R v Zenuni - [2025] SADC 97

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ZENUNI
Criminal Trial by Judge Alone
[2025] SADC 97
Reasons for the Verdicts of his Honour Judge Handshin
29 July 2025
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
The accused is charged with trafficking a large commercial quantity of cannabis and possessing prescribed equipment. The offences were detected during a police search of the accused’s residence on 25 October 2016. The search came about as a result of a police investigation into another man (who, on the defence case, had been doing electrical work for the accused). At the time of the search, the accused’s house had been, and was still, undergoing renovations. The accused was overseas at the time of the search and had been for a month before the search. He did not return to Australia until 4 December 2016.
In the rear yard of the property, police found a small garden shed that was locked. Inside the shed was a substantial quantity of prescribed equipment and three large drums, in which there were 112 unsealed plastic bags containing 51.8kg of cannabis that had some residual moisture to it. Two of the three drums had Albanian notations on them. The accused is Albanian. The accused’s fingerprints were found on eight of the plastic bags and on two pieces of prescribed equipment.
The accused gave evidence that when he left on his overseas trip, the drums containing the cannabis and the prescribed equipment was not in his shed. However, he acknowledged having had ‘three or four’ light shades for a number of years. He said that he and his family had only recently moved into the house, and they did so before the renovations were completed because he did not wish to continue paying rental costs at other premises as well as costs associated with his mortgage. The accused said that he moved many plastic shopping bags from the rental property into the residence which he and his wife had collected during shopping and used for various purposes. Before leaving the country, the accused had given his brother, his electrician and a man doing some floor polishing for him keys to the house.
The prosecution case was that despite being overseas at the time of the search, the accused was in joint possession of the cannabis and equipment or, as to the cannabis, that he took part in its sale. The defence case was that the prosecution had not excluded the hypothesis that someone stored the cannabis and equipment in the shed after the accused’s departure and without his knowledge or approval.
Held: it was implausible that a substantial quantity of very valuable cannabis had been left in unsealed plastic bags, stored in drums in a galvanised shed in spring, during the time that the accused had been overseas. On the prosecution case that the cannabis was in situ prior to the accused’s departure, there was an unreasonable risk of a degradation of the cannabis and a deterioration in its commercial value. It was therefore highly unlikely that the cannabis was in the shed prior to the accused’s departure. Accordingly, the cannabis must have been stored in the shed by someone else, after the accused went overseas. Although the circumstantial case against the accused was far from weak, his absence from the jurisdiction for a little over two months throughout this critical period of time, was a significant obstacle to concluding that he was in joint possession of or took part in the sale of the cannabis. Additionally, the accused’s sworn denials of knowledge, although curious or suspicious in some respects, had not been excluded as reasonably possibly true. The accused was not guilty of count 1.
If, on that analysis, someone had gone to the trouble of storing very valuable cannabis in the shed during the accused’s absence, it was a short step to accept as at least a reasonable possibility that the equipment may also have been stored in the shed after the accused’s departure. However, the accused’s admission to having been in possession of a number of light shades was a sufficient basis on which to return a verdict of guilty to count 2.
Controlled Substances Act 1984 (SA) ss 4(1), 32(1), (5), 33LA and 33R; Evidence Act 1929 (SA) s 34P(4), referred to.
R v Dookheea (2017) 262 CLR 402; R v Hillier (2007) 228 CLR 618; R v Baden-Clay (2016) 258 CLR 308; Barca v The Queen (1975) 133 CLR 82; De Silva v The Queen (2019) 94 ALJR 100; R v Alwazan [2016] SASCFC 155; Robinson v The Queen (No 2) (1991) 180 CLR 531; Stafford v The Queen (1993) 67 ALJR 510; Hargraves v The Queen [2011] HCA 44; (2011) 245 CLR 257; Mead (a pseudonym) v The King [2025] SASCA 3, applied.

R v ZENUNI
[2025] SADC 97
Criminal Jurisdiction

The accused, Hekuran Zenuni, is charged with one count of trafficking in a large commercial quantity of a controlled drug, namely cannabis, contrary to s 32(1) of the Controlled Substances Act 1984 (SA) (the Act) and one count of possessing prescribed equipment, contrary to s 33LA of the Act.
I set out the particulars of the charges:
First Count
Statement of Offence
Trafficking in a Large Commercial Quantity of a Controlled Drug. (Section 32(1) of the Controlled Substances Act, 1984).
Particulars of Offence
Hekuran Zenuni on the 25^th day of October 2016 at Brahma Lodge, trafficked in a large commercial quantity of a controlled drug, namely cannabis, knowing or being reckless as to the fact the substance was a controlled drug.
Second Count
Statement of Offence
Possessing Prescribed Equipment (Section 33LA of the Controlled Substances Act, 1984).
Particulars of Offence
Hekuran Zenuni on the 25^th day of October 2016 at Brahma Lodge possessed prescribed equipment, namely light shades, light fittings, light globes, carbon filters and ballast boxes, without reasonable excuse.
The charges arise from a search of premises on Park Terrace, Brahma Lodge (the property) on 25 October 2016 under the authority of a general search warrant held by Detective Brevet Sergeant William McCaffrey. The accused was the sole registered proprietor of the property at the time of the search; however, no one was present when police attended. The accused was overseas at the time and had been for around 4 weeks.
In a shed at the rear of the property, police located three large drums containing numerous plastic bags of cannabis. A total of 51.8 kilograms of cannabis divided into 112 plastic bags and equipment that the prosecution allege was used to grow cannabis hydroponically was located. The prescribed equipment found included 70 light shades, 85 light globes, four carbon filters and 89 ballast boxes.
The accused elected to be tried by a judge sitting without a jury and pleaded not guilty to the charges. These are my reasons for the verdicts I deliver.
Standard directions and elements
The elements of the offence of trafficking in a large commercial quantity of a controlled drug which the prosecution must prove beyond reasonable doubt are:
1.The substance found at the property was a controlled drug. There is no dispute that the substance found was cannabis, a substance declared to be a drug of dependence by Schedule 1, Part 2 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) (the Regulations) and hence a ‘controlled drug’ within the meaning of s 4 of the Act.
2.The accused knew or was reckless as to the fact that the substance was a controlled drug.
3.The accused trafficked in the substance. Traffic is defined to include selling the drug, having possession of the drug with an intention to sell it, or taking part in the process of sale of the drug.[1] The prosecution case is that the accused trafficked the cannabis because he was in joint possession of the drug with an intention to sell it. In the alternative, the prosecution contend that the accused took part in the process of sale of the cannabis.
4.The amount of cannabis found by police was a large commercial quantity. A ‘large commercial quantity’ of cannabis is 2 kilograms. It is an agreed fact that police located 51.8 kilograms of cannabis at the accused’s property.
5.The accused intended to traffic or take part in the sale of a quantity which was a large commercial quantity of the controlled drug. The prosecution must prove an intention to sell or an intention to take part in the process of sale of at least 2 kilograms of cannabis.[2]
[1] Controlled Substances Act 1984 s 4(1).
[2] Kingston (a pseudonym) v The Queen; Maxwell (a pseudonym) v The Queen (2022) 141 SASR 433, [4]-[5], [35]-[57].
It is not necessary for the prosecution to prove that the accused was aware that two kilograms of cannabis is a ‘large commercial quantity’. The last element focuses on the quantity that the accused was intending to traffic rather than his knowledge of the legal significance or characterisation of more than 2 kilograms of cannabis.
Pursuant to s 32(5) of the Act, if it is proved that the accused had possession of a trafficable quantity of a controlled drug, it is presumed that the accused was acting for the purpose of sale of the drug and had the relevant belief concerning the sale of the drug necessary to constitute the offence. If the presumption is triggered, it is for the accused to establish on the balance of probabilities that he did not intend to sell a large commercial quantity of cannabis.
The prosecution put its case against the accused on two bases. The first was that he is guilty of trafficking because he was in joint possession of the cannabis with another or others, intending to sell not less than 2 kilograms. The second was that the accused is guilty of trafficking on the basis that he took part in the sale of cannabis.
Returning to the first limb, the prosecution case is that the accused was acting in concert with others and was in joint possession of the cannabis that was located by police, despite not being present at the premises, or indeed in the country, at the relevant time. Proving the accused had joint possession of the cannabis requires the prosecution to establish that the accused had knowledge of the presence of the substance and intended to and did exercise control over the substance together with those with whom he was in joint possession, to the exclusion of anyone else. Mere knowledge of the presence of the drugs or even acquiescence in their storage in his shed, would not suffice to prove possession.[3] The prosecution must prove some form of express or tacit agreement between those said to be in joint possession before an item can be regarded as being jointly possessed.[4]
[3] R v Wood (2017) 131 SASR 291, [12].
[4] R v Wood (2017) 131 SASR 291, [12].
As to the alternative case of taking part in the process of sale, s 4 of the Act provides:
(4) For the purposes of this Act, a person takes part in the proceeds of sale, manufacture, or cultivation of a controlled drug or controlled plant if the person directs, takes or participates in any step, or causes any step to be taken, in the process of sale, manufacture or cultivation of the drug or plant.
Section (5) provides an inclusive definition of the conduct or acts that may constitute a ‘step in the process of sale of a controlled drug’:
(5)     For the purposes of this Act, a step in the process of sale of a controlled drug includes, without limitation, any one of the following when done for the purpose of sale of the drug:
(a)     storing the drug;
(b)     carrying, transporting, loading or unloading the drug;
(c)     packaging the drug, separating the drug into discrete units or otherwise              preparing the drug;
(d)     guarding or concealing the drug;
(e)     providing or arranging finance (including finance for the acquisition of              the drug);
(f)    providing or allowing the use of premises or jointly occupying   premises.
The prosecution allege that the accused took part in the process of sale of the cannabis in one or more of the following ways:
1.The accused stored the cannabis for the purpose of sale (5(a));
2.The accused packaged the cannabis for the purpose of sale (5)(c));
3.The accused concealed the drug for the purpose of sale (5(d)); and
4.The accused allowed the use of his premises for the purpose of sale (5(f)).[5]
[5] T36.
To return a verdict of guilty on this basis, I need not be satisfied that the accused committed all of the above acts. It would be sufficient for the prosecution to establish, in addition to elements 1, 2, 4 and 5 set out above, that the accused took part in one of these steps in the process of sale beyond reasonable doubt. For the avoidance of doubt, the accused could not be found guilty of taking part in the process of sale of a large commercial quantity of cannabis unless the accused knowingly stored, packaged or concealed cannabis or allowed his premises to be used for the storage of cannabis, intending that not less than 2 kilograms of cannabis be sold.
Section 33R of the Act provides that where a court is not satisfied that an accused committed the offence charged but is satisfied the accused committed another equivalent or lesser offence, the court may find the accused not guilty of the charged offence but guilty of the other equivalent or lesser offence. On a charge of trafficking in a large commercial quantity of cannabis, trafficking a commercial quantity of cannabis and trafficking cannabis are available alternatives as the maximum penalty prescribed in respect of those offences is less than the maximum penalty prescribed for an offence of trafficking in a large commercial quantity of cannabis.
With respect to count 1, the forensic contest between the parties was whether the accused knew of the presence of the cannabis and was in joint possession of it or otherwise took part in its sale. As will be seen, the accused gave evidence denying knowledge of the cannabis. It was not suggested on behalf of the accused that if he were found to have trafficked the cannabis in either way alleged by the prosecution that the presumption as to sale had otherwise been rebutted.
