R v Woods
[2009] SADC 107
•16 October 2009
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WOODS
Criminal Trial by Judge Alone
[2009] SADC 107
Reasons for the Verdicts of Her Honour Judge Shaw
16 October 2009
CRIMINAL LAW
Trial by Judge alone - count one - producing cannabis - count two - possessing methylamphetamine for sale.
Verdicts: count one - not guilty, count two - guilty.
Controlled Substances Act 1984 SA 32(1)(b), 32(1)(e), referred to.
R v GNN (2000) 78 SASR 293, considered.
R v WOODS
[2009] SADC 107
Scott Glen Woods is charged on information before me sitting as a judge alone with taking part in the production of cannabis, contrary to s 32(1)(b) of the Controlled Substances Act 1984 SA (“the Act”).
It is alleged that the accused committed this offence between the 1st day of August 2005 and the 30th day of September 2005 at Salisbury North.
The accused is also charged with the offence of possessing methylamphetamine for sale, contrary to s 32(1)(e) of the Act. It is alleged that he committed this offence on the 30th day of September 2005 at the same place. The accused pleaded not guilty to each charge. The trial commenced before me on 31 August 2009.
Background
The alleged offences arose out of a police attendance, at 25 Witonga Avenue, Salisbury North (“the premises”) at 8.45am, on 30 September 2005. Police located eight hydroponically grown cannabis plants in two bedrooms, cannabis plant material in the rumpus room and 38.29 grams of methylamphetamine in the refrigerator. At the time of the police attendance, the accused was the sole occupant of the premises.
The Elements of the Offences
I turn to the elements of each of the offences. The prosecution must prove each element of each offence beyond reasonable doubt. Each offence must be considered separately having regard to the evidence relevant to each offence.
Firstly, I deal with the elements of count one; taking part in the production of cannabis, namely the eight cannabis plants.
The offence of taking part in the production of cannabis is comprised of three elements, each of which must be proved by the prosecution beyond reasonable doubt.
The first element requires proof that the accused took part in the production of cannabis. A person takes part in the production of cannabis if he:
(a) takes, or participates in, any step in the process of that production;
(b) causes any step to be taken in the process of that production;
(c) provides or arranges finance for any step in the process of that production;
(d) provides the premises in which any step in the process of that production is taken;
(e)suffers or permits any step in the process of that production to be taken in premises of which he is the owner, or in the management of which he participates.
Next, the prosecution must prove that the accused took part in the production knowingly. That is, it must be proved that when the accused took part, he did so knowing and intending that he was, by doing so, assisting or facilitating the production of cannabis.
The prosecution must also prove that the accused took part in the production of cannabis knowing that the substance was cannabis, or at least, that it was an illegal substance under the Act.
This element requires proof that cannabis is a prohibited substance within the meaning of the Act. There is no dispute as to this element.
I turn to the elements of the second count, namely, possessing methylamphetamine for sale. This offence relates to two tubs and a resealable plastic bag containing methylamphetamine, located by police in the refrigerator.
The prosecution must prove the following elements:
Firstly, the prosecution must prove that the material in question is a prohibited substance, namely methylamphetamine. There is no dispute in relation to this element;
Secondly, the prosecution must prove that the material is a prohibited substance under the Act. As a matter of law, methylamphetamine is a prohibited substance within the meaning of the Act; and
Thirdly, the prosecution must prove that the substance was in the possession of the accused at the time alleged.
An object is in the sole possession of a person if that person has the power and the intention to exercise control over that object, to the exclusion of others. An object is in the joint possession of two or more persons if those persons have a joint ability to control the object and a joint intention to control it. In that event, those persons are jointly and severally in possession of the object.
The prosecution must prove that the accused had the requisite knowledge. A person is not to be regarded as being in possession of an object unless he knows of its existence.
There must be both physical control and an intention to exercise control over the object.
Further, the prosecution must prove that the accused knew that the substance in his possession, was a drug to which the Act applies. If he is not aware of the nature of the substance, he must at least be aware that he has possession of a substance, the possession of which is prohibited under the Act.
Finally, it must be proved that the accused had the substance, namely methylamphetamine, in his possession for the purpose of selling it to another person.
If the prosecution proves beyond reasonable doubt that the accused was in possession of more than two grams of the substance, then the law presumes that the accused possessed it for the purposes of sale, unless he can prove on the balance of probabilities that he possessed the substance for a purpose other than sale.
