R v Perrina No. DCCRM-98-955

R v PERRINA
[2000] SADC 73

Judge Muecke
Criminal

Background

By Information filed on 9 December 1998 Antonio Perrina (‘accused’) was charged with producing cannabis contrary to s32(1)(a) of the Controlled Substances Act, 1984. Particulars of the offence were that between 17 March 1998 and 17 July 1998 at O’Sullivan Beach, he knowingly produced cannabis, a prohibited substance. It was further alleged that his offence involved 57 growing cannabis plants.
On 13 November 1998 the accused was committed for trial in this Court. He was arraigned on 14 December 1998 and pleaded not guilty. His trial was ultimately fixed to commence on 26 October 1999.
By Rule 9 application dated 5 July 1999 the accused sought a hearing on the voir dire to determine the admissibility of the following evidence:
(a) All items of physical evidence discovered as a result of the police search of premises at 1 Tingara Drive, O’Sullivan Beach (‘O’Sullivan Beach premises’) on 16 July 1998.
(b) All items of physical evidence discovered in the applicant’s van on 16 July 1998.
(c) All conversations with the applicant.
(d) Two keys discovered in the applicant’s possession.
The accused particularised the grounds relied on to exclude each of the above items and conversations.
As to the items in paragraph (a) (discovered in the house), he alleged the search of the O’Sullivan Beach premises was not conducted with his consent and was unlawful. He further alleged that sampling of cannabis found at the premises was not in accordance with regulation 8A of the regulations made pursuant to the Controlled Substances Act.
As to the items in paragraph (b) (discovered in his van), he alleged that search was conducted in breach of police standing orders and Crime Command Circular 93/14, and he further alleged that evidence was not relevant as it could not be related to any offending at the O’Sullivan Beach premises or, in the alternative, was more prejudicial than probative and is evidence of propensity.
As to the conversations (paragraph (c), he alleged they were not conducted in accordance with s74D of the Summary Offences Act.
Finally, as to the items in paragraph (d) (two keys found on the accused), he alleged his arrest was not a lawful arrest in that his requests to contact a solicitor were not facilitated as soon as reasonably practicable. At the voir dire hearing the accused added a further particular to his ground for excluding the two keys. He alleged the police had no basis for arresting him at the time he was arrested at the O’Sullivan Beach premises.
The voir dire hearing

A voir dire hearing on the Rule 9 application began on Tuesday 26 October 1999. During this hearing the Crown Prosecutor called the two detectives who were involved in the arrest of the accused on the night of 16 July 1998 at the O’Sullivan Beach premises. They were involved in searches of the premises and the accused’s van, they were involved in conversations with the accused, and they saw the two keys in the accused’s possession. At the conclusion of their evidence the accused gave sworn evidence on the voir dire. His cross-examination concluded just before 10.30 am on Friday 29 October 1999. His counsel then requested an adjournment to speak with the accused. About 10 minutes later the court resumed and the accused’s counsel asked if his client could be re-arraigned. That occurred and the accused pleaded guilty. His counsel said that before the allocutus be administered he would outline the basis for his client’s plea. He then did so. It is not now relevant to set out that outline.
The Crown Prosecutor told me that the basis of the accused’s plea was not accepted by the Crown. Thereafter I heard evidence from witnesses called by the accused in a disputed facts hearing.
The disputed facts hearing

The witnesses called at this hearing included the accused’s girlfriend and her father. They both gave evidence that Mr Guiseppi Sylvestri visited their home after the accused’s arrest making threats towards the accused. The effect of what Mr Sylvestri said was that he, the accused, had informed on Mr Sylvestri and unnamed associates. It had been the accused’s evidence at the voir dire hearing that he had visited the O’Sullivan Beach premises on only two occasions. Both visits were at the behest of Mr Guiseppi Sylvestri. The first was about four days before his arrest on 16 July 1998. On this occasion Mr Sylvestri had requested the accused to go to the premises to fix a fuse which had blown. Mr Sylvestri accompanied the accused on that occasion. The second time the accused visited the O’Sullivan Beach premises was when he was arrested by police. He said that he went to the premises at the request of Mr Sylvestri again to fix a blown fuse. He assumed it was the same fuse as before. When he arrived at the premises he inspected the fuse box and found nothing that needed fixing. It was the accused’s case that he had never been inside the house at O’Sullivan Beach, he did not know what was inside it, and that he had been ‘set up’ by Mr Sylvestri. The evidence of his girlfriend and her father was adduced to support the accused’s case that it was Mr Sylvestri’s crop at the O’Sullivan Beach premises and that the accused had been set up by Mr Sylvestri.
The other witness called by the accused at the disputed facts hearing was Mr Roman Chewey. He said he was the owner of a crop of cannabis which had been grown at 21 Demeter Avenue, Athelstone (‘Athelstone crop’) and the accused had nothing to do with that crop (other than to sweep up some leaves from the plants). There was evidence at the voir dire hearing concerning the Athelstone crop and another crop of cannabis which police alleged had been grown at 14 Lark Court, Wynn Vale (‘Wynn Vale crop’).
When police arrested the accused at the O’Sullivan Beach premises they found a video tape in his van. He had driven to the premises in that van. This video tape showed two crops of cannabis which police alleged were crops that had been growing at the Wynn Vale and Athelstone premises shortly before the accused was arrested. The video camera in which the video tape was found belonged to the accused. Also found within the accused’s van were documents, including an ETSA account and an Optus account, which contained the addresses of the above two properties. The ETSA account with the Athelstone address on it was addressed to ‘Mr P. Brown’. Mr Chewey’s evidence was that that was a name he used when renting the Athelstone property. It was not his real name. The Optus account with the Wynn Vale address on it was addressed to ‘Mr Tony Sakoya’. Another document found in the accused’s van was an application for a mobile telephone for Tony Sakoya whose date of birth was stated to be the same date of birth as the accused. The mobile telephone number on that document, to be given to the applicant Mr Sakoya, was the number of the mobile telephone that was either on the person of the accused or in his van on the night that he was arrested. He acted as if the phone belonged to him. When police attended at the Wynn Vale property after the accused was arrested the occupier identified himself as Fortunato Saccoia. They found hydroponic equipment in a locked rear shed. There was a locked room inside the house which was empty of any furnishings apart from a built in robe, the carpet in it had recently been steam cleaned, and there were holes in the ceiling where overhead fittings had been removed. I was told by the accused’s counsel at the disputed facts hearing that the owner of the Wynn Vale crop would not come to court to give evidence.
When police visited the Athelstone premises they gained entry into the house by a key which had been found inside the accused’s van when he was arrested at the O’Sullivan Beach premises. They found the house vacant with no furniture. They found carpets inside the house which had been very recently steam cleaned and a rear room was empty of furnishings.
I deal later with the evidence relating to the Wynn Vale crop and the Athelstone crop.
The accused did not give evidence at the disputed facts hearing.
After the disputed facts hearing

