R v Stamos No. DCCRM-98-684 Judgment No. D133

R v STAMOS
[1999] SADC D133

Judge Robertson
Criminal

The accused is charged with taking part in the sale of cannabis contrary to Section 32(1)(d) of the Controlled Substances Act 1984 (as amended) (“the Act”). The particulars of the offence alleged in the Information are on 15 March 1998 at Glen Osmond and other places the accused knowingly took part in the sale of cannabis, a prohibited substance, to another person. The accused pleaded not guilty and has elected, pursuant to Section 7(1)(a) of the Juries Act 1927, to be tried by a judge alone. The Trial proceeded before me sitting without a jury.
Section 32(1)(d) of the Act provides that a person shall not knowingly sell, supply or administer a drug of dependence or a prohibited substance to another person. In considering the offence provided by Section 32(1)(d), it is necessary to take into account the terms of subsection (4) of Section 32 of the Act. For the purposes of this Trial, the relevant portion of that subsection provides that a person takes part in the sale “... of a drug of dependence or prohibited substance if he takes, or participates in, any step, or causes any step to be taken in the process of that ... sale”.
The elements of the charge which the Crown must prove beyond reasonable doubt in this Trial are:-
1.     That the material in question was cannabis.
2.     That cannabis is a prohibited substance under Act.
3.     That the accused knowingly took part in the sale of the cannabis.
The construction of sub-section 32(1)(d) and sub-section 32(4) has been considered the Court of Criminal Appeal in the decisions of Director of Public Prosecutions Reference No 2 of 1995 (1995) 65 SASR 508 and Questions of Law Reserved On Acquittal (No 1/1996) (1996) 68 SASR 117. The effect of these decisions is that Section 32(1)(d) is contravened where a person takes or participates in any step in the process of a sale which is in train or contemplation although no specific future sale can be identified.
The charge arises from the location by the police of 2.15 kilograms of cannabis in the boot of a white Holden Commodore motor vehicle (“the Commodore”). The Commodore was stopped by the police on Sunday 15 March 1998 at about 3.15pm near Monteith on the Princes Highway, a short distance east of Murray Bridge. The vehicle was being driven by Vasilios Angelopoulos, known as Bill Angelopoulos. The police searched the boot and discovered a large carry bag containing personal effects of Bill Angelopoulos and also five vacuum sealed bags of female cannabis material. It is that cannabis which is the subject of the charge.
The Commodore had been rented by Diamanda Thanos from Avis Rent-a-Car on Thursday 12 March. Diamanda Thanos was at that time employed part time by the accused in his business. Ms Thanos said in evidence that her motor vehicle was not operational due to some mechanical problems. She said that she mentioned to the accused that she was proposing to rent a motor vehicle. Upon hearing of her plans the accused suggested that she rent a vehicle for a month as he could foresee he would have use for another motor vehicle in his business during the coming month. She said the accused had advised her that it was also cheaper to rent for a month period. Ms Thanos stated that the accused said that they could share the costs of the hiring. She said that the accused gave her $1400 to meet the costs of the hire for the month. She further said that after collecting the motor vehicle she handed possession of it to the accused. Ms Thanos said that she anticipated re-taking possession on either Sunday evening or Monday morning.
On Friday 13 March and Saturday 14 March the accused had been the subject of a police surveillance operation. This surveillance operation continued on Sunday, 15 March 1998. Various police officers gave evidence of their observations made whilst the accused was under surveillance. I do not propose to deal specifically with each of the police officers evidence regarding their surveillance of the accused other than the evidence Detective Venditto. Other than the evidence of Detective Venditto, the accuracy of observations of other police officers are not in dispute.
On 15 March 1998 the Commodore was observed arriving at the residence of the accused’s parents at about 1.15pm. The accused’s brother also lived at those premises. The driver was not identified. Evidence of the description of the driver and other evidence suggests that the driver was likely to have been the accused’s brother, Nick. The Commodore left shortly after it arrived. At approximately 1.40pm on that same day, Bill Angelopoulos arrived at the residence of the accused. The accused also operated his business from that address. Angelopoulos had been driven to the premises by a female. He alighted from the motor vehicle and took a carry bag out of the boot and entered the premises carrying the bag. It is not disputed that the bag that Angelopoulos was carrying was the same bag located by the police in the boot of the Commodore when they stopped it near Monteith. It was referred to during the trial as the “Bali bag”. Approximately a half an hour after Angelopoulos arrived at the accused’s premises, the accused, driving his white Statesman motor vehicle, (“the Statesman”) was observed leaving his residence with Angelopoulos sitting in the front passenger seat. The Statesman was followed to Chapel Street, Glen Osmond. Chapel Street runs off Portrush Road and is immediately adjacent to the Mobil Service Station situated at the intersection of Portrush Road, Glen Osmond Road, Cross Road and Mount Barker Road.
