R v Nikro
[2014] ACTSC 241
•25 September 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Nikro |
Citation: | [2014] ACTSC 241 |
Hearing Dates: | 11, 12, 16 September 2013, 3 April 2014 and 8 May 2014 |
DecisionDate: | 25 September 2014 |
Before: | Burns J |
Decision: | The accused is found guilty of the offence of cultivating a trafficable quantity of cannabis plants for selling (CC2012/208). |
Category: | Principal judgment |
Catchwords: | CRIMINAL LAW – Drug Offences – trial by judge alone – cultivated a trafficable quantity of cannabis plants for selling EVIDENCE – Judicial Discretion to admit or exclude Evidence – coincidence evidence |
Legislation Cited: | Criminal Code 2002 (ACT) s 615 Criminal Code Regulation 2005 (ACT) |
Cases Cited: | R v AKN [2013] ACTSC 64 |
Parties: | R (Crown) Abdul Karim Nikro (Accused) |
Representation: | Counsel Ms S Gul (Crown) Mr A Doig (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyers (Accused) | |
File Number(s): | SCC 375 of 2011; SCC 146 of 2012 |
Burns J:
On 11 September 2013 the accused, Abdul Karim Nikro, was arraigned on an indictment dated 10 September 2013 in the following terms:
(a)That between 18 January 2011 and 18 March 2011 at Canberra in the Australian Capital Territory Abdul Karim Nikro cultivated a commercial quantity of a controlled plant, namely cannabis, with the intention of selling any of the plants or their products, or believing that someone else intended to sell any of the plants or their products (Count 1); and
(b)That between 14 July 2011 and 9 August 2011 at Canberra in the Australian Capital Territory Abdul Karim Nikro cultivated a trafficable quantity of cannabis plants with the intention of selling any of the plants or their products or believing that someone else intended to sell any of the plants or their products (Count 2) (CC2012/208).
To these two counts he entered pleas of not guilty and the charges proceeded to trial before myself sitting without a jury, the accused having earlier elected trial by judge alone. In such a trial, s 68C of the Supreme Court Act1933 (ACT) provides that I may make any finding of guilt that could be made by a jury, and those findings have the same effect as a jury verdict. That section also requires me to provide a judgment setting out the principles of law I apply, and the findings of fact I rely upon. I must also take into account any directions, warnings, or comments that would, under a Territory law, have to be given or made to a jury.
The trial took place on 11, 12 and 16 September 2013, and continued on 3 April and 8 May 2014. On 3 April 2014 Count 1 was amended to allege an offence of aiding and abetting the cultivation of a commercial quantity of a controlled plant, and the accused entered a plea of guilty to that charge. Count 2, therefore, is the only remaining count on which I must render a verdict.
At this point it is convenient to set out some general principles applicable to my task. The Crown has the onus of proving the accused guilty of the charge against him. In this case the Crown does not rely upon any presumption of the purpose of the cultivation (if such be proved), and no onus falls on the accused with respect to the remaining charge. The Crown must prove each of the elements of the charge to the standard of beyond reasonable doubt, and if it fails to do so the accused must be acquitted. The case against the accused is circumstantial, meaning that there is no direct evidence that he cultivated the cannabis the subject of Count 2. In such a case, the Crown says that the guilt of the accused may be inferred from proven facts about the accused and the circumstances of the cultivation of the cannabis. In such a case, the accused is not to be convicted unless his guilt is the only rational inference available on the evidence. The accused did not give evidence during the trial, as was his right. The fact that he did not give evidence cannot be used as evidence of his guilt. He remains entitled to the presumption of innocence until such time as the Crown proves him guilty beyond reasonable doubt. I will address other principles relevant to the trial in the course of these reasons.
The charges
Count 1 relates to a crop of cannabis, totalling 105 plants, found by police at a house in O’Connor in the ACT. For convenience I will refer to this as the O’Connor crop. Count 2 relates to a crop of cannabis, totalling 99 plants, located by police at a house in Macgregor in the ACT. For convenience I will refer to this as the Macgregor crop. I will refer to the premises where the crops were cultivated as the O’Connor premises and the Macgregor premises respectively.
