R v Talbot - [2013] SADC 158

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TALBOT
Criminal Trial by Judge Alone
[2013] SADC 158
Judgment of His Honour Judge Slattery
22 November 2013
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - CULTIVATION
Criminal trial by Judge alone sitting without a jury - accused charged with cultivating a commercial quantity of cannabis - accused elects to give evidence - whether elements of the offence were made out.
Verdict: guilty.
Controlled Substances Act 1984 s4, s33B; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 Schedule 3 Part 2; Juries Act 1927 s7(1)(a); Evidence Act 1929 s34P(2), s34P(4), s34R , referred to.
Douglass v R [2012] HCA 34 ; R v Keyte (2000) 78 SASR 68; R v R,R and R,LJ [2008] SASC 35 ; Hargraves v R [2011] HCA 44 , applied.

R v TALBOT
[2013] SADC 158
JUDGE SLATTERY
Introduction

The accused, Michael Talbot, is charged with one count on the Information of cultivating a commercial quantity of a controlled drug (namely cannabis). The Information reads as follows:-
“INFORMATION
Michael James Talbot is charged with the following Offence
Statement of Offence
Cultivating a Commercial Quantity of Controlled Plants for Sale. (Section 33B(2) of the Controlled Substances Act, 1984).
Particulars of Offence
Michael James Talbot between the 1^st day of January 2012 and the 8^th day of April 2013 at Tarlee, cultivated a commercial quantity of controlled plants, namely cannabis, intending to sell the plants or their products or believing that another person intended to sell the plants or their products.”
The accused is charged under ss33B(2) of the Controlled Substances Act 1984. The relevant parts of that section read as follows:-
“33B—Cultivation of controlled plants for sale
(2) A person who cultivates a commercial quantity of a controlled plant intending to sell any of them or their products or believing that another person intends to sell any of them or their products is guilty of an offence.
…
(5) 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.
Maximum penalty: $200 000 or imprisonment for 25 years, or both.”
Under ss4(1) of the Controlled Substances Act a “trafficable quantity of… a controlled plant” is defined as follows:-
“      (a)     ...
(b)     …
(c)     in relation to a controlled plant—
(i)a number of the plant that equals or exceeds the number of plants prescribed as a trafficable quantity for the plant; or
(ii)a weight of the plant that equals or exceeds the weight prescribed as a trafficable quantity for the plant;”
Subsection 4(1) of the Controlled Substances Act also defines “commercial quantity of a… controlled plant” as follows:-
(a)     …
(b)     …
(c)     in relation to a controlled plant—
(i)a number of the plant that equals or exceeds the number of plants prescribed as a commercial quantity for the plant; or
(ii)a weight of the plant that equals or exceeds the weight prescribed as a commercial quantity for the plant.”
The Regulations to the Controlled Substances Act (“the Act”) contain Schedule 3 concerning controlled plants. Part 2 of that Schedule is applicable in these circumstances because it applies to cannabis plants, the subject of this charge. Part 2 of the Schedule 3 of Regulations to the Act prescribes that a commercial quantity of plants of any plant of the genus cannabis L is 20 plants. It is also to be noted that a large commercial quantity of those plant numbers 100 plants. A trafficable quantity numbers 10 plants.
Referring again to ss33B(2) and (5) of the Act if, as is the case, it has been proved that the defendant cultivated a trafficable quantity (namely 10 plants) then the presumption that the defendant intended to sell the plants or their products or believed that another person intended to sell any of them or their products arises and the burden falls upon the defendant to prove to the contrary, on the balance of probabilities. Proof to the contrary means that the defendant is able to prove on the balance of probabilities that he did not have the relevant intention or belief concerning the sale of the plants or their products necessary to constitute the offence.
Summary
On Sunday 8 April 2012 police attended the premises at Thomas Road in Tarlee under a general search warrant after receiving a “tip off” from a member of the public relating to that property. Upon inspection, police observed 61 outdoor cannabis seedlings, each being approximately 40cm tall growing in pots on racks adjacent to a greenhouse on the western side of the house. The police also observed 32 small to medium sized mature outdoor cannabis plants, each being approximately 500mm to 1,000mm tall growing in a garden bed on the eastern side of the house. Inside the house, the police located 486grams of recently harvested cannabis buds stored in a blue coloured cooler bag in the hallway of the house. Police also located an amount of 1,080grams of cannabis plant material in the process of being stripped and dried which was located in the accused’s bedroom of the house. Also located in the house was a set of digital scales which was located in the hallway area of the house.
The accused elected to have a trial by Judge alone under subparagraph7(1)(a) of the Juries Act 1927. There was no Rule 15 voir dire issues put before me by the accused for consideration at the commencement of the trial. The Director delivered a ss34P(4) Notice of an intention to adduce evidence of discreditable conduct that was filed in Court on 22 May 2013. I heard argument about and delivered my reasons in respect of the argument on that Notice on 1 October 2013. Having delivered my judgment on the ss34P(4) Notice, the trial then proceeded before me on the same day, sitting without a jury.
Permissible use of evidence under ss34P(4) Evidence Act: the Notice delivered by the Director
Under his ss34P(4) Notice, the Director identified the nature of the discreditable conduct. It was described as the presence of 482grams[1] of recently harvested cannabis buds in the hallway of the premises; the presence of 1,080grams of drying cannabis plant material in the (accused’s) bedroom of the premises; the presence of electronic scales on the premises; and the presence of some hydroponic equipment on the premises.
[1] The Notice itself states 482kgs – this is a clerical error (viz para [31] hereof) and the matter was decided on the basis that the quantity was 482grams.
The use or uses of the evidence of the purposes of ss34P(2)(a) was disclosed as: to prove that the accused had an interest in, familiarity with and knowledge of how to cultivate cannabis plants; to prove that the accused had an ongoing commercial purpose associated with the possession and cultivation of the cannabis plants; to negate any possible defences such as (1) that the cannabis plants were solely for personal use; and (2) any innocent explanation for the presence of the cannabis plants at the premises.
