R v Turner & Turner[2004] QSCPR 3

SUPREME COURT OF QUEENSLAND

1. [1]
   Robert Turner and Amanda Turner have been charged with trafficking in, production and possession of cannabis sativa.  There are three counts on the indictment covering periods between 31 January 1993 and 22 September 2000.  The different counts allege trafficking of the drug at Woombye and elsewhere in Queensland and production and possession of it at Woombye.  In summary the prosecution case is that the accused were party to the production of cannabis crops on a number of properties, in a number of areas owned or occupied by them and various of their relatives or associates. 
2. [2]
   The evidence relevant to the trafficking charge includes;

• the discovery of cannabis sativa and a set up for growing a crop of that plant found during a raid of property at Taintons Road, Woombye, said to have been occupied at least in part by the accused;
• a financial analysis of the accuseds’ affairs from 1997 to 2000 allegedly showing an excess of expenditure over income of more than $660,000.00 and financial links between them and occupiers of other properties raided;
• evidence from four witnesses, Jeffrey Bausch, Vicky Bausch, Deborah White and Susan Davis, that the male accused had outsourced cannabis growing to themselves and other people on previous occasions with a view to sharing profits with them and had described his techniques for cultivating the substance to them consistently with the systems observed at Woombye and other properties searched by police;
• evidence of the production of cannabis sativa at five other properties said to have been conducted in a way similar to its production at Taintons Road by people closely related to or associated with the accused. 

3. [3]
   The other properties where cannabis is said by the Crown to have been produced in a manner similar to the production techniques used at Woombye were:

• 142 Petrie Creek Road, Nambour by Phillip Sweeney described briefly as the uncle of the accused Robert Turner or more accurately as the brother of the husband (Ross Sweeney) of the mother (Dorothy Sweeney) of Mr Turner;
• 174 Ann Street, Maryborough operated by Leslie Chater, the uncle of the accused Robert Turner because he is the brother of his mother, Dorothy Sweeney;
• 2 Booths Road, Gin Gin operated by Hugh Harris, another uncle of the accused Robert Turner through marriage to his mother’s sister, Carol Harris;
• 203 Lawsons Street, St Helens through Claude Turner, another uncle through the fact that he is the accused Robert Turner’s father’s brother;
• 475 Willaura Drive, Coominya through Michael Turner also known as Michael Morrow the adopted brother of the accused Amanda Turner.

4. [4]
   The evidence of the production of cannabis at these other properties is said to be admissible similar fact evidence based on the similar crop set ups and techniques used including the use of home made trolleys to wheel hydroponically grown plants into the sun during the day and into a shed with a consistent form of internal cladding at night, the plants being contained in a common form of crate known as a “Great Aussie” crate, the common use of a hydroponic growing medium called perlite and the use of a particular brand and type of tomato growing fertiliser at each site.  A Detective Pan described the similarities among the trolleys at p. 45 of the depositions by saying, among other things, that they were shifted with a home made trolley jack, had weld mesh sheeting on top and were constructed to take Great Aussie crates “to fit perfectly between the bars”.
5. [5]
   To assist in informing me of the nature of this evidence Ms Bain tendered a PowerPoint presentation including a number of photographs on a compact disk of a variety of trolleys and crates used at the different premises showing the system of having a sunny area and a shade area.  She also drew my attention to the consistent use of perlite but conceded that it was commonly used in hydroponic systems.  The photographs also show the fertiliser said to be used, similar cladding in interior sheds of the different properties and similar elements of the propagation system for seedlings.  That propagation system consisted of the growth of seedlings in blue tubs apparently propagated with plastic wrap and interior lighting while the seedlings were inside premises.  When they became larger plants they were transferred into the Great Aussie crates which were capable of being wheeled into the sun during the day and then back under cover by the apparently home made trolleys to which I have referred.
6. [6]
   The prosecution will also seek to lead evidence from a police officer that this method of growing cannabis sativa is unusual.  It also proposes to prove the relationships between the accused and their alleged relations at the other sites searched by the police by the use of birth and marriage certificates.  One of the common law exceptions to the hearsay rule that may be relied on in that context is that declarations to be implied from family conduct are admissible as evidence of pedigree provided the declarant was a blood relation, or the spouse of a blood relation, of the person whose pedigree is in issue, and provided the declaration was made before the dispute arose; Cross on Evidence (Australian Edition) at [33205] and Re Pennington (deceased) (No 2) [1978] VR 617, 624. 
7. [7]
   Part of the financial evidence to be led will also focus on financial connections alleged to exist between the accused and some of the properties where cannabis was cultivated showing money being advanced by them to the occupiers or paid to them from the occupiers of some of those properties. 
8. [8]
   There was no issue between the parties about the test to be applied in determining whether the similar fact evidence should be admitted.  It was submitted that a passage in the decision of Thomas JA in R v O'Keefe [2000] 1 Qd R 564, 573-574 established the current rules for admissibility of such evidence in Queensland.  His Honour said, in discussing and explaining the test expressed by the High Court in Pfennig v The Queen (1995) 182 CLR 461:

