Reported Decision : 142 A Crim R 459 New South Wales Court of Criminal Appeal CITATION : Regina v Ruiz-Avila [2003] NSWCCA 264 HEARING DATE(S) : 15/09/03 JUDGMENT DATE : 26 September 2003 JUDGMENT OF : Hidden J at 1; Greg James J at 29; Newman AJ at 30 DECISION : See par 28 CATCHWORDS : CRIMINAL LAW - Knowingly concerned in supply of ecstacy, cultivation of cannabis - use of premises leased by appellant - requirement of knowledge Customs Act 1901 LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 National Parks and Wildlife Act 1974 Bahri Kural v The Queen (1987) 162 CLR 502 R v Giorgi and Romeo (1981) 7 ACrim R 305 Giorgianni v The Queen (1985) 156 CLR 473 CASES CITED : R v Greatorex (1994) ACrimR 498 Histollo Pty Ltd v Dir-Gen of National Parks and Wildlife Service (1998) 45 NSWLR 661 He Kaw Teh v The Queen (1985) 157 CLR 253 Pereira v Director of Public Prosecutions (1988) 63 ALJR 1 PARTIES : Regina Robert Marck Ruiz-Avila FILE NUMBER(S) : CCA 60164/03 COUNSEL : D Frearson - Crown S Odgers SC - Appellant SOLICITORS : SE O'Connor - Crown M Ricci - Appellant LOWER COURT District Court JURISDICTION : LOWER COURT 01/41/0202 FILE NUMBER(S) : LOWER COURT PR Bell DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60164/03 HIDDEN J GREG JAMES J NEWMAN AJ Friday 26 September 2003 Regina v Robert Marck Ruiz-Avila Judgment 1 HIDDEN J: The appellant, Robert Marck Ruiz-Avila, was tried in the District Court upon an indictment containing three counts: 1. Knowingly taking part in the supply of cannabis leaf on 27 March 2001; 2. Knowingly take part in the supply of ecstasy on the same date; 3. Knowingly taking part in the cultivation of cannabis between 7 July 2000 and 27 March 2001. He was found guilty of all three counts and sentenced to a term of imprisonment. He appeals against his conviction of the second and third counts and, should that appeal be successful, against his sentence on the first count. 2 Put shortly, it was the Crown case that in late June 2000 the appellant signed a lease on a unit at Wollongong, which was to commence on 7 July, 2000. There was evidence from which it might be inferred that, although he paid the rent for the unit and had the keys to it, he did not live there. There was also evidence that several other men had access to the unit, but there was no evidence that he had sub-let it. 3 Towards the end of March 2001 the unit came to the attention of police as a result of a complaint of a pungent odour, which proved to be that of cannabis, emanating from it. On 27 March, 2001 police entered the unit, armed with a search warrant. It did not appear that anyone was living there, although a bank statement in the name of the appellant (directed to him at a different address) was found on the floor. 4 A large quantity of cannabis was found in various positions within the unit, readily within view. Some of the cannabis was hanging from metal racks, and police found equipment for drying it and securing it in heat-sealed plastic bags. A large set of electronic scales was found. There was also equipment capable of being used for the cultivation of cannabis, about which I shall have more to say later. 5 It was the finding of this material which gave rise to the first and third counts. The second count arose from the finding of 323 ecstasy tablets, contained in plastic bags, in a cutlery drawer in the kitchen. 6 The appellant declined to be interviewed by police and gave no evidence at the trial. The central issue at the trial was his knowledge of the presence in the unit of the cannabis, the ecstasy and the equipment to which I have referred. It was open to conclude on the evidence that he had been to the unit in the days prior to the search, and there was evidence of statements made by him to a real estate agent and a police officer which the Crown contended were lies and from which his knowledge of the presence of the cannabis might readily have been inferred. No doubt, it is for this reason that there is no appeal against his conviction on the first count. 7 The appellant was alleged to have taken part in the supply of the cannabis and ecstasy and the cultivation of the cannabis on the basis that he suffered or permitted a step in the process of the supply or cultivation, as the case may be, to be taken in premises of which he was the lessee: s6(c) of the Drug Misuse and Trafficking Act 1985. The trial judge's oral directions to the jury about the elements of the three offences were encapsulated in a document which was provided to the jury. These directions were given with the concurrence of the Crown prosecutor and defence counsel at the trial, neither of whom appeared in the appeal. Nevertheless, in this Court Mr Odgers SC, for the appellant, submitted that the directions in respect of the second and third counts were erroneous and that, in any event, the verdicts of guilty on those counts are unreasonable. Count 2 8 As to the second count, relating to the supply of the ecstasy tablets, Mr Odgers argued that his Honour misdirected the jury about the element of knowledge. The question posed for the jury was whether they were satisfied beyond reasonable doubt that the appellant: … knew or was aware that there was a real or significant chance that his rental premises were being used for the storage of a prohibited drug, as part of the process of supplying that drug, and either he intentionally did nothing about preventing it, or he intentionally allowed it to occur. 