R v Moore [2005] ACTSC 66 (5 August 2005)

Last Updated: 11 August 2005

R v GREGORY JOHN MOORE [2005] ACTSC 66 (5 August 2005)

CRIMINAL LAW - trial by judge alone - participation in the cultivation of a prohibited plant - provision of finance - electricity account held in accused's name - payments made to lessor of premises

Drugs of Dependence Act 1989 (ACT) s 162

R v Tran [2003] ACTSC 53 referred to

R v Collins [2004] ACTSC 48 cited

R v O'Neill [2004] ACTSC 64 cited

R v Errigo (2005) 91 SASR 80 cited

R v Thomas (1993) 67 A Crim R 308 cited

Sergi v DPP (unreported, New South Wales Court of Appeal, Kirby P, Meagher and Handley JJA, 10 September 1991) cited

No. SCC 216 of 2004

Judge: Moore J

Supreme Court of the ACT

Date: 5 August 2005

IN THE SUPREME COURT OF THE )

) No. SCC 216 of 2004

AUSTRALIAN CAPITAL TERRITORY )

R

v

GREGORY JOHN MOORE

ORDER

Judge: Moore J

Date: 5 August 2005

Place: Canberra

THE COURT FINDS:

1. on the charge that between 27 June 2002 and 5 January 2003 at Canberra in the Australian Capital Territory Gregory John Moore participated in the cultivation of a prohibited plant, namely cannabis for the purpose of sale or supply, the accused guilty.

Introduction

1. The accused, Gregory John Moore, has been charged with participating in the cultivation of a prohibited plant, namely cannabis, for the purpose of sale or supply contrary to s 162(3) of the Drugs of Dependence Act 1989 (ACT). He has elected to be tried by a judge alone pursuant to s 68B of the Supreme Court Act 1933 (ACT). The role of a judge in such a trial was described by Gray J in R v Tran [2003] ACTSC 53 at [3]-[5]. I adopt in its entirety, what his Honour said was the judge's role and the approach that should be taken in evaluating the evidence and applying the law: see also R v Collins [2004] ACTSC 48 at [2]-[6] and R v O'Neill [2004] ACTSC 64 at [4]-[6]. His Honour said (at [4]-[5]):

I direct myself in accordance with the law in relation to all of the matters which a jury would ordinarily be directed before retiring to consider its verdict. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. The burden of proving the charge lies wholly on the prosecution and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with innocence, the accused does not have to prove it. It is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The accused is presumed to be innocent until at the conclusion of the hearing the evidence establishes guilt. The standard of proof lies upon the prosecution to prove each and every element of the offence beyond reasonable doubt. Where, in this judgment, I make a finding of a particular fact, or speak of being satisfied of any matter, I reach that finding having been satisfied beyond reasonable doubt.

It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a verdict of guilty can be returned. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of any charge, or I am unsure where the truth lies, then in those circumstances, I must find the charge has not been proved to the level of satisfaction required by the law and must acquit.

The charges

2. Section 162 of the Drugs of Dependence Act 1989 (ACT) provides:

(1) In this section:

cultivate, in relation to a prohibited plant, includes plant, sow, scatter the seed produced by, grow, nurture, tend or harvest.

prohibited plant means a plant specified in schedule 5.

(2) A person shall not cultivate, or participate in the cultivation of, a prohibited plant.

Maximum penalty:

(a) if not more than 5 cannabis plants are cultivated--1 penalty unit; or

(b) in any other case--50 penalty units, imprisonment for 2 years or both.

(3) A person shall not cultivate, or participate in the cultivation of, a prohibited plant for the purpose of sale or supply.

Maximum penalty:

(a) if more than 1 000 prohibited plants are cultivated-- imprisonment for life; or

(b) if more than 20 but not more than 1 000 prohibited plants are cultivated--

(i) for cannabis plants--200 penalty units, imprisonment for 10 years or both; or

(ii) in any other case--1 000 penalty units, imprisonment for 25 years or both; or

(c) if more than 5 but not more than 20 prohibited plants are cultivated--

(i) for cannabis plants--100 penalty units, imprisonment for 5 years or both; or

(ii) in any other case--200 penalty units, imprisonment for 10 years or both; or

(d) if not more than 5 prohibited plants are cultivated--

(i) for cannabis plants--50 penalty units, imprisonment for 2 years or both; or

(ii) in any other case--100 penalty units, imprisonment for 5 years or both.

