R v Armistead
[2018] SADC 59
•7 June 2018
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ARMISTEAD
[2018] SADC 59
Judgment of His Honour Judge Stretton
7 June 2018
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
The accused is charged with trafficking methylamphetamine. Police located 13.9 grams of the drug underneath the accused as he sat alone in his car in a driveway. In the totality of the circumstances, it is proven beyond reasonable doubt that the accused was knowingly in possession of the methylamphetamine for the purposes of sale.
Verdict: Guilty
Controlled Substances Act 1984 32(3), 32(5); Controlled Substances (General) Regulations 2000 (SA) reg 6(6), pt 2 of sch 1, referred to.
Barca v The Queen (1975) 133 CLR 82 at 104, applied.
R v ARMISTEAD
[2018] SADC 59Introduction
The accused Edward Dale Armistead is charged with trafficking in a controlled drug, namely methylamphetamine.
At about 9.25pm on 17 November 2016, police located the accused alone in a car parked in the driveway of a house at Highbury. They spoke briefly to the accused and then searched his car, locating 13.9 grams of “Ice” methylamphetamine.
The accused denied any knowledge of the drugs and declined to answer any further questions.
The accused pled not guilty and elected for trial by judge alone.
The charge
The accused is charged with one count of trafficking in a controlled drug contrary to section 32(3) of the Controlled Substances Act 1984.
The particulars of the offence allege that on 17 November 2016 at Highbury, he trafficked in a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact that the substance was a controlled drug.
Elements of the offence charged
The elements of the offence of trafficking in a controlled drug are:
1That the accused knowingly possessed a substance.
2That the substance the accused possessed was a controlled drug, in this case allegedly methylamphetamine. Methylamphetamine is a controlled drug.
3That at the time of possession, the accused knew or was reckless as to the fact it was a controlled drug.
4That the accused “trafficked” methylamphetamine. A person can traffic in a number of ways, however, in particular, he traffics in methylamphetamine if he possesses it for the purpose of sale.
Each element must be proven by the prosecution beyond reasonable doubt.
If, however, the prosecution proves beyond reasonable doubt that the accused possessed more than a “trafficable quantity” of the drug, the law presumes that he had possession of it for the purpose of selling it unless he proves on the balance of probabilities that he had it for some other purpose.[1] The trafficable quantity of mixed substance containing methylamphetamine is two grams.[2]
[1] Controlled Substances Act 1984 (SA) ss 4, 32(5); Controlled Substances (General) Regulations 2000 (SA) reg 6(6), and pt 2 of sch 1 of the regs.
[2] Controlled Substances (General) Regulations 2000 (SA) reg 6(6) and pt 2 of sch 1.
Circumstantial case
The case against the accused is a circumstantial one.
This court must accordingly apply the important principles set out by the High Court in the case of Barca v The Queen:[3]
When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable them to draw. However, an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence. These principles are well settled in Australia.[4]
[3] (1975) 133 CLR 82 at 104.
[4] References, quotation marks and footnotes omitted.
Trial by Judge alone
Whilst the accused is entitled to a trial by jury, he has exercised his right to be tried by judge alone.
In approaching the case, I apply all the basic evidential and procedural principles of the criminal law that would be outlined in detail to a jury by way of both trial introduction and summing up. For simplicity and brevity, I do not repeat them here.
The course of trial
The case was run by counsel in a collaborative, focussed and efficient way. By agreement between counsel, the prosecution case comprised oral evidence given by the officer who conducted the search of the accused’s vehicle and located the drugs, the certificate of analysis of the drugs, the tender of voir dire evidence given earlier by the two other police in attendance, statements by an expert police witness as to aspects of the methylamphetamine trade and methylamphetamine usage, photographs taken, and agreed facts.
The defence case primarily comprised evidence given on oath by the accused.
It is important to note that the accused was not obliged to give evidence. He had the right to remain silent in answer to the charge, leaving it to the prosecution to satisfy the court of all the ingredients of the charge. In this case, however, the accused elected to give evidence on oath. He is entitled to credit for adopting a course that he was not obliged to adopt.
The effect of this is that, in assessing his evidence and the weight to be given to it, the court is to approach the task in exactly the same way as with any other witness. It is for the court to decide what weight it is prepared to attach to the evidence of the accused in the same way as it is for any other witness, but always bearing in mind the credit he is entitled to for adopting a course that he was not obliged to take.
The primary issue at trial
It was common ground between counsel both in the course of trial and as urged in their final addresses, that the only real issue at trial was whether it was proven beyond reasonable doubt that the accused knowingly possessed the methylamphetamine.
It nonetheless remains for the prosecution in this case, as in every case, to prove every element of the charge beyond reasonable doubt.
The prosecution evidence
As indicated, the prosecution case is a circumstantial one.