The elements of the offence of possessing prescribed equipment which the prosecution must prove beyond reasonable doubt are:
1.The accused had equipment in his possession; and
2.The equipment in the accused’s possession was prescribed equipment.
Again, to possess prescribed equipment requires the prosecution to prove beyond reasonable doubt that the accused knew of the presence of the equipment and intended to and did exercise control over the equipment to the exclusion of all others, save for those with whom he was in joint possession. Mere knowledge of the presence of the equipment or acquiescence in its storage on his property is not enough.
The Regulations designate light shades, light globes, carbon filters and ballast boxes as ‘prescribed equipment’.
There is no dispute that the equipment found at the property was prescribed equipment. The forensic contest centres on whether the accused was in possession of the equipment.
Before turning to a review of the evidence and explanation of my findings and reasons, I remind myself of some other fundamental matters.
The prosecution bears the onus of proving the guilt of the accused. The standard of proof is beyond reasonable doubt. The accused is not required to prove anything. He is presumed innocent of the charges unless and until the prosecution proves each element of the offences beyond reasonable doubt. In this respect, I keep in mind the comments of the High Court in R v Dookheea (2017) 262 CLR 402 at [41] concerning the standard of proof:
…being satisfied of guilt beyond reasonable doubt does not simply mean concluding that the accused may have committed the offence charged or even that it is more likely than not that the accused committed the offence charged. What is required is a much higher standard of satisfaction, the highest known to the law: proof beyond reasonable doubt.
As the finder of fact, it is necessary for me to make an assessment of the truthfulness and reliability of the witnesses who gave evidence. I may find a witness to be credible or reliable with respect to some but not all of their evidence. However, there was no challenge by the accused to the credibility or reliability of the evidence given by the five prosecution witnesses. What is in dispute however are the inferences that can, and should, be drawn from their evidence.
Contrastingly, the accused’s evidence was the subject of criticism by counsel for the prosecution.
The prosecution relies on multiple pieces of circumstantial evidence to prove its case. An assessment of circumstantial evidence is to be conducted globally. Individual items of circumstantial evidence are not to be discarded or ignored in the fact-finding process because, viewed in isolation, they are incapable of sustaining an inference for which the prosecution contend.[6] My task is to identify the evidence which I accept; the facts which I find established by the evidence and the rational, reasonable and logical inferences I am prepared to draw from those facts and ask whether I am satisfied beyond reasonable doubt of the elements of the offences.
[6] R v Hillier (2007) 228 CLR 618, [48]; R v Baden-Clay (2016) 258 CLR 308, [47].
When considering whether an inference can reasonably be drawn from what I consider to be established intermediate facts, I am to have regard to the whole of the evidence and the facts I find to be proved. It may not be reasonable to draw a particular inference from one intermediate fact or circumstance; but such an inference may be reasonably drawn from the combined effect of the facts I find to be established.
Intermediate facts that are not indispensable to proof of an accused’s guilt need not be proved beyond reasonable doubt.
It is a by-product of the burden of proof that, in a circumstantial case, the prosecution will not have proved either offence beyond reasonable doubt unless I can exclude any reasonable hypothesis arising on the evidence that is consistent with innocence.[7]
[7] Barca v The Queen (1975) 133 CLR 82, 104.
It is not for the accused to persuade me that an inference or inferences other than that he was complicit in the offending should be drawn and it is not for the accused to prove any facts in support of a hypothesis consistent with innocence. Of course, for any such hypothesis to give rise to a doubt as to the accused’s guilt, it must be a hypothesis that reasonably arises on the evidence. A circumstantial case is not defeated because it is possible to articulate an alternative hypothesis, not grounded in the evidence, but which would be inconsistent with guilt.[8]
[8] R v Baden-Clay (2016) 258 CLR 308, [47], [55].
The defence contend that the hypothesis that the accused did not know that the cannabis was being stored in the drums in the shed cannot be excluded, notwithstanding he was the sole registered proprietor of the property and that his fingerprints were found on some of the bags in which cannabis was stored. The defence point to the apparent age of the cannabis and the manner of its storage in support of the submission that it is reasonably possible that the accused did not know of its presence at the property. The defence say that the prosecution cannot prove when the cannabis and prescribed equipment came to be in the shed, and argue that it is most unlikely that the cannabis was in the shed at the time the accused left for Albania. It is submitted that it is implausible the accused would have left such a substantial quantity of valuable cannabis in plastic bags, in drums stored in a shed, for what was to be an extended absence from the jurisdiction for a period of several months.

The defence submit that the prosecution has failed to exclude the hypothesis that another or others with access to the property may have used the opportunity of the accused being out of the jurisdiction to store cannabis and related equipment in the accused’s shed.
At the very least, the defence argue that the prosecution has not excluded the hypothesis that, even if the accused agreed to or knowingly facilitated the storage of cannabis at his house, he did not intentionally take part in the sale of not less than 2 kilograms of cannabis.
At the conclusion of the prosecution case, the accused elected to give evidence. The accused did not have to give evidence. He had the right to remain silent and had he exercised that right, no adverse inference could have been drawn against him. However, the accused elected to give evidence and face up to cross examination and I give him credit for doing so.
As the accused gave sworn evidence denying the allegations, I could only find him guilty if I reject his denials as not reasonably possibly true and I am satisfied beyond reasonable doubt of his guilt on the prosecution evidence. It is not necessary for me to believe the accused’s evidence for it to give rise to a doubt.[9] If, having assessed the evidence of the accused in the same way as I assess the evidence of all other witnesses,[10] I am unable to find that his account is not reasonably possibly true, I must acquit the accused. Of course, even if I were to reject the accused’s denials as not reasonably possibly true, that would not constitute a makeweight or provide any support to the prosecution case and it would not mean the prosecution has proved its case. It would remain for the prosecution to prove the elements of both offences beyond reasonable doubt and, having regard to the circumstantial nature of the evidence, that requires me to exclude any hypothesis arising on the evidence that is consistent with innocence.
[9] De Silva v The Queen (2019) 94 ALJR 100, [10]-[11]; R v Alwazan [2016] SASCFC 155, [3].
[10] Robinson v The Queen (No 2) (1991) 180 CLR 531, 535-536; Stafford v The Queen (1993) 67 ALJR 510; Hargraves v The Queen [2011] HCA 44; (2011) 245 CLR 257.
I make it clear that by speaking of whether the accused’s evidence is reasonably possibly true, it should not be thought that the accused carries any burden to persuade me that his evidence is reasonably possibly true. It is for the prosecution to disprove his account beyond reasonable doubt, and it will have failed to do so if I cannot reject what the accused said as a reasonable possibility. That is not a burden the accused bears but, rather, a possibility that the prosecution must exclude.
In considering the evidence and whether I am satisfied to the criminal standard of the elements of the offences, I have brought an open and unprejudiced mind to bear. I remind myself of the importance of making a decision without sympathy, prejudice or fear.
As the accused is facing two charges, I must give each charge separate consideration by reference only to the evidence admissible in respect of each charge. The parties did not address the cross-admissibility of the evidence of either count in support of the other. No discreditable conduct notice was filed by the prosecution in accordance with s 34P(4) of the Evidence Act 1929 (SA) (Evidence Act). In my view, the evidence of each count is cross-admissible for a non-propensity use, namely, if I was satisfied that the accused was in possession of equipment that can be used to cultivate cannabis, that would demonstrate knowledge and familiarity with cannabis which would be circumstantial evidence relevant to my assessment of whether the accused knew of the presence of the cannabis in the drums. The same process of reasoning would apply if I were to find the accused was in possession of the cannabis the subject of the charge. That finding would demonstrate the accused’s knowledge of, familiarity with and access to cannabis, which would reflect on the probability or otherwise that the accused knew of the presence of the prescribed equipment.
The evidence cannot be used, and I have not used it, to reason that the accused is therefore a bad person; or the sort of person who is more likely to have committed a crime or a cannabis related offence.
The prosecution case
Prior to the commencement of the trial, I heard argument about the admissibility of evidence of an electrician engaged by ETSA, Darren Winter. The prosecution proposed to call Mr Winter to give evidence, based on observations made by an employee of the Office of the Technical Regulator, a Mr Rahill, who attended the Park Terrace property following the police search.
Mr Rahill made notes of his observations during his attendance and he took photographs of what he ultimately considered to be evidence that the electricity meter had been tampered with although there was no meter bypass in place at the time. Mr Rahill also observed a length of cable coiled up in the roof cavity of the workshop or shed that he considered was long enough to extend from the meter to an area that the prosecution alleged was being used to cultivate cannabis on a previous occasion.
The prosecution proposed to call Mr Winter to give evidence, based on the photographs and observations recorded by Mr Rahill, without calling Mr Rahill.
At the first trial of the charges before me, the accused was also charged with interfering with an electricity meter on 25 October 2016. However, that charge was the subject of a directed acquittal by the trial judge.
Counsel for the prosecution, Mr C Allen, accepted that there was no way to determine when the meter tampering took place and, in particular, whether it was before the accused purchased the Park Terrace property. Equally, Mr Allen acknowledged that it could not be said that an electricity diversion was in place, as at 25 October 2016; there was not. Rather, Mr Allen submitted that the evidence was admissible to demonstrate that the meter had been tampered with in a way that could have facilitated an electricity diversion.
As to Mr Winter’s evidence more generally, Mr Allen conceded that the admissibility of any opinions expressed by him would necessarily depend on whether the facts or assumptions on which those opinions were predicated could be proved by admissible evidence and that the absence of Mr Rahill was problematic in this respect. I was also informed that Mr Rahill did not in fact measure the length of the cable found in the roof cavity such that it was mere conjecture that it could have supplied power, via a diversion, to an area where cannabis might have been grown.
In my view, the evidence that the meter had been tampered with at some unknown point in time by an unidentifiable person such that, with additional steps, it could have facilitated a diversion of electricity so as to avoid electricity costs associated with a hydroponic cultivation of cannabis at an unknown time and about which there was no evidence, is not rationally capable of proving, or assisting to prove, a fact in issue or a fact relevant to a fact in issue in light of the concessions appropriately made by Mr Allen. Moreover, to the extent that Mr Winter’s prospective evidence relied on notes or observations made by Mr Rahill and which could not be admissibly proved, it was inadmissible for this further reason. Mr Winter would have been giving essentially a hearsay account of observations made by Mr Rahill for the purpose of then expressing an opinion about matters relating to the electricity meter.
Accordingly, I excluded the evidence.
Before turning to a summary of the prosecution case, I note one further matter. Although it was initially suggested by Mr Allen that the accused had grown cannabis at the Park Terrace premises; that he may have been in the business of cultivating cannabis; and that the cannabis the subject of the charge may have been the product of a crop grown at Park Terrace, these submissions were not ultimately pressed by the prosecution and it was not suggested that I should find that the cannabis had come from Park Terrace.[11]
[11] T248.
The prosecution called five witnesses: Brevet Sergeant Murphy (who is no longer a member of SA Police but who I will refer to for convenience as ‘Brevet Sergeant’), Detective Shepherdson and Detective McCaffrey who each gave evidence about the search of the shed and the items seized by police; Detective Schollar, who gave evidence about the pricing, packaging and sale of cannabis and Ms Trisha Godden, who gave evidence about the examination of fingerprints.