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 proved its case.
Prosecution Evidence
The prosecution called Detective Smalbil who gave evidence about his attendance at the premises on the 30th September 2005. Detective Smalbil described the separate items located by reference to photographs.
Eight cannabis plants were growing hydroponically in two rooms at the premises. Plant material was located in another room. Police also found in the refrigerator, 38.29 grams of methylamphetamine in 61.57 grams of paste. In addition, the sum of $27,015 in cash was found lying on the floor of the northern bedroom.[1]
[1] Ex P1 - Plan
The accused’s dog was located at the premises. In addition, the accused’s motor vehicle was parked behind the roller door under the carport. The police also located clothes, a photo board hanging on the wall and documents belonging to the accused.
During cross-examination, Detective Smalbil agreed that the hydroponic crop located at the premises, could have been two to four months old. He agreed that as a result of the automation system in place, there was no need for someone to attend to the cannabis plants for a period of between three and seven days.
He gave evidence that fingerprints were located on various items in the house including the transformers related to the maintenance of the cannabis crop. The accused’s fingerprints were not located on any item. The registered owner of the house was known to police but he had not been spoken to by police.
Detective Smalbil agreed that the accused was not paying the electricity bills. A motorcycle at the premises was registered to another person. The accused gave his residential address as 19 Vincent Street, Adelaide.
A second police officer, Constable McNally gave evidence of his attendance at the premises on the same date. He described his observations with the assistance of photographs. Constable McNally agreed in cross-examination that all of the documentation located at the premises that was referable to the accused, related to 19 Vincent Street, Port Adelaide. He agreed that there was no DNA or fingerprint evidence obtained that implicated the accused.
The prosecution tendered the evidence of the exhibits officer Mr Smith, given at a previous trial and a table prepared by him.
I also received an agreed statement of facts and a table showing the results of the analysis of various items collected from the premises. I refer to some of these agreed facts. It was agreed that the accused had never been the registered owner of the premises. On 18 September 2007, police requested Troy Coote to provide a declaration and he declined. The electricity account at the premises was not in the name of the accused. The eight plants located at the premises were cannabis plants. They were nearing maturity and would have yielded at least 300g of dry usable material at harvest. White powder located in the kitchen cupboard above the sink contained two dietary supplements which can be used as “cutting agents” to reduce the purity of illicit drugs before sale. The table recorded the finding that traces of methylamphetamine were located on two sets of digital scales located in the kitchen cupboard above the sink. In the northern bedroom, on the floor next to the bed, police located powder and tablets containing ecstasy and powder containing methylamphetamine. In the kitchen cupboard above the sink, police located LSD, and powder and paste containing methylamphetamine.
The prosecution also tendered the evidence from the previous trial of the police officer Detective David Pedder, who had given evidence about the potential value of the drug methylamphetamine. In that evidence, he described various methods of sale. Depending on the method of sale, the amount of drug located at the premises could have fetched up to $30,000. The prosecution also tendered the declaration from the previous trial of Detective Keith Reichstein, who detailed the potential value of cannabis. Based on his evidence, the cannabis from the cannabis crop could have fetched up to about $25,000 if sold in sandwich bags.
Accused’s Evidence at Previous Trial
The prosecution tendered the evidence on oath of the accused, given at a previous trial.[2] During that evidence, the accused denied that he had any involvement with either the cannabis production or the methylamphetamine in the refrigerator. He denied that he had any caretaker role at the premises and denied any criminal intent. The accused stated that he was 35 years of age. From about July 2004, he lived with Mr Peter Borzumati at his home at 19 Vincent Street, Adelaide. In September 2005, the accused returned from a Bali holiday. At that time, he was in receipt of worker’s compensation payments. He said that on Monday, 26 September 2005, following an argument with Mr Borzumati about the accused’s dog, the accused left. He said that he packed his personal belongings into his car. These included the photo board that was located at the premises. The accused said that on the Monday and Tuesday nights, he slept in his car near West Beach. On the Wednesday, he was contacted by a Mr Troy Coote. He said that he had known Mr Coote for five years and that he was a good friend of his. He met Mr Coote at West Beach on the Wednesday and Mr Coote gave him the keys to the premises. Mr Coote told him that he was going away and he would be back in a couple of days. The accused was able to stay at the premises from the Wednesday through to Friday, 30th September 2005, the day of his arrest. He slept at the premises during the Wednesday afternoon. He said that he stayed at his girlfriend’s place on the Wednesday night. He slept at the premises in the northern bedroom on the Thursday afternoon. On the Thursday night, because of the smell of the cannabis, he moved to the rumpus room where he slept on a blue-green couch.