The only prosecution witness to give oral evidence was police officer Davey. Officer Davey commenced as a police officer in 2007 and gave evidence that he had spent most of his career on operational duties, and as at 17 November 2016, was assigned to a Uniformed Tactical Team. Officer Davey explained that Uniformed Tactical Teams undertook duties such as following up bail breaches, apprehending people wanted on parole board warrants, and of particular relevance to the matter before the court, the policing of drug addresses of interest, together with high volume crime areas and any related assignment.
Officer Davey gave evidence that the premises at 9 Paradise Grove Highbury were known to him as a drug address of interest at the time. Officer Davey gave evidence that he had attended that address on previous occasions to make observations, and was aware of the occupant of the address and her recent contact with the police.
Officer Davey gave evidence that on 17 November 2016 with two other officers, Forbes and Halikias, he attended the 9 Paradise Grove address at about 9.25pm. The police vehicle was parked roughly opposite the driveway on the other side of the road.
Officer Davey noted multiple cars parked in the driveway, and closest to the road was a car reversed into the driveway illuminated by what looked to Officer Davey like a mobile phone being used by someone sitting in the driver’s seat. It was a male person alone in the vehicle.
Officer Davey gave evidence that whilst he used the car radio to advise communications of their location, Officers Forbes and Halikias got out of the car and walked towards the address, with Officer Halikias proceeding past the vehicle towards the front door of the house. He observed Officer Forbes walk up to the driver’s side of the vehicle, being a dark silver-coloured Nissan sedan. Officer Davey noted the registration number.
Officer Davey then walked over to see if Officer Forbes needed any assistance, and as Officer Davey approached the vehicle, he overheard Officer Forbes ask for identification. Officer Davey observed Forbes then head back to the police vehicle to check those details. Officer Davey took Forbes’ place at the driver’s side window of the vehicle.
According to Officer Davey, at that point lighting was emanating from the house by way of the windows and possibly the porch lights, together with Christmas or party lighting in a large tree next to the driveway. He also used his torch light to create some light at the side of the car. Consequently, Officer Davey could see the occupant sitting in the driver’s seat of the vehicle. Officer Davey said something along the lines of ‘hey, what’s going on mate’ but did not recall the specific reply. In cross-examination on refreshing his memory from his declaration, Officer Davey also agreed that while he was standing at the side of the driveway he asked something along the lines of why the accused was sitting in the car in the driveway, to which the accused replied something similar to ‘just waiting for a friend who’s gone inside.’[5]
[5] Transcript page 66.
Officer Davey gave evidence that he observed the accused to be fidgety, trembling, nervous and unable to sit still. The accused was constantly moving about, reaching for things and shuffling around. Officer Davey then observed the occupant lean over to the passenger side of the vehicle, and as he leaned over Officer Davey could see that underneath the accused’s legs there appeared to be a white tissue or something he was sitting on, situated beneath his legs or backside area. It stood out against the black seats.
Officer Davey observed that when the accused returned to an upright position, he moved his left hand and arm to the left side of his body and down the side of the car seat in a backward motion towards the back of the seat, underneath his leg. At that stage a general discussion was occurring between them, and the accused moved his head and line of sight in an upwards direction, giving the impression that he wanted to distract or otherwise cause the officer to look upwards, which the officer did not do. At that point, Officer Davey noted the accused’s left hand movement sliding backward next to his left leg, towards the back of the seat.
Soon after, Officer Forbes returned to the accused’s vehicle and asked the accused to clarify an issue about his ID, and to do that requested the accused return to the police vehicle with him.
In light of his observations and the information in his possession at that time, Officer Davey formed a suspicion pursuant to the requisite provisions of the Controlled Substances Act and decided to search the vehicle.[6]
[6] The legality of the search was addressed in a voir dire held prior to trial before another judge. Accordingly issues relating to that are not addressed in these reasons except insofar as they have been raised as relevant to findings of fact and credit at trial.
Officer Davey initially examined the seat where the accused had been sitting and observed that the tissue item that had previously been underneath the accused had moved to the back of the seat and was stuffed into the crease where the bottom and back of the seat meet. Officer Davey indicated in a series of tendered photographs the positions he had observed the tissue to be, both initially and after the accused had exited the vehicle.
Officer Davey also gave evidence of other items found in the car, in particular paperwork in the accused’s name in the pocket of one of the seats.
Two mobile phones were also located on the accused, a white Samsung mobile phone for which the accused provided the access code, and a black Samsung phone for which the accused did not provide a code and which, accordingly, could not be accessed.
In cross-examination, Officer Davey was taken over the events of the evening in detail.
Officer Davey was cross-examined as to whether forensic testing was performed. Officer Davey agreed he was the arresting officer and whilst the seized drugs were analysed and determined to be methylamphetamine, no other forensic testing occurred. He said he did not now recall why the tissue or package itself was not forensically tested, for example, for fingerprints or DNA.
Officer Davey was cross-examined as to his knowledge of a person by the name of Beau Sutton and agreed that whilst he had heard of that name he had not heard it connected to the house in question and he did not hear the accused say that he was waiting for a person by the name of Beau.
