where he entered the exhibits onto the police property management system. The receipt number was 04/B81468.
Constable Porch said that on 10 May 2004 he had the following items released from the police property system:
·04/B81468-001          1 x cardboard boxes sticks and cannabis
·04/B81468-007          1 x paper bag of sticks and cannabis
·04/B81468-009          3 x plastic garbage bags containing cannabis
·04/B81468-018          3 x paper bags of sticks and dried cannabis
·04/B81468-019          1 x paper bag containing a small amount of cannabis
He took those items to the Forensic Science Centre.
A separate certificate of analysis, also dated 11 May 2004, was issued. In respect of those items, Mr Webber certified as follows:
RESULTS:
Item
1A large sealed box containing cut stripped Cannabis stem pieces, slightly mouldy decomposing Cannabis leaf material, some leaf material on cut stem pieces and several shopping bags with slightly mouldy Cannabis leaf material and stem pieces.
7A sealed paper bag containing cut stripped Cannabis stem pieces up to approximately 50 cm long with some leaf material.
9Three large sealed garbags containing 6333.0g, 3014.0g and 5319.0g of slightly moist Cannabis leaf and female flower material on cut stem pieces up to at least 60 cm long.
18Three sealed paper bags containing 785.5g, 369.5g and 302.5g of Cannabis leaf material with cut stripped stem pieces up to approximately 50 cm long.
19A sealed paper bag containing 5.0g of female Cannabis plant material.
The weights reported in this Certificate are those obtained at the time of the analysis and are rounded down to the nearest whole or half gram. The total weight of Cannabis material weighed above (calculated as the sum of the rounded down weights) was 16128.5 grams.
The communications between the parties
There is evidence of a course of written and oral communications between the solicitor for the accused and the prosecution. The evidence as to the oral communications is vague, however documents establish the following:
·On 25 May 2004 the solicitor for Mr Niesen contacted the Elizabeth criminal justice section writing:
It is understood that the cannabis in question was still in a green/wet condition. It was intact with stalks and stems. Can you supply the actual dried weight of the harvested material?
·The solicitor wrote again on 30 July 2004:
... we put you on notice that it is our intention to have the cannabis matter independently weighed.
We note that some of the cannabis material was wet or slightly damp when weighed.
·On 13 August 2004 the office of the Director of Public Prosecutions replied to the solicitor stating:
I note that material weighed in respect of Niesen’s matter is that material contained in items 9, 18 and 19 of the Certificate of Analysis of Gregory Webber. The sum total of the cannabis in those three items is 16128.5 grams.
I note that items weighed in respect of the cannabis found in Stephens’ vehicle and at his home are items 1 (3188 grams) and 2 (3071.5 grams) with a total weight of 6259.5 grams.
Whilst the material in respect of both matters includes leaf and stem I can see no reference to roots of cannabis plants being weighed. I note your advice that you intend to have the cannabis independently weighed.
·On 19 August 2004 the solicitor wrote to the office of the Director of Public Prosecutions requesting the investigating officer to contact the solicitor, to arrange a time when the cannabis might be taken to the forensic section and be reweighed.
·On 28 September 2004 the solicitor wrote to the office of the Director of Public Prosecutions noting, inter alia, that the writer had discussions with an officer of the Director of Public Prosecutions when the matter was at the committal stage and that the officer was to have the investigating officer contact the solicitor for the purpose of arranging a reweighing of the cannabis. The solicitor asked for the matter to be followed up.
·A further fax was sent from the solicitor to the office of the Director of Public Prosecutions on 2 November 2004 repeating that “there were discussions at the committal stage about making arrangements to have all of the cannabis material reweighed” and asking when that might be possible.
·A handwritten note on the copy of that fax indicates that an officer of the Director of Public Prosecutions contacted the solicitor by telephone on the same day, 2 November 2004. The note reads:
S/S Niesen cannabis mouldy B/C stored in plastic bag, she already told me this, and she making enquiries about Stephens cannabis.
·On 25 November 2004 the solicitors for the accused wrote again. They noted the request of 25 May 2004. They asserted that a solicitor for the accused had “made repeated requests to the prosecutor with the conduct of the matter ... to obtain the dried weight and also to have the material independently weighed with respect to both Mr Stephens and Mr Niesen”. The letter of 30 July 2004 was referred to. The letter continued:
It is now late November 2004 and there has not yet been a satisfactory response to the reasonable requests made on behalf of the two accused. I now understand that a quantity of the material has decomposed. I believe this is the material relating to Mr Niesen as per the Certificate of Analysis of Gregory Webber dated 11 May 2004. Whatever the case, this has now deprived the accused of the opportunity to have the material independently assessed and has significantly prejudiced their ability to properly conduct a defence.
Before any steps are taken to set this matter for trial ... I ask that you provide statements satisfying the various requests made on behalf of the accused and also setting out the manner in which the marijuana was handled and preserved and its current condition. I again ask for access to the material so that it may be independently assessed, if this remained relevant; a matter that can only be assess (sic) after I have received statements regarding the state of the material.
An application for a stay of proceedings was foreshadowed.