After hearing the witnesses called on behalf of the accused in the disputed facts hearing I heard submissions from counsel as to the basis upon which I should sentence the accused. To assist me in sentencing his client, the accused’s counsel requested that I order a psychological report on the accused. That report was ordered on 3 November 1999. On that day I adjourned the matter to 9 December 1999 to hear final submissions on the personal circumstances of the accused and on the psychological assessment on him.
I received a report dated 29 November 1999 prepared by Mr John Bell, Senior Clinical Psychologist of the Forensic Mental Health Services. He reported that the accused’s general intellectual functioning was at the borderline of intellectual disability. He expressed the opinion that the accused was, on the evidence available to him at that time, “likely to have a defence of unfitness to plead, based on his inability to follow court process”. The accused had apparently explained to Mr. Bell the reasons for certain contradictions in his evidence, in his evidence-in-chief and cross-examination at the voir dire hearing.
Mr Bell was asked to prepare a further report. In order that he might do so the transcript of proceedings of the voir dire hearing and the disputed facts hearing was made available to him. In a report dated 8 March 2000 Mr Bell expanded on his earlier report and expressed the opinion that the accused “would be unable to understand the nature of the proceedings or to follow the evidence or the course of the proceedings” because his mental processes were so impaired due to his intellectual disability (s269H(c), Division 3 of Part 8A, Criminal Law Consolidation Act). Mr Bell also reported that the accused had stated to him that he had felt that there was significant pressure on him to change his plea from not guilty to guilty. He had told Mr Bell that he had expressed doubts on this to his lawyer, and had stated that he wanted time to think about it, but felt pressurised to give an answer immediately. He said that he agreed to his lawyer’s advice because it meant that he would face no more questions. Mr Bell expressed the opinion that changing a plea is more frequently seen amongst the intellectually disabled during criminal justice proceedings than people who are not intellectually disabled.
On 21 March 2000 the accused applied to withdraw his plea of guilty in this matter. I gave him leave because I was satisfied that a miscarriage of justice may result if I did not allow him to withdraw his plea of guilty. I gave brief reasons. The accused was re-arraigned on 21 March 2000 and pleaded not guilty.
The accused’s counsel appeared before another judge of this Court on 28 March 2000 in a directions hearing. He asked that the matter be listed before me as he understood it was part-heard. He indicated that the accused would be electing to be tried by judge alone on the issue of his fitness to stand trial. On 5 April 2000 the accused’s counsel attended before me on a directions hearing and indicated that the accused had given him instructions to elect for trial by judge alone. He said that was not a formal election. He must have been referring to an election to have a judge sitting alone deal with the proposed investigation into the accused’s mental fitness to stand trial under Part 8A of the Criminal Law Consolidation Act (s269B).
By notice dated 28 April 2000 the accused elected for trial by judge alone pursuant to s7(1)(a) of the Juries Act. The notice was accompanied by a certificate of a practitioner pursuant to that section.
The fitness to stand trial investigation

The matter came on again before me on Monday 5 June 2000. I was sitting alone. I first ordered an investigation into the accused’s mental fitness to stand trial (s269J) and then ordered that that issue be separately tried first before any other issue (s269L). I then heard relevant evidence and representation by the Crown Prosecutor and the accused’s counsel on the question of the accused’s mental fitness to stand trial (s269M).
Evidence was adduced on behalf of the accused (who accepted the onus on this issue) from Mr Bell. The accused also called his solicitor Mr Michael Woods. The Crown Prosecutor called Mr Richard Balfour, Senior Clinical Psychologist, Forensic Mental Health Services. On the afternoon of 6 June 2000 I indicated that I was not satisfied, on the balance of probabilities, that the accused was mentally unfit to stand trial (s269MA(3)). I gave brief reasons and reserved my right to publish full reasons in due course should that become necessary.
I then indicated I would proceed with the trial of the offence with which the accused was charged in the normal way (s269MA(3)).
Bias application

Before the trial commenced on the morning of 7 June 2000 the accused’s counsel applied for me to disqualify myself from hearing his client’s trial on the basis of apprehended bias. He suggested that might arise because I had heard the accused’s plea of guilty and his submissions as to how the accused’s plea of guilty fits in with the evidence. He said that I had also heard that there had been some suggestion that he had put pressure on the accused to plead guilty. That might raise the question in my mind as to whether the accused pleaded guilty because he was guilty, or whether he pleaded guilty because his counsel had put pressure on him.
At the time that I heard submissions on this application and before I ruled on it I was told that the trial would proceed largely as a paper trial. I was told that the accused’s counsel consented to the Crown Prosecutor tendering the material that had already been before me at earlier hearings. That was said to be the declarations, the evidence and exhibits at the voir dire hearing, and the evidence and exhibits at the disputed facts hearing. The one qualification to that was that the accused’s counsel wished to cross-examine one of the declarants Mr Dunbar, the owner of the O’Sullivan Beach premises.
The accused’s counsel also told me that he had caused a subpoena to be issued for Mr Sylvestri to give evidence. That subpoena was returnable for Friday 9 June 2000.
After hearing submissions I declined to disqualify myself to hear the accused’s trial. I gave brief reasons.
The procedure at trial