Officer Davey was cross-examined to suggest that in fact the accused was not sitting on the drugs concerned, nor were they stuffed down the back of his seat but rather that Officer Davey had fabricated that evidence. Officer Davey was cross-examined as to the search he conducted, and the belief he alleged he had formed to justify that search. It was suggested that he had also fabricated his evidence concerning that issue, and that Officer Davey had just decided to ‘turn over’ the accused, conducted an illegal search, and subsequently fabricated both his belief and the facts necessary to justify that belief. It was further suggested that he had fabricated his observations of the accused’s movements and the location of the drug to support the case. Officer Davey denied these allegations.
It was put to Officer Davey that he had in fact gone onto private land illegally and in response, Officer Davey said he did not know whether the car was positioned on council land or indeed private land. The photographs indicate a driveway proceeding from the street to a house some way back with no definitive indication as to where a boundary might lie.
I do not set out all the matters that were raised in cross-examination as to Officer Davey’s observations, however I have had full regard to the cross-examination and all the matters raised therein.
By consent, the voir dire evidence of Officers Forbes and Halikias was tendered. This evidence was given at an earlier time before another judge.
Officer Forbes’ tendered evidence was that he has been a police officer for a little under five years, having initially served as a patrol officer then with the Holden Hill Uniformed Tactical Team, where he was stationed on 17 November 2016.
Officer Forbes’ tendered evidence was that the 9 Paradise Grove Highbury address was, at that time, an address of interest in relation to the trafficking of drugs. He outlined several matters that had come to his attention concerning that property in the period leading up to the evening in question. As an address of interest, he indicated that his patrol would drive past the address two or three times a week, checking for vehicles in or near the address or for people walking in the vicinity.
Officer Forbes’ evidence was that, so far as he could recall, they attended on the evening in question possibly in relation to a person with a first instance warrant. His evidence was that the patrol attended at about 9:25pm in a marked police car. He was there together with officers Davey and Halikias. He could not be certain why they attended on that day.
Officer Forbes’ evidence was that the police vehicle was parked on the other side of the road, opposite the driveway. At that point he noticed a vehicle parked in the driveway. It was positioned near the roadway with the front of the car facing towards the road. There was a male sitting in the driver’s seat and, as he recalled it, the interior light was on. He observed that it was a silver to grey coloured sedan, and he noted the registration number. These circumstances aroused Officer Forbes’ suspicions. After a brief discussion with the other two officers, he got out of the police car and walked over to speak with the occupant of the vehicle, being the accused. Officer Forbes asked the accused for his driver’s licence, but the accused replied that his wallet had been stolen together with his driver’s licence. He supplied Officer Forbes with his driver’s licence number. Officer Forbes then turned to return to the police vehicle and noticed that Officer Davey had arrived at the accused’s car. Officer Forbes continued back to the police vehicle to check the licence number on the police car’s mobile data terminal. Officer Forbes’ recollection is that the interior light of the accused’s vehicle was on, such that it was quite easy to see inside the car. He recalled street lighting in the vicinity as well. He said the area was reasonably lit.
After Officer Forbes had checked the licence number on the mobile data terminal in the police car, he returned to the accused’s vehicle. Officer Davey indicated that something was going on, that he could see the accused trying to hide something, and that he wanted to search the car. The accused was told to get out of the car and Officer Forbes informed the accused that he would be searched pursuant to the Controlled Substances Act. Nothing was located on the accused’s person. At that stage, Officer Davey was searching the accused’s vehicle and held up a small plastic resealable bag containing what appeared to be methylamphetamine.
The accused then said ‘I don’t know what that is, it’s not mine’. The accused was placed under arrest, handcuffed, and a video recorder was activated to give the accused his arrest rights. In response, the accused said he did not wish to answer questions and requested to speak with a lawyer prior to being interviewed. At a later time, he was conveyed to Holden Hill police station. He spoke to his mother and his lawyer, and refused to comment further.
In cross-examination, Officer Forbes indicated that he did not recall observing the accused using his mobile phone. He gave more evidence as to the police procedures in relation to suspect houses and the various powers police exercised in relation to vehicles and people coming or going from such premises. He agreed that vehicles associated with such addresses would be stopped, utilising various lawful police powers. He agreed with a proposition put to him by defence counsel that police cannot stop a person who is not committing an offence, who has not got a warrant or bail breach and who is on private property. When it was put to Officer Forbes that that is what officers did on this occasion, he responded that police were quite entitled to go onto private property to ascertain whether a person was there for a lawful purpose. He was not directly asked whether or not police had a belief at that time as to whether or not the accused was on private property.
Officer Forbes was cross-examined in detail as to police movements and activities, including where the police vehicle was parked and how the course of events involving the accused proceeded, and he repeated his evidence in that respect.