·The exhibits do not include a facsimile which the Director apparently sent to the solicitor for the accused on 29 November 2004. On 1 December 2004 the solicitor wrote to the Director referring to discussions about the cost associated with reweighing the cannabis.
The request on 25 November 2004 for a statement setting out the manner in which the marijuana was handled and preserved and its current condition was new. The earlier written documents demonstrate no more than a statement of intention to have the material reweighed.
A member of the firm acting for the accused gave evidence of a discussion which she had with the police or the prosecution unit. She could not recall whether the conversation was with a member of the Forensic Science Centre or the investigating officer. She refreshed her memory by reference to a memorandum which she had dictated on 29 November 2004. The memo contained the statement:
I also have a memory although I did not make a file note, of actually being contacted by the investigating officer who said he would himself arrange for the cannabis matter to be reweighed and I discussed with him how that should occur that is that all the various parts of the cannabis plant should be separated so that separate weights could be taken of the head, stem, leaf etc. I’ve said that I could be there whilst that took place however, he indicated that he was happy to have it done and advise as to the results.
The evidence of the solicitor at the hearing on the voir dire was that the conversation was with the investigating officer “and that we sought the cannabis to be taken apart essentially into what would have been usable or saleable, and what was stalk or stem or leaf or roots etc”. Whether such a conversation took place is an issue between the parties. The separation of the material into what was usable and what was not was not mentioned in the correspondence.
In cross-examination, the solicitor said that she had a number of conversations with two solicitors from the office of the Director of Public Prosecutions and the investigating officer. She said “the issue is very much, from my recollection, live, that it needed to be separated into what was usable and what was not”. She said that the phone call took place between 2 November and around 10 November 2004. If that was the case the conversation must have been after the solicitor had been advised that the Niesen cannabis was mouldy. The letter of 2 November referred to requests to have the cannabis material reweighed and an understanding that the police officer was to arrange a convenient time for that purpose. The letter is not consistent with the solicitor awaiting advice as to the categorisation of the cannabis. It also seems strange that the solicitor would have had a phone call with the investigating officer between 2 November and 10 November, which was after a solicitor at the office of the Director of Public Prosecutions had advised the solicitor for the accused that the Niesen cannabis was mouldy and that the office of the Director of Public Prosecutions was making enquiries about the Stephens cannabis.
Counsel for the prosecution argued that it would have been quite inappropriate and unusual for any exhibit to be taken apart. For reasons which will become apparent it is unnecessary for me to resolve this dispute as to whether the conversation occurred.
Constable Porch said he had never asked the Forensic Science Centre to separate head from stem and leaf so that it could be weighed individually. Constable Andrew also said that he had never been requested to separate the cannabis plants and submit them for the reweighing of head, stalk etc.
In my opinion the contest as to whether an unidentified person had agreed to separate the material is inconsequential. By the time the alleged commitment was given the decomposition of the exhibits was already well advanced. Also, the question of whether some undertaking was breached is not the real issue. The fundamental question is whether the prosecution had an obligation to preserve the exhibits.
Alleged prejudice
The basis for this application is the claim by the defence that it has been prejudiced by reason of the fact that it is no longer possible to examine the cannabis for the purpose of separating it into stalks, stem, head etc.
In the case of an alleged offence against section 32(1)(e) of the Controlled Substances Act 1984 a person who knowingly has in his possession more than the prescribed amount of a prohibited substance (which in this case is 100 grams of cannabis) will in the absence of proof to the contrary be presumed to have the substance in his possession for the purpose of the sale of the substance to another person.
Section 61 of the Controlled Substances Act 1984 provides that a certificate of an analyst will in the absence of proof to the contrary be proof of the facts stated in the certificate. I have already referred to the certificates of Mr Webber. Accordingly, a certificate of Mr Webber is, in the absence of proof to the contrary, proof of the facts stated in the certificate including the fact that the various items weighed the amounts set out in the certificate. The result is that the accused will, in the absence of proof to the contrary, be presumed to have had the cannabis in their possession for the purpose of sale or supply to another person.
The applicants assert that the decomposition of cannabis has resulted in an inability to establish what proportion of the cannabis was usable or unusable and that they have been deprived of evidence that may have corroborated a case that the cannabis was for personal use and not for sale.
The first question is whether the prosecution has breached some obligation to preserve the cannabis. It is only if the prosecution is in breach of some obligation that any question of prejudice or unfairness to the accused needs to be considered. On this application the onus rests with the applicant accused.

Mr Retalic for Mr Niesen relied on a letter dated 13 August 2004 from the office of the Director of Public Prosecutions to the solicitor for the accused where the Director of Public Prosecutions said there was no reference to roots of cannabis plants being weighed “as an indication that there had been discussions about separating the cannabis”. While that letter may not support any undertaking to preserve the cannabis, it shows that the prosecution was on notice that the characteristics of the cannabis would be an issue at the trial.
The duty to preserve exhibits
The search of the premises by the police officers was carried out under the authority of a warrant issued under the Controlled Substances Act 1984. In R v Sincovich[1] Judge Lunn held that while the police had the right at common law to seize property which they found during a search which would be material evidence to prove the commission of a crime, the seizure could only be for the limited purpose of preserving and retaining that property for the purposes of justice until any trial was concluded. His Honour referred to R v Lushington ex parte Otto[2]: Malone v Commissioner of Police[3];and Ghani v Jones[4].