On 15 April 2013 I ruled that in the trial of the accused for the O’Connor crop, the Crown could call evidence of the accused’s alleged involvement in the Macgregor crop, and also his alleged involvement in the cultivation of a crop of cannabis at a house in Jerrabomberra, New South Wales (the Jerrabomberra crop), as coincidence evidence: see R v AKN [2013] ACTSC 64. At that time Counts 1 and 2 were on separate indictments, and the question of whether he would be separately tried for those offences depended upon the entitlement of the Crown to lead coincidence evidence. After I ruled that evidence of the accused’s alleged involvement in the cultivation of the Macgregor crop and the Jerrabomberra crop could be admitted as coincidence evidence with respect to the O’Connor crop, the Crown presented a new indictment containing the charges with respect to both the Macgregor and O’Connor crops. The parties then sensibly agreed that, consistent with my earlier ruling, evidence relevant to all three crops would be admissible as coincidence evidence on each charge.
Accordingly, while the accused pleaded guilty to Count 1 in an amended form, the evidence relevant to the cultivation of the O’Connor crop is still relevant to determining whether the accused is guilty of Count 2, as, of course, is the evidence of his alleged involvement in the Jerrabomberra crop. I direct myself that this coincidence evidence is admitted for a particular, limited purpose. A finding that the accused participated in cultivating the O’Connor and Jerrabomberra crops cannot be used to reason that the accused is a person of bad character and therefore the sort of person who would have committed the offence with which he is charged. Evidence of his involvement in cultivating the O’Connor and Jerrabomberra crops may only be used to reason that the similarities between those events and the circumstances in which they happened with the circumstances surrounding the cultivation of the Macgregor crop make it improbable that the events occurred coincidentally.
The O’Connor crop
The evidence linked the accused to the cultivation of the O’Connor crop in a number of ways. Surveillance of the house where the cultivation occurred recorded the accused attending the house on 19 January 2011, 23 January 2011, 12 March 2011, 15 March 2011, 16 March 2011 and 18 March 2011. On those occasions he arrived in a silver Toyota Hilux, registration YGJ41F, which he was driving. On 12 March 2011 the accused and his co-offender, MJM, carried a television inside the house.
On 17 March 2011 police executed a search warrant at the O’Connor house. The house is a three bedroom, single level brick house, with a separate “granny flat” at the rear. Extending down the north western side of the house is a driveway providing access to the rear yard. In the front yard was a garbage bin containing miscellaneous items including discarded pink coloured disposable gloves. A recycling bin was located in the driveway beside the house. It also contained discarded pink coloured disposable gloves. Another recycling bin was found in the rear yard, which contained garden waste as well as a pair of blue coloured disposable gloves.
The electricity supply entered the house via overhead electrical wires at the north eastern corner of the house. The main line where it entered the house had been split three ways so that one line went to the house meter box, one went to a meter box inside a bedroom in the house (bedroom one), and the last went to a meter box in a bedroom within the granny flat in the rear yard (bedroom two).
The house itself was sparsely furnished. The condition of the house suggested it was not being regularly inhabited. In the dining and lounge rooms there was a dining setting, a lounge and a coffee table so that a cursory inspection of the house through the front windows could suggest it was occupied. Police found cannabis being cultivated in all three bedrooms. Each of the three bedrooms had plastic sheeting covering the floors and the windows. The windows each had two layers of plastic sheeting separated by a layer of yellow coloured insulating batts. On top of the plastic on the floor were plastic pots, each containing small cannabis plants. These pots were each inside a second, larger pot which was connected to a hydroponic irrigation system. Each plant was positioned beneath an individual lamp suspended from the ceiling above it. Each lamp was connected to a power transformer on the floor. The power transformers were connected to power leads which passed through small holes in the bedroom walls to a meter box mounted on a wall inside bedroom one. Electrical leads extended from this meter box up into the ceiling cavity. Each room also had multiple air extraction filters fitted in the ceiling and floor, and a wall mounted thermometer.