The objection of the accused to the ss34P(4) Notice of the Director was that the accused denied that the evidence, properly assessed, would or could be used to prove any of the matters set out in paragraph 3 of the Notice. In my opinion, that objection was not pertinent to the questions that I was required to decide under s34P Evidence Act because those matters went to the weight of the evidence once it is received into evidence before the Court in this trial. It would then be a matter for me to decide upon the weight, if any, to be given to that evidence in my decision in this matter.
After hearing argument in relation to the s34P(4) Notice delivered by the Director, I delivered reasons for my decision. I made the following findings:-
“I am satisfied that the evidence set out in paragraph 1 of the Notice is relevant and notwithstanding the submissions put to me by Mr Bulloch (for the accused) concerning the challenge to the prosecution case concerning the presence of the harvested cannabis, the drying cannabis, the scales and the hydroponic equipment of the premises, I accept those submissions to the extent that they are relevant but in my opinion, they are matters that go to weight, not to the question that is necessary for my consideration under s34P (Evidence Act).
In my opinion, the discreditable conduct evidence described in paragraph 1 of the Notice is relevant to the charged offence because it discloses the existence of the harvested cannabis, it discloses the existence of that cannabis in the background of the existence of other plants, that is the 91 plants growing and an amount of drying cannabis… and it discloses electronic scales which may be indicative of paraphernalia generally associated with the growth and supply of cannabis.
The presence of the hydroponic equipment is further evidence of the more concentrated development of cannabis plants in a hydroponic environment.
I accept that the evidence may be used to prove that the accused had an interest in and familiarity with the knowledge on how to cultivate hydroponic plants. I refer in particular to the material in Exhibit P1 (a book of photographs) which I have received in the course of argument on the s34P Notice.
I also accept the submissions of the Director that the permissible use of the evidence would be to prove that the accused had an ongoing commercial purpose associated with the possession and cultivation of the cannabis plants and to negate any possible defences such as personal use or an innocent explanation for the existence of the plants on the premises.”
I then went on to consider the obligations upon me under s34R Evidence Act and I gave permission to the Director to adduce the evidence of discreditable conduct in accordance with the Notice of 22 May 2013.
Reasons
It is my responsibility to disclose sufficient reasons to explain the verdict that I have reached in this matter.[2] Although the Court of Criminal Appeal in this State has recently confirmed that it is not necessary in a trial heard by a Judge alone for the Court to detail in the reasons for verdict what may be described as obvious directions of law in respect of which any trial Judge is bound to be aware, it is my view that there are a number of fundamental directions which apply in every criminal trial.[3] Although these matters are well known and have been recorded elsewhere[4] it is appropriate that I repeat them here.
[2]    Douglass v R [2012] HCA 34 at [14]; R v Keyte (2000) 78 SASR 68.
[3]    R v R,R and R,LJ [2008] SASC 35 at [42].
[4]    R v MR reasons for verdict of his Honour Judge Beazley 8 May 2013; R v Panetta reasons for the verdict of his Honour Judge Chivell 24 May 2013.
The accused comes before this Court with the presumption of innocence in his favour. The law regards him as innocent unless and until his guilt of the charged offence has been proved beyond reasonable doubt.
In assessing the evidence of any witness, I am entitled to accept the evidence of the witness in whole, in part or not at all. Even if I were to find that a witness may be unreliable about some of the evidence, it does not follow that I must not accept other parts of that witness’s evidence.[5]
[5] Hargraves v R [2011] HCA 44 at [25].
The onus falls upon the prosecution to prove the matters set out in ss33B(2) of the Act. I have already set out in these reasons, a discussion about the operation of ss33B(5) of the Act and the burden of proof that falls upon the defendant in the event that it is proved by the prosecution that the defendant cultivated a trafficable quantity of a controlled plant. I have identified that not only did the police identify at least a trafficable quantity of a controlled plant (10 plants of cannabis) the police identified 20 or more plants (a commercial quantity) and the number of plants identified by the police (93 plants) fell short of a large commercial quantity of plants by only 7 plants. This is significant because police were able to identify a number of plants growing hydroponically that had not sufficiently matured for the purposes of this calculation but which were the subject of the s34P(4) Notice that I have already discussed above. It is sufficient to say that the police were able to identify 93 plants growing on the accused’s premises and that this number is only just short of the 100 plants that would have been sufficient under the Regulations to be described as a large commercial quantity of plants.
The burden therefore falls upon the defendant to prove, on the balance of probabilities, that he did not have the relevant intention or belief concerning the sale of the plants or their products necessary to constitute the offence. It may be said that this is the defining issue in this case for the reasons which I will set out hereunder.
However, before going to those matters, it is necessary to state again that in respect of those matters upon which the prosecution bears the onus of proof, only proof beyond reasonable doubt by the prosecution can give rise to a conviction on those matters. It follows that if I am left with a reasonable doubt as to any element of the charge I am then considering and in respect of which the prosecution carries the burden of proof, I must give the defendant the benefit of that doubt.
Overview: the elements of the offence
The prosecution must satisfy beyond reasonable doubt the following elements in order to satisfy that the accused cultivated a commercial quantity of a controlled plant:-
1.   That the accused cultivated a controlled drug, namely cannabis;
2.   When the accused cultivated the controlled drug he did so knowing that the substance involved was cannabis, or at least that it was an illicit drug;
3.   The accused cultivated the controlled drug intending to sell one or more plants, or believing that another person intended to sell one or more plants; and
4.   The quantity of drug was a commercial quantity.
The definition of “cultivate” is defined under s4 of the Act as follows:-
“cultivate a controlled plant means—
(a)     plant a seed, seedling or cutting of the plant or transplant the plant; or
(b)     nurture, tend or grow the plant; or
(c)     harvest the plant (including pick any part of the plant or separate any resin or other substance from the plant); or
(d)     dry the harvested plant or part of the plant; or
(e)     take part in the process of cultivation of the plant.”