[1] (1994) 175 LSJS 130
[2] [1894] 1 QB 420
[3] [1979] 1 All ER 256
[4] [1970] 1 QB 693
In Sincovich the police destroyed a cannabis exhibit for practical reasons. Judge Lunn found that the police acted unlawfully in destroying the cannabis.
The complaint in the present case is not that the cannabis had been destroyed, but that it was allowed to deteriorate.
Ironically the accused would not have complained if the plants had changed in character by drying out so that the weight was reduced. The initial objective of the accused was to obtain the dry weight of the cannabis. They had assumed that the cannabis was being stored in a way which would allow it to dry out. Instead it was kept in sealed plastic garbage bags which caused the cannabis to decompose and liquefy.
Subsequent to the decision in Sincovich, Parliament enacted section 52A of the Controlled Substances Act 1984 which permits the Commissioner to direct that seized drugs be destroyed, subject to the safeguards which the Act creates. Provisions of that section which are relevant to the present case are:
(1)Subject to this section, seized property must be held pending proceedings for an offence against this Act relating to the property.
(2)     If seized property-
(a)     is a prohibited substance or a drug of dependence or other poison; or
(b)     is, in the opinion of the Commissioner of Police, likely to constitute a danger if stored pending proceedings for an offence against this Act relating to the property,
the Commissioner of Police may direct that the property be destroyed, whether or not a person has been or is to be charged with an offence in relation to it.
(3)Property referred to in subsection (2) may be destroyed at the place at which it was seized or at any other suitable place.
(4)If a charge is laid, or is to be laid, for an offence in relation to property referred to in subsection (2)-
(a)     samples of the property that provide a true representation of the nature of the property must be taken and kept for evidentiary purposes;
The accused argue that the obligation to hold seized property under subsection (1) should be no less onerous than the obligation in subsection (4)(a) to keep samples that provide a true representation of the nature of the property.
If a sample taken and kept for the purposes of section 52A(4) had deteriorated in the same way that the seized cannabis has deteriorated in this case, the sample could not be said to provide a true representation of the nature of the property. For the purposes of this case it would be meaningless to produce a plastic bag full of decomposing liquid. In this case the retention of the seized cannabis has served no worthwhile purpose at all.
I find that the obligation in section 52A(1), to hold seized property pending proceedings for an offence against the Act, implies an obligation, so far as is reasonably possible, to keep the property in a condition so that it can serve an evidentiary purpose. The words of subsection (4), namely, to “provide a true representation of the nature of the property” are an appropriate way of describing the nature of the obligation under section 52A(1) to hold the property. There is no other reason for the obligation to hold the property.
Quite apart from any obligation alleged to have arisen as a consequence of the correspondence, I find that section 52A(1) created an obligation to keep the property in a condition which would serve the purposes of the property being required to be held pending proceedings.
In this case the deterioration was caused by the manner of storage, that is, storage in closed plastic bags. A little initiative on the part of the persons responsible for keeping the exhibits could have avoided the outcome.
I find that the accused are prejudiced by the deterioration of the cannabis. I find that they have been deprived of evidence which may have established that the cannabis was not in a marketable state so that they cannot now challenge the allegation that the cannabis was possessed for sale.
A similar argument was considered by the Court of Appeal in Victoria in R vCoviello[5]. In that case the debate turned upon whether the cannabis, “part of which it is not intended to sell because it is ‘dross’, can by reason of such a circumstance be said not to be in the applicant’s possession for sale”. In the present case the issue also goes to the intention of the accused. I have already referred to the deeming provisions.
[5] (1995) 81 ACrimR 293
Where, as here, the accused wishes to establish that his intention was not a commercial one, but that his intention was to put the cannabis to personal use, the ability of the accused to establish that matter is prejudiced if he is denied the opportunity to establish what proportion is “dross”, as it was described in Coviello, and what proportion was usable.
Coviello concerned different legislation and different considerations. However, one observation by the court (at 297) is pertinent to the present case:
The only relevance of the existence of non-usable plant parts is that it is a fact that could bear upon the question whether those parts were for sale. The answer to that question might, in turn, bear upon the assessment of the weight of the drug in the offender’s possession ie whether it is or is not a commercial quantity.
In Coviello, the court referred to R v Kardogeros[6] where the court had commented:
To determine whether cannabis is relevantly in possession for sale calls for a distinction between that which is for the possessor’s own use and that which he has for sale to others. It does not require a distinction between that which is usable and that which is unusable.
[6] [1991] 1 VR 258
However, the accuracy of a claim that cannabis is in a person’s possession for personal use must be assessed in the light of the amount of usable cannabis. It is not a question of whether the unusable parts, such as stalk or root, is cannabis or not, but a question of what the purpose of the accused was. If the quantity of the usable cannabis was large it is unlikely that the cannabis would be for personal use. Therefore, the quantity of usable cannabis is relevant to determining the purpose for which the accused was in possession of the cannabis.