[2] Exhibit P4
The accused said that before he went to the premises, he had “a rough idea” that Troy Coote was involved with drugs.[3] When he arrived at the premises on the Wednesday, he hung up the photo board. He said that upon his arrival, he became aware of the presence of the cannabis crop. He could smell it. He also saw cannabis in the rumpus room. However, he said that he wanted nothing to do with the crop, nor was he asked by Mr Coote to attend to it. He did not intend to take on any role in the production of the cannabis, nor was he to obtain any benefit from it. He said that when he placed his medication in the refrigerator, he saw the plastic containers. He said that they were not his and he regarded them as “not my business”.[4] He agreed that when he saw the press sealed bag in the refrigerator, he assumed it was methylamphetamine.[5] He said that he did not think much about the large amount of money on the floor of the northern bedroom. He said that the money belonged to Troy Coote. It was not his. He said that when he first saw the money on the Wednesday, it was located further under the bed than shown in the photographs. In relation to the drugs located in the northern bedroom near the bed, he said that he did not know they were there. He agreed that he recovered a pair of tracksuit pants and a tank top from clothing in that same area. He agreed that he knew that he was staying in a drug dealer’s home.[6] He was asked:
QAfter a period of time, after a couple of days you were there, did you not consider that you walked into a drug dealing set-up.
AYes I did.
QAnd you didn’t decide to walk out, get out of it.
AI was thinking of it, yes. I was waiting for Troy to come back and then I was going to leave again.[7]
[3] P248 Ex P4
[4] P218 Ex P4
[5] P258 Ex P4
[6] P243 Ex P4
[7] P242 Ex P4
The accused said that he had not heard from Mr Coote since his arrest, although he had tried to call him.
The accused said that in relation to the cheque for $13,000 found in his car, he believed that it related to workcover type payments. The accused said that the cash sum of $5,300 found in the glove box of his car was rental monies that he had collected. He owned an apartment in respect of which he repaid the loan at the rate of about $1,000 per month and he received rental of $600 per week. He said that he was looking for a house and that this was his proposed bond and rent money. He said that someone else had funded his holiday to Bali. He said that even though he knew there was a cannabis crop at the premises, he thought it was a good place for his dog to relax.
Defence Case
The accused did not give evidence on oath before me. The defence relied upon the accused’s evidence given during the previous trial[8] and evidence adduced during the prosecution case.
[8] Exhibit P4
In addition, the accused called Mr Peter Borzumati to give evidence. Mr Borzumati said that he had known the accused for eleven years. In 2004 and 2005, the accused lived with him at 19 Vincent Street, Adelaide. He said that near the end of August 2005, the accused went to Bali for about eight days. He said that in the lead-up to the accused’s arrest, there was an issue about the accused’s dog at his home. He said that on about the Tuesday before the accused’s arrest, the accused stormed out. He said that the accused took with him his photo board, his dog and a bag of clothes.
Submissions by the Prosecution
In relation to count one, the prosecution submitted that the court was entitled to draw the inference from all of the circumstances, that the accused went to the premises as a caretaker of the cannabis crop, and was involved in its management. The prosecution submitted that although it was unable to identify any particular step taken by the accused in the production of the cannabis crop, this was not necessary.
The prosecution submitted that the court ought to find that the accused was intending to live at the premises. Secondly, the court ought to find that the accused knew that the cannabis crop was growing at the premises and that he moved into the premises for the purpose of looking after the crop. By doing that, and/or by taking active steps in looking after the cannabis crop, he committed the offence of producing cannabis. The prosecution relied upon the accused’s sole occupancy of the premises, the presence of the accused’s photo board, the accused’s dog and other belongings of the accused, to support the inference that the accused had moved into the premises to look after the cannabis crop. Although the prosecution could not point to any specific conduct, it was submitted that having regard to all of the circumstances, the court was entitled to draw the inference that the conduct of the accused amounted to taking part in the production of the cannabis. The prosecution submitted that it was implausible that the owner of the crop would invite the accused to stay at the premises when the cannabis crop was so close to harvest.
