R v Roach
[2014] SADC 35
•7 March 2014
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 35Introduction
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 1st 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 cross-examination by Ms Orr. He denied cultivating cannabis in the manner alleged, and answered questions about the surrounding circumstances.
·I remind myself that Mr Roach’s evidence should be assessed in the same way as the evidence of any other witness, and in particular, that it should not be given less weight because he is the accused in this trial. To do so would be to deny him the presumption of innocence. I also remind myself that even if I reject his denials, that does not bolster the prosecution case. For Mr Roach to be convicted of this offence, I must be satisfied of the strength of the prosecution case beyond reasonable doubt.
·Proof beyond reasonable doubt means what it says and needs no further elaboration. A mere suspicion of guilt, or even a probability of guilt, is not sufficient. Nothing short of proof beyond reasonable doubt is sufficient.
·Each element of the offence must be proved beyond reasonable doubt, and if any one element is not so proved, the appropriate verdict is ‘not guilty’.
Circumstantial Evidence
The prosecution case relies upon circumstantial evidence. There is no direct evidence that Mr Roach cultivated the cannabis which the police found in 386. My task is to assess the evidence and make findings as to the facts relied upon by the prosecution as having been established by the evidence. I will then move to consider what inference or inferences I am prepared to draw from those facts. I remind myself that I may not draw an inference of guilt of the offence unless I am satisfied, not only that guilt is a rational inference arising from the evidence, but that it is the only rational inference that I am able to draw in the circumstances. In other words, a conclusion of guilt may not be reached unless the facts exclude any reasonable explanation consistent with innocence.
Elements of the Offence
The prosecution must prove each of the following elements of the charge beyond reasonable doubt.
1.The substance in question was a controlled plant.
Section 4 of the CSA provides that a growing cannabis plant is a controlled plant. The evidence of Detective Brevet Sergeant Handley is that he and his colleagues found the following plants growing at 386 on 1 August 2012:
·four medium-sized plants growing in soil in the back yard;
·fifteen small plants growing hydroponically in a foam box in the kitchen;
·six large plants growing hydroponically in a bedroom;
·six smaller plants, also growing hydroponically in the same bedroom.
It is an agreed fact[1] that samples taken from these plants were analysed by forensic scientist Tanya McKew on 18 October 2012, and the analysis established that the samples from each group were of cannabis.[2]
[1] Agreed Fact No. 4
[2] Certificate of Analysis, Exhibit P20
On the basis of this evidence, I find element 1 proved beyond reasonable doubt.
2.Mr Roach cultivated the drug.
In his address, Mr Healy made it clear that this is the only element in dispute.
‘Cultivate’ is defined in s 4(1) of the CSA as meaning to:
(a) ...
(b) ...
(c) ...
(d) ...
(e) take part in the process of cultivation of the plant.
As to (e) above, s 4(4) of the CSA provides:
For the purposes of this Act, a person takes part in the process of sale, manufacture or cultivation of a controlled drug or controlled plant if the person directs, takes or participates in any step, or causes any step to be taken, in the process of sale, manufacture or cultivation of the drug or plant.
Section 4(7) of the CSA provides:
For the purposes of this Act, a step in the process of cultivation of a controlled plant includes, without limitation, any of the following when done for the purpose of cultivation of the plant:
(a) …
(b) …
(c) …
(d) guarding or concealing the plant or equipment, substances or materials;
(e) …
(f) …
On the basis of these legislative provisions, this element will have been proved if I am satisfied beyond reasonable doubt on the evidence that Mr Roach was guarding the cannabis crop in the adjoining maisonette on 1 August 2012.
3.Mr Roach knew that the plant was a controlled plant or was reckless about that (CSA, s 33P(1)).
I agree with the submission of Ms Orr that proof of this element follows if element 2 is proved beyond reasonable doubt. If Mr Roach cultivated these plants, it is obvious that he knew what they were. He acknowledged in evidence that he was a cannabis user (T 113). It is an agreed fact that he has cultivated cannabis previously, on 9 June 2011.[3] Mr Roach gave evidence that in 2011, his role was ‘watch, guard dog, watchman’ (T 113).
[3] Agreed Fact No. 10
If I am satisfied beyond reasonable doubt that Mr Roach cultivated the cannabis by guarding it, then I would also be satisfied beyond reasonable doubt that he knew that the plant he was guarding was cannabis.
4.There was a commercial quantity of the plant.
Schedule 3 of the regulations made under the CSA provides that a commercial quantity of cannabis plants is 20. It is an agreed fact that the police found 31 plants.[4]
On the basis of this evidence, I find element 4 proved beyond reasonable doubt.
5.Mr Roach intended to sell any of the plants or their products, or believed that another person intended to sell any of them or their products (CSA, s 33B(1)).
Section 33B(5) of the CSA provides:
If, in any proceedings for an offence against subsection (1), (2) or (3), it is proved that the defendant cultivated a trafficable quantity of a controlled plant, it is presumed, in the absence of proof to the contrary, that the defendant had the relevant intention or belief concerning the sale of the plants or their products necessary to constitute the offence.
A ‘trafficable quantity’ of cannabis plants for the purposes of sub-s (5) is 10 (Regulations, Schedule 3).
There is no ‘proof to the contrary’. In those circumstances, I find element 5 proved beyond reasonable doubt.
[4] Agreed Fact No. 5
The 2012 Crop
In the evening of Wednesday, 1 August 2012, Detective Brevet Sergeant Handley and Detective Shepherdson attended at 386 and 388. At the front of 386, on the verandah, they could see a CCTV camera operating – there was a light glowing around the lens. He said he could hear ‘multiple fans’ running through the window of 386 (T 14). As no one answered the door, he went to 388 and Mr Roach answered. He said that he told Mr Roach that he suspected that 386 was being used to grow cannabis and that Mr Roach said that ‘he had his suspicions’ (T 14).
The police entered 388, and saw the CCTV monitor monitoring three cameras in a cyclical manner, one outside 386, one outside 388, and one behind 388 monitoring the rear of 386.
The police walked to the rear of 388, through a gate in a dividing fence which was unlocked, and then entered 386.
In the rear yard of 386, police found four cannabis plants growing in tubs under mesh. They were 20 to 30 cm in height (T 20). They also found a pile of root balls, apparently from a previous crop, a light shade, a fan and a plastic pot up against the rear of the house. Inside 386, police found plastic bags containing cannabis leaves and stalks, apparently left over from a recent plant-stripping operation. These were relatively fresh, indicating that the stripping had occurred recently (T 27).