Cultivation
Exhibit P2 is a statement of agreed facts. It reads as follows:-
“Agreed Facts
1.   Between 1 January 2012 and 8 April 2012, the accused resided at Section 36 Hundred of Light, Thomas Road, TARLEE.
2.   Between 1 January 2012 and 8 April 2012, the accused and his elderly father were the only persons residing at Section 36 Hundred of Light, Thomas Road, TARLEE.
3.   On 8 April 2012 a total of 93 cannabis plants of various sizes were located at the property described in paragraphs 1 and 2.
4.   The accused planted the cannabis plants described in paragraph 3.
5.   The accused watered the cannabis plants described in paragraph 3.
6.   The accused cared for the cannabis plants described in paragraph 3.
7.   The accused trimmed the cannabis plants described in paragraph 3.”
The first element, namely the cultivation element, was thus admitted by the defendant during his interview with the police. The defendant admitted to Brevet Sergeant Fidock during his interview on 8 April 2012, that he planted, watered, trimmed and generally cared for the cannabis plants. Having regard to those admissions and the matters contained in the statement of agreed facts, I am able to be satisfied beyond reasonable doubt that this first element is proved.
Controlled drug
The second element which must be proved beyond reasonable doubt by the prosecution is that the drug seized from the property was a controlled drug.
I am satisfied that, having regard to the contents of the Controlled Substances Act and Regulations, that cannabis, the drug seized from the property, is a controlled drug. That matter was not put in contention in the trial.
Intention to sell
Having regard to the content of ss33B(5) of the Act, the burden falls upon the defendant to prove to me on the balance of probabilities, that he did not have the relevant intention or belief concerning the sale of the plants or their products necessary to constitute the offence. It is upon that matter which this trial has generally turned.
Commercial quantity of controlled plants for sale
I have already dealt with this matter in my earlier comments in these reasons. It is not in contest between the parties that by virtue of the discovery of the 93 plants growing on the premises both in the ground and in pots, there was the cultivation of a commercial quantity of controlled plants.
The prosecution case
The prosecution tendered six exhibits. Exhibit P1 is a series of photographs of the relevant crops and the interior and exterior of the home, occupied by the defendant and his father. I will make considerable reference to these photographs by reference to the photograph number in the Exhibit. Exhibit P2 is a Statement of Agreed Facts set out earlier. Exhibit P3 is a Google map of the home occupied by the accused showing the disposition of the home, an annex attached to the home and yards and shed generally. Exhibit P4 is a video recording of the interview with the accused and MFIP5 if a transcript of that exhibit. Exhibit P6 is a floor plan of the premises and the identification of various rooms in which product or matters of interest were discovered by the police.
The prosecution called three witnesses, two police officers Brevet Sergeant Fidock, Detective Daniel Parish and Tanya Lenore McKew. Tanya McKew was called as an expert in her role as primarily assessing and analysing cannabis at the Forensic Science Centre. She has been fulfilling that role since 2000. I will deal with each witness in turn. I will not identify in detail all of the evidence of these witnesses, apart from some detail in relation to Tanya McKew. This is because the evidence of the police officers is largely not in contest. The issue is the discharge of the burden falling upon the defendant.
Sergeant Fidock informed the Court of his search of the property at Thomas Road Tarlee north of Adelaide. Thomas Road is south of the Tarlee township. Sergeant Fidock recorded the events as they transpired on 8 April 2012 on a video recording. Although the recording was slightly patchy, it discloses sufficient to enable me to understand what occurred on that day. Sergeant Fidock started recording at 5:07pm and terminated the recording at 5:23pm. The transcript of the interview is MFIP5.
Sergeant Fidock informed me that the police located leaf and plant material in the master bedroom. He also said that he weighed leaves and stalk material which are depicted in photograph 20 of P2 and the weight of that material was 1080 grams. He said that the police also located cannabis head in a blue shopping/chiller bag in the main hallway and using the scales disclosed in photograph 22 of P2, the weight of that cannabis head was 486 grams. It was placed into a brown paper bag before weighing.
Sergeant Fidock also identified the seedlings in photograph 23 of P2. He said that he extracted one of the seedlings and noticed that root stock had not yet formed on the seedling. He said that those seedlings did not form any part of the calculation of the number of cannabis plant because they had no root system.

Sergeant Fidock confirmed that 12 cannabis snippets were taken from plants being grown in the garden beds outside. Those garden bed plants are disclosed in the photographs in exhibit P2 generally at photographs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19. These photographs show the varying states of the cannabis plants grown in the garden beds themselves (not grown in the pots). The later evidence given by the defendant disclosed that these plants had been in the ground since about October/November 2012 and that they were getting near to the end of their lives as cannabis plants.
The significant feature is that the 12 cannabis snippets taken from the plants were assessed by the Forensic Science Centre and were all found to be female. It is part of the evidence led by the prosecution that the female plant produces a higher level, in the bud, of the drug THC, the drug that causes the effect sought by users of cannabis.
In cross examination, Sergeant Fidock identified in photographs 23 and 24 of exhibit P2 that the tray was sitting under florescent lights and there was no suggestion of covers or watering devices but there was a timer in the photographs. That timer was later identified in evidence as having been installed by the defendant earlier to regulate light provided to orchid plants and it was used to provide light to the cannabis seedlings.
When asked about the height of the relevant plants outside, Sergeant Fidock estimated that the plants in the ground were between 500mm and 1000mm high and that at least half of the plants were closer to 500mm. He confirmed that there was no evidence of unexplained wealth, large amounts of cash, heat sealing or cryovac machines, drying racks, handwritten notes with names and amounts (including any “tick” amounts) (customer lists), any unusually large number of phone services or any evidence of electronic surveillance. He also confirmed that there was nothing else at this property that indicates that it was a business.
