R v Bernhardt - [2019] SADC 121

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BERNHARDT
Criminal Trial by Judge Alone
[2019] SADC 121
Reasons for the Verdict of Her Honour Judge S David
22 August 2019
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
Accused charged with trafficking in a commercial quantity of a controlled drug - alleged to have taken part in the process of sale of methylamphetamine by arranging delivery of the drug - circumstantial case - intercepted telephone calls - surveillance of accused's premises - prosecution not able to exclude hypothesis consistent with innocence.
Held: Not guilty.
Controlled Substances Act 1984 (SA) s32(2), referred to.

R v BERNHARDT
[2019] SADC 121

Benjamin Bernhardt (‘the accused’) is charged with the offence of trafficking in a commercial quantity of a controlled drug, contrary to s 32(2) of the Controlled Substances Act 1984 (SA) (‘CSA’). He is charged on the Information dated 23 April 2018 as follows:
First Count
Benjamin Bernhardt is charged with the following offence:
Statement of Offence
Trafficking in a Commercial Quantity of a Controlled Drug. (Section 32(2) of the Controlled Substances Act, 1984.)
Particulars of Offence
Benjamin Bernhardt on the 1^st day of September 2014 at Prospect or another place, trafficked in a commercial quantity of a controlled drug, namely methylamphetamine knowing or being reckless as to the fact the substance was a controlled drug.
The accused pleaded not guilty and elected for trial without a jury. I now publish reasons for the verdict I deliver.
Overview
The prosecution alleged that the accused took part in the process of sale of a controlled drug by arranging for 138 g or about five ounces of methyl-amphetamine to be provided to an associate, Zoran Nikolic (‘Nikolic’), knowing that he would sell a commercial quantity of the drug to another person. The police were intercepting a telephone service associated with the accused at the time. The recorded telephone conversations between the accused and his associates formed an integral part of the prosecution case.
Nikolic telephoned the accused on 31 August 2014 and asked for ‘the same’. On the prosecution case, he was asking for methylamphetamine, which the accused had previously arranged or provided to him. In response to the request by Nikolic, the accused is alleged to have arranged for methylamphetamine to be provided to Nikolic with the assistance of an associate John Rillo (‘Rillo’) – the ‘uncharged act’.
On 1 September 2014, Nikolic again telephoned the accused and asked for ‘double yesterday’; ‘double plus one’. On the prosecution case Nikolic is requesting the accused to arrange for the provision of ‘double plus one’ the amount of methylamphetamine provided on the previous day. The accused is then alleged to have made contact with Rillo via his son, Jake Bernhardt, and organised for Rillo or another attending on his behalf to deliver methyl-amphetamine to the accused’s home address in Prospect where it was to be collected by Nikolic. The intercepted telephone calls revealed that the accused was in Middleton that evening and would not be at his Prospect home when the methylamphetamine was to be delivered and collected.
Police conducted surveillance of the accused’s Prospect home. At about 6.05pm that evening police observed a black sedan arrive at the accused’s home and drive into the driveway. The police could no longer make observations of the vehicle. The black sedan left the driveway at 6.06pm and parked on the roadway in front of the premises. The vehicle was under police surveillance at the front of the accused’s home, where it remained until 6.16pm. During this time, police did not see any person approach or leave the vehicle. The police did not see any person in the front yard of the house, nor did they see any lights on in the house or any signs of movement or occupation of the house.
At 6.55pm, a black Mercedes registered to Nikolic arrived at the premises and drove into the driveway. The police were not in a position to make any observations of the vehicle whilst it was parked in the driveway. The black Mercedes left the premises at 7.03pm and was followed by police officers.
Police pulled over the black Mercedes on Main North Road, Prospect. The sole occupant and driver of the vehicle was Nikolic. Nikolic stepped out of the vehicle and was searched. During the search, Nikolic appeared to be concealing an item in the front pocket of his ‘hoodie’ jumper. Police officers tried to seize the item from Nikolic whereupon Nikolic fled down an adjoining street. The police pursued Nikolic. Another police officer on a motorcycle in the adjoining street also pursued Nikolic and saw him make a throwing motion, and an item in the air. A short time later, Nikolic surrendered himself to police. There was no longer an item in the front pocket of his hoodie.
Police searched the surrounding area and discovered a black plastic bag within which there were a further five plastic bags each with about 27 g of substance containing about 21 g of methylamphetamine. There was a total of 138.5 g of substance containing 106.2 g of methylamphetamine.
The plastic bags in which the methylamphetamine was packaged were forensically examined. Rillo could not be excluded as a contributor to DNA extracted from two of the plastic bags containing methylamphetamine.
The accused was arrested on 19 March 2015.
The accused did not give evidence at trial.
Legal elements of the offence
The offence of Trafficking in a Commercial Quantity of a Controlled Drug contains four elements each of which the prosecution must prove beyond reasonable doubt.
First, it must be proved that the substance was a controlled drug. In this case, there is no dispute that the substance seized by the police was methylamphetamine, a substance declared to be a controlled drug by regulation made pursuant to the CSA.
Second, it must be proved that the accused trafficked the methylamphetamine. ‘Trafficking’ in a controlled drug includes taking part in the process of sale of the drug. A person takes part in the process of sale of a controlled drug if the person directs, takes or participates in any step, or causes any step to be taken in the process of sale of the drug. In this case the prosecution alleged that the accused took part in the sale of the drug by arranging or directing for methylamphetamine to be provided by Rillo to Nikolic, knowing that Nikolic would sell a commercial quantity of the drug to another person or persons.