Officer Forbes agreed that after his arrest, the accused was taken to the other side of the road and to the best of Officer Forbes’ memory, was sitting on the roadside for a period of time during which an officer was always with him. Officer Forbes was then taken back to the early part of the officer’s contact with the accused and asked about his intentions as to the accused. Officer Forbes agreed that he wasn’t going to leave the accused sitting in his car without a police officer nearby until they knew who he was. He repeated that the accused was placed under arrest next to his car and then taken over to near the police car where the video was activated, and the accused was given his arrest rights. He agreed he had originally immediately approached the accused to ensure that the vehicle did not leave the premises until he had established who the driver was and if he had been there for a lawful purpose.
Whilst I do not repeat all of the matters raised with Officer Forbes in cross-examination, I have had full regard to all of it.
The evidence of Officer Halikias, given earlier on the voir dire was also tendered.
Officer Halikias had been a police officer for eight years, and was also at the relevant time a member of the Uniformed Tactical Team stationed at Holden Hill. He agreed that the 9 Paradise Grove Highbury address was a residence of interest, and he gave evidence as to his previous dealings with those premises, including observing and stopping vehicles coming and going from that address. He also gave evidence of his knowledge of drug activities connected with that house.
Officer Halikias’ tendered evidence was that he was a member of the team that attended 9 Paradise Grove Highbury on 17 November 2016, together with officers Davey and Forbes. On that occasion, it was his intention to interview an occupant of the house in relation to property located at that premises on an earlier occasion which had now been confirmed as stolen. He recalls that he did speak to the other officers on the way to the premises indicating he was intending to interview the occupant.
Officer Halikias’ evidence was that the police vehicle parked on the opposite side of the road to 9 Paradise Grove and upon arrival, he noticed three vehicles in the driveway. Two vehicles were parked up against the fence, but there was a third vehicle in the driveway containing a person. Officer Halikias said there was sufficient ambient light to see, together with a variety of fairy lights in the yard and a light shining onto a tree in the front yard, that one person was in the vehicle, sitting in the driver’s seat.
Officer Halikias’ evidence was that he exited the police vehicle and walked towards the house. To do so, he had to walk past the driver’s side door of the parked vehicle. Officer Halikias noted at that time that the accused was sitting in the vehicle holding a mobile phone up to his ear and appeared to be talking. Officer Halikias asked him what he was doing at the premises, to which he replied he was there to pick up Beau, whom the Officer agreed was a known person who frequented that address. Officer Halikias continued on his way towards the house and spoke to an occupant at the front of the premises.
As Officer Halikias was advising the occupant of the house as to the reason for his attendance, he heard from behind him Officer Davey say words to the effect of ‘what are you trying to hide?’ whereupon he turned around and observed that the accused was now out of his vehicle and being handcuffed by Officer Forbes. No one by the name of Beau could be located although the occupant of the house told Officer Halikias that Beau had jumped the rear fence upon the police attendance.
On returning to the police vehicle, Officer Halikias observed Officer Davey placing a bag of what looked like a crystalline substance on the top of the accused’s vehicle.
In cross-examination, Officer Halikias agreed that the accused’s vehicle was parked in the driveway rather than on the street. He repeated that his recollection was that the accused said ‘I’m waiting to pick Beau up’. He agreed it was possible that the accused said he was ‘waiting for Beau’. Officer Halikias denied colluding in any way with the other officers as to his evidence or their evidence. He agreed that, as one could say for every driveway, it might be safer to park facing outwards in terms of having a better view of the road upon leaving the premises. Officer Halikias repeated his evidence as to where the police vehicle was parked. Officer Halikias said that he could not recall whether there was an interior light on in the car parked in the driveway, but he did not believe so. He repeated he recalled the accused speaking on his mobile phone.
Similarly, whilst I do not repeat every matter raised in cross-examination with Officer Halikias, I have had close regard to the cross-examination and all issues raised with him.
As observed, evidence was given without objection that the accused declined to answer questions addressed to him by the police. It is important to observe that in doing so, the accused was exercising a right that the law gives to everyone and accordingly, it is not appropriate in any circumstances to draw any adverse inferences against the accused by virtue of the fact that he exercised his lawful right to decline to answer police questions.
I do have full regard to the accused’s initial denials to police, in accordance with the well-settled legal principles relating to such evidence. Indeed, defence counsel emphasised that the accused denied all knowledge of the drugs at the outset.
The prosecution then tendered two statements of Detective Brevet Sergeant Ward, an officer stationed at the Drug and Organised Crime Task Force.
Detective Brevet Sergeant Ward sets out in his statements his history and expertise as a police officer, particularly in relation to his knowledge, learning and experience in the area of the possession and supply of illicit drugs. As his qualification to give expert evidence was not challenged, nor was his evidence subject to any cross-examination or indeed criticism, it is necessary only to observe that Detective Brevet Sergeant Ward has extensive experience through his investigations with suspects, offenders, local and interstate police, monitoring lawfully obtained telephone intercepts, liaison with Forensic Science South Australia in relation to drug trends; and a breadth of knowledge derived from literature, publications, law enforcement agencies (both Australia and overseas), and study as to the illicit drug trade and all things thereto.