In the shed adjoining the area where Mr Roach’s gym equipment was set up, police found a number of large plastic pots, a pile of bags containing soil and ‘Hydro Grains’, and a small carbon filter (T 23).
The set-up of these sheds was such that the above items were clearly visible to anyone entering or leaving the area where Mr Roach’s gym equipment was set up (T 23).
After removing the bar across the rear door, police entered 386. Inside the laundry were bottles of nutrients for hydroponic cultivation, buckets and two bud strippers (T 25). In the kitchen there was a foam esky sitting on the kitchen bench. It had a clear plastic lid, above which was set up a fluorescent light. Inside the esky were 15 small cannabis plants (T 25). Also in the kitchen was a wardrobe which had been fitted with drying racks and an extractor fan. There were fresh scraps of leaf matter in the bottom of the wardrobe (T 26).
In a bedroom designated ‘bedroom 1’, there were nine hydroponic light fittings connected to ballast boxes (transformers) and a carbon filter mounted on the wall. An irrigation system had been installed. A bag containing fresh cannabis stalks and leaves was found in this room (T 27).
There were a number of hydroponic light fittings in the lounge room.
In bedroom 2, a large hydroponic cultivation was under way. There were six large cannabis plants in the centre of the room, and six smaller ones to one side. Again, the lights were connected to ballast boxes, and there was a carbon filter fitted to the wall (T 28). All of the lights were on when the police attended (T 29).
When interviewed, Mr Roach denied all knowledge of the cannabis growing in 386, although he said that he looked over the fence ‘all the time’ (Exhibit P7, questions 55 to 63). If he did that, he could not have missed seeing the cannabis plants growing in the back yard.
2012 – Wiring
In 2012, the police also noted a loose electrical cable hanging from a hole in the ceiling in bedroom 2 in 388, Mr Roach’s maisonette. The cable was connected to a timer box (Exhibit P8, photos 6 and 7).
The police noted that the timer was making a buzzing sound (Exhibit P7, question 131). Mr Roach insisted that the wire had been like that since ‘then’ (i.e. since the 2011 police visit (Exhibit P7, question 109)). However, Mr Roach said that an electrician had attended the property after the 2011 visit, and had rectified all the wiring and ‘certified the place’. His name was ‘George’, and ‘he’s not in the country any more, anyway (Exhibit P7, questions 106 to 111). It would appear that Mr George Bisak was in the country on 21 August 2013 in order to give a statement to the police.
It is an agreed fact that Mr George Bisak, a licensed electrician, attended at both 386 and 388 to rewire the premises in June 2011. Mr Bisak’s statement, which is also agreed, contains the following:
As part of the re-wiring process, I ensured that all electrical cabling below the ceiling in both premises was installed inside conduit.
Any bare electrical wiring located below ceiling level at 386 or 388 Gorge Road must have been installed after I re-wired the premises and was not there when the job was complete and I signed the certificates of compliance.
Not only did Mr Bisak certify the wiring as ‘inside conduit’, on Mr Roach’s own statement to the police, an officer from the Office of the Technical Regulator (‘OTR’) visited the properties about a month later and inspected them. It is inconceivable that, if the wiring was in the condition depicted in the photographs, the OTR would have allowed mains power to be supplied to the property.
I find that Mr Roach’s statement to the police that the wiring in bedroom 2 had been in that condition since 2011 was untrue, and that Mr Roach knew it to be untrue.
By the time he came to give evidence, Mr Roach’s position had changed. He said that whoever had rearranged the wiring must have done so after Mr Bisak rewired the place, after the OTR inspected it, so towards the end of July or August 2011 (T 123). He could scarcely have said anything else in light of the evidence. He denied any knowledge of this having been done (T 122). He said that he had not been back in the room since the police visit (ibid).
The suggestion being put is that, like the carbon filter which I will discuss in a moment, someone had entered 388, his residence, and, without his knowledge or permission, interfered with the wiring in bedroom 2 with a view to cultivating another crop in there.
Mr Roach explained that he was often out of the house, working or at the pub (T 123).
There is, of course, no onus on Mr Roach to prove or explain anything. That onus always rests squarely on the prosecution to prove its case beyond reasonable doubt.
I reject Mr Roach’s explanation for the state of the wiring in bedroom 2 of 388 as untrue; in fact, as being deliberately false. It is clear that Mr Roach had decided to abandon his earlier position after it became clear that the police had located Mr Bisak and taken a statement from him.
Mr Roach had been living in that maisonette for 10 years or more. He conducted video surveillance over it and the adjoining property. He was highly security conscious, on his own evidence. To suggest that this work, along with the installation of the carbon filter, was done in the bedroom which adjoins his own bedroom, without his knowledge (T 141), is fanciful, and I reject it.
I am satisfied beyond reasonable doubt that the contrary is true; namely, that Mr Roach well knew what was happening.
2012 – The Carbon Filter
In a room designated bedroom 2 in 388, Mr Roach’s maisonette, the police noted the presence of a carbon filter on a platform mounted to the wall. The filter is depicted in Exhibit P8, photo numbers 4 and 5.
Mr Roach told the police that the filter had been left behind after the previous police visit in June 2011 (Exhibit P7, question 99).
Detective Brevet Sergeant Handley said that Mr Roach’s statements about that are not true (T 59). Mr Handley said that he had a specific memory of removing the filter from bedroom 2 in 2011. It was given the exhibit number 388.C.9 – ‘388’ being the number of the house, ‘C’ being the designation for bedroom 2, and ‘9’ being the exhibit number. Mr Handley said:
It was placed on a trailer and I took it down to the exhibit property section at Ottoway. It was booked into exhibit property, into the PPMS system, as an exhibit and processed from there.
(T 59)
Mr Handley produced an extract from the Police Property Management System (‘PPMS’), on which it is noted that a carbon filter (No. 388.C.9) was removed from the ‘roof’ of the room, taken to Ottoway, and eventually destroyed on 27 March 2012.
The inference from those records is very strong that the carbon filter in bedroom 2 on 9 June 2011 was removed and retained by the police. In fact, only one carbon filter was removed from 388 (T 62).
Further, a perusal of photographs of the carbon filter taken in 2011 (Exhibit P12, photo 41), clearly demonstrates that the ducting was different from that in 2012 (Exhibit P8). In 2012 there were also two ‘chocks’ holding the carbon filter in place on its platform, whereas in 2011 there were no chocks (T 63).
The ducting in 2012 was shorter. This was explained by Mr Handley:
Q. When the carbon filter was seized in 2011, what happened to the ducting.
A. We left the ducting behind. What we did is we cut the ducting off where it entered the carbon filter and we left that hanging from the ceiling.
