Hammer v The Queen

Case [2022] SASCA 75

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

HAMMER v THE QUEEN

[2022] SASCA 75

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)

4 August 2022

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - EVIDENCE

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - DIRECTIONS TO JURY

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY

The appellant, Mr Kym Desmond Hammer, was charged with two counts of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The appellant pleaded not guilty to both counts.

Count 1 arose from an allegation that the appellant supplied 3.48 g of methylamphetamine to Ms George in exchange for $700 cash. Count 2 related to a pouch containing 43.1 g of methylamphetamine found in the neighbour’s driveway. It was the prosecution case that the methylamphetamine contained within the pouch was in the appellant’s exclusive possession and that he intended to sell all, or some, of the drug. Following a trial by jury, the appellant was found guilty (by majority) of Count 1. He was acquitted of Count 2.

The appellant appeals against his conviction. The appellant complains that the trial Judge erred in admitting discreditable conduct evidence of a prior sale (Ground 1). Alternatively, the appellant contends the trial Judge erred in directing the jury as to the use that could be made of all the discreditable conduct evidence (Ground 2). The appellant further complains that the trial Judge erred in directing the jury as to the elements of Count 1, which alleged the appellant trafficked in a controlled drug by taking part in its sale (Ground 3).

Held, per the Court, granting permission to appeal on Ground 2 but dismissing the appeal:

1.As to Ground 1, the probative value of the prior sale evidence substantially outweighed its prejudicial effect and the impugned evidence had strong probative value in relation to proving the charged offences. The trial Judge was correct in declining to exclude the evidence from the jury’s consideration.

2.As to Ground 2, the trial Judge’s directions as to the permissible use of the discreditable conduct evidence were adequate in the circumstances of the case. We do not consider there is any risk that the jury misused the discreditable conduct evidence.

3.As to Ground 3, at trial the prosecution case and key allegation was whether the appellant sold the methylamphetamine to Ms George. If the jury were so satisfied beyond reasonable doubt, the second element of the offence was established. For that reason, the trial Judge’s failure to refer to the requirement that the appellant must have knowingly taken a step in the sale of the controlled drug was not an error of law.  Nor did the trial…

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Hammer v The Queen [2022] SASCA 75
Case
[2022] SASCA 75
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for drug trafficking. The appellant, Hammer, was found guilty by a jury in the District Court of South Australia of trafficking methylamphetamine. The prosecution's case was that Hammer supplied methylamphetamine to Ms George, who then supplied it to an undercover police officer. Police subsequently searched Hammer's residence, where they found cash, a notebook with tick list entries, digital scales, plastic bags, mobile telephones, and a pouch containing methylamphetamine in the neighbouring property, with DNA evidence linking Hammer to the pouch.

The legal issues before the Court of Appeal were primarily concerned with alleged misdirections by the trial judge to the jury. Specifically, the appeal raised questions about the proper direction to be given to a jury regarding the use of evidence of past drug sales by the appellant, and whether such evidence could be used to infer a propensity to traffic drugs. The court also considered whether the trial judge had adequately directed the jury on the issue of possession of the methylamphetamine found in the neighbouring property.

The Court of Appeal dismissed the appeal, finding that the trial judge's directions to the jury, when read as a whole, were adequate. The court held that the jury had been properly instructed that evidence of past drug sales could only be used for specific purposes, such as to show a course of conduct or a common purpose, and not simply to infer that the appellant was a person of bad character who was likely to have committed the offence charged. The court also found that the jury had been correctly directed on the issue of possession, considering the circumstantial evidence presented.

The Court of Appeal granted permission to appeal on one ground but ultimately dismissed the appeal, upholding the conviction.

