Mogilevsky v R [2010] NSWCCA 92

New South Wales Court of Criminal Appeal

CITATION: Mogilevsky v R [2010] NSWCCA 92

HEARING DATE(S): 2nd October 2009

JUDGMENT DATE: 7 May 2010

JUDGMENT OF: Latham J at 1; Fullerton J at 30; Schmidt J at 31

DECISION: 1. The appeal allowed 2. The conviction on the second count quashed and a verdict of acquittal entered in respect of that count

CATCHWORDS: CRIMINAL LAW-Conviction appeal-Supply (deemed) a prohibited drug (cannabis)-Crown confusing concepts of joint criminal enterprise and joint possession-Whether Trial Judge erred in failing to conclude knowledge of drugs essential to joint possession -Whether Trial Judge erred in refusing no case submission and allowing charge to go before Jury

CATEGORY: Principal judgment

CASES CITED : Jackwitz v R; Franklin v R [2006] NSWCCA 419 R v Amanatidis [2001] NSWCCA 400

PARTIES: Gilla Mogilevsky - Appellant Regina - Crown Respondent

FILE NUMBER(S): CCA 2007/16071

COUNSEL: S Buchen - Appellant M Cinque- Crown Respondent

SOLICITORS: Steve O'Connor (Legal Aid Commission) - Appellant S Kavanagh (Solicitor for Public Prosecutions) - Crown Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/11/0603