(4) Without limiting subsection (2) or (3), a person shall, for whichever of those subsections applies, be taken to participate in the cultivation of a prohibited plant or prohibited plants if the person--

(a) participates in any step or process, or causes or permits any step or process to be undertaken, in the course of that cultivation; or

(b) provides finance, or arranges for the provision of finance, for such a step or process; or

(c) being an owner, lessee or occupier of any premises, or concerned in the management of any premises, causes or permits those premises to be used for such a step or process.

(5) For this section, if a person cultivates, or participates in the cultivation of, more than 5 prohibited plants, it shall be presumed that the cultivation is for the purpose of sale or supply, but that presumption is rebuttable.

(emphasis original)

Schedule 5 specifies 22 prohibited plants including Cannabis. "Cannabis" is defined in s 3 as meaning, inter alia, a cannabis plant.

3. The charge against the accused was that:

... between 27 June 2002 and 5 January 2003 at Canberra in the Australian Capital Territory GREGORY JOHN MOORE participated in the cultivation of a prohibited plant, namely cannabis for the purpose of sale or supply.

The witnesses called and statements tendered

4. At the trial, the prosecution called six witnesses. They were Constable Rab Seip, Cherrone Ellis (Crime Scene Investigator), Bruce Andrew Comber (Senior Scientific Officer) and Constable David Craft, all of the Australian Federal Police. The two other witnesses were Jane Corkhill, an employee of ActewAGL, an electricity supplier in the Territory and Neville Diebert. The evidence of first five witnesses was not challenged and counsel for the accused consented to the tender of statements by Constable Seip, Ms Ellis, Mr Comber, and Constable Craft (and his field notes). He also consented to the tender of statements by Constable Jennings (and her field notes) and Senior Constable Dwyer. The accused called no witnesses and did not give evidence.

5. The trial was conducted on the footing that the accused did not challenge the prosecution evidence (both oral and documentary) tendered to establish that at the premises at 1/26 Raws Crescent Hume ACT ("the Unit"), Mr Diebert had cultivated cannabis in quantities which were deemed to be for sale or supply and that he had been apprehended doing so on 5 January 2003. The central issue in the trial was whether the accused was aware that Mr Diebert had been engaged in this cultivation and, if he was, had he provided finance for any step or process in the course of that cultivation: see s 162(4)(b).

Other evidence

6. The prosecution tendered without objection, photographs of the inside and outside of the Unit and a video recording taken on the morning of 5 January 2003 of the inside of the Unit. Also tendered without objection were records concerning the analysis of vegetable matter taken from the Unit and notes concerning the analysis of fingerprints from five objects (three lampshades and two transformers) located in the Unit. Also tendered without objection were account records from ActewAGL concerning the supply of electricity to the Unit for a period commencing October 2001 and concluding February 2003 (and a summary of those records), other account records concerning the accused and accounts for the supply of electricity to the Unit for the period 26 November 2002 to 20 December 2002.

The evidence generally

7. I now set out findings of fact based on the uncontentious evidence. In so doing I should be understood to be indicating that I am satisfied, beyond reasonable doubt, that those facts are established. I commence by setting out facts established, beyond reasonable doubt, by the statement of Constable Seip and his oral evidence. Many of these facts are established by other evidence as well.

8. At about 12.05 am on Sunday 5 January 2003, Constable Seip, in company with another constable, noticed a gate that appeared to be open on a property in Raws Crescent, Hume. The officers were then conducting a routine patrol. The officers opened the gates and drove the marked police vehicle into the premises which were 26 Raws Crescent. At the end of the driveway, Constable Seip observed a large warehouse with a number of units, each with its own roller door and standard size entry door. The warehouse was a brick construction in the lower section and metal sheeting in the upper section. The officers observed a Harley Davidson motorbike and the engine was warm. They decided to investigate further. The other constable discovered that a door (a standard size entry door which was blue) into one of the units was not locked, and began to knock. This unit was at the southern end of the warehouse and was the Unit.

9. Mr Diebert opened the door. Constable Seip smelt an overpowering cannabis odour coming from both within the Unit and from Mr Diebert who had chopped up green vegetable matter on his fingertips. The smell was a potent smell with moisture and smelt like a hydroponic set up. The smell decreased marginally later that morning when the roller door was opened. When he initially opened the blue entry door, Mr Diebert had a reddish appearance in and around his eyes. The other constable had a conversation with Mr Diebert in which Mr Diebert admitted to having been "mulling up", that is, smoking cannabis. The two constables then entered the Unit.

