R v Ursida (No 2)
[2016] SADC 71
•30 June 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v URSIDA (No 2)
Criminal Trial by Judge Alone
[2016] SADC 71
Reasons for the Verdicts of Her Honour Judge S David
30 June 2016
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION
Accused found guilty of five counts of trafficking in a controlled drug, one count of trafficking in a commercial quantity of a controlled drug and two counts of cultivating controlled plants for sale.
Controlled Substances Act 1989 (SA) ss 32(2), 32(3), 33B(3); Evidence Act 1929 (SA) s 34P(2)(a)(b), referred to.
R v Soteriou (2003) 118 SASR 119; R v GNN (2000) 78 SASR 293, considered.
R v URSIDA (No 2)
[2016] SADC 71
The accused was arraigned on the following Information:
First Count
Statement of Offence
Trafficking in a Controlled Drug. (Section 32(3) of the Controlled Substances Act 1984).
Particulars of Offence
Antonio Ursida on the 25th day of July 2014 at Ottoway, trafficked in a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact the substance was a controlled drug.
Second Count
Statement of Offence
Trafficking in a Controlled Drug. (Ibid).
Particulars of Offence
Antonio Ursida on the 25th day of July 2014 at Ottoway, trafficked in a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact the substance was a controlled drug.
Third Count
Statement of Offence
Trafficking in a Controlled Drug. (Ibid).
Particulars of Offence
Antonio Ursida on the 25th day of July 2014 at Ottoway, trafficked in a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact the substance was a controlled drug.
Fourth Count
Statement of Offence
Trafficking in a Controlled Drug. (Ibid).
Particulars of Offence
Antonio Ursida on the 25th day of July 2014 at Ottoway, trafficked in a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact the substance was a controlled drug.
Fifth Count
Statement of Offence
Trafficking in a Controlled Drug. (Ibid).
Particulars of Offence
Antonio Ursida on the 25th day of July 2014 at Ottoway, trafficked in a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact the substance was a controlled drug.
Sixth Count
Statement of Offence
Trafficking in a Commercial Quantity of a Controlled Drug. (Section 32(2) of the Controlled Substances Act 1984).
Particulars of Offence
Antonio Ursida on the 25th day of July 2014 at Ottoway, trafficked in a commercial quantity of a controlled drug, namely cannabis, knowing or being reckless as to the fact the substance was a controlled drug.
Seventh Count
Statement of Offence
Cultivating Controlled Plants for Sale. (Section 33B(3) of the Controlled Substances Act 1984).
Particulars of Offence
Antonio Ursida between the 24th day of June and the 26th day of July 2014 at Ottoway, cultivated controlled plants, namely cannabis plants, intending to sell any of them or their products or believing that another person intended to sell any of them or their products, and knowing or being reckless as to the fact they were controlled plants.
Eighth Count
Statement of Offence
Cultivating Controlled Plants for Sale. (Ibid).
Particulars of Offence
Antonio Ursida between the 24th day of June and the 26th day of July 2014 at Ottoway, cultivated controlled plants, namely cannabis plants, intending to sell any of them or their products or believing that another person intended to sell any of them or their products, and knowing or being reckless as to the fact they were controlled plants.
Ninth Count
Statement of Offence
Unlawful Possession. (Section 41(1) of the Summary Offences Act, 1953).
Particulars of Offence
Antonio Ursida on the 25th day of July 2014 at Ottoway, had in his possession $17,800 which, either at the time of such possession or at a subsequent time before the making of this complaint in respect of such possession, was reasonably, suspected of having been obtained by unlawful means.
The pleas
The accused pleaded not guilty to all counts. At his election, I heard the trial of counts 1 to 8 without a jury. I now publish my reasons for the verdicts I am about to deliver.
Brief overview of the prosecution case
On 25 July 2014, police attended at the accused’s home address of 20 Ina Avenue, Ottoway. The police searched the house under the authority of a general search warrant and located $17,800 cash in the main bedroom behind a loose section of skirting board. The cash was packaged within four individual bags each of which was vacuum sealed (count 9).
Police observed a connection between 20 Ina Avenue and the next door unit 3/22 Ina Avenue (‘the unit’). In the lounge room of 20 Ina Avenue, there was a television monitor which displayed live images from a security camera positioned at the front of the unit. There was also a water pipe which ran from the roof of the unit into a rain water tank behind the shed of 20 Ina Avenue.
Police searched the unit under the authority of a general search warrant.
In the kitchen, in a fridge, police located a safe which contained a small plastic tub of 6.56g of a crystalline substance with 4.11g of methylamphetamine (count 1). On a shelf of the fridge, there were three small press seal bags and another small plastic tub, which contained a total of 1.7g with 1.21g of methylamphetamine (count 2).
In the oven, in a safe, police found nine small plastic tubs with a total of 187.6g of substance with 119.6 of methylamphetamine (count 3). In the same safe, there was a plastic bottle which contained 189.4 grams of liquid with 155g of methylamphetamine oil (count 4).
On a shelf in a kitchen cupboard, police found a small plastic tub which contained nine small press seal bags, each of which contained a white substance and a tub which also contained a white substance. The 10 items contained 4.28g of powder with 2.7g of methylamphetamine (count 5).
In the unit, there were three bedrooms which had been converted for use as cannabis grow rooms. In ‘grow room 3’, police found a plastic bag, inside of which were four plastic shopping bags. There was a total quantity of 1.559kg of female cannabis in the four bags (count 6). In ‘grow room 1’, there were two cannabis plants. In ‘grow room 2’, there were four cannabis plants. Those six plants combined are the subject of count 7.
Along the outside boundary fence of the unit, police located a gate which led to the rear of 91 Rosewater Terrace, Ottoway. The police searched this premises under the authority of a general search warrant. On the property was a shipping container which bore the name of TFU Transport, a business associated with the accused. There were a number of transportable buildings on the property. One of the buildings had a sign on the front labelled ‘Office’, inside which the police found two rooms converted for use as cannabis grow rooms. One room contained four cannabis plants and the second room contained four smaller cannabis plants or seedlings. The eight cannabis plants are the subject of count 8.
The accused was arrested and charged with drug trafficking offences by police.
Pre-trial applications
Search
There was an application to exclude the evidence obtained from the police searches of the unit and 91 Rosewater Terrace. I declined to exclude the evidence. I have provided a separate ruling for that decision.
Accused’s previous convictions for drug trafficking
In a Discreditable Conduct Notice filed on 2 June 2015, the prosecution sought to lead evidence of the accused’s prior convictions for two counts of Trafficking in a Controlled Drug. It was argued that the convictions were admissible as evidence of the accused’s involvement in a long term, ongoing business of selling drugs and in proof of the accused’s tendency or propensity to sell drugs as part of that business. The evidence was said to be permissible under s 34P(2)(b) of the Evidence Act 1929 (SA) as being of substantive probative value in proof of the accused’s possession of the drugs and an intention to sell those drugs. The specific evidence sought to be led by the prosecution was as follows:[1]
· Mr Ursida pleaded guilty to two counts of Trafficking in a Controlled Drug.
· On 17 May 2011, police attended at 20 Ina Avenue.
· They located a plastic tub containing powder weighing 8.41g with 3.34g of methylamphetamine (count 1).
· Police found another tub containing powder weighing 8.82g with 4.91g of methylamphetamine (count 2).
· Mobile telephones and some paperwork were discovered which appear to suggest trafficking in methylamphetamine.
· There were other indicia of sale such as large quantities of plastic bags, digital scales and the drugs.
· Mr Ursida was sentenced on the basis that he used it himself but he had for a period of time, sold some to friends to defray the cost. It is likely this would have happened with the drugs located.
· Clean urine tests were provided on 31 August 2012, 31 October 2012 and 26 February 2013. Mr Ursida received a sentence of three years imprisonment and a non-parole period of 18 months suspended.
[1] Agreed Facts at T 308-309.
The following facts were also put before the Court during argument.[2] Mr Ursida was charged on 17 May 2011 and bailed to live at 20 Ina Avenue, Ottoway. Mr Ursida entered guilty pleas to the charges in May 2013. Between 17 May 2011 and May 2012, Mr Ursida was living at 20 Ina Avenue, but on occasion working in Melbourne and Ballarat. He was sentenced on 24 June 2013 and entered into a suspended sentence bond. In July 2013, he commenced working in Ballarat four days a week and residing at an address in Ballarat. When he was in Adelaide, he lived at 20 Ina Avenue. He was arrested for the offending the subject of the current charges on 25 July 2014 and was bailed to an address in West Lakes.
[2] Agreed chronology T 309.
