Berton v R

HOEBEN CJ at CL:

This offence is contrary to the provisions of s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) and attracts a maximum penalty of imprisonment for 15 years. 55 cannabis plants is just over the commercial quantity of 50 plants grown by enhanced indoor means.

On 1 June 2017 English DCJ sentenced the applicant to imprisonment with a non-parole period of 2 years and 22 days, commencing 1 June 2017 and expiring 22 June 2019, with a balance of term of 8 months and 7 days expiring 29 February 2020.

The applicant seeks leave to appeal against his conviction, pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). The applicant relies upon a single ground of appeal: The verdict is unreasonable and cannot be supported by the evidence.

There was no issue that in May 2014 police executed a search warrant at 55 Whitaker Road, Rossmore. This was a five acre rural property on which was constructed a house and a machinery shed. When police searched the shed, they found lights, transformers, whiteboards, buckets, ducted material on the ceilings and fans. They also found 55 hydroponically grown cannabis plants. There was no issue that those cannabis plants had been cultivated by enhanced indoor means. There was no issue that Mr Jeffery Brand was involved in that cultivation and he ultimately pleaded guilty to the offence in respect of which the applicant was convicted. There was no DNA or fingerprints obtained by police from the premises, or from objects found on the premises, which connected the applicant to the premises.

It was normal police practice that all items from a hydroponic setup such as this would be taken to an appropriate police station and be checked for fingerprints and DNA before being destroyed. In this case, most of the items found were not fingerprinted or otherwise tested before they were destroyed. The destruction of these items occurred as a result of a mistake by investigating police.

The property at 55 Whitaker Road was owned by Paul Bonanno and leased out by him. When Mr Bonanno purchased the property, he erected a shed behind the house. The shed was used to store large machinery associated with his building company. Mr Bonanno decided to lease out a portion of the shed. The house was leased to Jeffery Brand and was occupied by him and his family.

During the construction of the shed, Mr Brand approached Mr Bonanno and said that his “boss” was interested in leasing a portion of the shed. During May 2013 Mr Bonanno met with a male who introduced himself as “Steph”. That person was the applicant. The applicant informed Mr Bonanno that the shed would be used to store furniture. He explained that his business premises were located at Preston and that he needed extra storage space. In the course of that conversation, he referred to himself as “Jeff’s boss”.

On that occasion, discussions took place about “Stephan” leasing part of the shed. On 6 June 2013 a commercial lease was entered into between the applicant and Mr Bonanno. The lease was in the name of Oliver S Berton and a company, ISA Trading, as lessees in accordance with the request of the applicant. At the time when the lease was signed, Mr Bonanno asked “Stephan” for identification. “Stephan” produced a driver’s licence, which was photocopied and placed with the lease. It was in the name of Olivier Lawrence S Berton of 55 Whitaker Road, Rossmore. It did not give his residential address nor his business address.

At the time the lease was signed, “Stephan” paid Mr Bonanno a bond in the amount of $4,000. He also paid rent in advance amounting to $2,150. Those payments were made in cash and were given directly to Mr Bonanno by the applicant. Mr Bonanno was unable to say whether later payments were made to him or deposited directly into his bank account. The last payment was $3,300 which was deposited on 31 March 2014. This paid the rent up to 31 May 2014. The rent was $1,650 per month.

Mr Bonanno clearly remembered “Stephan” making some further cash payments to him at his office, but was not able to identify from his ledger which payments they were. The last time Mr Bonanno spoke to the applicant was in December 2013 when rent was overdue. That conversation was by phone.

As a result of the lease agreement the shed was partitioned. It was divided as to one-quarter to the applicant and his company and as to three-quarters for the exclusive use of Mr Bonanno. Mr Bonanno remembered an occasion when the applicant attended the shed while the partitioning was being installed. Mr Bonanno saw him “dropping off boxes in the shed” (22.2.17,T.70.24). After the partitioning was installed, there was no access to the leased area through the unleased portion of the shed. The only way the leased section could be accessed was via the front, either through a roller-shutter door or a hinged door. Mr Bonanno said that he never entered the leased portion once it had been rented out. Mr Bonanno had arranged for the connection of electricity before the lease commenced. At some point he had handed the keys to the shed to the applicant.

