R v Perre - [2010] SADC 120

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PERRE
Criminal Trial by Judge Alone
[2010] SADC 120
Reasons for the Verdict of His Honour Judge Beazley
9 September 2010
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - CULTIVATION
Accused charged with taking part in the production of cannabis - two cannabis crops located on a property situated in dense scrub country at remote location - DPP alleges that the accused's involvement in the production was the alleged act of transporting two persons to work on the cannabis sites - 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(1)(b), s 32 (4), referred to.
R v Cosford & McDonnell-Smith [2007] SASC 147; R v Randylle (2006) 95 SASR 574; R v Abrahamson (1994) 63 SASR 139 at 143, discussed.

R v PERRE
[2010] SADC 120
Introduction

The accused is charged on Information dated 27 October 2009 with the offence of taking part in the production of a prohibited substance namely cannabis contrary to s 32(1) (b) of the Controlled Substances Act 1984. The particulars of that offence are as follows:
Domenico Perre on the 16^th day of February 2007 at Malimong, knowingly took part in the production of cannabis, a prohibited substance.
It is further alleged that the number of plants involved was in excess of 100 plants.
Procedural Matters
·Trial by Judge Alone
The accused pleaded not guilty to the subject charge and elected to be tried by a Judge without a jury pursuant to s 7 of the Juries Act 1927. The election was made very late, contrary to Rule 8 of the Juries Rules made pursuant to that Act. The accused applied for a dispensation from those rules.
There is no need to detail the reasons as to why the application was made late, however, I was satisfied that there was a proper basis pursuant to Rule 16 of the Juries Rules to waive compliance with the prescribed time limits. I was further satisfied that the accused had been properly advised as to his rights prior to making his election. I accordingly granted the application that the trial proceed by Judge alone.
·Rule 9 Notice
The accused filed a Rule 9 Notice in which he applied for the following orders:
1.That evidence of a piece of tape located on a clamp attached to an underground watering system containing the name “Dominic” be excluded from evidence on the basis that it is not relevant or alternatively is more prejudicial than probative.[1] It is to be noted that the accused’s first name is Domenico.
2.That the evidence of a proposed witness, Senior Constable Daniel Galik, as to the description of a motor vehicle travelling along the road abutting the cannabis crop sites be excluded because of its allegedly vague and unreliable nature, and in the exercise of the Court’s general discretion.
3.That the evidence of a proposed witness, Detective Brevet Sergeant David Hunt, as to his observations of dust on the vehicle owned by the accused, be excluded, inter alia, in the exercise of the Court’s general discretion.
4.That the evidence of the discovery of a small canister containing cannabis seeds in the accused’s motor vehicle be excluded, inter alia, in the exercise of the Court’s general discretion.
[1] See Exhibit P2 - Book 3, photograph 3
I referred counsel to the principles expressed in R v Abrahamson[2] as follows:
The principle that a Judge should exclude evidence, the prejudicial effect of which outweighs its probative value, can have very little part to play in a trial by Judge alone. The rule is designed to protect juries from exposure to prejudicial material which has but little probative force. The learned Judge in this case was quite able to discard any prejudicially effective evidence of this kind and to focus on such probative value as he considered that it properly bore. In my opinion, therefore, the evidence was properly admitted.
[2] (1994) 63 SASR 139 at 143
With the consent of counsel, I permitted the disputed evidence to be led on the basis that 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 that it would play no part in my deliberations.
In the event I have concluded that:
·the evidence of the piece of tape, upon which was written the name “Dominic”, will entirely be ignored by me for the reasons which will subsequently be obvious;
·the evidence of Mr Galik as to his description of the subject motor vehicle was highly relevant, and properly considered as part of the prosecution case;
·the evidence as to the dust on the accused’s vehicle was of some limited relevance. While it would have been surprising had any vehicle not had dust upon it in the country, it’s limited value was to rebut any suggestion that the said vehicle could not have been driven down a dusty road, and
·the evidence of the cannabis seeds, although potentially of some relevance, was of such little weight that I will ignore it entirely.
Background
Most of the evidence called by the prosecution was not in dispute. What was in issue was what inferences may properly be drawn, in a criminal trial, from that evidence.
There could not be any dispute as to the following background facts. The police became aware in February 2007 of two cannabis crops growing on dense scrub land, about 20 kilometres from Yumali, along the Yumali to Meningie Road. The latter road surface is predominantly a mixture of dirt and gravel. The two cannabis crops were secreted in dense scrub on the property, and positioned about 200 to 300 metres from the road surface. One crop, essentially containing seedlings, was situated about 20 metres away from a crop containing about 300 mature plants.