The granny flat in the rear yard was a single level building of plasterboard construction and consisting of two bedrooms, a small kitchen and a bathroom. Electrical leads extended from the main house through a patio to a meter box mounted on a wall in bedroom two. These electrical leads were affixed to the ceiling and passed through small holes in the flat’s walls. The two bedrooms in the flat were set up in much the same manner as those in the main house, with numerous cannabis plants being cultivated in pots. Within the flat’s kitchen there were two 20 litre plastic containers labelled, in part, “Canna Coco A” and “Canna Coco B”, one 960 ml plastic bottle labelled, in part, “Superthrive”, plastic sheeting and other miscellaneous items.
Next to the flat in the rear yard was a shed. Electrical leads extended from the flat to the shed. The interior of the shed was entirely dedicated to the cultivation of cannabis plants in pots. The floor of the shed was covered in plastic sheeting, and the walls had been lined with plaster board. The same method of cultivation used in the main house and in the flat was used in the shed. Also located in the shed were two 20 litre plastic containers labelled, in part, “Canna Coco A” and “Canna Coco B”, one 960 ml bottle labelled, in part, “Superthrive”, and multiple bags of “Canna Coco Natural Plant Medium” potting mix.
DNA analysis of a pair of pink disposable gloves found in one of the garbage bins at the O’Connor premises provided a sample of DNA that was 47 million times more likely to have originated from the accused than from another unknown, unrelated individual selected at random from the Australian Caucasian sub-population.
In addition, the accused’s right palm print was located on the exterior surface of a cardboard box found in the main house, and his right thumb print was located on the interior surface of the same box.
The accused’s plea of guilty to the charge of aiding and abetting the cultivation of the O’Connor crop establishes beyond any doubt the fact that his attendance at the O’Connor premises was not innocent, but was in fact connected with the cultivation of the crop.
The Jerrabomberra crop
On 6 August 2011 New South Wales police executed a search warrant at a house in Maple Crescent, Jerrabomberra. Jerrabomberra is a suburb of Queanbeyan lying close to the border with the Australian Capital Territory. Inside a room at the rear of the house police located 45 cannabis plants being grown hydroponically. Photographs of the crop within the house show that the plants were cultivated in black plastic pots, with electric lights suspended from the ceiling above the pots. The power line leading to the meter board of the house had been interfered with such that electricity was diverted around the main meter to a switchboard within the house, from which the cultivation was powered. Found within the house were large plastic containers labelled, in part, “Canna Coco A” and “Canna Coco B”, the same fertilizer as found at the O’Connor crop, bags of “Canna Coco Natural Plant Medium”, and the same potting mix found at the site of the O’Connor crop. The room in which the plants were being cultivated had a thermometer on the wall, and a ducted air exhaust system.
Police had observed the accused to remain on the premises for about an hour on each of 9 May, 8 July and 13 July 2011.
When police entered the Jerrabomberra house on 6 August 2011, they found an occupant, B. While they were engaged with B they heard a “bang” from the rear of the premises. A subsequent inspection of the rear of the house revealed that a window in the grow room facing onto the back yard had been pushed or kicked out. To exit the Jerrabomberra house through the window which was broken, the accused had to travel directly through the room in which the crop was growing. After that bang, other police stationed at the rear fence of the property saw two males run out into the backyard, having made their way through the window frame. Police identified themselves and called on the two males to stop, but they attempted to flee by jumping over the side fence of the property. Police pursued the two males and eventually apprehended one, the accused. He was then arrested. After he was arrested he was found to be in possession of a number of keys, one of which fitted the lock to a hidden door leading to the cannabis crop at the Macgregor premises. I will refer to this in more detail below.
The Macgregor crop
On 15 July 2011 the accused was observed by police at a house in Macfarlane Burnet Avenue, Macgregor. The same vehicle the accused had been seen driving when attending the site of the O’Connor crop, registration YGJ41F, was observed parked in the driveway of the house. The accused was observed to converse with another male before leaving the premises.
On 8 August 2011 members of the AFP executed a search warrant at the house in Macfarlane Burnet Avenue, Macgregor. The house is a four bedroom, single level brick rendered house, consisting, in addition to the bedrooms, of a living room, dining room, kitchen, laundry, bathroom, toilet, and an internal hallway connecting the rooms. Attached to the house on the southern side is a double garage. Access to the house can be gained via a door at the front of the house, and via a door in the garage which leads into the hallway. The house was sparsely furnished, and it did not appear that people lived there regularly. Attached to the external southern wall of the garage of the house was a meter box. An examination of the meter box revealed that the electrical wiring leading into the house via the garage had been tampered with.