The prosecution case also consisted of a number of agreed facts, including as to the amounts of cannabis found in the drums in the shed and the fingerprint evidence adduced by the prosecution.[12]
[12] P11.
I propose to briefly summarise the evidence adduced by the prosecution.
Brevet Sergeant Murphy
In October 2016, Brevet Sergeant Murphy was based with the Northern District Crime Scene Investigation Service.[13]
[13] T45.
At around 6:25pm on 25 October 2016, Brevet Sergeant Murphy attended the Park Terrace premises in his role as crime scene investigator.[14] The premises were a single storey, freestanding residence with a high fence along the perimeter of the property and two sheds in the rear yard: one a large workshop (the workshop); the other a small garden shed (the small shed). After speaking with Detective McCaffrey, Brevet Sergeant Murphy conducted a walkthrough of the scene where areas and items of interest were identified for forensic examination, including a number of large plastic drums located in the small shed.[15] He was not involved in gaining access to the sheds.
[14] T47.
[15] T47.
Photographs of the property taken by Brevet Sergeant Murphy (P1) show that the sheds ran along the western side of the property in the rear yard.[16] Brevet Sergeant Murphy was shown into the entrance of the small shed where he observed a number of large plastic drums and equipment including light shades and ballast boxes, which he said were consistent with equipment used to grow cannabis hydroponically.[17] Photographs of the equipment were first taken with the items in situ.[18]
[16]   T49.
[17]   T49.
[18]   T50.
Thereafter, some of the equipment was moved to the rear veranda or carport area of the house where Brevet Sergeant Murphy and Detective Shepherdson examined the equipment for latent fingerprints.[19] Brevet Sergeant Murphy was also asked to swab the plastic drums for DNA analysis.[20] There were three drums. Brevet Sergeant Murphy took two swabs; one from a black drum and one from a blue drum.[21]
[19]   T50-51.
[20]   T51.
[21]   T54.
Four latent fingerprints were located on the equipment shown in the photograph marked as exhibit P2. One latent fingerprint was found on a metal ballast box and one fingerprint was found on each of the three lightshades.[22]
[22] T56.
Brevet Sergeant Murphy explained the methodology he follows when searching for latent fingerprints and the process of examination. Each fingerprint detected was given an individual fingerprint label number and photographed at close range (P3). The relevant images were later electronically transferred to the Fingerprint Bureau of South Australian Police for classification and identification.[23]
[23] T55.
In cross-examination, Brevet Sergeant Murphy confirmed that photographs were taken of the plastic bags from the drums. Brevet Sergeant Murphy did not look inside the shopping bags, nor did he recall seeing any of the contents of the shopping bags.[24] He did not know who removed items from the small shed that were depicted in P2, namely the three light shades and ballast box on which fingerprints were found.[25]
[24] T70.
[25] T72.
Detective Brevet Sergeant Shepherdson
In 2016, Detective Shepherdson worked as an officer within the Serious Crime Task Force. He attended the Park Terrace property on 25 October 2016 at approximately 4:35pm and was assigned the role of exhibits officer.[26] He was in company with Detective McCaffrey and was met by Detectives Zetter and Odell.
[26] T74.
Detective Shepherdson gave evidence that police tried the intercom on the front fence but there was no answer. He gained entry to the rear yard of the property by climbing over the fence at either the northern or eastern boundary.[27] No-one was present at the property. In the rear yard of the property, there was a larger, workshop style shed and a smaller garden shed. Access to the workshop was gained through a louvred window.[28] Detective Shepherdson spent some time inside the workshop making observations. He did not recall how he exited the workshop.[29]
[27] T76.
[28] T77.
[29] T76.
Detective Shepherdson then observed Detective McCaffrey gain entry to the smaller shed at the rear of the workshop. A large amount of hydroponic equipment and three large plastic drums were located in this shed.[30] Detective Shepherdson then commenced an exhibits log and removing items from the shed to be tagged and labelled.[31] An undercover area attached to the main house was used for this purpose.[32] Items seized by searching officers were presented to Detective Shepherdson who would record a description of the item and where it was seized from based on information provided by the seizing officer.[33] Seized items were given an individual code, beginning with PAR - an acronym for Park Terrace.[34]
[30]   T78.
[31]   T78.
[32]   T78-79.
[33]   T79.
[34]   T80.
Detective Shepherdson also obtained a rudimentary site plan of the property (P4). The plan shows the layout of the main house and the position of the two sheds at the back of the property.
Detective Shepherdson took a series of photographs during the course of the investigation (P5). The photographs show the inside of the small shed, workshop and residence.
At the time of police attendance, the front door to the house was locked and so too was a door that provided internal access from the garage.[35] Access was however obtained to the residence. Photographs 10 to 19 of P5 depict various documents in the names of the accused, the accused’s wife and the accused’s son. The documents were found in the house and seized by police.[36]
[35] T87-88.
[36] T88.
Photographs 30 to 36 of P5 show a number of items seized by Detective McCaffrey from the small rear shed, namely:[37]
·54 light shades.
·16 light shades with fittings.
·56 light fittings in three crates / tubs.
·Four carbon filters.
·89 ballast boxes.
·85 light globes.
[37] T91-96.
Three drums were also located in the small shed by Detective McCaffrey and marked for identification purposes. The black drum marked as PAR.S.5 contained 42 individual plastic shopping bags containing female-flowering cannabis. The black drum marked PAR.S.6 contained 33 shopping bags,[38] including a single quantity of cannabis which was ‘double bagged’.[39] A blue drum marked PAR.S.7 contained 39 shopping bags with cannabis. Again, one parcel of cannabis had been double bagged.[40]
[38] T101.
[39] T102.
[40] T93-94.
The shopping bags were submitted to Forensic Science South Australia (FSSA) for analysis. The amount of cannabis contained in each of the drums was agreed by the parties (P11), and I will set this out in due course. In total, there was 51.8 kilograms of cannabis across the three drums.
Detective Shepherdson departed the Park Terrace premises at around 8:30pm. The hydroponic equipment was later conveyed to Ottoway. Other items were lodged at Parks Police Station.[41]
[41] T96-97.
On 26 and 31 October 2016, Detective Shepherdson decanted the contents of the three drums, beginning with the drum marked PAR.S.5 at the SA Police Adelaide Exhibit Property Section.[42] The 42 plastic shopping bags were removed from the drum; the cannabis was taken out of the bags and each bag was itemised separately.[43] The same process was followed with respect to the drums labelled PAR.S.6 and PAR.S.7. Photographs of the decant process were taken (P6, P7).
[42] T97.
[43] T98.
The decanted cannabis was entered onto the police property management system and submitted to FSSA for analysis.[44] The shopping bags originally containing cannabis were submitted for fingerprint analysis.
[44] T103.
In cross examination, Detective Shepherdson agreed that the cannabis he decanted was dry but with a bit of moisture. He acknowledged that cannabis left in an undried or moist state can turn mouldy and become useless.[45]
[45] T105.
As to the three light shades depicted in P3, Detective Shepherdson agreed that he could not identify which of the 54 light shades seized they were but maintained they were part of the 54 seized.[46]
[46] T105-106.
Detective Brevet Sergeant McCaffrey
Detective McCaffrey was designated the role of case officer in this investigation. At the time of the search, he held a general search warrant.[47] He attended at the property at approximately 4:35pm with Detective Shepherdson. Upon arrival, they parked in a vacant lot next to the property. Detective McCaffrey attempted to enter through the front of the premises but there was a high fence around the perimeter of the property and a pedestrian gate which could not be opened. Detective McCaffrey said that he was approximately 6’3” to 6’4” tall and the fence was the same height as him. The driveway was blocked by a sliding roller door.[48]
[47] T108.
[48] T110.
Detective McCaffrey tried the intercom system for the pedestrian gate but there was no answer. Thereafter, Detectives McCaffrey, Shepherdson and Zetter gained entry to the property by jumping over the fence.[49]
[49] T111.
After gaining access to the front yard, Detective McCaffrey knocked loudly on the front door and announced police presence. He then did the same on the front windows of the house. He did not hear any noises, and no one answered his calls or knocking.[50] He proceeded to the backyard and knocked on the doors and windows. Again, there was no answer.[51]
[50] T110-114.
[51] T114.
Detective McCaffrey observed the sheds at the rear of the premises. He looked in through the windows of the workshop and saw a purpose-built room with a carbon filter above an internal entrance within the workshop.[52] Detective McCaffrey said that carbon filters, like the one he observed in the workshop, were commonly used to mask odours and is prescribed equipment.[53]
[52] T115.
[53] T119.
He removed panes of glass from the louvred window, climbed through with Detective Shepherdson and unlocked the sliding door which was the main access point.[54]
[54] T115.
After opening the workshop, Detective McCaffrey moved to search the small shed. Entry was gained by breaking a lock and forcing the door open.[55] Detective McCaffrey observed a large quantity of prescribed equipment (including light shades, ballast boxes and carbon filters)[56] as depicted in P1, together with what he recognised to be hydroponic chemicals and items associated with the cultivation of cannabis.[57] The equipment was moved into the backyard for the purpose of labelling and recording it on the exhibits log. None of the chemicals or other liquid filled containers were seized.[58]
[55]   T120.
[56] T131-133.
[57]   T120-121.
[58]   T129.
As noted earlier, three large plastic drums were also found in the rear shed. Upon opening one of the drums by unscrewing the lid, Detective McCaffrey immediately smelt cannabis and observed plastic shopping bags that contained a substance he believed to be cannabis. The search was interrupted for a video camera to be retrieved so the scene could be recorded (P8).[59]
[59] T122-123.
Detective McCaffrey confirmed that it was only upon unscrewing the lid to one of the drums that he detected the smell of cannabis.[60] He was wearing rubber gloves at the time; the same gloves he had been wearing when he gained access to the workshop.[61]
[60] T123.
[61] T123.
By reference to the video walkthrough (P8), Detective McCaffrey explained that the workshop contained two internal rooms that had been constructed using gyprock. There was a deck chair and a saw in one of the rooms, but nothing that Detective McCaffrey considered to be prescribed equipment.[62] Other than the carbon filter depicted in photograph 4 of P1, there was no other prescribed equipment within the workshop.[63]
[62] T127.
[63] T134.

At the completion of the walkthrough, Detective Zetter assisted Detective McCaffrey to remove prescribed equipment from the small shed for processing.[64]
[64] T131-133.
A search of the house was also conducted. To gain entry, the rear door was forced open.[65]
[65] T134.
Detective McCaffrey obtained an extract from the register of motor vehicles relating to a Holden Sedan parked at the property at the time of the search. The extract showed that the car was registered in the name of the accused (P9). The certificate of title for the property confirmed the accused to be the sole registered proprietor (P10).[66]
[66] P11, [6].
In cross-examination Detective McCaffrey confirmed that interest in the accused’s property came about as a result of an investigation into a man by the name of DP.[67]
[67] T135.
Detective McCaffrey agreed that as at the date of police attendance at the property, it appeared that building work was being undertaken.[68]
[68] T135.