At this point it is appropriate to introduce the evidence Detective Venditto into the narrative. He was the surveillance operation supervisor on 15 March. On receiving radio information of the position of the Statesman at Chapel Street he travelled along Portrush Road in his motor vehicle towards Chapel Street. He said that he first observed the Statesman stationary at the corner of Chapel Street and Portrush Road. Detective Venditto said that he then turned left into Pridmore Street which runs off Portrush Road on the opposite side to Chapel Street. He said that he alighted from his motor vehicle and took up a position in Pridmore Street where he could observe a car park at the rear of some premises in Chapel Street. He said he was making his observations with the aid of binoculars. Detective Venditto said by the time he had alighted from his vehicle and commenced making observations the Statesman was in a car park in Chapel Street adjacent to the Commodore. Both vehicles had their boots open. He said that he observed the accused take a carry bag out of the boot of the Statesman and place it in the boot of the Commodore. He said there were two other people present at that time apart from the accused and Angelopoulos.
Shortly after these observations were made by Detective Venditto, the Commodore being driven by Angelopoulos was observed driving in an easterly direction at the commencement of the Princes Highway in the direction of Murray Bridge. This observation was made about 2.40pm. A little after 3.30pm the vehicle was stopped by the police at Monteith.
At about 6.00pm on 15 March, the police attended at the accused’s premises and arrested him. At the time of the arrest the police searched the premises but found nothing of any relevance to the charge that is before me. The accused was interviewed by the police but exercised his right to remain silent.
The accused gave evidence. He is 37 years of age. He operates a business called “Feel Good Massage Chairs”. The business includes sale of chairs for the home, for the disabled and for nursing homes. The accused’s business operates both in Adelaide and in Melbourne. His business in Melbourne requires him to attend in that city on a weekly basis.
The accused said that Bill Angelopoulos was his cousin. He said that at the time of the alleged offence Bill Angelopoulos was working on a part time basis for him.
Mr Stamos gave evidence similar to Diamanda Thanos regarding the hiring of the Commodore. He said that he often used hire cars to travel to Melbourne for his business. The accused said that on the Friday 13 March, Diamanda Thanos left the vehicle with him over the weekend. He said that he gave possession of the vehicle to his brother Nick for his use on the weekend.
Mr Stamos said that he received a telephone call from Bill Angelopoulos on Sunday 15 March asking if he could borrow the hire car. He said that Angelopoulos had raised with him the possibility of borrowing the vehicle sometime earlier than that day. The arrangement was that Angelopoulos would come to his residence. He said that after Angelopoulos called he telephoned his brother enquiring about the availability of the Commodore. The accused said his brother suggested that they should meet at the Mobil Service Station at the top of Glen Osmond Road so that Angelopoulos could take possession of the Commodore.
The accused said that when Angelopoulos arrived at his residence he was carrying a bag. He does not dispute that the bag was the Bali bag later located by the police in the Commodore. The accused said that Angelopoulos placed the bag in the boot of his Statesman. He then drove Angelopoulos to the Mobil Service Station. On arriving he found his brother with the Commodore in the car park in Chapel Street. He denied that he removed the Bali bag from the boot of the Statesman and placed it in the boot of the Commodore. He said he did not observe who removed the Bali bag as he had remained in the Statesman for a few seconds before alighting. The accused denied that he knew that there was cannabis in the Bali bag. He said his purpose in travelling to Glen Osmond was to enable Angelopoulos to take possession of the Commodore.
It is the Crown case that at the time the accused drove Angelopoulos to Glen Osmond and at the time he transferred the Bali bag to the Commodore it contained the cannabis which was located by the police near Monteith. Furthermore, that the accused knew that the Bail bag contained that cannabis and he knew that the cannabis or part of it was intended to be sold. Counsel for the Crown said an inference can be made from the evidence that the accused played some organisational role in the contemplated sale of the cannabis.
The first two elements which the Crown are required to prove beyond reasonable doubt were not disputed by the accused. The central issue in the trial was whether the Crown had established beyond reasonable doubt the third element of the offence. In particular whether the Crown had proved beyond reasonable doubt the “knowledge” element.
Mr Waye, counsel for the accused, submitted that the Crown had not proved beyond reasonable doubt that the cannabis was in the Bali bag prior to Angelopoulos commencing his journey along the Princes Highway. He further submitted that even if the Crown proved that the Bali bag contained the cannabis when it was initially placed in the boot of the Statesman it had not proved beyond reasonable doubt that the accused knew of its presence in the bag let alone that it was intended for sale.
The Crown case relies entirely upon circumstantial evidence. Where the case is one of circumstantial evidence an accused cannot be found guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than that the accused is guilty of the offence. In other words, before the tribunal can be satisfied that an accused person is guilty it must be satisfied not only that the accused’s guilt is a rational inference but that it is the only rational inference that the circumstances found proved enable the tribunal to draw. In dealing specifically with this case for me to find the accused to have the necessary guilty knowledge I referred to earlier I must be satisfied that the circumstances are such as to be inconsistent with any reasonable hypothesis other than that the accused knew that the cannabis was present in the Bali bag during the journey to Chapel Street and at the Chapel Street car park. Furthermore, that the accused knew that the cannabis or part of it was intended for sale.
