R v Trewin
[2018] ACTSC 109
•27 April 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Trewin |
Citation: | [2018] ACTSC 109 |
Hearing Dates: | 24 June 2016, 27-29 June 2016; 27 February-2 March 2017; 26‑29 September 2017; 27-November 2017-1 December 2017 |
DecisionDate: | 27 April 2018 |
Before: | Burns ACJ |
Decision: | See [335]-[336] |
Catchwords: | CRIMINAL LAW – Judge-Alone Trial – Plea of not guilty – self-representation of accused at trial. EVIDENCE – Pre-Trial Application to Exclude Evidence – photographic evidence of accused’s premises – evidence seized from accused’s property during certain time periods – evidence relevant to application taken on voir dire – evidence subject of the objection admitted. EVIDENCE – Objection to Tender of Evidence Given at Trial – Five documents headed “Registration of Drugs/Suspected Substances Seized or Acquired” – two certificates prepared by the ACT Government Analytical Laboratory – evidence admitted. DRUG OFFENCES – Trafficking in a trafficable quantity of cannabis – presumption of intent or belief about the sale of the drug if trafficable quantity is possessed – whether satisfied beyond reasonable doubt that the accused was in possession of more than the trafficable quantity of cannabis – whether evidence to displace the statutory presumption that he did so with the intention of selling it – cultivating a trafficable quantity of cannabis with intention of selling any of the plants or their products – presumption that defendant had the intention or belief about the sale of the plant or its products for the offence if trafficable quantity is cultivated – whether satisfied beyond reasonable doubt that the accused cultivated a trafficable quantity of cannabis plants – whether satisfied that he did so with the intention of selling the plants or their products or that he believed that someone else intended sell the plants or their products. |
Legislation Cited: | Crimes Act 1900 (ACT) ss 194, 198, 203; div 13.2 Criminal Code 2002 (ACT) ss 600, 602, 603, 604, 615, 616, 617 Supreme Court Act 1933 (ACT) s 68B |
Parties: | The Queen (Crown) Simon Trewin (Accused) |
Representation: | Counsel Ms K MacKenzie (24, 27-29 June 2016; 27 February-2 March 2017) and Mr S McLaughlin (26-29 September 2017; 27-November 2017-1 December 2017) (Crown) Mr J Purnell SC and Ms K Musgrove (24, 27-29 June 2016), Mr R Thomas (27 February-2 March 2017) and self-represented (26-29 September 2017; 27 November 2017-1 December 2017) (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Elizabeth Fleming & Associates Lawyers (24, 27-29 June 2016), Canberra Criminal Lawyers (27 February-2 March 2017) and self-represented (26-29 September 2017; 27-November 2017-1 December 2017) (Accused) | |
File Numbers: | SCC 87 of 2015; SCC 88 of 2015 |
BURNS J:
The accused has been charged with one count of trafficking in a trafficable quantity of cannabis; and one count of cultivating a trafficable quantity of cannabis with intention of selling any of the plants or their products. To these charges, the accused has pleaded not guilty.
The accused elected to be tried by judge alone under s 68B of the Supreme Court Act 1933 (ACT). The trial commenced on 27 June 2016.
Primary Facts
On 4 January 2015, Cynthia Rakic attended City Police Station and made allegations that the accused was growing cannabis in the garage of his residence at 25 Dooland Court in Nicholls in the ACT. Police attended the accused’s residence and could not locate any person at this address.
On 5 January 2015, the accused attended Gungahlin Police Station and was arrested. On this day, a search warrant was executed pursuant to s 194 of the Crimes Act 1900 (ACT) (Crimes Act) in relation to the accused’s residence of 25 Dooland Court, Nicholls. At about 11:00 pm, police attended the accused’s residence in the company of the accused. During the search, a number of items were seized from the house and the garage, including cannabis plants and seedlings, various hydroponic and related materials, and electronic devices in the accused’s name.
The Crown alleges that the accused used his garage for the sole purpose of conducting a business of cultivating and trafficking cannabis. According to the Crown, the accused set up a hydroponic grow house in his garage and stored cut and dried cannabis in his roof cavity for the purpose of selling.
The accused has denied that the cannabis and related growing materials that were found in his garage were his own. Instead, the accused has claimed that the cannabis and related materials belonged to Ms Rakic, who had been living with him for some three months prior to her attendance at the police station and the accused’s subsequent arrest. According to the accused, he had discovered cannabis growing in Ms Rakic’s property in Gordon, which she owned separately to the accused. Upon his discovery, the accused had removed parts of the hydroponic set up in order to put an end to the operation in the Gordon house. Unknown to the accused, he said, Ms Rakic subsequently moved the rest of plant-growing operation into the accused’s garage and then, as she had threatened to do, told the police that the set up was his own.
Before addressing the question of guilt in this matter, I will first outline the procedural history of the matter in some detail.
Procedural History
The accused was committed for trial in the Supreme Court with regard to these and other unrelated charges on 21 April 2015 was listed for directions before the Registrar on 30 April 2015. It was adjourned for further directions before the Registrar on 16 July 2015. The DPP twice sought extensions to file documents, which were granted.
The matter went before Justice Refshauge for directions on 10 June 2015. A notice declining to proceed on the unrelated charges was filed.
The matter was listed for criminal callover twice, on 24 August 2015 and then 9 November 2015. On 9 November 2015, Chief Justice Murrell directed that the trial be listed for the week commencing 11 April 2016 with an estimated length of three days.
At mention on 8 April 2016, the trial was marked not reached and the trial date of 11 April 2016 was vacated. The parties were requested to approach the Deputy Registrar to obtain a trial date in the central criminal listing period that was to commence 30 May 2016 or 29 August 2016.
At an informal mention on 8 April 2016, the Chief Justice informed Mr Purnell SC, counsel for the accused, that the trial could be listed in the week starting 27 June 2016 as an alternative to the matter being called over and allocated a date in the central criminal list period commencing late August. The Chief Justice directed defence counsel to liaise with the Crown and then contact the Deputy Registrar.
On 23 May 2016, Chief Justice Murrell confirmed that the matter was listed with priority for trial on 27 June 2016.
On 20 June 2016, I made an in chambers order listing the matter for directions that afternoon at 2.15 pm. At those directions, I listed the matter for 24 June 2016 for the hearing of pre-trial applications and vacated the callover date of 22 June 2016. On 24 June 2016 at a pre-trial application, I made orders that Cynthia Rakic give evidence by audiovisual link, and that the name of the accused be prohibited from publication until 25 July 2016. On 24 June 2016, I also reserved my decision in regards to an application lodged by defence, dated 23 June 2016, seeking the exclusion of evidence.
The trial commenced on 27 June 2016 before myself. The accused was arraigned on the indictment dated 19 June 2015, to which he pleaded not guilty to charges of trafficking in a controlled drug (CC2015/1129) and cultivating a controlled plant for selling (CC2015/1128). Mr Purnell SC and Ms Musgrove appeared for defence, and Ms MacKenzie for the Crown.
On the second day of trial, 28 June 2016, defence counsel made an application for the permanent stay of proceedings. I was not satisfied that there was a basis for such an order and refused their application.
On the third day of trial, 29 June 2016, Mr Fleming appeared for the accused and informed the Court that the instruction of Mr Purnell and Ms Musgrove had been withdrawn by Mr Trewin. At that time, Mr Fleming indicated that he was unable to obtain proper and competent instructions from the accused, and that he perceived difficulties in continuing to appear for the accused as a result. At this time, I was satisfied that there was a substantial and real question about the accused’s fitness to plead and ordered an assessment by a psychiatrist or other health practitioner on this question, under Division 13.2 of the Crimes Act. I adjourned the matter until 31 August 2016 for mention, with the view that the psychiatric assessment would have been completed by this time.
On 31 August 2016 at mention, it was noted that the accused had been found fit to plead and there was no issue with the trial continuing. At that time, the accused informed the Court that he had applied to Legal Aid for representation and that the application would take two to three weeks to process. I listed the matter for further mention on 23 September 2016.
On 23 September 2016, the accused informed the Court that his Legal Aid application was not finalised. There had been an initial refusal of the application, and the accused was awaiting a request for reconsideration of the Legal Aid decision. The accused expected a response within the following three weeks. The Crown opposed adjourning the matter further and applied to have the matter set down for trial, at least for the hearing of the first civilian witness’ evidence. I granted leave for the parties to approach my associate for the setting of a trial date.
Ultimately, the matter was listed for 6 March 2017 with a three to five day estimate. In the orders that I made in chambers, listing the commencement of the trial on 6 March 2017, I noted that should the accused’s Legal Aid application be unsuccessful he would have to represent himself.
On 17 February 2017, I vacated the trial date of 6 March 2017 and listed the matter for 27 February 2017. The accused’s Legal Aid application was still being considered, however I was satisfied that the matter could proceed by hearing the evidence of the Crown’s civilian witnesses.
At mention on 24 February 2017, Mr Thomas of counsel appeared for the accused. Mr Thomas indicated that he had only been briefed by former representatives that morning and was facing difficulties in preparing for the commencement of the trial on 27 February. Mr Thomas sought an adjournment. I directed that the trial was to proceed 27 February for the four civilian witnesses to be heard, but noted that I would adjourn after the hearing of this evidence for the defence to prepare their case.
On 27 February 2017, civilian witnesses began to give evidence. This continued through to the next day. On 28 February 2017, defence counsel submitted that he was not in a position to cross-examine the witness because he had not been made aware of the full discussions between previous defence counsel regarding certain aspects of the Crown’s evidence. Mr Thomas also indicated he was facing difficulties in obtaining coherent instructions from his client, in that his instructions were a “moveable feast” and that he was not in a position to coherently put a defence case by way of cross-examination. Mr Thomas submitted that if the matter were to continue that day, he may have to withdraw. I suggested that Mr Thomas take further instructions that day, and that if he found himself still unable to continue, he may then withdraw and the accused would represent himself.
On 1 March 2017 and 2 March 2017, the trial continued with Mr Thomas appearing for the accused. Three of the Crown’s civilian witnesses were heard. On 2 March 2017, I adjourned the matter until 26 September 2017 and set aside four days to hear the remaining evidence.
On 26 September 2017, the accused appeared self-represented. Mr McLaughlin appeared for the Crown. The trial continued for four days, until 29 September 2017. On this date, I adjourned until 27 November 2017 to hear the remaining evidence.
The matter resumed on 27 November 2017. The accused remained self-represented. Evidence was heard on 27 November 2017, 28 November 2017, 29 November 2017, 30 November 2017 and 1 December 2017. On 1 December 2017 the accused closed his case and I reserved my decision.
The hearing of the charges against the accused was delayed by the necessity to ascertain his fitness to plead, changes in the accused’s legal representation, and the apparent inability of the accused to confine himself to relevant material in cross‑examination and during his own evidence.