As Mr Dunbar lived at Coober Pedy and had not been arranged to give evidence on the understanding between counsel that no witnesses would be called as part of the prosecution case, I could not hear Mr Dunbar’s evidence until Friday 9 June 2000. On 7 June 2000 I received as evidence at the accused’s trial the evidence and exhibits that had been tendered at the voir dire hearing, the evidence and the exhibits that had been tendered at the disputed facts hearing, and the declarations. I also received as evidence at the trial the evidence and the exhibits that had been adduced and tendered as part of the investigation into the accused’s mental fitness to stand trial.
During Mr Dunbar’s cross-examination on the morning of Friday 9 June 2000 the accused’s counsel elicited certain answers indicating that Mr Dunbar might have some documents relating to the rental of the O’Sullivan Beach premises, either at some premises in North Adelaide or at some premises at Delamere near Cape Jervis. I asked Mr Dunbar if he could make some inquiries or searches to see if that material could be located and if it could whether he could return to complete his cross-examination on Tuesday 13 June 2000.
Also on Friday 9 June 2000 the accused’s counsel sought that I issue a warrant for the arrest of Mr Sylvestri. He informed me that Mr Sylvestri had not been served personally with a subpoena but there had been some indications that he had received it. I was told that Mr Sylvestri had telephoned the office of the accused’s solicitor the day before and had indicated that he would be at court that day, Friday 9 June 2000. I was asked to issue a warrant for his arrest on the basis that I should have reason to believe that he was avoiding attending court. I declined to issue such a warrant on the information then available to me. The accused’s counsel informed me that he was ‘under no illusion as to the fact that Mr Sylvestri is going to try and be unhelpful to my client but I would prefer to have to deal with that with Mr Sylvestri present, rather than Mr Sylvestri not being present’. Counsel for the accused also indicated that there would be no further evidence on behalf of the accused other than Mr Sylvestri. He indicated that he did not propose to call the accused to give evidence.
I adjourned to Tuesday 13 June 2000 to hear Mr Dunbar and Mr Sylvestri if either attended. Mr Dunbar did not attend court on that day and the Crown Prosecutor told me that his office had heard nothing from him. Without objection by the accused’s counsel I released Mr Dunbar as a witness at the trial. Mr Sylvestri also did not attend. The accused’s counsel made no application in respect of Mr Sylvestri.
I indicate now that I draw no inferences adverse to Mr Dunbar because he did not attend again at the trial. In particular, I do not infer, as I was asked to, that Mr Dunbar was involved in the cultivation of the cannabis crop at the O’Sullivan Beach premises. There were other reasons which might have influenced him not to further attend at the trial. Even if I had been prepared to draw the inference I was asked to that would not have affected my ultimate conclusions in this matter.
I also draw no inferences adverse to Mr Silvestri as a result of the fact that he did not give evidence at the trial. I gathered from the accused’s counsel that he held no proof of Mr Silvestri’s evidence and that he did not know what Mr Silvestri was going to say had he attended. The accused’s counsel had foreshadowed an application that he be permitted to cross-examine Mr Silvestri. He had indicated that he was under no illusion that Mr Silvestri would assist his client. In those circumstances, it being suggested that Mr Silvestri would not have assisted the accused’s case and where the accused’s counsel did not have a proof of his proposed evidence, there was a distinct possibility that I would not have allowed him to cross-examine Mr Silvestri. In those circumstances I draw no inference adverse either to Mr Silvestri or to the accused by virtue of the absence of Mr Silvestri at trial.
On 13 June 2000 I heard counsel address on the issues raised by the accused’s Rule 9 application and on the charge against the accused. It had been agreed that I should deal with each of these at the end of the trial.
Rule 9 application

(a) The accused sought to exclude all items of physical evidence discovered as a result of the police search of the O’Sullivan Beach premises on 16 July 1998 on the basis that the search was unlawful and that sampling of the cannabis found on the premises was not in accordance with regulation 8A of the regulations made pursuant to the Controlled Substances Act. It was argued not only that the search on the night of his arrest on 16 July 1998 was unlawful, but that search was tainted by unlawful conduct of police on a number of earlier occasions when they visited the O’Sullivan Beach premises. These had occurred when police had the premises under surveillance for about two months prior to the arrest of the accused.
The Crown Prosecutor did not seek to rely upon any alleged consent of the accused for Detectives Daly and Arbon to enter and search the O’Sullivan Beach premises. Detective Daly said in his evidence that he relied upon his general search warrant. I am satisfied that he did rely on his general search warrant. I am also satisfied that he was justified in doing so. I am satisfied that at the time of the search Detective Daly had reasonable cause to suspect that an offence had been recently committed in or about the O’Sullivan Beach premises, that there was something that may afford evidence as to the commission of an offence within the premises, and that there was within the premises items that may be intended to be used for the purpose of committing an offence (s67, Summary Offences Act). I am so satisfied because of what Detective Daly had been told by an ETSA official as to the consumption of electricity at the O’Sullivan Beach premises (regardless of what he actually understood the precise alleged consumption of electricity to be), the fact that the premises were apparently unoccupied (which was apparent to Detective Daly upon visiting the premises on several occasions in the two months prior to the accused’s arrest), the observations that Detective Daly made as to the covering of the windows and the front door of the premises, the humming noise which he heard from within the premises, the condensation which he observed on the top part of what he could reasonably assume was the front window of the premises overlooking the sea, and his observations of the accused on the night he was arrested. I am satisfied that Detective Daly had reasonable cause to suspect the matters referred to above as a result of information given to him and his observations when he did not unlawfully enter the O’Sullivan Beach premises or conduct an unlawful search of them.