A matter referred to by Sergeant Fidock in evidence was that when the defendant was asked why he was growing the cannabis plants (question 61) he gave the following answer:-
“I’ve got two um, slipped discs in the ah back my back, pain down my left leg and I’ve been, I’ve been smoking it for a couple of years, I don’t know how long, I’ve been smoking it as a means of self medication, I guess. I mean I don’t drink alcohol, I don’t do any other drugs. You know personally, I just think…. You see that they’re all pretty small plants and I put them in late in the season because there’s choppers and shit flying around here, you got ETSA coming flying over.”
It is noteworthy that when first given an opportunity to explain why the cannabis was grown, the defendant said that it was for self medication for slipped discs in his back. It is also noteworthy that he volunteered to the police that they were all pretty small plants that were put in late season because of an implied fear of detection by ETSA helicopters. He then confirmed (question 62 and 63) that the plants were put in late in the season not expecting too much. He then said:-
“because it’s such, it’s such late, so late in the season and um yeah, I mean yeah, I mean for some people might grow a 3 metre plant, cause they’ve grown it for 6 or 8 months.”
When asked again about his self medication for the two slipped discs in his back, the defendant said (answer to question 70):-
“well, I’ve got 2 slipped discs and I’ve got a lot of pain down my left leg. Look I don’t drive when I’m smoking it, I usually by the um I usually um smoke it at night, helps me sleep. I’m more than happy to throw it in the… um I was going to say um you know you can freeze it and keep it.”
It is necessary to state at this juncture that in questions in cross examination, the defendant confirmed that whatever condition he has in his back, it is very low down on his list of disabilities and that, in effect, he was not medicating as a result of pain in his left leg or from any slipped disc. He said in evidence that the slipped disc bothered him perhaps 3 or 4 times per year but that, between those times, he had a generally functioning back. He gave the example of recently doing spraying with a 16 litre spray pack of the edges of his paddock, to create a firebreak as required by council regulations. This spraying was done recently and caused no difficulties with his back presently or since the spraying. That may not always be the case, depending upon whether a difficulty strikes. However it is clear that the concept of self medication continually for slipped discs was not a truthful answer given by the defendant to the police.
Detective Daniel Parish also gave evidence. He confirmed his experience in the police force in particular in relation to drug related matters. He confirmed the following matters: the higher level of THC in female cannabis plants; a typical hydroponic setup and the reasons for using a hydroponic setup which is a shorter growth period; that the flowering part of the female cannabis plant is usually sold and the remaining leaves and stalks are generally disposed of or occasionally the leaf is smoked or used to make butter for cooking.
Detective Parish was then asked about pricing and packaging and the price paid for cannabis generally in the State of South Australia. He informed the Court that a 2-3 gram portion of cannabis which is called a “street-level deal” would be sold at about $25 at that time. A 1 ounce deal would be sold in a large plastic press-seal bag and the purchaser would pay between $200 and $400, and a 1 pound of cannabis which is the equivalent of 454 grams is usually packaged in shrink wrap heat sealed bags and a purchaser would pay between $2,700-$3,500. Detective Parish gave evidence of factors affecting the price and the level of availability of cannabis in the South Australian areas. He informed me that whole cannabis plants can be sold and healthy plants can be sold from between $50 and $100. A healthy clone would be in the order of 5-15cm in height.
Detective Parish also gave evidence about the methods of production, cannabis paraphernalia and potential cooperation between growers. He was then shown the photographs in exhibit P2 and he made comments in relation to the method of cultivation of the defendant. He said that it was not a very sophisticated method of cultivation and was quite basic. He did identify that there were clones being grown as described in paragraphs 23 and 24 of exhibit P2.
Detective Parish said that when cannabis is consumed, it is smoked either through a metal pipe (from a cone) usually at the rate of between .2 of a gram or .5 of a gram per cone. Sometimes a water pipe/water bong is used and again this consumes between .2 of a gram to .5 of a gram per water pipe. Cannabis can also be consumed through rolled cigarettes called a “joint”. Up to 1 gram of cannabis can be used in making a cigarette joint. He said that heavy users would consume 30 cones or 30 joints per day. He said that there was a very large variable.
Detective Parish was only briefly cross examined and a number of the factual matters arising from his evidence were not challenged.
Tanya Lenore McKew gave expert evidence. The ordinary rule is that witnesses may speak only as to facts, and not express their opinions. An exception to that general rule is that persons duly qualified to express some opinion in some particular area of expertise are permitted to give evidence of their opinions upon relevant matters within the field of their expertise. I direct myself that I am not bound to accept such opinion evidence and am entitled to assess, and accept or reject any such opinion evidence as I see fit.
Tanya McKew informed me that she has worked at Forensic Science SA since 2000 involved primarily in assessing and analysing cannabis. Her expertise was not challenged. She informed me that cannabis could be grown indoors or outdoors but that the biggest risk for outdoors growing was that the grower was at the mercy of the elements. Indoor growing gives a controlled environment and highest yield.
She explained that there were two phases of growth. The first was the vegetative phase where the plant grows in bushiness and height, and then secondly the flowering phase. She confirmed that the level of THC varies in male and female plants, that those plants look and form differently and when female plants flowered there was a head formed. Also, individual female flowers grow in a conglomerate whereas male flowers do not grow in groups. She said that for a female plant, the female flower has more resinous hairs which contain the THC. She said that leaf has some sorts of resinous hairs but at a lesser concentration and also a different type of hair to the flower and these lesser hairs contain a smaller concentration of THC.
