R v Prinz (No 2) No. DCCRM-02-483

R v RIC MARK PRINZ (NO 2)
[2002] SADC 147
Judge Lunn
Criminal
REASONS FOR CONVICTION ON TRIAL BY JUDGE ALONE

Prior to 29 October 2001 the accused, Ric Mark Prinz, had lived for about two years with his wife and two young daughters in a rented house property at 218 Gorge Road, Newton. On one side of the house was a double garage which had been converted into an office. The accused used that office for various business activities which he was conducting at the time. He was not otherwise employed. His wife had a desk in the dining room from which she conducted her business activities. In the rear yard were two steel garden sheds (“the green shed” and “the silver shed”). The green shed had a locking mechanism in the door handle, but it was never locked. The keys to that lock were in a drawer in the accused’s desk in his office. There was ready access down the side of the house to the green shed.
At about 10am on Monday, 29 October 2001 the accused’s house was raided by eight police officers each holding a search warrant under s52 of the Controlled Substances Act 1984 (“the CSA”). The police team was led by Detective Senior Constable Clarke and included Constable Lachman, who was the designated to be the exhibits officer, Constable Borgas, who was designated to be the arresting officer if any arrests were to be made, and Probationary Constable Orr. At the time of the raid the accused was at home with his two daughters aged 5 years and 2 years and his wife was at work. The police first searched the house and then the green and silver sheds. In the green shed the police located two large white mayonnaise buckets and an esky which contained fourteen plastic shopping bags, thirteen of which each contained approximately 1 lb of cannabis and the fourteenth about half a pound of cannabis. In total the cannabis weighed 5.848 kilos and was worth between about $28,000 and $48,000. The accused denied having had any knowledge that this cannabis was in the green shed or of who placed it there.
The accused stands charged with one count of possessing cannabis for sale in that on 29 October 2001 at Newton he knowingly had the cannabis referred to above in his possession for the purpose of selling it to another person. He has pleaded not guilty. He elected for trial by Judge alone. On the trial the only live issue was whether it was proved beyond reasonable doubt that he knowingly had possession of this cannabis. The prosecution case was a circumstantial one.
The accused called his wife, from whom he has since separated, as a witness in the trial. The prosecutor did not seek to discredit her evidence. I find her to have been an impressive and a reliable witness. I generally accept her evidence, although she was mistaken about the accused’s business records being stored in the green shed on 29 October 2001.
The evidence of the various police officers who gave evidence was not entirely reliable. On matters of detail there were inconsistencies between their various testimonies and between some of them and Mrs Prinz. However, these matters of detail do not cause me to find that certain central parts of their evidence are not reliable. It is not necessary to go into much of the detail upon which some of them were incorrect to resolve this matter. It is sufficient for me to state that I accept those parts of the police evidence which I refer to below. I find the contemporaneous notes made by various police officers to be accurate and reliable. It was not put to any of the police officers that they were deliberately lying or had manufactured evidence in an attempt to “frame” the accused. The police investigation of the matter could have been better conducted in a number of respects, but that does not affect the cogency of the vital pieces of evidence mentioned below.
The accused has no previous convictions and I have regard to that in my assessment of the credibility of his evidence. I do not draw any inference against him from his having exercised his right of silence when questioned about the cannabis which was located in the green shed. However, overall he was not an impressive or a convincing witness. I do not accept his evidence on some crucial matters as set out below. However, I accept that there was more said between him and the police officers during the raid than was recollected by the police.
Shortly before September 2001 the accused and his wife jointly set up a business called “Buckbusters” which sold variety goods at a shop at Findon. The green shed was erected on the Newton premises for the purpose of storing stock for this business. On 7 October 2001 the accused and his wife went to Melbourne to buy stock for that business which they brought back in cardboard cartons on a trailer. They placed a substantial number of these cartons, which were not immediately required in the business, in the green shed. The cartons were stacked against the side and back walls of the shed in an orderly fashion and to facilitate ready access to them. The stock stored in the shed was worth between $1,000 and $2,000. The shed was not locked. Thereafter, Mrs Prinz went to the shed two or three times each week to obtain items of stock from the boxes as it was required in the shop. She worked in the shop on the Monday, Tuesday, Thursday and Saturday of each week and did the book work for the business. The accused did not work in the shop or have any other active involvement in its operations after it was initially set up. Mrs Prinz last went to the green shed a day or two before 29 October. The esky and the mayonnaise buckets were not then in that shed and she would have noticed them if they were there.