As indicated above, it was submitted on behalf of the accused that if Detective Daly had reasonable cause to suspect matters which would justify the exercise of any of his powers under his general search warrant, I should find that he only had such as a result of unlawful entries and searches on occasions prior to the night the accused was arrested. The shining of his torch on the front window to see the condensation, the opening of the wheelie bin to find discarded fast food containers, and the opening of mail in the letter box to find an ETSA account were pointed to as being unlawful acts by police. I was asked to infer that they were unlawful acts because the prosecution had not produced at the voir dire hearing statistical returns (‘PD271 returns’) for each of the occasions that the police visited the premises prior to the night of the accused’s arrest when these acts were done. I am not prepared to infer that Detective Daly did not file PD271 returns on these earlier occasions. He was not asked whether he did and he was not asked to produce them. The only thing that was put to him was that he had not prepared one for the search he conducted of the premises on the night that the accused was arrested. After it was put to Detective Daly at the voir dire hearing that he did not file a PD271 return for the night that he arrested the accused, the next day a PD271 return for that night was produced and tendered. It is dated 20 July 1998. The Rule 9 application made no reference at all to the failure of the police to file PD271 returns relating to any occasion, even for the night of the accused’s arrest.
It was submitted on behalf of the accused that Detective Daly could not rely on his general search warrant because he believed he would only find up to ten cannabis plants in the house. That would only give him cause to believe a summary offence was committed and police general orders provide that he not use his general search warrant where a summary offence was suspected. I am satisfied that Detective Daly reasonably suspected that cannabis plants were growing in the premises but that he had no belief as to the number. He conceded that his experience was that often home growers had ten plants or less because different penalties applied. But he maintained, and I accept this evidence, that he really did not know, nor did he have any belief one way or another, as to the number of plants he might find in the O’Sullivan Beach premises. In those circumstances there was no breach of general order 2740 which order suggests to police officers that general search warrants are inappropriate to use where a summary offence only is involved.
I am satisfied therefore that the search of the O’Sullivan Beach premises was lawful in that Detective Daly properly relied upon his general search warrant and there was no breach of police general orders in so doing. Even if I had been satisfied otherwise I would have exercised my public policy discretion against the accused.
The other ground relied on to seek to exclude all evidence discovered as a result of the police search of the O’Sullivan Beach premises on 16 July 1998 was that sampling of cannabis by Detective Daly was not done in accordance with regulation 8A of regulations made pursuant to the Controlled Substances Act. Detective Daly’s evidence was that he found 57 cannabis plants growing within the premises. He bundled the plants into six lots. Five bundles each contained ten plants and the sixth bundle contained seven plants. In each of six envelopes he placed samples from the plants. In each envelope he attempted to take samples from each of the plants in each bundle. The remaining cannabis plants were subsequently destroyed. I find all this occurred.
Where 21 to 100 plants are involved, regulation 8A provides that at least ten samples must be taken. If the plants are mature a sample is a fully developed leaf or flower head (taken from separate plants if more than one sample is required). The regulation provides that each sample must be separately packaged and identified. I find that Detective Daly took more than the required number of samples but did not comply with the regulation in that each sample was not separately packaged and identified. I find that Detective Daly intended to comply with the regulation but failed. I find his failure was not an intentional failure. The samples he took were preserved and analysed. The certificate read: “A sealed paper bag containing six envelopes each with at least one female flowering cannabis plant sample”. Still photographs were taken of the crop at the O’Sullivan Beach premises. A video showing the crop was also taken. The samples that were taken were available for the accused to test if he wished. They were tendered at trial. The accused had not sought to have them analysed.
I am satisfied that the Bunning v Cross discretion did not arise in these circumstances, but had it arisen I would have exercised that discretion so as not to exclude the evidence of the cannabis. The accused’s counsel properly conceded that the accused had not been prejudiced by the destruction of the cannabis plants. That, coupled with my finding that there was no deliberate breach of regulation 8A, would have led me to exercise my discretion against the accused. For the same reasons I would exercise my ‘general fairness discretion’ against the accused (see R v Lobban, Court of Criminal Appeal, 2 June 2000, Judgment No. (2000) SASC 48).
(b) By his Rule 9 application the accused sought to exclude all items of evidence discovered in his van which was at the O’Sullivan Beach premises on the night he was arrested. It was alleged that this search was conducted in breach of police standing orders and Crime Command Circular 93/14. The latter was not ultimately relied on.
I am satisfied that the search of the accused’s van came properly within the search of the O’Sullivan Beach premises pursuant to Detective Daly’s general search warrant. I am also satisfied the search of the van was lawful because Detective Daly had reasonable cause to suspect that there was evidence of the commission of an indictable offence within the van (s68(1)(a)(iii), Summary Offences Act). The search was conducted after he had seen 57 growing cannabis plants in the dining room of the O’Sullivan Beach premises.
The other ground argued on behalf of the accused as to the items found in the accused’s van on the night he was arrested was that that evidence cannot be related to the charge of producing cannabis at the O’Sullivan Beach premises. It was submitted that it is not relevant to that charge or if it is, it is more prejudicial than probative and is evidence of propensity.
What was found in the accused’s van was a number of items which could properly be described as accoutrements for growing cannabis plants. They included nutrients used for growing cannabis and items associated with growing cannabis hydroponically indoors. They are set out in Detective Arbon’s declaration and included electric timers, pH scan metre, grow wool, and plastic sheeting. Also found in the accused’s van the night he was arrested was a video recorder containing a video film which allegedly showed cannabis crops growing at the Wynn Vale property and the Athelstone property. There was also a key found in the van which opened the door of the Athelstone property. There were also found documents which were associated with or linked to the Wynn Vale Property and the Athelstone property.
I am satisfied that the items found in the accused’s van on the night he was arrested are relevant and admissible at his trial on the charge of producing cannabis at the O’Sullivan Beach premises. Those items are not admissible to show that the accused has a propensity to commit offences, but they are admissible as they have a positive probative value to the offence charged to rebut any suggestion by the defence that the accused’s attendance at the O’Sullivan Beach premises on the night of 16 July 1998 was an innocent one. The evidence was probative to rebut any suggestion that the accused attended the O’Sullivan Beach premises on the night he was arrested without any knowledge of what was growing inside the premises. His van contained considerable material associated with the indoor cultivation of cannabis plants hydroponically. The presence of that material in his van on that night goes to the likelihood of that co-incidence.
(c) The accused did not pursue that part of his Rule 9 application to exclude all conversations he had with police both at the O’Sullivan Beach premises and at the police station afterwards. Had that matter been pursued I would have ruled that, except for one part of the record of interview at the O’Sullivan Beach premises, all records of interview be admitted at trial. I refer to this matter again later.
(d) Finally, on the Rule 9 application the accused sought to exclude the two keys discovered in his possession when he was arrested. One of these keys opened the front door of the O’Sullivan Beach premises. The police said in their evidence in the voir dire hearing that the accused volunteered the keys and voluntarily opened the door. The accused’s evidence was that he eventually displayed the keys to police from inside his pocket. He accepted that they were in his pocket but said that he had found them in the metre box just before police arrived.
Either way, once arrested, the police were empowered to search the accused (s81, Summary Offences Act).
The grounds argued for the exclusion of the keys were that the accused’s arrest was not a lawful arrest in that his requests to contact a solicitor were not facilitated as soon as reasonably practical, and that when arrested police had no basis for arresting him.
As to the second ground I am satisfied that I should not exclude the two keys for the same reasons as I set out when dealing with paragraph (a) of the Rule 9 application.
As to the first ground (the failure to facilitate the accused’s request to contact a solicitor) I consider that, if I was satisfied this allegation was proved, it goes to the exclusion of the record of interviews with the accused and not to the exclusion of items found on him pursuant to a lawful search.
I deal later with the competing versions of when the accused first asked to contact a solicitor.
Before leaving the Rule 9 application I indicate that I was asked by the accused’s counsel to listen again to the audio tape and to view again the video tape that were produced at the O’Sullivan Beach premises. I have done that and nothing I have heard or seen causes me to doubt my rulings on the various orders sought on the accused’s Rule 9 application. As to the audio tape and the issue of the answering of the accused’s phone, if any phone was answered and if any police officer spoke, that person seems to indicate that the police would not be at the premises much longer. If that occurred, it is unlikely that Detective Daly was speaking to Mr. Guiseppe Sylvestri’s younger brother, as was put to Detective Daly.
The charge of producing cannabis

In considering the evidence I have regard to certain comments of McHugh J in Shepherd v The Queen (1990) 170 C.L.R. 573. He said (at page 592):
If an inference of guilt is open on the evidence, the question for the jury is whether the inference has been proved beyond reasonable doubt - not whether any particular fact has been proved beyond reasonable doubt.

He added (at page 593):

The cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance.
In a particular case, an inference of guilt beyond reasonable doubt may not be able to be drawn unless each fact relied on to found the inference is established beyond reasonable doubt. This is likely to be the case where the incriminating facts relied on to establish the inference are few in number. But the more facts that are relied on to found the inference of guilt, the less likely it is that each or any fact will have to be proved beyond reasonable doubt to establish guilt beyond reasonable doubt. Consequently, even when guilt beyond reasonable doubt cannot be inferred unless certain facts are proved, it may still be open to infer guilt beyond reasonable doubt even though each fact is not proved to that standard. Thus, in the example that I have given, the facts proved on the balance of probabilities were essential to the determination of guilt beyond reasonable doubt. But the determination could still be made even though all those facts were not proved beyond reasonable doubt.