I excluded the evidence of the accused’s previous convictions (and associated agreed facts). In my view, the evidence was too remote in time to have the strong probative value as required pursuant to s 34P(2)(b) of the Evidence Act.
Severance (count 9)
Counsel for the accused also sought severance of the charge of unlawful possession (count 9) from the other counts on the Information pursuant to s. 278(2) of the Criminal Law Consolidation Act, 1935 (SA). Counsel submitted that the issue in dispute in respect of the trafficking offences was one of possession. In defending the charge of unlawful possession, the accused bore the onus to establish that the money was lawfully possessed. It was argued that in those circumstances, the accused is effectively required to give evidence to defend a summary charge yet in doing so exposes himself to cross examination on what are very serious major indictable offences. In that way, the accused is said to be ‘prejudiced or embarrassed in his defence’.
The prosecution argued that the charge of unlawful possession arises fairly on the evidence and is properly joined on the Information and while there is a forensic disadvantage to the accused on the issue of his election to give evidence, there is insufficient prejudice or embarrassment to the accused to justify severance of the charge.
I exercised my discretion to sever count 9 from the remainder of the charges on the Information. In my view, the accused is prejudiced or embarrassed in his defence by the joinder of count 9 to the other charges. However, the prosecution was still permitted to lead the evidence of the cash located at the accused’s home on the trial of counts 1 to 8. There was no objection by defence counsel to that evidence being led at the trial.
Elements of the Offence
As set out above, the accused is charged with the offence of Trafficking in a Controlled Drug in respect of counts 1 to 5, Trafficking in a Commercial Quantity of a Controlled Drug in respect of count 6 and Cultivating Controlled Plants for Sale in respect of counts 7 and 8. I have directed myself on the elements of the relevant offences.
Trafficking in a Controlled Drug – counts 1-5
The offence of Trafficking in a Controlled Drug contains three elements each of which must be proved by the prosecution beyond reasonable doubt. There is a qualification to this as far as the second element is concerned, which is explained below.
First, it must be proved that the substance that the accused had in his possession, or dealt with was a controlled drug. In this case, there is no contest and the evidence clearly establishes that the substances found by the police (the subject of counts 1 to 5) contained methylamphetamine, a substance declared to be a controlled drug by regulations made pursuant to the Controlled Substances Act 1984 (SA) (CSA).
Second, it must be proved that the accused trafficked in some or all of the methylamphetamine. To ‘traffick’ in a controlled drug includes having possession of the drug intending to sell it.[3]
[3] Controlled Substances Act 1984 (SA) s 4(1).
There are two aspects to this element of trafficking. First the Prosecution must prove that the accused was in possession of the methylamphetamine the subject of each of the charges. Second, the Prosecution must prove he had an intention to sell some or all of it. A traffickable quantity of methylamphetamine is two grams. In respect of counts 1, 3 and 5, given the quantity of the drug located, if the accused is found to have been in possession of the drug, he is deemed by operation of law to have had possession with an intention to sell unless he is able to establish on the balance of probabilities that he had no such intention.
The third element to be proved by the prosecution is that the accused knew that the substance was methylamphetamine or at least a controlled drug.
Trafficking in a Commercial Quantity of a Controlled Drug – count 6
The offence of Trafficking in a Commercial Quantity of Controlled Drug contains four elements each of which must be proved by the Prosecution beyond reasonable doubt. There is a qualification to this as far as the second element is concerned, which is again explained below.
First, it must be proved that the substance that the accused had in his possession or dealt with was a controlled drug. In this case, there is no contest and the evidence clearly establishes that the substances found by the police were cannabis, a substance declared to be a controlled drug by regulation made pursuant to the CSA.
Second, it must be proved that the accused trafficked the cannabis. Again, to ‘traffick’ in a controlled drug includes possession of the drug intending to sell it. There are two aspects to this element of trafficking. First, the Prosecution must prove that the accused was in possession of the cannabis the subject of count 6. Second, if he was in possession of the cannabis, the Prosecution must prove he had an intention to sell the cannabis. A traffickable quantity of cannabis is 250 grams. The cannabis the subject of count 6 weighed 1.559kg. Therefore, if the accused is found to have been in possession of the drug, he is deemed by operation of law to have had an intention to sell the cannabis unless he is able to establish on the balance of probabilities that he had no such intention.
The third element to be proved by the Prosecution is that the accused knew that the substance concerned was cannabis or at least a controlled drug.
Fourth, the Prosecution must prove beyond reasonable doubt that the amount of cannabis found by police was a commercial quantity and the accused knew he was in possession of a commercial quantity of the drug. A commercial quantity of cannabis is declared as one kilogram by regulation made pursuant to the CSA. The Prosecution must prove the accused knew that he was in possession of one kilogram of cannabis or more.
Cultivating Controlled Plants for Sale – counts 7 & 8
To prove an offence of Cultivating Controlled Plants for Sale, the Prosecution must prove the following four elements beyond reasonable doubt.
First, the plants to which the charge relates are controlled plants. In this case there is no contest and the evidence clearly establishes that the plants found by the police were cannabis, a plant declared to be a controlled plant by regulation made pursuant to the CSA.
Second, the accused cultivated those plants. The CSA states that a person cultivates cannabis if he performs any of the following acts: plants a seed, seedling or cutting of the plant or transplants the plant from one location to another; grows, nurtures or tends to a plant; harvests the plant; dries the harvested plant or part of the plant; or takes part in the process of cultivation of the plant.
Third, the accused knew that the plants were cannabis plants or at least knew they were plants prohibited by law.
Fourth, the accused intended to sell the plants or their products, or any of the product or believed that another person intended to sell the plants, or any of the plants or their products.
Possession
Before I leave the elements of the offences, I direct myself on the legal concept of possession. The main issue in this trial was whether the Prosecution has proved beyond reasonable doubt that the accused was in sole or joint possession of the methylamphetamine or cannabis plant, the subject of each charge.
A person is in possession of an item if he has physical custody or control of the item, knowledge that the item is in his custody or control and an intention to control the item. Control of an item includes the power or ability to dispose of the item and to do so without reference to any other person with whom he is not in joint possession of the item.
A person is not to be regarded as being in possession of an item unless he knows of its existence. However, a person’s knowledge of the presence of an item alone is not enough to establish possession. A person must also have physical control over the item and an intention to control or exercise control over it to the exclusion of all others save those with whom he is in joint possession of the item.
Whether or not someone is in possession of an item is a matter of inference to be drawn from all the circumstances. I need to be satisfied beyond reasonable doubt that it is not only an inference available on the facts, but that it is the only rational inference such that there is no other reasonable possibility consistent with innocence available on the evidence, before I could convict the accused on any of the charges.
Circumstantial Evidence
The Prosecution case in relation to each count depends upon circumstantial evidence, therefore it is necessary to consider the weight which is to be given to the combination of circumstances relied upon by the Prosecution in respect of each count. The Prosecution must prove in relation to each count that the inference or inferences to be drawn from the combination of circumstances relied upon, is the only rational inference open on the evidence. If there exists a reasonable or rational hypothesis consistent with innocence in relation to the proof of a particular offence the Prosecution will not have proven its case.
I turn to the evidence led in support of the charges in more detail.
Prosecution evidence
The Police attended at 20 Ina Avenue, Ottoway on 25 July 2014. The declarations of Detective Sergeant Michael Vanderwoude[4] and Detective Sergeant Mark Hanssen[5] were tendered without objection and detailed the search of this premises, the unit and 91 Rosewater Terrace.
[4] Dated 20 October 2014, P 24.
[5] Dated 25 September 2014, P 25.
Police first attended at 20 Ina Ave, a premises which had a large front fence and electrical gate. The accused opened the front gate, and was informed by police that they intended to search his property under the authority of a general search warrant. The accused led the police officers onto the property. Numerous police officers searched the property.
During a search of the rear yard, Detective Vanderwoude observed that a pipe ran from the roof of the unit into a rain water tank behind the shed of number 20 Ina Avenue. Detective Vanderwoude also observed a security camera at the front of the unit which faced north along the driveway. The camera was monitored from the lounge room of 20 Ina Avenue, Ottoway.
While standing on the property of 20 Ina Avenue, Detective Vanderwoude looked into an enclosed carport through a gap in the structure and observed items associated with hydroponic cannabis cultivation. The carport was attached to the unit.
Detective Vanderwoude described the premises as sparsely furnished. There were three bedrooms, two of which contained cannabis being grown hydroponically. A third bedroom contained hydroponic items associated with cannabis cultivation and a shopping bag which contained four shopping bags of cannabis.