9 That direction appears to have been derived from the judgment of Mason CJ, Deane and Dawson JJ in Bahri Kural v The Queen (1987) 162 CLR 502, a case concerned with the intent requisite to the offence of importing a prohibited drug (s 233(b)(1)(b) of the Customs Act 1901). Their Honours said (at 504-5): Where, as here, it is necessary to show an intention on the part of the accused to import a narcotic drug, that intent is established if the accused knew or was aware that an article which he intentionally brought into Australia comprised or contained narcotic drugs. But that is not to say that actual knowledge or awareness is an essential element in the guilty mind required for the commission of the offence. It is only to say that knowledge or awareness is relevant to the existence of the necessary intent. Belief, falling short of actual knowledge, that the article comprised or contained narcotic drugs would obviously sustain an inference of intention. So also would proof that the forbidden act was done in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that act and nevertheless persisted in that conduct. As a practical matter, the inference of mens rea or a guilty mind will ordinarily be irresistible in cases involving the importation of narcotic drugs if it is proved beyond reasonable doubt that the accused actually imported the drugs and that he was aware, at the time of the alleged commission of the offence, of the likelihood of the existence of the substance in question in what he was importing and of the likelihood that it was a narcotic drug. 10 What their Honours then said (at 505) is important for the purposes of the present case:- What we have said is designed to emphasise that the existence of the requisite intention is a question of fact and that in most cases the outcome will depend on an inference to be drawn from primary facts found by the tribunal of fact. In this, as in other areas of the law, it is important not to succumb to the temptation of transforming matters of fact into propositions of law. In that regard, we would emphasise that the foregoing comments are not designed as a direction or instruction to be read by trial judges to juries. They are intended to give guidance to trial judges in order to enable them to formulate such directions as may be appropriate to the facts and circumstances of particular cases. 11 The same three justices repeated those statements of principle in Saad v The Queen (1987) 29 ACrim R 20 at 21. They were seen as applicable to cases of the deemed supply of a prohibited drug under the Drug Misuse and Trafficking Act (1985) in R v Greatorex (1994) 74 ACrim R 496, per Hunt CJ at CL at 498 and Simpson J at 503-4. In that case their Honours referred to He Kaw Teh v The Queen (1985) 157 CLR 253, Bahri Kural and Saad, but they did not refer to the later High Court decision of Pereira v Director of Public Prosecutions (1988) 63 ALJR 1. 12 In Pereira the Court considered the adequacy of a trial judge's directions in relation to charges of being knowingly concerned in the importation into Australia of cannabis resin and having in possession a quantity of cannabis resin which had been imported into Australia (both offences under the Customs Act). In a joint judgment, the Court referred to He Kaw Teh and Bahri Kural and continued (at p 3): Even where, as with the present charges, actual knowledge is either a specified element of the offence charged or a necessary element of the guilty mind required for the offence, it may be established as a matter of inference from the circumstances surrounding the commission of the alleged offence. However, three matters should be noted. First, in such cases the question remains one of actual knowledge: Giorgianni v The Queen (1985) 156 CLR 473 at 504-507; He Kaw Teh at 570. It is never the case that something less than knowledge may be treated as satisfying a requirement of actual knowledge. Secondly, the question is that of the knowledge of the accused and not that which might be postulated of a hypothetical person in the position of the accused, although, of course, that may not be an irrelevant consideration. Finally, where knowledge is inferred from the circumstances surrounding the commission of the alleged offence, knowledge must be the only rational inference available. 13 These principles were applied, and the requirement of proof of actual knowledge emphasised, by this Court in Histollo Pty Ltd v Director General of National Parks and Wildlife Service (1998) 45 NSWLR 661, a case concerned with the offence created by s90 of the National Parks and Wildlife Act 1974 of knowingly causing or permitting damage to aboriginal relics: in particular, per Spigelman CJ at 665-6, Sperling J at 667, and Greg James J at 695, 700-701. 