R v Roach - [2014] SADC 35

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ROACH
Criminal Trial by Judge Alone
[2014] SADC 35
Reasons for the Verdict of His Honour Judge Chivell
7 March 2014
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - CULTIVATION
Charge of cultivating a commercial quantity of controlled plants for sale in 2012. Cannabis being cultivated in maisonette adjoining that in which accused lived – prosecution alleging accused took part in the process of cultivation by guarding the crop. Accused had been convicted of similar offending in 2011 – issues of discreditable conduct and propensity. Whether circumstantial evidence gave rise to inference of guilt beyond reasonable doubt.
Verdict: Guilty
Controlled Substances Act 1984 s 4(1), s 4(4), s 4(7), s 33B(1), s 33B(2), s 33B(5), s 33P(1); Evidence Act 1929 s 34 s 34P(1), s 34P(2)(a), s 34P(3); Juries Act 1927 s 7(1); Summary Offences Act 1953 s 67(4)(c), referred to.
R v C, CA [2013] SASCFC 137; R v Maiolo (No 2) [2013] SASCFC 36; HML v R (2008) 235 CLR 334; R v S, PC (2008) 102 SASR 199; R v Long & McDonnell [2002] SASC 426, (2002) 137 A Crim R 263, considered.

R v ROACH
[2014] SADC 35
Introduction

Kevin Shane Roach is charged with one count of cultivating a commercial quantity of controlled plants for sale, contrary to s 33B(2) of the Controlled Substances Act 1984 (‘CSA’). He has pleaded not guilty.
Mr Roach elected to be tried by a judge sitting without a jury pursuant to s 7(1) of the Juries Act 1927. He was represented by Mr Healy. Ms Orr appeared for the Director of Public Prosecutions.
Particulars of the charge are as follows:
Kevin Shane Roach on the 1^st day of August 2012 at Athelstone, knowingly cultivated a commercial quantity of controlled plants, namely cannabis, intending to sell one or more of them or their products or believing that another person intended to sell one or more of them or their products.
The charge relates to the discovery by police, on 1 August 2012, of cannabis plants being grown hydroponically in premises at 386 Gorge Road, Athelstone (‘386’). Mr Roach lived in an adjoining maisonette, at 388 Gorge Road, Athelstone (‘388’). It is alleged that Mr Roach was cultivating these plants, in particular by guarding the adjoining premises by monitoring closed-circuit TV cameras (‘CCTV’) installed for that purpose.
General Directions
I remind myself of the following fundamental principles:
·The accused is entitled to the presumption of innocence - he is to be regarded as innocent unless and until his guilt has been proved by the prosecution beyond reasonable doubt.
·The burden of proving guilt rests on the prosecution. There is no onus on the accused to prove or explain anything. Any uncertainties or gaps in the prosecution case must be resolved in favour of the accused.
·Mr Roach elected to give evidence. He was under no obligation to do so. In doing so, he subjected himself to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Roach

Details

AGLC: R v Roach [2014] SADC 35
Case: [2014] SADC 35
Decision Date: 7 March 2014

CaseChat Overview and Summary

In the case of R v Roach, the accused was charged with cultivating a commercial quantity of controlled plants for sale in 2012. The cannabis plants were found in a maisonette adjacent to the one in which the accused resided. The prosecution alleged that the accused was involved in the cultivation process by acting as a guard for the crop. This case came before the court following the accused's previous conviction for a similar offence in 2011, raising issues of discreditable conduct and propensity. The primary legal issue for the court to decide was whether the circumstantial evidence presented was sufficient to establish the accused's guilt beyond reasonable doubt.

The court considered the evidence presented, including the accused's previous conviction for a similar offence, to determine the weight to be given to the discreditable conduct and propensity evidence. The court examined the circumstances of the 2011 conviction and the current charges to assess the relevance of the past conviction in establishing the accused's involvement in the 2012 offence. Additionally, the court evaluated the circumstantial evidence presented, such as the location of the cannabis plants and the accused's proximity to the cultivation process, to determine if it was sufficient to establish the accused's guilt beyond reasonable doubt.

The court found that the circumstantial evidence, when considered in conjunction with the accused's previous conviction, was sufficient to establish the accused's involvement in the 2012 offence beyond reasonable doubt. The court held that the discreditable conduct and propensity evidence were relevant and should be taken into account when assessing the accused's guilt. Consequently, the accused was found guilty of cultivating a commercial quantity of controlled plants for sale in 2012.

The court did not make any specific orders beyond the conviction. However, it is likely that the accused will face sentencing for the offence, which may include imprisonment, fines, or both, depending on the circumstances and the discretion of the sentencing judge.

Orders