R v BAIN - [2018] SADC 87

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BAIN
Criminal Trial by Judge Alone
[2018] SADC 87
Reasons for the Verdict of Her Honour Judge Chapman
20 August 2018
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
Criminal trial by judge alone - accused charged with two counts of supplying methylamphetamine to his partner on the one occasion - one bag was for his partner's own use (count 1) and the other bag was for his partner to sell (count 2) - the accused's partner subsequently died - prosecution case that the supply of the drug was witnessed by another - defence case that no such event occurred.
Held: Accused guilty of both counts - the eye witness was credible and reliable - evidence of the accused rejected.
Controlled Substances Act, 1984 (SA) s33(1)(a); Evidence Act, 1929 (SA) s34P(2)(b), referred to.
R v Urbanski (2010) 108 SASR 368, considered.

R v BAIN
[2018] SADC 87

The accused is charged with two counts of Supplying a Controlled Drug to Another[1]. It is alleged that on 8 May 2014 he supplied his then partner, Samantha Vanzati, with two small bags of methylamphetamine at their home in Murray Bridge. Ms Vanzati collapsed later that evening. She died in hospital on 10 May 2014 from heart failure. The accused is not charged with any offence in relation to her death.
[1] Section 33I(1)(a) of the Controlled Substances Act, 1984 (SA)
The prosecution case rested largely upon the evidence of an eye witness, Ms Tauri Dunn. She saw the accused give Ms Vanzati two bags containing a white crystal shard substance in Ms Vanzati’s bedroom. The accused told Ms Vanzati that one of the bags was for her own use (count 1) and the other bag was for her to sell (count 2).
The defence case was that no such supply occurred. There was no time on 8 May 2014 when the accused was in Ms Vanzati’s bedroom with Ms Dunn and Ms Vanzati. He was not even in possession of methylamphetamine that day. He had cocaine that day. He did not supply Ms Vanzati with any illicit substance.
The issue was whether the prosecution had proved that the supply as allegedly witnessed by Ms Dunn did in fact occur. The prosecution has the burden of proof. The prosecution must prove each element of each of the two offences beyond reasonable doubt. The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The accused is not required to prove anything.
If Ms Dunn’s account was accepted to the relevant standard, her account of the accused’s conduct in relation to each of the bags of drugs would amount to an intentional ‘supply’[2] to Ms Vanzati. Was Ms Dunn a credible and reliable witness? If so, has the prosecution proved beyond reasonable doubt that the drug supplied to Ms Vanzati was methylamphetamine?
[2] R v Urbanski (2010) 108 SASR 369
Verdicts of guilty
The prosecution called six witnesses. They were
·Ms Tauri Dunn (eye witness to the alleged offences);
·Ms Linda Nye (involved in a separate drug transaction with Ms Vanzati and the accused on 8 May 2014, witnessed Ms Vanzati’s collapse on 8 May 2014 and then returned drugs to the accused on 9 May 2014);
·Ms Simone Vanzati (daughter of deceased);
·Professor Jason White (expert, pharmacology);
·Detective Brevet Sergeant Chad Brook (expert, methylamphetamine); and
·Detective Sarah McFarlane (expert, cocaine), in rebuttal[3].
[3] I granted the prosecutor’s application to call the rebuttal evidence. At no point during the prosecution case had the defence suggested to either Ms Dunn or Ms Nye that the relevant illicit substance was cocaine. It could not have been reasonably anticipated by the prosecution during the course of the prosecution case that expert evidence regarding cocaine was of relevance.
There were some agreed facts.
I found Ms Dunn and Ms Nye to be generally credible and reliable witnesses. I was not assisted by the evidence of Ms Simone Vanzati. I did not consider her evidence to be relevant or helpful in resolving the issues. The expertise of the three expert witnesses was not challenged. I direct myself that I am not obliged to accept the opinion of an expert. I have accepted their opinions, although those opinions did not play a large part in reaching my verdicts.
The accused elected to give evidence in his defence. He was not obliged to give evidence. He had the right to remain silent. By giving evidence, the accused did not take on any burden of proof. I assessed his evidence in the same way as assessing the evidence of other witnesses but kept firmly in mind that he was not required to prove anything.