Detective Hanssen was responsible for the search of 91 Rosewater Terrace, Ottoway. Keys to the buildings and sheds on this property were obtained from the accused. A key which provided access to a shipping container (remodelled inside as an office) was kept on a shelf in the kitchen at 20 Ina Avenue. Other keys which opened other buildings on the premises were kept in the office at 20 Ina Avenue.
Detective Hanssen searched one of the buildings which had a sign on it saying ‘Office’.[6] He unlocked two padlocks to a store room at the rear of this building. Inside the storeroom were large, black plastic barrels containing liquid, along with hosing and ducting leading into the building. There were also bags of clay balls and containers of nutrients commonly used in hydroponic cannabis cultivation. In particular, Detective Hanssen noted black garden hosing with two orange stripes which was identical to the hosing he saw in the enclosed carport at the unit.[7]
[6] A different building from the shipping container which was in fact used as an Office.
[7] P 25, page 5, para 1; and compare P4, photos 3, 34-36 with P5 photo 38.
He used the keys obtained from the accused to unlock the screen and main doors to the building. There was a kitchen area and three rooms. Two rooms were set up with hydroponic equipment to grow cannabis. One room had four cannabis seedlings growing under hydroponic conditions and the second room had four cannabis plants growing hydroponically. The third room was an ante room containing carbon filters and other assorted hydroponic equipment.
Detective Hanssen also searched the shipping container on the property which appeared to be used as a business office. It contained filing cabinets and business records. He located business cards for Ursida Transport Proprietary Limited in the name of Tony Ursida (Manager/Director) and Patrick Bafterovski (Freight Manager).
Senior Constable Allanson was the nominated exhibits officer for each of the three properties. He gave evidence at the trial of items seized from each property.
20 Ina Avenue
Photographs[8] and a scene video[9] were taken of 20 Ina Avenue. In the main bedroom of the premises, police located a total of $17,800 cash which had been packaged in four vacuum sealed bags. The money was located behind a kick board in the main bedroom. The first bag contained $6,600, the second bag $8,450, the third bag $750 and the fourth bag $2,000.[10] Each bundle of cash was heated sealed in two bags or ‘double bagged’.[11]
[8] P3.
[9] Tendered as P 11.
[10] T 361-362.
[11] T 362.
In the lounge room, police located a TV monitor which displayed images from a security camera located at the front of the unit.
In the study in a filing cabinet, police located three manila folders containing a collection of documents.[12] One manila folder was labelled ‘Unit 3, Dylan Johnson’. Inside this folder was a Residential Tenancy Agreement between Antonio Ursida and Dylan Johnson for unit 3/22 Ina Avenue, Ottoway for the period between 5 June 2013 and 4 June 2014. There was also a piece of paper with the purported particulars for Dylan Johnson, and a receipt for the payment of a lodgement of a bond in the name of Dylan Johnson.[13]
[12] AU3, shown in P3, photos 5-7A.
[13] P13.
The second manila folder was labelled ‘91 Rosewater Terrace’, inside which was a Residential Tenancy Agreement between Francesco Ursida and Allan White for 91 Rosewater Terrace, Ottoway for the period between 11 September 2010 and 10 September 2011.[14]
[14] P14.
It was an agreed fact that no hydrochloric acid (commonly used to extract or ‘salt’ methylamphetamine in the last stage of the chemical process) was located at 20 Ina Avenue on 25 July 2014.[15] It was also an agreed fact that no firearm was located at 20 Ina Avenue on 25 July 2014.[16]
[15] T 503, AF 22.
[16] T 503, AF 23.
Police again attended at 20 Ina Avenue on 16 September 2013 and searched the property. No drugs or drug paraphernalia was located during that search.[17]
[17] AF 29, T 504.
3/22 Ina Avenue (‘the unit’)
Mr Allanson then attended at the unit. He said it was clear to him that it was almost abandoned. There was no clothing, bedding or personal effects found in the unit.[18]
[18] T 365.
Photographs were taken of the unit[19] and of the items seized from the unit.[20]
[19] P4.
[20] P6.
Police searched the kitchen. Inside a safe in the fridge in the kitchen, police found a tub containing 6.56 grams of crystalline powder with 4.11 grams of methylamphetamine (count 1).[21] On the top shelf of the same fridge, police found three press seal bags and a plastic tub containing a total of 1.7 grams of crystalline powder with 1.21 grams of methylamphetamine (count 2).[22]
[21] P4, photos 40-41; T 377-378.
[22] P4, photos 59-60, T 371.
Inside an oven within the same kitchen, police located a safe inside which were nine small plastic tubs, containing a total of 119.6 grams of methylamphetamine (count 3). [23] Each of the nine tubs had a number written on the lid which is said on the Prosecution case to correlate with a quantity of about 3.5g (or an ‘8-ball’), a common quantity at which methylamphetamine is sold (although not the amount of substance in each respective container).
[23] P4, photos 41-58.
Inside the same safe, police located a drink bottle with 189.4 grams of liquid containing 155g of methylamphetamine (count 4).[24]
[24] P 4, photos 40, 42; T 377.
Inside a kitchen cupboard, police located two small plastic tubs and a third container with dimethyl sulfone. One of the tubs contained nine small press seal bags each with methylamphetamine. The other tub also contained methylamphetamine. The ten quantities taken from the nine press seal bags and plastic tub had 4.28g with 2.7g methylamphetamine (count 5).[25]
[25] P 4, photo 7; T 371, 386 & P 6, photos 3-6.
Inside the same kitchen cupboard police located a Hungry Jack’s bag inside which were several rounds of ammunition. There was also a red coloured box inside the cupboard which also contained ammunition.[26]
[26] P 4, photos 7, 81-82; T 367-368.
Police searched underneath the kitchen sink and located a heat sealer, along with a bag containing unused heat seal bags.[27] In another kitchen cupboard police located five more heat seal bags, two of which had been used and three unused.[28] Police also located a kettle in the kitchen containing a large amount of plastic resealable bags.[29]
[27] P 4, photos 12-14; T 372.
[28] P 4, photo 76; T 383.
[29] P6, photo 7; T 386.
In another cupboard in the kitchen police located a plastic container labelled ‘whey protein’ in which there was also a small quantity of cannabis not the subject of any charge.[30]
[30] P 4, photos 66-68; T 372.
In an open cupboard located in the laundry police located a transformer, and a quantity of cannabis in a heat sealed bag, also not the subject of any charge.[31]
[31] P 6, photos 10-11; T 372, 387.
Police searched other rooms in the house and located three rooms associated with the cultivation of cannabis. One room was being used a storage room and there was equipment such as light shades and lighting attached to the roof. Inside this room, police located a green garbage bag that contained four shopping bags each of which contained cannabis. The bags contained 434g, 261g, 434g and 430g respectively (count 6).[32] Police also located a ‘buzz tripper’ which is commonly used for removing cannabis buds from the plants.[33]
[32] P 6, photos 44-55; T 388-391.
[33] P 6, photos 40-41; T 389.
In a room referred to as ‘grow room number 1’, police found two cannabis plants and a large quantity of equipment for use in a hydroponic cultivation set up. There were light shades, light globes and numerous buzz boxes or transformers.[34] In another room referred to as ‘grow room number 2’ police located four cannabis plants.[35] The six plants appeared healthy and immature with no flowering visible. They were too small or immature to estimate a potential yield.[36] The total six plants were seized along with the hydroponic equipment (count 7).
[34] P 4, photos 19-23; T 373.
[35] P 4, photos 24-27; T 373-374.
[36] P27, statement of Tanya McKew, p 3.
In the roof space, police located carbon filters which can be used in the hydroponic cultivation of cannabis.[37]
[37] T 388.
In the carport of the unit, police located air conditioning units, silver ducting and hosing. Senior Constable Allanson gave evidence that he was advised by Detective Hanssen that the hosing was ‘quite unique’.[38]
[38] P4, photos 34, 35 and 36; T 376.
Police located documents relating to a purported tenant Dylan Johnson in the kitchen drawers next to the fridge, including a rent receipt dated 5 June 2013, AGL gas accounts, origin electricity accounts and receipts. [39]
[39] P15 and shown in P 3, photos 61-64; T 380.
It is an agreed fact that during the search of the unit, a police officer Golder returned to 20 Ina Avenue and asked the accused if he had the combination for one of the safes. The accused replied ‘why would I? It is a rental property’.[40]
[40] AF 26, T 504.
On 16 September 2015, police again searched the unit and no drugs or drug paraphernalia were located.[41]
[41] AF, T 504.