Tanya McKew explained the growth patterns from seeds and from cuttings or clones. She said that clones are normally taken from a female mother plant. The benefit is that you know the sex of the clone and therefore its yield. She then gave evidence in relation to the optimum conditions for outdoor and indoor growing, yields from outdoor and indoor growing and the size of different plants when compared. The smaller plants are generally found in outdoor growing whereas the larger plants are found using a hydroponic method.
Tanya McKew was then taken through the relevant photographs in exhibit P2. She was not able to comment on the potential yield or the sex of the plants disclosed in photographs 1, 2 and 3. She was not able to determine whether they were grown from a cutting or a clone or from seeds. She was able to say that from photograph 1, the plants of varying sizes within the trays in the outdoor area would disclose that they had been planted at different times. This opinion as so expressed was not put in contest. This evidence was also confirmed by a review of the plants in photograph 4.
Looking at photograph 8, she said that the plants were between .5 to 1 metres tall. Again this was not put in contest. The plants appeared healthy and they would yield between 100 to 200 grams of usable dried material. The same comments pertained to the plants shown in photograph 16. She compared those to the plants in photograph 18 which she thought were about 30cms tall and would yield between 100 to 200 grams possibly closer to 200 grams. The same position pertained to those plants shown in photograph 15.
When shown photograph 14 in exhibit P2 Tanya McKew said that she thought those plants would yield no more than 100 grams and the same for photograph 19. In terms of the yield totals, she thought that the plants shown in photographs 16, 17 and 18 would yield closer to 200 grams, the plants in photograph 15 closer to 100 grams and the plants in photographs 14 and 19 would yield less than 100 grams.
She was then shown photographs 23 and 24. She said that the plants there appeared to be clones grown under lights. Again this was not put in contest in the trial. She said it would take a couple of days for the cuttings to form roots. The evidence of Sergeant Fidock was that on testing one of the plants, there was no root stock yet formed. Tanya McKew said that the majority appeared healthy but there was some signs of yellowing and she could not determine whether they were male or female. The evidence of the accused later disclosed that they were all female cuttings.
She was then show photographs 20, 21 and 25. She said that in photograph 21, the cannabis appeared consistent with female flowering head and she thought that it was reasonably freshly cut because of its colour. It would need to be dried to be ready to smoke. She said that the cannabis shown in photograph 25 was also consistent with female flowering cannabis on a stem and that the plant at the top of the photograph appears to have had stems cut off it.
She was then taken to photograph 20 and she opined that the cannabis in the black bucket was female flowering head on stem pieces that had been harvested from a plant.
Tanya McKew was cross examined by Mr Bulloch for the defendant. She did not seriously disagree with the propositions put to her by Mr Bulloch in cross examination but she did not change her opinion in relation to the yield of the plants that she had seen in the photographs contained in exhibit P2. A calculation based upon those estimations would indicate that the yield at a minimum would be in the order of 2.6 kgs and up to 4kgs having regard to the material grown in the garden beds and the material disclosed in the house including in the blue cooler bag. This range was not put in contention in cross examination nor in the addresses of counsel for the defendant.
In summary, at the end of case for the prosecution, I am satisfied that the prosecution had proved beyond reasonable doubt all of the elements in ss33B(2) and Schedule 3 Part 2 of the Controlled Substances Act 1984.
I am also satisfied that it has been proved beyond reasonable doubt that as well as the material contained within the house of the defendant namely the material in the green bag, the material in the blue cooler bag, the material in the black bucket, the further material in the bedroom of the defendant, if the plants in the garden bed which had been planted by the defendant had been brought to fruition and harvested, there would have been in the order of at least 2.5 to 2.6kgs to a range of up to 4kgs of dried cannabis harvested from that crop.
The defendant gave evidence. He informed me that he had suffered from sleep apnoea as well as severe chronic insomnia for many years. From the time he left school, he has worked a number of jobs. He worked for his father at the Hyde Park Hotel but also did labouring work during the day and drove forklifts in the Central Markets during the night.
He obtained work in the construction industry in various locations and worked in that industry for about 18 years. He ended his career in the construction industry working for Brambles as a training coordinating manager.
He was not married but had 5 children with his partner and they separated after about 11 years. It was a very difficult and stressful separation. As a result he took a voluntary redundancy from Brambles and soon afterwards met another woman on the internet. She was an Australian woman who was living in Canada. Her name was Alison. He commenced a business with Alison called “Gawler Books”. It started in a garage but ended up in a shopfront on Main North Road Willaston. The business was put in Alison’s name because he did not know what was happening with his separation.
The business sold books, it also sold books online and at book fairs.
The relationship with Alison began to break down because she became involved in new age beliefs including crystals, numerology, feng shui and other matters. The defendant and Alison separated in 2004. He said he was so distraught at the separation he attempted to take his own life. He was admitted to the Lyell McEwin Hospital on 12 April 2003 in respect of a diagnosis of: “suicide attempt”. He says that the suicide attempt occurred at the time he separated from Alison therefore it would seem that the separation occurred in 2003 not in 2004 as thought by the defendant. The defendant also gave evidence that he had a later admission to the Lyell McEwin Hospital in relation to his depression. That occurred on 28 September 2005. The admission records to the Lyell McEwin Hospital are exhibit D9 in evidence.
After the separation from Alison and although he was given a few thousand dollars which he put into a book shop, he registered for Centrelink and was then put on a disability support pension. Soon after that occurred, he found his mother after she committed suicide by using a gun. He was the person to clean up the house and to inform his father.
After that terrible event in his life, the defendant then took a flight to Vietnam. This was sometime in about 2004 or 2005, most likely 2004. Despite the fact that they had separated, Alison insisted on going with him. However after the time when she arrived in Vietnam, she realised that she was the reincarnation of an American soldier in the Vietnam War. She hated every minute of the trip to Vietnam. As a result of some difficult with Alison in an area around Hanoi, a young Vietnamese women gave them assistance. The defendant started a relationship with this young Vietnamese woman. Her name was Loan and she lived 80km north of Hanoi.