Detective Brevet Sergeant Ward sets out in his evidence how methylamphetamine is commonly packaged, priced, and distributed for sale. I have regard to without setting out that evidence in any detail.
Detective Brevet Sergeant Ward observes that crystalline methylamphetamine, otherwise known as ‘Ice’ is available in South Australia. Its purity is generally far greater than other forms of methylamphetamine, averaging at around 80%. He set out in tabular form the common prices extant in South Australia for methylamphetamine as at November 2016.
Quantity
Total grams
Price
‘Point’
0.1 gram
$50 - $100
‘Half’
0.5 gram
$200 - $400
‘An eighth’ or ‘Eightball’
3.5 grams
$800 - $900
‘Ounce’
28 grams
$3,200 - $5,500
Detective Brevet Sergeant Ward had regard to the certificate of analysis in this matter, also tendered, relating to the materials seized from the accused’s car on the night in question. The certificate of analysis reveals that the crystallised material weighed 13.9 grams and contained 11.1 grams of pure methylamphetamine. The officer observes that 11.1 grams would convert into approximately 111 street deals or ‘points’ valued at $5,550 at $50 per point, or $11,100 at $100 per point.
Detective Brevet Sergeant Ward sets out that in his experience a user of methylamphetamine will typically purchase 0.1 gram ‘points’ of the drug, an adequate amount for a user of methylamphetamine to use in a day. In Detective Brevet Sergeant Ward’s extensive research on drug user forums and contact with users of methylamphetamine, a user typically uses 0.1 gram to up to 1.0 grams in extreme cases, per day. He observes that 0.03 grams is all that is required to fill a plastic capsule or put into a glass pipe for use. A ‘hit’, i.e. a dose of methylamphetamine, can be as low as 0.03 grams or lower.
Detective Brevet Sergeant Ward indicates that in his experience having investigated numerous trafficking in controlled substance matters particularly in relation to methylamphetamine, he has not known of a simple user of methylamphetamine to carry the quantity the accused was found allegedly in possession of, 13.9 grams.
I find that Detective Brevet Sergeant Ward was qualified to give evidence as an expert witness. It is important, however, to note that a court is never bound to accept the opinion evidence of an expert. The court remains the sole judge of the facts and is entitled to assess, accept or reject any such evidence as it sees fit. It is for the court to give such weight to the opinions of an expert as it thinks should be given having regard to the qualifications, impartiality or otherwise of the witness and the extent if any to which the witness’ opinion accords with other evidence or facts found proven. It is also important to note that the evidence of an expert is only as good as the facts given them.
The court also has regard to the photographs tendered and the agreed facts provided.
The agreed facts are as follows:
1That neither Armistead nor the motor vehicle registration No.S209 AIL had been referred to in any briefing and/or police intelligence in relation to 9 Paradise Road, Highbury.
2That Armistead was not a person known to the three police officers: Forbes, Davey, and Halikias.
3That neither Officers Forbes nor Halikias observed the package wrapped in the tissue said to have been found in the position in the motor vehicle as described by Davey prior to Davey removing it from the motor vehicle.
4That there was no DNA and/or fingerprint analysis of the tissue said to be surrounding the package of methylamphetamine nor the package itself containing the drugs.
5That the prosecution does not rely on any circumstantial evidence of indicia of drug trafficking in respect of the accused including:
a.no unexplained wealth other than the $475 (the prosecution submit that the $475 is relevant to other matters also);
b.no E-Crime evidence in support of the allegation of trafficking;
c.no tick lists;
d.no scales;
e.no plastic resealable bag, 'Deal bags';
f.no other items found upon the personal search of him;
g.no other drugs and/or drug paraphernalia found on the personal search of him.
That was the close of the prosecution case.
The Defence Case
The accused Mr Armistead gave evidence on oath.
The accused gave evidence that he is currently 29 years old and works in a transport yard for a business operated by his parents. The accused’s role is to organise staff as to local pickup and deliveries, and they also put freight into loads to be sent to Sydney and Melbourne. The work also involves driving forklifts, cars and trucks.
The accused gave evidence that as at 17 November 2016, he did not have a licence as it had been stolen together with his wallet some time earlier. He knew his licence number as he used it for work and was required to enter it into his running sheets and log book.
The accused said that on the day in question, he was driving his company car. He was living at his home in Mawson Lakes which he shared with a friend. He was home alone on the evening in question. At some stage during the evening, he went to pick up a friend, Beau Sutton, for the purposes of helping Beau to pick up some clothes and belongings from a house at Paradise Grove. He did not recall Beau bringing anything with him into the car apart from ‘I think smokes’.