10. Viewing the Unit from the outside, the door through which the constables entered was to the right of a large roller shutter door. Beyond those doors, the Unit ran back into the warehouse. I will describe the end at which the doors were located as the "door end" of the Unit. The floor plan of the Unit was rectangular and it was deeper than it was wide. At the rear end of the Unit furthest from the door end, was a kitchen. I will describe this as the "kitchen end". In the right hand portion of the Unit, viewed from the door end (which I will describe as the "right side" of the Unit and the opposite side as the "left side"), was a large wooden structure approximately three metres high. It extended well back towards the kitchen end. It was, in effect, an internal room, rectangular in shape, with a wooden roof. Again it was deeper (running towards the kitchen end of the Unit) than it was wide. I will call this structure the "internal room". On top of the roof of the internal room was a smaller wooden structure with numbers and words sprayed on its external walls. Towards the kitchen end of the internal room, was a large double doorway, providing access from the open area of the Unit into the inside of the internal room.

11. As Constable Seip walked from the door end to the kitchen end of the Unit of the observed water on the floor along with a number of power leads and hoses. He also observed green vegetable matter clippings on the floor around the Unit. In the kitchen at the rear of the Unit, he observed a small hydroponics set up containing 50 to 60 small plants and two pipes for smoking cannabis.

12. Constable Seip saw, inside the internal room, further green vegetable matter clippings on the floor and numerous white plastic bags on the ground. He also observed another internal doorway inside the internal room. What is not clear from his statement (on which many of the facts presently been recounted are based) is whether the observations concerning the inside of the internal room were made by the constable from outside the internal room or, because he had entered the internal room, from inside it. However, in his statement, he made no reference to observing, at this point, what else was inside the internal room though he does later in his statement when referring to events later that morning. This suggests he was making the observations about what was inside the internal room from outside it and through the large doorway into the internal room. The constable's evidence is consistent with this large doorway having been open when he and the other constable entered the Unit. If so, the fact that this doorway was open might explain, in whole or in part, the strong smell of cannabis he initially smelt when Mr Diebert opened the smaller exterior door into the Unit.

13. Mr Diebert was then arrested and telephone contact was made with other police. Other police arrived a short time later and video footage and digital images were taken of the inside of the Unit. That footage and those images confirm Constable Seip's evidence upon which the present findings are being made. At this time, Constable Seip approached the doorway into the internal room and noticed a large amount of light coming from an internal doorway within the internal room. He walked into the internal room and noticed a much larger hydroponics set up. He observed a large number of mature cannabis plants in large black pots most of which appeared to be connected to each other by irrigation systems. The room within the internal room was lined with plastic. I will call this the "growing room". Within the growing room were overhead lights, cooling fans, electrical cords and transformers and an air-conditioning system. Immediately through the doorway moving into the internal room was an anteroom and from that anteroom one entered (heading in the direction of the door end of the unit) the growing room which took up the remainder of the internal room.

14. Later (at 3.19 am), members of the Territory Investigation Group, Drug Squad arrived at the Unit. One was Constable Craft. At this time, the large roller door to the Unit was open. Constable Craft entered the Unit and made observations similar to those of Constable Seip. Constable Craft spoke to Mr Diebert who told the constable that the plants where his and no one else's. Mr Diebert also said that the equipment was mostly his, and said "I bought most of it, about 80% second-hand but and got the rest from friends". He also said that he was living at the accused's residence in Light Street, Griffith.

15. Later that morning, Constable Craft obtained a search warrant for the property at Light Street, Griffith. It was unit 3. The constable and other officers executed the warrant. When they arrived at the premises, Constable Craft knocked on the front door and called out that it was the police. They heard movement inside the unit but no one responded. In due course they forced entry through a locked screen door and as they were doing so, the main door was opened by the accused. There was another male in the unit. The premises were searched and a small hydroponics set up was located in the accused's bedroom. Small quantities of cannabis plants were located in the toilet bowl and a small amount of dried cannabis in the kitchen area. The accused admitted to owning the property and to attempting to flush the cannabis plants down the toilet as the police attempted to gain entry. The accused said he knew Mr Diebert and that he lived there. The accused said Mr Diebert had lived there on and off for about six months and stayed there three nights a week. The accused said Mr Diebert did not pay rent.