Orders

Orders of the court

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Background

Background to the litigation

Permission to appeal was granted on Ground 1. The question of permission to appeal with respect to Ground 2 was referred to this Court for consideration. The appellant was granted leave at the appeal hearing to add Ground 3, which complains of an error of law. Factual background On 21 November 2018, members of the South Australian Police Force were conducting a covert operation in Murray Bridge which involved the purchase of drugs from suspected drug dealers. On that day, at approximately 12:40pm, an undercover police officer met with a Ms George and agreed to purchase 3.48 g of methylamphetamine (also known as an ‘eight ball’) for $850. The undercover officer gave Ms George the money (consisting of $50 notes) to purchase the drug. The serial numbers of the $50 notes had been recorded by police officers. After the exchange with Ms George, police officers covertly followed her to the appellant’s home in Murray Bridge (the ‘Premises’). She entered the Premises at approximately 1:20pm. After a few minutes, Ms George left the Premises. She again met with the undercover officer and supplied him with an eight ball of methylamphetamine. The observations of the alleged sale, including the involvement of Ms George, were not in dispute. They were the subject of agreed facts which were presented to the jury at the outset of the evidence. At about 1:55pm on 21 November 2018, police attended the Premises and searched the appellant’s home. At the house they located the appellant, two other males, Mr Scott May and Mr Brandon Bates, and a female named Ms Bettina Bates. There was no dispute that the three other people at the Premises were methylamphetamine users. When police arrived, Ms Bates hid in the roof cavity and ‘everyone was scattered everywhere’. During their search of the Premises, police located:i.three lots of cash, namely $1,500 in $50 notes under the battery of a Chrysler Valiant, where the appellant and another man were seen secreting something under the battery; $2,000 bundled with three rubber bands in a pencil case in a dresser in a bedroom occupied by the appellant; and $780 in the appellant’s wallet;ii.a notebook with tick list entries in a tallboy in a bedroom occupied by the appellant;[1]iii.a set of digital scales in the kitchen;iv.plastic resealable bags on the floor of another bedroom, in the kitchen, and in the bathroom; v.a CCTV camera at the front of the house connected to a monitor in the lounge room of the house showing a ‘live feed’; and vi.numerous mobile telephones in a dining room cupboard and in the kitchen that were unable to be accessed. [1] Trial Exhibit P6. As to the cash, $700 of the $1,500 cash located under the car battery comprised notes with matching serial numbers to the cash provided by the undercover officer to Ms George to purchase methylamphetamine. Police also located a pouch containing 43.1 g of methylamphetamine in the driveway of the next-door neighbour’s house. A DNA profile was extracted from the packaging of the methylamphetamine in the pouch. The DNA profile obtained had four contributors. There was an extremely strong likelihood that the appellant contributed to the extracted DNA profile. The police did not take a DNA sample from the other two males located at the Premises.

Evidence

Evidence Before The Court

In a record of interview conducted with police on 21 November 2018, the appellant denied the alleged offending.[3] He said the methylamphetamine located on his person (uncharged) was for his personal use and the money ‘at the house’ was given to him by his father. He denied any knowledge of the pouch containing methylamphetamine located in the neighbour’s driveway. The allegations in respect of Count 1 were not put to him during the interview. [3] Trial Exhibit P7 (disc recording of the record of interview).The appellant’s evidence The appellant gave evidence at trial. He said he was a long-term user of methylamphetamine. He denied being the owner of the pouch of drugs located on the neighbour’s property. He said it belonged to his housemate, Mr May, who he said was a drug user and seller. The appellant admitted to knowing of the pouch and having taken a small quantity of methylamphetamine from the pouch prior to the arrival of police. On the defence case, this explained his DNA on the packaging of the drug. He denied having thrown the pouch over the fence. As to the other evidence of past drug sales, the appellant did not dispute possession of the three amounts of cash, but he denied that it was the proceeds of drug trafficking. He said the $2,000 found in a dresser in his bedroom was given to him by his father and the $780 located in his wallet was from a Centrelink payment. In relation to the $700 of the $1,500 cash found under the car battery with the serial numbers earlier recorded by police, the appellant said Ms George gave him $750 as part payment for a concreting job he had completed for her about a month earlier. The appellant denied selling any methylamphetamine to Ms George. As to the notebook,[4] he denied being the author of the ‘tick list’. On the first page of the notebook, the appellant’s name, date of birth, and an email address containing the appellant’s name is apparent. [4] Trial Exhibit P6. As to the other accoutrements or indicia of sale, the appellant said that only one mobile telephone belonged to him and the other mobile telephones might have belonged to his late brother or the other occupants of the Premises. He said that he used the digital scales at the Premises to measure out the amount of Mr May’s methylamphetamine he took for his own use and he used plastic resealable bags to contain the amount of drug he took. He also would place the drugs in the plastic resealable bags to carry on his person when going to work. In evidence-in-chief, the appellant explained that he and his housemate, Mr May, had an arrangement in which they would, from time to time, either share methylamphetamine or sell small quantities to one another. He gave evidence of having sold ‘a couple of points’ to Mr May ‘just to help him out … when he was short’ during the month of November 2018. He said he had not sold him ‘much at all because he had mostly his own’. In cross-examination, the appellant clarified that he sold Mr May half a gram earlier in the week. The appellant admitted that his sales to his housemate, Mr May, were not isolated:QAnd it was from that [Newstart Allowance] money that you would purchase methylamphetamine.AYes.QAnd, indeed, you would then sell some of the methylamphetamine you purchased to offset what you were using, wouldn’t you.AYes.QAnd that included selling to people who would come and visit such as Mr May.AMainly Mr May, yeah.

Decision

Reasons for decision

For those reasons, we dismiss this ground of appeal.Conclusion We grant permission to appeal on Ground 2 but dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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