The application to exclude evidence
By an Application dated 23 June 2016 the accused sought orders that:
a) Photographs taken by police prior to entry of the accused’s premises pursuant to a search warrant, namely those taken before 11.10 pm on 5 January 2015, be excluded from the accused’s trial pursuant to s 138 of the Evidence Act 2011 (ACT) (Evidence Act);
b) All the evidence seized by the Australian Federal Police (AFP) at 25 Dooland Court, Nicholls ACT after the accused was removed from the premises be excluded from the accused’s trial pursuant to s 138 of the Evidence Act; and
c) All evidence seized at 25 Dooland Court Nicholls after 9.10 am on 6 January 2015 be excluded from the accused’s trial pursuant to s 138 of the Evidence Act.
The basis for the orders sought, as expressed in the Application was:
a) Timestamps on the photograph in question indicated that they had been taken prior to search warrant being issued;
b) The accused was denied his statutory right pursuant to s 203 of the Crimes Act to be present to observe the execution of the search warrant;
c) Execution of the warrant had been completed when searching stopped at approximately 4 am on 6 January 2015; and
d) Any period of suspension of the execution of the search warrant exceeded the legislative allowance pursuant to s 198(2) of the Crimes Act so that any re-entry and search was not authorised by the search warrant.
Evidence relevant to the application was taken on the voir dire. I will refer to that evidence later in these reasons. The evidence established that on 4 January 2015 Cynthia Rakic attended the City Police Station to make a complaint regarding a family violence matter. Ms Rakic was the partner of the accused at that time. In addition to making a complaint about the family violence matter, Ms Rakic told police that the accused was growing cannabis in the garage of his residence at 25 Dooland Court in Nicholls. Constable Schultz and other police attended the accused’s house in Nicholls on 5 January 2015 while trying to locate him. They were unable to locate the accused, but they could hear “the sound of humming or an exhaust fan” emanating from the garage of the premises. Police then went to Ms Rakic’s address at [redacted] in Gordon, but could not locate him at that address. They found some clothing in the garage of the Gordon premises, but said “the premises looked basically abandoned”.
Police subsequently located the accused at the Gungahlin Police Station where he was placed under arrest for alleged domestic violence offences at 12.20 pm. At the time he was arrested, his mobile phone was seized. He declined to make any comment with regard to the allegation that he was cultivating cannabis in his garage.
At about 9.45 pm on 5 January 2015 a Magistrate issued a warrant authorising police to search the accused’s premises in Nicholls. At about 9.50 pm the Magistrate also granted police an extension of time in which to conduct their investigation.
At about 10.30 pm on 5 January 2015 police transported the accused to the Nicholls premises, and at about 11.05 pm entry to the premises was attained for the purpose of executing the search warrant. The accused declined to take any part in the process, including declining to read a document setting out his rights as occupier of the premises. The accused remained seated in the loungeroom while the search was conducted.
After police entered the property the accused complained of a headache. Police read the search warrant to him. The accused lay on a couch facing away from police, in a position where he could not observe the search taking place. About half an hour later the accused again complained of a headache, and of blurred vision and dizziness. Police arranged for an ambulance to attend to check the accused. The ambulance officers told police that the accused was fit to remain in custody. Police were unable to administer any medication to the accused, who still complained of a headache. The accused continued to lie on the lounge with his eyes closed, apparently asleep. Constable Schultz made a decision that the accused should be returned to the watchhouse for his own welfare, and arranged for an independent sergeant of police to attend to ensure that the rights of the occupier, the accused, were protected. The independent sergeant, Sergeant Burrows, attended. There was some suggestion by the accused that he had had prior dealings with Sergeant Burrows, but I am satisfied that this was not the case. The accused was then transported by police to the watchhouse while the search of the Nicholls house continued.
During the continuation of the search a number of items were located and seized, including mobile phones, two large glass jars filled with material believed to be cannabis and USB flash-drives. At this time the garage was not searched, although it was entered and police observed what appeared to be cannabis under cultivation in the garage.
Police were concerned that the electrical and watering set up for the apparent cultivation of cannabis in the garage may constitute a danger to police conducting the search, and wanted an officer of Actew to attend to ensure that the scene was safe. At about 4 am on 6 January 2015 the search was suspended to allow for an Actew officer to attend. A crime scene guard was established. The search was recommenced at about 9 am on 6 January 2015, and a quantity of cannabis plants were located in the garage and seized by police, along with equipment used in the cultivation of the cannabis.
With regard to the application to exclude photographs taken at the Nicholls premises before the search warrant was attained, I was satisfied that there were no such photographs. The evidence established that all photographs were taken after the search warrant was executed. To the extent that the “time stamp” on some of the photographs indicated that they were taken earlier, I was satisfied that the time stamp was incorrect.
The objection by the accused to the reception of material located at his premises after he was removed by police at about 12.37 am on 6 January 2015 was not without merit. Section 203(1) of the Crimes Act gives the occupier of premises to be searched pursuant to a search warrant a right to be present and observe the search being conducted. This entitlement may be waived, but on the evidence before me I was not satisfied that the accused did waive his right to be present and to observe the search. This did not make the search unlawful, as it continued to be authorised by the search warrant. Taking a broad view of s 138 of the Evidence Act, I was satisfied that the evidence obtained by the police during the search of the premises after the accused had been removed had been obtained improperly. I nevertheless determined to admit the evidence because I was satisfied that the desirability of admitting it outweighed the undesirability of admitting evidence obtained in the way it was. In forming that view, I took into account:
a) The strong probative value of the evidence;
b) The fact that the removal of the accused from the premises was not for the purpose of denying him his right, under s 203 of the Crimes Act, but was due to police concerns about his welfare;
c) That it was unlikely that the accused’s removal had any real effect on his rights under s 203 of the Crimes Act, as he had demonstrated no real interest in observing the search before he was removed; and
d) That police arranged for an independent sergeant to be present to safeguard the accused’s rights as occupier of the premises before he was removed.
The final objection by the accused was based upon the proposition that the search of the accused’s Nicholls residence ceased at about 4 am on 6 January 2015, and the continuation of the search from about 9 am on that day was not authorised by the warrant. The accused drew my attention to s 198(2) of the Crimes Act which provides that:
If a warrant in relation to premises is being executed, the executing officer and the assisting officers may, if the warrant is still in force, complete the execution of the warrant after all of them temporarily cease its execution and leave the premises –
(a)for not more than 1 hour; or
(b)for a longer period if the occupier of the premises consents in writing.
I accepted that the activity of searching the premises temporarily ceased at about 4 am to allow for appropriately skilled persons to attend and inspect the garage to ensure that it was safe for the search to continue. I was also satisfied, however, that police had not left the premises during that period from 4 am to 9 am on 6 January 2015. Police remained at the premises throughout that period, and the warrant was “signed over” as required to ensure that the executing officer for the warrant was present at all times. The warrant itself was expressed to remain in force until 12 January 2015, and permitted its execution “at any time” up to its date of expiration.
In the event that I was wrong with regard to this objection, I nevertheless was of the opinion that I should exercise my discretion under s 138 of the Evidence Act to admit the evidence. The probative value of evidence located at and seized from the accused’s garage after 9 am on 6 January 2015 was very high. The police had not deliberately or recklessly breached the accused’s rights as occupier of the premises; they obtained a search warrant from a Magistrate and entered the premises under the authority of that warrant. I was satisfied that if there was a technical breach of the authority provided by the warrant due to the temporary cessation of the search, this breach was unintentional.
For these reasons I admitted the evidence the subject of the objection.
Evidence given at trial
The accused objected to the tender of Exhibits 38, 39, 40 and 41. I admitted those documents into evidence and said that I would give my reasons later. I will now give my reasons.
Exhibit 38 consists of four documents headed “Registration of Drugs/Suspected Substances Seized or Acquired”. On their face, they appear to be AFP documents. Daniel Jurd, an Exhibits Registrar for the AFP, testified that the purpose of the document is to give information about the seizure, and to annotate the particulars of the item and to record a seal number for the bag containing the item. The documents purported to have been witnessed by a person with the surname “English” at 0515 hours on 5 January 2015. It is quite clear that whoever witnessed the document made an error, as the material seized, and to which the documents relate, were not seized until 6 January 2015. This was simply a clear, and unimportant, clerical error.
Exhibit 39 was a further AFP document headed “Registration of Drugs/Suspected Substances Seized or Acquired”. At the bottom left hand corner of such documents there is a space next to which is written “AFP Initial”. At the bottom right hand corner is another space next to which is written “ACTGAL Initial”. Initials, or apparent initials, appear in those spaces on each page of Exhibit 38, but each such space is empty on Exhibit 39. To my knowledge there is no statutory requirement that initials be placed on the document, and their absence does not in any way affect the contents of the document, and for this reason I admitted it.
Exhibits 40 and 41 are certificates under s 135A of the Public Health Act 1997 (ACT) prepared by the ACT Government Analytical Laboratory. These documents were tendered by the Crown through Timothy Altamore and Rhiannon Stewart, employees of the ACT Government Analytical Laboratory. The accused asked that the documents only be received provisionally pending cross-examination of Mr Altamore, a request I granted. The accused’s objection was based upon continuity issues. After he cross-examined the witnesses, I was satisfied that the evidence was relevant and confirmed its admission into evidence.
Evidence of Cynthia Rakic
Cynthia Rakic, the accused’s former partner and a primary witness in this case, gave evidence during the trial. Ms Rakic gave her evidence-in-chief and was cross-examined across multiple non-sequential dates, beginning 27 June 2016 and continuing on 27 February 2017 to 1 March 2017. The evidence of Ms Rakic was somewhat disjointed because she gave some evidence on the voir dire which was then taken to be her evidence in the trial proper. Thus, for example, she was subject to some cross‑examination on 27 June 2016 on the voir dire before being subject to further examination-in-chief on 27 February 2017.
Ms Rakic gave evidence that she had been in a relationship with the accused from the middle of 2014, and that she had lived full-time with the accused at 25 Dooland Court in Nicholls (the ‘Nicholls property’) from November or December of 2014 until 4 January 2015. Ms Rakic confirmed that during this time, she retained ownership of her property at [redacted] in Gordon (the ‘Gordon property’), where she had been living prior to moving in with the accused. Ms Rakic confirmed that the accused had access to her Gordon property. During the time that Ms Rakic was living at the Nicholls property, as was her understanding at the time, the accused had at some points returned to the Gordon house for the purposes of maintenance, picking up mail and mowing the lawns. Ms Rakic noted that she went back to the Gordon property only very rarely in order to pick up mail.
Ms Rakic gave evidence that during the period that she was living with the accused, his employment had been changeable. To Ms Rakic’s knowledge, he had been working full‑time with ACT Showers and Screens at the beginning of November, and had been apparently unemployed for the remainder of November and all of December. She gave evidence that he had told her he had attained employment following his employment with ACT Showers and Screens with a solar panel company. The accused had told her that it was full-time employment, however, whenever Ms Rakic returned to their home he was always at the house, so she had been under the impression it was part-time.