I disbelieved the accused regarding his account of the events of 8 May 2014.
Having considered the whole of the evidence, the submissions of counsel and given myself necessary legal directions (as set out in these reasons), I am satisfied beyond reasonable doubt that the supply as alleged by Ms Dunn did in fact occur and that the drug supplied to Ms Vanzati by the accused was in fact methylamphetamine.
Chronology of events
As at May 2014, Ms Vanzati lived in Murray Bridge with her youngest daughter, Shakira, and Ms Dunn. Ms Dunn had lived there since about 2010 when she was 14. Other people stayed at the house from time to time. Amy and Josh (surnames unknown) were staying there in May 2014.
The accused is Shakira’s father. In the more distant past, he lived with Ms Vanzati and Shakira but had spent most of the period from 2010 to 2014 in jail.
Ms Vanzati and the accused were drug users. Prior to 2010, Ms Vanzati and the accused had used methylamphetamine together. According to Ms Dunn, Ms Vanzati reduced her drug use as Shakira got older. She would never use drugs out in the open but would tell Ms Dunn when she was going to the bathroom to use. Ms Vanzati was very slow due to her poor physical health. She had longstanding severe cardiomyopathy.
At the time of her death, Ms Vanzati was on the methadone program. Ms Dunn gave evidence that when Ms Vanzati had her medication, she would go ‘on the nod’ which means she would kind of pass out, but wake up. Ms Dunn always stayed around when Ms Vanzati was in that state because people would take her cigarettes or cash. Ms Dunn said that when Ms Vanzati took illicit drugs, she would become like a normal person with normal energy levels and start doing things around the house.
5 May 2014
On 5 May 2014, the accused was released from jail. He was driven to Ms Vanzati’s house. According to Ms Dunn, he successfully demanded cash from Ms Vanzati and left a few minutes later.
The accused denied demanding cash. He said he had no such need because he received the pension cheque for $840 or $860 when he was released from custody. He said Ms Vanzati offered to go and get ‘ice’ for him because he did not know who was selling, given his lengthy period in jail. He gave her $100. She went and got the ice for him from ‘Kiwi’. He used a point of ice that day.
8 May 2014 –the accused’s purchase, use and storage of cocaine
On 8 May 2014, the defence case is that the accused was in possession of cocaine, not methylamphetamine. The accused left the house that day and bought half an eight-ball (1.75g) of cocaine for about $150‑$200 from someone about 60 km from Murray Bridge. He used some of it before he got back home. He then divided it into three bags, each containing .7 of a point. He finished off the rest.
He hid the three bags in a lamp in Ms Vanzati’s bedroom. He asked Ms Vanzati to leave the bedroom so he could hide his three bags of cocaine in the bottom of the lamp. As far as he was aware, Ms Vanzati did not know that he kept his ‘stuff’ in that lamp.
Linda Nye’s first visit to the house
Ms Linda Nye gave evidence she knew Ms Vanzati well. On 8 May 2014, she visited Ms Vanzati’s house on two occasions.
The first visit was at about midday. Ms Nye went to Ms Vanzati’s house after Ms Vanzati called her to see if she wanted to get any ‘gear’ (ice) off her. She was supplied with a drug by either the accused or Ms Vanzati but all three were present during the transaction. There was some dispute about whether the transaction occurred in Ms Vanzati’s bedroom or the kitchen which is of little consequence. The more significant issue was whether the drug supplied to Ms Vanzati was methylamphetamine (prosecution case) or cocaine (defence case).
When Ms Nye arrived, the accused, Ms Vanzati and Shakira were at the house. She could not remember whether Ms Dunn was there then. The accused and Ms Vanzati were in Ms Vanzati’s bedroom. She got a point of ice. She described it as glassy, and looked like ice. It was not white and opaque. She could not remember who handed it to her. She did not pay. Ms Vanzati said she could pay down the track. She saw what she described as bits and pieces of amphetamine on the kitchen table in little bags; more than one bag. She could not say if they were empty, but they probably were. She did not pay much attention. She went home and used the ice with her partner.
The accused gave evidence that Ms Nye got one deal of cocaine which was a point worth $100. It was not ice. It was some of the cocaine he had bought earlier that day.