“In consequence it seems to me that the only sensible resolution of these passages requires the trial judge to address two questions:

1. (a)
   Is the propensity evidence of such calibre that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged? The observations of Pincus JA in Wackerow are helpful in addressing this particular question; and
2. (b)
   If the propensity evidence is admitted, is the evidence as a whole reasonably capable of excluding all innocent hypotheses? This would have to be answered on the assumption of the accuracy and truth of the evidence to be led. If the judge thought that the evidence as a whole was not reasonably capable of excluding the possibility that the accused is innocent, then the accused should not be exposed to the possible risk of mis-trial by a jury that might give undue prejudicial weight to propensity evidence. The exercise is to be undertaken with special care because of the potential danger of misuse of such evidence by the jury.”

9. [9]
   Ms Bain also submitted that O'Keefe was authority for the proposition that propensity evidence was circumstantial evidence that itself did not need to be proved beyond reasonable doubt but was received “as ancillary evidence aimed at strengthening other evidence presented against the accused”; see per Thomas JA at 572 [22]. 
10. [10]
    The proposition that “striking similarity” is not necessary to the admissibility of similar fact evidence was also not contested on the authority of decisions such as R v Hooper (1999) 108 A Crim R 108, 111-112 at [10]-[11] per de Jersey CJ where his Honour said that “while ‘striking similarity’, ‘unusual features’, ‘underlying unity’, ‘system’ or ‘pattern’ are not essential prerequisites for admissibility, their presence will often, as a matter of common sense and experience, exclude the possible reasonable explanation to which Pfennig and Hoch (1988) 165 CLR 292; 35 A Crim R 47 refer”.  His Honour in that case took account of the combination of circumstances said to lead to the admissibility of the similar fact evidence in issue there as suggesting a particular distinctive approach characteristic of that appellant.  He took the view that the aggregation of features warranted that conclusion. 
11. [11]
    In a later decision of the Court of Appeal, R v S (2001) 125 A Crim R 526, 534 at [37], Thomas JA also remarked that the existence of dissimilarities in the conduct in question was by no means fatal to admissibility.  Similarly, in KRM v The Queen (2001) 206 CLR 221, 245 Gummow and Callinan JJ said at [66] that striking similarity or an underlying unity falling short of precise coincidence of acts or offences may suffice to permit the admission of propensity evidence. 
12. [12]
    When one applies those tests to the evidence sought to be lead in this case it seems to me that the combination of features associated with the cultivation of cannabis at Woombye with the similar features at the other five properties in Southeast Queensland at Nambour, Maryborough, Gin Gin, St Helens and Coominya – the apparently similar homemade trolleys, the use of perlite, the same fertiliser and nutrient, a similar growing set up using similar means of propagation in the same types of tubs and then the use of similar crates for larger plants, coupled with the technique of shifting the plants outside during the day and under cover at night in premises with similar cladding – establishes an underlying unity, particularly when one takes into account the evidence sought to be led about the family relationships between the accused and the occupiers of those other premises.  The evidence therefore seems to me to be relevant to the proof of the Crown’s case that this was the system of production used by the accused at these various premises and admissible because of the underlying unity shown in the techniques of production. 