When police executed the search warrant, they located a number of items in the shed belonging to the co-offender, Jeffery Brand. Mr Brand at the time was a licensed reptile breeder and a number of snakes in plastic tubs were located in the shed. Police searched the residence and in the study located a notebook labelled “Jeff’s Notebook”. It contained entries, including contact details for the applicant. It also contained a reference to various fertilisers and growing instructions for the cannabis.

Police located a few items relating to the applicant at 55 Whitaker Road, including a Telstra bill in the name of “Stephan Berton”, dated 11 August 2013, addressed to 55 Whitaker Road and an ISA Trading business card with “Stephan Berton” listed as director.

Police executed a search warrant at the applicant’s home at Bottlebrush Road, Mount Annan. Police found electricity bills from Origin Energy at those premises relating to 55 Whitaker Road. The customer was identified as ISA Trading. The bills were dated January and April 2014. On the applicant’s mobile phone police found a photograph of an account for 55 Whitaker Road dated 18 July 2013.

Origin Energy was unable to provide details of who paid the accounts. The approximate cost of the hydroponic set-up was estimated to be $22,500. The applicant was arrested and police issued a special caution. He participated in a record of interview and provided limited answers to questions asked, namely, that he is known as “Stephan” and “Oliver Berton”. He lived at Bottlebrush Street, Mount Annan. He was no longer involved with ISA Trading but had been in the past. He was the manager of a company SAT Logistics and he previously employed Jeffrey Brand. He started ISA Trading but his current import-export business operated under the name of Choice International.

The notebook labelled “Jeff’s” was tested for fingerprints. Three different prints were identified and labelled F1, F2 and F3. F1 was found on a page entitled “Contact details for Stephan Berton”. F2 was found on a page entitled “Instructions for weeks 1 to 3”. F3 was found on a page entitled “Instructions for week 4 and 5”. F2 and F3 matched Jeff Brand’s fingerprints. F1 was not identified.

There was expert evidence from Sergeant Henshaw to the effect that no degree of knowledge and expertise was required to cultivate the cannabis crop. He did not accept that one would have expected there to be numerous surfaces in the shed which could potentially yield DNA or fingerprints. He agreed that frequently fingerprints and DNA were left on transformers and lightbulbs and that this could be used as circumstantial evidence. Sergeant Henshaw had been involved in hundreds of search warrants of “hydro houses”.

An employee for Endeavour Energy attended the property on 9 May 2014. He examined the meter box and found that the part of the meter box that recorded how much energy was used had been bypassed. Testing showed that over $13,000 worth of electricity had been bypassed. The bypass wiring had been used to power the hydroponic setup, including the lights, transformers and carbon extractors. Police agreed with the proposition that in these types of offences it was common for the offenders to divert electricity in order to avoid detection and to reduce their expenses.

The energy supplied to the shed was provided by Origin Energy. The account was registered as ISA Trading and the authorised contact was the applicant. Origin Energy supplied police with a number of electricity accounts for the shed. The bills were paid by Post Billpay. Origin Energy was unable to determine who paid the bills.

The plants seized by police appeared to be in the intermediate and harvesting stages of their growth cycle. This was consistent with an entry for January in a year planner for 2014 which referred to the plants having “turned to bud”.

Police identified a document provided by Telstra in relation to the fixed line number 9606 9569 (Exhibit P). It was the landline to the house at 55 Whitaker Road, which Brand leased. The telephone line was connected on 8 May 2013 in the applicant’s name and the line remained active and in the applicant’s name until July 2015. There was no evidence in the trial as to why this had been arranged.