Evidence of domestic violence in the relationship between Ms Rakic and the accused
Ms Rakic gave evidence that the accused would often act aggressively toward her. The accused would write lists of chores for Ms Rakic to do. One of these lists was tendered as Exhibit 1. Ms Rakic said she did not complete the chores on this list. The accused became extremely aggressive and told Ms Rakic that she was useless, that she was “fucking lazy” that she was a “whore”. She also gave evidence that the accused made her get a new phone just before that Christmas, with the result that some of her friends didn’t have her new number. Ms Rakic testified that the accused was particularly jealous of her friend Mark Elworthy and did not want her to contact Mr Elworthy, or for Mr Elworthy to contact her.
Ms Rakic described the accused as becoming progressively more “controlling” of her as their relationship developed from when she moved in. Ms Rakic gave evidence that the accused often wanted to know where she was and with whom, and that if she did not provide this information immediately, he would become upset and call her phone multiple times in succession. She said that the accused was always questioning whether she was cheating on him and would constantly bring up Mark Elworthy in this context.
Ms Rakic testified that the accused had both her phone and keys most of the time, and that he would look at the messages she was sending to other people. Ms Rakic gave evidence that if she attempted to leave the house following an argument, he would physically stop her by standing in front of the door. She estimated that this happened more than ten times. She also gave evidence that he would physically prevent her from leaving by grabbing her wrist, or pushing her away from the door. Further, the accused would park his car behind hers so that she could not drive anywhere.
Ms Rakic described one particular occurrence, in which she woke at 2 am or 3 am with the accused’s hands around her throat and with him telling her that he would kill her, and that nobody would find her. He had then kissed her and gone back to sleep. She gave evidence that at another point he had her up against a wall, and was threatening to punch her as he was holding a drill in his hand.
This evidence was not adduced for the purpose of demonstrating that the accused is a person of bad character. It was adduced to put in context the evidence concerning the alleged cultivation of the cannabis. The evidence was not objected to by the accused’s then counsel, presumably on the basis that the demonstrated breakdown in the relationship provided a motive for Ms Rakic to falsely implicate the accused in the present offences.
Evidence of the initial allegations of cannabis cultivation
Ms Rakic gave evidence about the series of events that led her to make a domestic violence complaint against the accused to Constable Tara Schultz on 4 January 2015, during which the initial allegations of the accused’s cultivation of cannabis were made. She gave evidence that on the morning of 4 January 2015, the accused had asked her to make him a coffee, that he was not happy with the coffee that she had made him. While she was in the kitchen washing up, he came out to the kitchen and was swearing at her, telling her that the coffee was not right and asking her to make him a new one. Ms Rakic then gave evidence that he threw the coffee at her, that it smashed through the glass. She said that there was coffee and glass everywhere. The accused then left the kitchen and went out to the garage,
Later that day, the accused wrote a list of chores for the witness and expressed to the witness that if she wanted to impress him, she would have to “fucking do everything on this list”, or words to that effect.
A photograph of this list of chores that had been written by the accused was tendered into evidence (Exhibit 1). On that list, chore number 12 read ‘Fill up reservoir with nutrients’. Ms Rakic gave evidence that this instruction from the accused was a direction for her to fill “tubs” with water and “nutrient mixture”, which had the ultimate goal of helping him with his cannabis crop. When asked where the cannabis crop was located, Ms Rakic gave evidence that this cannabis crop was located in the garage of his house, the Nicholls property. Chore number 13 on the tendered list required Ms Rakic to ‘Tape up floor’. Ms Rakic gave evidence that this was a reference to a white sheet that the accused wished her to secure to the floor. Chore number 14 required Ms Rakic to ‘plug in water pump and heater’. Ms Rakic again confirmed that this was in aid of the cannabis crop in the garage.
Ms Rakic described the growing arrangement as at the date she left the Nicholls house. The left-hand side of the garage was split into two rooms by an inner wall, the front part containing two portable black tents. There had been ‘plant lights’ installed within one of the portable tents. Ms Rakic gave evidence that the larger tent had been erected in the garage after November, and that the tent was taller than she was. Ms Rakic noted that her height was about 175 cm tall. Ms Rakic recalled that after Christmas of 2014 the garage had been set up with the larger tent, and another smaller tent that was similarly black on the outside and silver on the inside. The larger tent had four lights within it and a fan, the smaller tent had no lights, a small fan in a box and a white container. She remembered the lights having been on while she assisted in holding up the white sheeting in the garage. The garage also had a small bookshelf with tools, some books, old newspapers, and there was a long wall runner shelf with “like a fish tank on top”. When asked whether there was any other electrical equipment that the witness could recall in the left hand side of the garage, the witness could not recall.
Ms Rakic gave evidence that the accused had purchased some of the items in the left‑hand side of the garage used for growing cannabis from a shop that sold fish ponds and the like, located in Fyshwick. She went there with him on two occasions. She could not remember exactly what had been purchased there, nor could she remember exactly which shop these purchases had been made in. She remembered that on one occasion following a visit to Fyshwick she was asked to carry boxes, tent packaging and some bottles of liquid from the car to the garage. Ms Rakic gave evidence that the liquids were ‘nutrients’ that were ultimately mixed into the water. Ms Rakic recalled that the accused had told her that one of the two kinds of liquids was potassium, and that the liquid would help the plants grow.
The witness gave evidence that she had held up the white sheeting and the accused drilled it to the wall, up to the roof. Ms Rakic gave evidence that she said “…I didn’t want to be here, and I don’t want to be a part of this”. She said that it was really hot in that room and that she needed to get out for fresh air. The accused told the witness that if she vomited or fainted from the heat that he would pull her out by her hair.
In relation to the lights in the large black tent, the following discussion occurred with the witness:
[MS MacKENZIE:] Do you know why they were on?‑‑‑I assume to help the plants grow.
You said you assume to help the plants grow. What plants?‑‑‑When Simon put the cannabis plants in there.
Okay. When did Simon put the cannabis ‑ ‑ ‑
MR PURNELL: Well, he never said that he did.
HIS HONOUR: She just said then ‑ ‑ ‑
MS MacKENZIE: She just said then.
HIS HONOUR: ‑ ‑ ‑ “When Simon put the plants in.”
MS MacKENZIE: When did Simon put the cannabis plants in there?‑‑‑That would have been the day that I left, after I cleaned the pots out. He moved them all in there.
Okay. So you say he moved them all in there. Exactly into where, the big tent, little tent, somewhere else?‑‑‑No, so the big tent was up and it was in the left-hand side of the garage, forward more, and then next to the tent there was, like, a little walkway out to the back and then the room that he had me help him sheet up, and then he made me put the pots there in rows and that’s where the plants were. So it wasn’t a tent. The tent was in front of that room that he built.
When you said he put the pots in rows, were there any plants in the pots?
‑‑‑He moved them in there, yep.
Did you see him do that?‑‑‑Yes.
Ms Rakic confirmed that she understood the plants to be cannabis plants. She recalled the accused talking about “getting a yield of cannabis” from the plants. She also gave evidence that the accused had spoken about the “breed” of the plants, that is, the strength of the cannabis that he could yield from the plants. The witness noted that from these discussions, she understood the breed of the plant to be ‘AK47’, the strongest strain of cannabis. Ms Rakic gave evidence that this conversation had occurred shortly after she had assisted the accused to move the initial equipment, that is a black tent, the boxes and the bottles of liquid, into the garage.
The witness was asked about the noise that the set up made. Ms Rakic gave evidence that there was a fan in the larger tent, and that she had seen this fan turned on. Ms Rakic noted that the fan was not loud, “just oscillating”.
Evidence of items photographed in the Nicholls and Gordon houses
Ms Rakic was taken to a number of photographs (Exhibit 2), downloaded from the accused’s iMac, in some of which she identified the subject matter. The photos labelled A20, A22 and A23 were identified by her as photographs of the larger black tent that was in the front part of the left-hand side of the garage. The photo labelled A26, depicting a sign titled ‘2.4 Meter Grow Tent Combo’, was recognised by Ms Rakic who noted that the image depicted the information sheet that was on the larger black tent in the shop. The photo labelled A27 was identified by the witness as the front of the shop that sold ponds in Fyshwick, which she had previously given evidence about visiting with the accused.
She said that the photos labelled A36, A38, A40 and A41 were pictures of the black pots that the accused had in the house. She confirmed that photo A43 depicted the same pots as in photos A36, 38, A40 and A41, but moved to the verandah of the accused’s house.
Ms Rakic was also referred to a photo labelled A45 in Exhibit 2, which depicts a number of pots inside a room. The witness gave evidence that this was a photo of pots set up in one room of her house in Gordon. The witness gave evidence that she had not seen this photo prior to the Crown’s proofing process, and that she had expressed her annoyance at that time that the accused had those items at her house. She also recognised pots in her house in the photos labelled A46 and A47. Another set of photographs that she was referred to, A57, A58 and A59, she identified as depicting the setup in the room with white plastic sheeting, in the back of the accused’s garage in Nicholls.
The Crown tendered a further bundle of photographs (Exhibit 3) in examination of Ms Rakic. One photograph, labelled B01, depicts the back of a man in a red t-shirt, facing toward some plants within silver-coloured walls. The witness gave evidence that the man in the photograph looked like the accused. When taken to the photograph labelled B03, depicting a man with his head and shoulders appearing from a manhole wearing what appears to be the same t-shirt as depicted in photograph B01, the witness confirmed that she had taken this photograph and that the man depicted was the accused. Another photograph in the bundle, B04, was identified by Ms Rakic as a picture of the set up within the big black tent.
Ms Rakic recognised the following photographs and gave the following descriptions when referred to Exhibit 5: Ms Rakic identified that the photograph labelled P6 depicted the front of the accused’s house, and that the photograph labelled P20 depicted the bullets that the accused kept in his house. The witness explained that the accused had bragged about having his ex-wife’s name etched into one of the bullets. Ms Rakic again identified the inside of the large black tent in photographs P37 and P38, and noted that she understood that the plant material hanging on the drying rack in P38 was cannabis. Ms Rakic identified the depiction in photo P47 to be the area behind the tent with the white sheeting walls, with the knee-high plants that Ms Rakic had referred to earlier set out on the floor. According to the witness, P50 is a photograph of the smaller black tent in the garage. When asked about P55, a photograph of two jars filled with green matter in a cavity, Ms Rakic could not recall having seen anything in the picture before.
Cross-examination of Cynthia Rakic on 27 June 2016 (regarding the disclosure issue)
The cross-examination of Ms Rakic began on 27 June 2016 at which time the accused was still represented by Mr Purnell SC. Defence counsel put a number of questions to Ms Rakic on this date, in relation to the Crown’s proofing of her in preparation for the trial.