He agreed further that he could not smell cannabis when entering the small shed, and it was only upon opening one of the drums that the smell of cannabis was immediately detectable. Detective McCaffrey said he was familiar with cannabis as a result of his professional experience, but he was unable to say whether the cannabis located in the shed was ‘fresh’ or how old it was. He agreed cannabis would degenerate in a short amount of time if not stored correctly, which would destroy any commercial value it might have. Detective McCaffrey was unable to say whether the cannabis would degenerate if stored in one of the drums for ‘any length of time’.[69]
[69] T136-137.
Detective Inspector Schollar
Detective Schollar gave uncontroversial evidence about the growth, packaging and sale of cannabis and, in particular, the pricing of cannabis at around October 2016 and the typical features of cannabis ‘grow houses’.
There was no dispute as to Detective Schollar’s qualifications and experience to give this evidence.[70]
[70] T138-140.
Detective Schollar said that cannabis can be grown by one person alone, or as part of a larger, syndicated operation, within which different participants will fulfill different roles, such as residing at or visiting a grow house to tend to a crop.[71]
[71] T143.
Detective Schollar described a cannabis grow house as, typically, a house where it is clear that no one resides, and the property is being used solely for the production of cannabis, although it is not unknown for people to cultivate cannabis at premises they are occupying.[72] In Detective Schollar’s experience, sheds on properties can be used to cultivate cannabis while the main residence is used in an ordinary, everyday way.[73]
[72] T142-143.
[73] T143.
Properties to be used for such purposes are commonly acquired in false names and counter-surveillance measures, such as shutters, security doors and cameras, can be used to improve security and mitigate the risk of detection by law enforcement.[74]
[74] T144.
With respect to the sale of cannabis, Detective Schollar explained that street level deals can range from what is called a ‘J-bag’ which is a small plastic bag containing a few grams of female flowering cannabis to sandwich bags of up to 25 grams of cannabis. Larger quantities of cannabis are commonly trafficked in pounds, also referred to as an ‘LB’ or ‘elbow’, which is approximately 454 grams.[75] Cannabis is commonly stored in vacuum sealed packaging for transport intra or inter-State.[76]
[75] T141.
[76] T141, 149.
As at October 2016, the average price of a pound of cannabis was between $2,200 and $3,000, with price being influenced by a number of factors including the relationship between buyer and seller, supply and demand variables and the quality of the cannabis, amongst others.[77]
[77] T144, 146. The cost of an ounce of cannabis in the same time period was said to be around $100 to $300: T145.
Detective Schollar confirmed that, in his experience, the plastic bag packaging of cannabis seen at the Park Terrace residence (for example, at page 6 of P1) is consistent with traditional ‘pound bag packaging.’ As to the drums in which the cannabis was found, Detective Schollar said they are typically used as water stores for hydroponic crops, but any large container can be used to store cannabis.[78]
[78] T147.
Detective Schollar described the different uses of the prescribed equipment found at the property. Ballast boxes are used within a hydroponic set up to regulate the flow of electricity to other equipment. High wattage globes and light shades are used to amplify or focus light for crop development.[79] The light shades depicted in P3 are typical of light shades used in hydroponic cultivations.
[79] T148.
In cross-examination, Detective Schollar said that cannabis was typically vacuum sealed to reduce its odour during transportation.[80]
[80] T149.
Detective Schollar agreed that the greater the moisture content within cannabis, the more difficult it was to manage. The time over which cannabis will degrade depends on its moisture levels and how it has been dried. Better storage performance is obtained from vacuum sealing cannabis.[81] He could not comment on whether cannabis stored in plastic bags in the drums found in the small shed would essentially turn to, as defence counsel put it, ‘mush’, but accepted as a general proposition that exposure to certain conditions would affect the integrity of any organic product.[82]
[81] T150.
[82] T151.
With reference to the condition of the cannabis found in the small shed (as shown at 3:40 in P8), Detective Schollar said the cannabis looked like ‘pretty good quality’ and ‘it’s closer to have been harvested and dried than not’. He was not prepared to comment on the proposition that if the cannabis was stored in a plastic bag in an airtight drum, it would eventually liquify.[83]
[83] T152.
Detective Schollar observed however that the point of cultivating cannabis is generally financial gain. Cannabis is cultivated with a view to disposing of it given it is a commercial product grown to make profit,[84] such that growers are ‘not looking to sit on it for a long time or to a point where it turns into mush’.[85] Self-evidently, as liquified cannabis is an un-saleable commodity, cannabis that is grown and harvested needs to be ‘moved on quickly’ and Detective Schollar agreed that ‘if it’s not properly stored and degenerates…it becomes low quality’ and ‘buyers will not buy low quality…cannabis if they have an ability to buy a better quality for the same prices.’[86]
[84]   T152.
[85]   T152.
[86]   T152.
Trisha Lyne Godden
Ms Godden works as a fingerprint examiner with the Fingerprint Bureau of South Australia Police. Her evidence focused on the collection and examination of fingerprint impressions.
Again, Ms Godden’s qualifications and experience were not disputed and it is unnecessary for me to set them out.
Ms Godden gave uncontroversial evidence about fingerprints and how fingerprint impressions are produced. She explained that the friction ridge skin on a person’s fingertips (and palms) produce unique configurations such that upon comparison of a fingerprint impression left on an object and a known exemplar of a person’s fingerprint, an opinion can be formed as to the origin of the fingerprint impression. A methodology described as ‘analysis, comparison, evaluation and verification’ is used for the purpose of making identifications.[87] Whether an opinion as to the origin of a fingerprint impression can be expressed depends on the quality of the impression and the nature of the friction ridge characteristics that can be detected.[88]
[87] T155-156.
[88] T156.
Turning to her examinations in this case, the bags located in the plastic drums in the shed and collected by police were submitted for analysis. Fingerprint impressions found on the bags were then compared to a fingerprint card containing impressions taken from the accused on 1 March 2017.[89]
[89] T163.
With respect to the drum marked PAR.S.5 which contained 42 individual plastic bags containing cannabis, 14 bags were randomly selected for analysis.[90] Fingerprint impressions were identified on the bags marked 13B, 19B, 28B, 37B and 39B.[91] Examination of the bag marked 13B revealed an impression that was identical to the right thumb of the accused. An impression on the bag labelled 37B was found to be identical to the accused’s left thumb.[92]
[90]   T59.
[91]   T160-161.
[92]   T164-165; P11, [21.1-21.2].
From drum PAR.S.6, which contained 33 plastic bags, 11 bags were randomly selected for analysis. Impressions were identified on two bags marked 28B and 11B. A fingerprint impression detected on bag 28B was identical to the accused’s right ring finger. On bag 11B, two separate impressions were located, however there was insufficient friction ridge detail to make a positive identification but the left palm and left little finger of the accused could not be excluded as having left the impressions.[93]
[93] T164; P11, [21.3].
From drum PAR.S.7, 13 of the 39 bags were chosen for analysis at random. Fingerprint impressions were identified on eight separate bags and the results of comparison with the accused’s fingerprint card were as follows:
·6B, identical to the left index finger of the accused;
·20B, identical to the left index finger of the accused;
·29B, identical to the right palm of the accused. Bag 29B contained three other, separate impressions. Two were identical to the right middle finger of the accused and the remaining impression contained insufficient detail for identification.[94]
·32B, identical to the right ring finger of the accused;
·34B, identical to the right thumb of the accused.[95]
[94] T165.
[95] P11. [21.4-21.9].
Four fingerprint impressions located on the prescribed equipment marked as P1 to P4 and appearing in the photographs marked P3, were also analysed. The first and second impressions (P1 and P2) contained insufficient detail for identification. Impression P3 was identical to the left index finger of the accused. Analysis of the fourth impression (P4) revealed two fingerprints, one identical to the right ring finger of the accused; the other contained insufficient detail for identification.[96]
[96] T167-168; P11, [19].
In cross-examination, Ms Godden agreed that it is not possible to date a fingerprint detected on an item or surface.[97] There are many variables that influence how long a fingerprint may remain on an item or surface and it is possible a fingerprint impression could be ‘years old’.[98]
[97] T169.
[98] T170.
Agreed Facts
The following facts were agreed by the parties (P11):
1.Hekuran Zenuni married [XD] on 30 October 2013.
2.[XD] was born on 18 May 1979.
3.Hekuran Zenuni and [XD] are the parents of [SZ] born on 27 July 2011 and [AZ] born on 1 April 2014.
4.Hekuran Zenuni purchased [Park Terrace, Brahma Lodge] on 11 April 2014.
5.Hekuran Zenuni was the sole registered proprietor of 189 Park Terrace Brahma Lodge on 25 October 2016.
6.Records held by the Operations Management Section of the Australian Border Force record that Hekuran Zenuni departed from Adelaide on 30 September 2016 and travelled to Albania.
7.Records held by the Operations Management Section of the Australian Border Force record that Hekuran Zenuni departed from Albania on 4 December 2016 and travelled to Adelaide.
8.When arriving in Australia on 4 December 2016, Hekuran Zenuni completed an incoming passenger card where he nominated his address as [Park Terrace, Brahma Lodge]. The incoming passenger card stated that his intended address in Australia was [Park Terrace, Brahma Lodge] and that he intended to live in Australia for the next 12 months.
9.The contents of the 42 shopping bags decanted by Detective Shepherdson from the plastic drum PAR.S.5 were submitted to Forensic Science South Australia for analysis. On analysis, one bag contained 802 grams of female cannabis plant material. Of the remaining 41 bags, 10 were selected at random. Each of the 10 bags contained between 454 grams and 460 grams of female cannabis plant material. The 42 bags contained a total of 19.8 kilograms of female cannabis plant material.
10.The contents of the 33 shopping bags decanted by Detective Shepherdson from the plastic drum PAR.S.6 were submitted to Forensic Science South Australia for analysis. Ten of the bags were selected at random. Each of the 10 bags contained between 429 grams and 545 grams of female cannabis plant material. The 33 bags contained a total of 14.6 kilograms of female cannabis plant material.
11.The contents of the 39 shopping bags decanted by Detective Shepherdson from the plastic drum PAR.S.7 were submitted to Forensic Science South Australia for analysis. Ten of the bags were selected at random. Each of the 10 bags contained between 451 grams and 505 grams of female cannabis plant material. The 39 bags contained a total of 17.4 kilograms of female cannabis plant material.
12.The cannabis decanted from the plastic drums PAR.S.5, PAR.S.6 and PAR.S.7 weighed a total of 51.8 kilograms.
13.The swab taken by Brevet Sergeant Murphy from the lid of the blue plastic drum PAR.S.6 labelled 53673-996-2 was submitted to Forensic Science South Australia for analysis for the presence of Deoxyribonucleic acid “DNA”. The DNA profile from the swab was too complex for analysis and comparison with any other reference sample.
14.The swab taken by Brevet Sergeant Murphy from the lid of the black plastic drum labelled 53673-9 97-1 was submitted to Forensic Science South Australia for analysis for the presence of DNA. The DNA profile from the swab was too complex for analysis and comparison with any other reference sample.
15.The impression number 901411075 taken by Brevet Sergeant Andrew Murphy and designated P1 was taken from the ballast box marked P1 shown in exhibit P3.
16.The impression number 901411086 taken by Brevet Sergeant Andrew Murphy and designated P2 was taken from the light shade marked P2 shown in exhibit P3.