In sitting as a jury to determine guilt or innocence, these comments should guide me in my consideration as to whether I am satisfied beyond reasonable doubt that the accused is guilty as charged.
Before dealing with the evidence, I say something about the accused. Both psychologists I heard on the Part 8A investigation were of the opinion that the accused fell into a category of person with “mild intellectual disability”. Mr Balfour said that this group constitutes approximately 85 per cent of individuals who have an intellectual disability. Having that level of intellectual functioning placed the accused within the bottom two per cent of the general population for his age group. During the adult years of persons in this category, they usually achieve social skills adequate for minimum self-support, but need supervision, guidance, and assistance, especially when under unusual social or economic stress. With appropriate supports, individuals with a mild intellectual disability can usually live successfully in the community, either independently or in supervised settings. He said in his experience the majority of individuals in this category are usually ignorant of the criminal justice process, and would experience difficulties in the courtroom, but still would not be considered severely impaired enough to be assessed as unfit to stand trial. Both psychologists said, and I accept this evidence, that giving evidence at the voir dire hearing exposed the accused to unusual stress. Both psychologists expressed opinions to the effect that the accused, being in the category of mild intellectual disability, would try to hide or disguise his intellectual disability such that it might not immediately be apparent to an untrained observer, or even a trained one. Mr Balfour described that as a survival strategy. As I understand the evidence of both psychologists, once a judge is aware of the disability of someone who falls within this category, that judge is capable of taking account of such a disability in assessing that person’s evidence.
In listening to the accused’s evidence at the voir dire hearing I was unaware of the extent of his objectively tested intellectual disability. Since the investigation pursuant to Part 8A I have re-read the accused’s evidence at the voir dire hearing. Having regard to the opinion’s expressed by Mr Bell and Mr Balfour I have tried to make appropriate allowances having regard to their evidence. I have, for example, concentrated in these reasons on those parts of the accused’s evidence which go to the heart of the charge against him and his defence to it. They include that he had only visited the O’Sullivan Beach premises twice, each time at the request of Mr Sylvestri; that on the night that he was arrested he had made arrangements with his employer to leave work early to go to the O’Sullivan Beach premises; that he arrived there at 9.30 p.m. and described activities which I have found would have lasted no longer than ten minutes; that he only went there to fix the fuse; that he did not know what was contained within the house at the O’Sullivan Beach premises; that it was Mr Sylvestri’s crop and that he had been set up; and that he sought to give an explanation for the contents of his van at the time he was arrested. I have tried to avoid making adverse findings against the accused where I have been satisfied that his difficulties in giving his evidence, both as to content and demeanour, is explicable as a result of his mild intellectual disability.
I now deal with certain evidence which is relevant to that matter. I will not repeat findings I have made elsewhere in these reasons.
In late February 1998 the owner of the land and property at 1 Tingira Drive, O’Sullivan Beach decided to sell the house and moved out of it. He then decided to take it off the market and placed an advertisement in the Advertiser to rent the house. It was advertised for rent on 10 March 1998.
A person who identified himself as Peter Adams told the owner he wanted to rent the house for six months. Mr Adams said that he had come from Sydney. He paid the owner $2,500 for rent in advance and the owner gave him the keys to the house. The owner saw Peter Adams one time later when he received further rent of $1,000. Late in July 1998 the owner went to have a look at the house as further rent was due and he had not heard from Peter Adams. He found the house empty with lots of black pots which were empty, black plastic all over the walls, water piping and water containers. These were in the family and dining rooms of the house. This was after the accused was arrested on Thursday 16 July 1998.
The owner described the appearance of Peter Adams. That description was not consistent with the appearance of the accused, or of Mr Guiseppe Sylvestri as described by the accused’s girlfriend who gave evidence at the disputed facts hearing.
In April 1998 the accused owned and drove a Mazda panel van registered number UKB 867 (‘accused’s van’).
On Wednesday 13 May 1998 an employee of ETSA Power attended at the O’Sullivan Beach premises to disconnect the electricity supply. No customer had accepted responsibility for electricity consumed there since the previous customer vacated. The ETSA employee noticed the meter rotary disc turning very fast which was unusual for premises which were vacant. The electricity supply was disconnected. The employee noticed that the windows had been covered with paper. He reported these matters to his supervisor.
His supervisor deposed that since the previous customer’s account had been finalised on 12 March 1998 the meter at the O’Sullivan Beach premises had recorded particularly high consumption for premises which were allegedly vacated. The electricity consumed by the electric hot water service over the same period was too low for anyone to be living in the premises.
On Friday 15 May 1998 ETSA received a telephone call from a person claiming to be Peter Adams. He gave his date of birth of 12 April 1968 stating he was responsible for the O’Sullivan Beach premises. He said he had arrived from Sydney and was doing some contract work for approximately six months. He applied for the supply of electricity to the O’Sullivan Beach premises which was accepted.
12 April 1968 is the date of birth of the accused.
On Friday 22 May 1998 an ETSA employee observed the accused’s van at the O’Sullivan Beach premises. He reported that observation to his supervisor who in turn contacted Detective Daly at the Sturt Police Centre and reported the above details to him.
I infer that the ETSA employee observed the accused’s van at the O’Sullivan Beach premises during the day.
On Friday 22 May 1998 the accused worked at Scuzzi Restaurant from 6pm to 12 midnight.
Detective Daly first visited the O’Sullivan Beach premises on 23 May 1998. He attended there early in the afternoon and formed the opinion that the house was unoccupied. He next visited the premises on 30 May 1998 at night. He observed that all the windows of the house appeared to be blacked out with some type of material, although at the very top of what turned out to be the dining room window, he saw a faint light peeping through. He was able to see condensation on that window. He also heard a faint humming noise coming from inside the house which sounded like a fan. He found an ETSA account in the letter box in the name of Mr P. Adams which account had been issued on 19 May 1998 in the amount of $83. He gained the impression that the premises were vacant. It did not appear to him that anybody was living there.