The watering system was quite intricate and was expertly assembled. The clamp containing the name “Dominic” was attached to a major pipe joint abutting the road. The ground was so hard that the police required the use of a excavator to expose the clamp. I infer that the clamp had been in place for a long time. The subject property is owned by “Mr E” who had no connection with those persons who established or cultivated the said cannabis crops and was entirely unaware of the existence of the crops on his property.
On the evening of 15 February 2007 a large number of police officers including members of the STAR Division attended the property and secreted themselves in various locations overnight to await the attendance of such persons as may attend to cultivate the crops.
At about 1.00am on the morning of 16 February 2007 a four-wheel drive vehicle was observed to travel along the subject road from Meningie. At about 5.35am another vehicle was observed to travel from Yumali towards Meningie. When it approached a point, approximately 300 metres away from the location of the police officers, the vehicle appeared to stop with its lights “dimming or dipping”. The subject vehicle appeared to stop for no more than 10 to 15 seconds, before continuing at a steady speed in its original direction towards Meningie. No one observed nor heard a car door open nor did any one observe any person to either exit the vehicle nor move in or around the vicinity of the vehicle.
The only witness to have observed this vehicle was Senior Constable Daniel Galik. His capacity to recognise or identify the type and make of vehicle was the subject of significant dispute at the trial. Senior Constable Galik gave evidence as to the dark conditions at the time; the effect of the headlights coming towards him; and how he was placed in a prone position in the scrub land. He was unable to identify how many people were in the subject vehicle nor did he observe the driver so as to make out whether the driver was male or female. His evidence was otherwise confined to his opinion as to the make, and model of the subject vehicle. From his observations of the headlights and the shape of the subject vehicle’s chassis, he opined that it was a light coloured, late model Magna motor vehicle. At about 6.10am the accused was observed to be asleep in his parked dark blue Magna sedan in Meningie. Between 6.00am and 6.18am two persons appeared at the crop sites and were arrested by police. The were respectively identified as Frank Perre and Kym Potter.
The nature of the subject charge
The sole bases of the subject charge against the accused of taking part in the process of the production of cannabis are that he was allegedly the driver of the subject motor vehicle, and that he had knowingly transported those two offenders to the subject site for the purpose of the cultivation by them of the cannabis crops.
The elements of the offence
The offence of taking part in the production of cannabis is comprised of three elements, each of which must be proved by the prosecution beyond reasonable doubt.
The elements of the offence are as follows:
·The first element is that cannabis is a prohibited substance within the meaning of the Controlled Substances Act. There was no dispute as to this element.
·The second element is that the accused took part in the production of cannabis.
This element has two parts to it. The first component relates to the acts allegedly performed by the accused. It demands proof that what he did amounts to taking part in the production of cannabis. Parliament has given a broad definition of what is meant by taking part in the production of cannabis.[3] A person takes part in the production of cannabis, if he, relevantly takes or participates in any step in the process of that production. In this case the prosecution asserts that the relevant step in the process of production of cannabis is the accused transporting two persons to the site of the cannabis crops.
The other component of this element is the proof of the accused’s knowledge. It must be proved that when he took that step as alleged by the prosecution, he did so knowing that he was, by so doing, assisting or facilitating the production of cannabis.
·The third element requires proof that the accused took part in the production of cannabis as alleged by the prosecution knowing that the substance was cannabis or at least that it was an illegal substance under the drug laws.
[3] Controlled Substances Act 1984, Section 32(4)
Circumstantial evidence
No person expressly identified the subject motor vehicle or its registration number. No person identified the accused as having been the driver of the subject motor vehicle on the Yumali Road. No person observed any one to exit the subject motor vehicle.
The prosecution case depends entirely upon circumstantial evidence. I remind myself that it is necessary to consider the weight which is to be given to the combination of all of the circumstances relied upon by the prosecution. Guilt can be inferred from that combination of facts.
I remind myself that in a circumstantial case it is not every fact relied upon to prove each element which must itself be proved beyond reasonable doubt. It is only those facts which constitute indispensable intermediate steps in the reasoning towards an inference of guilt which must be so proved.
In Shepherd v R, the High Court said:
The jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon as proof beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately[4].