The accused relied upon R v Lord & Fraser[7] where the accused were charged, inter alia, with a count of conspiracy to defraud. The Leeds Crown Court stayed that count on the basis that compressors which were the subject of the count, and which would have been evidence in the case, had been allowed to deteriorate. The commentary noted that there is little authority on the duty of the police to preserve articles for use as exhibits at trial.
[7] (1983) Crim LR 191
The leading case in this jurisdiction is Holmden v Bitar[8] where the destruction of evidence was discussed by Cox J. Pate, which was the subject of a prosecution under the Quarantine Act 1908 (Cth), had been destroyed leaving the defendant with no practical way of discharging an onus created by an averment provision in the legislation. Cox J considered whether the prosecution should be stayed as an abuse of process. His Honour said (at 517.5):
The application of the abuse of process doctrine to criminal proceedings is fairly new. It appears to have had its genesis in the speeches of some of the law lords in Connelly v Director of Public Prosecutions [1964] AC 1254. I attempted to deal with some aspects of the subject last year in the case of R v Vuckov (1986) 40 SASR 498. As one would expect, a stay of proceedings for abuse of process is seen by many defendants as an attractive alternative to a trial on the merits, and the case law is growing quickly. I was not referred to any reported decision on all fours with this, but that does not matter. No doubt new instances of the principle’s application will continue to be found. However, the power to order a stay of proceedings - or, it may be, to dismiss them - as an abuse of a court’s process is a quite exceptional remedy. Any procedural device that has the effect of denying an informant a trial on the general issue is a very drastic one indeed. It is not to be used simply because the court perceives some feature of the prosecution that can be characterised as ‘unfair’: cf Doyle v Leroux [1981] Crim LR 631. It can be expected that instances of its application will be rare.
Was this a proper case? I think it may have been. What was very unusual here was the combination of the averment provision and the destruction of the actual evidence. Obviously the former would not have been enough without the latter, and in many cases a court would be able to find a less dramatic but equally effective way of dealing with the mere destruction of an important piece of evidence - by reaching the same conclusion by another route, perhaps, or by finding that the prosecution had not proved its case beyond reasonable doubt.
[8] (1987) 47 SASR 509
I think that a similar combination exists in this case. There is the combination of the deeming provision in section 32(1)(e) of the Controlled Substances Act 1984 and the deterioration of the evidence.
Although the cannabis which is the subject of this case has not been destroyed, its deterioration has led to it no longer having a worthwhile evidentiary purpose.
The applicants relied upon the decision of Judge Sulan, as he then was, in R v Mehmed[9]. That decision was after the introduction of section 52A of the Controlled Substances Act 1984. The accused was charged with possessing cannabis for sale and there was a dispute as to the weight and quality of the cannabis that had been seized. The accused sought a stay on the basis that the cannabis had been destroyed. Counsel for the accused contended that with respect to one count the accused had been deprived of the opportunity to prove by independent evidence that the material seized was of such little value and of such poor quality that it was not saleable. His Honour said:
The question of how much material is useable or non-useable is a relevant factor which bears upon the question of how much of the material was for sale, or capable of being sold. These questions go directly to the issue of the accused’s purpose or intention (See Sitturio v Caviello (1995) 81 ALR 293 at 297.) There is a greater prejudice to an accused when the accused has the onus to prove that his possession of the cannabis was not for sale.
[9] (2002) 223 LSJS 251
When considering whether a stay should be granted His Honour said:
I return to the proposition that in determining whether to grant a stay the court must balance the two competing interests to which I referred earlier and in doing so the court is entitled to consider processes by which the prejudice suffered by an accused can be lessened by making rulings on evidence. I further have regard to the fact that it is not always possible to secure perfect justice to an accused.
I consider that in order to substantially alleviate the prejudice alleged by Mr Stretton [counsel for the accused] I should order that any evidence relating to weight is to be excluded. The prosecution will then carry the burden to establish beyond reasonable doubt that the accused was in possession of cannabis for the purpose of sale. If no evidence of weight can be led then the burden will not shift to the accused and the prosecution will be required to prove the case against him by evidence other than that relating to weight (e.g., electricity consumption and method of growing and drying).
Judge Sulan ordered that any evidence as to the weight of the cannabis be excluded. The consequence was that the deeming provision did not apply and the prosecution was required to prove that the accused was in possession of the cannabis for the purpose of sale.
In considering the application for a stay, Judge Sulan had regard to the fact that it had always been open to the solicitor for the accused to inspect the material. Because of that, Judge Sulan refused to grant a stay. In this case the solicitor did seek to have the cannabis weighed, but the correspondence reveals that while the solicitor had given notice of an intention to have the material weighed on 30 July 2004, it was not until 19 August 2004 that a request was made for arrangements to be made for that to happen. By that time the cannabis had already been in storage for three months. I find that for practical purposes there is a similarity between the factors that caused Judge Sulan to reject the application for a stay in Mehmed and the facts of the present case.