At about 11am on 29 October Detective Clarke was the first police officer to enter the green shed in the course of the search. When he opened its unlocked door he was confronted by a stack of cartons immediately inside the doorway which obscured his view of the interior of the shed. Mrs Prinz had not put these cartons near the doorway and was unaware of them being there. It is likely they were moved there by whoever put the cannabis in there. Detective Clarke was able to squeeze past one end of the cartons and he then observed the two mayonnaise buckets and the esky on the floor of the shed immediately behind them. The esky belonged to Mr and Mrs Prinz and had previously been in the silver shed. The two mayonnaise buckets also belonged to the accused and Mrs Prinz and also had probably previously been in the silver shed.
Both the accused and Mrs Prinz denied any knowledge of the cannabis which was in the green shed and stated they had no knowledge of who had put it there. The prosecution accepted, and so do I, that Mrs Prinz did not know of this cannabis or how it came to be there. At trial the accused suggested that the cannabis must have been placed into his esky and mayonnaise buckets by some unknown person and for reasons of which he was not aware. Certainly it would not have been difficult for someone else to have gained access to the backyard of the premises and the green shed, although there was no lighting in the green shed which would have facilitated it being done at night.
There is a strong inference that the cannabis was only placed in the green shed a matter of hours rather than days before it was discovered by the police and that it was probably not intended to remain in the shed for longer than a few hours after the police raid. The frequency of Mrs Prinz’s visits to the green shed would suggest that there was a great danger of this very valuable cannabis being discovered by her if it was to remain in that shed for days rather than hours. If it was placed in the shed by someone unknown to the accused, there is no apparent reason why that person would want to leave it there for only a matter of hours rather than days. On that Monday, 29 October Mrs Prinz had left for work at 8am and was expected to be at work all day. This was known by the accused, but it is unclear how any stranger might have known this.
There is no evidence of any intruders or strangers in the vicinity on 28 and 29 October who could possibly have been responsible for placing the cannabis in the shed. The accused was at home on these days.
I now turn to deal with what the prosecutor alleged was a strong piece of circumstantial evidence linking the accused with the cannabis found in the green shed. During the police search of the accused’s office one of the police, probably Constable Orr, found a small piece of cannabis material on the floor of the office in the vicinity of the back edge of the accused’s desk in that office. I accept the police evidence that such a piece of cannabis was found there. There is some uncertainty as to its exact dimensions and configuration, but it is of no particular consequence There is no dispute that shortly prior to 11am Constable Borgas produced a piece of cannabis material to the accused in the kitchen. I find that this piece of cannabis produced by Constable Borgas was that which had been found shortly beforehand on the office floor. Constable Borgas then proceeded to issue an expiation notice to the accused in relation to this small piece of cannabis. I accept Constable Borgas correctly recorded on his copy of the expiation notice in a contemporaneous handwritten transcript the conversation which then occurred between himself and the accused in relation to this small piece of cannabis. I reject the accused’s evidence to the contrary. Borgas said to the accused, “I found this on the floor near your desk. What is it?” and the accused answered, “Green vegie matter.” Borgas said, “Do you also know its cannabis?” The accused answered, “Yep.” Borgas asked him, “What do you use it for?” and he replied, “Smoking.” Borgas said, “Whose is it?” and the accused said “Mine.” Borgas said, “Do you realise it is an offence to possess cannabis?” and the accused said “Yep.” I accept Constable Borgas’ version of the conversation even though he did not put it to the accused later in the day when he conducted a video record of interview. He did not do so because his expiation notice book, in which the conversation was recorded, was not with him in the interview room, but was out in a police car. This conversation falsifies the assertion made by the accused in his evidence that he had no idea where the cannabis found in his office came from. His explanation to Constable Borgas that it was for smoking was not correct as he had not smoked cannabis for some years and no implements for smoking cannabis were found on the search of the house.
It was while Constable Borgas was finalising the expiation notice that Detective Clarke found the cannabis in the green shed. The ascertainment of this major indictable offence is likely to have over-shadowed the relatively minor expiable offence which was constituted by the cannabis found in the office. Regrettably, none of the investigating police officers appear to have appreciated the significance of the cannabis found in the office as circumstantial evidence linking the accused with the cannabis in the shed. Shortly afterwards the accused was shown the esky and the mayonnaise buckets in the backyard. There was no proper recording of what was then said and done. However, I accept that the responses of the accused were consistent with his subsequent evidence that he did not know anything about this cannabis.
There is also a strong inference that wherever the piece of cannabis in the office had come from it had not been there for very long, and probably for only a matter of hours rather than days. Mrs Prinz was in that office on occasions and on the chair side of the desk in the vicinity of where the cannabis was found on some occasions such as when she used the fax machine. If she had seen the piece of cannabis, she would have removed it for fear that it might have been found by, and harmed, one of her children. Both children were commonly in the office. Likewise she expected that if the accused had seen it there, he also would have picked it up so that a child would not have found it. There was no evidence of any particular visitor to the office in the few days prior to the police raid who might have dropped the cannabis. The accused had a friend in the Hell’s Angels but he had not been to the house. While Mrs Prinz could not remember any particular visitor in the few days prior to 29 October who might have dropped this cannabis, she could not specifically say that there was no such visitor. There was no evidence by either the accused or Mrs Prinz of any known cannabis user having been in the office prior to 29 October who might reasonably be suspected of having dropped any cannabis there.