[4] Shepherd v R (1990) 170 CLR 573 at 579-580
It is trite that the prosecution must prove in respect of the charge that the inference or inferences sought to be drawn from the combination of circumstances relied upon by the prosecution is the only reasonable and rational inference open on the evidence. If there exists a reasonable and rational hypothesis consistent with innocence the prosecution will not have proved its case. However, any such reasonable hypothesis must be something more than mere conjecture and must be based upon the evidence. It is for the prosecution to rebut any such reasonable and rational hypothesis consistent with innocence.
The prosecution case
The prosecution case is that it was the accused who drove his Magna sedan along the Yumali to Meningie Road at about 5.35am on the 16^th February 2007, and that he had stopped his vehicle near the entrance to the subject cannabis crops permitting two passengers to disembark. The case for the prosecution is that the accused by so doing took a step in the production of cannabis[5], and that in light of the circumstances of the secluded road; the darkness, and the proximity of the cannabis plants, the accused must have known that those passengers were involved in the production of cannabis.
[5] See R v Randylle (2006) 95 SASR 574 and R v Cosford and McDonnell-Smith (2007) SASC 147
The evidence
The prosecution called some six witnesses to give oral evidence, five of whom were police officers. In addition it tendered by consent some 20 statements comprising the evidence of certain police officers at the site; that of the registered proprietor of the subject property; those of certain employees of Telstra and Vodafone; that of a forensic scientist; and a Certificate from the Registrar of Motor Vehicles as to the type, make and colour of the accused’s motor vehicle registered No VXJ 809.
Although I have had regard to all of the evidence tendered before me it is not necessary for me to detail all of that evidence in these reasons.
I turn now to a synopsis of some of the evidence called by the prosecution.
Senior Constable Galik explained that he arrived at the subject site at 9.30pm on 15 February 2007 and that he “secreted himself approximately 10 metres off the Yumali to Meningie Road”. He said that about 1.00am on the next morning a four-wheel drive motor vehicle was observed to travel from Meningie to Yumali along that road. He made no notes of that vehicle and said that it did not stop. He said that at 5.35am a motor vehicle approached along that road travelling from Yumali. He heard it and saw the faint glow of headlights. He said approximately 300 metres from his location the vehicle stopped for a short amount of time, “maybe 10 to 15 seconds”, and the lights appeared to dim or dip. It then continued along its original direction towards Meningie. He said that at the time he made those observations he was lying down in the scrub about 10 metres from the road.
He said the vehicle drove past at a fairly steady speed, and although he was not able to identify an exact colour, he said it was a light colour in appearance against obviously the darkness of the night. He said it was a mid-sized sedan, and “from I guess the headlights and the shape of the chassis I made it out to be a Magna, Mitsubishi Magna”[6]. He said he could not make out the registration number of the vehicle and he relayed that information to the Sergeant of Police in control by radio.
[6] T. 19
He said that at approximately 6.18am, other Detectives had apprehended two males at the cannabis crop site.
When cross-examined, he said that when he first saw the vehicle he was “prone with my chest towards the ground”. He said that he maintained that position of being covert, but had the opportunity to get on his knees after the vehicle had passed. He said that at that time the gap of the subject vehicle was increasing beyond 10 metres away from him. He confirmed that he could not make out any registration details and could not identify or observe the driver of the vehicle. He said he did not see anyone get in or out of the vehicle at that time. He said that he could not say whether anybody else was in the vehicle at that time. He said his main focus on the vehicle as it approached was the headlights and that while it was passing he was able to make out the chassis and type of vehicle. He was cross-examined about whether he had said to the Sergeant of Police that it was “possibly or maybe a Magna”. He said that he would not have said anything beyond that it was “a light coloured late model Mitsubishi Magna”.
The Certificate of Registration from the Registrar of Motor Vehicles,[7] disclosed that the accused’s Mitsubishi Magna sedan was in fact of blue colour and had been manufactured some 11 years previously in 1996.
[7] Exhibit P 23
Detective Senior Sergeant Haydon Abbott had positioned himself covertly near the two cannabis crops which were separated by some 15 to 20 metres, and located about 300 metres from the Yumali Road. He said that just before 5.30am on the 16^th February 2007 he heard a vehicle travelling along the road and became aware that it had stopped. He said that he was in communication with officers in the vicinity and understood that no one had been seen to alight from the motor vehicle or walk along any access path where police were in position. He said about half an hour later two adult male persons were observed to move from the larger crop to the small crop. Both were wearing covers over their shoes to prevent leaving footprints. They were apprehended. He said that he had been advised over the police radio by the Sergeant of Police that a vehicle had been identified as possibly a Magna. He said he did not see precisely from where the two adult males had come prior to being observed in the large crop site.
