R v Zouras

[2002] VSCA 182

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 20 of 2001

THE QUEEN

v.

GEORGE ZOURAS

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JUDGES:	CHARLES, BUCHANAN and CHERNOV, JJ.A
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 November 2002
DATE OF JUDGMENT:	19 November 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 182

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CRIMINAL LAW - Trafficking in a drug of dependence - No evidence of applicant's participation in trafficking - Verdict unsafe and unsatisfactory.

Weissensteiner v. R. (1993) 178 C.L.R. 217, distinguished.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr G.J. Thomas	Victoria Legal Aid

CHARLES, J.A.:  

1. I will invite Buchanan, J.A. to give the first judgment.

BUCHANAN, J.A.: 

1. The applicant, who is now 51 years old, and a co-accused, one Dimitrios Nicolacopoulos, were arraigned in the County Court and pleaded not guilty to a presentment containing three counts alleging that on 25 March 1999 they trafficked in, cultivated and had in their possession not less than a commercial quantity of a drug of dependence, Cannabis L.  After a six day trial the jury returned a verdict of guilty on the first count, which alleged that the applicant trafficked in a drug of dependence contrary to the provisions of s.72 of the Drugs Poisons and Controlled Substances Act 1981 ("the Act").  The applicant was sentenced to be imprisoned for a period of seven years with a minimum term of five years' imprisonment before he was to be eligible for parole.

1. The applicant seeks leave to appeal against his conviction on the ground that the verdict was unsafe and unsatisfactory.  The particulars of the ground are: 

"(a)No jury properly instructed could conclude that the  appellant was a party in the offence alleged. 

(b)The evidence was incapable of satisfying the jury that the appellant was present at the relevant site at any time after 1997." 

1. In mid 1997 the appellant and Nicolacopoulos were living in a house in East Bentleigh with, among others, Vicky McKernan, the partner of Nicolacopoulos.  Ms McKernan fell out with her partner and informed the police that he was cultivating marijuana.

1. At the trial Ms McKernan gave evidence that on four or five occasions in 1996 and 1997 she drove Nicolacopoulos and the applicant and dropped them off in the country on a road which turned off the Bairnsdale to Omeo Road.  Several weeks later she would collect them at the same place.  On one occasion when they were

picked up Nicolacopoulos and the applicant had a hessian bag containing marijuana.  On 23 July 1997, as a result of information given to them by Ms McKernan and a map found by the police in a car belonging to Nicolacopoulos, the police conducted an air search of the area in which Ms McKernan had dropped off Nicolacopoulos and the applicant, and, as a result, on the following day, located in rough terrain accessible only on foot a hut, a drying room, structures to contain ponds of water and a number of stalks of harvested cannabis.  The plantation site was some three kilometres from the point on the road at which Ms McKernan dropped off and picked up the accused

1. On 25 March 1999 the police returned to the site of the remnants of the cannabis plantation found in 1997.  They discovered a large cannabis plantation with plants in different stages of maturity.  New and larger living quarters and a drying hut had been constructed and there were several reservoirs of water lined with plastic.  In the drying hut were a number of marijuana plants on a drying rack and hanging from the roof, weighing in all over 24 kilograms.  The living quarters contained bedding, food and camping equipment.  In a number of places in a nearby creek bed there were marijuana plants, in all 888 plants, an amount which satisfied the definition of "commercial quantity" contained in s.70(1) of the Act.  Although no one was found at the site of the plantation, there were signs of recent habitation, including a partially cooked meal.  Fingerprints of the applicant were found on the inside of ducting tape, which had been used in the construction of the drying hut.  The police found a number of items at the site including Malibu cooler bags and rope.

1. On 23 April 1999 the police attended at the premises where the applicant and Nicolacopoulos lived in Barrington Street, East Bentleigh, and found two bags of cannabis, as well as a Malibu bag and rope, which were similar to the bags and rope found at the site of the plantation.  When he was interviewed by the police the applicant denied any knowledge of the plantation and denied having ever been to the place where it was situated.