The accused gave evidence that Beau directed him to the Paradise Grove address. The accused gave evidence that he had been there once or twice before ‘it was to pick him up or – pick him up, I think it was before – no, drop him off. I can’t remember, sorry. It was a-’.[7] He was then asked who ‘him’ was and the accused continued ‘Beau, sorry. Beau it was, I think I was dropping Beau off, yes.’ A few questions later, the accused was asked about the length of time he spent at the house on the one or two occasions that he attended and he responded ‘minutes, maybe under 10 minutes, probably. I don’t know, I think, yeah, basically just knock on the door and pick someone up.’[8]
[7] Transcript page 74.
[8] Transcript page 74.
The accused gave evidence that when they arrived at the Paradise Grove house, he reversed into the driveway and observed two other cars parked closer to the house. The accused said he reversed in because it would mean that it was easier to get out of the driveway in light of the bend and the trees which he felt might block his view. Upon parking, the accused said that Beau got out of the car and went inside the house whereupon the accused remained sitting in the vehicle using his phone. The accused agreed that there was another phone in the car. When asked about that phone he answered, ‘my phone, I think it was. It was an old phone, you know an old one.’ He was asked if the phone was operable and replied, ‘yes, but I don’t think it had a SIM in it, I’m not 100% sure. Maybe the SIM ran out, yeah’.[9]
[9] Transcript page 77.
The accused said that the police came up the road, pulled in front of the driveway whereupon two officers alighted, and then he was questioned. He said he had no doubt that they pulled up on the wrong side of the road directly in front of his vehicle across the driveway, partly blocking the exit of his vehicle. The accused gave evidence that the police came up the driveway to the driver’s side of his vehicle, one after another, and one went past his car to the door of the house. As that officer passed the accused said he thought that officer briefly spoke to him, asking him what he was doing there ‘or something like that’. He said he replied he was waiting for his friend who he thinks he said was ‘Beau’.
The accused gave evidence that a second police officer approached and asked for identification, to which the accused responded saying he did not have his wallet. He gave the officer his licence number. At that the police officer returned to the police car, the accused believed to check this information. According to the accused, at that time the third officer walked up and started talking to him. The accused identified that officer as the officer who gave oral evidence at trial, being Officer Davey.
The accused gave evidence that Officer Davey asked what he was doing there, and he responded that he was waiting for his friend. The accused said the officer also had a torch and as he walked up, he generally shone it around although it was not shone in the accused’s eyes. The accused said it shone inside his vehicle. The accused agreed he was a little nervous. The accused said he looked for some paperwork or documents to give the police a name because they were having difficulties with his identification, and he got the impression that they did not believe him. He said he knew there was some paperwork in the back of his car. The accused gave evidence that he looked into the centre console under the stereo, and generally looked around the car for paperwork.
The accused gave evidence that he had no knowledge of a white tissue wrapping up a kind of package. He said he did not possess such an object and had never seen such an object before. The accused denied that he had, or had appeared to be trying to push or shuffle an object into the joint of the backrest of his seat, nor that he raised his eyes upwards in some kind of attempt to distract the officer.
The accused gave evidence that he was then asked to get out of the vehicle by one or other of the police officers, and was then asked to go to the front of the vehicle and stand near the bonnet. The accused says that one officer was explaining to him something about his ID and the other officer indicated he was going to search the vehicle. The accused said that a police officer then put ‘stuff on top of the vehicle, like the drugs or whatever, then he said ‘put him under arrest’ I think it was, yeah.’ The accused agreed he could then see a bag of drugs on the roof of his car. The accused recalls one or other of the police officers asking him ‘is this yours?’ to which he said ‘that’s not mine, that wasn’t mine. I don’t know anything about it’.[10] The accused repeated that he had never seen the package in the car before nor had anything to do with it.
[10] Transcript page 85.
The accused gave evidence that he gave Officer Davey the password to his white phone, the phone on which he was speaking when the police arrived, but did not give the password to the black phone. When asked why not, he responded ‘I don’t think – it was my phone, I couldn’t remember it though. I couldn’t remember the password. I can’t remember. I just remember not giving him the password. I couldn’t remember it or something.’[11]
[11] Transcript page 86.
The accused was cross-examined as to his evidence generally and as with the prosecution witnesses, whilst I do not set out everything raised or answered in the course of cross-examination, I have had regard to all of it.
In cross-examination, the accused agreed that nobody else really had access to his car and that he was the main driver of it. He agreed that on the day in question only he had access to it. The accused was asked about the circumstances under which he would visit the premises and his answers became vague and inconsistent. The accused seemed to vacillate between indicating that he picked Beau up from there or dropped him off, and whether he went inside or whether he just knocked at the door. The accused was then cross-examined about his income, and he gave evidence that he was earning around $1,200 a week and would have had savings although he had no idea how much money he had in the bank. Whilst he said he would have had savings, curiously when asked if he had intentional savings he denied having any.[12] The accused agreed he was paying the full rent for his property at the time together with all other utilities and outgoings.
[12] Transcript page 92.