Brevet Sergeant David Hunt produced photographs depicting the cannabis plants and the intricate watering system which had been connected to the major pipe abutting the Yumali Road. He said at about 7.45am on the 16^th February 2007 following the arrest of the two adult males he attended at Meningie and observed a blue Magna sedan parked in a parking bay. He said that the accused was present in that car, and that he was arrested. He described the vehicle as blue with dust over the car. He said there were two mobile phones in the centre console of the vehicle and a 35mm film canister containing some seeds. In cross-examination he described the Mitsubishi motor vehicle of the accused as “mid-coloured blue tending more towards a dark colour”. He was unable to give any evidence about where that vehicle had been prior to being parked in the parking bay or who in fact had been driving it prior to the time that the police attended.
Robert John Taylor is the senior electronic evidence specialist within the Electronic Crime Section of the South Australia Police. He was requested to extract data from a Samsung mobile telephone, two Nokia mobile telephones and an Olympus digital camera, alleged to have been found by the police in the accused’s possession He said that he had difficulty in extracting data from the Samsung telephone as well as from its SIM card. He was able to extract data from the respective SIM cards of the two Nokia mobile telephones, but only the contents of one of the Nokia telephones. Such information as was extracted was downloaded into a log eventually tendered as Exhibit P3. The relevant evidence is such that one may infer that a mobile telephone in the accused’s possession contained the numbers of the two adult males arrested by the police, namely Frank Perre and Kym Potter. The last date however of any contact between the telephone number ascribed to either of those individuals and the subject mobile telephone was in October of 2006 namely four months before the subject events.

Brevet Sergeant Stanley Lowcock gave evidence directed to the major pipe joint which abutted the Yumali Road to which the intricate watering system was connected. He said that he attempted to dig exploratory holes to locate the major pipe connection, on the subject property. He said that the ground was extremely hard and that it was necessary for an SA Water employee to bring a mini excavator to excavate around the pipe joint. He said that once it was cleared he observed a clamp around the pipe to which was connected some grey duct tape with the word “Dominic” on it. When cross-examined, he said that the ground was quite compacted so that it could have been there “for a while”. Although he could not say for how long it had been in place, he said the condition of the ground was such that it would not have been recently placed there.
Detective Brevet Sergeant Andrea Garde had provided a statement which detailed the number of cannabis plants, and an understanding of the photographs which were tendered at the trial. She also gave some brief oral evidence as to the cross-referencing between individual exhibit numbers provided by a police officer with the items numbers on the property receipts.
Senior Constable Brenton Smith, in a statement provided by him, deposed that at about 8.00 am on 16 February 2007, he had attended the parking bay on the Adelaide side of Meningie. He there observed Detective Sergeant Reichstein in the company of a male person whom I infer to be the accused, standing alongside a “darkish blue Magna sedan registered VXJ 809”.
Detective Sergeant Keith Reichstein in a statement provided by him, deposed to having arrived at Meningie at about 6.10am on 16 February 2007. He observed a Mitsubishi Magna sedan registered VXJ 809, parked in the main street. He said that he walked past the vehicle and observed a male person with his seat reclined who appeared to be asleep. He observed the rear of the vehicle was covered in dust. At about 7.40am he observed the vehicle to drive off and travel along the main street of Meningie. He said that when the vehicle had travelled out of town, it turned into a parking bay and parked. He then approached the Magna and eventually arrested the accused. The accused denied any involvement in the cannabis crop.
The accused
Upon his arrest the accused exercised his right at law to decline to answer any questions. At the trial the accused also exercised his right to remain silent and leave it to the prosecution, if it can, to prove the charge against him beyond reasonable doubt. He did not call any evidence.
I remind myself that on each occasion such an election was his right, and that I must not draw any inference adverse to him in consequence of those elections.
Addresses of Counsel
I turn now to the respective submissions. I have taken account of all of the respective submissions. I have not found it necessary to detail all of them in these reasons including whether there was a break in the chain of evidence in respect of the mobile phones.
The prosecution submissions
Counsel for the DPP, Mr Coppola, submitted that there was ample evidence upon which the Court ought infer beyond reasonable doubt that the vehicle observed by Senior Constable Galik at about 5.35am on 16 February 2007 was the accused’s blue Magna sedan; that it was the accused driving it; that it stopped on the Yumali to Meningie Road to permit Frank Perre and Kym Potter to exit the vehicle; and that the accused knew that he was driving them to that secluded place at night so that they could work on the cannabis crops hidden on the adjacent land.