1. The applicant did not give evidence at his trial and no evidence was led on his behalf.

1. Section 70(1) of the Act defines the word "traffic" to include: 

"(a) prepare a drug of dependence for trafficking;

(b) manufacture a drug of dependence; or

(c) sell, exchange, agree to sell, offer for sale or have in possession for sale, a drug of dependence …"

1. In the present case, having regard to the evidence, trafficking by the applicant was either preparing marijuana for sale or possessing marijuana.  The Crown was obliged to prove that the applicant participated in the activity of harvesting and drying the marijuana, which was interrupted by the police on 25 March 1999, or on that date was in possession of it, a description which would be satisfied if the marijuana was upon land occupied by the applicant or was used or controlled by him (s.5 of the Act).

1. The only connection between the applicant and the marijuana found in 1999 was that his fingerprints appeared on the ducting tape in a drying hut, from which it might be inferred that the applicant participated in the construction of the drying hut.  There was no evidence that the applicant played any role in the activities that took place in the drying hut.  In my view the jury could have concluded from the evidence of Ms McKernan and the police who found the disused plantation in 1997 that the applicant was involved in the cultivation and preparation of marijuana in 1996 and 1997.  That could not show any more than possibly a predisposition to engage in like activity two years later.  In this connection it should be borne in mind that Ms McKernan's evidence did not permit the jury to draw any inference as to the role which the applicant played in the earlier enterprise, whether that of a principal or a menial assistant, even though he spent a significant amount of time at the site of the plantation.  The evidence was incapable of proving that the applicant did participate in the later enterprise.

1. The respondent relied upon the fact that the applicant did not give evidence at his trial, citing Weissensteiner v. R.[1]  In that case the Crown contended that the guilt of the appellant was to be inferred from the facts that he set out on a voyage with the persons whom it was alleged he had murdered, those persons disappeared and the appellant was later found in possession of their boat and other personal effects.  If there were facts which explained or contradicted the evidence against the applicant, they were facts which were within the knowledge only of the appellant.  In the present case, on the other hand, the silence of the applicant is said to fill an absence of evidence in the Crown case concerning facts which were not only within the knowledge of the applicant.  In our system of criminal justice the fact that an accused does not give evidence at trial is not itself evidence against the accused.  As Gaudron, Gummow, Kirby and Hayne, JJ. said in Azzopardi v. R.[2], the failure of an accused to give evidence at trial: 

"... is not an admission of guilt by conduct; it cannot fill in any gaps in the prosecution case; it cannot be used as a make-weight in considering whether the prosecution has proved the accusation beyond reasonable doubt."

[1](1993) 178 C.L.R. 217.

[2](2001) 205 C.L.R. 50 at 64.

1. The evidence led by the Crown in this case established only that someone was in the process of producing marijuana at a place where, on an earlier occasion, the applicant participated in the cultivation and processing of marijuana and that the applicant participated in the construction of a building later used in the preparation of marijuana.  The present case is perhaps best described, not as one in which the Crown has failed to exclude every reasonable hypothesis consistent with innocence but, rather one in which the Crown has failed to lead any evidence of the participation of the applicant in the acts constituting the offence.  He might have participated, but whether he did so was ultimately a matter as to which the jury could only speculate.  They were not entitled to convict the accused on the basis of speculation or surmise.  My conclusion has nothing to do with the credibility of

witnesses.  The evidence, in my view, simply was incapable of proving the elements of the charge against the applicant.  Cf. R. v. Moran and Mokbel[3].

[3][1999] 2 V.R. 87.

1. For the foregoing reasons I would grant leave to appeal against the applicant's conviction, determine the appeal instanter and allow it, quash the conviction and direct that a verdict of acquittal be entered.

CHARLES, J.A.: 

1. I agree.

CHERNOV, J.A.: 

1. I also agree.

CHARLES, J.A.: 

1. The order of the Court is that the application for leave to appeal against conviction is granted.  The appeal is ordered to be heard instanter and is allowed.  The conviction of the applicant is quashed and the Court directs that in lieu thereof a verdict of acquittal be entered.

MR THOMAS: 

1. I make the usual application for a certificate in the circumstances.

CHARLES, J.A.:  

1. A certificate will be granted.

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