The jury were shown a DVD of the execution of the search warrants. That DVD became Exhibit A. That exhibit has been lost. It is possible by way of reconstruction to work out some of what was depicted on Exhibit A. In cross-examination Detective Senior Constable Matthews gave the following evidence:

I infer that there was evidence before the jury, which was not objected to, of a conversation between Detective Matthews and Mr Brand in which Mr Brand said that he had last seen the applicant on 7 May 2014 and that he was able to provide contact details concerning the applicant to Detective Matthews.

The applicant did not give evidence at trial.

Ms Ingrid Asomatianos, a real estate agent, was called on behalf of the applicant. She managed unit 4 and unit 5 at 10 Ash Road, Preston. The applicant had leased those units since mid 2013. The invoices for the units were made out to Choice International College Pty Ltd. Each unit comprised 165 square metres plus 25 metres of office space. There was a total of 10 units in the complex. They were all owned by Ms Asomatianos' sister.

The applicant had asked many times if he could rent other units as he needed extra space. He made these requests continually over the years to Ms Asomatianos. Ms Asomatianos visited the units about once a week. She described the units rented by the applicant as "chock-a-block". She was shown some photographs of units 4 and 5 at 10 Ash Road that were taken the week before the trial. The only thing she had ever seen in the storage units were boxes, like the ones in the photograph, and a forklift.

The Crown case was that the applicant and Mr Brand entered into an agreement to cultivate prohibited plants where Mr Brand would grow the cannabis and the applicant would provide the shed and finance for the venture. The defence case was that the applicant had no knowledge of the cultivation, so that the Crown could not prove beyond reasonable doubt a joint criminal enterprise.

The applicant submitted that the joint criminal liability contended for by the Crown was that which was described by Hayne J in Gillard v The Queen [2003] HCA 64; 219 CLR 1 at [110]:

The applicant submitted that while there may have been some “association” between the co-offenders, mere “association” between the applicant and Mr Brand was insufficient to establish an agreement and participation referable to a joint criminal enterprise to cultivate prohibited plants. The applicant submitted that it was necessary for the Crown to point to pieces of evidence that tended to prove that two or more persons, in this case the applicant and Mr Brand, “entered into an agreement or understanding to commit a crime and participated in some way in furthering its execution” (Dickson v R [2017] NSWCCA 78 at [47] per Bathurst CJ (with whom Johnson and Fullerton JJ agreed)).

The applicant submitted that the joint criminal enterprise contended for by the Crown was one in which the applicant was not present at the commission of the offence and that ultimately the jury were invited to infer an agreement to cultivate prohibited plants from the acts and circumstances of the co-offender. The applicant submitted that it was of significance that there was no evidence of any communication between him and Mr Brand, much less any communication referable to the creation of a joint criminal enterprise. The applicant submitted that it was difficult to see how, in the absence of any communication between him and the co-accused, the jury could safely infer an agreement to cultivate prohibited plants from the limited acts of the applicant.

The applicant submitted that the issue in this appeal is whether the jury should have had a reasonable doubt about the applicant’s guilt. The issue is narrow – was it open to the jury to find that there was a joint criminal enterprise between the applicant and Mr Brand. The primary submission of the applicant is that it was not open to the jury to so find due to insufficient evidence capable of amounting to an agreement and participation referable to a joint criminal enterprise.

The applicant submitted that little assistance is provided to the Crown’s case by the evidence of Ms Asomatianos. It was her evidence that she saw “boxes” in the applicant’s storage units, which is consistent with Mr Bonanno’s evidence, that he remembered seeing the applicant drop off some “boxes” in the shed when the partition was being erected. The applicant submitted that this evidence was important because it provided a legitimate use of the shed which was consistent with the use of the storage units. The applicant submitted that if he was already using significant storage facilities in connection with Ms Asomatianos and was constantly requesting more storage space, there is little significance in his apparent failure to use the shed for storage because significantly more space was required. The applicant submitted that this is a reasonable interpretation of the evidence which is inconsistent with his guilt.