17.The impression number 901411097 taken by Brevet Sergeant Andrew Murphy and designated P3 was taken from the light shade marked P3 shown in exhibit P3.
18.The impression number 901411105 taken by Brevet Sergeant Andrew Murphy and designated P4 was taken from the light shade marked P4, shown in exhibit P3.
19.The impressions P1, P2, P3 and P4 taken by Brevet Sergeant Andrew Murphy were submitted to the South Australia Police fingerprint Bureau for examination. The results of the examinations are as follows:
a.      P1 contained insufficient detail for identification.
b.      P2 contained insufficient detail for identification.
c.      P3 is identical to the left index finger of Hekuran Zenuni.
d.              P4 contained two separate impressions. One impression is identical to the right ring finger of Hekuran Zenuni. The remaining impression contained insufficient detail for identification.
20.On 4 November 2016 the following were delivered to the South Australia Police fingerprint Bureau for examination:
a.               42 bags designated PAR.S.5.1B – PAR.S.542B, of which 14 bags were examined.
b.              33 bags designated PAR.S.6.1B – PAR.S.6.32B, of which 11 bags were examined.
c.               39 bags designated PAR.S.7.1B – PAR.S.7.38B, of which 13 bags were examined.
21.At least 30 impressions were located on the bags selected for examination. These impressions include the following:
a.               An impression in the centre of the bottom half of the bag PAR S.5.13B which is identical to the right thumb of Hekuran Zenuni.
b.      An impression the side of the bag PAR S.5.37B in centre of bottom half, which is identical to the left thumb of Hekuran Zenuni.
c.       An impression on the bottom right quadrant of the bag PAR S.6.28B which is identical to the right ring finger of Hekuran Zenuni.
d.      An impression in the centre of the bottom left quadrant of the bag PAR.S.7.6B which is identical to the left index finger of Hekuran Zenuni.
e.       An impression on the upper right quadrant near the handle of the bag PAR S.7.20B which is identical to the left index finger of Hekuran Zenuni.
f.       An impression on the bottom left quadrant near the edge of the bag PAR S.7.29B which is identical to the right palm of Hekuran Zenuni.
g.      Two impressions in the centre of the bag PAR S.7.29B which are identical to the right middle finger on the Hekuran Zenuni [sic].
h.              An impression in the upper left quadrant of the bag PAR S.7.32B which is identical to the right ring finger of Hekuran Zenuni.
i.       An impression in the bottom right quadrant of the bag, PAR S.7.34B which is identical to the right thumb of Hekuran Zenuni.
22.The remainder of the impressions located on the bags either have insufficient detail for identification or remain unidentified, following a search on the National Fingerprint database.
23.Each of the 5 bags from PAR.S.5 upon which an impression of a fingerprint was located by the South Australia Police fingerprint Bureau are shown in exhibit P6.
24.Each of the 2 bags from PAR.S.6 and each of the 8 bags from PAR.S.7 upon which an impression of a fingerprint was located by the South Australia Police fingerprint Bureau are shown in exhibit P7.
It is apparent from the agreed facts, but it should not go unremarked upon, that the accused was out of the country from 30 September 2016 to 4 December 2016. This means that, at the time of the police search, the accused had been away from his house for almost a month.
The defence case
The accused elected to give evidence and did so with the assistance of an interpreter. However, the majority of his evidence was given in English.
At the time of giving evidence, the accused was aged 50 years old. He described his occupation as a gyprock fixer.[99] The accused has four brothers, three of whom lived in Adelaide at that time of these proceedings and were also gyprock fixers.[100]
[99] T174.
[100] T174-175.
The accused was born and educated in Albania to Year 9. He moved to Australia on a refugee visa in September 1992 when he was 18 years old and has been an Australian citizen since 1995.[101]
[101] T175.
The accused married his wife in 2013. At the time of the trial, he had two children aged 12 and 10. He purchased the Park Terrace premises in 2014 for $260,000 with the date of settlement being 11 April 2014.[102] Between 2014 and September 2016, work was done at the property by a number of contractors, including the accused himself, and an electrician by the name of DP.[103]
[102] T180.
[103] T183.
Photographs of the house when it was first purchased were tendered (D12) to show the state of the property in comparison to its condition at the time of the police search. It is apparent that substantial work had been undertaken in the intervening period.[104]
[104] T180.
The accused said that throughout the renovations, he and his wife lived in a rental property at Valley View. In mid-September 2016, they moved into the Park Terrace property.[105] By that time, substantial progress had been made with renovations but they were not yet complete.[106] In particular, the electrical work was incomplete.[107]
[105] T185.
[106] T186.
[107] T186.
The trip to Albania
As I have said, it was an agreed fact that the accused was not present in Australia at the time of the police search on 25 October 2016. He was in Albania. The purpose of travel was for his brother-in-law’s wedding, which the accused had become aware of around three months beforehand. The accused travelled to Albania on 30 September 2016 returning to Australia on 4 December 2016.[108] He had been living at Park Terrace for around two to three weeks when he and his family left for Albania.[109] The accused expected outstanding electrical and floor-polishing work to be done during his absence because ‘that was the main stuff that I needed to be done in the house…to become in a…liveable condition’.[110]
[108] T187, P11, [6-7].
[109] T187.
[110] T188.

On the day of their departure, the accused’s brother took him and his family to the airport in one of the accused’s vehicles (a Honda). The accused gave his house keys to his brother and had previously given keys to the electrician, DP, so that he could work at the property as and when he had time. Keys were also provided to the floor polisher, AZ.[111]
[111] T189.
The accused gave evidence that while he was in Albania, he had to purchase a different SIM card to use his mobile phone, and the telephone reception was very poor.[112]
[112] T189-190.
In cross-examination, the accused said he had been given DP’s number when he was looking for an electrician. He contacted DP and asked him to quote for the electrical work that needed to be done at the house. DP commenced working at Park Terrace sometime around late 2014. The accused would contact him by phone when he needed him but explained an ongoing problem in getting DP to complete work.[113]
[113] T214.
As at September 2016, the accused had an agreement with the landlord at Valley View that he could remain living there for as long as he wanted. Accordingly, there was no need for the family to move to Park Terrace with renovations still ongoing. The accused said he moved to Park Terrace before the renovations were finished because he had not expected the work to take so long and he was still paying $300 rent per week at Valley View plus his mortgage.[114]
[114] T218-218.
The accused was working in 2016 and earning around $2500 per week.[115]
[115] T221.
When they moved to Park Terrace in September 2016, they moved all of their possessions including what the accused considered to be ‘a lot’ of children’s toys.[116]
[116] T222.
Access to the house and sheds
The accused gave evidence that when he returned to the house on 4 December 2016, he became aware that the search had occurred as the house ‘was all upside down’, the electricity was off and there were police cards on the kitchen table.[117] The accused said he called DP to fix the electricity.
[117] T190.
In cross examination, the accused said he organised for his brother to look after the house during his absence but this did not include an arrangement for his brother to stay at the house. The accused was essentially concerned about security and did not want passers-by to think the house was unoccupied.[118]
[118] T202-203.
Along with the keys, a remote control to open the driveway gate and a key to open the pedestrian gate were also given to his brother and DP.[119]
[119] T206.
The accused said that he expected DP to be working at the property whilst he was in Albania as he needed to install lights in various locations both outside and inside.[120] When he left for Albania, there were some parts of the house that did not have an electricity supply.[121]
[120] T214-215.
[121] T206.
DP had been given a set of keys to the property in 2015 and when the accused changed various locks, he provided DP with an updated set of keys. The keys had initially been provided to DP because the accused was not living on site during the early part of the renovations.[122]
[122] T216.
The accused said he told DP that he was going away before he left for Albania so that DP would not expect him to be at home when he turned up.[123]
[123] T216.
With reference to photograph 20 of P5, which depicts the master bedroom, the accused said that the bed would not have been left in its apparently unmade state when he and his wife left for Albania.[124] I add here that the bed could well have been disturbed by police during the course of their search of the residence.
[124] T233.
Use and contents of sheds
The accused said that prior to leaving for Albania, the small shed contained some shelves, garden tools and building materials.[125] He denied that the three drums and the black plastic pots that can be seen in photograph 8 of P5 were in the small shed when he left for Albania.[126] He denied that the carbon filters shown on page 4 of P1 were in the small shed.[127] He was unsure where the orange wheelbarrow that can be seen in photograph 8 of P5 (and photographs 2907 and 2908 of P1) was when he departed.[128]
[125] T192.
[126] T193, 194-195, 197.
[127] T193.
[128] T192-193.
The accused said that none of the prescribed equipment was at the property prior to him leaving except for ‘three or four shades’ that he had from a long time ago, which explained why his fingerprints were found on two of the shades.[129] He did not give anyone permission or authority to store the equipment at Park Terrace.[130]
[129] T193, 197-199.
[130] T197-198.
As to the configuration of the workshop, the accused said that he constructed the two gyprock rooms within the workshop shortly before he left for Albania to store his children’s toys and provide a space for them to play.[131] The accused’s daughter would have been around two and a half at the time and his son around five or six.
[131] T195.
He had never seen the carbon filter shown in photograph 004 of P5.[132]
[132] T195.
He disagreed the rooms were used for any other purpose.
The accused denied having any knowledge about the cannabis police found or allowing anyone else to store the cannabis in the shed.[133]
[133] T197.
In cross-examination, the accused confirmed that his position was that at no stage before he returned to Australia in December 2016 did he have any idea that there was cannabis at the Park Terrace property; he did not give anyone permission to store cannabis at his house or to store equipment for growing cannabis at his house.[134]
[134] T201.
The accused initially said that the key required to access the small shed if it was locked was different to the house key, but then remarked that he could not remember if he had a key for the small shed.[135] He agreed there was no reason for him to have given DP a key to the small shed if he had one.[136]
[135] T206-207, 216.
[136] T216-217.
The accused agreed further that the door to the rear shed could be locked, but said he never needed to lock it.[137] It will be remembered that Detective McCaffrey said that access was gained to the rear shed by breaking the lock and forcing the door open.
[137] T207.
He acknowledged that he had a number of items in the small shed at the time he left for Albania but could not remember whether the shed was locked when he departed.[138] The accused was asked to identify in P8 items in the small shed that belonged to him. He pointed out a set of drawers and a vacuum cleaner.[139]
[138] T203, 207-208.
[139] T210.
As to the construction of the internal rooms in the workshop, the accused said that took him ‘a couple of days’ and he did the work because ‘the house on the inside was pretty good, it was floor polished and I had left the bedroom, one of the bedrooms for the kids to play, but then they started…had scribbled on the walls as soon as we moved in and I thought it might be better option for them to, if I made the room in the workshop.’[140] He created two rooms because he thought of turning it into a ‘granny flat’ in the future. The accused accepted that, as things were at the time of the police search, it would not have been possible to see the children playing in the workshop from the house.[141]
[140] T229.
[141] T230.
The accused accepted further that, at the time of the trip to Albania, only two of the four bedrooms at the Park Terrace house were being used: the master bedroom, where the accused slept with his wife and their young daughter and a bedroom occupied by his son.[142] Accordingly, there were two spare bedrooms in the house as at September 2016.
[142] T233-234.