In cross–examination, Senior Constable Allanson agreed that the two safes found in the fridge and the oven were quite small and perhaps under 10 kilograms. He also agreed they could be transported in and out of the home inside a bag and by one person.[42]
[42] T 414.
91 Rosewater Terrace Ottoway
Police took photographs of 91 Rosewater Terrace[43] and a video of the premises.[44]
[43] P5.
[44] Tendered as P12.
There was a gate that led from the rear yard of the unit to 91 Rosewater Terrace. From the back yard of 91 Rosewater Terrace, there was an access gate that led directly into the rear yard of the accused’s home at 20 Ina Avenue. The gate had a deadlock and required a key.[45] It is an agreed fact that police are unable to say if there was a key to the gate between the properties on 25 July 2014.[46]
[45] P5, photos 2, 6; T392.
[46] AF 18, T 503.
There was a shipping container on the premises used as an office which contained numerous boxes with the words ‘Ursida Transport’ written on them.[47] During the search, no drugs or drug paraphernalia were located in the shipping container at 91 Rosewater Terrace, Ottoway.[48]
[47] P5, photos 20-23; T 393.
[48] AF 24, T 503.
There was another building on the property with a sign on it which read ‘Office’.[49] A mud map was drawn of this building.[50] Inside this building were two rooms. In the first room, there were four cannabis plants and hydroponic equipment.[51] In a second room there were four cannabis plants.[52] The plants in the first room appeared healthy, immature with no flowering visible. They were up to approximately 50 centimetres tall. The estimate that each plant would yield was approximately 50 to 100 grams of dry usable material if harvested as photographed. In respect of the four cannabis plants growing hydroponically the second room, those plants appeared to be approximately 10 centimetres tall and grown from cuttings. They were too small to estimate a potential yield.[53] All eight plants were seized (count 8).
[49] P5, photo 24; T 394.
[50] P10.
[51] P5, photos 29-31; T 394.
[52] P5, photos 32-33; T 394-395.
[53] P27, statement of Tanya McKew, page 3.
In the same building there was a kitchen in which police located an electricity bill in the name of Allan White.[54] In an anteroom or laundry, directly at the rear of the two rooms through which access is gained through a padlocked wooden door, police located large black tubs, an air-conditioning unit with ducting and black hosing. The black hosing was of the same brand and type as that seen in the carport of the unit.[55]
[54] P5, photos 27, 34-36; T 395.
[55] P5, photos 12, 13; T 395.
On 16 September 2015, police re-attended at 91 Rosewater Terrace and again seized rental documents from that premises in the name of Allan White, including a tenancy receipt for the security bond and a residential tenancy agreement identical to that found at the accused’s home at 20 Ina Avenue (P14).[56] No drugs or drug paraphernalia were located at that time.[57]
[56] Tendered as P17.
[57] AF 31, T 504.
Identities of Dylan Johnson and Alan White
The investigating officer, Senior Constable Jason Burner also gave evidence during the trial. As part of the police investigation he made enquiries as to whether Dylan Johnson, apparently associated with the unit and Allan White, apparently associated with 91 Rosewater Terrace, were fictitious identities or real persons.
The Prosecution tendered a table which set out the results of his enquiries.[58]
[58] P22.
In respect of Dylan Johnson, Senior Constable Burner used the details recorded on a piece of paper located in the office area at 20 Ina Avenue, Ottoway including a name, date of birth, address and a drivers licence number for Dylan Johnson.[59]
[59] Part of P13 (manila folder with name of Dylan Johnson).
Consumer and Business Services provided information that in respect of the unit, a bond in the name of Dylan Johnson was lodged with the same address and phone number as recorded on the piece of paper. According to Consumer and Business Services, Dylan Johnson had not been registered as a tenant to any other address. Further, Origin Energy issued bills in the name of Dylan Johnson in respect of the unit.
Subscriber checks on the telephone number recorded on the piece of paper revealed that the telephone subscriber was Vodafone and the number was subscribed to Dylan Johnson. There were no other accounts held with any other telephone subscriber in the name of Dylan Johnson.
There was no record of a Dylan Johnson of the recorded date of birth with the Australian Taxation Office. Nor were there any records found for Dylan Johnson with the recorded date of birth with Births, Deaths and Marriages Australia wide, Centrelink, the Department of Immigration and Border Detection, the Department of Planning, Transport and Infrastructure of South Australia, the Electoral Commission of South Australia, South Australia Police, Medicare, the Australian Federal Police or the Police Departments in each State and Territory.
Senior Constable Burner also requested call charge records for the mobile phone service in the name of Antonio Ursida. For the period of 5 August 2014 and 24 December 2014, (a period after the accused was arrested) no calls were made to the phone number recorded as belonging to Dylan Johnson. While Senior Constable Burner requested the telephone records for the whole period of the rental agreement, the telephone company had not provided them by the time of the trial.
The call charge records for Dylan Johnson during the period between 29 May 2013 and 26 June 2013 (the first month of the connection period) revealed that no calls were made from that service during that period. Nor were any calls made from 25 June to 24 July 2014 (the final month of the connection period). There was no check conducted of the intervening period.
In respect of Allan White, Consumer and Business Services provided information that a bond in the name of Allan White was lodged for the property at 91 Rosewater Terrace for the period between 11 September 2010 and 10 September 2011. Allan White was recorded as having a telephone number of 0434032154. The landlord was recorded as Frank Ursida (the accused’s father) with an address of 20 Ina Avenue, Ottoway.
The electricity account for 91 Rosewater Terrace, Ottoway was held with AGL in the name of Allan White. It revealed a licence number, a date of birth of 1 April 1986 and the same telephone number as recorded with Consumer and Business Services. The account was established on 14 September 2010 with a disconnection on 24 July 2014. This information correlates with the AGL account located in the kitchen at 91 Rosewater Terrace.[60]
[60] P5, photo 34.
The telephone subscriber for the recorded mobile phone number was Optus and it was a pre-paid mobile account in the name of Allan White with the same recorded date of birth and an address of 91 Rosewater Terrace, Ottoway.
There were no records for an Allan White with the recorded birth date at the Australian Taxation Office, Birth, Deaths and Marriages in each State and Territory, Centrelink, the Department of Immigration, the Department of Planning, Transport and Infrastructure, the Electoral Commission, Medicare, the Australian Federal Police and the Police Department in each State and Territory.
Call charge records were obtained for the recorded mobile telephone number for the period from 11 September 2010 until 15 April 2011. There were two calls made from that number to unidentified phones, the first on 13 September 2010 at 4.18pm for 17 seconds and a second call at 4.19pm on the same day for 376 seconds.
Agreed Facts
I turn to the Agreed Facts.
Payment of bills
A number of bills for 20 Ina Avenue and the unit were paid at a number of Australia Post retail outlets. The outlets were equipped with an electronic system that recorded among other things, the type of bills paid and the time, date and method of payment. An examination of the electronic system revealed that on 17 July 2014 at 2:31:06pm, two bills were paid at the Modbury Post Shop. One of the bills was for the Origin Energy account for 20 Ina Avenue in the amount of $223.53, the other bill was for the payment of an AGL account for the unit in the amount of $206.27 (which is part of exhibit P15.) The two bills were paid for in the same transaction. The payment was made by way of cash in the amount of $450 for both transactions with $20.20 given in change. No other bills were paid concurrently.[61]
[61] AF 1, T 500.
Fingerprint Analysis
A number of items were submitted to the Fingerprint Bureau for analysis. One of these items was a police fingerprint form that contained the fingerprint impressions taken from the accused at the Port Adelaide Police Station on 25 July 2014. Other items submitted for fingerprint analysis included a rectangular piece of paper located in a bag containing cash found in the accused’s bedroom at 20 Ina Avenue (as seen in P3 photo 3). One fingerprint impression on the piece of paper was identical to the left ring finger of the accused. A second fingerprint impression was identical to the right index finger of the accused. Fingerprint impressions were found on the outer bag which contained the 40 bags found in the kitchen cupboard at the unit which is P23. Three fingerprint impressions found on this bag were identical to the accused’s left middle finger, right little finger and right ring finger.[62] The accused’s fingerprints were identified towards the ripped end and towards the sealed end of the exterior of the outer long plastic bag.[63]
[62] AF 2, T 500-501.
[63] AF 4, T 501.
It is agreed fact that fingerprints can remain present on an item for many years if the item is not exposed to water.[64]
[64] AF 3, T 501.
An unidentified fingerprint was detected towards the side of the exterior of the large green plastic bag located at the unit (inside which were the shopping bags containing cannabis the subject of count 6).[65]
[65] AF 5, T 501.