Mr Heffernan, in his address, outlined the circumstances which the Crown relied upon to establish beyond reasonable doubt that the accused had the requisite knowledge to which I have referred. Those circumstances are:-
·.. The association of the accused with the rental vehicle and the arrangement he made with Diamanda Thanos regarding it;
·.. The accused taking possession of the vehicle on the Friday prior to Sunday 15 March;
·.. His relationship with Angelopoulos;
·.. The attendance of Angelopoulos at the accused’s premises on 15 March with the Bali bag;
·.. The accused driving Angelopoulos to the car park in Chapel Street;
·.. The animated discussion which took place between the accused and Angelopoulos on the way to Chapel Street;
·.. The presence of the rental car in the car park at Chapel Street;
·.. The accused removing the Bali bag from the boot of the Statesman and placing it in the boot of the Commodore;
·.. The car park in Chapel Street being in close proximity to the commencement of the Princes Highway;
·.. Angelopoulos being stopped at Monteith and found to be in possession of the Bali bag which contained the cannabis.
With respect to the issue of whether the Bali bag contained the cannabis on the journey to Chapel Street and at the Chapel Street car park the Crown relied upon the following additional circumstances:-
·.. That the time taken by Angelopoulos was approximately 55 minutes;
·.. That a motor vehicle travelling at approximately 105-110 kilometres per hour, on the Princes Highway would take about 50-55 minutes to arrive at Monteith, depending upon traffic conditions.
In his address, Mr Heffernan, Counsel for the Crown, said that heavy reliance was placed upon the evidence of Detective Venditto that he observed the accused transferring the Bali bag from the boot of the Statesman to the boot of the Commodore. He had earlier described the observations of Detective Venditto as being critical observations. Detective Venditto said that the observation regarding the removal of the bag from the Statesman and placing it in the Commodore would have lasted between 2-3 1/2 seconds. The total period that he observed the events taking place in the car park was the best part of two minutes. He readily accepted that over the distance he was required to make the observations that it was a difficult task but he said it was not an impossible one. He said that there was traffic passing along Portrush Road which at times could obscure his view but on the critical observation of the transfer of the Bali bag he said he was focussing on the accused and observed the accused undertaking that task.
Detective Venditto was subject to a long and detailed cross-examination by Mr Waye. Inconsistencies arose between his evidence and the evidence he had given on previous occasions. Inconsistencies also arose between his evidence and the contents of his Declarations. These inconsistencies all related to his observations of what took place at the Chapel Street car park. In his address, Mr Waye, submitted that I should find that Detective Venditto was not a truthful witness. I reject that submission. I felt that at all times he was trying to tell the truth. However, I still need to be satisfied that Detective Venditto’s observation that the accused transferred the Bali bag is reliable evidence. In my view it is a significant piece of evidence in the context of this Trial.
I felt that a number of the inconsistent statements highlighted by Mr Waye could be explained by the tyranny of time. In other words, a person’s memory is not perfect. It is likely that some inconsistencies would arise. However, there were some inconsistent statements which I considered were relevant to my consideration of the issue of the reliability of Detective Venditto’s observations. I also consider it relevant to that issue, the relative paucity of detail regarding other observations made by Detective Venditto during the period of nearly two minutes he had the events in the car park under observation. An example of such paucity of detail is the evidence Detective Venditto gave about the fourth person which he said was present in the car park.
Whilst this is not an Identification Case, it is important to recognise that Detective Venditto’s evidence of his observations are a significant part of the Crown case. In the circumstances I consider it necessary to approach the evidence with caution as I would if the case was one based on Identification. I should carefully examine the circumstances in which the observation relating to the transfer of the Bali bag was made. I should remind myself that even experienced police officers are capable of making errors.
In dealing with Detective Venditto’s evidence I have taken into account that the evidence discloses that he only identified and observed the accused on one occasion prior to Chapel Street. That was for a short period of time at a shopping centre earlier in the day. On the journey to Chapel Street Detective Venditto followed the Statesman for part of the time but did not make an identification of the driver.
In the end, I feel some doubt about the reliability of Detective Venditto’s observation that the accused transferred the Bali bag from one boot to the other. I am therefore not prepared to accept that evidence as a circumstance to be taken into account in considering the circumstantial evidence. In reaching that decision I have taken into account the matters to which I have previously referred and the short period of time that Detective Venditto had to make the observation in what he described as difficult circumstances.
I accept the other circumstances which the Crown relies upon and to which I have previously referred. The weight attributable to the individual circumstances is variable. However, at the end of the day, I am not satisfied beyond reasonable doubt that the evidence of the accused should be rejected. Expressed another way, I am not satisfied that the circumstances are such as to be inconsistent with any reasonable hypothesis other than that the accused is guilty of the offence.
Accordingly, I return a verdict of not guilty.

[1999] SADC 133

15 October 1999