The prosecution case, he submitted, was based upon the combination of the following circumstances from which of those inferences could be drawn beyond reasonable doubt:
·The Yumali to Meningie Road is unsealed and therefore dusty.
·Two cannabis crops within 300 metres of the Yumali Road approximately 20 kilometres west of Yumali were established with intricate irrigation and other agricultural equipment.
·Between 9.00pm on 15 February 2007 and 6.18am on 16 February 2007 a number of police attended at the cannabis crops and secreted themselves in the dense scrub.
·At about 5.35am on 16 February 2007 a vehicle driving along the Yumali Road from Yumali slowed down and stopped approximately 300 metres from those secreted police officers, dimming or dipping its headlights and then after a period of 10 – 20 seconds continued on its journey.
·Between 6.00am and 6.18am on 16 February 2007 Frank Perre and Kym Potter were apprehended at the drug crop site.
·At 6.10am on 16 February 2007 a blue Magna sedan registered VXJ 809 in the name of the accused was observed in the main street of Meningie.
·At 7.45am on that day the accused was apprehended whilst in the Magna sedan and at least two mobile phones were located in that vehicle.
·There was dust on the rear of the accused’s Magna motor vehicle.
·The accused knew both Frank Perre and Kym Potter.
·The clamp holding the watering system to the main pipe had tape with the name “Dominic” written on it.
Counsel for the DPP referred to the accused’s election not to give evidence at trial, as a further factor to be considered when determining whether the prosecution had proved beyond reasonable doubt that it was the accused’s vehicle driven by the accused which was observed by Senior Constable Galik in the Yumali Road at about 5.25am. Mr Coppola submitted that the Court ought to infer that the mobile phones, taken from the accused’s vehicle and which contained information in respect of Frank Perre and Kym Potter, were the accused’s mobile phones, and that he was acquainted with the two offenders arrested at the crop sites.
He referred to R v Weissensteiner[8] as authority for the proposition that, in the subject case, the failure by the accused to give evidence may be taken into account when deciding whether the case is proved beyond reasonable doubt.
[8] (1993) 178 CLR 217
In this case I do not accept that the election of the accused to remain silent can be used in the manner submitted by the prosecution.
In R v Azzopardi,[9] the High Court narrowed the application of that principle saying:
The facts which it is suggested should have been but were not, revealed by evidence from the accused must be additional to those already given in evidence by the witnesses who were called. The fact that the accused could have contradicted the evidence already given will not suffice. Mere contradiction would not be evidence of any additional fact. In an accusatorial trial, an accused is not required to explain or contradict matters which are already the subject of the evidence at trial. These matters must be assessed by the Jury against the requisite standard of proof, without regard to the fact that the accused did not give evidence.
[9] (2001) 205 CLR 50 at 60
In this case on the evidence called by the prosecution alone, I infer that the mobile phones were owned or at least possessed by the accused, and that he had some unspecified acquaintance with both Frank Perre and Kym Potter.
The accused’s submissions
Counsel for the accused, Mr King, submitted that at its highest the prosecution case was based upon conjecture or mere suspicion.
He conceded that the prosecution had established that there were two cannabis crops in production at the subject site and that Frank Perre and Kym Potter had been apprehended at that site at about 6.18am on 16 February 2007. He submitted that the critical evidence, on the prosecution case, was that of Senior Constable Galik and his suggested identification of the vehicle which had stopped for no more than 10 seconds on the Yumali Road. He submitted that even if one were to accept the evidence of Senior Constable Galik in its entirety, then what he had observed was a light coloured late model Magna sedan.
The established facts on the prosecution case were that the Magna sedan in which the accused was found asleep at 6.00am, in Meningie, was a darkish blue 11 year old motor vehicle. Mr King, submitted that even on Mr Galik’s evidence the Court could not conclude that the accused’s motor vehicle fell within the description provided by Senior Constable Galik. Mr King submitted that, in any event, there could hardly be a stronger case demanding that a warning be given of the special need for caution before convicting the accused solely upon the reliability of an apparent identification by Senior Constable Galik of the lights and chassis of a light coloured, late model Magna.
He emphasised the dark conditions prevailing at the time and in particular that Mr Galik was prone on the ground somewhat blinded by the oncoming headlights of the vehicle and was only able to view the vehicle as it passed at a steady speed. Mr King pointed to the fact that Mr Galik was unable to identify the driver; how many passengers were in the vehicle nor the relevant number plate.