(T 63)
The inference is very strong that another carbon filter had been installed in bedroom 2 of 388 since the 2011 police visit, and was simply reconnected to the remaining ducting, which was still in the ceiling.
By the time he gave evidence, Mr Roach had again changed position. As with the wiring, he tacitly acknowledged that his earlier suggestion that the carbon filter had been left there since the 2011 visit must have been wrong. He accepted that the second filter must have been installed in late July or August 2011, but insisted that it was without his knowledge (T 141).
For the same reasons as I expressed in relation to the wiring, I am satisfied beyond reasonable doubt that his evidence about that is untrue, and that he was well aware of the fact that the interference with the wiring and the installation of the carbon filter were taking place. The clear inference from that is that preparations were being made to set up a further hydroponic crop in that room.
2012 – Access to 386
Detective Brevet Sergeant Handley’s evidence was that in 2012 the front door to 386 was barricaded with furniture and other objects (T 28). Mr Roach gave the police access to the back yard of 386 by allowing them through 388 and to use a gate between the two properties (T 15).
The back door to 386 was barred with a steel bar and a padlock. The windows, front and back, were barred (T 24). Mr Roach said he did not have a key to the padlock to enable access to 386 (T 120). The police did not find a key at the property.
Mr Roach did have a key to the roller door at 386 (Exhibit P7, question 42). He said this enabled him to get access to his gym equipment, which was in a building behind the garage of 386 (T 119). He said he used the gym equipment almost every day (T 121).
Detective Brevet Sergeant Handley agreed that unless Mr Roach had a key to the padlock on the back door, he did not have access to 386 (T 75). The police searched 388, but did not find a key. However, Mr Handley said that ‘there are many, many places a key could have been that we wouldn’t have found’ (T 76). Mr Roach said it was possible to access 388 from 386 through the laundry door, but the reverse was not true – 386 could not be accessed from 388 through that door (T 120).
It is not possible to form a conclusion that Mr Roach had access to 386 after June 2011, apart from what he described as a short period after the police visit when he paid half of the cost of having both maisonettes rewired (T 131). I therefore am not satisfied that he had any such access.
However, in my view, that does not detract from the strength of the prosecution case that he was guarding the property. Mr Roach did not have a key to 386 in 2011, either, and that did not prevent the conclusion that he was guarding the property then.
2012 – Surveillance
There was no evidence that 386 was inhabited by anyone in 2012.
I have already described the positions of the CCTV cameras as noted by the police in 2012. The cameras were linked to a small television monitor in Mr Roach’s bedroom in 388 via a wireless system (T 30). The relative positions of the cameras and the monitor are clearly demonstrated in the video taken by Detective Brevet Sergeant Handley, stills from which video are Exhibit P5 numbers 29, 30 and 31 (2012).
It is apparent from the video material that the cameras and monitor were on at the time the police arrived. The cameras were showing a red light (T 14) and the monitor was working (ibid). The system cycled between the three cameras, as I have already described.
When asked by the police about the cameras, Mr Roach said:
I watch all the properties here for the Landlord.
(Exhibit P7, question 27)
It is clear that at least one previous crop had been cultivated and harvested in 386 between the 2011 and 2012 police visits. This is evident from the presence in 2012 of garbage bags containing discarded plant material which was still relatively fresh, and the presence of ‘root balls’ found in the back yard from a previous crop (T 81).
Indeed, it is implicit in Mr Roach’s statement at T 112 that he rented 386 because he had been ‘approached by a group of people to cultivate marijuana in it’, that crops could have been grown there as far back as 2008.
The landlord, Mr Cirocco, said that he did not install the surveillance system, nor did he ask Mr Roach to monitor it for him (T 104). He said that Mr Roach did ‘keep an eye on’ all three of his properties (Nos. 384, 386 and 388) when he was not around (ibid).
In evidence, Mr Roach said that he installed the surveillance system in 2011 for ‘peace of mind’. He said, in relation to the camera outside 388:
A. Peace of mind. I was involved in growing cannabis and I’m a 52-year-old man. It’s not wise to be involved, walking out to the yard without first ascertaining how many people are out there or who is out there before you leave the premises.
(T 116)
Mr Roach said that he moved the camera from its original position outside 386, after the June 2011 police visit, so that it gave a better view of the garage door, because the bolt had been ‘jimmied’ to give access to his gymnasium (T 115). The third camera, outside the rear of 388, pointing towards the rear of 386, was also installed by him for ‘no real reason prior to the break-in in the shed and that’s when I decided to position it and look at the shed’ (T 116).
Clearly, the system was originally installed so that Mr Roach could guard the crops in 2011, both in 386 and 388. On his own version, he continued to monitor the system after 2011; he sought to convey that his only motivation was to guard the gymnasium.
Mr Roach said that he did not know the people who grew the crops in 2011. He was the only person arrested. He originally had a key to 386, he said, but he gave it to ‘the other people’. He said ‘they’ subsequently changed the locks on both doors to 386, and that he never entered 386 again (T 118).
During the interview with Detective Brevet Sergeant Handley on 1 August 2012, Mr Roach admitted that the camera in 386 could be monitored on his equipment (Exhibit P7, question 22). At questions 33 and 34, he said that he did not know whose camera it was in 386 ‘next door’. This was obviously untrue.
Mr Healy asked his client about this in examination-in-chief:
Q. When police first interviewed you, they asked you about who put the camera up at 386 and you said ‘I don’t know’.
A. Yes.
Q. Why did you say that.
A. Well, when I first answered the door and he introduced himself to me and what he was here for, he turned and said ‘I see you’ve put a new camera up’. I went ‘I don’t know anything about a new camera, this new camera. I don’t know nothing about it’. In actual fact, what I have worked out since, he has actually mistaken that camera in the hole and placing it outside the doorway as a new camera. It’s not.
(T 127)
Later, Mr Roach said:
HIS HONOUR
Q. Ms Orr is saying to you the question was ‘Is it Lino’s camera’.
A. I said I didn’t know, because I didn’t know if it’s his new camera or not.
Q. He wasn’t saying it was a new camera – he was asking –
A. When he first come to the door he said ‘I see you’ve got a new camera’, that was the words he said to me, he said to me after he come to the door and introduced himself.
Q. You say that happened off the tape.
A. When he was standing at the flyscreen door.
(T 128)
There was no mention of a ‘new camera’ by Detective Brevet Sergeant Handley after he introduced himself at 8.50 p.m. (see Exhibit 7, question 1). Mr Roach appeared to be referring to an earlier conversation between them, at about 7.50 p.m., which was not recorded.