In this case the prosecution has conceded that freshly harvested cannabis will lose 80% of its weight. In the light of that concession the accused cannot assert that the failure to reweigh the material is of any consequence. In reality the request of the accused to weigh the dry material was inappropriate, because the material had never been allowed to dry out. What has been denied to the accused is the opportunity to obtain evidence as to the categorisation of the cannabis for the purpose of determining what proportion of the cannabis was usable.
The accused also relied upon the decision of Duncombe-Wall v Police[10]. In that case a tape-recording of a 000 phone call which was relevant to a question of credibility was accidentally destroyed by the police. On the question of the duty of the police to preserve evidence Lander J said:
The tape was re-used because of a breakdown in communication within the Police Department.
The fact of the matter is that the prosecution was on notice very early that Mr Duncombe-Wall asserted that it was he who had made the telephone calls to the Police. Whilst the Police were not told expressly it could have been reasonably inferred that it was the defence case that the telephone calls had been made for the protection of the appellant.
They were plainly and unambiguously advised that tapes should be retained. Appropriate measures were taken at the earliest opportunity by the appellant to ensure that the tape would be maintained and be available. Notices were given and a subpoena was issued.
The prosecution seems to have taken the view that as they had evidence to support the prosecution case there was no obligation upon them to preserve evidence which might support the defendant’s case.
If that was the view taken then it was wrong. The prosecution had an obligation to retain and preserve all of the evidence whether favourable or unfavourable to the prosecution case.
The prosecution, in my opinion, took a high handed attitude to what were entirely reasonable requests made by the appellant’s solicitor.
They not only dismissed those requests without reasonable explanation, they allowed the evidence which was the subject matter of the request to be destroyed thereby putting out of reach of the appellant a possibly significant piece of evidence which might have affected an assessment of the credibility of the witnesses before the Magistrate.
[10] (1998) 197 LSJS 398
Lander J found that the appellant had lost a real opportunity to put the whole of his case to the magistrate. His Honour said:
That opportunity could not have been ameliorated by any action on the part of the prosecution. There was no other evidence directly on point. This was the only independent objective evidence available to the appellant. There was no direction that could have been given to the prosecution in the presentation of its case which could have ameliorated the hardship which the appellant suffered by reason of the destruction of the evidence.
It is no answer to the appellant’s argument that this evidence was destroyed simply because of a failure of communication within the Police Department rather than for the purpose interfering with the appellant’s fair trial. The purpose is not important. The end result is. Of course, if the evidence had been destroyed to deny the appellant a fair trial then an order would have gone immediately.
Having regard to the efforts to which the appellant went to ensure the preservation of the evidence, and the failure of the respondent to prevent the destruction of the evidence, and the importance of that evidence in the assessment of the credibility of the witnesses in a case in which credibility was all important, this is one of those rare cases where an order ought to be made.
His Honour concluded:
In the circumstances of this case the destruction or the obliteration of the evidence was such as to lead to unfairness and, in my opinion, was such as to justify a permanent stay of the criminal proceedings. There was nothing that could have been done to rectify or remedy the absence of the evidence: Jago v District Court of New South Wales (1989) 168 CLR 23.
Notwithstanding an absence of bad faith on the part of the prosecution, this is a matter which in my opinion in fairness dictates that a permanent stay should be ordered.
In the present case it is said that the prejudice arises as a consequence of the reversal of the onus. Even if there was no reversal of onus the unavailability of evidence of the quality of the cannabis may deny the accused of access to evidence that the quantity of cannabis was not marketable. Determining what proportion of the notional dry weights of 3.2256 kilograms and 637.6 grams of cannabis was for personal use may depend upon how much of the cannabis was usable.
In Kardogeros McGarvie J, who was in dissent, referred to Ben Worsley Ltd v Harvey[11] where bakers were charged with having in their possession for sale loaves of bread. The Divisional Court held that loaves were not in the possession of the bakery for sale until the process of manufacture had been completed and they had been checked and sorted out for the purpose of deciding which of the loaves was for sale. McGarvie J said:
Just as in that case a loaf was not possessed for sale until it was decided that it was to be the subject of ultimate sale, in this case the portions of cannabis plant which were never intended to be the subject of sale were not possessed by the applicant for sale. In holding that the whole stock was not in possession for sale since there were still to be selected the loaves which would be and those which would not be for sale, I consider that case inconsistent with the respondent’s submission in this case that the whole of the cannabis plants were in possession for sale.
In my opinion it would require strong words or a high degree of necessity arising from the context and the situation with which the Act deals, before portions of cannabis plant never intended to be sold were treated as part of a quantity in the applicant’s possession for sale.
[11] (1967) 1 WLR 889
In the present case the reversed onus rests with the accused. However, it is open to the accused to demonstrate that portions of the cannabis were never intended to be sold. The accused have been denied evidence which goes to that issue.

While the ultimate enquiry must focus on the purpose for which the accused were in possession of the cannabis, rather than whether the cannabis was usable or not, there are inferences that may be drawn as to the purpose of the accused which may be drawn from the amount of usable cannabis. The accused would wish to minimise the usable quantity by making allowance for the drying process (which has been conceded) and by making allowance for stalk and other parts of the cannabis plants which may have been unusable.