16. Later that morning (at about 11.30 am), Constable Craft returned to the Unit with other officers. Shortly after, Ms Ellis and another forensic officer arrived and commenced forensic examinations of property within the Unit and took photographs. At noon a search of the premises commenced which revealed 48 mature cannabis plans in the growing room. Each plant was in its own large black pot connected to an intricate watering system. In the growing room were 30 large white hydroponic lights connected to mains power through 31 transformers on the roof of the internal room. Also on the roof was a white ozone lighting generator, a silver air deodorizer and three sections of silver ducting.

17. Parked inside the Unit was a white Holden utility and three other vehicles. From the video it is apparent that two of these vehicles were removed probably during the police investigations on the Sunday. Inside the utility were two ActewAGL power bills in the name of the accused and addressed to the Unit's address. The bills were for the Unit and in the total sum of $1836. They were for the period 25 November 2002 to 20 December 2002. It is also apparent from the video that the four vehicles would have taken up most of the available floor space in the Unit and there would have been limited room for additional vehicles. Probably no more than a total of six vehicles could have been accommodated.

18. During the following week, Constable Craft unsuccessfully sought to obtain from the accused, a set of the accused's fingerprints though in due course prints were obtained. They were compared with fingerprints lifts taken from six lights or light shades and two transformers examined by Ms Ellis at the Unit on the Sunday morning. The six light shades were the only ones she examined. The fingerprints on one of the transformers were that of the accused as were the fingerprints on three of the light shades.

19. Other uncontentious evidence concerned supply of electricity to the Unit. It was based on documentary evidence and the evidence of Ms Corkhill. Mr Diebert became the account holder for the electricity supplied to the Unit on 12 February 2002. That changed on 27 June 2002 when the accused became the account holder. At that time, the mailing address for the account was the Unit and that continued to be the mailing address when the accused became the account holder. The amounts billed, approximately per month, from February 2002 to January 2003 for electricity consumed at the Unit commencing from the end of usage period 11/02/02 were as follows:

Commencing from the end of usage period 25/02/02

25/02/02 $87.23

26/03/02 $625.82

23/04/02 $458.63

24/05/02 $629.27

27/06/02 $518.36

23/07/02 $730.82

26/08/02 $973.83

25/09/02 $720.38

23/10/02 $554.15

25/11/02 $580.14

20/12/02 $778.46

28/01/03 $381.49

25/02/03 $56.50

On three occasions when the accused was the account holder, payments were made either in cash or by cheque at the Manuka Post Office. They were $50 on 27 August 2002, $1000 on 2 October 2002 and $2000 on 28 October 2002. At the time the accused became the account holder (27 June 2002), he already had an account for supply electricity to a flat on Captain Cook Crescent. For that reason, all that was necessary to place the account for the Unit in the accused's name was for someone to ring ActewAGL, request the change and provide the accused's date of birth. Other identification evidence that ActewAGL would have used to facilitate the accused becoming the account holder for the Unit, would have been material provided when the earlier account (for the flat on Captain Cook Crescent) had been opened.

Admission concerning payments to Mr Rezo

20. The lessor of the Unit was a Mr Rezo. Mr Rezo was not called. However the accused made a formal admission under s 184 of the Evidence Act 1995 (Cth). It was in the following terms:

1. Between July 2002 and 5 January 2003 I made three cash payments of $1100.00, $2000.00 and $2500.00 to Drago Rezo the landlord of premises at Unit 1, 26 Raws Crescent, Hume in the Australian Capital Territory.

2. The payments were made to Mr Rezo at the abovementioned premises.

The evidence of Mr Diebert

21. As noted earlier, the prosecution called Mr Diebert. I will now set out those parts of his evidence which deal with material matters not already the subject of the findings or admission set out above. I found Mr Diebert was not a reliable witness and I gained the clear impression that he was disinclined to answer questions honestly if, to do so, would favour the prosecution's case. His evidence was, on some critical issues, vague, confused and sometimes contradictory. If, as I set out his evidence I indicate I accept it, I do so on the basis that the evidence establishes those facts to which the evidence relates.