Whatever is the conversation being referred to, Mr Roach’s responses make no sense. He knew very well whose cameras they were. They were his, he put them up himself.
Mr Roach’s explanation that he installed the cameras to watch the properties for the landlord is patently untrue. This was denied by the landlord, whose evidence was not challenged. Mr Roach made much in his evidence of being impecunious. Installing the system to help his landlord does not make sense.
Furthermore, Mr Roach’s evidence that he would only look at the monitor when he heard a noise (T 139, line 27), seems incongruous with his evidence that he heard nothing through the walls from 386 (T 140, line 4), saw none of the extensive amount of equipment taken into the premises to re-establish the crop after the 2011 police visit (T 140), and saw no one going in or out (ibid).
Although he often used to ‘pop (his) head’ over the dividing fence between 386 and 388 to keep an eye on his gym (T 140), he apparently saw nothing of the cultivation and watering of the plants growing in the back yard of 386.
Mr Roach said he did not see the garbage bags outside the back door of 386 with fresh cannabis material inside them (T 141).
I regard Mr Roach’s evidence on these topics as false. I am satisfied that his denial that he was guarding the crop by monitoring the CCTV, and his denial that he was aware that a crop was being cultivated in 386 at any time after the 2011 police visit, are untrue.
2012 – Tenancy
It was the evidence of Mr Cirocco, the owner of the two properties, that Mr Roach was the tenant of both 386 and 388 at the time of the 2011 police visit.
Mr Roach told the police that he used to rent 386, but his lease of 386 had ‘run out’ at Christmas (Exhibit P7, question 64). When asked if he had handed the keys back, he said ‘I didn’t have the keys to start with’ (Exhibit P7, question 67).
When asked about whether any people had been at the property, he said:
I don’t stick my nose in there. I don’t go and talk to anybody. I haven’t seen anyone come and go or anything like that. Mind you, I’m not here all the time … (d)uring the day, so.
(Exhibit P7, questions 77 to 78).
Mr Cirocco told the court that he first rented 388 to Mr Roach about 10 years ago. In fact, the first lease was dated 10 August 2002 (Exhibit P15). Mr Roach paid $150 per week rent. This was often offset by Mr Roach doing odd jobs for him (T 94).
On 1 July 2008, Mr Roach signed another lease over both properties, 386 and 388. The rent was $300 per week (Exhibit P16). The lease was for three years.
On 1 July 2011, a further lease was signed over both properties for six months at the same price (Exhibit P17).
It is to be noted that this lease was dated after the 2011 police visit on 9 June 2011.
Mr Cirocco explained that he told Mr Roach to find other accommodation at the end of 2011, but Mr Roach did not. After the 2012 police visit, he gave Mr Roach 60 days’ notice to quit the premises (T 97). The Notice of Termination is dated 4 August 2012, three days after the police visit (Exhibit P18). During the two months’ notice, Mr Roach worked for Mr Cirocco, demolishing the ceilings and floors so that he could renovate both premises (T 103).
Mr Cirocco agreed in cross-examination that Mr Roach did not pay the rent in money after January 2012, but rather he worked for it instead (T 108). He agreed that 386 was uninhabitable during this period, although demolition prior to renovation did not commence until September 2012 (T 109).
In evidence, Mr Roach admitted that the reason he rented 386 initially was ‘(b)ecause I was approached by a group of people to cultivate marijuana in it’ (T 112). He admitted that his role in relation to the 2011 crop was that of ‘(w)atch, guard dog, watchman’ (T 113). He had his rent paid and received two pounds of cannabis out of each crop for his own use as his reward (ibid). He said that at the time of the 2011 police visit, the rent was paid five or six months in advance. He said he did not pay any further rent in money after June 2011, as he did not have any (T 114). He said that Mr Cirocco did not ask him for any more money, but he did work for Mr Cirocco when asked (ibid).
Specifically, Mr Roach denied any involvement in any further cultivation at 386 after June 2011. He denied receiving any payment or benefit in that regard (T 115).
Since it is clear that further cultivation did take place at 386 after June 2011, the persons involved, on Mr Roach’s version, must have decided not to involve him further. Assuming, on Mr Roach’s evidence, the rent was six months in advance as at June 2011, further rent would have been due after about December 2011. Mr Roach said that, from January 2012 until the time he left, because Mr Cirocco wanted to renovate the buildings, he did not ask him to pay rent. He said that Mr Cirocco’s attitude was ‘We’ll leave things as they are and you just work for your rent’ (T 118).
When this evidence is combined with the next topic I will discuss, namely, the electricity supply, the conclusion I draw is that although it is not possible to form any clear conclusions as to whether Mr Roach continued to be the tenant of 386 after about December 2011, he clearly had an ‘interest’, in the non-legal sense, in what was happening there.
2012 – Electricity Supply
The statement of Ms Luke (Exhibit P22), which was agreed pursuant to s 34 of the Evidence Act, is that between 17 June 2011 and 15 October 2012, the electricity account for the property at 386 Gorge Road, Athelstone was in Mr Roach’s name.
The following invoices were rendered by the supplier, AGL Retail Energy Ltd, in relation to the property:
Invoice Date
Period
Charge
Date Paid
10.11.11
92 days
$3,374.49
29.11.11
8.2.12
91 days
$3,794.74
28.2.12
21.5.12
92 days
$4,488.15
18.6.12
10.8.12
92 days
$4,815.60
17.9.12
The next invoice was rendered on 16 October 2012. It was for a period of 73 days, and was for only $54.32. This was for the period after Mr Roach’s arrest. Another invoice was rendered on 16 October 2012 for $34. On 14 December 2012, a payment of $50 was made through Australia Post and the final $38.32 was paid by a ‘transfer credit’ on 27 March 2013.
Mr Roach said that, after June 2011, the wiring in both properties was deemed unsafe. He lived without electricity for three weeks. When the electricity was restored, presumably on 17 June 2011, after Mr Bisak had rectified the supply and the OTR had inspected and approved it, Mr Roach said that the account for supply to 386 was also in his name because, in his words:
A.… Lino Cirocco wanted to do renovation work and needed electricity for power tools, lights, so you could see what you were doing.
Q.So the electricity was put on in your name.
A.It was the only way AGL would let me deal with the account. If I was wasn’t [sic] on the account I couldn’t deal with the electricity. I needed to deal with the account so I could get the electricity turned back on to deal with the OTR and all that stuff.
(T 124)
Further, at T 126, Mr Roach said:
Well, for me to actually be able to access and have anything to do with 386, the AGL said I had to be the account holder to be able to do anything to it, to get it read out there and get the compliance, and I informed them there was no person here by that name any more and I needed to be able to deal with the electricity and that, and that’s when they changed it over into my name then.