Unidentified fingerprints were located on a transformer located in grow room one at 91 Rosewater Terrace.[66] An unidentified fingerprint was located on a light shade located in grow room one at the unit.[67]
[66] AF 6, T 501.
[67] AF 7, T 501.
Examination and comparison of heat sealing bags
The unused heat sealer bags (P23) located in the kitchen of the unit and the bags containing the cash located at 20 Ina Avenue were submitted to the Police Forensic Response Section for analysis. In comparing the bags from 20 Ina Avenue with the unused bags from the unit (P23), it was found that all bags had the same ‘class characteristics’ and all bags were the same size (15cm x 40cm), manufacture (three sealed sides and one open side) and type. All bags were unbranded with one plain side and textured side, all featuring the same textured pattern.[68]
[68] AF 8, T 502.
An examination was conducted to determine if the heat sealer located at the unit produced any of the heat seals on the bags.[69] No correspondence was detected between the seal that the heat sealer would produce and the seal present on the following items: the inside heat seal of the bag containing $6,600 found at 20 Ina Avenue; the outside heat seal of the bag containing $6,600 found at 20 Ina Avenue; the inside heat seal of the bag containing $8,450 found at 20 Ina Avenue; and the inside heat seal of the bag containing $2,000 found at 20 Ina Avenue.[70]
[69] AF 9, T 502.
[70] AF 10, T 502
Correspondence was detected between the seal that the heat sealer would produce and the seal present on the following items: the outside of the heat seal bag containing cannabis found in the laundry at the unit (shown in P6, photos 10-11 and not the subject of a charge); the inside heat seal bag of the heat seal bag containing cannabis found in the laundry at the unit 3/22 Ina Avenue.
Residences and tenancies
Mr Antonio Ursida owned 20 Ina Avenue as at 20 July 2014[71] and all three units at 22 Ina Avenue as of 25 July 2014.[72] Mr Francesco Ursida, the accused’s father, owned the property at 91 Rosewater Terrace, Ottoway as at 21 July 2014. As of at least 30 July 2013, Francesco Ursida lived at 20 Ina Avenue, Ottoway.[73]
[71] AF 12, T 503.
[72] AF 13, T 503.
[73] AF 14, T 503.
Erin Ferguson was a legitimate tenant at the unit in 2008.[74] Jacqueline Hirschausen was a legitimate tenant of the unit in 2009.[75]
[74] AF 15, T 503.
[75] AF 16, T 503.
Between June 2013 and July 2014 the accused was working in Ballarat, Victoria and residing at Lake Wendouree, Ballarat for four days a week. The other three days he resided at 20 Ina Avenue, Ottoway.[76]
[76] AF 17, T 503.
Mr Ursida commenced a tenancy at unit 37/155 Brebner Drive, West Lakes 5021 on 24 July 2014.[77] He was observed to be in the process of moving to that property when police attended to search the property on 25 July 2014.[78] On 16 September 2015, Mr Ursida’s rental property at unit 37/155 Brebner Drive was searched by police. No drugs or drug paraphernalia was located.[79]
[77] AF 27, T 504.
[78] AF 28, T 504.
[79] AF 32, T 504.
It is an Agreed Fact that s 49(6)(a) of the Residential Tenancies Act 1995 requires that a landlord provide a copy of any Residential Tenancy Agreement to the tenant when the tenant signs it.[80]
[80] AF 38, T 505.
Other tenancies
The details of bonds submitted for units 1, 2 and 3 of 22 Ina Avenue[81] and 91 Rosewater Terrace[82] were the subject of agreed facts.
[81] AF 33 – 36, T 504-505.
[82] AF37, T 505.
CCTV Cameras
On 25 July 2014, no CCTV cameras were located at 91 Rosewater Terrace, Ottoway.[83] No CCTV cameras were located at the rear of unit 3/22 Ina Avenue, Ottoway.[84]
DNA Evidence
[83] AF 20, T 503.
[84] AF 21, T 503.
I received evidence from Ms Rebecca Windram from the Forensic Science Centre (‘the FSC’). She is employed in the biology section. The FSC received a reference sample obtained in the name of the accused, along with a number of items submitted for analysis. These items included five plastic tubs which formed part of the nine tubs found in the oven safe (count 3) and two press seal bags found in the plastic tub in the kitchen cupboard (count 5). In respect of those items, very low amounts or no DNA were present on the sample and they were not further examined.[85]
[85] T 448-451.
The plastic tub found in the kitchen cupboard which contained nine press seal bags (count 5) was also submitted for analysis. A mixed DNA profile was extracted from a swab taken from the outer surface of the tub and lid. Ms Windram couldn’t say from which part of the item the DNA was extracted except to say a sample was taken from the outer surface of the tub and lid. There were two contributors to the mixed DNA profile. Two alternative scenarios were considered: the first scenario is that the accused and an unknown individual are the source of the DNA, and the second scenario is that two unknown individuals are the source of the DNA. Ms Windram gave evidence the DNA profile obtained from the plastic tub is greater than 100 billion times more likely to have been obtained if the accused and an unknown individual are the sources of the DNA rather than two unknown individuals.[86]
[86] T 451-452.
Other items were also submitted for analysis including a drink bottle (count 4), a plastic tub, a second plastic tub with a lid (count 3); a resealable plastic bag (count 2); a whey protein tub and lid (uncharged cannabis), and another plastic tub and lid (count 5). For all of the above items, a DNA profile was obtained with an inconclusive number of contributors. Ms Windram said that she was not able to determine how many individuals had contributed DNA to each sample. Consequently, she was unable to proceed with any statistical analysis of each sample.[87]
[87] T 453-455.
The FSC also received a plastic tub and black tape, which had been located in the safe in the oven[88] (count 3). A sample was obtained from the tub and the tape from which DNA was extracted. There was a mixed DNA profile of two contributors. Two alternative scenarios were considered, the first being the accused and an unknown individual are the source of the DNA and the second being two unknown individuals are the source of the DNA. Ms Windram gave evidence that the DNA profile obtained is four times more likely to have been obtained if the accused and an unknown individual are the source of the DNA rather than two unknown individuals.[89] Ms Windram considered this only slight support for the first scenario[90] and extremely weak evidence in support of the second hypothesis.[91] She said that there would be many people in the community who would not be excluded from that profile.[92]
[88] Shown in P4 photo 45.
[89] T 455-456.
[90] T 457.
[91] T 458.
[92] T 458.
In cross examination, Ms Windram agreed that DNA has a reasonably long shelf life.[93] She agreed that if DNA is stored in conditions where it is not exposed to light or heat, DNA can remain on an item for years.[94] Ms Windram agreed that with a mixed profile where there is more than one contributor, one person could have contributed his or her DNA to that item at a time well before another person. DNA does not need to be deposited at the same time.[95]
[93] T 459.
[94] T 459.
[95] T 459.
Ms Windram agreed that there is a phenomenon known as ‘secondary transfer’. If a person wore gloves and handled exhibit A, any DNA deposited on exhibit A could transfer to the person’s gloves. If that person wore the same gloves to handle exhibit B, DNA could transfer from the gloves to exhibit B without the person who deposited the DNA touching exhibit B.[96]
[96] T 461-462.
Ms Windram was shown the scene video of 20 Ina Avenue.[97] She was asked about the possibility of secondary transfer during a scenario depicted in the video. A police officer wearing latex gloves is seen touching a set of keys (belonging to the accused). That policer officer is later shown picking up a plastic tub (relevant to count 5 and on which the accused’s DNA is located) wearing the same gloves. Ms Windram could not exclude as a possibility that DNA from that set of keys was transferred to the tub. However, she noted that the police officer’s gloves had been in contact with numerous other surfaces and items before he touched the tub. She considered it highly unlikely that any DNA transferred from the keys to the glove was not lost through the police officer’s movements and was still available to be transferred to the tub. While she could not exclude the possibility of secondary transfer, she considered it unlikely. [98]
[97] P11.
[98] T 463.
Ms Windram was also asked about a factual scenario where person A deposits his or her DNA on a surface or item in a residential house and person B touches that same surface or item before touching an item such as a plastic tub. Ms Windram could not exclude as a possibility the transfer of person A’s DNA to the plastic tub by person B. However, she could not comment on the likelihood of a secondary transfer in those circumstances as she did not have sufficient details about variables such as how much DNA was deposited by person A or when the surfaces or items were last cleaned or wiped.[99]
[99] T 464-465.
Ms Windram was also asked about DNA extracted from a small plastic resealable bag which was contained within the plastic tub (and formed part of count 5). She agreed that a mixed DNA profile was obtained and the accused was excluded as a contributor to the DNA profile.