22. Mr Diebert gave evidence that he suffers from manic depression and takes lithium. He had a nervous breakdown when he was 23 and has suffered mental health problems since. His problems have been compounded by going on and off medication and smoking excessive amounts of cannabis. I accept this evidence.

23. Mr Diebert rented the Unit from Mr Rezo in February 2002 and it was agreed the rent would be $10,000 for a year. Mr Diebert is a motor mechanic. I accept this evidence.

24. His evidence about why he wanted to rent space was as follows. Mr Diebert said he needed a place to keep his equipment and cars as he had just closed a mechanical repair business at a service station in Queanbeyan. He was importing cars from Japan and also buying cars from an auction house in Sydney. His marriage had just broken up and his business had also "broken up". Consistent with his account that he rented the Unit to continue working with cars, he gave the additional following evidence. When he first rented the Unit it contained the internal room, though the smaller wooden structure on top of its roof did not then exist. He constructed the smaller wooden structure on top of the internal room about a week or two after he commenced to occupy the unit. He did so after he had placed a car inside the internal room and spray-painted it. He had been overwhelmed by the fumes. The construction of the smaller wooden structure on top of the internal room was, initially, part of establishing a system of extracting fumes from the internal room to enable him to spray paint cars.

25. The difficulty with the evidence set out in the preceding paragraph, is that it not easy to reconcile with the electricity accounts. Mr Diebert became the holder of the account on 12 February 2002. Thereafter, the meter was read on 25 February 2002. The cost of the electricity consumed in that two week period was $87.23. The meter was next read on 26 March 2002. The cost of the electricity consumed in that four week period was $623.82. Mr Diebert gave evidence, which I accept, to the effect that during periods when the cannabis was being cultivated, the cost of the electricity was high and, I infer, in the order of $600 or $700 per month. Electricity consumption at a level resulting in charges of $623.82 during those four weeks in the billing period ending 26 March 2002, was consistent with Mr Diebert having commenced hydroponic cultivation. These accounts would sustain an inference that the hydroponic cultivation commenced no later than three weeks after Mr Diebert first occupied the Unit. If that inference was drawn, then it would also be open to infer further that Mr Diebert rented the Unit, not for the purposes only of renovating cars, but additionally for the purpose of the hydroponic cultivation and, as a subsidiary purpose, to store personal effects and trade equipment.

26. Mr Diebert gave evidence, which I accept, that he acquired the equipment for the hydroponic cultivation both by purchasing it from a shop and obtaining some from friends. That evidence is consistent with the statement he made to Constable Craft on the morning of his arrest. The clear inference is that he had set up the hydroponic cultivation system within a few weeks of occupying the Unit. I find that Mr Diebert rented the Unit with the intention of cultivating cannabis and commenced to create the hydroponic cultivation system shortly after occupying the unit.

27. That is not to say, however, that the Unit was not rented for the purpose of repairing cars as well, and was also used for that purpose. It is relatively clear from a video of the Unit taken on the morning the hydroponic cultivation system was discovered by the Police, that there was equipment in the Unit used for car repair, some car parts and four vehicles at least of which appears to be undergoing some form of repair. I am not able to make a finding about whether cars were, at that time, been repaired or renovated though on the bonnet of one of the vehicles were aerosol packs which appear to be of the type commonly used for that purpose. I find that the Unit was used for this purpose from time to time.

28. I should mention one further matter in relation to the equipment installed by Mr Diebert for the hydroponic cultivation. As noted in the preceding paragraph, I accept Mr Diebert's evidence that he acquired the equipment both by purchasing it from a shop and obtaining some from friends. He gave specific evidence that he acquired from the accused a small number of lights (at one point in his evidence he said two and at another point, three), three cords and three transformers. However, as noted earlier, Mr Diebert told Constable Craft on the day of his arrest that the equipment was mostly purchased but some borrowed from friends and his evidence about acquiring some from the accused (together with the fact that the accused had, himself, been engaged in cultivation at his flat) is consistent with that earlier statement. I accept Mr Diebert's evidence about the acquisition of some of the equipment from the accused.

29. Mr Diebert gave evidence that other people were involved with him in the cultivation and that he gave the police the names of those people. I accept this evidence.