Quite frankly, this evidence does not make sense. On the AGL records, accounts for thousands of dollars worth of electricity supply to 386 were being rendered to Mr Roach, and were paid by someone, and yet Mr Roach denied ever receiving an account, let alone paying one. These large accounts continued well past June 2011, to August 2012, throughout the whole period of which Mr Roach denies any knowledge of cannabis cultivation in 386.
Again, I am firmly of the view that Mr Roach is being untruthful about this. The only inference which seems to me to be available is that he received these accounts, and passed them on to some ‘other person’ in the enterprise for payment. That being so, he could not have been unaware that the cannabis was being cultivated at 386 throughout that period, particularly having regard, as I said, to the size of the accounts.
Further, when it was pointed out that renovations to 386 did not begin until after August 2012, and by implication that he had undertaken responsibility for thousands of dollars worth of electricity while those crops were growing in 386 in the meantime in 2011 and 2012, all Mr Roach could offer was:
Electricity, the same thing; when you move to a new house, you go and inform AGL or whoever you are getting the electricity from that you are the new holder in the house, and that’s what I seen happen when the next people moved next door in the house, that they would change the electricity in their name.
(T 129)
When it was pointed out to him in cross-examination that, in fact, the accounts were forwarded to his new address after he left 388, he continued to deny ever receiving them and asserted:
Q. But the account at 386 Gorge Road was forwarded to 90 Tolley Road, wasn’t it.
A. Well, the unpaid bills.
Q. So you had the unpaid bills –
A. Come to me, which I still haven’t paid. I can’t afford to pay them. AGL is searching for me now.
(T 130)
Clearly, on the agreed evidence, that assertion is untrue. The assertion that AGL is ‘still chasing me’, does not sit comfortably with the agreed evidence from AGL that all the bills have been paid.
The 2011 Crop
It is an agreed fact that:
The accused pleaded guilty to the offence of Cultivating a Commercial Quantity of a Controlled plant, which related to cannabis that was found growing at 386 and 388 Gorge Road on 9 June 2011.[5]
[5] Agreed Fact No. 10
Detective Brevet Sergeant Handley said that he had also been the investigating officer when police attended at 386 and 388 on 9 June 2011, just under 14 months prior to the 2012 crop. He described what was observed by police by reference to a book of photographs (Exhibit P12):
-There was a CCTV camera at the front of 388, in the same position as the camera seen there in 2012. There was a CCTV camera at the rear of 388, pointing towards the rear of 386, also in the same position as in 2012. The camera at the front of 386 was in a slightly different position in 2012. The hole where the camera was positioned in 2011 is evident in the photograph Exhibit P5, photo 31.
-The front door of 388 was barred. The bar and padlock appeared to be the same as the ones observed in 2012 (T 48).
-The rear windows of 386 were barricaded with metal bars and mesh, again the same as in 2012.
-There was a metal bar and padlock across the rear door of 386, as in 2012.
-Mr Roach answered knocks to the front door of 388 (T 40).
-The police obtained access to 386 by going through 388, out the back door, and through the unlocked dividing gate.
-The police forced the bar off the rear door of 386, as in 2012 (T 41).
-Mr Roach did not have a key to 386, as in 2012.
-No one appeared to be living at 386 (T 42), again as in 2012.
In 2011, the police found the following in 388:
·The CCTV monitor was in the same position, in bedroom 1 of 388, as it was found in 2012.
·Cannabis in a shopping bag and in a resealable bag were found in 388 in 2011, unlike in 2012, when only a small amount of cannabis and a pipe were found. Mr Roach gave evidence that he did not realise that they were still there, and they had been there since 2011.
·Thirteen cannabis plants were growing in bedroom 2 of 388 in 2011 (T 45), but none were growing there in 2012.
·Bottles of nutrients and a black plastic trough full of water fed by irrigation piping were also found in bedroom 2 of 388, unlike 2012.
·Police found J-bags, gloves, ballast boxes, scales and cash in 388 (T 77), unlike 2012.
·Hydroponic lighting, a fan and a carbon filter mounted to a wall with ducting into the ceiling were found in bedroom 2 of 388 in 2011. A carbon filter was mounted on the same platform in the same room in 2012 (T 47).
·Electrical cables were found hanging through a hole in the ceiling of bedroom 2 in 2011. They were connected to a ‘power box’. Similar cables were found hanging from the ceiling in 2012.
·Police found an AGL bill in the name of Joe Hansel for 386, and another AGL bill in Mr Roach’s name for 388 in 2011 (T 78). Police found no such power bills in 2012.
·A large quantity of ballast boxes and light shades were found in the gym area behind the shed attached to 386 in 2011 (T 49). Although the police seem to have assumed that they took them all after the 2011 visit, it seems clear that some of them were not taken, and were still there in 2012.
·Plastic containers containing nutrients for hydroponic cultivation, black pots, a fan and a bud stripper were found in the laundry of 386 in 2011, unlike 2012.
·In the kitchen of 386, the brown wardrobe fitted with drying racks and an exhaust fan was the same one seen in the same room in 2012 (T 50).
·Also on the kitchen bench in 386 was a Styrofoam esky with a clear plastic lid, and with a fluorescent light above it, and one cannabis plant growing inside. When compared with the esky found in 2012 in exactly the same position, Mr Handley commented:
It’s exactly the same style of container, in exactly the same position, using exactly the same lighting system[6].
·There was another similar esky on the floor in the kitchen of 386 in 2011. This one was empty. Mr Handley said that he did not seize the eskies in 2011. In all likelihood, then, one of these was the same one seen in 2012.
·Also in the kitchen was a green bucket sitting on a drying rack, in the same position as an identical bucket was seen, on an identical drying rack, in 2012.
·Various other items used in hydroponic cultivation were seen in various parts of the kitchen, including a number of ballast boxes in a cabinet, in 2012. Mr Handley was unsure whether they were seized in the 2011 visit (T 53).
·A bag of dried cannabis was found in the kitchen on the floor near the converted wardrobe in 2011, unlike 2012.
·In bedroom 1 of 386, there was a full hydroponic cultivation in progress, with nine healthy, smallish plants growing (T 54).
·In the lounge room of 386, a ‘tent’ had been constructed and there were three healthy cannabis plants growing hydroponically inside (T 55).
·Another bag of dried cannabis heads was found in the lounge room of 386 (T 56).
·In bedroom 2 of 386, another nine large plants were growing in a full hydroponic set-up (T 57).