While there is no direct evidence that the cannabis found on the floor of the office was part of the same batch of cannabis as was found in the green shed, on the evidence it is the most likely source of that piece of cannabis found in the office. This means it is likely that all or some of the cannabis which was found in the green shed had been in the accused’s office shortly before the police raid and that a small piece of it had been inadvertently dropped onto the floor. It is beyond the realms of reasonable possibility that a stranger could have had some dealings in the accused’s office with the cannabis found in the shed without the accused knowing of it and being implicated in it. While there may have been an unfortunate coincidence that some stranger for unknown reasons had placed the cannabis in the green shed it would be a quite unbelievable further coincidence if at about the same time a piece of unrelated cannabis had been dropped in the accused’s office without it having any relation to the cannabis placed in the shed. Accordingly, the finding of the piece of cannabis in the accused’s office is a strong piece of circumstantial evidence pointing to the accused being knowingly involved in placing the much larger batch of cannabis in the green shed.
The prosecutor relied on other strands of circumstantial evidence, but they are of either little or no weight. The keys to the green shed were kept in the drawer in the accused’s desk, but they had apparently never been used to lock the shed. The accused had some previous, but no established current, association with a motor cycle gang which may have been involved in cannabis trading. He was at home on 29 October, and apparently generally in the few days preceding it, and at times at which his wife was not home. The fact that the cannabis was found in the esky and two mayonnaise buckets belonging to him suggests that the fourteen bags of cannabis were probably put into the esky and the buckets at the accused’s premises. I also have regard to the accused’s good character in assessing what weight is to be placed on the circumstantial evidence against him. I also have regard to circumstantial factors which point to him not knowingly being involved in the possession of the cannabis. There were no scales found at the house. There were no indicators that any retail selling of cannabis had occurred on the premises such as frequent visitors and telephone calls, large sums of cash or lists of names.
I do not find that the presence of a book entitled “Hashish” in the accused’s office, a small fishing knife on his desk or plastic bags on his desk are strands of circumstantial evidence against him. If the police had wished to rely on these, they should have been more closely examined and seized. The accused had a large hunting knife in a sheath in a drawer in his desk. As it was in a sheath it is equivocal whether its purpose was as a weapon to defend himself if he was attacked by people wanting to take his cannabis. There were other knives and potential weapons in other parts of the house which were treated as ornaments. I do not treat the presence of the hunting knife as a piece of circumstantial evidence against him. Up until about February 2001 he had been involved in a number of hydroponic businesses but there was no direct evidence they were concerned with growing cannabis.
The only possibilities available on the evidence to account for the cannabis being in the green shed are that either it was placed there by unknown strangers without the knowledge or permission of the accused or that it was placed there by or with the permission of the accused and with his knowledge. For the reasons given I find that the first possibility is not a reasonable hypothesis available on the evidence which I accept. There is a significant inference from the piece of cannabis found near the accused’s office desk that some or all of the cannabis in the shed had recently been in the accused’s office. As stated above it is beyond belief that the accused could have been the innocent victim of strangers placing cannabis in the green shed and also coincidently that an entirely unrelated small piece of cannabis just happened to be dropped in his office if the two were not connected. If, as I find, something occurred in the accused’s office shortly before the police raid involving the cannabis which was found in the shed, there is no reasonable possibility that that could have happened without the knowledge and the consent of the accused. Accordingly, I find that there is no reasonable hypothethesis available on the evidence to explain the presence of the cannabis in the green shed which is consistent with the innocence of the accused. I find it proved beyond reasonable doubt that the cannabis found in the green shed was under the control of the accused, that he intended to exercise control over it and he was knowingly in possession of it. I reject his evidence that he did not possess or know of it.
The inferences which I have drawn prove beyond reasonable doubt that the accused knowingly possessed the cannabis found in the green shed. However, if the only proper inference is that the accused knowingly permitted someone else to use his green shed for the purpose of that person possessing the cannabis, then I agree with the prosecutor that the accused should be convicted of aiding and abetting that offence under s41 of the CSA.
As it is proved that the accused knowingly had in his possession more than 1 kg of cannabis, under s32(3) of the CSA he is presumed to have had that cannabis in his possession for the purpose of its sale to another person as there is no evidence or proof to the contrary. Accordingly, all of the elements of the offence charged under s32(1)(e) of the CSA have been proved to the requisite degree and the accused is convicted of the offence charged.

[2002] SADC 147

20 November 2002