The applicant submitted that the fact that the telephone landline remained in his name says nothing about the existence of an agreement to cultivate cannabis and participate in the enterprise alleged. The applicant submitted that these are post offence circumstances which are irrelevant to the question of whether there was a proper evidentiary basis for the jury to conclude that a joint criminal enterprise had existed. The applicant submitted that there was no evidence in the present case of any communication through any medium between the applicant and Mr Brand and no evidence of any communication referable to the existence of an agreement and understanding to cultivate cannabis.

In summary, the applicant submitted that an assessment of the evidence as a whole and with the appropriate scrutiny applied to the issue of the evidence properly available to infer a joint criminal enterprise, this Court would conclude that the conviction is unreasonable and that there was an insufficient basis from which the jury could infer an agreement to cultivate and thus participation in the enterprise by the applicant.

The applicable law is clear as to the function of a Court of Criminal Appeal considering a ground of appeal of this kind. In SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11] the plurality (French CJ, Gummow and Kiefel JJ) said:

More recently, statements to similar effect were made by Bathurst CJ in Dickson v R at [85]-[86] where his Honour said:

It should be noted that counsel for the applicant at trial accepted that there was sufficient evidence that Jeffery Brand had cultivated the cannabis found in the shed (28.2.17, T.28.15). If there were any doubt on that question, the finding of “Jeff’s Notebook” would remove it. It is also inconceivable that Mr Brand could have lived in the residence throughout the period and been unaware of what was happening in the partitioned shed.

The shed itself is an important factor in the Crown case. It was the place where the offence was committed and it had been significantly modified at considerable expense to enable the offending to occur. In that regard, except for the initial indication by Mr Brand to Mr Bonanno that his “boss” might be interested in the shed, all of the steps taken to gain access to the relevant part of the shed were taken by the applicant. He was the person who negotiated with Mr Bonnano. He was the person who paid substantial parts of, if not all, of the rent. He had an association with the electricity bills which Mr Brand did not. He was the person spoken to by Mr Bonanno in December 2013 when a problem arose concerning payment of rent for the shed.

In those circumstances, it greatly strains credulity to suggest that the applicant was paying these sums of money, at least insofar as the rent was concerned, but was apparently receiving no benefit for such a payment. Clearly nothing from his normal business (i.e. the boxes) was being stored in the relevant part of the shed. One would have expected some kind of inquiry or investigation by the applicant (were he entirely ignorant of what was happening in the shed) as to what he was getting for the rent he was paying for the relevant part of the shed. Because of his need for more storage space, the absence of any additional space following the commencement of the lease would have been obvious.

That analysis needs to be looked at against a background where it would have taken some time to fit out the shed so that hydroponic growing of cannabis could take place. There is a strong inference from the year planner for 2014, which refers in January to the cannabis having “turned to bud” and from the state of growth of the plants discovered when the search warrant was executed, that the hydroponic process had been in operation during the latter half of 2013 and not just from the beginning of 2014.

There was a clear association between Brand and the applicant. At the time when the lease was entered into, both the evidence of Mr Brand and that of the applicant was that he was Mr Brand’s “boss”. It was a reasonable inference for the jury to draw that in the absence of any evidence to the contrary, that relationship continued. This is particularly so when Exhibit A depicted Mr Brand telling police that he had last seen the applicant two days before the execution of the search warrant and that he was able to provide up to date information as to the applicant’s whereabouts when spoken to by police at that time.

In further support of that inference is the telephone landline in the name of the applicant connecting him to the residence at 55 Whitaker Road. This provided a ready means of communication between the applicant and Mr Brand. Another reasonable inference which could be drawn by the jury was that if Mr Brand had seen the applicant two days before the execution of the search warrant, they would have spoken to each other. Because of the exiguous nature of the evidence, it is not clear beyond doubt where he saw the applicant two days before but a further reasonable inference would be at the Rossmore premises given the circumstances in which Mr Brand was being asked questions by the police.