Certificates of analysis
A certificate of analysis which relates to the methylamphetamine seized from the unit[100] and a certificate of analysis relevant to the cannabis seized from the unit and 91 Rosewater Terrace[101] was tendered to the Court.
[100] P 20.
[101] P 21.
Drug expert
I received evidence from Detective Brevet Sergeant Paul Lea. There was no challenge to his qualifications or expertise.
Detective Lea gave evidence about the manner in which methylamphetamine and cannabis is commonly bought and sold on the illicit drug market and its value in 2014.
Detective Lea told the court that methylamphetamine is sold at street level at a ‘point’ or 0.1 of a gram, 1 gram or a ‘G’, 1/8th of an ounce or an ‘8 ball’, 3.5g or an ounce and 28g or an ‘ozzy’. Larger quantities are sold in the imperial pound or 454g.[102] Detective Lea said methylamphetamine is commonly packaged for sale in press seal bags or small plastic tubs.[103]
[102] T 418.
[103] T 421.
Detective Lea gave evidence that methylamphetamine is typically mixed with another substance or ‘cutter’ to bulk up its weight. Such substances can include glucose, Epsom salts and dimethyl sulfone. In his experience, methylamphetamine is most commonly mixed with dimethyl sulfone.[104] It usually has a purity of between 60 to 80% before other adulterants are added to the drug.[105]
[104] T 419.
[105] T 420.
Detective Lea said that in his experience, persons engaged in the illicit trade of methylamphetamine often have increased security such as surveillance or CCTV cameras inside and outside the premises and/or firearms and ammunition. At premises associated with a commercial drug trade, police often locate the accoutrements of sale such as scales, bags and heat sealing machines used for the packaging of drugs and cutting agents such as dimethyl sulfone. He said that police also often locate large amounts of hidden and unsubstantiated cash.[106]
[106] T 421-422.
In 2014, a ‘point’ of methylamphetamine sold at a range of between $50 and $100. A gram of methylamphetamine sold for between $700 and $800. An ‘8-ball’ sold for between $1,800 and $2,000. An ounce sold for between $9,000 and $12,000.[107]
[107] T 423.
The overall amount of methylamphetamine located at the unit was 389.6 grams. Detective Lea preferred not to comment specifically about the value of the methylamphetamine oil (count 4) as it is unknown how much of the drug could be extracted from the oil.[108] Putting aside the methylamphetamine oil, the overall amount of methylamphetamine was 200g with a purity of 63%.[109] Detective Lea considered that a relatively high percentage in terms of purity. If that amount of drug was sold in ounce quantities it would sell for between $63,000 and $84,000. However, if sold by the ‘point’ at $100 per ‘point’ it was worth approximately $200,000. If another substance was added to the drug so that it was further diluted to a purity level of just over 30%, and sold by the point at $100 per point that amount of drug would be worth $400,000.[110]
[108] T 428.
[109] T 429.
[110] T 429-430.
Detective Lea also gave evidence about the production and sale of cannabis on the illicit drug market. In his experience, cannabis growers will often rent houses for the sole purpose of using the premises to cultivate cannabis or they may choose to live in the premises and use one room to cultivate cannabis. In Detective Lea’s experience, it is common for growers to only cultivate a small number of plants at a particular premises to avoid detection and spread the growing of plants amongst numerous properties.[111]
[111] T 431-432.
Cannabis, in his experience, is commonly sold at street level at between 2g and 5g in small resealable bags or ‘J’ bags.[112] More often than not it is found packaged in heat seal bags to stop the strong smell of cannabis and to avoid detection. Cannabis can be found sealed in two vacuumed sealed bags, which is referred to as ‘double bagging’.[113]
[112] T 432.
[113] T 433.
Detective Lea said that in July 2014, a deal bag containing between two and five grams of cannabis was worth between $20 and $25. An ounce of cannabis sold for between $200 and $220 and a pound sold for between $2,000 and $3,200.[114]
[114] T 434.
Detective Lea said that in his experience, bags do not always contain a perfectly accurate ounce or pound of cannabis.[115]
[115] T 434.
In respect of the 1,559g of female cannabis plant material found in four shopping bags (count 6) Detective Lea said that could be sold in a range of different weights. If that quantity was sold in three pound bags, twelve ounce bags and anywhere between four and six deal bags, it would be worth between $8,480 and $12,390.[116]
[116] T 435.
Detective Lea says that he quite often comes across what are referred to as ‘safe houses’. A ‘safe house’ is a premises in which items associated with the sale of drugs are stored. Safe houses are generally characterised by the fact there is no one living there, they are tightly secured and people frequent the premises at night to avoid detection. The purpose of a safe house is to avoid detection by the police.[117]
[117] T 437.
Detective Lea agreed in cross examination that in his experience persons involved in the drug trade will rent a house from a legitimate landlord and provide false details to the landlord.[118]
[118] T 438.
Detective Lea agreed that if a hydroponic cannabis crop is unattended for four days, and not operated by an automatic timing or water system, the cannabis would be damaged.[119]
[119] T 442.
Detective Lea agreed that a CCTV security system that didn’t cover all entrances to a premises would have a reduced efficiency.[120] He also agreed that a large amount of cash in the absence of any other evidence is not necessarily indicative of drug trafficking.[121]
The Defence Case
[120] T 443.
[121] T 444.
The accused did not give evidence, nor did he call any evidence.
The defence case is that the Prosecution has not proved beyond a reasonable doubt that the accused was in possession of any of the drugs located at the unit. They contend that it is at least a reasonable possibility that the drugs were in the sole possession of another, such as the persons referred to as Dylan Johnson and Allan White, or another person or persons who leased those properties from the accused under the fictitious names of Dylan Johnson and Allan White.
Standard Directions
I have given myself the following standard directions.
The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The burden of proving each of the charges lies wholly upon the Prosecution. The accused is not obliged to prove anything. Nothing short of proof beyond reasonable doubt will do. It is not sufficient for the Prosecution to show a suspicion of guilt or to show that the accused is probably guilty. Before I could convict the accused on any count, I must be satisfied that the Prosecution has proved beyond reasonable doubt each of the elements of that offence.
The accused elected not to give evidence as was his right. I have not drawn any inference adverse to him on account of his exercise of that right, nor have I speculated on the many reasons why he may have chosen not to give evidence.
Each of the eight counts before me is charged as a separate offence and each must be treated separately on its merits. Should I be satisfied of the accused’s guilt on one count, it does not necessarily follow that he is guilty of any or all of the other counts.
Cross Admissibility
There is cross-admissibility between the counts.
The evidence of the accused’s connection and interest in the unit is common to all counts relative to those drugs located at the unit, as is the evidence of the accused’s physical presence within the unit. Further, the evidence in respect of each charge relative to the unit is cross-admissible to prove the accused was in possession of the drugs and had an intention to sell the drugs because of the close proximity of one drug to the other and the abandoned nature of the house which suggested it was used as a ‘safe house’ to store illicit drugs.
Further, in my view, the evidence in respect of counts 1 to 7 is admissible on count 8 in the following way. If I was satisfied beyond reasonable doubt that the accused was in possession of any of the drugs located at the unit, with an intention to sell those drugs, that finding and the evidence in support of it, is relevant in my consideration of count 8, the charge relating to the Rosewater Terrace property. The evidence taken as a whole supports a finding that the same person or persons was responsible for the drugs located at both premises. That evidence includes the same distinctive type of piping associated with the cultivation of cannabis found at both properties; the common gate between the two properties; and that both properties were leased to an apparently fictitious person using the same technique to establish the false identity. The potential use of the evidence outlined above is for a non-propensity purpose and in my view satisfies s. 34P(2)(a) of the Evidence Act as the probative value substantially outweighs any prejudicial effect.
I direct myself that if I am satisfied of the charges relative to the unit (counts 1 to 7) beyond reasonable doubt, I can use the evidence in support of those charges, in an assessment of the charge (count 8) relative to the property at Rosewater Terrace.
Further, should I find the charges in respect of the unit proven beyond reasonable doubt, the evidence in support of that finding also establishes the accused’s interest in the drug trade and his inclination or propensity to possess drugs for the purpose of sale.[122] In that way the evidence is potentially relevant to an assessment of the charges relating to the drugs located on the bordering property at 91 Rosewater Terrace. It is directly relevant to the question of whether the cannabis plants located at the Rosewater premises were in the accused’s possession and whether he had possession of the cannabis for the purpose of sale. In my view, the evidence if used in that way is of substantive probative value and satisfies s34P(2)(a) & (b) of the Evidence Act.
[122] R v Soteriou (2013) 118 SASR 119 at [27], [31]-[32].