The third element to be proved is that the accused knew that the substance concerned was methylamphetamine or at least a controlled drug.
Fourth, the prosecution must prove beyond reasonable doubt that the amount of methylamphetamine found by police was a commercial quantity. A commercial quantity of methylamphetamine is declared as 100 g of pure methyl-amphetamine. In this case the accused is alleged to have knowingly taken part in the process of sale of 106.2 g of pure methylamphetamine.
The issue at trial was whether the prosecution had proved beyond reasonable doubt that the accused trafficked in a controlled drug by taking part in the process of sale of methylamphetamine by arranging for Rillo to provide methylamphetamine to Nikolic knowing that Nikolic intended to sell the drug.
Standard legal directions
I apply the following legal principles in reaching my verdict. The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The burden of proving the charge lies wholly upon the prosecution. The accused is not obliged to prove anything. Nothing short of proof beyond reasonable doubt will suffice. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. Before the accused is convicted of the charged offence, I must be satisfied that the prosecution has proved beyond reasonable doubt each element of the offence. If I am satisfied that there is an explanation for the evidence consistent with the innocence of the accused, or I am unsure where the truth lies, then I must find the accused not guilty.
In this trial, the accused elected not to give evidence. The accused’s silence cannot be used against him, nor can it be used as an admission. The accused’s silence cannot be used to fill any gaps in the prosecution evidence, nor does his silence make the prosecution evidence stronger or more persuasive. To use the accused's silence against him would deprive him of his right to remain silent. It is for the prosecution to prove beyond reasonable doubt its case on the charged offence.
There was expert evidence received from Ms Windram of Forensic Science SA about DNA. There was no dispute as to Ms Windram’s expertise. There was also expert evidence from Detective Sergeant Everett as to the pricing, packaging and distribution of methylamphetamine in 2014. There was no dispute as to his expertise on this topic. Mr Coen also gave expert evidence on the topic of BlackBerry mobile phones.
The evidence of an expert witness is to be assessed in the same way as the evidence of any other witness. Such evidence is not to be blindly followed but can be accepted or rejected in the same way as any other witness. In this case, I note there was no dispute taken as to the expertise of the witnesses nor the expert evidence itself, rather the dispute lay with the inferences the prosecution sought to draw from the evidence.
The prosecution case against the accused is largely circumstantial in nature. There are two steps in approaching a circumstantial case: first, to consider the facts upon which the prosecution relied and decide what facts are established by the evidence; and second, to consider what inference or inferences can be drawn from the established facts. The latter step requires a consideration of the combined strength of the facts established by the evidence. There cannot be a guilty verdict unless the circumstances as a whole exclude any reasonable explanation consistent with the accused’s innocence. In other words, before an accused person can be found guilty of any offence, the accused's guilt must be the only rational inference to be drawn from the facts or circumstances I accept are established on the evidence.
The prosecution case
The prosecution relied on the following pieces of circumstantial evidence in support of its case.
Telephone intercepts
The prosecution alleged that the intercepted telephone calls between the accused and his family and associates revealed that the accused arranged for Rillo to provide the seized methylamphetamine to Nikolic at the accused’s residence at Prospect on 1 September 2014. Although the conversations are coded and had in guarded terms, on the prosecution case, when looked at in conjunction with the movements of Nikolic, it can be inferred the accused is discussing the provision of methylamphetamine by Rillo to Nikolic.
Identity of the callers
The prosecution relied on various pieces of evidence to support an inference that it was the accused primarily using the intercepted telephone service.[1] That telephone service was subscribed to Rebecca O’Sullivan.[2] Upon the accused’s arrest at Middleton a woman who identified herself as Rebecca Elizabeth O’Sullivan was occupying the house.[3] A black Maserati (XX9-68U) registered to Rebecca O’Sullivan was parked at the Middleton address.[4] On the evening of the alleged offence, that same vehicle was observed parked at the Prospect address.[5]
[1]    With the phone number [.… … 605].
[2]    Exhibit P2.
[3]    T75.18-36.
[4]    Exhibit P7.
[5]    T36.35 and Exhibit P18 (surveillance log).
Further, the voice of the caller using the intercepted telephone service is distinctive and sounds the same throughout the calls suggesting it is the same man using that service in all of the relevant intercepted calls. In several of the telephone calls the male identifies himself as ‘Ben Bernhardt’.[6] During one telephone call, the caller also provides an address of the accused’s residential address at Prospect.[7] That address was leased to the accused during the relevant period[8] and registered as the accused’s place of business.[9] Further, in one phone call from this telephone service the caller is arranging with a locksmith to attend at the ‘recently purchased’ premises at Middleton.[10] The accused had purchased that house two days earlier.[11] The caller using the intercepted telephone service also on several occasions contacted the accused’s children or discussed them.[12]
[6]    Calls 62 and 384.
[7]    Call 601.
[8]    Exhibit P11 (residential tenancy agreement).
[9]    Exhibit P12 (ASIC extract).
[10] Call 62.
[11] Exhibit P6 (Land Services SA certificate).
[12] Exhibit P2, Exhibit P9 and see Call 384.
As to the caller said to be Nikolic, the relevant phone service said to have been used by that person during the intercepted telephone calls was subscribed to Zoran Nikolic.[13] Further, in establishing there existed an association between the accused and Nikolic, the prosecution relied upon the evidence of the accused having been contacted by various persons after Nikolic’s arrest on 1 September 2014 to inform the accused of Nikolic’s arrest which is consistent with there being an association between the two men.[14]
[13] Exhibit P2.