Ms Rakic recalled being proofed in one significant session with Ms Schultz, Ms Mifsud and Mr Lee, and then one very quick session of no more than one hour a few days before the trial. She was asked about numerous photos that she had been referred to by the Crown in her evidence-in-chief, and whether she had seen those photographs before and how many times. She gave evidence that she had seen most photographs before, once, in proofing. Some she could not recall having seen before they were raised in evidence-in-chief.
Ms Rakic accepted that she had given more detailed evidence than the original statement she had made to police, on 4 January.
Further evidence-in-chief of Cynthia Rakic on 27 February 2017
Cynthia Rakic continued giving evidence-in-chief on 27 and 28 February 2017. At this time the accused was represented by Mr Thomas of counsel.
On 27 February 2017, an A3 spreadsheet containing a record of text messages sent between Ms Rakic and the accused was referred to by the Crown (MFI F at 27 February, later Exhibit 33). The Crown put a number of text messages to Ms Rakic and asked for her to explain them, including the following:
a) Response to message index number 1078, received to Ms Rakic’s phone from the accused’s phone on 23 December 2014, “We could sort the resevoir [sic] and check things out at the same time and do Bunnings there,and [sic] get [redacted]”: the witness gave evidence that her understanding of this message was that the accused wanted to sort out the watering of the plants in the white room, where the cannabis plants were located. The witness could not remember what they had been picking up at Bunnings.
b) Message index number 998, received to Ms Rakic’s phone from the accused’s phone on 26 December 2014, “I just sweeping up in the tent bub,won’t [sic] be too long [emoticon]”: Ms Rakic explained that she took this to mean that that he was sweeping out the tent with cannabis in it.
The Crown also referred to a number of messages exchanged between Ms Rakic and the accused’s phones on 27 December 2014, relating to the witness’ discovery of cannabis in her property in Gordon:
a) Message index number 921, sent from Ms Rakic’s phone to the accused’s phone, “Simon wot is all this in my house?”: The witness gave evidence that she sent this message after having sighted some plants and pots at her house in Gordon. Ms Rakic re-iterated that she had not been occupying the house at that time, and had not seen the plants before the time she sent that message. The witness further confirmed that at this time, the accused had the keys to the Gordon house because he had been maintaining the house, to her knowledge.
b) Message index number 917, sent from Ms Rakic’s phone to the accused’s phone, “Who did u lease the house out too?? [sic]”: The witness explained that her understanding was that the accused had been assisting her in leasing out the house.
c) Message index number 916, sent from Ms Rakic’s phone to the accused’s phone, “Do u need more photos ?? [sic]”: The witness noted that she had sent a photo of the cannabis plants to the accused. This was followed by the text “I dunno what to do with it.” The accused responded to this message with a further text message stating “Don’t take anymore photos,leave [sic] there immediately”.
The Crown referred to an exchange of messages between the accused and Ms Rakic, from 28 December 2014, in reference to an exchange of their belongings following a fight:
a) Message index number 750, sent from the accused’s phone to Ms Rakic’s phone, “Your actions have caused all this and im [sic] the only one that has lost out here. Just be fair and bring what I paid for and spent so many hours on for us back”: The witness explained that the accused would have lost time and money if she had left and gone to the police, and he wanted the plants and pots and everything back.
b) Message index number 728, sent from the accused’s phone to Ms Rakic’s phone, “Get the pots you through [sic] out in the bush too,empty [sic] is fine”: Ms Rakic explained that she had a bush in her backyard where she had taken the plants to get them out of her house, and that those plants is what the accused had been referring to.
The following messages from 30 December were raised by the Crown:
a) Message index number 672, sent from the accused’s phone to Ms Rakic’s phone, “Can u grab the nutrient too please dear and I’ll take the trailer there tomoZ to get the robe and stuff”: The witness gave evidence that this was a reference to the nutrients that the accused would pour into the water for the plants.
b) Message index number 667, sent from the accused’s phone to Ms Rakic’s phone, “No I’m just trimming. Adam went home.”: The witness gave evidence that she had understood that this was a reference to the accused trimming his cannabis plants in the garage at the accused’s house in Nicholls.
Further cross-examination of Cynthia Rakic on 1 March 2017
Ms Rakic was cross-examined by defence counsel on 1 March 2017. The accused was still represented by Mr Thomas at this time.
In cross-examination, defence put to the witness that she had been planning on using the accused’s garage for a therapy business, for which she had an ABN running at the time she was living there. Ms Rakic accepted this, and acknowledged that she had known the garage to have been used as a studio apartment at one time prior to her living in the Nicholls house.
Ms Rakic was also examined on the small amount of arrears that had been owing on the mortgage on her property in Gordon. It was put to her that the accused had given her access to one of his credit cards, and that the standing arrangement had been to allow Ms Rakic to draw cash on that card. It was further put to her that she had spent $20,000 from that card, and that this had been a recurring subject of argument between the accused and Ms Rakic. Ms Rakic said that on the odd occasion the accused would give her his credit card for groceries and tell her the PIN to the card, but that he had never given her her own card to his account. The witness denied having spent $20,000 of the accused’s money.
Mr Thomas also questioned the witness about the order of events, as she had stated them. He put to the witness that, rather than her having discovered plants in her property at Gordon, instead the accused had discovered that the witness herself had installed those plants at the Gordon address. In putting this version of events to the witness, Mr Thomas asked Ms Rakic whether she remembered on 6 December 2014, receiving a call from the accused who was expressing concern that he had found cannabis growing in one of the rooms. She denied that this had ever happened.
Mr Thomas put to her that by 11 December 2014, she had asked the accused whether she could use the Gordon property to continue growing the cannabis plants. The witness denied this also, stating that she did not need the accused’s permission to use her own property in whichever way she chose.
Further, it was suggested that the accused had gone to Gordon to check on the house again on 28 December 2014, before the witness and the accused were planning on going down the South Coast. It was suggested that the witness received calls from the accused at this time, in which the accused expressed anger that the plants were still in the Gordon property. Ms Rakic could not recall these events and maintained that the plants were not hers. Mr Thomas also put to the witness that she had moved the plants from the Gordon house to the Nicholls house with the assistance of other people, possibly the assistance of Mr Elworthy or Mr Theune, without the accused’s knowledge, sometime between the end of December and 4 January. She denied this.
Mr Thomas questioned Ms Rakic about her use of the accused’s electronic devices. She agreed that she had used the accused’s laptop, and that in order to create an internet connection the accused had connected the laptop to a “hotspot” on his mobile phone. Mr Thomas further put to the witness that there had been a number of occasions where she had used the accused’s mobile phone in order to create an internet connection at his house. The witness agreed that the accused had done this for her, but said that she had not done this herself, without the assistance and knowledge of the accused. Ms Rakic said that the phone would remain with the accused when this happened.
Mr Thomas also took the witness to a number of the text messages referred to in her evidence-in-chief. He put to Ms Rakic that the following messages sent on 27 December 2014, which the witness had stated related to finding cannabis growing in her house in Nicholls, in fact had related to the accused’s project to assist the witness in leasing the Nicholls property and problems that the witness had with the accused leasing the house:
a) Message index number 921, sent from Ms Rakic’s phone to the accused’s phone, “Simon wot [sic] is all this in my house?”
b) Message index number 914, sent from Ms Rakic’s phone to the accused’s phone, “I’m not leaving my house to visit u at UR HOUSE wen I have a problem here I need to take care off [sic]”
Mr Thomas put to the witness that the text messages sent on 28 December 2014 about the return of property, were in fact the accused asking for the equipment that Ms Rakic had bought on his credit card without his knowledge. Relevantly, it was suggested that Ms Rakic had incurred the expenditure of $20,000 on the accused’s credit card. The witness consistently denied being responsible for the $20,000 charges for equipment. Later, in re-examination, the witness said that she could not even recall what kind of card or whether it was a credit account that had been provided to her on the times she had bought groceries.
Mr Thomas put to the witness that the messages show that the accused did not want the cannabis, purely the equipment, which he believed he owned as the equipment had been purchased using his money. The witness denied that the text messages reflected this.
a) Message index number 781, sent from the accused’s phone to Ms Rakic’s phone on 28 December 2014 at about 8 pm, “Bring the stuff back with u,not [sic] the green”: Defence put to the witness that this message showed that the accused was making it clear to the witness that it was her responsibility to deal with the cannabis plants. Ms Rakic denied this reading of the message.
b) Message index number 778, sent from the accused’s phone to Ms Rakic’s phone on 28 December 2014 at about 8 pm, “I worked so hard and spent thousands for all that and now it’s fucked”: Defence put to the witness that this message demonstrated the accused’s anger that the witness had for the loss of the money that Ms Rakic had incurred. The witness agreed that he was probably talking about the $20,000 but again said she had not spent his money.
c) Message index number 728, sent from the accused’s phone to Ms Rakic’s phone on 29 December 2014 at about 10 am, “Get the pots you through [sic] out in the bush too,empty [sic] is fine”: Defence put to the accused that the plants were the witness’ own, and that the equipment such as the pots, had been bought with the accused’s credit card without his knowledge. This message showed the accused requesting the return of those pots. The witness maintained that the plants were not hers, and that she had not purchased the equipment.
Ms Rakic’s evidence concluded on 1 March 2017.
Adam Chavasse
Adam Paul Chavasse gave evidence during this trial. His evidence in chief commenced on 1 March 2017 and cross-examination took place on 2 March 2017. The accused was at this time still represented by Mr Thomas. The witness stated that he and the accused were friends from childhood. The witness confirmed that he and the accused had regular contact until when the offending was alleged to have occurred.
The witness gave evidence that, between October 2014 and January 2015, the accused and Mr Chavasse lived very close together, their houses being about 50m or 60m apart in distance. The witness gave evidence that during this time, he would occasionally give the accused a hand around the accused’s yard.
The witness testified that he had also helped the accused with “putting some plastic in his garage”. The witness described the contents of the accused’s garage, confirming that he had seen two tents within the left-hand side of the garage, one smaller and one larger, both of black canvas. According to the witness, at the stage that he had observed the tents, no lighting had been switched on in the garage or the tents.
Mr Chavasse, however, did identify that the area of the garage with the plastic sheeting area had hydroponic lights in it. The witness explained that hydroponic lights have a bulb and a power box around the ‘ballast’ of the bulb, and indicated that it was these features that he had recognised in the lights in the accused’s garage.
Mr Chavasse gave evidence that on a different occasion, he had seen inside the two black tents in the accused’s garage. According to the witness, the small tent had contained some cuttings, small plants, and the larger tent had bigger plants. The plants in the bigger tent were estimated to be about a metre tall. The witness estimated that there had been six or eight plants. Mr Chavasse confirmed that he had recognised these plants to be marijuana. The witness also confirmed that he understood the purpose of the room with the sheeting was to grow marijuana, and that he had conversations with the accused regarding the marijuana prior to Ms Rakic moving in. Mr Chavasse gave evidence that he had discussions with the accused regarding how many plants he could keep, and what kind of “area” would be best for the plants. Other topics the witness discussed with the accused included different kinds of “strains”, lights, air flow and the pH. The witness gave evidence that the accused had shown some knowledge in their discussions of the marijuana plants.