I further direct myself that I must not reason that should I find any of the charges proven against the accused in respect of the unit, he is necessarily guilty of the charge relating to the Rosewater property. I must consider the evidence in respect of each count and proof of the accused’s guilt on one count is not necessarily proof of his guilt on another.
Prosecution submissions
The Prosecution submits that the evidence when looked at as a whole supports a finding beyond a reasonable doubt that the accused was in possession of each of the drugs the subject of each charge.
In respect of the unit and counts 1 to 7, the Prosecution relies on several pieces of circumstantial evidence to prove the accused’s possession of the drugs located at the premises. First, the accused owned and lived next door to the unit. Second, the security camera positioned outside the front of the unit was monitored from the accused’s lounge room. Third, the accused had a physical connection to the unit by way of DNA and fingerprints. Fourth, the Prosecution submits that Dylan Johnson is a fictitious character, created by the accused to deflect police detection. They rely on the single cash payment of a bill associated with 20 Ina Avenue at the same time as a bill in respect of the unit to say that the accused was responsible for creating this fictitious character.
The Prosecution relies on the following pieces of circumstantial evidence to prove that the accused was in possession of the cannabis plants located at 91 Rosewater Terrace (count 8). First, the proximity of this property to the accused’s home. The accused’s father was recorded as the landlord for the premises and resided with the accused at the time the drugs were detected. Second, the accused had access to 91 Rosewater Terrace in that he had keys to buildings on the premises. Third, the accused’s name was on business cards found in the building converted for use as an office, which was in close proximity to the building in which the cannabis plants were located. Fourth, there was a gate in the corner of his backyard at 20 Ina Avenue which allowed direct access to 91 Rosewater Terrace.
The Prosecution submits that the accused intended to sell the drugs the subject of each charge. In respect of the drugs located at the unit, the prosecution relies on the overall value and quantity of the drugs, the packaging of the drugs the subject of counts 3, 5 and 6, and that the methylamphetamine the subject of counts 1, 3 and 4 was found secreted and locked in a safe. The Prosecution also relies on the other indicia of sale located at the unit, including the cutting agent (dimethyl sulfone), ammunition, the security system and the fact the premises was not occupied as a residence.
In respect of 91 Rosewater Terrace, the Prosecution relies on the value of the cannabis, the extensive hydroponic set-up and the unoccupied nature of the building to support a commercial purpose.
Defence submissions
Counsel for the accused submits that the evidence presented by the Prosecution is not sufficient to prove beyond reasonable doubt that the accused was in possession of any of the drugs the subject of the charges. Defence counsel contends that the Prosecution cannot exclude the reasonable possibility that another person or persons who leased each property under a fictitious name were in possession of the drugs to the exclusion of the accused.
Defence counsel submits that there is no eyewitness evidence which places the accused inside either property. In respect of 91 Rosewater Terrace, the drugs were not located in the building used as an office and associated with the accused but in a separate building. Defence counsel suggests that it is not implausible that the accused did not know the cannabis plants were on this property.
Counsel for the accused submits there is nothing at the accused’s home at 20 Ina Avenue which links the accused with the trafficking or cultivation of drugs at either property. There is no firearm to link him with the ammunition at the unit. There is no hydrochloric acid to extract or ‘salt’ methylamphetamine from the liquid (count 4).
Defence counsel contends the CCTV camera at the unit is not inherently suspicious. There is no camera at any other entrance to the unit. There is no surveillance camera at 91 Rosewater Terrace.
Defence counsel submits the accused has a legitimate explanation for having the keys to both properties because he was the landlord for the unit and his father was the landlord for the Rosewater Terrace premises. Further, the keys were not hidden or secreted within his home.
Defence counsel concedes that Allan White and Dylan Johnson are fictitious characters but submit that the Prosecution have not excluded the reasonable possibility that they were created by a person or persons other than the accused. Defence counsel relies on Detective Lea’s evidence that tenants will often rent a house and provide false details to the landlord. Further, defence counsel submits there is no evidence to suggest that the accused had anything to do with setting up the fictitious characters, for example, there is no evidence from the telephone or electricity company to suggest it was the accused who established the accounts or made payments to the account.
Further, defence counsel submits the accused has had legitimate tenants for the unit and 91 Rosewater Terrace in the past (as set out in the agreed facts) and has provided similar paperwork to at least some of his tenants as that seized by police in respect of Dylan Johnson and Allan White, for example the documents tendered as D18 and D19.
In respect of the evidence that a bill for 20 Ina Avenue and a bill for the unit was paid at the same time, defence counsel submits this only occurred on one occasion and there is simply no evidence that it was the accused who paid those two bills.
As to the fingerprint evidence, defence counsel submits that the accused’s fingerprints cannot be dated and they are on movable items not necessarily associated with drugs. Further, there are unidentified fingerprints on items directly connected to the drugs, such as a transformer and a light shade in the unit, and on a green plastic bag in which cannabis was stored (count 6). Defence counsel submits this is not a case where the forensic evidence is linked only to the accused. Further, there is said to be at least a possibility that the DNA evidence on the plastic tub was placed there by a secondary transfer.
In summary, counsel for the accused contends that there is an innocent explanation for each of the pieces of circumstantial evidence upon which the Prosecution relies and taken together they do not exclude a rational and reasonable hypothesis consistent with innocence.
Findings
I begin with the charges which relate to the drugs seized from the unit (counts 1 to 7). The issue in dispute in respect of each charge is whether the Prosecution has proved beyond reasonable doubt that the accused was in possession of the drug or plant the subject of each charge.
I have carefully considered all of the evidence and the submissions of counsel.
There is no dispute that the accused was the owner of this premises and that he lived at the adjoining premises of 20 Ina Avenue with his partner and father, for three days per week from June 2013 until the search on 25 July 2014.
There is no dispute that the accused was the landlord of the unit and had keys to the premises. There was access from 20 Ina Avenue to the unit through one gate into 91 Rosewater Terrace and then through a second gate into the unit. Such access was not visible from Ina Avenue or Rosewater Terrace.
There is no dispute that a security camera positioned at the front of the unit was monitored on a television located in the accused’s lounge room at 20 Ina Avenue. While I accept that a security camera does not alone necessarily denote commercial activity in drugs, in this case live images were transmitted to the accused’s lounge room and depicted the entrance to a property in which a large valuable quantity of illicit drugs were located.
Thus, the accused had a propriety interest in the unit in which the drugs were located, had covert access to the premises and took a particular interest in the premises by virtue of the monitored security camera.
There was also evidence of the accused’s physical presence inside the unit, including the accused’s fingerprints on the outer bag which contained 40 plastic bags found in the kitchen cupboard and commonly used for packaging methylamphetamine (P23). Further, there was a mixed DNA profile extracted from the plastic tub found in the kitchen cupboard which contained 9 press seal bags of methylamphetamine (count 5). The DNA profile obtained from the plastic tub is greater than 100 billion times more likely to have been obtained if the accused and an unknown individual are the sources of the DNA rather than two unknown individuals. I place no reliance on the DNA profile extracted from the plastic tub and tape (count 3) as it was considered ‘weak’ and ‘limited support’ for the hypothesis that the accused rather than an unknown male deposited the DNA.
The fact that there are unidentified fingerprints and DNA profiles located on items within the unit associated with drugs is of limited assistance to the defence case because the prosecution case is not pitched on the basis of the accused’s sole possession of the drugs.
There is also a connection between items located at the unit with items located at the accused’s home at 20 Ina Avenue. The unused heat seal bags (P23) have the same ‘class characteristics’ as those found at 20 Ina Avenue in which cash was located.
While there is no dispute the tenant Dylan Johnson is fictitious, the issue is whether the Prosecution have established that this ‘person’ was created by the accused. I place significant weight on the fact that a bill for the unit and a bill for 20 Ina Avenue was paid in the same cash transaction. The accused’s responsibility for that fictitious tenant is shown by the payment of those two bills in one cash payment. While there may well have been legitimate tenants living at the accused’s units, in my view this does not detract from the evidence that Dylan Johnson was a fictitious character created by the accused to avoid police detection.
I remind myself that the accused’s mere knowledge of the drugs in the house is not sufficient to prove the element of possession. It is not enough if the accused knew of the drugs and as the landlord acquiesced in their presence in the house. To be in possession, he must have exercised physical control of the drugs and intended to do so to the exclusion of all others with whom he was not in joint possession.
When the combination of circumstances relied upon by the prosecution to prove possession are looked at together, I am satisfied beyond reasonable doubt that the accused was in possession of the drugs located in the unit the subject of each charge. I am satisfied there is no other reasonable hypothesis or reasonable possibility consistent with innocence in relation to this element of the offence.