[6] T 51
The size and scale of the cultivation in 2011, and the huge amount of equipment being used, are well illustrated in Exhibit P12.
Mr Handley said that after the 2011 visit, the police confiscated, in addition to the cannabis, all ‘prescribed equipment’; namely, all ballast boxes, light shades, globes, carbon filters and bud strippers. He said that they did not take the rest of the equipment ‘because it is not illegal to possess them’ (T 58).
I find that approach mystifying. If an object affords evidence as to the commission of a crime, a police officer holding a general search warrant, as Detective Brevet Sergeant Handley did, has a right to seize that object as an exhibit (Summary Offences Act 1953, s 67(4)(c)). It would seem that much of the equipment left behind after the 2011 police visit had been reused to cultivate the 2012 crops.
Detective Brevet Sergeant Handley acknowledged in cross-examination that it is possible that certain items of prescribed equipment could have been missed and not seized in 2011. Mr Roach had alleged that the police had missed ballast boxes in the kitchen cupboards in 386, which Mr Handley initially disputed. That turned out to be true (T 67).
Discreditable Conduct
Clearly, the evidence relating to the 2011 crop is ‘discreditable conduct’ within the meaning of s 34P(1) of the Evidence Act 1929, being ‘evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence’.
Since the evidence was admitted by agreement, there is no need for me to consider the issue of its admissibility.[7]
[7] R v C, CA [2013] SASCFC 137 at [54]
It will, however, be necessary to consider the use or uses to which the evidence may be put and, in particular, whether the evidence establishes that Mr Roach has a propensity or disposition towards cultivating cannabis.
In R v Maiolo (No 2),[8] Peek J, with whom the other members of the Court of Criminal Appeal agreed, outlined the various warnings which should be given to a jury when this type of evidence is led. In summary:
·When using evidence for a purpose that does not rely on a particular propensity or disposition of the accused, s 34P(2)(a) requires that the probative value of the evidence admitted for a permissible use must substantially outweigh any prejudicial effect it may have upon the accused. This is not a question of discretion – the prosecution must satisfy me that this requirement has been met [at 51].
·Further, s 34P(3) requires me to consider whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
·When using evidence to show Mr Roach has a propensity or disposition towards committing the offence of cultivating cannabis, the following warnings apply:
… a legitimate purpose of propensity evidence is to reason that the accused is likely to have committed the offence(s) charged. Accordingly, a broad warning against any use of reasoning via propensity evidence is not required. However, what is required is a warning against impermissible uses of propensity evidence, some of which are as follows.
at [86]
[8] [2013] SASCFC 36
His Honour listed the following impermissible uses of propensity evidence:
·substituting propensity evidence for a critical consideration of the specific charges on the information. At [87], Peek J said:
Where … evidence (as a species of propensity evidence) is being considered, the jury may legitimately reason that the effect of such evidence may be that the accused is likely to have committed the offence(s) charged but they may not simply assume that that evidence necessitates that he must have done so. The jury must be directed that even if they accept as proven that the accused had behaved in a similar way previously, and perhaps on many occasions, that does not mean by itself that he must have done so on the particular occasion(s) specified in the charge(s). The jury must be effectively directed that our system requires proof of the particular charge(s) irrespective of whether a similar course of criminal conduct is established by the overall effect of the evidence in the case.
·failing to give effect to the distinction between having a disposition or propensity and acting upon it. At [90], Peek J quoted Gleeson CJ in HML v R[9]:
The kind of similar fact evidence in question, that is, a complainant's evidence of uncharged acts, even when received and used as evidence of motive, is unlikely to compel, as a matter of logic, a conclusion that the charged offence or offences occurred. To prove that a person did something many times does not compel a conclusion that he did it again. However, it might make it more likely that sworn testimony that he did it again is true. People do not act in accordance with all their inclinations at every opportunity, but proof of a person's inclinations may provide strong support for direct testimony as to that person's conduct.
·failing to give effect to the distinction between a general disposition or propensity – that is, a disposition or propensity to commit either any crime, or crimes of a particular kind – and a particular or specific disposition, for example, a sexual interest in a particular person rather than an interest in young boys generally (see R v S, PC[10]).
[9] (2008) 235 CLR 334 at 354
[10] (2008) 102 SASR 199 at 205
I will keep those directions steadily in mind when assessing the evidence.
In R v Long & McDonnell,[11] Doyle CJ, with whom Lander and Bleby JJ agreed, identified a number of uses to which such evidence could be put. That case involved a charge of taking part in the manufacture of methylamphetamine. There was a question as to the admissibility of evidence of a previous occasion on which Ms Long had permitted her premises to be used for the manufacture of methylamphetamine. It was the prosecution case that Ms Long had also allowed her premises to be used for that purpose on the charged occasion. Doyle CJ said:
[35]As against Ms Long, the evidence could be used as follows. It could be used as proof that Ms Long was willing to allow her house to be used to produce amphetamine. This use would rebut any suggestion by her that she would not do a thing like this. It could prove that she would allow Mr Furner in particular to use her house for this purpose, making it more likely that on a later occasion she would have given permission to him to use her house to make amphetamine. The evidence that she received some of the product on the previous occasion could provide evidence of a motive to allow Mr Furner to use her house on the occasion charged. This evidence would gain added force from the evidence that she used amphetamine.
[36]…
[37]The evidence could be used in another and more general way. Evidence that on a previous occasion Mr McDonnell and Mr Furner used Ms Long's house, with her permission, used similar equipment and engaged in the very same process, tended to show the involvement of Ms Long and Mr McDonnell in an identical offence, at the same premises, involving Mr Furner. If this evidence was accepted it would support a conclusion that they were likely to be involved on the occasion charged. It was evidence of their complicity in the admitted offence by Mr Furner. To so reason would not be to reason that because they had offended before, they were likely to offend again. The reasoning is that the identity of the offence, of the location, of the method of operation and of the people present was such that it was highly improbable that those coincidences or repetitions could be explicable on any basis other than that Ms Long and Mr McDonnell were involved in the production of amphetamine on the second occasion.
[38]The first kind of use identified by me is not an example of the use of the evidence to support propensity reasoning. It does not involve reasoning "that the accused has a propensity or disposition to commit a crime or that he or she was the sort of person likely to commit the crime charged": Pfennig v The Queen(1995) 182 CLR 461 at 480-481, 77 A Crim R 149 at 163 per Mason CJ, Deane and Dawson JJ. The evidence is used in a different and more limited way. So, for example, proof that Ms Long was willing to allow Mr Furner to use her house to produce amphetamine is proof of an aspect of her relationship with Mr Furner, rather than of a propensity to offend. The point is clearer in relation to proof that Mr McDonnell knew how to produce amphetamine by the process in question.