30. Mr Diebert gave evidence that the accused first became aware that Mr Diebert had rented the Unit in a conversation two weeks after commencing to occupy the Unit. He also gave evidence that the accused asked him if he could leave a few vehicles there but Mr Diebert said no. He also gave evidence that the accused visited the Unit ten or twelve times. That evidence was not challenged by counsel for the accused in cross-examination. I find that the accused visited the Unit no less than a dozen times while it was occupied by Mr Diebert. As to the purpose of the visits, Mr Diebert gave evidence that the accused initially visited to talk. It was put in terms of the accused and he had both separated from their partners (and Mr Diebert had lost his business) and they "were probably sharing a lot of deep and meaningfuls". However Mr Diebert's evidence was that later he and the accused came to an arrangement where the accused could use the Unit to store vehicles. Later the visits were to drop off cars. Mr Diebert gave confusing, if not conflicting, evidence that, on the one hand, the cars were cars of the accused he had stored elsewhere but needed to move and, on the other hand, the cars were cars the accused was providing Mr Diebert to repair as part of some barter system.

31. Mr Diebert also gave evidence in these proceedings that the arrangement that the accused would have the electricity account for the Unit put in his name was part of the general arrangement under which the accused could store his vehicles at the Unit. He also said that he did not tell the accused about the cultivation of the cannabis when they had the discussion about the electricity account. His evidence was that no one was aware.

32. Mr Diebert's evidence was that the accused would, as part of the arrangement, pay for some of the electricity and pay some rent in relation to the Unit. Counsel for the accused did not challenge, in cross-examination, that the accused agreed to pay for some of the electricity and some rent in relation to the Unit or that the accused was told the electricity account had been put in his (the accused's) name. The reason Mr Diebert gave for reaching this agreement was that the electricity was about to be "turned off" (and the cannabis crop would be lost) because the account was in arrears. In those circumstances, it was necessary to have the account placed in some one else's name. I infer from this evidence is that Mr Diebert was short of funds and unable to pay the account at the time the accused became the named account holder.

33. His evidence as to how the change came about was, at one point in his evidence, that he and the accused spoke about it, he (Mr Diebert) telephoned ActewAGL but because he did not know the accused's birthday, the accused had to telephone. Having given this version, Mr Diebert then said he actually did not remember the circumstances. Later in his evidence he said that he was 100% certain that he rang and had some trouble in changing it but could not remember whether he then got the accused to do it though he thought he (Mr Diebert) changed it over. He then said he honestly did not know.

34. Mr Diebert also gave evidence, during cross-examination, that he collected the electricity bills sent to the Unit. He had earlier said, in evidence in chief, that he would not have been silly enough to show the accused electricity bills with $1200 or $1400 on it. This was said shortly after giving evidence that he probably would have said to the accused "look you pay the electricity, it's probably $40 to $50 a week". At one point in his evidence he said that he would certainly have made the payments after the account had been transferred into the accused's name. Later his evidence was far less certain and he speculated ("I would say I would have") that he would have made two of the payments ($1000 in October 2002 and a further payment of $2000) but immediately after said he could not remember. He then said he believed it would have been him "with that amount of cash".

35. Mr Diebert gave a different version of events in evidence on 25 August 2003 in proceedings before a Magistrate, namely that the accused became aware that Mr Diebert was cultivating cannabis two months into the growing of the crop when the accused asked Mr Diebert to change the electricity bill into his name. Mr Diebert's evidence before the Magistrate was that he then informed the accused that he had already done so. In these proceedings, Mr Diebert gave evidence that at the time he discussed the electricity account with the accused, the accused was not aware that he was growing cannabis at the Unit. The prosecution was given leave to cross-examine Mr Diebert about this matter under s 38 of the Evidence Act 1995 (Cth) and did. The explanation given by Mr Diebert for the inconsistency in the evidence was that when he gave the earlier evidence in August 2003, he wanted to get someone involved to "take the heat off" him or "to shift the blame off" him, to use the two expressions he used when giving evidence in these proceedings. Additionally Mr Diebert suggested that when he gave that earlier evidence he had not been on medication for some time and was "scattered". I will discuss the evidence in this and the preceding paragraphs, shortly when discussing other evidence relied on by the prosecution to demonstrate the guilt of the accused.

36. Mr Diebert gave evidence that he had known the accused for four years and had been living with him up until six or seven weeks before his arrest in January 2003. I accept this evidence.