Identifying the alleged unfairness
In this case the condition of the cannabis has deteriorated. As I have mentioned the first request for the cannabis to be produced as opposed to advice that a request would be made to have the cannabis reweighed seems to have been on 19 August 2004. On 28 September 2004 the plaintiffs’ solicitor enquired whether arrangements for the weighing might be followed up. On 2 November 2004 they sought advice as to whether arrangements could be made to have the cannabis reweighed. It was on that day a solicitor at the office of the Director of Public Prosecutions advised that the Niesen cannabis was mouldy because it had been stored in a plastic bag. She undertook to make enquiries about the Stephens cannabis. The concern up to that time had been about the weight, not the condition of the cannabis.
Any difficulty about the dry weight of the cannabis has been resolved by the concession of the prosecution that freshly picked cannabis might lose up to 80% of its weight.
The exhibits and the evidence
The only cannabis which is relevant to this application is the cannabis upon which counts 2 and 3 are based. A nolle prosequi has been entered in respect of count 4 and accordingly there is no need to consider exhibit 04/B81490-2.
There is a degree of confusion as to the cannabis which forms the basis for count 2. The particulars of that count allege that the amount of cannabis was in excess of 10 kilograms, but that allegation does not identify the exhibit.
Constable Porch was the investigating officer. When Constable Lapidge searched the house at Salisbury North the following items which formed part of exhibit 04/B81468 were found:
·Item 1            carton containing dried cuttings
·Item 2            foam box containing four small cannabis plants - 600-8000 (sic) ml in height
·Item 7            a flat cardboard box containing some dried leaf and stems
·Item 17         four pots containing pruned cannabis plants
·Item 9            three large plastic garbage bags. Mr Lapidge said “each bag contained vegetable matter (which he) recognised to be cannabis leaf and head”. They are the three bags which the prosecutor said weighed 14.671 kilograms.
·Item 19         a small amount ... of dried cannabis in a bowl and small quantity of cannabis head on an envelope on the floor
·Item 18         loose cannabis leaf
The items to which the receipt number 04/B81468 relate were conveyed to the Forensic Science Centre by Constable Porch on 10 May 2004. Constable Porch said that as the receptionist at the Forensic Science Centre opened the three plastic bags he noticed there was no sign of mould in the cannabis in any of the three plastic bags. Constable Porch did not take Item 2 (four small cannabis plants) for analysis.
I will not attempt a reconciliation of the various descriptions given of 04/B81468-1, 2, 7, 9, 17, 18 and 19, other than to note that there are variations between the descriptions.
Constable Porch said that on 16 July 2004 he collected the exhibits 001, 007, 009, 018 and 019 from the Forensic Science Centre. His deposition says that on taking possession of the three sealed plastic bags of cannabis (-009) “all were leaking a dark brown liquid from the small tears at the bottom of each bag” and “the cannabis in each one had turned mouldy with a very strong pungent smell to it”. His deposition does not refer to the other exhibits, nor did he give evidence about those exhibits.
At the hearing on the voir dire the prosecutor said of the cannabis which was found at the premises in Salisbury North and gives rise to count 2:
Inside the premises they found three bags of material that is described as ‘head’ and some ‘leaf’ upon analysis. Three garbage bags, that amounts to roughly 12 kilograms of cannabis. There was also a very large amount of stalks and waste that was swept up from the floor and taken away from the premises, as it had to be by the police. That was also weighed and was roughly three of four kilograms. So that is how you end up with the 16 kilograms roughly weighed at the premises.
The prosecutor continued:
I will be more accurate. There were three bags upon which analysis I regarded as item 9, three large sealed garbags of slightly moist cannabis leaf and female flower material on cut stem pieces and that weighed together 14671 grams. There was also three sealed paper bags containing what ended up being 3188 grams of leaf and stem, which is not alleged by the Crown that it was going to be sold. So the total weight when you include the five grams found in the lounge room was 17.859 kilogram. The Crown alleges that 14.671 kilograms of that was material which could be sold. That is the leaf and the flowering material on the stem pieces.
The reference to the contents of the three paper bags weighing 3,188 grams of leaf and stem may have been an error. The bag which was found in the boot of the Statesman motor vehicle (04/B81490-1) was the bag which was analysed as being 3,188 grams of slightly moist female cannabis plant material. That exhibit is the subject of count 3, not count 2.
If the conceded adjustment of 80% is made to the figure of 16.289 kilograms that figure would reduce to 3.2246 kilograms; much more than the amount required to trigger the deeming provision.
In count 3, Mr Niesen and Mr Stephens are charged with possession of the cannabis found in the boot of the Statesman motor vehicle. That cannabis was exhibit 04/B81490-1. If the weight of that cannabis was reduced by 80% to allow for notional drying of the cannabis the weight would become 637.6 grams. The weight would still be more than six times the 100 grams which is necessary to trigger the deeming provision. For the purposes of the charge it is the weight of the cannabis at the time of the offence that is relevant, not the dry weight.