[39]The second kind of use of the evidence identified by me is either a form of propensity reasoning, or is so close to it that the distinction becomes insignificant. Used in that second way the evidence supports a conclusion that Ms Long and Mr McDonnell were implicated in the offence charged because of the coincidences or similarities between the earlier incident and the occasion charged. The reasoning is that proof of involvement in an offence in such similar circumstances supports an inference that they would have been involved when the offence was repeated under virtually identical circumstances (subject to proof of the guilty involvement of Ms Long and Mr McDonnell).
[11] [2002] SASC 426; (2002) 137 A Crim R 263
Uses of the 2011 Evidence
The similarity in the set-up of the 2011 and 2012 crops is striking. Much of the similarity is no doubt due to the fact that a lot of the equipment left by the police in 2011 was re-used in 2012, and that which was removed by the police in 2011 was replaced by similar equipment.
I agree with the submission made by Mr Healy in his address that there is a strong inference that the same people were involved in the two crops. I think this inference also applies to the other crop or crops grown between 2011 and 2012.
Of course, Mr Healy submitted that any such inference did not apply to his client (T 164).
The evidence of the 2011 crop is clearly relevant to the prosecution case in that it proves what equipment was present at the time of the 2011 crop, and what equipment was replaced before the 2012 crop. The replacement of the carbon filter and the further interference with the wiring in 388 clearly fit into this category, and both pieces of evidence are, in my view, probative of guilt.
Further, the 2011 evidence is also relevant to show that Mr Roach had knowledge of the methods of growing cannabis which had been adopted by the cultivators, and rebuts any innocent association with the equipment so used.
Similarities in the Two Crops
The obvious similarities in the two crops referred to in the evidence which are noteworthy are as follows:
·the presence of CCTV cameras in roughly the same positions (the camera at the front of 386 had been moved a short distance in 2012);
·the presence of the same monitor in Mr Roach’s bedroom, which was still receiving images from the three CCTV cameras;
·the barring of the front door of 388;
·the barricading of the rear windows of 386;
·the metal bar and padlock across the rear door of 386, which must have been replaced since they were forced off in 2011 – they were forced off again in 2012;
·Mr Roach did not have a key to 386 on either occasion;
·no one was living in 386 on either occasion;
·the presence of a carbon filter in bedroom 2 of 388 on both occasions, the one taken by police in 2011 having been replaced before the 2012 visit;
·electrical cables hanging through the ceiling of bedroom 2 of 388 in 2012, in the same way as they were found in 2011, after having been rectified after the 2011 visit;
·the presence of ballast boxes and light shades of the same type on both occasions, either having been left there by the police after 2011 or replaced with similar ones;
·the use of the same brown wardrobe in the kitchen of 386, which had been modified for use as a drying cupboard, on both occasions;
·the presence of the same type of Styrofoam esky, set up with a lid and a light and used for growing smaller cannabis plants, on both occasions;
·the same type of green bucket sitting on the same type of drying rack on each occasion;
·the cultivation of large and mature cannabis plants in bedroom 1 of 386 on each occasion.
Perhaps not surprisingly, Mr Healy concentrated on the differences between what was found on each occasion. These included:
·at the time of the 2011 visit, Mr Roach had paid the rent on the two premises well in advance;
·police found no electricity accounts on the premises in 2012, unlike in 2011;
·the presence of substantial amounts of cannabis in Mr Roach’s house, 388, in 2011, whereas in 2012 police found only a very small amount in a pipe for smoking it;
·bags of harvested cannabis were found in 388 as well as 386 in 2011, whereas no such bags were found in 2012;
·the fact that there were no scales, J-bags or cash found in 2012, unlike in 2011;
·Mr Roach admitted being the caretaker of the crop in 2011, and that his reward for having done so was having his rent paid and receiving some cannabis from the crop, whereas he denied participating in the cultivation of the crop in 2012 by performing the same function.
Many of the suggested differences do not detract from the strength of the prosecution case. For example, the fact that no electricity accounts were found in 2012 is hardly surprising, in view of the fact that they were used as evidence against Mr Roach in 2011. Further, the fact that accounts were not found does not detract from the fact that Mr Roach remained responsible for the electricity supply in both premises for the period up to the 2012 police visit and beyond. For the same reason, the fact that the police did not find indicia of sale – for example, J-bags, scales or cash – in 2012, does not detract from the strength of the evidence which they did find.
To the contrary of Mr Healy’s submission, I do not consider it a significant factor that Mr Roach admitted his involvement and pleaded guilty in 2011 and has not done so this time. It is not appropriate that I look behind what may have motivated Mr Roach to plead guilty in 2011 and not guilty in 2013. There can be many reasons for taking either course. Speculation about what such reasons might be is inappropriate.
In my view, many of the uses discussed by Doyle CJ in Long & McDonnell (supra) apply with equal force to the evidence of the 2011 crop in this case:
·it proves that Mr Roach was willing to allow his premises to be used to grow cannabis. This rebuts any suggestion that he would not do a thing like that;
·it also proves that, having allowed these people to use his premises for that purpose, it is more likely that on a later occasion he would have given them permission to do the same thing;
·the evidence that Mr Roach received some of the product on the previous occasion provides evidence of a motive to allow those people to use the premises again for the same purpose.
Mr Healy submitted that these inferences do not apply because, since 2011, Mr Roach has been the subject of a suspended sentence of imprisonment. I will discuss this submission later in these reasons.
At [38] in Long v McDonnell, Doyle CJ said that the use of the evidence in the ways outlined above does not involve propensity reasoning. Accordingly, it is necessary that I keep clearly in mind that the evidence should not be used to suggest that Mr Roach has a propensity or disposition to commit a crime, or that he was the sort of person likely to commit the crime charged.
At [37] of Long v McDonnell, Doyle CJ identified a further use for the evidence of prior offending which is also applicable to this case. The use identified is that the identity of the offence, of the location, of the method of operation and of the people present was such that it was highly improbable that those coincidences or repetitions could be explicable on any basis other than that Mr Roach was involved in the cultivation of cannabis on the second occasion. In my view, this inference is open on the evidence adduced.
At [38] in Long v McDonnell, Doyle CJ indicated that the above reasoning is propensity reasoning. His Honour said that it is either a form of propensity reasoning or ‘is so close to it that the distinction becomes insignificant’. His Honour went on to say:
Used in that second way the evidence supports a conclusion that Ms Long and Mr McDonnell were implicated in the offence charged because of the coincidences or similarities between the earlier incident and the occasion charged.