The charged conduct
On the prosecution case, Ms Dunn was an eye witness to the supply of methylamphetamine by the accused to Ms Vanzati at about 2.30pm on 8 May 2014.
Such an event is denied by the accused.
Ms Dunn gave evidence she was in Ms Vanzati’s bedroom with Ms Vanzati. She could not recall who else was at the house at that time. Ms Dunn was lying on the bunk bed in the bedroom messaging a friend making arrangements to go out. Ms Vanzati was on her bed and was ‘on the nod’. The accused came into the bedroom. He threw some drugs on Ms Vanzati’s bed and said ‘This one’s for you and this one’s for you to get rid of, don’t fuck it up’. There were two bags. Inside one bag there were three bags. The other bag had one bag in it. The bag with three bags inside was for Ms Vanzati to get rid of. The bag with one bag inside was for Ms Vanzati to use.
Ms Dunn described the substance inside the bags as a white crystal shard. She said it was hard and was crystallised shards like methylamphetamine but was more white than clear; it did not look like a white powder.
About 5-10 minutes after the accused left, Ms Dunn walked over to where Ms Vanzati was on the bed. Ms Vanzati had found the bag with the three bags inside and put it inside her bra. Ms Dunn picked up the bag with the one bag inside it because it was under a blanket and Ms Vanzati could not see it. She thought there was just over a point, or just over $100 worth in that bag. She told Ms Vanzati what the accused had said.
Use of methylamphetamine by Ms Vanzati
According to Ms Dunn, Ms Vanzati went into the bathroom about half an hour after the accused left.
Ms Dunn got ready to go out. She next saw Ms Vanzati in her bedroom putting something on top of her wardrobe or getting something down. Ms Vanzati looked like she was more awake. Her energy levels were normal. She was not sleepy anymore. She was talking and in a cheeky and funny mood. She was cracking jokes and said she wanted to go and have some girly time at the pokies.
At about 4pm, Ms Dunn left the house to go out with a friend. That was around an hour and a half after the accused had come into the bedroom and supplied Ms Vanzati with the drugs.
Linda Nye’s second visit to the house
Later that afternoon or evening, Ms Nye returned to the house. The accused, Ms Vanzati, Shakira, Josh, Amy and another man were there. They were talking, listening to music and designing tattoos around the kitchen table. At around 9pm, Ms Nye and Ms Vanzati left the house to play pokies down at the clubrooms. The accused had left the house about 10 minutes earlier.
Collapse of Ms Vanzati at clubrooms
According to Ms Nye, Ms Vanzati collapsed whilst at the clubrooms. Before Ms Vanzati was taken to the hospital by ambulance, Ms Nye told her to give her any drugs she had on her. From her bra, Ms Vanzati took a bag containing four bags of ice. Ms Nye thought there was a point each in three bags and half a point in one bag. Ms Nye gave evidence the drug looked like what she had been given by the accused and/or Ms Vanzati earlier that day.
Ms Nye returns drugs to accused on 9 May 2014
On 9 May 2014, at Ms Vanzati’s house, Ms Nye gave to the accused the drugs that had been provided to her by Ms Vanzati at the clubrooms.
On the prosecution case, they were the bags, or at least some of the bags, of methylamphetamine which the accused had supplied to Ms Vanzati the day before. According to Ms Nye, the accused said thank you. He asked her if she was going to pay for what she had previously received. She told him Ms Vanzati told her not to worry about it.
On the defence case, they were the bags of cocaine which the accused had hidden in the lamp in Ms Vanzati’s bedroom the day before. He gave evidence he had just realised that morning of 9 May they were missing from the lamp. When they were returned by Ms Nye, there had been no tampering with his packaging.
Ms Vanzati died at the hospital
At the hospital on 9 May 2014, a sample of Ms Vanzati’s blood was taken. On subsequent analysis, it contained methadone, duloxetine, oxazepam, methylamphetamine and bisoprolol. The methadone, duloxetine and oxazepam were medications which had been prescribed to Ms Vanzati. Bisoprolol was administered at the hospital. No other illicit drugs were detected.
On 10 May 2014, Ms Vanzati died in hospital from multi-organ failure complicating dilated cardiomyopathy.
