R v SMYRNEOS (No 2) - [2012] SADC 164

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SMYRNEOS (No 2)
Criminal Trial by Judge Alone
[2012] SADC 164
Reasons for the Verdict of His Honour Judge Cuthbertson
26 November 2012
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
CULTIVATING A LARGE COMMERCIAL QUANTITY OF CANNABIS INTENDING TO SELL IT
HELD: The accused hired four heaters found in a carport adjoining a shed where cannabis drying was taking place. Not proved that the accused had provided the heaters for the purpose of drying cannabis.
VERDICT – Not Guilty
Controlled Substances Act s 33B(1), referred to.

R v SMYRNEOS (No 2)
[2012] SADC 164
The Allegation

The accused stands charged with the offence of Cultivating a Large Commercial Quantity of a Controlled Plant for Sale, contrary to section 33B(1) of the Controlled Substances Act 1984.
It is alleged that on 31 March 2010, the accused hired four outdoor café style heaters from a hire premises at Royal Park and delivered them to Lewiston where a substantial crop of cannabis was being grown and harvested.
Onus of Proof
There is a presumption of innocence and the accused is not to be convicted unless or until guilt has been proved beyond reasonable doubt.
Burden of Proof
The burden of proof on the charge lies upon the prosecution; the accused does not have to prove anything.
Accused Did Not Give Evidence
The accused did not give evidence. It is not to be held against him that he did not give evidence. I draw no adverse inference from the exercise of that right.
Background and Findings Made Beyond Reasonable Doubt.
At about 5.30p.m. 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 stages 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 police disclosed their presence, one of the four persons decamped. His identity to this day is not known. He may have been the accused. The other three were arrested. Their names were Tamboureas, Lagana & Stabelos.
Police located in the carport between the large shed and the house, a hire trailer which contained four upright gas heaters of a type which are frequently seen at outdoor, kerbside cafes to warm patrons.
Police investigations revealed that those four heaters had been hired at about 12.30p.m. on the day of the police raid from a hire premises at Tapleys Hill Road, Royal Park.
They had been hired by the accused who attended with another person. They claimed to want them for a Greek Easter celebration.
Although they were taken from the hire premises by the accused on Wednesday 31 March 2010, 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.
It is the defence case that it may be inferred that it was a person by the name of Castley who is proved to have been involved in the cultivation of the crop.
Castley had arrived at the premises at Lewiston at about 8.30p.m. 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 to the hire premises consisted of a description given of the second person with the accused which, it is suggested, might match Castley and the fact that Castley’s vehicle was recorded by a road traffic camera located on Port Wakefield Road, which had recorded the vehicle as having travelled past the camera location in a southerly direction at about 11.30a.m. (consistent with travelling from Lewiston to the hire place at Royal Park at 12.30p.m.) and again at 3.01p.m. travelling north (consistent with returning from the hire place from having hired the heating equipment at 12.30p.m. en route to Lewiston).
The prosecution evidence establishes that there was a large amount of cannabis in the shed at Lewiston which required drying.
In addition to the finding of the heaters in a trailer in the carport next to the shed at Lewiston, police located various areas in the shed where cannabis was drying either on horizontally laid beds or hanging from the rafters.
There were obvious signs of harvesting and drying of cannabis including plants growing nearby. Apparently harvested stalks and waste material, scissors for cutting, secateurs for removing larger section of cannabis from plants and a shredding type machine which had apparently been used for shredding cannabis into smaller sections were all located in the main shed of the property.
In addition, there were a large number of latex gloves lying in the vicinity and on one table, four Coca Cola cans and a couple of plastic drink bottles and on another table, a West End Draft can.
The West End Draft can had on it the fingerprints and DNA of the accused.
Two of the Coke cans had the fingerprints and DNA of Tamboureas and one had clearly been used by Stabelos.
Numerous of the latex gloves discarded in the vicinity and probably used for harvesting the cannabis had the DNA of Castley on them and one of them had the DNA of Lagana.
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.
The prosecution case is that the accused hired the four heaters well knowing that they were to be used for drying cannabis. The heaters arrived at a location where there was extensive cannabis growing going on, very soon on the same day that they had been hired. The West End beer can that was located there with the finger print and DNA of the accused on it, confirms that the accused had gone to the premises and had taken the four heaters there.
The defence case is that the evidence is equivocal that the accused took the heaters to the premises at Lewiston. It may well have been Castley who did it, who may well have been present when the items were hired.
The defence say there is no evidence that the ostensible purpose for the hire, namely for a celebration on Friday night for Greek Easter, may not have been the true purpose of the hire.
The defence say that the presence of the beer can is not of any great moment as there is no evidence as to when it was placed there. It may have been placed there on an earlier occasion.
Discussion
The issue is whether the accused hired the heaters for the purpose of drying the cannabis being grown at Lewiston
I cannot be so satisfied beyond reasonable doubt.
When the accused hired the heaters, he told the hirer that the heaters were for the purpose of a Greek Easter celebration. I have already observed the incongruity of a celebration on Easter Friday when the accused said the celebration was to take place. I have already indicated in giving my ruling that there is a case to answer that I do not think it is appropriate for me to make findings in the absence of evidence on that question.
It follows that the only thing that makes the hiring of the heaters suspicious, is that they were taken to the scene of the cultivation a considerable distance from the accused’s premises very soon after hiring. An empty can of West End beer was located at the premises in a position where, if it was left there by the user, that person must have been aware that a cultivation of cannabis was taking place. I infer by the presence of the DNA and fingerprints that the accused drank the contents of that can and left it there.
I infer that whoever was in charge of the cultivation did not have any concerns about the presence of the accused as he or they were confident that the accused would not implicate him or them.
It does not follow, however, that the accused was complicit in the cultivation.
I remain highly suspicious, because I find that the empty West End can was left very recently and at a time when the cultivation and drying was well and truly in progress.
In my view, the accused probably left the can on the very day that the police raided and probably after taking the four heaters either alone or in company with someone else, to the place where they were located.
The fact that the heaters were not in use, however, the fact that the period of hire seems an inordinately short period of time over which to use the heaters given the amount of drying to be done and the fact that the accused gave a prima facie innocent explanation for obtaining them, which has not been discredited, leaves me in a position where I cannot be sure of guilt.
Accordingly, I must give the accused the benefit of the doubt and return a verdict of not guilty.