13. [13]
    Mr Glynn SC’s main argument was that the individual components of the alleged system were themselves common and that to permit the evidence to be used against his clients would put them at risk of an allegation that they were involved in production at any property where such a general system existed. 
14. [14]
    The Crown will, however, seek to lead evidence that this is an unusual technique for cultivating cannabis.  That evidence is proposed to be given by a Detective O'Brien based on his experience of the examination over a number of years of plantations used to cultivate cannabis.  I am not asked to rule on the admissibility of his evidence at this stage although Mr Glynn SC indicated that he may object to it, depending upon an examination of Mr O'Brien’s capacity to provide reliable evidence on that issue. 
15. [15]
    In those circumstances it seems to me that it would be appropriate to admit the evidence relevant to the cultivation of the crops at the premises to which I have referred.  In making that ruling I have assumed that the Crown will be able to prove both the relationships between the occupiers of the various properties and the accused and that the technique of cultivation is unusual.  That ruling disposes of the arguments about the evidence referred to in the headings in Ms Bain’s outline of submissions numbered 19, 31, 35, 40, 46, 61, 66, 67, 68, 69, 70, 72, 73 and 74. 
16. [16]
    That outline was itself responsive to a lengthy written submission by the solicitors for the accused dated 2 December 2003.  Most of the other issues raised in those submissions were the subject of concessions or agreement by the parties.  Some were adjourned to be argued later if necessary.  My note of the matters agreed, again by reference to Ms Bain’s outline, was that her responses to the objections numbered by her as 2, 3, 4, 5, 6, 9, 10, 11, 13, 14, 15, 16, 17, 18, 21, 22, 25, 27, 28, 29, 30, 32, 33, 36, 37, 38, 39, 41, 42, 43, 45, 47, 49, 50, 51, 52, 53, 54, 60, 63, 64 and 65 were accepted by Mr Glynn with some qualifications particularly in respect of numbers 3, 14, 34, 39, 47, 50 and 52.  Numbers 7, 20, 24, 26, 44, 48, 55, 56, 57, 59, 62, 71 and 75 were adjourned for further argument if necessary while the objection to the evidence referred to in number 58 was withdrawn.
17. [17]
    Her item 12 was not urged strongly by her if her principal submissions succeeded.  It dealt with a search of the property at St Helens after the period the subject of the charges and she was willing not to lead that evidence if the earlier evidence proved sufficient; see the transcript of the submissions in this matter at pp. 41-42.  At the moment, therefore, I rule it inadmissible but it may be the subject of further submissions.
18. [18]
    The only other significant issue I need to deal with is the admissibility of evidence of the existence of metal manufacturing equipment and flat steel sheeting at premises at 21 Maloneys Road, Diddllibah.  Another relative of the accused, David Eric Turner was said to be an occupier of those premises.  The material found there has not been shown to be connected to the trolleys at the other premises searched although the possibility of such a connection is not disproved on the available evidence.  Ms Bain submits that it is relevant and admissible evidence to show that facilities for making such trolleys were available to the accused.  On that basis I would rule it admissible.  That ruling deals with items numbered 8 and 23 in Ms Bain’s outline of submissions. 
19. [19]
    Accordingly I rule that the evidence discussed in items 8, 19, 23, 31, 35, 40, 46, 61, 66, 67, 68, 69, 70, 72, 73 and 74 of Ms Bain’s outline of submissions is admissible at the trial of the accused.