It was put to the accused that the construction of the internal rooms in the workshop was not for the purpose of creating ‘playrooms’ or a granny flat, to which the accused responded: ‘Well, the gyprock was because there was a lot of spiders and stuff and before – before I gyprocked it so I wanted to make a nice clear area for the kids.’[143] The accused did not remember whether he had asked DP to put lights in the workshop.[144]
[143] T230-231.
[144] T231.
It was not put to the accused that he had constructed the rooms in the workshop for the purpose of growing cannabis hydroponically.
The accused had belongings in the workshop, which was also lockable but, again, he could not remember whether he locked the sliding door or another internal door within the workshop, before leaving.[145] The front door to the house and the door providing access to the rear of the property from the garage would however have been locked.[146]
[145] T203.
[146] T204.
The accused confirmed that access to the rear of the property could, in any event, be obtained by walking down the left hand side (from street view) of the house.[147]
[147] T205.
The accused was asked about the writing visible on two of the drums found in the small shed. He denied that it was his handwriting but agreed that the writing on the drums was in Albanian. The word ‘mire’, sometimes spelt ‘mira’, and which can be seen clearly on two of the drums, means ‘good’ in Albanian. On the blue drum, the words ‘32 Te mira’ mean ‘32 good’.[148] There were 32 parcels of cannabis in the blue drum, one of which was ‘double bagged’, bringing the total number of bags in the drum to 33.
[148] T200.
As to the writing on the drum depicted on pages 10 and 11 of P1, the accused gave the following evidence:
QDo you see the first word, it looks like it starts with a G in English, can you see that.
AYes.
QCan you read that.
AG-I-Y-S-E, I don't know the last letter.
QIs that an Albanian word.
AYes.
QWhat does it mean.
AHalf.
QSorry. Half.
AHalf, yes.
QThen it says 'to mira' doesn't it.
AYes.
QThen what does it say.
AGood.
QGood.
AYeah.
QHalf, good.
AYeah.
QThen what does it say.
AHalf - with.
QWith.
AI can - I can't see the -
QYou can't make out the rest.
ANo.
QIs that your writing.
ANo, it's not.
QBut it is Albanian, isn't it.
AYes.
The accused said DP did not speak Albanian.[149]
[149] T214.
Returning to the three or four light shades the accused had from ‘a long time ago’, the accused said that he did not recognise any of the light shades depicted in P3 and he could not remember where they were.[150] It was not suggested to the accused that his fingerprints were on the light shades because he had previously used them in the course of cultivating cannabis. As I said earlier, the issue of cultivation at the Park Terrace premises was raised before the commencement of the trial proper, but ultimately not pursued by the prosecution.
[150] T225.
Shopping bags
With respect to the photographs on pages 8 and 9 of P1, showing the blue drum (PAR.S.7) and the 39 cannabis filled plastic bags it contained, the accused said that his wife collected plastic shopping bags to use as bin liners in the laundry and bathroom and to pack lunches for him.[151] When they moved, she had taken the shopping bags from the Valley View property to the Park Terrace premises.[152]
[151] T194.
[152] T194.
In cross-examination, the accused repeated that his wife had taken shopping bags to Park Terrace during the move. He said further that he was also collecting shopping bags at the time because his wife did not drive so on most occasions, he did the shopping.[153] They took ‘tens’ if not ‘hundreds’ of shopping bags to Park Terrace as part of the move.[154] The bags were kept under the kitchen sink and in a drawer in the kitchen.[155] The accused would sometimes use a bag from the kitchen.[156]
[153] T222.
[154] T223.
[155] T224.
[156] T224.
The accused denied that the reason his fingerprints were found on some of the shopping bags was that he packaged the cannabis or produced some of the bags so that cannabis could be stored in them.
He denied putting any plastic bags in the drums.[157]
[157] T224.
When asked if he could explain how his fingerprints came to be on eight plastic bags found in the drums, the accused said ‘I don’t know’.[158] Of course, the accused has no obligation to proffer an explanation for anything and carries no burden to prove his fingerprints came to be on plastic bags ‘innocently’. It remains for the prosecution to prove beyond reasonable doubt the elements of the offence and to disprove any hypothesis arising on the evidence that is consistent with the accused’s innocence including, in this respect, that the accused’s fingerprints may have come to be on the plastic bags because they were commonly used items within his household both at Valley View and at Park Terrace.
[158] T224.
The accused rejected the suggestions put to him in cross-examination that he knew the cannabis was in the rear shed when detected by police; that the cannabis was his and had been packed away whilst he was in Albania; that he intended to sell the cannabis; that the prescribed equipment was his, whether solely or with another; that he permitted his premises to be used for the storage of cannabis; that he in fact packaged some of the cannabis in the bags or provided the bags for the purpose of packing them with cannabis; and that he had told a story to explain why his fingerprints were located on a number of plastic bags found inside the drums.[159]
[159] T236-237.
Prosecution Address
I turn then to the arguments of the parties.
The prosecution case is that the accused was not acting alone in the enterprise that was on foot at his property at the time of the police search. The two pathways to guilt upon which the prosecution relied were, as I have earlier said:
1.The accused was in joint possession of the cannabis and equipment with another or others.
2.The accused knowingly and intentionally took part in the sale of the cannabis by permitting his premises to be used for the storage of the cannabis; packaging the cannabis in bags or knowingly providing the bags for storage of the cannabis, intending that not less than 2 kilograms of it would be sold. This second pathway to conviction does not require proof that the accused was in possession or joint possession of the cannabis. It would be sufficient if the accused knowingly took a step in the process of sale of not less than 2 kilograms of cannabis, intending that more than 2 kilograms of the cannabis was to be sold.
As to the first pathway, counsel for the prosecution, Mr C Allen, submitted that it is not necessary as a matter of law for the prosecution to identify any others with whom the accused was in joint possession of the cannabis. He argued it would be sufficient if the prosecution established that the accused shared an intention with another or others to exercise control over the cannabis to the exclusion of all others. Mr Allen submitted that, as a matter of logic, the accused was in joint possession of the cannabis with another or others who had access to the small shed in particular and on the accused’s own evidence, the pool of people with such access distilled to one of his brothers, the electrician DP and the floor polisher AZ.
Mr Allen acknowledged that it was incumbent on the prosecution to disprove the hypothesis that another person or people had stored the cannabis and prescribed equipment in the small shed without the accused’s knowledge, and rightly conceded that even if the accused knew of the presence of the cannabis and equipment or acquiesced in their storage, that would not suffice to prove joint possession. However, as Mr Allen pointed out, the accused’s evidence is clear: he did not know of the presence of the cannabis or the equipment.
Mr Allen accepted that on both limbs of the prosecution case, it was necessary for the prosecution to prove that the accused intentionally trafficked in not less than 2 kilograms of cannabis. This requires the prosecution to prove that the accused either jointly possessed a large commercial quantity of cannabis, intending that at least 2 kilograms of it be sold or that he took part in the sale of a large commercial quantity of cannabis intending that at least 2 kilograms of it be sold. Mr Allen submitted that in the event I was satisfied, for example, that the accused knowingly agreed to cannabis being stored at his premises for the purpose of it being sold, but I was not satisfied that the accused knew that more than 2 kilograms was to be stored or intended that at least that amount was to be sold by another, it would be open to me to return a verdict of not guilty to trafficking in a large commercial quantity of cannabis but guilty to trafficking cannabis (provided of course I was satisfied as to the other elements of the offence).
Mr Allen acknowledged that this issue needed to be considered in the context of the agreed fact that the accused left the country on 30 September 2016 and the search was not conducted until 25 October 2016. He accepted that an issue I would need to consider is the possibility that the cannabis – which the prosecution ultimately did not allege was grown at Park Terrace – may not have even been harvested from its source until sometime after the accused departed. However, he submitted that having regard to the commercial value of the cannabis, it was implausible that the accused was unaware of the quantity of cannabis stored in the small shed and that he did not intend to traffic a large commercial quantity.
Remaining with this issue of timing and its interrelationship with the accused’s knowledge of the presence of the cannabis, Mr Allen pointed out that in photograph 8 of P5, there appears to be a lawnmower and a wheelbarrow in the small shed just inside the entrance way, suggesting that these items were wheeled into the shed after the drums containing the cannabis were stored towards the rear of the shed. Mr Allen contrasted this with photograph 2908 of P1, which does not show the wheelbarrow and lawnmower. He submitted that it was probable that the police had moved those two items from the small shed in order to facilitate access to and processing of the scene. I note that photograph 2907 of P1 appears to show the wheelbarrow and lawnmower just outside the door to the small shed, providing some further support for this submission. As I understand the point advanced by Mr Allen, it is that the accused was most likely to be the person responsible for placing the wheelbarrow in the shed which would reflect adversely on his denials that he knew of the presence of the three drums containing the cannabis.
Mr Allen then surveyed the circumstantial evidence upon which the prosecution relied:[160]
[160] Counsel essentially relied on the circumstantial facts he had enumerated during opening (T42-43), with some qualifications: T254-255.
1.The accused owned the premises.
2.No-one else was present at the time of the police search.
3.Documents found inside the house connected the accused and his family to the premises.
4.The premises were secure and access was difficult, requiring police to climb over the perimeter fencing and to force entry into the rear shed and the house.
5.The workshop was empty, making it available for the storage or cultivation of cannabis in the future.
6.The amount of cannabis was substantial.
7.The smell of cannabis in the small shed was apparent after the lids to one of the drums was unscrewed.
8.The manner in which the cannabis had been concealed, namely in drums in a locked shed.
9.The cannabis was packaged consistently and overwhelmingly into pound lots or weights close thereto, indicating a uniformity in the process.
10.Markings on two of the drums in Albanian and which were consistent with the number of parcels of cannabis contained with them suggest that the author of the notations was Albanian or understood Albanian to some degree.
11.The accused’s fingerprints were located on eight bags containing cannabis, spread across the three drums.
12.The accused’s fingerprints were located on two of the lightshades depicted in P2 and P3.
13.The amount of prescribed equipment.
14.The cannabis was commercially valuable, with an estimated worth between $250,000 and $376,000 depending on how it was sold and a number of other variables.

Whilst the drums had lids that were obviously tight enough to restrict the smell of cannabis from emanating other than when opened, I consider it implausible that the cannabis would have been left in that environment for such a lengthy period of time. As Detective Schollar said, cannabis is cultivated because it is commercially valuable. It is grown to be sold; not to be stored in plastic bags for extended periods.
Furthermore, and as a matter of common sense, the longer drugs are kept on one’s property, the greater the risk of detection. It makes little sense that the accused would put in place or otherwise agree to an arrangement which would see the cannabis remain on his property, and therefore potentially implicate him in serious criminal offending, for what was, at least by the time of the police search, a month or perhaps longer. It is possible that someone else was to be responsible for removing and further dealing with the cannabis; but, on this scenario, it would appear that no such steps had been taken within the month following the accused’s departure.
Put another way, there was no apparent benefit to the accused leaving or agreeing to leave the cannabis in his shed for such a lengthy period of time; however, that did carry the risk of the cannabis degrading and its commercial value diminishing.
In considering whether I am satisfied that the cannabis was in the shed as at 30 September 2016, I have considered the whole of the evidence.
I am not satisfied that I can infer from the combined force of the circumstantial evidence that the cannabis was in the drums and in the small shed as at 30 September 2016. Once this intermediate conclusion is arrived at, the significance of the accused’s fingerprints on a number of the plastic bags containing cannabis is necessarily diminished.