[14] Exhibit P16, Exhibit P17, Calls 420, 421.
Ultimately, there was no dispute that the accused was the person using the intercepted telephone service during the relevant calls, and I so find. Nor was there any dispute that the caller said to be Nikolic during the intercepted calls was Zoran Nikolic, and I so find. Rather, issue was taken with the inferences sought to be drawn from those conversations.
Content of the calls
Sunday 31 August 2014
The accused called Nikolic at 10.29am on this day.[15]
[15] Call 299.
MALE1     (to background) Huh?
(male talking in background)
MALE1     Yeah. (sniffs)
(phone rings)
MALE2     How ya goin’, mate?
MALE1     Yeah, good, mate. How are ya?
MALE2     I’m still getting’ the meat?
MALE1     Yeah, mate. Yeah. Yup. We got …
MALE2     Alright. Alright.
MALE1     … all salads and everything else organised. So …
MALE2     Alright. Well I got the meat – I got the meat and I got the bread.
MALE1     Oh, okay. Cool.
MALE2     Alright?
MALE1     No worries. I think they’re gonna be there about eleven thirty.
MALE2     Alright, cool.
MALE1     The boys … so …
MALE2     Well we gotta … I’ll … head down there now. I just gotta pick Jossy up.
MALE1     Yeah, uhm, where’s Jos?
MALE2     At his place.
MALE1     Is he?
MALE2     Yup.
MALE1     Okay, no worries.
MALE2     Right, so just gotta …
MALE1     Right oh. I got Kyle and –
MALE2     … pick him and take –
MALE1     I got Kyle and Raymond with me, so …
MALE2     (chuckles) Hey, to, uh … (coughs)
MALE1     … we’re still out.
MALE2     Can I have the same?
MALE1     Hey?
MALE2     The same?
MALE1     Roman?
MALE2     Same. Same.
MALE1     Hey?
MALE2     No, ________ see ya. You’re right?
MALE1     Yup.
MALE2     Alright, mate.
(call terminated)
There were then a series of intercepted telephone calls[16] in which the accused appeared to be speaking with various persons including Nikolic about a BBQ to be held on Sunday afternoon. On the prosecution case, the BBQ is not a code for drugs or any nefarious conduct, and there is no suggestion that the accused and others were discussing anything other than a BBQ in those calls. The intercepted calls revealed that the accused and Nikolic intended to meet in person at the BBQ on the Sunday afternoon.
[16] Exhibit P2, Calls 307, 311, 316 and 317.
The accused then attempted to call a telephone service subscribed to Rillo, however the number was recorded as being disconnected.[17] Shortly after that unsuccessful telephone call, the accused contacted Dyllan Bernhardt (his son)[18] looking for a person referred to by him as ‘John and Michelle John’. The accused asked his son to call this person, John and ‘tell him to check his .. uhn, berry’. [19] On the prosecution case the accused is trying to contact Rillo to arrange for Rillo to provide methylamphetamine to Nikolic (‘the uncharged act’). The accused then contacted Nikolic and told him ‘yeah, four o’clock’, when Nikolic asked ‘where, at yours?’, the accused replied ‘yeah’.[20]
[17] Exhibit P2, Call 321.
[18] Exhibit P9, birth certificate for Dyllan Bernhardt.
[19] Exhibit P2, Call 329.
[20] Exhibit P2, Call 332.
On the prosecution case, the next day Nikolic again contacted the accused for methylamphetamine[21] and the accused again made contact with Rillo (through his son)[22] and arranged for Rillo to provide Nikolic with methylamphetamine (the subject of the charge). On the prosecution case, the accused’s earlier attempts on the previous day to contact Rillo after Nikolic has asked for ‘the same’ supports the inference that when Nikolic asked the following day for ‘double yesterday’, ‘double plus one’ and asked his son to contact Rillo, he is again arranging for Rillo to provide methylamphetamine to Nikolic. In that context, it is significant that Rillo’s DNA could not be excluded from the packaging of the methyl-amphetamine.[23]
[21] Exhibit P2, Call 393.
[22] Exhibit P2, Call 403.
[23] Exhibit P31.
In support of the inference that ‘John and Michelle John’ is John Rillo the prosecution relied on three features of the evidence. First, the short time period which had elapsed between the unsuccessful calls to Rillo’s telephone service, on the one hand, and to his son during which he is looking for ‘John and Michelle John’,[24] those calls having been made on the same day as Nikolic’s coded requests for the drug.[25] Second, the accused’s request to his son that he ask Rillo to check his ‘berry’ combined with the fact that Rillo, when arrested on 22 April 2015, had an encrypted BlackBerry telephone.[26] Third, the evidence that John Rillo was co-habiting with Michelle Joyce Merrick.[27]
[24] Call 321 at 12.33pm and Call 329 at 2.36pm on 31/8/14; Call 393 at 1.49pm and Call 404 at 5.49pm on 1/9/14.
[25] Call 299 at 10.29am on 31/8/14.
[26] T112-T113.
[27] Exhibits P14, P15 and P32 combined with the evidence that Rillo was arrested at an address in Morphettville.
Next, there is a telephone call[28] between the accused and Nikolic during which they arrange to meet at the accused’s home later that afternoon. That is followed by a series of telephone calls[29] between the accused and his son Dyllan Bernhardt during which, on the prosecution case, the accused is confirming that Rillo has received his text message. Dyllan Bernhardt says that he (said to be Rillo) said he ‘would leave in fifteen minutes ago. Like … fifteen minutes ago.’. The accused’s son rang him again and the accused told him: ‘yup, I just saw him’. On the prosecution case, the accused has in that way arranged for Rillo to provide methylamphetamine for Nikolic (‘the uncharged act’).
