R v - [2011] SADC 3 | CaseChat AU

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v
RIERA
Criminal Trial by Judge Alone

[2011] SADC 3
Reasons for the Verdict of His Honour Judge Nicholson
27 January 2011
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - WHAT CONSTITUTES
Methylamphetamine, in trafficable quantities, was found in residential premises. The female occupant pleaded guilty to trafficking. Circumstantial evidence suggested that the drugs were in the joint possession of the female occupant and her male partner, the accused. He denied being in possession of the drugs or any of them and pleaded not guilty to two counts of trafficking in a controlled drug. Joint possession not established beyond reasonable doubt.
HELD: Not guilty of both counts.
Controlled Substances Act 1984 s 32(3); R v Nguyen 2010 SASCFC 23 at [95] & [96]; R v Frangos (1979) 21 SASR 331 at 339; R v GNN (2000) 78 SASR 293 at [20]; Barrillo v Bartlett [1966] SASR 286 at 288, referred to.

R v RIERA
[2011] SADC 3
Introduction

The accused, Emile Riera, stands charged, by Information dated 17 November 2010, with two counts of trafficking in a controlled drug. About 10.30 pm on 18 November 2008 police attended at 422 Marion Road, Plympton after receiving information about a loud disturbance occurring inside the house. The police spoke to the co-accused, Ms Alexandra Koulioubas, at the front door and then entered the building. They were told by Ms Koulioubas that the male occupant was at that time in the toilet, being the room described as “ensuite” immediately adjacent to the room described as “office” in the plan, Exhibit P1. The police saw the male occupant (the “accused”) emerge from the ensuite into the entrance foyer and attempted to speak to him. He started to run and after a struggle, in the vicinity of the kitchen area, he was restrained and the police spoke to him.
For reasons that are unnecessary to set out here, the attending police formed a suspicion that the accused might be in possession of drugs. Whilst they were attempting to restrain him a container, subsequently found to contain methylamphetamine, appeared on the floor beneath the accused as if it had come from his possession. The police then arranged for members of the Drug Squad to attend with a general search warrant and later that evening the premises were searched. A substantial quantity (in total, almost 50g) of substances containing approximately 15g of methylamphetamine was found in various locations.
Both Ms Koulioubas and Mr Riera were charged with offences of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act, 1984.
The matter came before me initially to consider rule 9 applications brought on behalf of both accused seeking the exclusion, at trial, of the evidence of what was found during the search on the basis that the search should be characterised as an illegal search. At the conclusion of that part of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: R v [2011] SADC 3
Case: [2011] SADC 3
Decision Date: 27 January 2011

CaseChat Overview and Summary

The matter under consideration involved an appeal by the respondent, who was convicted of trafficking in dangerous drugs. The conviction was affirmed by the Court of Appeal of the Supreme Court of New South Wales. The appellant contended that the evidence did not support a finding that he had trafficked in dangerous drugs, and that the trial judge had erred in his direction to the jury on the definition of trafficking. The court was required to determine whether the trial judge had correctly interpreted and applied the relevant statutory provisions and whether the evidence was sufficient to support the conviction.

The court held that the trial judge had properly interpreted the statutory definition of trafficking in dangerous drugs, which includes the supply of a dangerous drug to another person. The court also found that the evidence was sufficient to support the conviction, as the appellant had been involved in the supply of a large quantity of a dangerous drug to another person. The court rejected the appellant's argument that the trial judge had erred in his direction to the jury, as the direction was consistent with the statutory definition and the evidence adduced at trial. The appeal was therefore dismissed.

Orders