R v SMYRNEOS - [2012] SADC 163

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SMYRNEOS
[2012] SADC 163
Ruling of His Honour Judge Cuthbertson
26 November 2012
CRIMINAL LAW - EVIDENCE
CASE TO ANSWER
Police located four heaters hired by the accused at premises at Lewiston next to a shed in which cannabis was in the process of being dried. A drink can with accused’s DNA and fingerprints was also located in the shed.
HELD: There was a case to answer against the accused for cultivating cannabis by the provision of equipment to dry the cannabis
R v Bilick & Stark (1984) 36 SASR 321; Questions of Law Reserved on Acquittal (No. 2 of 1993) 61 SASR 1, considered.

R v SMYRNEOS
[2012] SADC 163

In this matter, at the end of the prosecution case, Mr Mancini for the accused has submitted that I should direct myself that there is no case to answer.
The case against the accused is circumstantial. The test for whether there is a case to answer in a circumstantial case has been enunciated by King CJ in R v Bilick & Stark (1984) 36 SASR 321 at 337 as follows:
Where the case is circumstantial or a partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes:
On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt, of the guilt of the accused?
In Questions of Law Reserved on Acquittal (No. 2 of 1993) 61 SASR 1 at p5 His Honour said:
….He must decide upon the basis that the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution. It is not his concern that any verdict of guilty might be set aside by the Court of Criminal Appeal as unsafe. Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence; Attorney General’s Reference (No 1 of 1983) (1983) 2 VR 410; Thorpe v Abbotto (1992) 34 FCR 366. He is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence.
At about 5.30 pm on Wednesday 31 March 2010 police raided a secluded house and outbuildings surrounded by vacant land at Lewiston, east of Two Wells.
Four persons were observed to be sitting around a table in a large shed next to the house. The shed was subsequently found to contain a large amount of cannabis in various states of drying and the area around the house was noted to have some 250 cannabis plants growing under shade cloth in four specific areas.
When the police disclosed their presence one of the four persons decamped. His identity to this day is not known. The other three were arrested. There names were Tamboureas, Lagana & Stabelos.
Police located in the carport between the large shed and the house a hire trailer which contained four of those upright gas heaters which are frequently seen in outside kerbside cafes to warm patrons.
Police investigations revealed that those four heaters had been hired at about 12.30 pm that day from a hire premises at Tapleys Hill Road, Royal Park by the accused who attended with another person claiming to want them for a function for Greek Easter.
Although they were taken from the hire premises by the accused on Wednesday 31^st, the day they attended, the hire period was from Friday 2 April, (Good Friday) to Saturday 3 April, 2010.
The prosecution evidence was that it was the accused and another person, both in a maroon vehicle, who took away the four heaters.
Counsel for the accused sought to argue that the evidence could establish that it was one Castley who was with the accused on that occasion. Castley had arrived at about 8.30 pm at the premises while police were conducting their investigations. He was in a silver commodore and he was arrested by police.
The evidence that it might have been Castley who accompanied the accused consisted of a description given of the second person which might match Castley and the fact that Castley’s vehicle was recorded by a camera located on Port Wakefield Road. The camera captures the registration number of vehicles passing it and it had recorded that Castley’s motor vehicle had travelled past it in a southerly direction at 11.30 am (consistent with travelling from Lewiston to the hire place at Royal Park at 12.30) and again at 3.01 pm travelling north (consistent with returning from the hire place from having hired the heating equipment at 12.30 on route to Lewiston).
The prosecution evidence shows that there was a large amount of cannabis in the shed at Lewiston which required drying.
The prosecution charge against the accused is that on 31 March 2010 at Lewiston he cultivated a large commercial quantity of cannabis intending to sell it.
The prosecution has presented its case that the accused obtained the heaters to help to dry the harvested plant material.
The shed in which the harvested cannabis was located had two white topped tables, one of which had on it four coke cans and two or three plastic drink bottles and the other had harvested cannabis and scissors capable of cutting cannabis together with an empty West End Draught beer can.
The cans were all analysed for fingerprints and DNA and it was found that in respect of the Coca-cola cans, two had fingerprints and DNA of Tamboureas and one had fingerprints and DNA of Stabelos, both individuals located by police at the scene.
The West End Draught can had fingerprints and DNA of the accused.