The uncontested evidence was that the cost of setting up the hydroponic cannabis operation was in the order of $22,500. We know nothing about the financial circumstances of Mr Brand but a reasonable inference available to the jury is that the applicant was in a better financial position to incur such a cost than Mr Brand. This could be inferred from his capacity to pay rent for the shed, up to and including 31 May 2014, and the apparent success of his import-export business which caused him to require more storage space than was currently available.

The applicant’s stated need for extra storage space and his regular requests of Ms Asomatianos to that effect, fully support the submission by the Crown at trial that his failure to use the shed at 55 Whitaker Road was inexplicable. This is particularly so when one has regard to the actual cost of the lease of $1,650 per month, together with the likely incurring of other costs such as electricity and telephone.

In essence the evidentiary position was that cannabis plants were grown hydroponically in the shed during the currency of the lease. There was no evidence of any sublease to any other person. The lease was in the applicant’s name and that of a company of which he had been a director and manager. A substantial amount was paid by way of rent, almost certainly by the applicant or his company, for a shed which on the case put forward on behalf of the applicant was not being used by him and which he had not visited during the currency of the lease, except when the partition was being installed. The strong inference to be drawn from the maturity of the plants at the time when the search warrant was executed, and the reference in the 2014 year planner to plants turning to bud, is that had the applicant done so, he would have seen the hydroponic process in full operation.

It was well open to the jury to find that Mr Brand was not involved in the cultivation of the cannabis alone, although he may well have had the task of taking care of the plants and following instructions to ensure that the crop was successfully grown. The evidence of the connection between the applicant and Mr Brand was powerful. It is otherwise extremely difficult to explain why the landline telephone was connected to the Rossmore residence in the name of the applicant and yet it was Mr Brand and his family who were residing there.

It was well open to the jury to find, as they clearly did, that the applicant was engaged in a joint criminal enterprise with Mr Brand to cultivate 55 cannabis plants with the applicant’s contribution being the provision of the premises and the financial resources to set up the enterprise. It was open to the jury to make such a finding, even if there was no evidence that the applicant actively took part in the growing and tending of the plants as Mr Brand apparently did.

The evidence is almost entirely one way. Not only was it open to the jury to make the findings which they did, it is difficult to envisage any other explanation than that put forward by the Crown as to the applicant’s participation. Perhaps the strongest inference available is the inherent unlikelihood of someone acquiring space which he and his company needed, making substantial payments to retain that space, yet not using it and not attending the Rossmore premises to find out why the shed was not being used for the purposes of his business. The much more likely explanation is that the applicant well knew what was happening at Rossmore. I am not left with any doubt as to the applicant’s guilt and have concluded that it was well open to the jury to find beyond reasonable doubt that the applicant is guilty of the offence charged.

The orders which I propose are:

ROTHMAN J: I have had the advantage of reading, in draft, the reasons for judgment of Hoeben CJ at CL. I agree with his Honour’s analysis and the order he proposes. I wish to add some very short comment.

Notwithstanding the submission of the applicant described by Hoeben CJ at CL at [32], it is not whether the jury could have convicted, but whether it should have. As his Honour makes clear after reciting the passage from SKA at [36], if we have a reasonable doubt then the verdict is unreasonable.

Some of the factual conclusions upon which the inferences are drawn are, by themselves, not proved beyond reasonable doubt, but, when taken together, leave open no other reasonable hypothesis than the existence of a joint criminal enterprise between Mr Brand and the applicant.

There is no evidence that the co-offenders are friends or, otherwise than in relation to this venture, associates.

There is no suggestion that at the time of the offences there was a legitimate employment relationship. Yet the applicant paid the rent for the shed, the bills for the shed and gave the use of the shed greater priority than his other presumably legitimate business ventures. He also paid the telephone for the house occupied by Mr Brand.

In my view, having read the evidence, there is no doubt that the applicant was involved, by agreement with Mr Brand, in the activities in the shed and there is no reasonable doubt as to his guilt.

BUTTON J: I agree with Hoeben CJ at CL.