I turn to consider more specifically each count:
Count 1
The first charge of trafficking in a controlled drug relates to 6.56g containing 4.11g of methylamphetamine located in a safe in the fridge. It is not in dispute that the substance contained methylamphetamine. I find the accused was knowingly in possession of the drug for the reasons articulated above.
As to the question of the accused’s intention, s 32(5) of the CSA deems the accused to be in possession of the methylamphetamine for the purpose of sale, unless he proves that it is more probable than not that it was in his possession for some other purpose, or for personal use only, as the weight is above the prescribed quantity of 2g. No evidence was before the Court to rebut the presumption.
In any event, I am satisfied beyond reasonable doubt that the drug was intended for sale without resorting to s 32(5) of the CSA given the secretion of the drug in a safe in a fridge in an unoccupied premises in close proximity to other valuable drugs, along with other indicia of sale such as the heat sealer, unused heat sealing bags and press seal bags.
I find all the elements of this count proved beyond reasonable doubt.
Count 2
This charge of trafficking in a controlled drug relates to 1.76g containing 1.21g of methylamphetamine located on a shelf in the fridge. It is not in dispute that the substance contained methylamphetamine. I find the accused was knowingly in possession of the drug for the reasons articulated above.
As to the question of the accused’s intention, section 32(5) of the CSA does not apply.
I am satisfied beyond reasonable doubt the drug was intended for sale given the location of the drug in a fridge in an unoccupied premises in close proximity to other valuable drugs, along with other indicia of sale such as a heat sealer, unused heat sealing bags and press seal bags.
I find all the elements of this count proved beyond reasonable doubt.
Count 3
The third charge of trafficking in a controlled drug relates to 187.6g containing 119.6g of methylamphetamine located in a safe in the oven. It is not in dispute that the substance contained methylamphetamine. I find the accused was knowingly in possession of the drug for the reasons articulated above.
As to the question of the accused’s intention, section 32(5) of the CSA applies as the weight is above the prescribed quantity of 2g. No evidence was before the Court to rebut the presumption.
In any event, I am satisfied beyond reasonable doubt that the drug was intended for sale without resorting to s 32(5) of the CSA given the secretion of the drug in a safe in an oven in an unoccupied premises, the quantity and value of the drug found in close proximity to other valuable drugs, and the presence of other indicia of sale such as the heat sealer, unused heat sealing bags and press seal bags.
I find all the elements of this count proved beyond reasonable doubt.
Count 4
This charge of trafficking in a controlled drug relates to 189.4g of liquid containing 155g of methylamphetamine oil located in a safe in the oven. It is not in dispute that the liquid contained methylamphetamine oil. I find the accused was knowingly in possession of the drug for the reasons articulated above.
As to the question of the accused’s intention, s 32(5) of the CSA does not apply.
I am satisfied beyond reasonable doubt the drug was intended for sale given the quantity and location of the drug secreted in a safe in the oven of an unoccupied premises in close proximity to other valuable drugs, combined with the other indicia of sale such as a heat sealer, unused heat sealing bags and press seal bags.
I find all the elements of this count proved beyond reasonable doubt.
Count 5
The fifth charge of trafficking in a controlled drug relates to 4.28.6g containing 2.7 g of methylamphetamine located in nine plastic tubs and a press seal bag in a cupboard above the kitchen sink. It is not in dispute that the substance contained methylamphetamine. I find the accused was knowingly in possession of the drug for the reasons articulated above.
As to the question of the accused’s intention, s 32(5) of the CSA applies as the weight is above the prescribed quantity of 2g. No evidence was before the Court to rebut the presumption.
In any event, I am satisfied beyond reasonable doubt that the drug was intended for sale without resorting to s 32(5) of the CSA given the packaging of the drugs coupled with the fact the drugs were found in close proximity to other valuable drugs, and the presence of other indicia of sale such as the heat sealer, unused heat sealing bags and press seal bags.
I find all the elements of this count proved beyond reasonable doubt.
Count 6
The charge of trafficking in a commercial quantity of a controlled drug relates to the 1.559kg of female cannabis plant located in shopping bags in grow room 3. It is not in dispute that the substance was cannabis. Nor was it in dispute that the amount of cannabis was a commercial quantity, that is, 1kg or more.
I find the accused was knowingly in possession of the cannabis for the reasons articulated above. I also find the accused knew that the quantity of cannabis he was in possession of was a commercial quantity or 1kg or more.
As to the question of the accused’s intention, s 32(5) of the CSA deems the accused to be in possession of the cannabis for the purpose of sale, unless he proves that it is more probable than not that it was in his possession for some other purpose, or for personal use only, as the weight is above the prescribed quantity of 250g. No evidence was before the Court to rebut the presumption.
In any event, I am satisfied beyond reasonable doubt that the cannabis was intended for sale without resorting to section 32(5) of the CSA. I rely on its packaging in four shopping bags, three of which contained 1 pound amounts (a quantity in which cannabis is commonly sold on the illicit drug market), the valuable hydroponic set-up, its close proximity to other valuable drugs and the other indicia of sale such as the heat sealer, unused heat sealing bags and press seal bags.
I find all the elements of this count proved beyond reasonable doubt.
Count 7
The charge of cultivating cannabis plants for sale relates to the six cannabis plants located at the unit, that is the two cannabis plants in ‘grow room 1’ and the four cannabis plants in ‘grow room 2’.
There is no dispute that the plants to which the charge relates are cannabis. I find that the accused knowingly cultivated those plants, for the reasons articulated above.
As to the question of the accused’s intention to sell the cannabis, I am satisfied beyond reasonable doubt that there was such an intention by the elaborate hydroponic set-up, the value of the estimated yield from the cannabis plants and their proximity to other valuable drugs, combined with the other indicia of sale namely the heat sealer, unused heat sealing bags or press seal bags.
I find all the elements of this count proved beyond reasonable doubt.
I turn to consider the cannabis plants located in the property at 91 Rosewater Terrace the subject of count 8. Again the issue in dispute in respect of this charge is whether the Prosecution has proved beyond reasonable doubt possession. I turn first to consider the accused’s connection to the property at which the cannabis plants were located.
The accused’s father was the owner of the premises. The accused’s father was also recorded as the landlord on a tenancy agreement located at the accused’s home. The accused had access to keys to the buildings on the premises. One of those buildings was set up as an office for the business Ursida Transport. A business card for Ursida Transport located in that office nominated the accused as a director. The cannabis plants were located in a building in close proximity to the shipping container which was in fact converted to an office.
There was a gate from 91 Rosewater Terrace which led to 20 Ina Avenue.
I also take into account my findings on counts 1 to 7 that the accused was in possession of the drugs located therein for the purpose of sale. I find that there were similarities between the hydroponic set-up at the unit with that at 91 Rosewater Terrace, in particular, the distinctive brand of hosing used in both cultivations. Further, a fictitious lessor was created for both properties using the same method to establish the false identity. I am satisfied beyond reasonable doubt that the same person was responsible for the cultivation setup located at both properties. Further, I take into account that the accused was involved in the business of the drug trade at a premises in very close proximity to the premises where the cannabis was located the subject of count 8.
I remind myself that the accused’s mere knowledge of the cannabis on the property is not sufficient to prove the element of possession. It is not enough if the accused knew of the drugs and acquiesced in their presence on the property. To be in possession, he must have exercised physical control of the drugs and intended to do so to the exclusion of all others except those with whom he was in joint possession.
Taking into account the combination of circumstances relied on by the prosecution and my finding that the accused was in the business of trafficking and cultivating drugs at a bordering property using the same distinctive hosing and method to avoid police detection, I am satisfied beyond reasonable doubt the accused cultivated the cannabis at the Rosewater property.
I am satisfied there is no other reasonable hypothesis or reasonable possibility consistent with innocence in relation to this element of the offence.
I turn to the specific offence.
Count 8
This charge of cultivating cannabis plants for sale relates to the 8 cannabis plants located in the building marked ‘office’ at the property; four cannabis plants in ‘grow room 1’ and four cannabis plants in ‘grow room 2’.
There is no dispute that the plants to which the charge relates were cannabis. I find that the accused knowingly cultivated those plants, for the reasons articulated above.
As to the question of the accused’s intention to sell the cannabis, I am satisfied beyond reasonable doubt that he had such an intention because of the elaborate hydroponic set-up and the value of the estimated yield from the cannabis plants.
I find all the elements of this count proved beyond reasonable doubt.
Verdicts
I find the accused guilty on counts 1 to 8.
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