The witness gave evidence that the accused had spoken fondly of Ms Rakic and her children, and that he had mentioned to the witness that he was in love with her. When the relationship ended, the witness remembered saying to the accused that he should be careful, “because she’ll bring you unstuck”. The witness confirmed that he had made this statement to the accused because he had known that both of them aware of what was going on in the garage and was of the opinion that Ms Rakic would call the police with that information.
In cross-examination, the witness was taken to the statement he had made to the DPP where he had stated, at paragraph 10, that he had not helped the accused construct a hydroponic set-up at his house. The witness confirmed that at no point in his statement had he referred to putting up plastic sheeting, and that none of what he had seen of the cannabis plants and the cultivation equipment that he had mentioned in the evidence‑in‑chief, had been described in his statement.
Mr Thomas put it to the witness that the evidence he had given about the accused’s garage was false, and that the witness had given a statement in order to ensure that blame was deflected from himself. The witness disagreed. Defence counsel also raised the witness’ history of convictions for drug matters, which the witness acknowledged. However, the witness maintained that there was no “blame” on him.
Peter Theune
Peter Theune gave evidence during this trial. His evidence was given on 1 March 2017. The witness was known to Ms Rakic through their employment at the Clean Energy Regulator, from approximately 2013 or 2014. The witness confirmed that their face‑to‑face contact was generally all within the workplace. The witness indicated that they had been friends on Facebook, and at the point of giving evidence, were still friends on Facebook. Ms Rakic and Mr Theune worked together for about eight months, until the witness left that employment. After Mr Theune left the Department, he had contact with Ms Rakic by text message or Facebook message about two to ten times a month, for a period of three to five months. The witness confirmed that he did not know of the accused and that had never been to the Nicholls house.
In cross-examination, the witness confirmed that he had never assisted either Ms Rakic in moving pots with cannabis plants.
Mark Elworthy
Mark Elworthy gave evidence during this trial. His evidence was given on 2 March 2017, while the accused was still represented by Mr Thomas. The witness was known to Ms Rakic and stated a belief that he had first met her in either 2013 or 2014. The witness confirmed that he had met Ms Rakic in an online dating program, and noted that while a casual relationship had been developing at the start of their acquaintance but that they “could never really click and just stayed as friends”. They had remained friends once Ms Rakic formed a relationship with the accused.
The witness confirmed that he was still in contact Ms Rakic during her relationship with the accused, mostly through forums such as Snapchat and Facebook. Mr Elworthy gave evidence that at one point he caught up with Ms Rakic in person, during which he assisted her with some problems she was having with some of her technological devices. Mr Elworthy gave evidence that he examined her phone and her laptop, and removed all devices that had access to her email and her Facebook accounts, that were not her current devices. Mr Elworthy confirmed that it was just these two applications that he examined.
Mr Elworthy gave evidence that he has never met the accused face-to-face, that he has never attended the Nicholls house, and that he has only had some limited contact with the accused over Facebook.
In cross-examination, the witness confirmed that he had been asked once by Ms Rakic to assist in shifting furniture, but that he had been too busy to assist. The witness further confirmed that he had never assisted her in moving pots at her house.
Kim Wrigley
Kim Marie Wrigley, an employee of ActewAGL Retail, also gave evidence during this trial. Her evidence was given on 26 September 2017, at which time the accused was self-represented. From this point onwards, the accused was not legally represented in the trial. Ms Wrigley was called by the Crown due to some documentation she prepared in relation to accounts held at the Nicholls and the Gordon houses.
The witness gave evidence about the meaning of certain charges on the water‑residential account held by the accused for the Nicholls house. The witness explained that every three months, the meter on that property is read and an invoice is issued upon that read. In general terms, the documents that the witness had prepared gave an overview of the consumption of the water at that premises.
The witness also gave evidence about the electricity-residential accounts held at the Gordon house and the Nicholls house.
Later in the trial, on 28 November 2017, the witness Kim Wrigley was recalled for further cross-examination by the accused. The accused, relying on Exhibit 10 (the ActewAGL data for the Nicholls and Gordon properties), put to the witness that there was an increase in electricity usage at the Gordon property in the September 2014 billing period, compared to the September 2013 billing period. The witness agreed that there was some inflation, but in re-examination confirmed that the reasons for this could have been infinite.
David Ringrose
David John Ringrose, a forensic examiner with the Australian Federal Police, gave evidence during this trial. His evidence was also given on 26 September 2017. The witness confirmed that he had been employed by the AFP since 2003 as a forensic examiner.
The witness gave evidence that a colleague had provided him with a CD containing 62 images in relation to this matter. Mr Ringrose was required to examine the images on this disc with a view to looking at the metadata from those image files. Mr Ringrose described the value in gathering metadata relating to an image file is that such examination reveals different types of fields of information that can be stored about an image. Mr Ringrose confirmed that the he gathered metadata within an ‘EXIF standard’.
Two exhibits were tendered (Exhibit 11 and Exhibit 12) in the course of Mr Ringrose’s examination. Each exhibit is an A4 document containing spreadsheets with information pertaining to particular image files. Exhibit 11 contains a spreadsheet titled ‘Table 1: All files Stored on Optical Disc’. Next to the image file name are descriptions of the image itself. Among the image descriptions are screen captures, a photo of a retail receipt, screen captures of hydroponic equipment lists, photos of ‘Grow Tent with black pots’, ‘Grow tent showing air filter’, ‘Grow tent showing ducting’, ‘Hydroponic set-up with plants growing’. As detailed in one field in the table, some of these images have EXIF metadata embedded. These images are further described in Exhibit 12, which contains a spreadsheet titled ‘Table 2: Selected Images containing EXIF Metadata’. The metadata on the selected images show that these images were taken between 3 April 2014 and 4 December 2014. The camera make and model relating to these photos changes over this period, beginning with Apple iPhone 4s, to Apple iPhone 5s, and ultimately Apple iPhone 6. Each phone model was used with different software versions.
The witness gave evidence that if the date on the camera had been incorrect when the photo was taken, the field in the spreadsheet tendered that related to the date of the photo would also be incorrect. This was confirmed in cross-examination by the accused. In cross-examination it was also put to the witness that, aside from the specific model, make and software version, it was not possible to identify which unique phone the photos came from. The witness agreed, and further explained that to identify the specific phone, more information would be needed. The accused also suggested he could not know whether he or Ms Rakic had taken certain photos, if they both had the same phone, model, make and were using the same software version. The witness acknowledged that this was correct.
Chloe Morrison
Senior Constable Chloe Morrison gave evidence during this trial. Her evidence was given on 27 September 2017. Senior Constable Morrison gave evidence that she was part of the Search and Rescue, a specialist response group, and that she had assisted in locating the accused in relation to information that Constable Schultz had received.
Senior Constable Morrison and her team had attended the Nicholls house at about 10.30am on 5 January 2015 to speak with the accused about a domestic violence matter. Senior Constable Morrison gave evidence that the team had been unsuccessful in locating the accused at this time.
In giving evidence about her team’s initial attendance at the Nicholls house on the morning of 5 January, Senior Constable Morrison described a low humming sound emitting from the shed. The witness confirmed that the sound was emitting from the shed attached to the house, what she believed to be a one or two car garage. A hand-drawn map, by the hand of Senior Constable Morrison, was tendered as Exhibit 13. As per the map, the witness confirmed that the sound had been coming from the area which on the map is labelled ‘Shed 2’. At cross-examination, the witness confirmed that she did not check whether the sound was still emitting from the premises when she returned, at around 10pm or 11pm on 5 January.
The witness gave evidence that she remained as static guard on the property from about 8.15pm to 10pm that day. No-one was observed entering or leaving the premises during this time. At about 10pm, Senior Constable Schultz attended the Nicholls house with a search warrant. Senior Constable Morrison testified that she was allocated the role of Property Officer for that warrant, which required the witness to record and exhibit each item seized on a property seizure record form.
Four property seizure records for the property that was seized at this time was tendered into evidence (Exhibit 14). Items seized and listed on the property seizure record numbered M321021 include the following:
·Small blue 2015 diary, located in ‘Bedroom 1 under bed’, seized by Constable De Haan (Audit/Seal Bag No. 325288)
Items seized and listed on the property seizure record numbered M321023 include the following:
·South Pacific Hydroponics Catalogue Sep. 2014, located in ‘Wardrobe in Shed 2’, seized by Officer Mukhin (Audit Bag/Seal No. 325297)
Items seized and listed on the property seizure record numbered M321022 include the following:
·Clip seal bag containing green vegetable matter, located in ‘Bedroom 1 behind right hand side bed side table’, seized by Officer Hoyer (Audit Bag/Seal No. 325289)
·Green vegetable matter stems, located in ‘Main bedroom 1 at end of bed’, seized by Officer Hoyer (Audit Bag/Seal No. 32595)
·1 x jar containing green leafy vegetable matter, located in ‘roof cavity above living room’, seized by Officer De Haan (Audit Bag/Seal No. 325301)
·1 x jar containing green leafy vegetable matter located in ‘roof cavity above living room’, seized by Officer De Haan (Audit Bag/Seal No. 325302)
At cross-examination, the witness confirmed that the clip seal bag containing green vegetable matter would have been found and seized already in the clip seal bag.
Marcus De Haan
Marcus De Haan also gave evidence during this trial on 27 September 2017. The witness testified that his current rank was Constable with ACT Policing, and that on 5 January 2015 he had been performing duties with Constable Tara Schultz, Constable Damon Hoyer and Senior Constable Chloe Morrison. Constable De Haan gave evidence that he became involved in following up with the defendant in relation to a family violence matter.
Constable De Haan confirmed that both he and Constable Hoyer had noticed a low humming sound coming from the garage door. The witness described the sound to be akin to that of fans. Constable De Haan indicated that the sound was coming from the garage which was attached to the house.
The witness gave evidence that they had also attended the accused’s work address in Mitchell and Ms Rakic’s house in Gordon, in an attempt to locate the accused. Both attempts had been unsuccessful. It was upon leaving the Gordon property that the group received communications that the accused had attended Gungahlin Police Station. At this point, the witness confirmed that they proceeded back to Gungahlin Police Station where Constable Schultz arrested the accused and conducted an interview. At some stage following this the witness seized the accused’s mobile phone.
The witness was able to identify a property seizure record that he had made in relation to the gold Apple iPhone seized from the defendant. This seizure record was tendered into evidence (Exhibit 15). Constable De Haan also confirmed that he had been granted a search warrant in relation to the accused’s property in Nicholls by Magistrate Cook, and also an extension of the investigation time in order for the accused to have the opportunity to attend the search warrant.