In the garage, police located a white melamine workbench attached to the wall at the rear of the garage and situated on a purpose-built timber base. When the workbench was removed, a hole in the western wall of the garage was revealed. A timber door had been fitted to the hole which had a single key lock on the external side. Located on the garage floor adjacent to the workbench on the northern side was a “Winfield” brand cigarette butt. A subsequent comparison between the DNA found on this cigarette butt and the appellant’s DNA revealed that the DNA from the cigarette butt was at least 646 billion times more likely to have originated from the accused than to have originated from another unknown, unrelated individual selected at random from the Australian Caucasian sub-population. I am satisfied that the DNA found on this cigarette butt is the accused’s DNA. Police forced open the timber door in the garage, revealing a void with a ladder allowing access to an underground basement. The room under the garage was approximately 12 m x 12 m in size, and was separated into two sections with a gyprock partition wall from the north side of the room. For the purposes of their examination, police designated the eastern section of the basement as “room 1” and the western section was designated “room 2”.
On the western wall of room 1 there was a fuse box, without a front cover. There were 12 circuit breakers within this fuse box all shown to be in the “ON” position. Electrical conduit extended from this fuse box up into the ceiling cavity and through a hole in the gyprock partition wall into room 2. There were a number of air extraction filters extending from the roof cavity into various areas within the room. Room 1 contained 48 plastic pots containing small cannabis plants laid out in seven parallel rows across the floor. Each of the pots was placed within a larger plastic pot which was connected to a hydroponic irrigation system fed from three plastic water tanks on the western side of the room against the partition wall separating rooms 1 and 2. There were 30 heat lamp canopies suspended from the ceiling and positioned above the plants within the room. Each of the lamps was connected to a power transformer, “JB Ballast HPS 1000” model. There were 30 power transformers in total, each plugged into electric sockets which were hanging from the wiring fed through the ceiling cavity. Room 1 also contained 2 thermometers, 8 electric fans affixed to the walls, empty black plastic pots, black plastic bin bags containing green vegetable matter, a quantity of cartons labelled “Gravox Traditional Gravy”, 4 x 20 litre containers labelled “Coco” liquid and bags of “Coco” fertilizer.
Room 2 had a similar layout to room 1 and contained 49 plastic pots containing small cannabis plants laid out in seven parallel rows across the floor. Each of the pots was placed within a larger plastic pot which was connected to a hydroponic irrigation system fed from three plastic water tanks on the eastern side of the room against the partition wall separating rooms 1 and 2. There were 30 heat lamp canopies suspended from the ceiling and positioned above the plants within the room. Each of the lamps was connected to a power transformer of the same model found in room 1. There were 30 power transformers in total, each plugged into electric sockets which were hanging from wiring fed through the ceiling cavity. Room 2 also contained one thermometer, seven wall mounted electric fans and two pedestal electric fans, empty black plastic pots and bags of fertiliser.
Inside the house in Macfarlane Burnet Avenue, police located another “Winfield” brand cigarette butt in the sink in the kitchen. A subsequent comparison between DNA found on this cigarette butt and the accused’s DNA revealed that the DNA on the cigarette butt was at least 1 billion times more likely to have originated from the accused than to have originated from another unknown, unrelated individual selected at random from the Australian Caucasian sub-population. I am satisfied that the DNA found on this cigarette butt was the accused’s DNA.
When he was arrested in New South Wales on 6 August 2011 the accused was found to be in possession of a number of keys. One of those keys was found to fit and to operate the lock to the hidden wooden door allowing access to the underground room beneath the garage at the house in Macfarlane Burnet Avenue. The key and the lock to the wooden door were subsequently examined by Mr Ross Squire, a forensic locksmith. The accused did not dispute Mr Squire’s qualifications. Mr Squire confirmed that the key taken from the accused on 6 August 2011 operated the cylinder of the lock from the wooden door smoothly. The lock was a five pin cylinder and the lock’s cylinders and the key were a correct code match for each other. Mr Squire examined the lock and the key both macroscopically and microscopically and concluded by virtue of common areas of operational wear to the key and the lock that the key “had been in long use in the subject lock’s external cylinder”. He also observed grease and fibres of similar appearance on the surfaces of both the lock and key, although he considered this to be of lesser importance than his observations concerning the wear pattern to the key and lock. In that regard Mr Squire said:
But the type of damage that we are referring to here on the sample key and the cylinder in question are resulted from operational damage so effectively the key and the cylinder have had a correct interaction. The key has been able to pass from its locked point and the damage occurred while the key was actually rotated within the cylinder body.