In the period before Thursday 16 July 1998 (the day of the accused’s arrest) Detective Daly visited the premises on seven occasions, the last being Monday 13 July 1998. He attended the premises on those occasions to see if anybody was there so that he could conduct some further enquiries. On each occasion no-one was there, the premises appeared to be unoccupied, and on various occasions he observed the faint light in the dining room window and condensation and heard humming noises.
On Thursday 16 July 1998 the accused worked at Scuzzi’s Restaurant from 6.00 pm to 9.00 pm. He said in his evidence at the voir dire hearing that it was one minute past nine or three minutes past nine that night when he got in his van to drive to the O’Sullivan Beach premises. He said he arrived at the premises at about 9.30 pm.
I shall return later to his evidence as to the circumstances of his leaving work at 9.00 pm that night, but I find that he arrived at the O’Sullivan Beach premises at 9.30 pm on the night of his arrest. He drove up the driveway and reversed back and parked immediately in front of the house. He said in evidence that he sat in the van finishing a cigarette for a couple of minutes after he arrived, and then got out of the van and walked down the driveway to look in the letter box. He said he expected to find some keys to the house there.
I find that the accused was at the O’Sullivan Beach premises for an hour before Detectives Daly and Arbon arrived there. I also find that the activities that the accused described he did at the premises would have taken him about five minutes, certainly no more than 10 minutes. Accordingly, he was at the premises for about 50 minutes during which time his activities are unaccounted for.
At about 10.30 pm that night Detectives Daly and Arbon drove past the O’Sullivan Beach premises and saw the accused’s van parked on the lawned area outside the front of the house. Detective Daly observed the accused walk down the driveway and open the letter box. He saw him look up and down Tingira Drive as he did this. He observed the accused walk down the driveway to the roadway on three occasions, each time looking up and down the street. I find that occurred.
After the arrival of some uniformed police officers the two detectives drove up the driveway of the O’Sullivan Beach premises at about 10.40 pm that evening. At that time the accused was seated in the driver’s seat of his van. What then followed was the subject of considerable dispute on the voir dire hearing. Suffice to say at this stage that the accused was arrested for producing cannabis at the O’Sullivan Beach premises.
The accused’s evidence at the voir dire hearing was that he had only visited the O’Sullivan Beach premises on two occasions, being the night he was arrested and a few days prior to that night. He denied having been there in May 1998 (when his van was observed there by an ETSA employee) and said that he was in the habit of lending his van to persons who asked for it.
He said that a few nights prior to the night of his arrest he had been contacted by Mr Giuseppe Sylvestri who said that a fuse had blown at the house and could he come and help Mr Sylvestri fix it. He ultimately agreed, although he argued with Mr Sylvestri that he did not have time to do that because he was working. His time book disclosed that he did not work on either the Friday, Saturday, Monday or Tuesday immediately before he was arrested. He did work on the Sunday and Wednesday nights, the Wednesday being the night before his arrest. He said that he took Mr Sylvestri down to the premises and he took with him some fuse wire suitable for an 8 amp ‘that goes in for power’. How he knew that was the appropriate fuse wire is difficult to say because Mr Sylvestri did not tell him.
He said in evidence that he questioned Mr Sylvestri about the premises and Mr Sylvestri told him that the place was his, or that he rented the premises, and that he might be moving in there because ‘summer is coming up’. It was the middle of winter.
The effect of the accused’s sworn evidence at the voir dire hearing was that he did not know what was inside the house, and in particular did not know that cannabis plants were growing hydroponically within the house.
He said that he and Mr Sylvestri were at the house for 15 minutes at the most whilst the accused instructed Mr Sylvestri how to change the fuse wire. He said that the unused part of the fuse wire was left in the bottom of the power box. He said that he then left the house and ‘went home, I had to go to work’.
On the day that he was arrested the accused said Mr Sylvestri telephoned him during the day. He told him that the fuse had blown again at the place at O’Sullivan Beach and asked him to go and fix it for him. The accused told Mr Sylvestri that he could do it himself. He assumed that it was the same fuse that was fixed a couple of nights before and that the wire that was left there then could be used to fix it again. Mr Sylvestri tried to talk the accused into going down there to fix it by saying that he was taking his girl‑friend out that night and wanted to impress her when he took her to the house. Mr Sylvestri said he would ‘even leave the keys for you if you want’. The accused said ‘what do I need the keys for? I don’t need the keys for anything, it’s not my house.’ Mr Sylvestri said he would leave the keys in the letter box. The accused added that he might have misunderstood that because ‘you get a bit of static and everything’ on the mobile ‘phone. The accused said that he ultimately agreed to go and fix the fuse.
The accused was asked what time he went to fix the fuse and he said:
A...... I had to work that evening. While I was at work, I asked the boss if I could leave earlier. He said ‘It’s a bit quiet, Monday, Tuesday, Wednesday night, can you leave about 9?’ I said ‘All right, that’s okay. I should be able to get there’. So I went to work at my normal shift. 9 o’clock came - 8.30, 9 - ‘Can I leave now? It’s a bit quiet’.
Q.Did you make any arrangement with your boss about making up time.
A...... Yes, he said to me because it’s a little bit quiet, I could leave, but because I do certain hours, just do them on the week. I said ‘Okay, I’ll fill that in’.
Q.What time did you go.
A...... I left work about 9 o’clock.
Q.To go to O’Sullivan Beach?
A...... I went straight to do that favour for friend.
The accused was cross-examined about this and said that he telephoned his boss earlier to see if he could leave early that night, his normal shift being 5 pm to 11 pm or later. He said that he told his boss that he had to leave early as he had to go somewhere. His boss said that he had to make the lost time up later. He then, however, agreed that he was arrested on a Thursday night which was late-night shopping when it could be busy or it might not be busy.
The thrust of his evidence then at the voir dire hearing was that he agreed to Mr Sylvestri’s request to go down to the house again to fix the fuse wire, and to do that he had to make arrangements with his employer to finish work early on that Thursday night on condition that he make up the time lost later.
At the disputed facts hearing the accused’s time book at Scuzzi’s restaurant was tendered. It discloses that in the nearly three month period prior to the date of his arrest the accused had not worked after 9 pm on any Thursday. In that period he had only worked on one Thursday and that was the Thursday in the week prior to the week of his arrest. On that Thursday he had worked between 6 pm and 9 pm. In the week before his arrest and in the week of his arrest he had not worked on any night at Scuzzi’s past 9 pm. He had only worked past 9 pm on one night in the five weeks before his arrest, and that one night was a Friday.
Although I was told that it was hoped that evidence would be called at the disputed facts hearing from the accused’s employer at Scuzzi’s, that person did not give evidence.
I am satisfied that the accused did not tell me the truth at the voir dire hearing as to his conversations with his employer. I find he left work at Scuzzi’s restaurant at 9 pm on the night that he was arrested but I find that he did not need to make any arrangements with his employer to do so. He had not worked past 9 pm on any Thursday night since Thursday 23 April 1998.
On the night that he was arrested the police found a considerable quantity of nutrients and equipment associated with the growing of cannabis plants hydroponically in the accused’s van.
The accused said that on four or five occasions he had grown cannabis plants himself, although never more than ten plants and he never sold cannabis.
He was asked:-
Q...... Were you growing them using hydroponics.
A.No, outside.
Q...... They were all outside, were they.
A.Most of them.
Q...... How many were not outside.
A.The one I was doing at Golden Grove, with a friend.
Q...... Do you know the street that house was in at Golden Grove.
A.That’s Lark Court, I think.
Q...... I think it might be Wynn Vale, actually, next to Golden Grove; is that right.
A.Yes.