It was submitted that the court ought to infer beyond reasonable doubt that the accused took a step in the production of the cannabis. Alternatively, the court ought to infer that the premises were under his management at the relevant time and/or that he permitted the premises to be used for producing cannabis.
In relation to count 2, the prosecution submitted that the combination of circumstances proved beyond reasonable doubt that the accused was in possession of the methylamphetamine in the refrigerator at the premises. Those circumstances included the accused’s sole occupancy of the premises, the circumstances of his attendance at the premises, the amount of the drug present, that it was in a location where the accused saw it and had access to it and there was a large amount of cash on the northern bedroom floor.
Defence Submissions
The defence relied upon the evidence of Mr Borzumati and the accused’s evidence at the previous trial to support its submission that the prosecution had not proved that the accused had any involvement in the cannabis crop or in the methylamphetamine in the refrigerator. The defence also pointed to a number of circumstances, that on their own or in combination ought to leave the court with a reasonable doubt. For example, the defence referred to the evidence of the lack of the accused’s fingerprints upon any items tested, that the accused was not paying the electricity bills and that he was not the registered owner of the premises. It was submitted that the prosecution had not proved its case.
In relation to count one, the defence submitted that the prosecution evidence did not prove that the accused did anything in relation to the cannabis crop. His knowledge of the presence of the crop and his occupancy of the premises were not enough.
In relation to count two, the defence submitted that the prosecution had not proved that the accused was in possession of the methylamphetamine. It was submitted that the fact that the accused was the occupier of the premises at the time that the police attended, was not enough to prove possession of the methylamphetamine. Counsel referred to R v GNN.[9]
[9] (2000) 78 SASR 293
It was submitted that knowledge of the presence of the drug was not enough. There must be proof of an intention to exert control over the drug. This was absent in the present case.
It was submitted that I ought not reject the accused’s evidence given at the previous trial beyond reasonable doubt and that the accused ought to be given the benefit of the doubt.
Additional Directions
In relation to the accused’s failure to give evidence before me, I bear in mind that the accused was not obliged to give evidence on oath. I direct myself that I must not take into account his failure to give evidence on oath before me. I must determine whether the prosecution has proved its case beyond reasonable doubt based on the evidence before me. This evidence includes the statements by the accused in a previous trial which were made on oath and subjected to cross-examination in that trial. In addition, there is the evidence of Mr Borzumati. Even if I totally reject the accused’s evidence and the evidence of Mr Borzumati, it remains necessary to consider whether upon all of the evidence, the prosecution has proved its case beyond reasonable doubt. In addition, as the prosecution case depends upon circumstantial evidence in order to prove the necessary criminal intent in relation to each count, the prosecution must exclude all reasonable possibilities consistent with innocence.
Findings – Verdicts
In arriving at my verdicts in relation to each count, I have had regard to all of the evidence and the submissions of both counsel in their final addresses. I have had regard to the entirety of the accused’s evidence given in the previous trial. I will consider the charges separately.
Count One
In relation to the count of producing cannabis, I accept that the prosecution does not have to identify a particular step in the production of the cannabis.
There is no dispute that the premises were not owned by the accused.
There is no dispute that the accused was the sole occupant of the premises from Wednesday 28 September 2005 to Friday 30 September 2005.
I have regard to the evidence of Mr Borzumati. He was cross-examined closely and I had the opportunity to observe his demeanour. Although it is not for the accused to prove anything, I formed the view that Mr Borzumati was an honest witness and I accept the reliability of his evidence.
Having regard to the evidence of Mr Borzumati, I am satisfied that the accused had not been living at the premises prior to Wednesday, 28 September 2005. I find that during the previous two months, the accused had spent eight days in Bali.
I have carefully considered the combination of circumstances relied upon by the prosecution to prove this offence.
I am not satisfied that the accused’s mere presence at the premises between the 28th of September, 2005 and the 30th September, 2005, constituted participation in the production of the cannabis crop or management of the premises for the purpose of taking part in the production of cannabis. Further, I am not satisfied that the accused’s mere presence constituted permission for another or others to use the premises to produce cannabis. I note the prosecution submission that the combination of circumstances prove that the accused moved into the premises to look after the crop and intended to live there. I have regard to the combination of circumstances relied upon by the prosecution. Those circumstances included the accused’s sole occupancy of the premises, his knowledge of the presence of the cannabis crop, that the crop was close to harvest, the nature of the accused’s belongings at the premises and the apparent intention of the accused to live at the premises.