Mr Squire did not know how many locks of the type found on the wooden door had been manufactured, nor how many keys to those locks may have borne the same pattern as that found in the accused’s possession. It remained theoretically possible that the wear pattern Mr Squire observed on the key taken from the accused’s possession could have resulted from its use in a lock with identical manufacturing defects to that which was found in the wooden door. The evidence of Mr Squire, however, suggests that this is extremely unlikely. I am satisfied based upon the evidence of Mr Squire that the key found in the accused’s possession on 6 August 2011 not only operated the lock in the wooden door at the Macgregor premises, it had also been used in that lock. I may say that even if I could not be satisfied that the key found in the accused’s possession had actually been used in the lock to the wooden door leading to the cannabis crop in the Macgregor premises, the fact that the key fitted and operated that lock by itself is very significant and persuasive circumstantial evidence.
A trafficable quantity of cannabis plants is 10: see Schedule 2, Criminal Code Regulation 2005 (ACT). A person cultivating a plant if, inter alia, they engage in its cultivation: s 615 Criminal Code 2002 (ACT). Cultivation of a plant includes “guarding or concealing the plant (including against interference or discovery by humans or natural predators)”: s 615 Criminal Code 2002 (ACT).
Consideration
The accused’s plea of guilty with respect to the charge concerning the O’Connor crop establishes that his attendance at the O’Connor premises was not innocent, and that he was aware of and aided in the cultivation of the O’Connor crop. The evidence also establishes beyond reasonable doubt, I am satisfied, that the accused was also involved in the cultivation of the Jerrabomberra crop. There is strong circumstantial evidence linking the accused to the Macgregor crop. Surveillance records him at the premises on at least one occasion, albeit for a short period. The accused’s DNA was found on two cigarette butts at the Macgregor premises, including one found in the garage adjacent to the hidden door. He was found on 6 August 2011 to be in possession of a key that operated, and had operated, the lock to the concealed wooden door in the garage of the Macgregor premises which led to the basement where the cannabis crop was being cultivated. The method of cultivation adopted at Macgregor is very similar to that adopted in Jerrabomberra and O’Connor. By itself, this would not carry very much weight as the method of cultivation, in my opinion, is not particularly unusual. Similar brand fertilisers were found at all three premises.
I am satisfied beyond a reasonable doubt that more than the trafficable quantity of cannabis plants were being cultivated at the Macgregor premises. I take into account the accused’s involvement in the O’Connor and Jerrabomberra crops as coincidence evidence with respect to the charge concerning the Macgregor crop. I make it clear that I do not use the evidence concerning his involvement in the O’Connor and Jerrabomberra crops to reason that he is guilty of the charge relating to the Macgregor crop because he is a person of bad character, or the sort of person who would commit that offence. I have used that evidence to reason that it is improbable that the accused was innocently connected with the premises at Macgregor. It beggars belief that the accused would have been coincidentally innocently attending the Macgregor premises when, at around the same time, he was attending two other premises where he was involved in cultivating cannabis.
The clear purpose of the wooden door giving access to the basement where the Macgregor crop was cultivated was, in combination with the bench placed in front of it, to conceal the crop. The accused’s possession of the key to the lock to the wooden door satisfies me beyond reasonable doubt that his role in the cultivation of the Macgregor crop extended, at least, to concealing the crop. The case against the accused is circumstantial, so that he may only be found guilty if there is no reasonable hypothesis consistent with his innocence. I am satisfied that there is no reasonable hypothesis consistent with his innocence. I am satisfied beyond a reasonable doubt that he is guilty of the offence.
| I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns Associate: Date: 25 September 2014 |
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