I am unable to make a finding as to precisely when the cannabis came to be stored in the drums save to say it was sometime after 30 September 2016 and prior to the search conducted by police.
As I am not satisfied that the cannabis was in the shed prior to 30 September 2016, it necessarily follows that someone other than the accused was responsible for storing the cannabis in the shed after the accused left the jurisdiction. The question then is whether the prosecution has proved beyond reasonable doubt that this occurred with the accused’s knowledge and agreement.
The accused’s evidence
It is necessary at this point to deal with the accused’s evidence that he had no knowledge of or involvement in the storage of the cannabis. If I am unable to dismiss the accused’s evidence as not reasonably possibly true, he is entitled to a verdict of not guilty in respect of the cannabis charge. Subject to one matter, if I am unable to reject his evidence that he did not know of the presence of the prescribed equipment as not reasonably possibly true, he would also be entitled to a verdict of not guilty on the prescribed equipment charge.
I earlier mentioned that the accused gave evidence with the assistance of an interpreter. However, much of the accused’s evidence was given in English with only occasional input from the interpreter. Nonetheless, I bear in mind when assessing the accused’s evidence that English is not his first language. I also bear in mind that the accused was giving evidence about events taking place almost 8 years before trial.
The accused’s evidence is to be assessed in the same way as the evidence of the witnesses called as part of the prosecution case. Of course, that assessment takes place against the backdrop of the burden of proof falling exclusively on the prosecution. The accused does not need to prove anything and, as I said at the outset, it is not necessary for me to positively believe his evidence. I am required to return verdicts of not guilty unless I can reject his account as not reasonably possibly true. The accused does not carry the burden of satisfying me that his account is reasonably possibly true; it is for the prosecution to persuade me that his evidence can be rejected as not reasonably possibly true.
Even if I reject the accused’s evidence, that does not mean I would find him guilty of either or both of the charges. In the event I reject the accused’s evidence, I must consider whether the prosecution has proved the elements of both offences beyond reasonable doubt and, given the circumstantial nature of the prosecution case, that requires me to conclude not only that guilt is a rational and reasonable inference; but that it is the only rational and reasonable inference that can be drawn.
The accused’s evidence is not to be considered in isolation from the circumstantial evidence.[163] The circumstantial evidence which I accept may either support or undermine the accused’s account or aspects of it.
[163] Mead (a pseudonym) v The King [2025] SASCA 3, [55]-[56].
The accused was a generally calm and measured witness. With some exceptions, I considered that he endeavoured to answer the questions asked of him reasonably directly, noting that there were occasions when his answers failed to address the subject matter of a question. I bear in mind that this may have been a by-product of English being the accused’s second language, as opposed to deliberate obfuscation or evasion.
There was nothing about the accused’s demeanour that I considered shed much light on his truthfulness or otherwise. In any event, demeanour often supplies an incautious basis upon which to evaluate the credibility of a witness as it can be misleading.
I found aspects of the accused’s evidence to be curious and questionable; yet other aspects of his account appeared understandable and logical. I address a number of these topics.
The move to Park Terrace – shopping bags
The accused said that he and his family moved into the Park Terrace property around 2-3 weeks before they travelled to Albania. There were then still parts of the house that had no electricity. He said he expected DP and AZ to continue working during his absence because completing their work was necessary to make the house liveable. Given the accused had what he described effectively as a tenancy at will at the Valley View property, it makes little sense that he would have moved his family, including two small children, into the Park Terrace premises before the renovations were complete. It is true that at one level this would have meant continuing to pay rent at Valley View for a few extra weeks (at $300 per week), but given the accused was intending to travel overseas from 30 September 2016 to 4 December 2016, it is not clear to me why the family could not have moved their belongings into Park Terrace just before leaving for Albania with the expectation that the remaining electrical and floor polishing works would have been finished by the time of their return. Put another way, there appears to have been no real urgency to move into the Park Terrace house in mid-September.
However, taking a step back, this aspect of the accused’s evidence may be thought to in fact be contrary to his interests in that, as a matter of common sense, it is more likely a third party would use a property under renovation to store drugs and equipment if the homeowners were not in fact living on-site. Put another way, by acknowledging that he had in fact moved his family into Park Terrace prior to his departure, the accused was exposing a closer connection to the property than might otherwise have been the case.
The accused’s evidence was that as part of the move to Park Terrace, ‘tens if not hundreds’ of shopping bags he and his wife had collected from grocery shopping were relocated from Valley View to Park Terrace, potentially explaining the presence of his fingerprints on eight bags containing cannabis found in the drums in the shed. It is a relatively common thing for people to hold on to plastic shopping bags for a variety of purposes and I did not consider the accused’s evidence about the retention of bags to be intrinsically unbelievable. To the contrary, it seemed quite plausible. Of course what the defence say is the pure coincidence of the accused’s fingerprints being on a number of such bags, containing pounds of cannabis, stored in drums bearing Albanian writing (at least on two of them) in his lockable shed together with hundreds of pieces of prescribed equipment has to be examined in light of the whole of the evidence.
Construction of the ‘rooms’ in the workshop
Contrastingly, I found the accused’s evidence about lining the walls of the workshop with gyprock in preparation for its conversion into a playroom for his then very young children to make very little sense. It is implausible for a playroom for children of such a young age to be constructed in a detached shed which could not be observed by the accused or his wife from inside the main residence. As the accused acknowledged, to use the room for this purpose would have required the accused or his wife to be present with the children.
Moreover, I doubt very much that the accused had in fact contemplated turning the workshop into a ‘granny-flat’ for future use by the children, given their very young age.
There is considerable force in the submission of Mr Allen that if the accused were looking to create a safe space for his children to play, a good place to start would have been the backyard, acknowledging of course that renovations were, it seems, ongoing. In addition, there were, at the time of the police search, two spare bedrooms in the house that could have been used as a playroom without the need for walls to be lined. Whilst that may not have been a particularly difficult or time-consuming task for the accused given his professional experience, I am sceptical of the genuineness of the accused’s evidence about this topic. It appeared to me as though he was trying to proffer an innocent explanation for the appearance of the workshop which one could be forgiven for thinking looked very much like it could be used as a cannabis grow room, although I hasten to reiterate that the prosecution did not allege that the cannabis the subject of the charge was grown at Park Terrace.
Access to the house
Conversely, the accused’s evidence of providing keys to DP and AZ – two tradesmen, on the accused’s account, who were carrying out work at his property – did not strike me as incredulous because the accused was, on the agreed facts, leaving the country for two months. If there was outstanding work to be done at the house, it would make sense for the accused to have in place arrangements for that work to be undertaken whilst he and his family were overseas particularly if, as he said, he had existing relationships with the tradespeople carrying out the works. It will be remembered that the accused also gave evidence that he had provided his brother with keys to the house and the remote control for the driveway gate so that he could keep an eye on the house during his absence.
Mr Allen challenged the accused’s evidence that there was outstanding electrical work to be done in the house, contending that his account on this topic had shifted. The accused points to photographs depicting the varying state of some of the flooring in the house in support of his evidence that there was ongoing floor polishing work to be done at this time. In combination with the state of the backyard, this is said to be consistent with the renovations being incomplete. The accused said further that DP had a number of incomplete tasks to finalise in and outside the house.
There is no evidence independent of the accused that supports his suggestion that there was outstanding electrical work to be done at the property during his absence. Equally, there is no evidence that outstanding electrical work did not need to be done to the property. The state of the property does tend to suggest that building work of some description was ongoing and I cannot exclude the possibility that it included electrical work. However, the accused did not suggest that DP, or the floor polisher, would need access to the small shed for any work they did undertake during his absence. To the contrary, the accused agreed that there was no reason to give DP a key to the shed[164] and self-evidently, the floor polisher would not have required access to the shed.
[164] T217.
In those circumstances, the accused’s evidence that DP and others retained access to the house was not illogical, albeit, most convenient. The accused’s evidence that he had provided keys to his brother and asked him to keep an eye on the property during his absence also appeared to me to be understandable and accord with common sense.
Access to the shed
Remaining with the topic of access to the shed, I have some reservations about this aspect of the accused’s account. When first asked whether the key to the small shed was different to the front door key, the accused responded ‘yes’. He was then asked if the shed key was different to ‘any key that you could use to…gain access to the house’ and answered ‘Well, sorry, I don’t even remember if I did have a key for the back shed’.[165]
[165] T206-207.
The accused did however accept that the shed could be locked, but said he ‘never needed to lock it’.[166]
[166] T207.
I contemplated whether the accused’s change in position in relation to the key to the shed revealed a realisation by him that if a separate key to the shed was required, the hypothesis that someone else was responsible for storing the cannabis and equipment in his shed entailed possession of a key to both the house (to access the plastic bags bearing his fingerprints) and the shed. The accused had no reason to give either DP or the floor polisher a key to the small shed, and did not suggest that he did so.
However, the accused was giving evidence almost 8 years after the search of the house and, in this respect, it is perhaps unsurprising that there was some uncertainty in his mind as to whether he did have a key. It does seem clear nonetheless that there was a key for the shed door because Detective McCaffrey was required to break the lock in order to gain access and, as I pointed out, the accused did accept that the shed was lockable which tends to reinforce the possibility that his asserted lack of recall was genuine.
The drums and equipment
The accused gave evidence that the drums on which there was Albanian writing, were not in his shed as at 30 September 2016; nor were the hundreds of items of prescribed equipment. That means, on his account, someone brought the drums to his property; stored 51.8 kilograms of cannabis in plastic bags (some of which had the accused’s fingerprints on them) in those drums; and went to the trouble of re-locating an enormous amount of prescribed equipment.
In the ordinary course, it would not be difficult to reject such a hypothesis as completely fanciful. The complicating, and uncontroversial, fact in this case is that the accused had been and was to be, out of the country for just over two months at a critical time in whatever enterprise was on foot as at 25 October 2016. Moreover, as I have earlier indicated, I am unable to find that the cannabis was in the accused’s shed as at the date of his departure because, to have left the cannabis in plastic bags for a month (prior to the police search), carried with it an appreciable risk of the quality of the cannabis being affected and its commercial value compromised.
Returning to the writing on the drums, and the interrelationship of that piece of circumstantial evidence with the defence hypothesis, there were, according to the accused, at least three people who had access to his house during his overseas absence: DP, who was the person who led the police to the Park Terrace property; AZ, the floor-polisher; and the accused’s brother.
The accused said DP did not speak Albanian and hence it may be thought less likely that DP was responsible for making the notations in Albanian on two of the barrels.
I heard nothing about AZ’s ethnicity.
The accused, and his brother, are Albanian.
It would be a remarkable coincidence, it may be thought, for DP – who was not Albanian – to have turned up at the accused’s house, unbeknownst to the accused and during his overseas trip, with 51.8 kilograms of cannabis and three drums, two of which happened to have Albanian writing on them.
The same might be said with respect to the man AZ.
The accused’s possession of light shades
I turn then to the accused’s evidence that he had three or four ‘light shades’ from many years prior to the police search. The accused was not asked, and did not give evidence, about what he had used the light shades for. Detective Schollar gave evidence that the light shades on which the accused’s fingerprints were located were light shades of the kind used to grow cannabis hydroponically.