Assessment of witnesses
Generally, I found Ms Dunn to be a credible witness. I did detect some bias against the accused. It was evident she disliked him. For example, she said that on 8 May 2014 the accused was ‘the same as always. On his high horse...he got his chest out like he is on top of the world. Like he is walking around: I’m the boss, you do this, you do that, this is how it is. If she said something, it doesn’t matter. She wanted to get her life sorted out for their kid, it didn’t matter’[4]. When she was asked some questions about the accused’s movements that day, she stated ‘I really did not pay much attention to Mr Bain. I didn’t pay much attention to his presence or where he was. The only attention I paid is to where Aunty Sam was, or what I was doing or what she was doing…’[5].
[4] Transcript p102
[5] Transcript p108 - 109
Her attitude toward the accused may be explained to some extent by the fact she was very close to Ms Vanzati and has a view about the accused being in some way responsible for Ms Vanzati’s death. When asked what she saw inside the bags the accused threw on Ms Vanzati’s bed, she responded, ‘At the time just drugs, but when I look at it now it wasn’t normal’[6].
[6] Transcript p101
I have approached the assessment of her evidence with caution because of those matters.
In regard to the events of 5 May 2014, I preferred the evidence of the accused to that of Ms Dunn. The accused was adamant he had no need to demand money from Ms Vanzati because he had received payment upon his release from custody. I think it more likely that any demands of Ms Vanzati related to his need to find a source for ice. I accept his evidence that she sourced ice for him with cash provided by him.
Despite being partisan to Ms Vanzati, Ms Dunn was a witness who was prepared to make concessions. She was prepared to accept that the accused arrived back at the house from jail three days before Ms Vanzati died, rather than her earlier estimate of ‘a week and a bit’ before. She was prepared to accept she was wrong about the identity of one of the people who dropped the accused off at the house on 5 May. She was prepared to acknowledge certain things could have occurred at the house and concede she might not have been at home at the time. She had no hesitation during cross-examination in recognising a rough drawing of a lamp as depicting a lamp that Ms Vanzati had in her bedroom. She accepted she did not tell Detective Johnson that she saw Ms Vanzati put something in her bra after the accused supplied the drugs in the bedroom. Although there was no explanation for that failure, I did not consider that prior omission affected her general credibility or reliability.
Ms Dunn was also considered in her answers. An example of this was when she was asked whether the accused slept in Ms Vanzati’s bedroom from 5 May. She replied ‘If he had slept, then yes, maybe’. She then paused for quite a while to think. She then said ‘But I’m gonna disagree with that because I remember Samantha being upset due to wanting to spend time with Colin and him not being around’.[7]
[7] Transcript p112
Her description of Ms Vanzati being on the ‘nod’ and then her mood changing after the use of methylamphetamine was supported in principle by Professor White. In his opinion, the description of someone being ‘on the nod’ was one very commonly known amongst drug users. It usually means quite a strong degree of sedation. He said the description of someone having more energy and being up and about doing things around the house was very consistent with a change of state brought about by the consumption of methylamphetamine after someone has been on the nod.
Ms Dunn was unshaken in cross-examination regarding the conduct the subject of the two offences. She maintained she saw the accused give Ms Vanzati those drugs ‘100%’[8].
[8] Transcript p109, p111
I found Ms Linda Nye to be a credible and reliable witness. I have no hesitation in accepting her evidence that she was at Ms Vanzati’s house the first time on 8 May 2014 in order to get ice. She said it looked like ice and when she used it, it had the effects of ice. Although she admitted to using ice on 8 May 2014, there is no evidence to suggest it affected the reliability of her account of the rest of that day or the next.
Ms Nye carefully considered questions in cross‑examination about the appearance of the drug she returned to the accused on 9 May 2014. She was prepared to agree that some of it could have had the appearance of powder, but said that only applied to the ‘half’ bag. She suggested it probably had that appearance because it had been handled a lot more. She said she was pretty sure she knew the difference between cocaine and ice. She said she was not a user of cocaine.
Generally, I did not find the accused to be a credible witness. He was at pains to distance himself from being in possession of methylamphetamine on 8 May 2014. I rejected his evidence that he had cocaine, not methylamphetamine, in his possession on 8 May 2014.