Constable De Haan confirmed that some green vegetable matter stems, hydroponic pots, a couple of mobile phones, a couple of USBs and a computer were all located during the search.
Constable De Haan noted the observations he made upon entering the garage. In his description, there was an elaborate hydroponics system consisting of three tanks, for three separate stages of growth. Constable De Haan indicated a belief that one tank was being used for drying green vegetable matter. The witness made reference to lighting, fans and “grow tanks”. In cross-examination, the witness noted that he had been able to identify the system as a hydroponic system due to the lighting, air, air circulation, pots and nutrient systems in the garage. In re-examination, the witness confirmed that when he observed the hydroponic set up, that lighting had been ‘on’ in the rear tent. The other tent, to his knowledge, was being used to dry cannabis plants.
At cross-examination it was confirmed that Constable De Haan couldn’t confirm that the noise that sounded like a fan was definitely coming from inside the garage. Constable De Haan did, however, indicate a strong belief that the garage was the source of the sound.
Peter Reid
Peter Reid, a senior digital forensic examiner with the Australian Federal Police, gave evidence during this trial. He gave evidence on 27 September 2017. The witness confirmed that he had examined four property seizures, and reported on two of the seizures. One item was an Apple Macbook Pro, another was a Samsung branded mobile phone model.
Mr Reid gave evidence that he had interrogated the Apple Macbook Pro to see if there was anything on the device of interest. The witness confirmed that there were multiple accounts on the laptop seemingly belonging to different people; one labelled ‘Batman’, another labelled ‘[redacted]’, another ‘[redacted]’ and another ‘Simon Trewin’. The witness explained that the administrator account, which is an account that is generally assigned to the account that set up the computer in the first place, was the one labelled ‘Simon Trewin’, and that the administrator account has privileges generally assigned to the account that set up the computer in the first place, when the operating system was installed. He confirmed that the administrator account is able to create and delete other user accounts.
The witness gave evidence that he produced a listing of all digital images that were brought to his attention by the case officer. He produced this list as an appendices (which became Exhibit 19), and also a CD ROM containing those identified images. He confirmed that the list, Exhibit 19, was a record of where each of the images on the CD ROM had been found within the computer. He confirmed that all the files on the list in Exhibit 19 had been associated with the user account “Simon Trewin”, and that they would have been accessible by the person who had access to the “Simon Trewin” account. He also confirmed that the files would not have been accessible by any other user of the computer without knowledge of the password associated with the “Simon Trewin” account.
The witness was shown a bundle of 62 images, and he confirmed that the images had been identified to him by the case officer who had requested that he produce a listing of those images. He confirmed that the bundle of images were the images referred to on the listing he had produced (Exhibit 19).
Included in the bundle of images were:
·One ‘Webpage Preview’ image for a search request on the website ‘Google’ for the following: “grodan cubes supply canberra”. The image also included results from that search request (A01).
·One ‘Webpage Preview’ image for a search request on the website ‘Ask’ with the search terms: “Rockwool Cubes canberra”. The image also included results from that search request (A02).
·Two photo images of a screenshot of a page titled “The Growers Guide to Can…” containing a list of various equipment and pricing of that equipment, including some hydroponic equipment (A10, A11).
·Five photo images of the inside of a silver-lined tent, with two sheets of paper hanging in the tent. One sheet is titled “2.4 Meter Grow Tent Combo” and the other is titled “2.4 Meter Tent Kit Additional Options” (A15, A16, A17, A18, A19).
·Six photo images of black tubing inside a silver-lined structure (A20, A21, A22, A23, A24, A28).
·One photo image of plant growth inside a silver-lined black tent (A25).
·One close-up photo image of the sheet titled “2.4 Meter Grow Tent Combo” (A26).
·Ten photo images of black plastic containers (A36, A37, A38, A40, A41, A42, A43, A45, A46, A47).
·Three photo images of plant growth in black pots (A57, A58, A59).
Mr Reid confirmed that he conducted similar interrogations on another exhibit he was provided, being the Samsung mobile phone. He said that he would have provided a copy of that phone’s data to the case officer where identified items of interest would have been made known to him and he was requested to produce a report pertaining to those.
The witness confirmed that he had made a report of where those images of interest had been located on the mobile phone, which was tendered as Exhibit 21. He also confirmed that the series of five images tendered with the report in Exhibit 21 were the images referred to within the report.
There are five images depicting the following:
·Two images with the back of a shoulder of a person wearing a red t-shirt with white stripes on the sleeve in the foreground, and two black pots with plant growth in the background (B01, B02).
·An image of a man wearing a t-shirt with white stripes appearing out of a trapdoor in the wall (B03).
·An image of multiple silver tubes in a white room (B04).
·A screenshot of a price listing for a “Plant Stand Eden 30cm Wire Round Pr12a” for $6.89, with a description of the “Eden plant stand” and the words “Price correct as at Tue Dec 2014 08:53:22” (B05).
In cross-examination, the witness confirmed that a password was needed to access that user account within the laptop. He confirmed that whether the account was logged off or active was not within the scope of his examination, but agreed that this sort of analysis is possible. He said that file activity can be looked at to see when it was being used.
The witness gave evidence that the administrator account was not able to access or delete other accounts without the password to that account. He confirmed that each account was password protected.
Tara Schultz
Tara Schultz was called to give evidence twice at this trial. She gave her evidence for the first time on the voir dire on 24 June 2016, and again on 28 and 29 September 2017. There was inevitably a degree of repetition in her evidence.
Evidence-in-chief given on voir dire on 24 June 2016
On 4 January 2015, Constable Schultz met and spoke to a woman named Cynthia Rakic. Ms Rakic had come to City Police Station and made a complaint in relation to a family violence matter against the accused. There was also an allegation that the accused was growing cannabis in his garage. Constable Schultz took Ms Rakic’s statement and passed on a summary to a Gungahlin patrol to investigate and take immediate action. She said that she was ending her shift and believed the risk to Ms Rakic required the job to be handed over, as is done in family violence matters. She also alerted the Gungahlin patrol to the allegation of the drugs and firearms involved. She believed the Gungahlin patrol would arrest the defendant that night.
The following morning Constable Schultz came back on shift. When she saw that the accused had not been arrested overnight, she contacted the Gungahlin patrol who advised they had not had the resources to follow it up that night. Constable Schultz called Ms Rakic to check that she was safe, which she was. She believed that Ms Rakic had stayed in a domestic violence safe house.
Constable Schultz prepared a draft statement of facts and liaised with her team, and then proceeded to start looking for the defendant at his home. She went with Constables Marcus de Haan, Damon Hoyer and Senior Constable Chloe Morrison. They first went to 25 Dooland Court in Nichols, which was the defendant’s home address. He was not there.
They did not go into the house, and walked down the driveway past the garage. Constable Schultz said that because they were alerted to the allegation from Ms Rakic, they listened at the garage and heard “the sound of humming or an exhaust fan, which was quite distinct and audible.” Other than the roller door, no window, door or exhaust fan was visible to them. After knocking on the door, Constable Schultz then walked about three metres past an open window and called out into the back yard, "Mr Trewin, police are here. Are you home?" She said she could then see the kitchen window, which was on that wall. It was broken, which corroborated an element of Ms Rakic's statement.
The officers then went to the accused’s place of work and spoke to his supervisor, who said that the accused was a on a number of days off to be with his son. They then went to Ms Rakic’s address in Gordon. She nor anybody else was there. There were some items in the garage, such as clothing items, but the premises looked basically abandoned.
While driving back from Gordon to City Police Station, Constable Schultz received a call that the accused had turned up at Gungahlin station wanting to speak to her in relation to a card that she had left at his home address. At the police station, she was satisfied that the person on the ID he provided matched the defendant in front of her and at approximately 12.20 pm on 5 January she placed him under arrest for domestic violence offences.
Constable Schultz confirmed that the accused was cooperative. He did not initially understand the allegation that was put to him when he was arrested, that he was under arrest for domestic violence offences. He was allowed to make some phone calls to make arrangements for his son. He had his phone with him at that time. His phone was lodged in the watchhouse with the rest of his possessions and then seized from there.
Constable Schultz confirmed that she did a record of interview with the accused, and that he made a number of admissions that were consistent with the family violence offences. She gave evidence that the accused, when asked about the allegation in relation to cannabis, “stated [he] believed no” and then did not agree to speak further.
Once the interview had finished, the accused asked a series of questions. These questions were primarily to do with what the legislation was surrounding the cultivation of cannabis, including questions like “what is cultivation, how many plants, what is cannabis”. Constable Schultz gave the following evidence:
We stated that - we explained to him - we weren’t quite sure of the nature of those questions so we explained the difference in the ACT between a simple cannabis offence notice for two plants not artificially cultivated and the more serious offences for other ways of cultivating cannabis and possession of cannabis. He stated - he asked what is artificial. We explained things put under lights. I believe he - Constable - I heard Constable De Haan put it quite plainly that growing - two plants growing outside in the ground is a (indistinct). Things under lights, things inside, things in tubs is problematic. I was then concerned that the defendant was asking quite a number of questions and we basically said, “Look, we’re going to execute a search warrant at your house most likely in relation to that allegation and we will give you further details of that as we know them” because those questions were starting to make me believe that we did need to execute a search warrant.
As the informant in the matter, Constable de Haan, who was also present during that conversation, put together an application for a warrant to search the premises. The following examination occurred:
It talks about a statement made by Mr Trewin. Is that the time that statement was made?---Yes, it is. In that line of questioning in terms of culpability he was saying, “Well, how would you - could someone put plants through the window? Would you be liable for that” and we said, “Look that would really depend on the circumstances. We don’t know what we’re - you know - really what’s going on fully here”. He said, “Well” - then he made that statement I (indistinct) - - -
Because it’s correct at that point in time, we had the allegation from Ms Racich [sic] and the interview effectively?---Yes.
And you’ve - the - all these observations of the house?---Observations that - yes.
Thank you. So I’ll just take that back. So that statement that I referred to was the physically telling police well, if you find anything, how do you know I put it there. Now, you’ve completed the interview?---Yes.
When asked whether there was anything further he had to say to the charges, the accused stated that he had no idea how the plants ended up at his house. He postulated that they could have been moved on the night of 3 January, the night before that, or on the morning of 4 January. He gave evidence as to remembering that on the morning of 4 January, he had woken to a light on in the living area, and that Ms Rakic had explained this as one of her daughters getting up to get a drink. In cross-examination, the accused maintained that the biggest opportunity that Ms Rakic would have had to move the plants would have been on the night between 3 and 4 January.
Cross-examination of the accused
In cross-examination, the Crown referred to photographs tendered in Exhibit 21. One of the photographs depicted the back of a man’s body in a red t-shirt in the foreground and the cannabis plants in the background. The Crown suggested that this was the accused (which he appeared to accept) and suggested that this showed that the accused had not been alone when he went to the Gordon house on 28 December, and further, that the photographs depict him tending to the cannabis plants in the Gordon house. Another photo from the download of the accused’s phone was referred to by the Crown, of accused man wearing the same red t-shirt, appearing with his head and shoulders out of a manhole. The accused confirmed that was a photo of him. The Crown noted that two jars of cannabis were later seized from that manhole.