The accused was then cross-examined without objection as to whether he was a methylamphetamine user on and prior to 17 November 2016, and agreed that he was a regular user and had been for the previous eight years, off and on. He agreed that prior to the alleged offending in question, he was using methylamphetamine a couple of times a week, a point or two at a time which he then varied to three or four times a week using one or two points each time he would use. He gave evidence that to do so he would generally purchase 1.75 grams for $400 - $500. The accused gave evidence that he did not think he had used methylamphetamine on 17 November 2016 with Beau although he had done so previously. It was an activity that they had previously undertaken when in company with each other.
The accused denied he was scared of the officers questioning him or that they were intimidating him in any way. He denied shaking, although he agreed he probably had a slight anxiety. Whilst he denied fidgeting, he agreed he was moving around in the car to look for the paperwork he was trying to locate, including feeling and checking in his centre console and underneath his stereo, and in doing so leant over in his car. The accused denied leaning over towards the footwell and then he denied leaning over fully. Then the accused appeared to deny leaning over at all. The accused denied putting his hands under his leg, moving his left hand backwards in an attempt to move anything towards the back of his seat. The accused did agree that the police officer said something along the lines of ‘you’re trying to make me look up’.[13]
[13] Transcript page 101.
Consideration
The court was assisted by clear and comprehensive addresses from both counsel. The court has closely considered everything raised by counsel in their addresses although I do not set it out here. It was common ground that the primary issue in the case is whether the prosecution has proved beyond reasonable doubt that the accused was knowingly in possession of the methylamphetamine. That must never, however, obscure the requirement that the prosecution always bears the onus of establishing each element of any offence beyond reasonable doubt and that, absent any particular statutory presumption to the contrary, an accused person never bears any onus.
The prosecution case was that the police evidence, in particular, that of Officer Davey who observed the location of the drugs and the accused’s movements, demeanour, and reactions, was accurate and reliable and should be accepted beyond reasonable doubt.
The defence case was that the accused was not in possession of the drugs concerned, knew nothing about them, and is accordingly not guilty.
The thrust of the defence case, as submitted by defence counsel in her closing address and supplemented by her written submission, is that the prosecution had not established the case beyond reasonable doubt. In particular, that it had not proved that the accused knew of the presence of the package of drugs in his car nor that he possessed them. Defence counsel emphasised factual discrepancies in the observations of the various police officers, in particular, leading up to the search of the accused’s vehicle. Specifically, defence counsel argued that some of these discrepancies were as a result of, and indicative of, Officer Davey slanting or fabricating his evidence to justify the lawfulness of the search.[14]
[14] This court has not referred to and has had no regard to any previous findings or judgments in this matter, in particular any findings that may have been made on the voir dire to allow the search.
In assessing witnesses, the court has had regard to all the standard directions that would be given to a jury concerning the assessment of witnesses, and has carefully considered and assessed the evidence of each witness, particularly those who gave oral evidence, with great care.
The court has had regard to the submissions of counsel, in particular defence counsel concerning the evidence of the police officers and the submission that Officer Davey slanted or fabricated evidence to bolster the prosecution case. In doing so, the court reminds itself that there is no onus on the accused whatsoever.
On a close analysis of the evidence of Officer Davey, together with the statements of other police officers, the preliminary impression formed was that his evidence was credible. The one or two inconsistencies of initial observation or recall are consistent with three uniformed police officers performing a standard attendance at such a premises, and proceeding unexceptionally to investigate the presence of an occupied vehicle parked in the driveway of a house of interest to police. Officer Davey gave evidence in a clear, forthright and reasonable manner, and gave an initially credible impression. He was straightforward, matter of fact and consistent as to the events of the evening.
By contrast, the accused gave evidence very poorly. Much of his evidence was mumbled almost inaudibly into his own chest, and as is apparent from the few quoted examples earlier in these reasons, appeared uncertain, unclear, and quite unconvincing. On several occasions, the court had to ask the accused to speak audibly, and raise his voice, just so that his words could be heard and indeed recorded by the stenographer. Unfortunately, the overall impression given was of an uncertain, evasive and wholly unconvincing witness.
The accused was cross-examined as to his then drug usage, without objection by his experienced senior counsel. When the cross-examination proceeded to question whether he had supplied drugs, defence counsel objected and the objections were upheld. Defence counsel explained at the time that she had been happy to allow the cross-examination to proceed, on the forensic basis that it would support the accused’s credibility. I have regard to the cross-examination for the sole and limited purpose of assessing the accused’s credibility. In particular, I disregard it entirely for any propensity or similar fact purpose or any other purpose adverse to the accused.
Having heard the totality of the evidence at trial and counsel’s helpful addresses, in the court’s view Officer Davey was an honest and reliable witness whose evidence as to the search, movements and reactions of the accused and the location of the drugs concerned was compelling. The inconsistencies between his evidence and the other officers were minor, but establish a lack of any collusion on the part of the officers concerned and are the kind of details that may well have been remembered differently or not recalled 18 months after the event.
In coming to that view, I have carefully considered all of the submissions made by defence counsel including the matters set out in detail in her written closing address.