1 September 2014
[28] Call 332.
[29] Calls 334, 336 and 337.
On the following day, Nikolic made the following telephone call[30] to the accused at 1.49:54pm:
[30] Call 393.
MALE1     (to background) _____________________
MALE2     How are ya?
MALE1     (to phone) Hey bro.
MALE2     What’s going on?
MALE1     Can I come and see you, fuckin’ … about … six thirty?
MALE2     Six thirty? Yup.
MALE1     Six thirty?
MALE2     Six thirty. Yup, no worries.
MALE1     Alright?
MALE2     Yup.
MALE1     Uhm …
MALE2     Alright, mate.
MALE1     … and double –double yesterday.
MALE2     Yup, alright. Yup. So …
MALE1     Plus one. (chuckles)
MALE2     … it, uh … (sniggers)
MALE1     (chuckles)
MALE2     Alright.
MALE1     (laughs)
MALE2     It-it-it … he’ll- he’ll be there.
MALE1     Oh, will he?
MALE2     Yeah. Okay? Six thirty.
MALE1     (coughs) Right oh, mate. You gonna be there?
MALE2     Nah.
MALE1     Fuck __________.
MALE2     Nah. ____________
MALE1     Alright. Double plus one.
MALE2     Alright, mate. No worries.
MALE1     Alright, bro.
MALE2     Okay. See you, mate.
MALE1     Alright, ciao.
(call terminated)

On the prosecution case, Nikolic’s request in this intercepted telephone call for ‘double yesterday plus one’ is a request to the accused to arrange for methyl-amphetamine for Nikolic and is consistent with the amount of methyl-amphetamine thrown by Nikolic when pursued by police.
The prosecution relied on the following evidence to support that inference. First, the circumspect nature of the conversation suggests that Nikolic’s request is not for something Nikolic is prepared to name or discuss over the telephone. Further, the accused does not attempt to clarify the matter with Nikolic. The men also do not specify the quantity of the requested item except in the most oblique terms. On the prosecution case, there is a deliberate amount of caution taken by both men which suggests their discussion related to something illegal such as methylamphetamine. Second, the fact Nikolic needs to ask the accused to obtain the item for him suggests that it is not a readily available commodity, consistent with an illegal drug. Third, the request for ‘double yesterday’ suggests that what was previously given to Nikolic is now gone and is therefore a disposable item such as an illegal drug.
On the prosecution case, and on the basis of the intercepted telephone call, the accused agreed to arrange for the drugs to be provided to Nikolic at the accused’s house in Prospect at 6.30pm. In a later telephone call, the accused indicated he would not be at the house at that time, and would not be back until Wednesday.[31] The accused then telephoned his son Jake Bernhardt and asked him to telephone ‘John’ as in ‘John and Michelle’, and to ask John to ‘check the other phone’. [32] The accused then unsuccessfully attempted to call his son four times[33] and then sent a further text message asking his son to call him, the accused.[34] A short time later (3 minutes) the accused sent a text message to Nikolic telling him ‘Bro, he will be there at 7’.[35] On the prosecution case, the accused’s telephone call to his son, Jake Bernhardt, asking him to contact ‘John’ as in ‘John and Michelle John’ and asking him to ‘check the other phone’ is the accused arranging for Rillo to provide methylamphetamine to Nikolic. This inference is said to be supported by the evidence John Rillo lived with a woman by the name of Michelle and was found in April 2015 in possession of a BlackBerry which could be encrypted.
[31] Call 402.
[32] Call 404.
[33] Calls 405-408.
[34] Call 409.
[35] Call 409.
It is significant on the prosecution case that Rillo’s DNA could not be excluded from two of the plastic bags in which some of the methylamphetamine was packaged.[36] In this way, the accused’s attempts to contact Rillo (through his son Jake Bernhardt) on 1 September 2014, after a request from Nikolic for ‘double yesterday’, followed by a message to Nikolic that ‘he’ will be there at 7pm, supports the prosecution case that the accused arranged for Rillo to provide Nikolic the methylamphetamine the subject of the charge. That the accused did not give his son Jake Bernhardt a message to pass onto Rillo, is also said to support the inference that the accused wanted to contact Rillo about an illegal drug transaction.
[36] Exhibit P31.
Surveillance – 1 September 2014
The prosecution also relied on police surveillance of the accused’s premises at Prospect on 1 September 2014 in support of the prosecution case that the accused arranged for Rillo to provide the seized methylamphetamine to Nikolic.
A surveillance log was prepared by the officers recording their observations.[37] Police officer Crouch at 6.05pm observed a black sedan enter the driveway of the premises. Once in the driveway he could no longer see the vehicle. He could not see if anyone entered or left the vehicle.[38] At 6.06pm, Crouch saw the black sedan exit the driveway and park on the road at the front of the property. Whilst parked on the road Crouch did not see anyone get in or get out of the black sedan, and he did not see anyone approach the vehicle.[39] The black sedan left the front of the property at 6.16pm. The vehicle made a U-turn and travelled east. Crouch did not follow the vehicle.[40]
[37] Exhibit P18.
[38] T41.
[39] T43.
[40] T41.
Rillo was not the registered owner of a black car as at 1 September 2014.[41]
[41] T31-32.
At 6.55pm Crouch observed a black Mercedes sedan with registration (SA) S486 ATW enter the driveway of the property, and remain there until 7.03pm. He could not make any observations of the vehicle once it was in the driveway.[42] At 7.03pm police followed the black Mercedes to Main North Road, Prospect.[43]
[42] T41.