The accused’s admitted possession of light shades of this kind tends to suggest that, in the past at least, he has had access to equipment of a kind that can be used to cultivate cannabis. Although the parties did not address me on the admissibility of this evidence from the perspective of s 34P of the Evidence Act, I am satisfied that the accused’s evidence is admissible for non-propensity uses, namely: (1) it is evidence that the accused previously had access to and hence the means to cultivate cannabis; (2) his admitted possession of light shades of a very similar appearance to the many other light shades found in his shed is capable of informing the improbability or otherwise of the accused not being in possession of the other light shades. The evidence may also be used in support of the defence case, to explain how the accused’s fingerprints may have come to be on items of prescribed equipment without necessarily connecting him to all of the prescribed equipment located on 25 October 2016.
In considering the weight to be attached to the evidence for these uses, I note that there is no evidence before me about the degree of variation across light shades that might be used for hydroponic cultivations of cannabis and it was not put to the accused, and there is no evidence, that he had in fact previously used the light shades of which he admitted possession to grow cannabis hydroponically.
Evidence of the accused’s possession of hydroponic lighting over a period of time cannot be used, and I have not used it, to reason that the accused is therefore a bad person; or the sort of person who is more likely to have committed a crime or a cannabis related offence.
Joint possession
I come back then to the two limbs of the prosecution case.
The source of the cannabis that found its way into the accused’s shed is not the subject of any evidence and I have earlier pointed out that the prosecution ultimately did not allege that the cannabis had been grown at the Park Terrace premises, notwithstanding that the accused clearly had the space (and, on the prosecution case, the equipment) to do so. For the accused to be in joint possession of the cannabis, it must be proved that he had an agreement with another or others to procure a large commercial quantity of cannabis from a source unknown to me, that was to be stored in his shed and that, together with another person or people, he exercised and intended to exercise control over the cannabis to the exclusion of all others.
The prosecution was unable to particularise the person or people with whom the accused was said to be in joint possession. I accept that it is not a condition precedent to proof of joint possession that the identity of the other or others with whom an accused is alleged to be in joint be possession are known; but the inability of the prosecution to identify who the accused was in joint possession with is, in my view, relevant to whether the prosecution have proved joint possession beyond reasonable doubt.
The difficulty in making such a finding beyond reasonable doubt is that on the evidence, the cannabis that ultimately came to be in the shed may not have even been in harvested form when the accused left the country. The accused could have been party to an agreement involving the joint possession of cannabis he knew was to be harvested; but the fact that the accused was out of the jurisdiction for a period of two months from 30 September 2016, strikes me as being somewhat incompatible with the proposition that he was, throughout that period, to come into joint possession of the cannabis with another or others for the purpose of selling not less than 2 kilograms of the cannabis.

I acknowledge that, as a matter of law, the accused being ex juris is not an impediment to being in joint possession of the cannabis. However, I have difficulty in accepting as the only rational hypothesis arising on the evidence that, although travelling overseas for 2 months, the accused was in joint possession of cannabis which I cannot be satisfied was in his shed at the time he departed and may not have even been harvested or otherwise procured from its source as at 30 September 2016. These features of the relevant chronology speak against a conclusion that the accused necessarily knew of and intended to exercise joint control over not less than 2 kilograms of cannabis with another or other unknown and unidentified people, whilst he was overseas for a two month period.
Leaving aside what will be seen to be my conclusion as to the accused’s evidence, the prosecution have not satisfied me beyond reasonable doubt that the accused was in joint possession of the cannabis as at 25 October 2016.[167]
[167] I note this is how the charge is particularised.
Taking part in sale
My conclusion that the prosecution has not proved the accused was in joint possession of the cannabis does not dispose of the second limb of the prosecution case which does not require proof of possession. The accused would be guilty of trafficking a large commercial quantity of cannabis on the second limb of the prosecution case if he permitted the cannabis to be stored in his shed, with the intention that not less than 2 kilograms of the cannabis was to be sold by another or others.
However, the consequence of the intermediate conclusion I have reached that I am not satisfied the cannabis was in the shed as at 30 September 2016, is that the cannabis must have been stored in the shed by someone other than the accused, who was then overseas. This necessarily means that another or others had access to the accused’s shed. According to Detective McCaffrey’s evidence, whoever stored the cannabis in the shed must have locked it. It follows that the person responsible for storing the cannabis not only had access to the property, but had the means to lock the shed and, as a matter of common sense, that could only have been with the use of a key. Moreover, that person (or people) must have also had access to shopping bags that the accused had touched at some point in time.
Whether the accused’s denials have been disproved by the prosecution as not reasonably possibly true, requires an assessment of the evidence in its totality. The plausibility or otherwise of the accused’s account is not to be analysed in isolation. It is to be considered in the context of the evidence as a whole – both that which supports and that which undermines his account.
The accused did not in his evidence directly suggest that DP or AZ were responsible for the cannabis and equipment found in his shed. But they are two of the people who, according to the accused, had keys to the house which were required (on the accused’s account) in order to obtain and use plastic bags which may have been stored in the house and hence had the accused’s fingerprints on them.
Counsel for the accused emphasised that DP was the reason police ended up at the accused’s property and, ex hypothesi, was a person who may therefore have been responsible for the cannabis and equipment found in the accused’s shed. This argument may have been more persuasive if there was some evidence before me identifying a connection between DP and cannabis. There is no such evidence.
Ultimately, the hypothesis that a tradesman carrying out work at a client’s premises would unilaterally decide to store a quarter of a million dollars worth of drugs in plastic bags they obtained from the client’s house, and an enormous quantity of prescribed equipment in a shed on the client’s premises, may be thought unlikely. I do not overlook that DP was the reason why police developed interest in the Park Terrace premises, but, as I have said, left at that level of generality, that fact does not offer much assistance to the accused. However, even if the hypothesis that DP and the floor polisher may have been responsible for storing the cannabis is excluded, the accused’s brother also had access to the house.
The chronology of relevant events and the failure of the prosecution to satisfy me that the cannabis was in the shed as at 30 September 2016, lends some support to the accused’s denials of knowledge. On the agreed facts, he left for Albania on 30 September 2016 and I am not satisfied that the cannabis was then in his shed. It would make no sense for the cannabis to have then been in the shed, in plastic bags, with the attendant risk of degradation. It follows that the cannabis came to be in the shed sometime after the accused had left the country which necessarily means that someone other than the accused did, on my findings, have access to the shed and was, on my findings, responsible for storing the cannabis in the shed.
I have carefully considered the submission of Mr Allen that it is implausible to think that someone would, unbeknownst to the accused, store 51.8 kilograms of cannabis in his shed. There is force in the suggestion that the co-operation or at least acquiescence of the home-owner would be essential to mitigate the risks otherwise associated with storing drugs at another’s property. Without the co-operation of the home-owner, the person responsible for storing the cannabis would have little information about or control over the extent to which others might take access to the property.
The complicating factor in this case is that, on the agreed facts, the accused was out of the country for an extended period of time. The window for another person or people to use the unoccupied premises of the accused was a large one having regard to the length of his overseas trip. Further, it is not difficult to appreciate that the storage of a large quantity of drugs and equipment at another person’s property necessarily carries benefits for those who possess the drugs. It allows the possessor/s to divest themselves of or at least mitigate the risk of retaining the drugs at premises otherwise connected with them. Put slightly differently, the accused’s absence from the country provided a risk minimisation opportunity for those who stored the drugs. Of course, it also provided a superficially attractive ‘alibi’ for the accused if he was complicit in this offending.
I cannot discount the possibility that someone with access to the property and the shed took the opportunity arising from the accused travelling overseas for two months to store cannabis and equipment in his shed. There is no suggestion that was done so by a random third party, walking in ‘off the street’ so to speak. Rather, what is suggested is that one or more people, who had access to the house – including the accused’s brother - and knew or may well have known that the accused was going to be out of the country for an extended period of time, used the opportunity provided by his absence to store drugs and associated equipment at his house.
I have considered the accused’s evidence, the effect of which is that someone unbeknownst to him and without his agreement or acquiescence, stored hundreds of thousands of dollars worth of cannabis and a lot of prescribed equipment in his locked shed, in the context of the prosecution’s circumstantial evidence. It does test common sense and life experience to suggest that it is reasonably possible that the accused was completely unaware of what was in his shed. Equally, however, it makes very little sense for the cannabis to have been stored in the shed from sometime on or before 30 September 2016 until 25 October 2016, in plastic bags. Moreover, even if the accused became aware after his departure for Albania that someone else – whether his brother or another person – was intending to store drugs and equipment in the shed, there was nothing he could do about it. Even if the accused discouraged or withheld his consent to such a course, he was powerless to intervene.
Were it not for the fact that the accused had been out of the country for almost a month at the time of the police search and my inability to find that the cannabis was in situ as at 30 September 2016, I would have readily concluded that the accused’s denials were hollow. But the chronology of events; the fact that he had been out of the country for a month at the time the cannabis was discovered and was not due to return for a further 6 weeks; and the inherent unlikelihood of a quarter of a million dollars of cannabis being stored in plastic bags in the shed for the weeks that had passed since the accused’s departure, lend support to the accused’s denials and leave me in the position of being unable to reject them as a reasonable possibility.
Although I found aspects of the accused’s account to be curious or suspicious, he remained steadfast in his denials of knowledge and involvement and his denials are circumstantially supported by the fact that he was overseas at a critical time. Having had the advantage of seeing the accused give evidence, I am unpersuaded that the prosecution has excluded his denials as not reasonably possibly true.
I am deeply suspicious that the accused was in fact growing cannabis hydroponically in the workshop at Park Terrace and that the cannabis was harvested after he left and the equipment used in the cultivation packed away, in accordance with a plan to which the accused was a party. I suspect further that the accused’s departure from the country may well have been for the very purpose of creating an ‘alibi’ of sorts, such that in the event the cannabis was discovered, he could do precisely what he has done at this trial.
However strongly held those suspicions are, the accused’s absence from the country for such a long period both before and after the police search, in circumstances where I cannot exclude the possibility that others had access to the property, leaves me unable to reject his account. I cannot exclude the hypotheses that either the accused did not know about the cannabis or, if he knew, did not acquiesce in or agree to its storage.
Accordingly, my verdict as to count 1 must be not guilty.
Possessing prescribed equipment
For the same reasons, I am not satisfied that the accused was in possession of all of the prescribed equipment found in the shed. I acknowledge that the relocation of the prescribed equipment to the accused’s shed would have been a logistically time-consuming exercise. But if, on my findings, it is possible that someone else was prepared to go the trouble of storing a significant quantity of cannabis in the shed, it is a short step to conclude that it is equally possible that they would have gone to the trouble of storing prescribed equipment in the shed.
Nonetheless, on his own evidence, the accused was in possession of three or four hydroponic light shades. Although the parties did not address me on whether a verdict of guilty to count 2 could be returned on the basis of the accused’s concession, I am satisfied beyond reasonable doubt that the accused was in possession (as I have previously defined that concept) of the three or four light shades he admitted having for a number of years.
The light shades on which his fingerprints were found, are prescribed equipment within the meaning of reg 9 of the Regulations as they are devices designed to amplify light or heat.
Accordingly, I find the accused guilty of count 2 on the limited basis that, on his own admission, he was in possession of three or four light shades that he had acquired some years before the police search.