By contrast, the accused was a very poor witness with many of his answers inaudibly muttered, rambling and inconsistent within themselves. His presentation was poor and, overall, entirely unconvincing.
Having considered all the evidence including importantly, the defence case, the court finds it proven beyond reasonable doubt that the events concerning the accused’s presentation, state of agitation, movements, and location of the drugs as observed by Officer Davey are proven beyond reasonable doubt. The court rejects the accused’s denials as a reasonable possibility.
Accordingly, the court finds proven beyond reasonable doubt all the factual circumstances and observations set out in the evidence of Officer Davey. The court finds the evidence of Detective Brevet Sergeant Ward proven beyond reasonable doubt. In particular, the court finds proven beyond reasonable doubt that:
·The accused was sitting alone in his vehicle at 9:25pm in the driveway of a house of interest to police in connection with drugs.
·That on police approach, the accused was trembling, fidgety, nervous and unable to sit still, constantly moving about, reaching for things, and shuffling around.
·As the accused was speaking to police and the accused was moving about, police observed a package wrapped in white tissue subsequently searched and analysed to contain 13.9 grams of methylamphetamine on the driver’s car seat underneath the accused as he leant over.
·That the accused, while speaking with police, moved his head and eyes in an upward direction in an attempt to distract the police officer whilst at the same time moving his left arm and hand in a backwards motion down the side of his body underneath his leg towards the back of his seat. When the accused was shortly afterwards requested to exit the vehicle, the package containing 13.9 grams of methylamphetamine was found stuffed into the crease or gap between the back and bottom of the driver’s seat where the accused had been sitting.
·The drugs comprised 13.9 grams of ‘Ice’ methylamphetamine of relatively high purity, worth between $5,550 and $11,100 if sold in ‘point’ deals.
·The accused was the only person observed in the vehicle at the time of police attendance.
·The car was the accused’s work car to which no one else commonly had access.
The prosecution must prove its case beyond reasonable doubt. The overwhelming inference is that the accused was knowingly in possession of the package, and knew it was a controlled drug. The prosecution bears the onus of excluding any reasonable hypothesis consistent with innocence. The court has carefully considered the possibility of any hypothesis consistent with innocence, in particular whether the methylamphetamine could have been left there by someone unconnected with the accused, left there by ‘Beau’ or whether in any other way the accused may possibly not have been in knowing possession of the package of methylamphetamine. In the court’s view there is no such available hypothesis. It is highly unlikely that methylamphetamine of that value would be left lying around by anybody. It is highly unlikely that one drug user would leave that amount of his or her drug in the possession of another drug user for no apparent reason. It is highly unlikely that, even if the methylamphetamine had been in the possession of ‘Beau’, it could have physically found its way to underneath the accused’s body on the accused’s seat without the accused’s knowledge acquiescence and possession, nor is there any apparent reason why this would be likely to occur.
In the court’s view there is no reasonable hypothesis other than the conclusion that the accused was in knowing possession of the methylamphetamine. The location of the drug, the accused’s agitation and anxiety, the accused’s clumsy attempt to distract police and hide the drug in the back of the seat together with the value of the drug, its location in the car and the totality of the circumstances, in final analysis exclude any reasonable hypothesis other than that the accused was knowingly in possession of the methylamphetamine.
The court also finds proven beyond reasonable doubt that the substance was a controlled drug in the form of methylamphetamine.
The court finds proven beyond reasonable doubt that at the time of possession the accused knew it was methylamphetamine, a controlled drug. All the circumstances including the accused’s demeanour and attempt to hide the item lead inevitably to that conclusion.
Those elements having been proven beyond reasonable doubt by the prosecution, the law presumes that the accused had possession of the drug for the purpose of selling it unless it is proven on the balance of probabilities that he had it for some other purpose.
Whilst the accused did not give evidence that he possessed the drug for some other purpose, nonetheless the court can assess the totality of the circumstances and evidence given in the case to determine whether it is proven on the balance of probabilities that the accused’s possession was for some other purpose. In that respect, the court has regard to the accused’s evidence that he was a methylamphetamine addict and that he on occasions would use methylamphetamine with Beau. However, even giving that evidence the fullest consideration in the final analysis it does not, together with all of the other evidence in the case, prove on the balance of probabilities that the methylamphetamine was not possessed primarily for the purpose of sale. In particular, the quantity of drug was far in excess of that ordinarily purchased or used by addicts for their own use and there was nothing in the form of implements to indicate current usage at the point of possession, that might somehow justify a conclusion on the balance of probabilities that the 13.9 grams of ‘Ice’ methylamphetamine was possessed primarily for personal use.
Accordingly, the court finds beyond reasonable doubt that the accused knowingly possessed a controlled drug namely methylamphetamine, knowing that it was ‘Ice’ methylamphetamine a controlled drug, for the purpose of sale.
Verdict
The charge is proven beyond reasonable doubt. Accordingly, a verdict of guilty is recorded.