The cannabis which is the subject of count 3 was seized by Constable Andrew. His deposition states that he located a large garbage bag approximately three-quarters full of what he believed to be cannabis head. Later that day when he searched premises at Modbury he found what was described as “1 x garbage bag of cannabis off cuts and stalks located on the kitchen floor of the premises”. When originally weighed the two exhibits were identified as:
·04/B81490-1 3188 grams (count 3)
·04/B81490-2 3071.5 grams (the Modbury North cannabis relating to count 4)
When Constable Andrew collected those two bags from the Forensic Science Centre on 12 November 2004 he was advised that the bags contained decomposing cannabis.
Mr Webber gave evidence on the hearing of the voir dire about the two bags of “Stephens” cannabis (case number 0402012). He said:
Bag 1 was a large sealed garbag that contained cannabis, flowering top pieces reported in the Certificate as female cannabis plant material, as being “slightly moist”.
He also noted that the bag was sweating slightly and the weight of the material was 3,188 grams. He said the top pieces were what is commonly known as “head”. Mr Webber said that he had been asked to reweigh the two bags of Stephens cannabis in November 2004.
Mr Webber said that on the occasion of the first weighing, May 2004, he had opened the bag, but had to avoid handling the cannabis for occupational health and safety issues. On the occasion of the second weighing in November 2004 the contents of bag 1 weighed 3,079 grams and the contents of bag 2, 2,561.5 grams. The cannabis was still contained in the original bags.
When asked about the condition of the cannabis at the time of the second weighing Mr Webber said that his notes indicate that in the case of each bag it was damp and decomposing. He said that was consistent with it having been sealed up in plastic for approximately six months. He made no note of the extent of the decomposition. His evidence was based upon a reference to his note rather than an independent recollection.
I mention in passing that the defendants’ solicitor had on 25 May 2004 requested “the actual dried weight of the harvested material” and on 30 July 2004 wrote putting the Director of Public Prosecutions on notice that it was their intention to have the cannabis matter independently weighed. On 13 August 2004 the Director of Public Prosecutions wrote to the defendants’ solicitor enclosing copies of the Certificates of Analysis, but there was no reference to the deterioration which Constable Porch had observed on 16 July 2004. It was not until 2 November 2004 that the Director of Public Prosecutions advised that the Niesen cannabis was mouldy and they were making enquiries about the Stephens cannabis. There is no evidence as to whether Constable Porch had advised the office of the Director of Public Prosecutions of the deterioration of the cannabis.
Mr Webber gave evidence about his initial weighing of the cannabis in May. He said item 1 was a large sealed box that contained cut stripped cannabis, stem pieces, and some cannabis leaf material which was mouldy and slightly decomposing. He said it was likely to have been the leftover material after stripping. Mr Webber said that item 7 was a sealed paper bag that contained stripped cannabis stem pieces up to about 50cm long with some leaf material. It was not weighed because in most cases stem material is not of any use and a small amount of leaf material in with that is not of great use. He said item 9 was three large tag sealed garbags that contained slightly moist cannabis leaf and female flowering material on cut stem pieces, up to at least 60cm long, and the weights of those were 6,333 grams, 3,014 grams and 5,319 grams. The total weight was 14.6 kilograms. Item 18 he described as three sealed paper bags containing cannabis leaf material, cut stripped stem pieces up to about 50cm long mostly dry and brown. The weights were 785 grams, 369.5 grams and 302.5 grams. Mr Webber noted that item 19 was a sealed paper bag that contained cannabis female flowering top pieces which weighed 5 grams. His notes indicated that material was head.
Mr Webber was asked to examine item 9 during a break in the hearing of the voir dire. After doing that he said:
The material in the bags at present is in what I would describe as a badly decomposed state, a large proportion of liquid at the bottom of the bag and the vegetable matter in a state which I would describe as probably soggy compacted plant material.
He said that it was not possible to analyse such material by normal means. He said that, if asked, he would report, “that it’s in such a badly decomposed state that it represents a health hazard and it’s impossible to adequately identify it”. He would have described it as “not in a fit state to be analysed”.
In a deposition Constable Andrew says that on 10 November 2004 he was asked to have cannabis reweighed. The deposition says he handed to an officer of Forensic Science Centre “two plastic garbage bags of decomposing cannabis”. A certificate showed item 1 weighed 3,079 grams and item 2, 2561.5 grams.
On the basis of the evidence of Mr Webber I find that the three bags which comprise item 9 are now incapable of being examined.
The evidence did not address the present condition of the other items in exhibit 04/B81468.
It is not clear what use, if any, the prosecution intend to make of item 18 of 04/B81468. That item is described as “three sealed bags containing 785.5, 369.5 and 302.5 grams of cannabis leaf material with cut stripped stem pieces up to approximately 50cm long”. The total weight on 11 May 2004 was 1,452.5 grams. When reweighed on 6 December 2004 that had reduced to 971.59 grams. The accused have not adduced evidence that item has deteriorated. The statement of the prosecutor to which I have referred mentioned three sealed paper bags containing what ended up being 3,188 grams of leaf and stem. He said that it is not alleged by the prosecution that was going to be sold.
If the need arises, I may need to make a further ruling as to items 1, 7, 18 and 19 of exhibit 04/B81468. At the present time, the only exhibit in exhibit 04/B81468, the “Niesen” cannabis, which would justify an order is item 9.