Having regard to all of the evidence, I find that the prosecution have not excluded the reasonable possibility that the accused did not know about the cannabis crop before he arrived at the premises. I find that the prosecution have not excluded the reasonable possibility that the accused did not intend to assist in the production of the crop after his arrival, and that he did not do so during the next three days. I am not satisfied beyond reasonable doubt that the accused took any step in the production of the cannabis crop whilst he was at the premises. In my view, the prosecution have not excluded the reasonable possibility that the cannabis crop was being produced by others and that the accused neither agreed to participate, nor in fact participated in the production of the cannabis crop between 28September and 30 September 2005.
I am not satisfied beyond reasonable doubt that the accused attended at the premises to act as a caretaker of the crop, or indeed acted as a caretaker or took any step to do so, whilst he was there.
I am not satisfied beyond reasonable doubt that the accused participated in the production of the cannabis crop or agreed to take any step in its production.
Therefore, in relation to count one and the charge of taking part in the production of a prohibited substance, I find the accused not guilty.
Count Two
In relation to count two, the accused admitted that he was the sole occupant of the premises on 30 September 2005 when police located 38.29 grams of methylamphetamine in the refrigerator at the premises.
I have regard to the combination of the circumstances relied upon by the prosecution, the accused’s evidence at the previous trial and the evidence of Mr Burzumati. I consider that the following circumstances are particularly significant. According to the accused’s evidence at the previous trial, the accused knew that Mr Coote, the person who offered him accommodation at the premises was a drug dealer. Mr Coote was a friend of his. During the two days prior to his arrest, a large amount of drug which he assumed (correctly) was amphetamine, was in the refrigerator where he admitted that he placed his medication. The sum of $27,015 in cash was visible on the bedroom floor near where he lay down on the bed on the Thursday afternoon and near where he retrieved his clothing during the police attendance. The accused had a large amount of cash in the glove box of his car that was at the premises. I have had regard to the accused’s evidence that the cash on the bedroom floor belonged to Troy Coote.
I direct myself that mere knowledge of and the ability to exercise control over the methylamphetamine in the refrigerator is not sufficient to prove the offence. However, the accused was the sole occupant of the premises from Wednesday 28 September 2005. I reject his evidence that he was staying at premises where he knew that there was methylamphetamine in the refrigerator and a large amount of money on the floor, because he thought that it was a good place for the dog to relax and hang out.[10] In my view, this evidence is implausible.
[10] Ex P4 p230
Having regard to all of the circumstances, I find that the accused’s evidence about knowing that the drug was in the refrigerator but having no interest in it, is implausible. I reject beyond the reasonable doubt the accused’s evidence that he did not have a criminal intent in relation to the methylamphetamine, which is the subject of count two. I have directed myself that the accused bears no onus to prove anything.
I remind myself that my rejection of all or any of the accused’s evidence is not a basis to convict. He bears no onus of proof. The prosecution must prove each element of the offence beyond reasonable doubt, which includes disproving any defence put forward by the accused. I am satisfied that Mr Coote would not have left such a large amount of money on the floor of the northern bedroom, having invited the accused to stay at the premises whilst he went away for a few days, unless the accused also had a vested interest in that money.
I am satisfied beyond reasonable doubt that the money on the northern bedroom floor and the methylamphetamine in the refrigerator were visible and available to the accused, because he had an interest in both the money on the floor and the methylamphetamine in the refrigerator.
Having regard to the circumstantial evidence relied upon by the prosecution that I have identified, I am satisfied beyond reasonable doubt that the accused was in possession of the methylamphetamine in the refrigerator that is the subject of count two. I am satisfied that there is no rational hypothesis or reasonable possibility consistent with the accused’s innocence. Having regard to the amount of methylamphetamine in the refrigerator and the presence of the large amount of money on the northern bedroom floor, I am further satisfied beyond reasonable doubt that the accused was in possession of the methylamphetamine in the refrigerator for the purpose of selling it to another person. I reject beyond reasonable doubt, the accused’s evidence at the previous trial to the contrary. Once again, I have directed myself that there is no onus on the accused to prove anything. I am satisfied that there is no reasonable possibility consistent with innocence in relation to this element of the offence.
Accordingly, I find the accused guilty of count two on the information, namely the charge of possessing methylamphetamine for sale.
Verdicts
In relation to count one, I find the accused not guilty.
In relation to count two, I find the accused guilty.