100 I find that he was there speaking of the premises at 14 Lark Court, Wynn Vale. He then said that he had nothing to do with that crop and that the only hydroponically grown crop that he was involved in was somewhere else. I do not accept that evidence and I am satisfied that what he first said to the Crown Prosecutor in cross-examination was the truth. That is, that he was involved in growing cannabis hydroponically at 14 Lark Court, Wynn Vale.

101 The accused was asked about the nutrients and equipment found in his van on the night he was arrested and he said to his own counsel that these belonged to him and that they were in the back of his van when he got to the house on the night that he was arrested. He was asked:

Q...... Why did you have it.
A.Because I was going to stay with a friend at Athelstone that night.
Q...... Had that material been used to grow any of the plants that were in the house at O’Sullivan Beach.
A.No.
Q...... Had it been used to grow any other plants anywhere else.
A.I was helping a friend at Athelstone.
Q...... They had or hadn’t been used for that purpose. (not answered).

102 The friend at Athelstone had previously been identified as living at 21 Demeter Court, Athelstone and the accused had said in evidence that he stayed at that address three times a week. He identified the friend as Peter Brown whom he had worked with at Buongiorno’s. It transpired that Peter Brown was the witness Roman Chewey. An ETSA account found in the accused’s van was addressed to Mr P Brown of 21 Demeter Court, Athelstone.

103 In cross-examination the accused was asked about the items found in his van and his attention was particularly drawn to a photograph of nutrients in a cardboard box allegedly found in the back of the van. He had previously accepted that they were his and were in his van when he arrived at the house, but in cross-examination he denied that he had seen that box before with those things in it, and denied that they belonged to him. He suggested that the box and his contents had not been in his van when he arrived at O’Sullivan Beach. He remembered seeing the box with its contents in a video that was shown during the voir dire hearing and thought that he had seen that box and its contents on the video.

104 I am satisfied that this is one aspect of the accused’s evidence that I should not consider adverse to the accused because I am satisfied that the giving of that evidence in cross-examination was explicable by his intellectual disability. As a result I have no regard to that evidence in assessing the accused’s credit. I am satisfied that what he said to his own counsel in examination-in-chief was the truth. That is, that the nutrients and equipment found in his van on the night that he was arrested belonged to him and that they were in the back of his van when he got to the O’Sullivan Beach premises that night. His later denial of that has played no part in my conclusions on any of the issues before me.

105 I find that when the accused arrived at the O’Sullivan Beach premises at 9.30 pm on the night of his arrest he had in his van nutrients and equipment associated with growing cannabis hydroponically. I find that he also had in his van a key to the Athelstone property and documents which related to both the Wynn Vale and Athelstone properties. I find that the accused knew that all the above items were in his van when he arrived at the O’Sullivan Beach premises on the night of his arrest. I further find that he had in his van no fuse wire and there was no fuse wire in the fuse box at the rear of the O’Sullivan Beach premises at any time during the night of his arrest.

106 As already mentioned, a video camera which contained video film was also found in the accused’s van. On the film appears two cannabis crops. The film of one crop has a date of 30 June 1998 on it. This was 16 days before the accused’s arrest. The film of the other crop has no date on it. Mr Chewey said he threw his crop out after the accused was arrested. I am satisfied that the film shows a cannabis crop at the Wynn Vale property and a cannabis crop at the Athelstone property. I find that the accused was involved in the growing of both those in about the middle of 1998. I do not accept Mr Chewey’s evidence that the accused had no involvement with the Athelstone crop (which Mr Chewey said was his crop) other than sweeping up a few leaves. Not only was that evidence inconsistent with the accused’s own evidence on his involvement with that crop, but I do not think Mr Chewey was telling me the truth in his evidence. However, I do not conclude that, because the accused was involved in these crops, he must have been involved in the crop at the O’Sullivan Beach premises.

107 I am satisfied that it was the accused who paid the ETSA account with the Athelstone address on it and that he paid in cash at the Magill post office. At the relevant time he lived with his parents who lived in Magill.

108 I further find that the accused applied for an Optus mobile service in the name of Tony Sakoya and that he gave his own date of birth when so applying. I am unable to find whether Mr Tony Sakoya exists. The name ‘Sakoya’ may merely be the name of the occupier of the Wynn Vale premises, spelt differently. Documentation found in the accused’s van contain the name Mr Tony Sakoya of 14 Lark Court, Wynn Vale.

109 I have used these findings in the way I have already indicated in my Rule 9 reasons. They are legitimately probative of the offence charged.

110 I now deal with the evidence given at the voir dire hearing as to what happened at the O’Sullivan Beach premises after the police arrived.

111 It is not disputed by the accused that what is recorded on an audio tape (transcription identified as APP2) and what appears in the video tape (transcription identified as APP4) correctly records what is heard and what is seen on those exhibits. What is disputed is what was said by Detective Daly and by the accused when the police first approached the accused at the O’Sullivan Beach premises, and what happened when the audio taped interview commenced and what happened during it The accused’s evidence was that almost immediately upon being approached by the police he asked to be able to speak to a lawyer. He said that he repeated that request on a number of occasions until the audio taped interview commenced. He said that interview commenced at least twice, possibly three times, because Detective Daly rewound the tape once or twice telling the accused not to interrupt him. The accused said his interruption was to request a lawyer.

112 Notwithstanding that evidence it appears from the record of the audio taped interview that when being cautioned and given his rights, including a right to have a solicitor present during the interrogation, the accused said that he did not think he needed to exercise any of his rights, and he agreed in evidence that he might have said to Detective Daly at the O’Sullivan Beach premises before the audio-taped interview commenced that he did not wish to exercise any of his rights (including the right to have a solicitor present) ‘at the moment’. That concession is important in resolving the dispute between the two detectives and the accused as to what was said by each when the police first approached the accused’s van.

113 In considering the accused’s evidence that he asked for a solicitor on numerous occasions before the record of interview on the audio tape commenced at 10.56 pm on the night of his arrest, I consider it significant that he made no complaint that he had been refused one during the time he was being interviewed on audio tape, and neither did he make any such complaint when he was interviewed in the presence of his solicitor at the Sturt police station. Not only did he not make any complaint about being refused one, he made no complaint when Detective Daly read to him notes of what the detectives said had happened at the house. These included the accused being given his rights (including the right to have a solicitor present) and he being asked ‘do you wish to use any of these rights?’ to which he replied ‘not at the moment’. The accused’s evidence is also inconsistent with his apparent conduct seen on the video tape that was taken at the premises on the night of his arrest. The operator of the tape is seen to ask the accused whether he wishes to appear on video. He said he was upset and scared and he was continually asking for a solicitor which was being refused, yet he was offered and declined the opportunity to appear on video at the house.