So far as count 3 is concerned, the Stephens cannabis, Constable Andrew said in a deposition that on 10 November 2004 the exhibit was decomposing cannabis and weighed 3,079 grams. That evidence is not as vivid as the evidence with respect to item 9 of the Niesen cannabis. Nevertheless I am able to find that exhibit 04/B81490-1 which relates to count 3 is not capable of being examined.
I find that the cannabis which is item 9 in the Niesen exhibit and the cannabis which is 04/B81490-1 in the Stephens exhibit has deteriorated to the extent that the accused have been denied the opportunity to have those exhibits examined and to identify what proportion is usable and what proportion is unusable.
In so far as the solicitor for the accused had advised the office of the Director of Public Prosecutions that they wished to have the material reweighed as early as 25 May 2004 the present case differs from Mehmed where Lander J refused to grant a stay because the accused had not made any requests to have the cannabis examined.
For present purposes the important considerations are my finding that a duty to preserve the cannabis arose either at common law or by reason of section 52A of the Controlled Substances Act 1984 rather than anything which transpired between the solicitors for the parties. The fact that the cannabis had deteriorated by 16 July 2004 when Constable Porch collected exhibit 04/B81468-001, 007, 009, 018 and 019 from the Forensic Science Centre makes the dispute as to subsequent dealings between the solicitors for the accused and the prosecution inconsequential. The probabilities are that the deterioration had occurred before 16 July when Constable Porch collected the exhibit.
The solicitors for the accused may have been more aggressive in their requests to reweigh the cannabis. Also their request was only a request to have the cannabis reweighed. It seems that the request to separate the cannabis, if made, was not made until after 2 November 2004 by which time the deterioration had already taken place.
In my opinion the justice of this case would be met by an order of the kind made by Judge Sulan in Mehmed, that is the order which the accused seek in the alternative.
Accordingly, I order that evidence cannot be adduced as to the weight of exhibit 04/B81468-9 (count 2) or exhibit 04/B81490-1 (count 3).
I reject the submission of the prosecution that section 52A does not apply to this case.
I also reject the belated submission on behalf of Mr Niesen that there should be a stay of count 1 because section 44 of the Controlled Substances Act 1984 makes the issue of commerciality important. Section 44 only applies to the determination of penalty. I reject the submission that there should be a stay of count 1.
The unfairness to the accused is that they have been prejudiced in their ability to discharge the reversed onus. That unfairness would be cured if the deeming provision was not triggered so as to place the onus of proving that the cannabis was not possessed for sale upon the accused. Judge Sulan achieved that end in Mehmed by an order that evidence of the weight of the destroyed cannabis should be excluded.
The situation which the court is asked to consider is the converse of that in R v Ireland[12] and Bunning v Cross[13]. Those cases were concerned with evidence which was unlawfully obtained. The present case in one where the evidence was not retained in accordance with the lawful requirement. However, there is no reason why the same principles should not apply. As the Chief Justice said in Ireland:
Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment.
[12] (1976) 121 CLR 321
[13] (1978) 141 CLR 54
I find that in the present case the conduct of the prosecution in failing to preserve the cannabis was in breach of an obligation and creates an unfair situation. In Bunning v Cross, Stephen and Aickin JJ said at page 78 “the courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law”.
If one of the parties were to suffer unfairness by reason of the failure of the Crown to preserve the exhibit, basic fairness would dictate that party should not be the accused. In arriving at that conclusion I take into account the fact that the prosecution was on actual notice that the exhibits were deteriorating no later than 16 July 2004 when Constable Porch collected the exhibit from the Forensic Science Centre, but nothing was done to rectify the problem and the defence were not advised of the situation notwithstanding the request for the material to be reweighed. I find that the conduct of the prosecution in allowing the exhibit to start to decay and then to continue to decay was reckless.
The evidence which is challenged is cogent. However, the cogency of the evidence is not a relevant consideration where there has been recklessness on the part of the prosecution. Bunning v Cross at page 79.4.
After the prosecution was put on notice that the evidence was deteriorating they did nothing. From the moment they took the exhibits into their custody the prosecution should have ensured that the exhibits would be preserved for the purpose for which they were held, that is to be used as evidence at a trial should the need arise.
There is nothing inherently unfair about evidence as to the weight of the cannabis as at 12 May 2004 per se. The unfairness only arises because of the prejudice to the accused by reason of their inability to use the exhibits to rebut the presumption of commerciality.
The immediate object is to avoid any unfairness caused by the reversal of the onus. If that could be achieved by some other means such as an order precluding the prosecution from relying on the statutory presumption it may have been unnecessary to exclude evidence of the weight of the cannabis, but the parties have not suggested any alternative.
Accordingly, I find that an order similar to that made by Judge Sulan in Mehmed is appropriate. That means that the prosecution will have the onus of establishing that the cannabis which is the subject of the order was held for the purpose of sale without the benefit of the deeming provision.
Because of the lack of particularisation of the cannabis in the Information and the uncertainty about the items other than item 9 in exhibit 04/B81468 the parties should have liberty to address me on those items should the need arise.