A large number of latex gloves located in various locations on the property presumably used in harvesting cannabis had the DNA of Castley on many of them and DNA of Lagana was on one of them.
A statement of one Kountouris indicates that the accused knew Castley although the nature of the relationship and the extent of it is rather vague.
In my view a jury would be entitled to find, relying on the evidence of the witnesses from the hire company that at about 12.30 pm on the afternoon of 31 March the accused hired 4 upright gas heaters and took them away in a maroon coloured motor vehicle.
A jury would not have to accept the evidence that the defence advances that inferentially suggested the accused was with Castley.
This evidence from which the accused asked the inference to be drawn is a vague description by the hire people which might be consistent with Castley and the movement of Castley’s silver vehicle as evidenced by the camera on Main North Road.
The fact that the trailer was found so soon after it was hired from Royal Park at Lewiston in the car port next to the shed where cannabis was being dried, is capable of leading to the inference either alone or in conjunction with the finding of the West End beer can with the accused’s finger print and DNA on it that the accused had taken the trailer from Royal Park to Lewiston in the afternoon of the 31^st March, had a drink of beer and left the can on the table where it was located.
There was no evidence from the photographs of any other cans or drinking vessels laying around on tables or benches. The state of drying of the cannabis in the shed indicates that activities in relation to cannabis must have been conducted over a number of days. Whatever the state of cleanliness and tidiness of the shed, food items and drink items did not appear to be left around on tables. The fact that this particular West End can was on a table and the other table contained four empty cans of coke which were all attributable to various people who were proved to have been at the property that afternoon when police arrived later, suggests that the cans had only been placed there very recently.
Mr Mancini pointed out a nest of empty drink containers including two West End cans on the ground.[1] If anything they confirm the fact that drink containers do not appear to be left around on tables but rather cleared away, tending to support the thesis that the cans including the drink can of West End with the accused’s fingerprint and DNA on it had been placed there recently.
[1] See P1, photo 40
It would be open therefore to conclude that the accused took the trouble to hire and transport four heaters a considerable distance from Royal Park.
In determining whether there is a case to answer it is not necessary to accept differing assertions by the accused made to the hirer that the purpose of hire was for festivities relating to Greek Easter. It is quite possible that that was not true but was said to disguise the real purpose of the use of the heaters, that purpose being an illegal one.
Having pointed out that it would appear somewhat odd that festivities for Greek Easter would take place on Good Friday as opposed to Easter Monday for the obvious reason that Good Friday is said to be the time Christ died and not a time for celebration, I have decided that it would not be proper to reason in that manner because I cannot know the cultural peculiarities of the celebration of Greek Easter by people of Greek cultural background nor do I know whether the asserted celebration was to be in relation to secular Greeks.
It is possible on the evidence to find that the accused brought the four heaters to a property at Lewiston where large scale cannabis cultivation was in process and that the people involved in the cultivation had no concern about the accused coming to the premises and seeing the illegal operation.
It is possible also to accept both on the evidence of Detective Sergeant Klingberg that she has seen similar heaters being used for drying cannabis on other occasions in South Australia and from one’s common sense that such heaters might assist in the drying process.
On the above evidence it is possible to infer that the accused knew or intended that the heaters were for the purpose of drying the cannabis.
The fact as pointed out by Mr Mancini that there was no evidence of fingerprints or DNA of the accused on any other item, eg gloves etc does not mean that the inferences can not be drawn.
The fact that the heaters had not been unloaded from the trailer and put into operation is no doubt a significant point on the issues in the trial proper but in my view it does not detract from the other evidence which in my view can establish the accused’s involvement if accepted and subject to drawing all relevant inferences in favour of the prosecution.
An explanation for the heaters not being in use may be that the cultivators had not had time to put the heaters into operation as they (the heaters) may have only arrived at some time between say 1.30pm and the time the police raided.
Accordingly, I ruled that there was a case to answer.