[43] T42.
Arrest of Nikolic
Detective Sgt Blandford arrested Nikolic on 1 September 2014. He pulled over the Mercedes sedan (S486-ATW) at around 7pm on Main North Road, Prospect. Nikolic was the driver and sole occupant of the vehicle.[44] Nikolic was wearing a red hooded jumper. Detective Sgt Blandford asked Nikolic to exit the vehicle and walked him to the back of the car on the footpath side. He reached around to search him from behind and felt an item in the front pocket of Nikolic’s jumper. Detective Sgt Blandford said he felt the item through the jumper and said it was squishy. He described the texture as being like a powder.[45] He said Nikolic twisted his body so that he could not get the item out of the pocket. He told Nikolic to put his hands on the roof of the car. Nikolic then pushed the police officer away and ran towards a side street. Detective Sgt Blandford tried to chase him but slipped on some wet bitumen. He regained his footing and pursued Nikolic on foot down a nearby street, Vaughan Street, Prospect.[46]
[44] T48.
[45] T50.
[46] T49-50.
Detective Sgt Blandford was aware that a motorcycle officer (Senior Constable Wasley) was parked further down the street so he yelled out ‘get him’. While Senior Constable Wasley tried to start his motorcycle, Detective Sgt Blandford continued to pursue Nikolic. They ran west down Vaughan Street and turned left onto Lettie Street, Prospect, where Nikolic stopped. He arrested Nikolic and conducted another search of him but the item he felt earlier in his jumper was no longer there.[47] Detective Sgt Blandford agreed that earlier, prior to pulling over Nikolic’s vehicle and prior to Nikolic getting out of his vehicle, he was not in a position to make any observations of any activity by Nikolic.[48]
[47] T54.
[48] T55.
Senior Constable Wasley was performing general motorcycle duties that night on Vaughan Street, Prospect. He gave evidence that he saw movement around the black Mercedes that attracted his attention. He then saw two people run down the middle of Vaughan Street. He recognised one as a police officer and the other was wearing a red jumper.[49] He started his motorcycle and did a U-turn. While making a U-turn he saw Nikolic cross onto the footpath. He observed that Nikolic’s left arm was out wider than his body and that Nikolic’s hand was open level with his shoulder about one foot away from his left shoulder.[50] He next saw an object ‘bigger than a thimble but smaller than a shoebox’ and light in colour in the air and two feet off the ground. Senior Constable Wasley said the item was a metre and a half left of Nikolic. He said he made his observations within the sweep of the headlight beam and the visibility was excellent.[51]
[49] T58.
[50] T60.
[51] T61.
Senior Constable Wasley saw Nikolic run left along the footpath towards Lettie Street, and onto Lettie Street and stop. Nikolic was then arrested by another police officer.[52]
[52] T62.
Senior Constable Wasley searched the area back towards Vaughan Street including the garden bed of a house on Vaughan Street, Prospect. He located a white object in the centre of the front lawn of that premises.[53]
[53] Exhibit P19, point 8 on the plan; and Exhibit P20 photographs 53-60, 63-64.
Forensic results
Senior Constable Joshua Quinn was the exhibits officer in relation to the items that were located by police on Vaughan Street on 1 September 2014.[54] He was responsible for decanting the package located on the lawn of a house on Vaughan Street, Prospect. There was a plastic bag containing five smaller bags. Each of the five smaller bags contained a substance. The substances were sent to Forensic Science SA for analysis.[55]
[54] See Exhibit P27 - exhibits log.
[55] T111.
There was a total of 138.5 g of substances containing 106.2 g of methyl-amphetamine. More specifically the results were as follows:[56]
15/B14372-17: The crystals weighed 27.7g and contained 21.0g of methylamphetamine.
15/B14372-19: The crystals weighed 27.8g and contained 21.5g of methylamphetamine.
15/B14372-21: The crystals weighed 27.7g and contained 21.5g of methylamphetamine.
15/B14372-23: The crystals weighed 27.5g and contained 20.8g of methylamphetamine.
15/B14372-25: The crystals weighed 27.8g and contained 21.4g of methylamphetamine.
[56] Exhibit P22.
Thus, there was about an ounce of substance in each bag with a purity from 75 to 77% methylamphetamine.
DNA results
The plastic bags in which the methylamphetamine was packaged were submitted to Forensic Science SA for DNA analysis. There was evidence from Ms Rebecca Windram as to the forensic results of DNA testing conducted on those bags. Forensic Science SA was provided with three reference samples from the accused, Nikolic and Rillo, along with four of the plastic bags. A sample was taken from each of the plastic bags and DNA was extracted from each sample. As to the DNA extracted from the plastic bags labelled items 16 and 26[57] there was an inconclusive number of contributors so that the DNA could not be further analysed and no statistical analysis could be undertaken.[58]
[57] Item numbers 15/B14372-16 and 15/B14372-26.
[58] T122-123.
As to the press seal plastic bag labelled item 20[59] (one of the five plastic bags containing methylamphetamine), a swab was taken from the outer surface and inner seal area of the bag. DNA testing was conducted and resulted in a mixed DNA profile with three contributors. Nikolic was excluded from being a contributor.[60] As to Rillo, Ms Windram said that the DNA profile obtained is greater than 100 billion times more likely to have been obtained if Rillo and two unknown individuals are the source of the DNA, rather than three unknown individuals.[61] The accused was excluded as a contributor to the DNA profile.