His evidence about the circumstances of his purchase of cocaine became more elaborate during the course of cross-examination. Initially he declined to say where he went to get the cocaine. He did say he was away from Ms Vanzati’s house for about 45 minutes to an hour. Later he said he went to a couple of towns out of Murray Bridge, but could not remember the name of the town. He ended up agreeing that where he went was about 50‑55km from Murray Bridge in the direction of Palmer. He said he had been there three times. It seems unlikely then that he was away for about 45 minutes to an hour.
I find it implausible that the accused travelled such a distance to source cocaine, an illicit drug he had not used for about 20 years, some three days after being released from jail. Methylamphetamine was his drug of choice on the day he was released from custody. It does not ring true that he abandoned that drug in favour of cocaine after such a short period of time.

The accused’s evidence that he stored a small amount of the cocaine he bought that day for later use over the next three days did not sit comfortably with the extent of his purported use of cocaine on 8 May 2014. He said he injected some of the cocaine where he bought it, then ate a couple of points and injected some on the way home. Once home, he had a further five points. By that stage, he had used just under 1.5g. He then claimed to have divided the remainder of the cocaine into three bags, each containing .7 of a point, which he said was to last him three days. I find his claim to have stored such a relatively small amount of cocaine to be highly unlikely in light of his usage that day and his evidence that he was ‘a pig when it comes to drugs’[9].
[9] Transcript, p177
In my view, the accused was caught out in his evidence when asked about the source of the cocaine he claimed was given to Ms Nye on 8 May 2014. He said it was from the cocaine he had bought earlier that day. When confronted with that being inconsistent with his earlier evidence that he had packaged and hidden what cocaine he had not used, he offered the suggestion that Ms Vanzati would have already taken it to give to Ms Nye. I find that unlikely. I accept Ms Nye’s evidence that she was friends with Ms Vanzati and was there to get ice. Further, Ms Vanzati was an experienced ice user. It is fanciful to think that Ms Vanzati would have confused ice and cocaine or that she would have deliberately given Ms Nye cocaine instead of ice without telling her.
Similarly, the effect of the accused’s evidence is that Ms Nye must have confused ice and cocaine on her first visit to the house on 8 May 2014. I consider that to be fanciful. Ms Nye’s evidence was that she was at that time supplied with ice which she then used. When she was cross-examined during the prosecution case, it was not suggested to her that she was in fact supplied with cocaine, not ice. After the accused gave evidence, I granted an application made on behalf of the accused for Ms Nye to be recalled so that matter could be put to her for her response. She was asked whether she was told what the drug was that she got. She said ‘Yes, I asked for it. I wouldn’t have taken it if I didn’t know what it was’[10]. She said it was not a white powdery substance, it was glass shards. She said it was not cocaine. When she used the drug when she got home, it did not have any different effects than what she was used to when she used ice.
[10] Transcript, p199
Again, the effect of the accused’s evidence was that Ms Nye must have again confused cocaine and ice when she returned the drugs to the accused on 9 May 2014. Again, I find that fanciful. Ms Nye’s evidence was that the bag she received from Ms Vanzati after she collapsed at the clubrooms on 8 May and then returned to the accused on 9 May contained bags of ice. She said the drug looked like what she had been given on her first visit to the house on 8 May. She conceded she did not examine it closely. As to whether it could have been a white powder she said ‘No. I don’t know. Maybe, I don’t know’[11]. When she was recalled, she said only the small bag with half a point could have been powder because it had been handled a lot more. The accused did not mention cocaine to her when she handed the drugs to him.
[11] Transcript, p127
I also consider the accused’s evidence about hiding cocaine in a lamp in Ms Vanzati’s bedroom to have lacked credibility. He said he asked Ms Vanzati to leave the bedroom, telling her that he was going to hide his ‘stuff’. I find this evidence implausible in itself. If the idea was that she would not find the drugs, then it would be odd to tell her that he was about to hide them in her room. When asked to explain that, the accused said he told Ms Vanzati he wanted her to leave so he could hide his stuff ‘because I was always straight-out with her. We didn’t hide things, we’re partners’[12]. The inherent contradiction within his own evidence on that matter is readily apparent.