14 It is one thing to say that the mental element of importation might be made out when a person brings into this country a bag in which he or she is aware that there is likely to be a narcotic drug, or that the mental element of possession is made out when a person has a container in which he or she is aware that there is likely to be a prohibited drug. It is quite another thing to say that the lessee of premises might be fixed with the knowledge required to establish the charge against the appellant on the basis only of his or her awareness of the likelihood that there is a prohibited drug in the premises. In my view, nothing less than actual knowledge of the presence of the drug, in this case the tablets, could be sufficient. Of course, if the appellant's knowledge of the presence of the tablets were proved, it would not be necessary to prove that he knew that they contained the drug ecstasy. Knowledge, or even belief, on his part that they contained a prohibited drug would be sufficient: cf Dunn (1988) 32 ACrim R 203, per Burt CJ at 205 and Pigeon J at 211. 15 Accordingly, his Honour's direction that the appellant's guilt of the second count might be founded upon proof that he was "aware that there was a real or significant chance that his rental premises were being used for the storage of a prohibited drug…" was erroneous. The jury would have understood that to mean that something less than actual knowledge, not only of the nature of the tablets but also of their presence in the unit, would be sufficient. This was a misdirection about an element of the offence charged, and one which was very much at issue in the trial. Although the direction was given with the assent of defence counsel, I would uphold this ground of appeal. 16 In support of the ground that the verdict of guilty of count two is unreasonable, Mr Odgers pointed to the evidence that the appellant did not live at the unit, that other men had access to it, and that the tablets were found in a place where they would not be immediately observable to anyone entering the unit. It is reasonably possible, he argued, that one of the other men had concealed the drug in the drawer in the course of some criminal activity of his own, of which the appellant had no knowledge. There is considerable force in this submission. However, I find it unnecessary to decide this ground because I have already determined that the conviction on count two must be quashed and, for reasons to which I shall turn later in this judgment, I do not consider it appropriate to order a new trial of that count. Count Three 17 In relation to count three, alleging that the appellant knowingly took part in the cultivation of cannabis, the question posed for the jury was whether they were satisfied that the appellant: …knew or was aware that there was a real or significant chance that his rented premises were being used for the purpose of storing a prohibited plant, and that he intentionally did nothing about preventing it, or he intentionally allowed it to occur. 18 In respect of this count, Mr Odgers takes no point about the reference to awareness of a real or significant chance (no doubt, for the same reason that there is no appeal in respect of count one, that is, the sufficiency of evidence that the appellant knew about the cannabis in the unit). Where the direction is in error, Mr Odgers submits, is that it conveys that the appellant's criminal responsibility for the cultivation of cannabis plants might be founded upon his knowledge that the unit was being used for storing the plants. It is necessary to examine how the direction came to be framed in that way. 19 As I have said, equipment capable of being used for cultivation of cannabis was found at the unit. A detective experienced in drug investigations gave evidence that it could be for growing cannabis hydroponically. However, he said that it was dismantled and there was no sign that it had been used in the premises. He acknowledged the possibility that the cannabis had been grown elsewhere, and had been brought to the unit just prior to drying and processing for sale. 20 Before the summing up, in the light of the detective's evidence, the trial judge and the Crown prosecutor at trial discussed how the Crown case on count three should be left to the jury. In s3 of the Drug Misuse and Trafficking Act, to "cultivate" is defined to include to "plant, grow, tend, nurture or harvest" a prohibited plant. Prompted by his Honour, the Crown prosecutor acknowledged that he could not prove that the cannabis had been planted, grown, tended or nurtured at the unit, and that the only term in that definition applicable to the case was "harvest." He agreed with his Honour that that term could not include drying a harvested crop, which should be viewed as part of the process of supplying it, but that it could embrace storing it. 21 Accordingly, his Honour took the jury to the statutory definition of "cultivate", and explained to them that it was the Crown case that the cannabis was stored at the unit as "part of the harvesting process…" The written direction was in the terms which I have set out above. 