[59] Item number 15/B14372-20.
[60] T123.
[61] T123-124.
As to the press seal plastic bag item labelled 24[62] (another of the five plastic bags containing methylamphetamine), a swab was taken from the outer surface and inner seal area of the bag with a mixed DNA profile with two contributors. The accused and Nikolic were excluded as having contributed to the DNA profile. The DNA profile obtained is greater than 100 billion times more likely to have been obtained if Rillo and another unknown individual were the source of the DNA, rather than two unknown individuals.[63]
[62] Item number 15/B14372-24.
[63] Exhibit P31.
Ms Windram could not exclude that the DNA was deposited on the press seal plastic bags by secondary transfer rather than Rillo having actually handled the plastic bags from which Rillo’s DNA profile could not be excluded.[64] Ms Windram could not comment as to whether it was more likely that the DNA was deposited by a direct transfer or a secondary transfer.[65]
[64] T128.
[65] T130.
Searches
The prosecution also led evidence as to the police search of premises associated with the accused, Nikolic and Rillo. There were BlackBerry mobile telephones seized from the accused and Rillo from which the prosecution sought to infer that there may have been encrypted messages between the two men which explained their lack of direct communication. There were items seized from Nikolic’s premises from which the prosecution sought to infer that Nikolic was involved in the business of dealing drugs.
Brevet Sergeant West was involved in a search of the accused’s premises at Middleton on 19 March 2015.[66] The accused and Rebecca O’Sullivan were present at the property during the search.[67] Two BlackBerry mobile phones were seized.[68] One of the mobile telephones was seized from the top of a chest of drawers in the main bedroom and was password protected.[69] The other mobile telephone was also located in the main bedroom within an Ikea plastic bag and inside a box underneath the bed.[70] There was a piece of paper with that phone which appeared to have a password.[71] At the time the telephones were found by police, the accused was no longer present at the premises.[72] Brevet Sergeant West agreed that he did not ask either the accused or Ms O’Sullivan whether the mobile telephones belonged to them, nor did he ask either person to provide a handwriting sample.[73]
[66] T74-75.
[67] T75.
[68] T76 and Exhibit P26 – photographs of seized mobile telephones.
[69] Item number BOE6.
[70] Item number BOE8.
[71] Exhibit P26 - see photographs 36-40.
[72] T81.
[73] T81.
On 1 September 2014, Senior Constable Robinson attended at the home address of Nikolic in Andrews Farm and searched the premises. In a kitchen cupboard police located two boxes of plastic resealable bags, and five plastic re-usable tubs.[74]
[74] T72 and Exhibit P24 – photographs of relevant items.
Brevet Sergeant Quinn was involved in a search of the home address of Rillo at Morphettville on 22 April 2015.[75] A BlackBerry mobile telephone was located in the lounge room of the premises.[76] In a kitchen cupboard police also located an empty BlackBerry box.[77]
[75] T112.
[76] T113 and see Exhibit P29 – photographs. The mobile telephone was labelled CAM02.
[77] T114.
BlackBerry telephones
Detective Sergeant Coen gave evidence about BlackBerry mobile telephones. He said an encrypted BlackBerry mobile phone can send email messages that cannot be intercepted by police. A user will draft a message using an encryption program on the phone and then send it. The recipient then uses an encryption code to decrypt the message in plain text.[78] The recipient email address must be authorised by the central authority, usually a private company, and a user can only send messages to approved email addresses.[79] A password is required to decrypt messages and to operate the phone.[80]
[78] T87-88.
[79] T90.
[80] T87-88.
Encrypted BlackBerry mobile telephones can be remotely wiped back to factory settings. To do so, a person needs to contact an email address and request that the phone be wiped, and if that is successful, the administrator of the network will send a message to the phone which wipes it.[81]
[81] T96.
They also have a high degree of anonymity as there is no SIM subscription, and the email addresses usually used are not attributable to a person and would not contain their name.[82]
[82] T95.
Detective Coen said that indicators that a telephone is encrypted include whether it is a BlackBerry model, whether there is a T Mobile Sim card and whether there is a passcode. T Mobile is an overseas telephone provider, like Telstra, Vodafone and Optus, commonly associated with encrypted phones.[83]
[83] T97.
Detective Coen received three BlackBerry mobile telephones labelled BOE6 and BOE8 (seized from the accused’s premises) and CAM02 (seized from Rillo’s premises) which he examined on 9 February 2017. BOE6 did not require a password when he received it and was programmed at factory settings. As to BOE8, when he started up the telephone it required a password. At attempt five or six the phone was wiped. By this time, he had entered two passphrases ‘myhellsend147’ and ‘Myhellsend147’, those being versions of what was written on a piece of paper found with the telephone. The phone displayed a white screen and then reverted back to factory settings. As to the telephone CAM02, Detective Coen tried a common password and it did not work. He did not try any further passwords.
In his evidence, Detective Coen agreed that a non-encrypted phone can use T-Mobile as a service provider[84] and be password protected, the latter being a common feature of all types of telephones. He also agreed that it is common for any telephone to ‘lock’ or be wiped if you continually enter a wrong pass phrase.[85]
[84] T101.
[85] T105-106.
Value of the methylamphetamine
The prosecution relied on the amount and value of the seized methylamphetamine to support their case that Nikolic intended to sell a commercial quantity of the drug and the accused would have been so aware at the time he arranged for Rillo to provide the methylamphetamine to Nikolic.