From that time on, the defendant says that he began corresponding with Loan and eventually they married in November 2007. They have never lived together as husband and wife, they speak together on Skype or by phone on a daily basis and the defendant says he has not seen his wife since January or February 2011. He did not think he could sponsor her to come to Australia. His understanding was that while he was on Centrelink benefits, he could not sponsor his wife to come to Australia.
The defendant says that he has been to Vietnam 4 times including the initial visit in 2004. These trips have been funded by an advance on his pension of about $1,100 which usually paid for the airline ticket. He said in evidence that he was better off being in Vietnam than in Australia mentally and he slept only marginally better.
The defendant said that he has been treated by medical practitioners for many years about his sleep problems. He said there were periods where he did not sleep for up to 5-7 days. He has been treated at the Elizabeth Medical and Dental Centre at Philip Highway Elizabeth. He did not have a regular GP but saw the doctor who was available in the practice at the time of his visits.
The defendant gave evidence that he was questioned by one of the doctors whether he took drugs or alcohol and the accused perceived that the doctor did not believe him when he assumed that question in the negative. The doctor asked him whether cannabis made him sleepy and the defendant says that he perceived that the doctor was recommending to him that he use cannabis for his sleep problem. By that time he had been prescribed sleeping tablets which made no difference to him because they only made him feel drugged not sleepy. It was then that he investigated cannabis. It appears that the defendant was not really able to put a particular date upon this consultation with the GP at the Elizabeth Medical Centre. What he is certain of is that a doctor in the practice referred him to a sleep specialist who arranged a sleep study at a sleep clinic in 2010. He says that by that time he had not been diagnosed with sleep apnoea. He says that it was immediately following this sleep study that he began smoking cannabis to assist him to sleep.
The sleep study report is exhibit D7. The date of the test was 24 May 2010. The reporting consultant was a Dr Liew and the report shows a printed date of 1 June 2010. For reasons which were not explained, the defendant said that he did not follow up on the sleep study report. All that he did was to look for a source of cannabis. He said that he did not want to be known in his area as a cannabis user and therefore he went some 80km from his home to source the cannabis.
The defendant said that he was buying cannabis head, he found that its use sedated him and although it did not solve the insomnia problem, he was able to get some sleep and certainly more sleep than he was able to obtain without using cannabis. He smoked the cannabis through a rolled cigarette and filter and sometimes with a bong. No filter papers or bong was found in the defendant’s premises at the time of the police search.
He says that his use was in the order of 3-4 cigarettes joints per night just prior to sleeping. He smoked 2, 3 or 4 joints in quick succession and the most he had ever smoked in one evening was 4 joints.
The defendant’s evidence was that he first put seeds in when he put his tomato seeds in October 2011. This is a little difficult to understand. The photographs in exhibit P2 show that the defendant has a healthy garden at the Thomas Road premises. He grows many exotic plants and he is able to maintain them in a rural environment. He gave evidence that he put the tomato seeds in October 2011. Allowing a 4-6 week period for the tomato seeds to sprout and grow sufficiently before they could be replanted, this would mean that he would not be planting his tomato plants (or any other plant that required that time period to germinate e.g. cannabis) until sometime in December of 2011. Given that the evidence before me is that the cannabis plant has about a 6 month cycle from planting to the end of the useful life of the plant, this would mean that the tomato seeds, for example, would not come into full production until very late in the season. This is slightly peculiar bearing in mind the familiarity of the defendant with this process having regard to his extensive garden. However, it is not necessary for me to resolve that matter here.

The defendant said that he obtained cannabis seeds, and he then used the same process as he did with tomato plants to grow seedlings and he thinks that he planted about 150 cannabis seeds. He thought that the seeds would have a 90 to 95% germination rate but once the plants got to about 4cms he individually “pricked” them out of the seedling tray and he then re-potted the strongest ones into a peat pot. He said that he pricked out and re-planted about 35 to 40 of them. He says that eventually the peat pots were then placed into bigger pots sometime in late November 2011.
He admitted that he also commenced to grow cannabis through propagation of cuttings from a female plant. He described what is quite apparent from a view of photographs 23 and 24. He admitted that he used the timer for the lights in the same way as he had for his orchids. The cuttings that he used has been cut about 4 weeks earlier than the photograph but this is difficult to accept because there was no root stock on the cuttings and the uncontested evidence of Ms McKew was that root stock would form within a day or two of the cutting being planted into a culture. I have formed the view that it has been proved beyond reasonable doubt through the evidence of Ms McKew, that the cutting disclosed in photographs 23 and 24 of exhibit P2 had only been planted a day or so earlier than the police raid in April 2012 and that the defendant was not being completely truthful about that matter.
The defendant was then taken through the various photographs 20, 21, 25, 13, 11, 9, 8, 3 and 22. He described the system that he used in the garden, the watering system for various plants and confirmed that the cannabis plants growing in his garden beds were watered by hand were fertilised by hand using “dynamic lifter”. He admitted that in the trays shown in photograph 3 of exhibit P2 there were two age groups of plants, some were about 6 weeks old and some were about 10 weeks old. Each of those trays contained a single age group with varying sizes in the tray according to that age group.
The defendant then explained the existence of the digital scales. The defendant informed me that the scales were a by-product of the online shopping business that he had. He would have to weigh books or any other articles sent on e-Bay sales. He used the digital scales for that because there would be an automatic calculation of the postage cost. That was purchased under the name of Alison Sadler, his former partner.
The defendant then confirmed to me that the cannabis was for his own use. He said that he would smoke about an ounce per week and he says that he grew the cannabis in his home because it was not possible to support the habit on a disability support pension. If he went on buying cannabis (which he was still doing in April 2012 at the time the police raid) he says he would not be able to see his wife. By that time he had not seen his wife since January/February 2011.