37. Mr Diebert also gave evidence that he kept the large roller door of the Unit open everyday he was there. He said that although he did not want a flow of people in and out, he was concerned not to raise suspicions on the part of other people working in the area about his business always being closed up and cars coming and going. I accept this evidence. I also accept his evidence that there were people working in and out of adjoining units in the warehouse complex.

Conclusions

38. The prosecution's case, that the accused knew that Mr Diebert had been cultivating cannabis at the Unit, was conceded to be circumstantial. However it was submitted that I could be satisfied, beyond reasonable doubt, that the accused knew and had financed, in a relevant sense, the cultivation having regard, centrally, to four matters. The first was Mr Dierbert gave evidence that the accused had attended the Unit on several occasions during the period in which the cannabis was being cultivated and that he would have known it was being cultivated because of the strong and pervasive smell of cannabis present in the Unit. The second was that the accused's fingerprints were found on four objects which were integral to the hydroponic cultivation of the cannabis. The third was that, as an admitted fact, the accused had made three payments, of significant sums, to the lessor for rent of the Unit in the second part of 2002. The fourth was that the named holder of the ActewAGL account for the electricity supplied to the Unit had changed in June 2002. The accused then became the person in whose name the account was held. On the evidence of Mr Debert given to the Magistrate in August 2003, this change occurred at the time the accused was told of the cultivation of the cannabis in the Unit.

39. As to the first matter, it is conceivable that the accused would have smelt the cannabis when he visited the Unit. However Mr Diebert kept the roller shutter door open during the day. It is conceivable (indeed likely) that he kept the door to the inner room closed during the day. Accordingly the evidence of the prosecution that there was a strong smell of cannabis on the premises when the police arrived on 5 January 2003 does not support a finding that whenever the accused visited, he also would have smelt cannabis. Such a finding could be supported, in my opinion, only if there was evidence to show that the strong smell was present in circumstances where the door to the inner room was closed and the roller shutter door was open. There is no such evidence.

40. The second matter concerns the fingerprints. The presence of the accused's fingerprints on a limited number of the light fittings and transformers, is consistent with him having been involved in the installation or maintenance of the hydroponic cultivation system. However it is also consistent with the accused supplying Mr Diebert with a limited number of fittings without knowledge of the purpose to which they were going to be put, namely cultivation of cannabis in quantities for sale and supply. There is no evidence to indicate, one way or the other, whether the accused's fingerprints were on the many light fittings and associated equipment which were not the subject of forensic examination.

41. The third and fourth matters concern the rent payments made by the accused which were the subject of the admissions as well as the fact that the accused became the named account holder in June 2002 for the electricity account and several large account payments were made after that time. The prosecution's case is that the rent payments were made by the accused using his own funds or, alternatively, funds from another source, at a point in time when the accused was aware that Mr Diebert was cultivating cannabis and the accused had asked to be involved in the venture, at least by asking to have the electricity account placed in his name.

42. The hypothesis of the accused appeared to be that at the time the rent payments were made, the accused was not aware of the cultivation being undertaken by Mr Diebert at the Unit. No hypothesis was advanced as to why the payments were made by the accused though Mr Diebert provided an explanation in his evidence in that he said the accused had agreed to pay some of the rent. It was suggested by counsel for the accused that the source of the funds could have been others involved in the enterprise, the identities of which Mr Diebert had revealed to the police. As to the circumstances in which the accused became the account holder for the supply of electricity to the Unit, the hypothesis appeared to be that the change had been effected by Mr Diebert with the consent of the accused as part of the arrangement under which the accused could use some of the space in the Unit to store cars. That arrangement was arrived at when Mr Diebert was running the risk that the cannabis crop would be ruined because the electricity would be cut off as the account was substantially in arrears. And allied hypothesis was that the earlier evidence of Mr Diebert (in August 2003) that the arrangement arose as a result of the accused becoming aware of the cannabis cultivation, was unreliable either because Mr Diebert was then not taking medication and was confused or because Mr Diebert gave a false account in order to establish the complicity of others in the illegal enterprise.