Detective Everett said that an ounce of methylamphetamine was worth between $9,000 and $12,000 on the illicit drug market in 2014. Further, methylamphetamine that is 80% pure is likely to be closer to the source of the manufacturer and sold at the higher end of the price range as it could be further diluted and on-sold.[86] Detective Everett also gave evidence that items often associated and found with persons engaged in selling drugs included re-useable press sealed plastic bags, plastic tubs and more than one mobile telephone. He also said that participants in the drug trade who engaged in intercepted telephone calls rarely openly discussed drug transactions but used coded terms to disguise either the substance that they were selling or the fact that they were making a sale, and even use coded terms for the money itself.[87] Such terms could be anything adopted and understood by the participants.[88] The meaning of such codes could be derived from the context of the conversation and any history between the parties.[89]
[86] T117.
[87] T117.
[88] T118.
[89] T118-119.
Defence argument
Defence counsel submitted that the prosecution had not established beyond reasonable doubt that the accused took part in the sale of a controlled drug by arranging for Rillo (or his agent) to provide the seized methylamphetamine to Nikolic at the accused’s Prospect home on 1 September 2014. Defence counsel in effect submitted that the circumstantial evidence upon which the prosecution relied could not exclude other possibilities consistent with the accused’s innocence.
Analysis
The prosecution case relied heavily on a particular interpretation of the intercepted telephone calls between the accused and Nikolic, and between the accused and others. However, the inferences sought to be drawn from those calls are not readily apparent from the content of the conversations themselves, and relied on the calls being considered in combination with other pieces of circumstantial evidence.
The prosecution sought to establish that Nikolic’s request of the accused on 1 September 2014 for ‘double yesterday’; ‘double plus one’ was Nikolic asking the accused to arrange for Rillo to deliver ‘double plus one’ the quantity of the drug previously delivered to Nikolic on 31 August 2014. For that reason, the prosecution alleged that on the previous day the accused had been involved in arranging for Rillo to provide Nikolic with methylamphetamine. The significance of the accused involving Rillo in the alleged drug transaction on the previous day was Rillo’s DNA could not be excluded from the packaging of the methyl-amphetamine in Nikolic’s possession on 1 September 2014.
There was however no other direct or compelling evidence of any such earlier drug transaction on 31 August 2014. There was certainly a request by Nikolic to the accused on 31 August 2014 for ‘same, same’. However, there was no elaboration or surrounding detail in the telephone calls as to what is meant by those words ‘same, same’ and no other evidence as to their relationship generally from which to infer that Nikolic was requesting methylamphetamine when he asked for ‘same, same’.
There was evidence that the accused shortly after having received the request from Nikolic for ‘same, same’ tried unsuccessfully to telephone Rillo, and then asked his son to try and contact ‘John and Michelle, John’ consistent with ‘John’ being (John) Rillo. That call was followed by a telephone call from Nikolic to the accused during which the accused told Nikolic ‘yeah, 4 o’clock’, and when asked by Nikolic ‘Where, at yours?’ the accused replied ‘yeah’. However, the timing of the relevant intercepted telephone calls suggests that it is unlikely that the accused had arranged anything with Rillo in respect of a meeting with Nikolic at 4pm. After the accused nominated to Nikolic the time of 4pm, the accused’s son, Dyllan Bernhardt, again telephoned the accused and told him that ‘he said it was flat and he’s got it on charge now’. That is said to be a reference to Rillo. I consider it is unlikely that the accused would have organised a time to provide Nikolic with a drug sourced from Rillo before he had first had direct contact with Rillo and confirmed any such arrangement.

There is insufficient detail in the intercepted telephone calls of 31 August 2014, without more, to infer that the accused on that day arranged for methyl-amphetamine to be provided to Nikolic or that Rillo was involved in any such arrangement. Even taking into account all of the evidence, and the improbability of Nikolic having made a request from the accused on two consecutive days, and on each day the accused having tried to make contact with Rillo, combined with the evidence that Rillo’s DNA could not be excluded from two of the packages containing methylamphetamine seized from Nikolic on 1 September 2014, I am not satisfied the accused arranged for Rillo to provide Nikolic with methyl-amphetamine on 31 August 2014 or that Rillo was involved in the accused providing any item to Nikolic on that day. Nor am I satisfied that the request by Nikolic to the accused for the ‘same, same’ necessarily referred to methyl-amphetamine.
The most that can be said about the intercepted telephone calls of 31 August 2014, are that they are not inconsistent with the prosecution case as to the accused having committed the charged offence on 1 September 2014. The quantity of seized drug (5 ounces) is not inconsistent with the request for ‘double plus one’. That there is a known association between Rillo and the accused as demonstrated by the intercepted telephone calls of 31 August 2014 is consistent with Rillo’s DNA profile having not been excluded from the DNA profile extracted from some of the packaging of the seized drug, and the prosecution case.
However, there were several features of the evidence as to the events of 1 September 2014 which, to varying degrees, undermined the circumstantial case against the accused. They are as follows.
First, the intercepted telephone calls themselves between the accused and Nikolic were short, vague and the language used was opaque as to the topics discussed. Whilst as much is consistent with a discussion about an illegal transaction, there was nothing from the conversations themselves to support an inference that the conversations were about methylamphetamine or a controlled drug. There was little context or background to the calls which could assist in deciphering their meaning. Further, there was no evidence as to the larger association or history between the accused, Nikolic and Rillo to provide a greater context to the conversations.