LOWER COURT JUDICIAL OFFICER: Finnane QC DCJ

LOWER COURT DATE OF DECISION: 20 June 2008

IN THE COURT OF CRIMINAL APPEAL 2007/16071

LATHAM J FULLERTON J SCHMIDT J

7 MAY 2010 GILLA MOGILEVSKY v REGINA Judgment 1 LATHAM J : The appellant appeals against her conviction on one charge of supply (deemed) a prohibited drug (cannabis). The appellant was also convicted on one count of cultivate a prohibited plant, but there is no appeal in relation to that offence. There is no appeal against sentence. 2 The Crown case on the cultivate charge was at all times conducted on the basis that the appellant was a participant in a joint criminal enterprise to cultivate approximately 1000 plants, found growing inside three adjacent residential premises at St Ives in July 2006. The other parties to this enterprise were the appellant's three sons, two of whom lived with her in another adjacent property. 3 There was only one piece of direct evidence against the appellant implicating her in the commission of the cultivate offence. That evidence was about 90 minutes of film footage, obtained by the use of a surveillance device in one of the three houses (referred to as number 80), showing the appellant vacuuming and cleaning the floor and the immediate surrounds of the plants, and spraying the plants with an unidentified liquid from an atomiser on 28 June 2006. There was no evidence of the appellant's presence in number 80, or in either of the other two houses where cannabis was growing, prior to that date. The appellant gave evidence during which she sought to cast an innocent explanation on her activities at number 80, namely, that she was conducting a "pranic healing ritual" in an effort to rid her sons of their addiction to cannabis. The jury clearly rejected that explanation. 4 The cannabis the subject of the deemed supply charge was found in 11 bags inside a cupboard in the hallway, loose on the kitchen table and in large plastic tubs and garbage bags in a back room of number 80. There was no evidence capable of demonstrating that the harvested cannabis was the product of the crop that was growing in number 80 as at 28 June 2006. There was no fingerprint or DNA evidence capable of linking the appellant to the bags of cannabis. The appellant made a no-case submission on the supply charge at the close of the Crown case, but was unsuccessful in that regard. The substance of this appeal is that the Judge was wrong to have allowed the case on the supply charge to go to the jury. 5 A good deal of confusion was introduced into the Crown case by the framing of the indictment and by the trial advocate's opening. Both counts were expressed in terms of "knowingly take part in" the relevant offence, between the dates of 22 April and 19 July 2006. In the closing stages of the trial, the charges were amended to refer simply to "cultivate" and "supply". That amendment arose in part out of the no-case submission by the appellant's counsel, but the amendment did not address the fundamental problem with respect to the supply charge. Regardless of whether the appellant was a party to the joint criminal enterprise to cultivate, the supply charge was based on the appellant's possession, jointly with her sons, of the 8.5kg of cannabis found in number 80. Proof of that possession depended upon her knowledge of the cannabis in the house, including the cupboard. That knowledge could not be inferred from the mere fact that the appellant participated in a limited way in the enterprise to cultivate. The Evidence at Trial 6 The appellant leased premises in Cowan Road, St Ives and lived there with her sons Roni and Aitan Mogilevsky. Roni and Aitan were the registered proprietors of the property next door. Roni and his partner were the registered proprietors of a house in Killeaton Street, St Ives and the appellant's third son, Uri, was the registered proprietor of the premises next door to that house. The four houses formed an L-shape near the corner of Cowan Road and Killeaton Street. The backyard of the houses in Cowan Road adjoined the side boundary of Roni's premises in Killeaton Street. 7 The four premises had been the subject of police interest for some months prior to the execution of a search warrant on 18 July 2006. On 23 June 2006 warrants for four integrated listening devices were issued. Two of these devices were installed in number 80 on 27 June 2006. 8 During the period that the houses were under police surveillance, it was noted that the Killeaton Street properties and one of the Cowan Road properties appeared uninhabited, that the electricity to one of the houses had been diverted from the meter box, and that a strong smell of cannabis came from the premises when walking in that vicinity. 9 The appellant's three sons were observed on various dates in May, in and about the premises in Killeaton Street. On 28 June 2006 between 3:30 and 5 pm, Aitan and Roni were captured on the integrated listening device in number 80, opening large bags, working on hydroponic trays and cleaning up. The appellant was also seen in that area for that period of time using an atomiser to spray near the plants, picking up rubbish from the floor, placing it into a clear plastic bag, and vacuuming the floor. 10 When police entered the three uninhabited premises on the morning of 18 July 2006, they found active and sophisticated hydroponic cannabis plantations in each home, which included lighting systems consisting of 600 and 400 watt high intensity discharge lights with timing devices attached. 11 A very strong odour of cannabis emanated from number 80. The windows had been covered with plastic sheeting, and ventilation fans had been installed in the ceilings and in the fireplace. Each bedroom contained hydroponically grown cannabis. There were 11 heat-sealed clear plastic bags of cannabis leaf found in the hallway cupboard which had a total weight of 4.855 kg. A total of approximately 4 kg of cannabis leaf was found elsewhere, including loose cannabis on the kitchen table and a further quantity in large plastic tubs and garbage bags in a back room of the house. A vacuum heat sealer labelled "Foodsaver" was found in a room at the front of number 80, containing 138 plants. 12 A number of items from the four premises were tested for fingerprints. A fingerprint of Uri Mogilevsky was found on a transformer in the Cowan Road house and a fingerprint of Aitan Mogilevsky was found on a transformer and lampshade in a house in Killeaton Street. Otherwise, no fingerprints were identified on any items, including the 11 plastic packages of cannabis from the hallway cupboard of number 80. This result was consistent with the use of disposable gloves, a large quantity of which was found on the lounge room floor of the property in which the appellant lived. 13 In the appellant's bedroom, police found a large locked safe inside a cupboard. When the safe was opened, police found $50,000 in cash, consisting mainly of $100 and $50 notes. The appellant's explanation for the presence of this safe was that one of her sons had placed it there and she knew nothing of the contents. 14 The expert evidence at trial established that the cannabis plants ranged in maturity from seedlings to plants, consistent with an ongoing operation where cuttings are produced to replace the harvested plants. The appellant was observed on the video taken on 28 June 2006 to be using an industrial vacuum cleaner, which was said to be extremely important in maintaining a very clean environment for plants that were susceptible to fungus and pests. 15 The police could not say when the 11 packages of cannabis found in the hallway cupboard were placed there. There was evidence allowing the inference to be drawn that some, if not all, of the cannabis in the bags came from number 80, that evidence being signs of a recent harvest, that is, within the previous month, and empty rooms in those premises. 16 In the course of the appellant's evidence at trial, she maintained that she did not look in the hallway cupboard and did not see cannabis in that cupboard.