R v Parisi
[2014] SADC 9
•3 February 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PARISI
Criminal Trial by Judge Alone
[2014] SADC 9
Judgment of His Honour Judge Boylan
3 February 2014
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
Accused charged with trafficking in a large commercial quantity of a controlled drug. Trial by judge alone - consideration of definition of "cannabis".
Verdict: Guilty
Controlled Substances Act 1984 s 4, s 61(2), referred to.
R v PARISI
[2014] SADC 9VERDICT
Tony Parisi is charged with one count of trafficking in a large commercial quantity of a controlled drug. The particulars of the offence are that he, on 25 July 2011 at Hillbank, knowingly trafficked in a large commercial quantity of a controlled drug, namely cannabis. Mr Parisi elected for trial by judge alone. I heard the trial and now deliver reasons for the verdict I am about to deliver.
OVERVIEW OF PROSECUTION CASE
On 25 July 2011, police officers searched the accused’s house at Hillbank. They found in a shed a quantity of drying cannabis and prescribed hydroponic equipment: eight ballast boxes, eight light fittings, eight light globes and a carbon filter. Also in the shed were two pipes and a bong of the types generally used for smoking cannabis.
A police officer interviewed the accused immediately after the search. Mr Parisi admitted that he was the occupier of the premises and that the cannabis and equipment belonged to him. He said that he grew cannabis once a year for his own use.
Police officers delivered the cannabis to the Forensic Science Centre where it was analysed and weighed by Mr Gregory Webber, an analyst appointed under the Controlled Substances Act. Mr Webber certified that the material was cannabis and that it weighed 11,963.0 grams. In a later statement, which I admitted at trial, Mr Webber said that freshly harvested cannabis plant material loses approximately 70 percent of its original weight as moisture on air-drying and that the original reported weight of 11,963.0 grams would, therefore, result in a fixed air-dry weight of 2,990.0 grams.
A preliminary matter
Before the trial proper began, Mr Edwardson QC, who appeared for the accused, objected to the admission of Mr Webber’s certificate. Although Mr Webber’s name appeared on the back of the Information, the Crown did not propose calling him at trial. Instead, it relied upon the evidentiary aid to proof in s.61(2) of the Act. As it turned out, while the matter was being argued, the Director changed his mind and was prepared to call Mr Webber. I was not prepared to adjourn the trial at the Crown’s request for that purpose given the history of the matter. I would have adjourned the trial to allow the Director to call Mr Webber if the accused had so requested. He did not. In my view, the certificate was admissible pursuant to s.61(2). Further, Ms McKew, another analyst from the Forensic Science Centre gave comprehensive evidence about the procedures followed there by herself and by Mr Webber. There was no possible prejudice to Mr Parisi in my admitting the certificate and I did so.
General directions
I have directed myself that the accused is presumed innocent unless and until the prosecution has proved each element of the offence beyond reasonable doubt. The accused is not obliged to say, do, or prove anything. He chose not to give evidence. He was entitled to do so and I have not drawn any inference adverse to him from his exercise of that right. He gave an explanation to police for his conduct, namely, that he grew the cannabis for his own use. I have rejected that explanation but my rejection of it is not a basis for conviction. The question always remains: has the prosecution proved each element of the offence beyond reasonable doubt?
On the issue of onus of proof I add this: the prescribed quantity of pure cannabis for a large commercial quantity is two kilograms but there is no prescribed amount for a trafficable quantity of pure cannabis in the Regulations. Accordingly, there is no “deeming provision” and no onus on the accused by way of an aid to proof for the prosecution.
Elements of the offence
To prove its case the prosecution must prove:
1that the substance is cannabis;
2that cannabis is a controlled drug;
3that the accused possessed the drug;
4that the quantity he intended to sell was a large commercial quantity.
There is no dispute that cannabis is a controlled drug and that the accused was in possession of material which the prosecution asserts is cannabis. The accused’s counsel argued however that the prosecution has not proved that the material is cannabis or that the accused intended to sell any of it, let alone no less than two kilograms of it.
Mr Edwardson QC relied upon the definition of “cannabis” in the Act in support of his argument that the prosecution has not proved that the material was cannabis.
“Cannabis” is defined in s.4:
CANNABIS means a plant, or any part (including the seed) of a plant, of the genus cannabis, but does not include cannabis resin or cannabis oil.
There is no dispute that the material analysed and weighed by Mr Webber included cannabis resin and cannabis oil. Therefore, argued Mr Edwardson, the material did not meet the definition of cannabis as it included those two substances. I do not accept that argument. In my view the words “…but does not include cannabis resin or cannabis oil” qualify the words “any part” in the definition; they do not qualify the word “plant”. The words “any part” refer to a part of the plant that has been removed from the main plant, such as a seed. If Mr Edwardson’s argument is correct, a person found in possession of fully-grown and freshly-harvested cannabis plants cannot be guilty of an offence of possessing cannabis. Mr Edwardson conceded as much. Such a construction of the section cannot be correct. I am satisfied beyond reasonable doubt that the prosecution has proved that the material was cannabis.
I am also satisfied beyond reasonable doubt that the prosecution has proved that the accused intended to sell not less than two kilograms of the cannabis. In reaching that conclusion I have not overlooked the fact that a “bong” and parts of the type used for smoking cannabis were found in a cupboard in the shed. Nor have I overlooked the fact that none of the usual paraphernalia of the drug dealer (such as scales, J-bags, tick lists and mobile telephones) were found. The sheer quantity of the cannabis found satisfies me of the accused’s intention to sell. The unchallenged evidence of Detective Brevet Sergeant Klingberg was that the cannabis was worth between $13,860 and $21,780. There was enough to produce nearly 150,000 “cones” for a smoker or between some 4,000 and 6,000 “joints”. I have no doubt that the amount of cannabis in the accused’s possession was way out of the range that a user would have produced for personal use. I am satisfied beyond reasonable doubt that the accused intended to sell not less than two kilograms of the cannabis.
I enter a verdict of “guilty”.
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