Second, the surveillance evidence did not entirely support the prosecution’s case. On the basis of the intercepted telephone calls, the accused had arranged for Rillo (or his agent) to deliver methylamphetamine to the accused’s home at Prospect, first at 6.30pm, then at 7pm.[90] According to the intercepted telephone calls, the delivery time was changed by the accused from 6.30pm to 7pm when he sent a SMS to Nikolic at 6.17pm.[91] Yet, a black sedan arrived at the premises at 6.05pm and left at 6.16pm; that is, before the time was changed to 7pm. The black sedan never returned to the premises, nor did any other car except that of Nikolic.
[90] Exhibit P2, Calls 393, 403 and 410.
[91] Exhibit P2, Call 410.
The black sedan is out of police view when it is parked in the driveway from 6.05pm to 6.06pm. On the prosecution case, Rillo or his agent must have left the methylamphetamine secreted in the driveway or handed it to a third party (at a time before the accused tells Nikolic that the delivery time has been changed to 7pm). If that is the case, there is no explanation for why the accused has changed the delivery time to 7pm. There is also no explanation for why Rillo or his agent waited on the road at the front of the house until 6.16pm (and not immediately left or waited until 7pm). Further, I consider it is unlikely a person would have left such a valuable commodity unattended in a driveway which is accessible and visible from the street.[92]
[92] Exhibit P33, photographs of premises at Prospect.
If Rillo (or his agent) had delivered the drugs to a third party in the driveway, again there is no explanation as to why Rillo would have waited in his vehicle parked at the front of the house. Further, there is no sign of movement or occupation at the house or in the front yard whilst Rillo is parked in the driveway. Nor is any person observed approaching the vehicle or leaving the vehicle when it is parked on the road in front of the house.
There was also evidence Rillo had no known connection with a black sedan.
Nikolic did not arrive at the accused’s premises until 6.55pm. If the drugs were secreted in the driveway, there would have been no need for Nikolic to remain in the driveway for eight minutes. As to the suggestion that there could have been a third party who, unobserved by the police, handed Nikolic the drugs, again, there was no sign of movement or occupation at the house or in the front yard whilst Nikolic was parked in the driveway.
To my mind, the movements of the driver of the black sedan and Nikolic are more consistent with any purported delivery of drugs not having occurred because of confusion as to the timing of the meeting.
Further, on the basis of the intercepted telephone calls, it appears that on 1 September 2014 the accused contacted his son Jake Bernhardt and asked his son to tell ‘John and Michelle John’ to ‘check his other phone’. I accept that the accused was referring to Rillo given Rillo was living with a woman named Michelle and in April 2015 a BlackBerry telephone was located at his home. However, there is no direct evidence of the detail of any message from the accused to Rillo as the data from the mobile phones of the accused could not be extracted or analysed. Nor do I know anything about the relationship between the accused and Rillo beyond the intercepted telephone calls; or if Nikolic had any relationship or association with Rillo. In those circumstances, I am not persuaded that much can be drawn from the combined facts of Nikolic having made a request from the accused on two consecutive days, and on each day the accused having tried to contact Rillo, and Rillo’s DNA not having been able to be excluded from two of the packages containing methylamphetamine. Nor can I accept there is an objective improbability in all those events having occurred if the accused was not arranging for Rillo to supply Nikolic with the seized methylamphetamine.
Ultimately there are features of the evidence which undermined the prosecution case that the accused arranged for Rillo or any person to provide the seized methylamphetamine to Nikolic, in particular the surveillance evidence and the limited compass of the intercepted telephone calls.
Findings
I am satisfied that there was telephone contact between the accused and Nikolic on 1 September 2014 in which Nikolic requested something from the accused in coded terms and that item or items may well have been of a nefarious or illegal nature.
I am also satisfied, on the whole of the intercepted telephone calls and the surveillance evidence, that the accused had organised for a person (not necessarily Rillo or his agent) to meet with Nikolic at the accused’s Prospect premises on the evening of 1 September 2014 and for that person to deliver Nikolic an item or items.
I am satisfied beyond reasonable doubt that Nikolic, after being stopped by police on Main North Road, was in possession of a plastic bag inside which were five plastic bags with a total of 138.5 g of substance containing 106.2 g of methylamphetamine. I am satisfied that Nikolic, whilst being pursued on foot by police, threw the methylamphetamine onto the front lawn of a premises on Vaughan Street where it was subsequently seized by police.
As to the central issue in dispute in the trial, I am not satisfied beyond reasonable doubt that the accused arranged with Rillo or another person to provide Nikolic with the seized methylamphetamine. I have a doubt on this element of the offence because of the limited and opaque nature of the intercepted telephone calls; and the fact that there was no evidence that a person left an item at the accused’s address (either by giving it to a person or leaving it on the property) and no evidence any such item was in fact collected by Nikolic. Indeed, on the evidence, and for the reasons outlined above, as much seemed unlikely.
Ultimately, I cannot exclude the reasonable possibility that Nikolic requested the accused to arrange for the delivery of something other than methylamphetamine to Nikolic. Nor can I exclude that a person who was tasked to deliver the item never did so and it was not collected by Nikolic. I cannot exclude as a reasonable possibility that Nikolic already had the methyl-amphetamine seized by police before he attended at the accused’s house.
Ultimately, I am not satisfied beyond reasonable doubt that the accused arranged for methylamphetamine (rather than some other item) to be delivered to his premises to be collected by Nikolic. Nor am I satisfied that Nikolic in fact collected methylamphetamine (or any other item) from the accused’s premises. In those circumstances, I am not satisfied beyond reasonable doubt that the accused trafficked a controlled drug by taking part in the process of sale and the second element of the offence is not proved.
Verdict
I find the accused not guilty of the charge.