The defendant was then cross examined and confirmed that at the time of the police raid he had been smoking cannabis for about 2 years. This of course meant that he was smoking cannabis in January/February 2011, the last time that he went to Vietnam to see his wife. This contradicted earlier evidence given by him that he was not smoking cannabis at the time that he last saw his wife. He also gave evidence that the first cuttings were done 4 weeks prior to the police search. I am not prepared to accept that evidence. I accept the evidence of Ms McKew that cuttings would form a root ball within a day or two of being planted in a growing culture and the uncontested evidence of Sergeant Fidock was that the cuttings that were tested did not have a root growth.
In terms of his own knowledge, the defendant admitted in cross examination that he knew that the growing of cannabis was illegal but maintained that it was for his own use. He said that he did not know what the yield would be however he also admitted that at the time of the police raid, he was in his bedroom harvesting cannabis head from branches of female plants. By that time, he had harvested from 4 branches some 486 grams of cannabis head from the female plants. He volunteered in cross examination that you would expect to lose between 75% to 85% of water as the cannabis dried. He said that he knew that because he did some research on the internet yet he claimed that he had no notion of what particular yield would come from cannabis plants. He said that he intended to put the cannabis he was then harvesting onto a sheet to lay in the sun and for it to dry in that process. He said that this was the start of the operation. He was still at that time purchasing cannabis for about $140 to $160 per week and that at the time, he was using roughly 1.5kgs of cannabis per year. He never bought cannabis in amounts larger than an ounce and he knew of the plastic bags in which the ounce of cannabis was sold.
However in his cross examination he admitted that he had said to the police that the cannabis the police discovered in April 2012 was being grown late because he feared that “choppers” were surveying his area. He confirmed that helicopters were used by ETSA to check electricity supply lines. He said that the ETSA helicopters landed very close to the house. He admitted that he was implying in that statement to the police that he was concerned about the possibility of being found out about the growth of the cannabis. He said that he knew it was a serious offence but he did not realise how illegal it was.
The defendant confirmed that he never thought about selling to anybody, did not discuss growing cannabis with anybody and his only thought process was that it cost too much to purchase cannabis and he wanted to supply himself. His plan was to grow enough to get him through 12 months without purchasing anything. That is as far ahead as he planned.
I have significant difficulty accepting this evidence. The uncontested evidence of the prosecution was that the yield from the crop that existed in the defendant’s garden beds was in the order of between 2.6 and 4 kgs. This is a very large crop of cannabis. It is far in excess of the 1.5kgs (at a maximum) that the defendant estimates he uses in one year.
He also confirmed that in terms of his own disabilities, the most significant disability he has is with his sleep. He has some major troubles with his back but only 2 or 3 times per year. He has some form of disc trouble. He does agree that he told police when first asked about the matter that he was self medicating for his back injury. He only mentioned the sleep matters almost as an afterthought. That is peculiar to say the least. If the question of the issues concerning his sleep problems were at the forefront of his mind, I would have expected them to have been the first matters volunteered to the police as to the reasons why he was growing the cannabis. As it turned out, the first thing he mentioned was the back troubles which, as he confirmed to me during cross examination, were not a primary problem and only occurred 2-3 times per year. He gave the example that he had recently been using a 16 litre backpack to spray the edge of the paddocks to keep weeds low in case of fires in accordance with council regulations.
Also, he confirmed to me that the product in the blue cooler bag was not stripped from the braches shown in photograph 25. That material had been stripped from other branches that had been harvested earlier. He said that process took about 2 hours to get the cannabis head from 4 or 5 branches. He then said he never weighed the contents of the blue cooler bag. However he was not able to inform me how, in the overall scheme of things, he could assess what he wanted for a year if he did not weigh the contents of the blue cooler bag. That is, he was not weighing what he was harvesting as he went along. He also confirmed that the three branches in photograph 25 could have come off more than 1 bush. That is, there must have been a very vigorous bush or bushes within the garden beds for these branches to have been harvested because they are healthy branches and, according to the evidence of Ms McKew, showing female cannabis head.
The disclaimer by the defendant about his knowledge of weight is difficult to accept when it is known that he only ever purchased 1 ounce amounts of cannabis. This was in small plastic bags similar to those seen in photograph 19. The importance of this is that the defendant knew what was in a 1 ounce bag but, as I have said, disclaimed any knowledge of the weight of the cannabis that he had harvested.
Added to this, the accused confirmed to me in questioning that he knew how much he had gotten thus far in his harvesting but that he intended to harvest all of the cannabis available to him. When asked questions about this by me, he said that he had no explanation for why he did not destroy the remainder of the plants when he had gotten enough for himself. He continued to maintain that the clones in photographs 23 and 24 were 4 weeks old and were taken from a female plant although, as I have said I do not accept that evidence except to the extent that those clones were put in some 24-48 hours prior the police raid. More importantly, the defendant confirmed that the purpose of the clones was for maximum production of cannabis.
In the end, the defendant was unable to give any cogent or acceptable explanation about why he had at least 4 crops of cannabis on his premises. They are: the crop in the ground, the two crops on the growth trays and the further crop being the clones grown under the hydroponic system. I find it impossible to accept that in the knowledge of the accused as a user of cannabis for 2 years (having purchased it in 1 ounce lots) that the accused did not or could not have made some assessment of the volume of material that he would harvest from the cannabis crops.
The accused had no explanation for why he had not destroyed the other crops that he had in his premises in the background of his own knowledge. He attempted to suggest that there was nowhere in his garden for the crops to be planted however he also admitted that the crops were of 6 months duration, that the crops in the ground shown in photographs 13 and 14 had been planted some 6 months prior and that they were coming to the end of their useful lives. And so there would be space opening up within the garden beds for the planting of the cannabis. Also, there was no assessment made of whatever space might have been available if some other part of the garden beds had been cleared. In my opinion, that evidence from the accused was unacceptable and could not be accepted.