In cross-examination, the accused was referred to Exhibit 33, a 42 page document containing text messages between himself and Ms Rakic. The information in Exhibit 33 was taken from a phone download of Ms Rakic’s phone. The Crown noted that the messages that appear in Exhibit 33 don’t appear in the accused’s phone download. The Crown suggested to the accused that this was because the accused had deleted the messages he had sent to Ms Rakic.
The accused denied that he had deleted the messages, stating a belief that the messages that the Crown was referring to were sent when Ms Rakic had been in possession of both his phone and her phone. The accused stated that Ms Rakic had conducted the text message conversation between the phones, being the author of both sides of the text message conversation, and then deleted the messages off of his phone. The accused gave the following explanation:
HIS HONOUR: Sorry, sent them and then deleted them?---Yeah, so if I – if I’m asleep and she’s got my phone while I’m asleep and she’s sending a message to her phone, then if she’s sent that message to her phone from my phone, if I woke up in the morning, I’d say what’s this, whereas if she sent it and then deleted it straight away - - -
I see?--- - - - I would never see it.
In this line of questioning, the Crown referred to a message apparently sent by the accused to Ms Rakic’s phone, on page 9 of Exhibit 33 that stated “Fuck you”, and asked the accused whether Ms Rakic had also sent this message to herself. The accused responded that he couldn’t be sure.
The Crown questioned the accused about a number of text messages sent between the accused and Ms Rakic’s phone where the accused demonstrated an awareness of, or involvement in, the cannabis grow-house in his garage. The accused denied sending some of the messages that the Crown referred to. Given the apparent inconsistency in the timing of the text messages, the Crown asked that less weight be placed on the time stipulated in the document and noted that on comparison with other records, the time of the texts registered in Exhibit 33 was approximately 11 hours slow. The times referred to in the following paragraphs have been amended on this basis.
·A message sent from the accused’s phone to Ms Rakic’s phone containing the following website address: ” from 23 December 2014.
·A message sent from the accused’s phone to Ms Rakic’s phone with the text “I just sweeping up in the tent bub,won’t be too long [emoticon]”, from around midnight 26 December.
·Sent from the accused’s phone to Ms Rakic’s phone: “I’m just gunna hook in and manicure what’s left immediatelly so the tents ready fo action again [emoticon]”, from around 4 pm, 30 December.
·Sent from the accused’s phone to Ms Rakic’s phone: “Can you grab the nutrient too please dear and I’ll take the trailer there tomoZ to get the robe and stuff”, from around 4 pm, 30 December.
The Crown put to the accused that the following series of text messages demonstrated that Ms Rakic was surprised to find cannabis growing in her house in Gordon. Among other texts, the conversation included the following exchange:
·Sent from Ms Rakic’s phone to the accused’s phone: “Simon wot is all this in my house?” from 27 December at around 6 pm.
·Sent from the accused’s phone to Ms Rakic’s phone in response to the message above: “Get your kids out of there” from 27 December at around 6 pm.
The accused gave evidence that Ms Rakic “was implying that she’d just found [the cannabis plants in the Gordon property] and obviously stitching me up at the time and I said well if you know, like what are you doing there if you’re worried about that.”.
Another conversation relied upon by the Crown in cross-examination, involved the following:
·Three messages sent from Ms Rakic’s phone to the accused’s phone in succession, around 2 pm on 28 December:
(i)“I’ve told no one. I know ppl that grow it but I don’t ask them for advice y is it ur aloud to keep talking bout it”
(ii)“I haven’t threatened u btw”
(iii)“I’m just done with u being like this n speaking at me like u do”
·Two messages sent from the accused’s phone to Ms Rakic’s phone in response to the above messages, around 2 pm on 28 December:
(i)“He helped start. Again don’t text stuff”
(ii)“Then don’t talk down and make out like your some fucking genius and smarter then me cause your not. You certainly wouldn’t be doing this if you were. I’m happy to rip it all out cause I actually can’t handle your manipulating ways. I want a happy relationship with someone I can work with. Not a fuckinf give up quiter.” (spelling as per original.)
When this conversation was put to the accused, the accused gave evidence that he couldn’t recall the conversation, and that if he had sent those messages, he had “possibly” been referring to ripping out the plants he had discovered at Ms Rakic’s house.
The Crown also put the following text message exchange to the accused, asking him if he recalled sending the following to Ms Rakic’s phone at about 6.30 pm on 2 January 2015:
·“Can you please help me now. I need your help now. I need the pots put back on the resivior. It is critical it gets done now while I finish the room so the are ready when I’m done. I’m begging you now to help me please cause everything is dieing and I have too much to do on my own right now”
The accused stated that he “absolutely” did not send that text message. The accused said that the reason that it was so highly unlikely that he sent that message was because he would be more conscious of grammar than to write a message like that. When asked what particularly about the message made him say that, the accused responded that the spelling of reservoir in the referred text message stood out to him in particular.
The Crown then referred to a handwritten list of chores that had been tendered earlier in the trial as Exhibit 1. The Crown reminded the accused that his position at the time of tendering had been that he had written the list, but that Ms Rakic had insisted that some matters be put on the list. The accused agreed that this had been his position, and upon sighting the Exhibit, acknowledged that the list was in his handwriting. The Crown then noted the similarity between the chores list and the text message, pointing out that the text message had the word “resivior” within it, and the chores list had the word “resivoir” within it. The Crown put to the accused that the similarity between the misspelling of ‘reservoir’ in both exhibits was indicative that the accused had also written the text message.
At another point, the Crown referred to another text message, sent from Ms Rakic’s phone to the accused’s phone at about 10.30 pm on 2 January 2015.
·“I’ll actually come out n finish the plant trimming only coz I am a fuking human with feelings n I do feel bad for u being out there but then I want nothing to do with it . It consumes u n u become such a cunt n I don’t want a bar of it no more . then you have no reason to get upset with me bout shit”
In cross-examination of the accused, the Crown asked why, if Ms Rakic was trying to “stitch up” the accused as he contended, she would have implicated herself in the offending. The accused did not have an answer.
The Crown relied on multiple text messages containing discussions around the return of each of the accused’s and Ms Rakic’s property, to show that the accused had been keeping cannabis plants and growing materials at Ms Rakic’s property in Gordon. One example includes the following:
·Sent from the accused’s phone to Ms Rakic’s phone at about 8pm on 28 December 2014: “Bring the stuff back with u,not the green. We can sort that tomorrow”
The Crown put to the accused that he had been referencing cannabis with the word “green”. The accused denied this, but could not suggest any other possible meaning for the text message.
The accused was given a last opportunity on 1 December 2017 to bring any evidence or witnesses in his case, on 1 December 2017. The accused tendered the following:
· A bundle of documents (Exhibit 43), including four Drugs of Dependence Act 1989 (ACT) Preservation Order Notices, each dated 6 January 2015, and four Property Seizure Records. The accused pointed out a number of errors in these records, including the inclusion of an incorrect date of the record, which was written as 5 January 2015, but as Mr Trewin pointed out, seizures were not recorded until after midnight and therefore the correct date was 6 January. Additionally, the accused noted that on the property seizure records, on each of them both the owner and the exhibit registrar failed to sign the records, and on one of the records the warrant holder has failed to sign the record.
· A document containing a screenshot of a Facebook post, seemingly written by Ms Rakic (Exhibit 44), and a bundle of screenshots of an electronic conversation between Cynthia Rakic and Annie Essel, and a screenshot of Ms Rakic’s Facebook activity (Exhibit 45).
· A copy of an email sent from Ms Rakic to the accused on 15 December 2014 with an attached list titled ‘2015 plans/goals’ (Exhibit 46).
· A copy of an email sent from Ms MacKenzie of the ACT DPP to Mr Paul Edmonds on 24 February 2017 with the subject line ‘Cynthia rakic p[hone [sic] spreadsheet’ (Exhibit 47).
· The accused’s notebook (Exhibit 48).
The accused also re-iterated a perceived unfairness that he had suffered in relation to the non-disclosure of the download from Cynthia Rakic’s phone. He noted a belief that it had not been until 29 November 2017 that he had received a copy of the download.
At this point, the accused asked that the application for a permanent stay be reconsidered.
The accused closed his defence on 1 December 2017.
The charges
The charge of trafficking in a trafficable quantity of cannabis is a charge under s 603(5) of the Criminal Code 2002 (ACT) (Criminal Code). This provides “A person commits an offence if the person traffics in a trafficable quantity of cannabis.” Cannabis is a controlled drug for the purposes of the Criminal Code: see s 5 and Schedule 1, Part 1.2 of the Criminal Code Regulation 2005 (ACT) (Criminal Code Regulation). A controlled drug does not include a growing plant: s 600 Criminal Code. A trafficable quantity of cannabis is 300 grams: Item 35, Part 1.2, Schedule 1 of the Criminal Code Regulation.
The concept of trafficking in a controlled drug is defined in s 602 of the Criminal Code:
602 Meaning of trafficking
For this chapter, a person traffics in a controlled drug if the person—
(a) sells the drug; or
(b) prepares the drug for supply—
(i) with the intention of selling any of it; or
(ii) believing that someone else intends to sell any of it; or
(c) transports the drug—
(i) with the intention of selling any of it; or
(ii) believing that someone else intends to sell any of it; or
(d) guards or conceals the drug with the intention of—
(i) selling any of it; or
(ii) helping someone else to sell any of it; or
(e) possesses the drug with the intention of selling any of it.
In its opening at the commencement of the trial the Crown referred to those parts of s 602 that relate to:
a) A person preparing the drug for supply with the intention of selling any of it, or believing that anyone else intends to sell any of it;
b) A person guarding or concealing the drug with the intention of selling any of it or helping someone ls to sell any of it; and
c) A person possessing the drug with the intention of selling any of it.
The Crown also relied upon the provision of s 604(1) of the Criminal Code to prove that the accused had the requisite intention or belief about the sale of the cannabis. That section provides:
604 Trafficking offence—presumption if trafficable quantity possessed etc
(1) If, in a prosecution for an offence against section 603, it is proved that the defendant—
(a) prepared a trafficable quantity of a controlled drug for supply;
or
(b) transported a trafficable quantity of a controlled drug; or
(c) guarded or concealed a trafficable quantity of a controlled drug; or
(d) possessed a trafficable quantity of a controlled drug;
it is presumed, unless the contrary is proved, that the defendant had the intention or belief about the sale of the drug required for the offence.
Note A defendant bears a legal burden of proving that the defendant did not have the intention or belief mentioned in this subsection (see s 59 (c)).