43. It is to be recalled that the rent for the Unit was $10,000 for a year. The admission made by the accused was that between July 2002 and the beginning of January 2003, he paid the landlord, Mr Rezo, $5,600. This would have been the whole rent for the period referred to in the preceding sentence. It is also to be recalled that Mr Diebert gave evidence in these proceedings of an arrangement with the accused that he (the accused) would pay some rent, an amount for the electricity and would have the electricity account placed in his name. His evidence was to the effect that this happened at the time of the account was changed into the accused name, namely 26 June 2002. I am satisfied that there were discussions between Mr Diebert and the accused in June 2002 leading to an arrangement where the accused would pay rent, would contribute towards the electricity and the account being in the accused's name. This finding is consistent with the evidence given by Mr Diebert in August 2003 in the proceedings before the Magistrate, consistent with his evidence in these proceedings and accords with the objective evidence, namely that in June 2002 the electricity account was transferred into the accused's name.

44. The critical question is whether the prosecution has established, beyond reasonable doubt, that this arrangement was not entered into for the reason given by Mr Diebert in these proceedings (so the accused could store cars at the Unit) but that it was for the reason to be inferred from the evidence Mr Diebert gave in August 2003, that it the arrangement was entered into at about the time the accused became aware of Mr Diebert's cultivation of the cannabis and at the request of the accused who wished to be involved in the enterprise.

45. I reject the reason given by Mr Diebert in these proceedings. It is highly improbable that the accused would have accepted the legal responsibility of paying the entire electricity account simply as part of an arrangement under which he would be able to use space in the Unit to store cars and under which he would contribute towards the electricity. Something more would have been necessary. The obvious additional factor is that identified by Mr Diebert in the evidence he gave in August 2003. That factor was that the accused became aware of the cannabis cultivation and, inferentially, wanted to be involved.

46. It is quite probable that the need for the accused to become the account holder arose because Mr Diebert had not paid the account and there was a risk that the electricity would be cut off and the crop ruined. I am satisfied that was the reason. A fresh start was needed by placing the account in some else's name. However that would have been an explanation which could have induced the accused to be the account holder if the accused had been made aware of Mr Diebert's dilemma. Unless the accused had been made aware of the dilemma, then, as earlier noted, it is highly improbable that the accused would have, without any explanation, accepted that he should be the account holder.

47. To these considerations can be added the fact that the accused paid to the lessor sums equivalent to the entire rent for the Unit after he entered an arrangement with Mr Diebert concerning the Unit. Mr Diebert's evidence (unchallenged in cross examination) was that part of the arrangement was the accused would pay some of the rent. It is consistent with that evidence that the amounts paid by the accused were his own funds, either in whole or in part.

48. Yet other considerations are also relevant. The accused probably used and certainly grew cannabis. He had a small hydroponic system in his flat when it was searched by the police in January 2003 and he provided Mr Diebert with some of the equipment used in the cultivation undertaken in the Unit. He visited the Unit on a number of occasions and when he paid the rent for the Unit in the period July 2002 to January 2003, he did so at the Unit. He must have noticed the inner room. It is very difficult to imagine that he would not have talked to Mr Diebert about what was in the inner room. He was a friend of Mr Diebert. At the time the cultivation commenced and in June 2002, Mr Diebert was living with the accused. These matters point to the accused coming to know that the cultivation was being undertaken, at the latest, by June 2002.

49. I am satisfied beyond reasonable doubt, that the accused was aware that Mr Diebert was cultivating cannabis at the Unit by June 2002, was aware of the size of the crop and reached an agreement with Mr Diebert that he would be responsible for the electricity account as part of an arrangement in which the accused would have an interest of some kind. I am also satisfied beyond reasonable doubt that at least part of the rent payments paid by the accused, were his own funds.

50. It follows that I am satisfied that the accused participated in the cultivation of a prohibited plant for the purpose of sale or supply. His participation included the provision of finance (by the payment of some of the rent) for the enterprise. It is unnecessary to explore the boundaries of what is comprehended by the word "participation" or by the expression "provides finance" in s 162 of the Drugs of Dependence Act 1989 (ACT): as to which see R v Errigo (2005) 91 SASR 80; R v Thomas (1993) 67 A Crim R 308; Sergi v DPP (unreported, New South Wales Court of Appeal, Kirby P, Meagher and Handley JJA, 10 September 1991). I am satisfied beyond reasonable doubt the accused is guilty of the offence charged.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Moore.

Associate:

Date: 5 August 2005

Counsel for the Prosecution: M Jones

Solicitor for the Prosecution: Director of Public Prosecutions (ACT)

Counsel for the Accused: J Sabharwal

Solicitor for the Accused: Hill & Rummery

Date of hearing: 15 June 2005

Date of judgment: 5 August 2005