I am therefore satisfied that the accused has not discharged the burden upon him.
Ultimately, the issue and dispute in this case is whether the accused intended to sell one or more plant or their products, or whether the accused knew another would sell one or more plant or their products. As I have already set out, the prosecution relies upon the presumption, given the accused’s knowledge that he had more than the required number of 20 plants. In that context, the accused asked me to accept that out of 93 plants, none of them or their products were for sale. I am not prepared to accept the position put by the accused based upon my assessment of the accused in giving evidence and on the reasonable inferences that arise out of the matter.
Reasonable inferences
The process of ascertaining the facts involves not only assessing the weight to be attached to the various items of evidence testifying directly as to the existence or non-existence of facts, but also the drawing of inferences from the facts directly attested to. The drawing of inferences is a commonsense matter. Inferences may be drawn with greater or less assurance according to the circumstances.
I am to apply my commonsense and experience of life to the process of deciding what inferences are to be drawn from the facts of which evidence has been given and what degree of force or cogency attaches to those inferences.
In the end I am to weigh the various items of evidence, with their varying degrees of force or cogency, and the inferences which I can draw from them, with the varying degrees of force or cogency attaching to those inferences, in order to decide whether the final inference that the accused is guilty can be drawn to the exclusion of reasonable doubt.
The evidence I would take into account in coming to my decision
I am asked by the accused to accept that out of the 93 plants that were planted in the ground or in the pots, none of them or none of their products were for sale. I think that there are significant difficulties with this position. Having regard to Ms McKew’s evidence which, on her own estimate was conservative and which was not challenged, there must have been at least 2.5k to 4k of dried material that would be available from the plants that were being grown. The most conservative estimate is that on a 60% to 40% head to leaf ratio, then of the 4k, some 2.4k would be cannabis head. That does not include the amount in the house which could take the assessment to 3k at least and probably more. It is in the background that the accused said that he uses about 1.5kgs of cannabis per year that this amount is to be assessed.
It was also not in contention between the prosecution and the accused that the crops that are or would be available have come into existence during at least 4 different stages of planting. The last stage of planting was the planting of cuttings under the light system in the lounge room of the house. It was also the case that the accused has no explanation for why he planted 4 crops. He could proffer no explanation in cross examination to why he did plant the 4 crops and it was put to me in the course of his submissions that the accused’s thinking in April 2012 and since October 2011 was as dishevelled and as disordered as his house. However, the difficulty with accepting that submission is that the accused’s thinking was sufficiently straightforward and organised for him to prepare the first crop from seeds, for the seedlings to be transferred to the peat moss arrangement, for the transfer from the peat moss arrangement into a larger plastic container and for the plants to then to be put into the ground. There was then the development of 2 further crops using the same process and then finally the development of a crop using only female clones under a lighting system. In my view, this thinking does not have the hallmarks of a totally dishevelled and disordered mind. Rather, it is the activity of a person who has a very clear appreciation of what he was doing.
This also occurred in the background where the accused accepted that he knew that it was a risky activity, that it was an offence, but he did not know how serious it was. This does not fit comfortably with the comments that he made to the police officers about his concerns relating to the risk of detection from helicopters flying overhead and above nearby paddocks. This is accentuated when it is known from the photographs in P2 that the cannabis crops grown in the ground were planted amongst other plants so that they would be difficult to detect from overhead. In any event, having regard to the successful number of seedlings that were grown from the first plantings of seeds (of the 80 seedlings 32 were chosen) it is almost inexplicable why three further crops would be grown by the accused. The accused was able to inform the Court that he took access to the internet to inform himself of growing techniques and other matters in order to be able to grow a crop of cannabis. That evidence must be seen in the background that on his own evidence, the accused was a competent gardener who had much experience in growing plants from seedlings and in the care of plants. He gave evidence of the propagation of orchids and other more exotic plants. He was able to commence growing cannabis seedlings from seeds in the same fashion as he had done with other seedlings that he had grown such as tomatoes and the like. In my view, he was a person well experienced in these horticultural pursuits and he would have gone to the internet in the background of all of that knowledge. The internet material was not before me and it is therefore impossible to make more of it. However, the important issue is that none of those matters sit comfortably with the suggestion that the accused was operating in such a way that his thinking was dishevelled and disordered.
Much was made by Mr Bulloch for the accused about the absence of the indicia of the sale of cannabis. There are a number of things to be said about this. First, the prosecution conceded that the only indication amongst the usual indicia of sale was the existence of the scales and an explanation was proffered as to the existence of the scales in the possession of the accused. He had used the scales for the purposes of the work he was doing with the sale of materials on e-Bay including books that needed to be weighed for the on charging of postage. However, the two things are not mutually exclusive: that is, merely because the scales may have been purchased for another reason does not mean the scales would not be used for any other purpose.
Further, the evidence that I have heard satisfies me beyond reasonable doubt that the crop contained within the blue cooler bag appears to have been the first crop harvested by the accused and in light of the other factual matters that I have found proved beyond reasonable doubt, I am satisfied that even though the usual indicia are not present (absent the matters that I have raised concerning the digital scales) does not mean that there was no intention to sell here. In my view, there was a prospect of sufficient reality on the evidence having regard to the number of plants, the crop that was available from the plants, the number of crops and the other matters that I have discussed above, that the process in relation to sale inferentially was just beginning. I am not satisfied that the accused has discharged the burden upon him on the balance of probabilities. I say so acknowledging as I do that this burden in most cases is not very difficult to discharge however, in the circumstances of this case I am not satisfied that the burden has been discharged by the accused.
Verdict
In those circumstances I find the charge proved and I find the accused guilty of the offence charged.