The charge of cultivating a trafficable quantity of cannabis plants with the intention of selling any of the plants or their products, or believing that someone else intended to sell any of the plants or their products, is a charge under s 616(5) of the Criminal Code. A trafficable quantity of cannabis plants is 10: s 6 and Schedule 2 of the Criminal Code Regulation.
The Crown again relied upon a deeming provision in the Criminal Code to establish that the accused had the intention or belief required for the offence under s 616. Section 617 of the Criminal Code provides:
617 Cultivating offence—presumption if trafficable quantity cultivated
If, in a prosecution for an offence against section 616 (Cultivating controlled plant for selling), it is proved that the defendant cultivated a trafficable quantity of a controlled plant, it is presumed, unless the contrary is proved, that the defendant had the intention or belief about the sale of the plant or its products required for the offence.
A person cultivates a plant if the person engages in its cultivation, exercises control or direction over its cultivation or provides or arranges finance for its cultivation: s 615. Cultivation of a plant includes:
a) Planting a seed, seedling or cutting of the plant or transplanting the plant; or
b) Nurturing, growing or tending the plant; or
c) Guarding or concealing the plant; or
d) Harvesting the plant (see s 615).
General principles
In a criminal trial the ultimate onus of proving the guilt of the accused falls on the Crown. The Crown must prove each of the elements of each offence to the standard of beyond reasonable doubt. There is one exception to this principle with regard to the present charges. With regard to the charge of trafficking in a trafficable quantity of cannabis, if the Crown proves beyond reasonable doubt that the accused intentionally possessed, guarded or concealed the cannabis, and that the cannabis so possessed, guarded or concealed exceeds the trafficable quantity, it is presumed that he did so with the intention or belief required for the offence unless the accused establishes that it is more probably than not that he did not have that intention or belief. The evidence that may satisfy this onus cast on the accused may come from evidence given by the accused, or any other evidence in the trial, including Crown evidence.
Similarly, with regard to the charge of cultivating a trafficable quantity of cannabis plants, there is an exception to the principle referred to above where the Crown proves beyond reasonable doubt that the accused intentionally cultivated the plants in question, and that the number of plants so cultivated exceeded the trafficable number. It is presumed that he did so with the intention or belief required to establish the offence, unless he proves that that it is more probably than not that he did not have that intention or belief.
To the extent that the Crown case relies upon circumstantial evidence, I am not to draw an inference contrary to the accused from such evidence unless it is the only reasonable or rational inference that can be drawn from the evidence.
The witness, Cynthia Rakic, gave evidence from a remote witness room. I remind myself that the taking of evidence in this manner is an ordinary procedure, permitted by the laws of the ACT, and that no inference contrary to the accused is to be drawn from the fact that the evidence was given in this way. Ms Rakic had a support person with her on 28 February 2017 and 1 March 2017. Similarly, I remind myself that the presence of a support person in this manner is an ordinary procedure, permitted by the laws of the ACT, and that no inference contrary to the accused is to be drawn from this.
There was evidence to suggest that it may reasonably be supposed that Mr Chavasse and Ms Rakic were criminally concerned in the events that give rise to the charges against the accused. Pursuant to s 165 of the Evidence Act I warn myself that their evidence may be unreliable because they may have a motive or motives to shift blame onto the accused. I warn myself of the need for caution in determining whether to accept their evidence and the weight to be given to it.
Consideration
I make it clear that there are some aspects of the evidence upon which I place no weight in determining whether the accused is guilty of the 2 charges he faces. These aspects are:
(a) The allegation that he engaged in domestic violence towards Cynthia Rakic; and
(b) The contents of intelligence reports referred to by Constable Schultz.
I also make it clear that this was not a case where I was materially assisted in determining the credibility of the accused by his presentation in Court.
I am satisfied beyond reasonable doubt of the following facts:
(a) Cynthia Rakic and the accused were in a relationship from mid-2014 until 4 January 2015;
(b) during the period from November or December 2014 until 4 January 2015 they resided at the accused’s premises at 25 Dooland Court Nicholls ACT;
(c) during the period that the accused and Ms Rakic resided together, Ms Rakic retained ownership of a property of [redacted] Gordon ACT where she lived prior to moving in with accused, although she gave the keys of that property to the accused for the purpose of him arranging for the property to be let;
(d) on 4 January 2015 Ms Rakic attended the City Police Station and made a domestic violence complaint against the accused. In the process of making that complaint she also alleged that the accused was cultivating cannabis in his garage at his residence in Nicholls;
(e) on 5 January 2015 Constable Schultz and other police attempted to locate the accused at his home in Nicholls, at his workplace and at Ms Rakic’s property in Gordon. While at the accused’s property in Nicholls police were able to hear a humming noise emanating from the garage, which was similar to the sound of a fan operating;
(f) the accused attended Gungahlin Police Station on 5 January 2015 where he was arrested for alleged domestic violence offences;
(g) on the evening of 5 January 2015 police obtained a search warrant from a Magistrate authorising them to search the accused’s home;
(h) at about 11 pm on 5 January 2015 police attended the accused’s home and executed the search warrant. The search continued into the following day. During the search police located cannabis plants being artificially cultivated in the garage, and also located quantities of dried cannabis in the garage and in the roof cavity of the house;
(i) inside the garage police located a total of 44 cannabis plants, ranging from seedlings to mature plants. There were photographs found of the accused in the manhole to the roof cavity;
(j) loose cannabis was also found in the main bedroom and in the garage;
(k) the quantity of loose cannabis located exceeded the trafficable quantity;
(l) the cultivation equipment located in the garage was purchased using the accused’s credit card;
(m) the accused’s fingerprints were found on items of cultivation equipment found in the garage;
(n) a South Pacific Hydroponics catalogue was located in the premises;
(o) the accused’s computer which was seized in the search of his house was found to have images of growing plants in a password protected account in the accused’s name;
(p) during the search of the accused’s home they located a list of chores for Cynthia Rakic to complete, including “tape up floor” and “plug in water pump and heater”. The list was written by the accused;
(q) there was a record of text messages between the accused’s mobile phone and that of Ms Rakic strongly suggestive of cultivation of some sort occurring with the accused’s knowledge of his premises; and
(r) that when spoken to by police before the execution of the search warrant the accused asked questions suggestive of him knowing that there were cannabis plants at his premises.
321. The evidence of Cynthia Rakic is direct evidence that the accused was cultivating cannabis at his home. The evidence of Ms Rakic is significantly supported by the other evidence, including that of Mr Chavasse. Despite the warning that I have given myself about Ms Rakic’s evidence, I accept her evidence as truthful. I similarly accept the evidence of Mr Chavasse. There is no evidence to support the accused’s assertion that there may have been collusion between Ms Rakic and Mr Chavasse.
322. I also reject any assertion that there may have been collusion between Ms Rakic and Peter Theune or Mark Elworthy, or some form of conspiracy between two or more of them to falsely implicate the accused in these offences.
I do not accept the evidence of the accused that he had no knowledge of, or involvement in, the cultivation of cannabis in his garage for two reasons. First, there is the strength of the Crown case. Secondly, I find it inherently incredible that the accused would have transported the cultivation equipment to his house from Ms Rakic’s house in Gordon as he said he did. The accused testified that he wanted to distance himself from what he said was Ms Rakic’s cultivation of cannabis at her house in Gordon. He said he was concerned about the implications for himself and his children, presumably if Ms Rakic’s cultivation was discovered. The accused, however, had no proprietary interest in the house in Gordon. His only connection to that house was via his relationship with Ms Rakic. It is incredible that the accused supposedly sought to distance himself from that cultivation by removing the cultivation equipment to his own home. Discovery of cannabis cultivation at Ms Rakic’s premises would lead the police directly to the accused’s home, as she was residing there with him. It is difficult to think of an action more likely to implicate the accused in the cultivation of cannabis at the Gordon premises than removing the cultivation apparatus to his house in Nicholls. The accused’s explanation for the list of chores which he wrote for Ms Rakic, and which strongly suggests knowledge by him of the presence of the cannabis plants, is not credible. The accused said that Mr Rakic insisted on some of the items being placed on the list. In circumstances where he says Ms Rakic had threatened to set him up regarding the cultivation of cannabis, and he was concerned to distance himself from any allegation of involvement with cannabis cultivation, it is simply incredible that he would have included the incriminating items on the list of chores simply because Ms Rakic told him to do so.
It was an issue during the trial whether power was connected to the garage at the accused’s residence in early January 2015. On the evidence of Ms Rakic, supported by the observations of police about hearing a fan or fans operating in the garage on 5 January 2015 I am satisfied that there was power connected to the garage.
I should also make it clear that I am satisfied that Ms Rakic was not involved in the cultivation of cannabis at her property in Gordon. I accept that for a time cannabis was being cultivated there, but I am satisfied that it was the accused cultivating it. The evidence of Ms Rakic that she was not involved in that cultivation is strongly supported by her text messages to the accused when she discovered the plants in her house. I accept the evidence of Ms Rakic that she gave effective control over the property at Gordon to the accused for the purpose of maintaining and letting it.
Much of the evidence, aside from that of Ms Rakic and Mr Chavasse, was circumstantial. The weight to be attributed to circumstantial evidence is not to be determined by weighing each piece of evidence separately; it is to be ascertained by considering the evidence as a whole.
When all of the evidence is considered, it overwhelmingly establishes that the accused was cultivating more than the trafficable quantity of cannabis plants in his garage as alleged by the Crown. There is no evidence to displace the presumption that he did so with the intention of selling all or part of the crop. The fact that the accused had such an intention is supported by the evidence of the cost of the set-up, limited as the evidence was.
I should also make it clear that I do not accept the suggestion that Ms Rakic, without the knowledge of the accused, took possession of his mobile phone, sent messages from it to her phone and vice versa, and then deleted those messages from the accused’s phone. One has only to consider the period over which the messaging occurred to conclude that this is simply not credible.
I am satisfied beyond reasonable doubt that the accused on 5 January 2015 cultivated a trafficable quantity of cannabis plants at his house in Nicholls and that he did so with the intention of selling the plants or their products, or believing that someone else intended to sell the plants or their products.
The loose cannabis found at the accused’s premises is the basis of the charge of trafficking in a trafficable quantity of cannabis on 5 January 2015. Ms Rakic denied any involvement in, or ownership of, the cannabis found at the accused’s home. I accept her evidence. I have already found that the accused was cultivating cannabis at his home on 5 January 2015. On the evidence, I am satisfied that he had been cultivating cannabis for some time prior to that date. The only reasonable or rational inference is that the loose cannabis located at his home belonged to, and was in the possession of, the accused, and was the product of his cultivation. I am satisfied that the accused was in possession of more than the trafficable quantity of cannabis, and there has been no evidence to displace the statutory presumption that he did so with the intention of selling it. I therefore also find this offence proved.
| I certify that the preceding three hundred and thirty-six [336] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Burns. Associate: Date: 27 April 2018 |
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