Because using the evidence in this way does involve propensity reasoning, I must therefore specifically take into account the warnings advocated by the cases against ‘impermissible’ uses of propensity evidence outlined by Peek J in Maiolo (No 2) (supra), and in particular:
·substituting propensity evidence for a critical consideration of the specific charge on the information;
·failing to give effect to the distinction between having a disposition or propensity and acting upon it;
·failing to give effect to the distinction between a general disposition or propensity and a particular or specific disposition.
I have kept those warnings steadily in mind when assessing the evidence. I do not consider that using the evidence in that way contravenes those warnings.
Defence Address
I have already mentioned many of Mr Healy’s submissions in the course of these reasons when analysing specific issues.
The further submissions he made were:
·the prosecution is unable to prove that Mr Roach had any access to 386. That is true. However, the situation was no different in 2011. Mr Roach did not have a key to 386 on that occasion either. The police had to force entry through the rear door of 386 on that occasion as well;
·Mr Roach was not the tenant of 386 after about December 2011 because he was unable to pay the rent and told Mr Cirocco that. Quite frankly, I fail to see the significance of that fact in this case. Mr Roach had not been paying the rent since about July 2008, after having been approached by a group of people to cultivate marijuana in it. Mr Roach’s financial position had not changed in the meantime;
·no fingerprints of Mr Roach were found during the 2012 police visit. Again, I do not consider this a significant factor, since it is not essential to prove that he had access to 386 to show that Mr Roach was guarding the property;
·it is not surprising that Mr Roach would have been unaware of the cultivation of cannabis in 386 because the offender would only have needed to bring minimum equipment onto the property, and Mr Roach walked past the various items of hydroponic equipment which the police had left after the 2011 visit, on virtually a daily basis in order to get to his gymnasium.
Even accepting that, I find it impossible to believe that Mr Roach would have been unaware of the reassembly of such an elaborate hydroponic set‑up next door, and its ongoing operation. The operation of the fans and the exhaust, let alone simply watering the cannabis which was growing outside in the back yard, must have been obvious;
·I do not accept Mr Healy’s attempt to distinguish Long & McDonnell (supra) from the circumstances of the present case. He suggested that that case was different because it involved the giving of an accomplice warning because a co-offender gave evidence against the accused. I do not accept that that is a proper ground to distinguish the case. The giving of an accomplice warning was one issue in the case, the other issue was the admissibility of the evidence of previous offending. That is the issue which is relevant here;
·Mr Healy asked, rhetorically, why Mr Roach would put himself at such risk when he was on a suspended sentence as a result of the 2011 offending. It was argued that he would require significant benefit to justify the assumption of such risk, and there is no evidence that he obtained any such benefit. He was not living the high life and he did not have large amounts of cannabis at his disposal.
It was not the subject of evidence before me that Mr Roach was on a suspended sentence in August 2012, but even if that evidence was before me, the argument might equally be made that that is a motivation for Mr Roach pleading not guilty on this occasion, whereas he pleaded guilty on the previous occasion.
In my view, the safest course is to simply pay no heed to this factor. However, I make clear that I do not use it as evidence of bad character in order to justify impermissible propensity reasoning.
Lies Direction
I have already described the areas in which Mr Roach gave evidence or made statements to the police which I have found to be deliberately untrue. The areas include the ownership of the CCTV cameras, the interference with the wiring, and the re-installation of the carbon filters, but there were several other areas as well.
Clearly, the fact that Mr Roach has lied reflects very badly on the credibility and reliability of his evidence generally, so much so that I am not prepared to accept his evidence as truthful on any topic.
I am not prepared to go so far as to conclude that I am satisfied beyond reasonable doubt that Mr Roach’s lies were motivated by a consciousness of guilt and the desire to avoid the consequences of his actions. There may be other reasons, which are not apparent on the face of the evidence, for this behaviour.
For that reason, Mr Roach’s lies do not amount to evidence of guilt, and do not strengthen the prosecution case. It remains necessary to carefully assess the strength of the circumstantial evidence in the prosecution case in order to find that it establishes guilt beyond reasonable doubt.
Conclusion
The circumstantial evidence which I accept as having been proved, and when summarised by topic, is:
·Mr Roach lived next door and in close proximity to the crop;
·there were lights on and fans running when the police arrived;
·the CCTV cameras and monitor were operating when the police arrived;
·Mr Cirocco said that the cameras were not his and, from his point of view, they were not installed to guard the property;
·no one was living at 386;
·Mr Roach continued to be responsible for the electricity supply to both properties, which was paid throughout the second half of 2011 and until well past the second police visit in 2012. The size of the accounts, and the fact they were in his name and forwarded to him, indicate that he must have know that a crop was being cultivated in 386;
·Mr Roach continued to monitor the CCTV cameras until the time the police visited in 2012;
·the gate between 388 and 386 was unlocked;
·Mr Roach would have had a clear view on the monitor of anyone coming or going from 386 via either the front or rear door of the property. This must have happened frequently when the crop was being established and maintained. The plants in the back yard had to be watered;
·Mr Roach had access to the back yard, the shed and the gym behind the shed in 386 at all relevant times;
·there was cannabis growing in the back yard which was clearly visible to Mr Roach;
·Mr Roach said to the police that he looked over the fence ‘all the time”;
·there was a pile of fresh root balls up against the rear of 388 which was visible to Mr Roach;
·Mr Roach must have been aware of the work done to install the carbon filter and wiring in bedroom 2 of 388, a room next to his bedroom. His denials of this knowledge are false;
·Mr Roach’s knowledge of the methods of growing cannabis and the equipment used by the cultivators;
·Mr Roach’s clear propensity or disposition towards being involved in cannabis production;
·the similarity between the methods of cultivation, the equipment used and the way in which it was set up between the 2011 and the 2012 crops;
·the fact that Mr Roach had allowed premises of which he was the tenant to be used for the cultivation of cannabis on a previous occasion in 2011, and indeed, on his own admission, as far back as 2008, and was therefore more likely to have done so again in 2012;
·the fact that Mr Roach received some of the product from a previous crop is evidence that he had a motive to do so again.
For the reasons I have advanced during the discussion of each of the topics I have mentioned, I conclude that the evidence adduced in this case gives rise to an inference of guilt which is irresistible. The competing inference, that Mr Roach was unaware that cannabis was being cultivated in 386, and that he did not act as a guard of that cultivation, does not reasonably arise on the evidence. I reject it beyond reasonable doubt.
My verdict on the sole count on the information is ‘Guilty’.
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