22 His Honour's directions would have conveyed to the jury that, as a matter of law, storage of a harvested crop is part of the process of harvesting, so as to be caught by the statutory definition of cultivation. The jury would not have understood that whether the storage of the cannabis at the unit should be viewed as part of the harvesting process was a question of fact for them. Particularly is this so of the written direction, which focussed on the use of the premises "for the purpose of storing a prohibited plant" and made no reference to the process of harvesting. 23 There may be circumstances in which the storage of a crop might be seen as the last stage of the harvesting process. In R v Giorgi and Romeo (1981) 7 ACrim R 305, King CJ (at 308-9) considered the meaning of the word "cultivate" in the context of South Australian legislation which did not provide a statutory definition. His Honour noted that the term could "encompass the whole process of production from the soil, including preparing the soil, sowing, tending and caring for the plant during the growth and reaping or harvesting." His Honour went on to observe: The harvesting aspect of cultivation would include, not only the actual removal of the plant or portion thereof from the soil, but also the ancillary activities of laying out, stacking, removal to nearby sheds and placing in those sheds. Whether storage of a crop is part of the harvesting process is a question of fact, to be determined in the light of the circumstances of each case. To assert that storage is embraced by the term "harvest" as a matter of law is erroneous. Again, notwithstanding defence counsel's assent to his Honour's direction, I would uphold this ground. 24 It is difficult to see how the storage of the cannabis at the unit in the present case could be classified as part of the harvesting process, given the reasonable possibility, acknowledged by the Crown prosecutor at trial, that it had been grown elsewhere and brought to the unit for the purpose of drying and packaging. Its presence in the unit is far more consistent with its being prepared for supply (the allegation embraced by the first count). In my view, if the question whether the storage was part of the harvesting process had been left for the jury to decide, it would not reasonably have been open to them to conclude that it was. In the light of the confined manner in which the case was left to the jury, the verdict in respect of count three could not be sustained in any event. 25 It may be that the Crown case need not have been limited in the way it was, and that the question whether the cultivation was undertaken, in whole or in part, at the unit might have been left to the jury. However, it would not be appropriate for the Crown to have the opportunity at a new trial to make out a different case: cf R v Anderson (1991) 53 ACrim R 421, per Gleeson CJ at 453. The verdict on count three should be quashed and a verdict of acquittal entered. 26 In my view, the same orders should be made in respect of count two. The Crown case on that count is not strong. His Honour passed sentences on the three counts which resulted, effectively, in a head sentence of two years and two months and a non-parole period of seventeen months, dating from 14 November, 2002. The appellant has now served over ten months of that sentence. Moreover, without examining the manner in which his Honour structured the sentences, part of the effective sentence is referable to the third count, of which the appellant is entitled to be acquitted. In these circumstances, applying the principles enunciated by the High Court in Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630, I do not think that the interests of justice require that there be a new trial of the second count. 27 That leaves, then, the question of sentence on the first count. On that count his Honour imposed a fixed term of imprisonment for twelve months, commencing on 14 November 2002. Counsel in this Court were agreed that, if the convictions in respect of the other two counts were quashed, we should vary that sentence so as to enable the appellant's immediate release. I would propose a fixed term of ten months, which would have expired by the time this judgment is delivered. 28 Accordingly, I would allow the appeal in relation to counts two and three. In respect of each of those counts, I would quash the conviction and enter a verdict and judgment of acquittal. In respect of the sentence on count one, I would grant leave to appeal and allow the appeal. I would quash the sentence of twelve months imprisonment, and would substitute a fixed term of imprisonment for ten months, commencing on 14 November 2002 and expiring on 13 September 2003. That sentence having expired, the appellant should be released forthwith. 29 GREG JAMES J: I agree with Hidden J. 30 NEWMAN AJ: I agree with Hidden J. ********** Last Modified: 09/26/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.