[12] Transcript, p160
The effect of the accused’s evidence is that someone must have retrieved the cocaine from the lamp because it somehow came to be in the possession of Ms Vanzati when she collapsed that night at the clubrooms. I accept that a lamp matching the description given by the accused was in Ms Vanzati’s bedroom. I also accept that before going out that afternoon of 8 May 2014, Ms Dunn saw Ms Vanzati either putting something on top of her wardrobe or getting something down. Neither of those facts lend weight to the possibility that Ms Vanzati retrieved the cocaine from the lamp that afternoon before going out.
Why would she take cocaine which had been hidden in a lamp by the accused without telling him? The evidence of the accused was that they did not hide things from each other because they were partners. Additionally, there was no evidence she was ever a user of, or a dealer in, cocaine. It is known that she did not use cocaine on this day. The toxicology result was negative for that drug. Further, in light of her familiarity with ice, I consider it highly unlikely that she would take the secreted drug in the mistaken belief it was ice. I find it implausible that Ms Vanzati retrieved the drugs from a hiding place which was said by the accused not to be known to her.
The accused’s evidence that he hid the drugs from Ms Vanzati because he did not let her use drugs due to her poor health did not sit easily with his evidence that he happily let her go to buy him a point of ice on 5 May 2014. If he had really been so concerned about her not accessing drugs, then I wonder why, once armed with information about where to go, he did not go and buy the drugs himself. Further, using Ms Vanzati’s own bedroom as a hiding place for his drugs did not strike me as the action of a man whose focus was to prevent Ms Vanzati from using them.
I have no hesitation in rejecting the evidence of the accused regarding the events of 8 May 2014. It is inherently implausible and is contradicted by the evidence of Ms Dunn and Ms Nye, which I accept.
Discreditable conduct
Evidence of discreditable conduct on the part of the accused was admitted without objection and also led as part of the defence case as follows:-
·That he had been a user of illicit substances for years.
·That he had been in jail for most of the period from 2010 to 2014.
·That he caused Ms Vanzati to purchase methylamphetamine for him on 5 May 2014.
·The admission by the accused that he purchased and used cocaine on 8 May 2014.
·That he and Ms Vanzati jointly supplied Ms Nye with an illicit substance on 8 May 2014.
·That he received illicit substances into his possession from Ms Nye on 9 May 2014.
I did not consider any of the evidence on its own or in combination was admissible to prove any particular propensity on the part of the accused relevant to the issue of whether the charged event in fact occurred or whether the illicit drug was in fact methylamphetamine[13]. I have not used the evidence in that way. Further, I have not reasoned that because of any of that discreditable conduct he was a ‘bad person’ or a person of ‘bad character’ or the sort of person who was likely to commit crimes and therefore likely to have committed these crimes.
[13] Section 34P(2)(b) of the Evidence Act 1929 (SA)
I have only used the evidence the accused had been a user of drugs for years as relevant to his familiarity with illicit substances and his desire to access and use drugs on the relevant days. The evidence that he had been in jail for a substantial period has only been used to explain how it was the accused came to be at the house in the days leading up to the alleged offending as opposed to earlier.
The evidence that the accused caused Ms Vanzati to purchase methylamphetamine for him on 5 May 2014 has only been used for the purpose of showing the accused had a desire on that day to get drugs, that the drug he sought was methylamphetamine and that he was prepared to involve Ms Vanzati with that drug by letting her make the purchase for him. That evidence was relevant to a fact in issue, that is, his preparedness to involve Ms Vanzati with that particular drug on 8 May 2014. It has also been used as tending to rebut evidence of the accused that he sought cocaine, not methylamphetamine, on 8 May 2014.
The evidence that the accused and Ms Vanzati were jointly involved in supplying a drug to Ms Nye on 8 May 2014 has been used for the limited purpose of showing that the accused/Ms Vanzati were in possession of methylamphetamine on the relevant day and the accused had no apparent misgivings about Ms Vanzati dealing in methylamphetamine. The evidence was also relevant to rebut the evidence of the accused that he only had cocaine and dealt in cocaine that day.