He stressed the fact that no prosecution witness had seen any person alight from the vehicle nor did they hear any sound of a door opening. He submitted that it was beyond belief, given the number of police officers on site that persons alighting from the vehicle would not have been observed by someone. Indeed, he submitted that the police were all waiting for the sole purpose of intercepting persons, who happened to come to that site at that time. Mr King submitted that the stopping time in the dark, estimated at about 10 seconds, reduced the likelihood that any passenger had alighted from the vehicle at that time. He pointed out that no forensic testing of the vehicle had taken place which may otherwise have indicated whether Frank Perre and Kym Potter had actually ever been a passenger in that motor vehicle. Counsel also referred to the evidence of all of the other police officers that they had been secreted in the scrub near paths from the Yumali Road, and that not only had none of them heard anyone exit the vehicle, but none of them had seen anyone walking along any path from the vehicle to the crop site.
At its highest, he submitted, the fact that Mr Perre was located in Meningie asleep in an old model Magna may raise suspicions about him having driven along the Yumali Road, however it cannot be said that the prosecution had excluded all reasonable or rational hypotheses consistent with the innocence of the accused. Amongst those hypotheses were that it was another motor vehicle; that it was driven by someone else; that it did not carry any passengers at all; that the two offenders had alighted from the four wheel drive, and slept for a while before commencing their work.
I remind myself it is not for the accused to prove anything at all.
Discussion and Conclusion
I accept that each of the witnesses gave a truthful account of the events about which they deposed. I also accept the evidence of the various deponents who provided the statements tendered at the trial.
Putting the prosecution case at its highest one might be suspicious indeed deeply suspicious of the presence of the accused in his Magna sedan at Meningie at about 6.10am on the 16^th of February 2007. I have already found that I can infer that the two mobile telephones found in his motor vehicle were possessed by the accused and that one of those mobile phones disclosed, as addressees, Frank Perre and Kym Potter. There was, however, no evidence of any contact between them since the month of October of 2006. This is not one of those cases where there was evidence of ongoing contact between the accused and the two adult males arrested at the crop site.
Notwithstanding the obvious differences between the colour and year of make of the accused’s Magna sedan, and the vehicle identified by Senior Constable Galik, one might still suspect that it was the accused’s vehicle which had driven along the Yumali to Meningie Road at the subject time.
Even if that had been the case, and even if I were to accept that the accused was driving the vehicle at that time, I could not be satisfied beyond reasonable doubt that Frank Perre and Kym Potter were passengers in that motor vehicle at that time.
There are, with respect, many reasonable hypotheses consistent with innocence. One may only ask rhetorically why was the accused parked in Meningie? Why did the subject vehicle only stop for 10 to 15 seconds? How is it possible that none of the police observed anyone to exit the vehicle? This being a case based purely upon circumstantial evidence, the prosecution is obliged to exclude every other reasonable and rational hypothesis, consistent with innocence before I could convict the accused.
There are various rational and reasonable hypotheses for the presence of the accused at Meningie, asleep at 6.10am other than driving on the Yumali Road at about 5.35am. While I accept entirely the truth of the evidence given by each of the prosecution witnesses I conclude that the evidence of Mr Galik as to the subject vehicle being a light coloured late model Magna sedan is not merely insufficient to identify the accused’s vehicle, but plainly that latter vehicle is inconsistent with his description. On any view it was a dark blue coloured vehicle aged some 11 years at the time of the subject event.
It is plain that the evidence of the name “Dominic” on the tape attached to the clamp on the water pipe is of no assistance to the prosecution case. Not only it is an incorrect spelling of the accused’s first name, the clamp appeared to have been fixed underground for a long time.
Had however I been satisfied beyond reasonable doubt that the accused had driven his motor vehicle along the Yumali Road at 5.35am, and had I been satisfied that Frank Perre and Kym Potter had been passengers in that vehicle I would have concluded from the conditions, the secluded nature of the property and the time that the accused had taken a step in the production of cannabis, and that he knew that by so doing he was assisting in the production of cannabis.[10]
[10] See R v Cosford & McDonnell-Smith
I am not prepared to infer that the two adult males Frank Perre and Kym Potter did alight from the accused’s motor vehicle on the state of the prosecution evidence which was called. I conclude therefore that the prosecution has not proved to my satisfaction beyond reasonable doubt that the accused did take part in the production of cannabis in the manner alleged by the prosecution namely that of transporting the two adult males to the site on 16 February 2007. Accordingly I enter a verdict of not guilty to the charge.