114 I was urged to find that the accused’s version of what happened at the house was more likely because of what appears on the video-tape when Detective Daly is reading his notes of what happened earlier in the night before any recording was made. The accused interrupted and said ‘you were gonna kick the door in’. Having seen and heard the accused give evidence, particularly having regard to the evidence of the accused’s intellectual disability, I am satisfied that he was not interrupting Detective Daly in order to correct what was said to be Detective Daly’s version of what had happened, but was simply interrupting to explain some of his conduct earlier that evening. In particular, I find that he interrupted twice to try and ‘convince’ the police officers that he was only there to fix some electricity, and interrupted a third time to explain why he had produced keys which opened the front door of the premises. I find that he intended to explain that he had done so because he had assumed the police would otherwise have kicked the door in. I consider that his intellectual disability is such as to make this the more likely explanation than any other.

115 I am satisfied that the account of what happened when the accused was first approached at the O’Sullivan Beach premises until the audio interview commenced about one hour later was as described by Detectives Daly and Arbon. I do not accept the accused’s version of what happened

116 In particular, I find that the first time the accused sought to exercise his right to have a solicitor present was during the audio taped interview at the house when he and the two detectives were outside the house near the accused’s van. I find that occurred during question 41 on page 5 of the Record of Interview marked APP2. It occurred at a point which was the subject of a factual dispute between the two detectives and the accused. It was at a time when the accused’s mobile ‘phone started to ring. The two detectives gave evidence that his mobile ‘phone was on his person when it started to ring and the accused let the ‘phone ring out. The accused’s version was that his ‘phone was in the van when it started to ring and Detective Daly answered it. He spoke to someone on the other end whilst walking away from the accused and Detective Arbon. The detectives said that Detective Daly did leave the group at that time in order to speak to a sergeant of police from Unley who was at the scene. There is a break on both the original tape and the copy during question 41 of the Record of Interview APP2. A voice can be heard at or about the time that a ‘phone is heard ringing. I have earlier referred to this incident but add here that if that voice is Detective Daly then that is consistent with Detective Daly’s evidence and the accused’s evidence in that they both said that Detective Daly was speaking to someone. As to this matter, I can make no finding as there is doubt in my mind as to what happened.

117 But what is clear is that during that interruption the accused asked Detective Arbon if he could contact a solicitor. Apparently Detective Arbon passed on that request to Detective Daly and the accused was shortly after allowed the opportunity to ring a solicitor. Before that happened, however, he was asked some questions about items found in his van. Had this matter been pursued at the trial I would have been inclined to exclude from my consideration questions and answers recorded on the audio tape from question 38 to question 46. For this reason, I have had no regard to these questions and answers in resolving the matter of the guilt or innocence of the accused.

118 My findings as to what occurred immediately the accused was approached on the night he was arrested is important. Because I accept what the two detectives said happened, I find that the accused was co-operative when he was first approached, he produced keys when asked to open the door to the house and used them to let police through the front door. He then displayed familiarity with the inside layout of the house in leading the police into the house and then upstairs turning on lights as he went. I find that the accused behaved in the way described by Detectives Daly and Arbon. I find that the accused was familiar with the interior of the house at the O’Sullivan Beach premises.

119 I have already indicated that the accused did not press his Rule 9 application insofar as the evidence of conversations with the accused was concerned. Had he done so I think, in considering what was reasonably practicable for police on the night of the accused’s arrest (s74D, Summary Offences Act), I must have regard to the circumstances which preceded his arrest on the night of 16 July 1998 and what faced the police at 10.40 pm on that night. Anything could have been done in an ideal world if the police knew they had unlimited resources, knew that the accused would remain at the premises indefinitely, knew that he would not be violent when apprehended, and knew he would not try to escape when spoken to by police. In the circumstances I am not satisfied that the provisions of s.74D of the Summary Offences Act were not complied with by the police. Even if I were so satisfied I would exercise my discretion to not exclude that evidence (s.74E(1)(b)).

120 In his records of interview the accused falsely denied that he knew who owned or rented the O’Sullivan Beach premises and falsely stated that he had no place of residence other than his van or a girl friend’s place. I give no weight to these false statements in determining the issue before me.

121 Another matter to which I give no weight is the fact that the accused, when asked by the Crown Prosecutor about what he told his solicitor before he was interviewed at the Sturt Police Station on the night of his arrest, declined to answer those questions claiming legal professional privilege. Whilst the issue does not appear to be free from doubt, I consider that I am not entitled to draw any inference against the accused on this matter (see Giannarelli v Wraith (No2) (1991) 171 CLR 592, 605; Mocatta v Leal (1993) SASC 4041; both citing Wentworth v Lloyd (1864) 11 ER 1154; cf Alan Wilmot (1989) 89 Cr App R 341, 349-352 and Anthony Junior Daniel [1998] 2 Cr App R 373, 376-378). I do not do so.

122 At the disputed facts hearing I heard and received evidence of alleged threats made by Mr Sylvestri to a friend of the accused. These threats were made on the occasion of the wedding of Mr Sylvestri’s brother and allegedly were triggered by a bomb hoax at the wedding reception. I do not consider it necessary to resolve these issues because I do not think they assist me in any way in determining the accused’s guilt or innocence. Mr Sylvestri’s alleged threats are equally consistent with the accused playing a major or a minor role in the cannabis crop at the O’Sullivan Beach premises or a minor one.

123 Before setting out my conclusions, I indicate that where my findings and conclusions are inconsistent with the accused’s evidence, I reject his evidence.

Conclusions

124 On the basis of the findings in these reasons I am satisfied:

(a).... that the accused, with at least one other, was involved in growing the hydroponic cannabis crop at the O’Sullivan Beach premises in early to mid 1998;
(b)that there were 57 cannabis plants growing at the O’Sullivan Beach premises and that the accused knew there were about that number of plants growing there;
(c).... that the accused knew the plants at the O’Sullivan Beach premises were cannabis;
(d)that cannabis is a prohibited substance. The Controlled Substances Act so provides;
(e).... that the accused was involved in ensuring, from time to time, that the hydroponic equipment was operating properly and that the plants were healthy;
(f)that the crop at the O’Sullivan Beach premises was growing for commercial purposes and that the accused was going to share in the proceeds from the crop when it was harvested and sold;

125 I am satisfied of each of the above matters beyond reasonable doubt.

126 Accordingly, I find the accused guilty of the offence of producing cannabis.

127 I am satisfied on the balance of probabilities:

(a).... that the accused was not the principal involved in growing the crop but rather was the maintenance man and the gardener;
(b)that the accused played no part in the setting up of the crop;
(c).... that the accused’s share of the proceeds would have been minimal relative to the share for the principal or principals.

128 My finding that the accused knew that there were about 57 cannabis plants growing in the O’Sullivan Beach premises is made for the purpose of sentencing, not because it is an ingredient of the offence for which the accused is charged. I am satisfied that it is not an ingredient of the offence (R v Hietanen (1989) 51 SASR 510).

[2000] SADC 73

16 June 2000