The evidence that the accused received drugs into his possession on 9 May 2014 was relevant in regard to whether those drugs were methylamphetamine and their connection to the drugs allegedly supplied by the accused to Ms Vanzati on 8 May. The evidence also tended to rebut his evidence that the drugs were what he purchased on 8 May, namely, cocaine.
Findings
On 5 May 2014, the accused was released from jail and asked Ms Vanzati to purchase ice for him for his own use.
On 8 May 2014, the accused did not leave the house to purchase cocaine. Nor did he secretly store cocaine in a lamp in Ms Vanzati’s bedroom.
On 8 May 2014, the accused supplied Ms Vanzati with two bags of methylamphetamine as described by Ms Dunn.
On 8 May 2014, the accused and Ms Vanzati supplied methylamphetamine to Ms Nye. In my view, that occurred after the accused supplied Ms Nye with the two bags of methylamphetamine which are the subject of the charges. I have come to that conclusion despite Ms Nye’s estimation that the transaction involving her took place around midday and Ms Dunn’s estimation that the supply by the accused to Ms Vanzati occurred around 2.30pm. Their timing of those events was not fixed in concrete. They were estimations only. Additionally, it was over four years after the events when they gave their evidence.
I consider that Ms Vanzati was ‘on the nod’ at the time the accused supplied her with methylamphetamine in Ms Dunn’s presence and she then used some of the drug. That changed her mood. She was then in a good and happy mood when she and the accused supplied Ms Nye with ice. By that stage, I find that Ms Dunn had left the house and was not there when Ms Nye returned for the second time later that evening after using the point of ice. Ms Vanzati was still in a good and happy mood.
My finding that Ms Vanzati used methylamphetamine that day is based on the evidence of Ms Dunn, the analysis of Ms Vanzati’s blood on 9 May 2014 and the opinion of Professor Jason White that the presence of methylamphetamine in Ms Vanzati’s blood at that time was consistent with her use of that drug the day before. Of course, the evidence of the blood analysis and Professor White does not, on its own, prove that the methylamphetamine she used was that supplied to her by the accused. I did not rely upon Professor White’s evidence regarding the possible timing of the use of that drug by Ms Vanzati on 8 May 2014 as the basis for finding she did use the drug after she was supplied with it by the accused. Rather, I relied upon the evidence of Ms Dunn in that regard.
I am satisfied the drug the subject of the two charges was methylamphetamine. Ms Dunn’s evidence was that the substance in the bags supplied by the accused to Ms Vanzati was crystallised shards like methylamphetamine but was white not clear.
Detective Brook gave expert evidence regarding methylamphetamine, commonly referred to as ice. The appearance of ice is similar to rock salts or shards of glass. It is usually a clear substance. It can have other colours, depending on how it is made or what products have gone into making it. He has seen ice that has a white appearance.
In my view, Ms Dunn’s description of the drug as appearing white not clear, if correct, did not preclude the drug from being methylamphetamine. She said it was not a white powder. The opinion of Detective McFarlane, which I accept, was that cocaine has the appearance of white powder.
Ms Dunn’s description of the drug supplied by the accused as being white was, to that extent, at odds with the description by Ms Nye that the drug supplied to her was clear. I do not think much turns on that discrepancy. Ms Dunn described the drug supplied by the accused to Ms Vanzati as crystal shard and Ms Nye (a user) recognised the drug supplied to her on 8 May as ice.
Further, Ms Nye described the drugs she returned to the accused on 9 May 2014 as being neither white nor opaque. If they were the drugs supplied the previous day by the accused to Ms Vanzati, then there is again that discrepancy with the description given by Ms Dunn that the crystal shards were white. Again, I do not think much turns on that discrepancy. Ms Nye’s evidence was that the bags returned to the accused contained ice. Her only concession about a white powder appearance concerned the bag containing the smaller amount which she said could have been more of a white powder because of handling.
For the reasons I have given, I rejected the accused’s evidence that the drug given to Ms Nye and the drug given to him by Ms Nye was cocaine. I am satisfied the drug in both of these instances was methylamphetamine and most importantly, I am satisfied the drug supplied by the accused to Ms Vanzati was methylamphetamine.
I find the accused guilty of count 1 and guilty of count 2.