R v Busutill - [2005] SADC 155

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BUSUTILL
Criminal Trial by Judge Alone
Reasons for the Verdicts of His Honour Judge Rice
28 November 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
Charges of possessing cannabis for sale, possessing methylamphetamine for sale and unlawful possession - police entered, searched and seized drugs and cash from the home of the accused - accused admitted possession of the 185 grams of cannabis, mostly contained in resealable bags - he admitted possession of 17.7 grams of methylamphetamine (there being a total weight of the drug and other powder of 53.5 grams) contained in 99 small resealable bags and he also admitted possession of $4,970 cash - accused gave evidence that the drugs were for his personal use and that he came into the possession of the cash by lawful means.
Held: accused has failed to discharge the statutory presumption on each count - the accused is convicted on each count.
Controlled Substances Act 1984 s 32(3), referred to.
R v Granger (2004) 88 SASR 453; R v Atkinson [2004] SASC 332; R v Zampogna (2003) 85 SASR 56, considered.

R v BUSUTILL
[2005] SADC 155
Introduction

The accused is charged with three offences, namely, possessing cannabis for sale, possessing methylamphetamine for sale and unlawful possession of cash. The amount of the drug in each case is above the prescribed quantity. It is not disputed by the accused that he possessed the drugs and cash. His evidence was that the drugs were for his personal use and that the cash came into his possession by lawful means. The factual question with respect to each charge is whether, assuming all other ingredients are proved, the accused has discharged the onus the law places upon him. The ultimate question, as always, is whether any of the charges have been proved beyond reasonable doubt.
The issues are as follows:-
1.What are the important features of the evidence with respect to each charge?
2.What is the evidence of the accused on those and other features?
Circumstances of the alleged offending
On 20 October, 2003, a number of police officers went to the accused’s home at 36 Kurrajong Avenue, Surrey Downs. An entry, search and seizure was conducted at that address pursuant to a General Search Warrant in the possession of Detective Senior Constable Biermann. I have dealt separately with a challenge to the use of that Warrant. I found it to have been properly used and that the entry, search and seizure were lawful.
In the shed at the rear of the house the accused showed the police an esky on a table. Inside the esky the police located 29 resealable bags containing female cannabis. The contents of those bags weighed 82 grams. There were also two other bags containing cannabis weighing 19.5 grams and 83 grams respectively. The total weight of the cannabis was above the prescribed quantity for cannabis of 100 grams.
In the presence of the accused, and filmed on video, the laundry of the house was searched. Three aerosol-type cans, located in a laundry basket, were found to have been modified such that each had a base that was able to be unscrewed. Obviously they were not pressurised. Their outward appearance was that of “Scotchgard”, “Pledge” and “Ajax” cans. Each of the cans was found to contain various quantities of methylamphetamine, mostly in small resealable plastic bags. Most of those plastic bags were contained within small plastic capsules known as “Kinder Surprise” capsules.
The Scotchgard aerosol can had four Kinder Surprise capsules containing 10, 16, 5 and 15 small bags of methylamphetamine respectively.
The Ajax can had four Kinder Surprise capsules containing 6, 10, 10 and 14 small bags of methylamphetamine respectively.
The Pledge can had one Kinder Surprise capsule containing 11 small bags of methylamphetamine. Also inside that can was a Glad sandwich bag and two small plastic bags, each of the small bags containing methylamphetamine. The Glad sandwich bag contained a much larger amount of the powder (see photograph 10 of exhibit P16), which turned out to be Epsom Salts.
In all, the police located 99 small resealable bags within the cans, 97 of which were found inside Kinder Surprise capsules and two bags were loose.
The total weight of powder was 53.5 grams, of which the methylamphetamine weighed 17.7 grams, being well in excess of the prescribed quantity.
Cash money was found on the accused and in the house. Cash totalling $1,465 was found in a pocket of the accused. There was no doubt about his knowledge and possession of that money.
When the accused’s bedroom was being searched, he said all the property in the room belonged to him, with the exception of his partner’s clothes (exhibit P14, page 18). There were five separate amounts of cash found in that bedroom: $1,000 in the middle drawer of the left bedside table, $1,000 in a shoe near the wardrobe, $655 in a tallboy, and two amounts, $250 and $400, in a drawer in the right bedside table. As I understand what the accused told the police, the money located was cash money earned from his employment and some that had been set aside to pay his tax but remained unbanked.
A further $200 was found on a kitchen bench. It is not entirely clear whether the accused said to the police that all the money in the house was his (exhibit P14, page 32), but the case proceeded on the basis that it all belonged to him.
The amount charged of $4,970 represents the total of all money found. Constable Nash, the officer in charge of the investigation of the accused, said he formed the suspicion that the cash (or most of it) was the proceeds of the sale of amphetamine bearing in mind the amount of amphetamine found during the search.
In addition to the drugs and money, a large quantity of alcohol was found scattered throughout the house. Although there was some wine, it was mostly various types of spirits. The spirits represented the greatest value of the alcohol. In respect of the alcohol, the accused said he had accumulated it over a number of years, mostly buying it, although some were presents. The accused is not charged with any offence arising from his possession of the alcohol. However, it is alleged against him that he sometimes sold methylamphetamine for alcohol.
Two sets of scales were also located at the house. One set, Arlec electronic scales, was found in a storage cupboard near to the kitchen, and the other, Sartorius electronic scales, was found in the second bedroom.
The Arlec scales were found to have a residue of lignocaine and cannabinoid. Even if I considered that the evidence relating to the residue of cannabinoid was properly admissible, I would have no regard to it because of the real prospect of contamination from the gloves of the searching police officers who had handled the cannabis in the shed.
Something needs to be said about the evidence given by the scientist from the Forensic Science Centre, Ms Ward. Concerning the methylamphetamine analysis, she undertook the work herself and there has been no challenge to the results. As mentioned, the accused admits it is methylamphetamine but says it is for his own use.
However, concerning the cannabinoid testing, the scales were swabbed and the swab analysed by other forensic scientists from the Centre. Ms Ward, in that regard, did not undertake any of the work herself. In giving evidence, she acknowledged that she was simply the “reporting officer”, that is, to report upon the work undertaken and completed by another scientist. She said that it was commonplace, due to the volume of work, for one scientist to do the work and another to report. Such a procedure is quite unacceptable and the evidence is the plainest of hearsay. The rules of evidence, in the absence of a statutory sanction, do not permit evidence to be given in this way. I rule that the evidence is inadmissible even though no objection was taken at the time.
It is also alleged by the prosecution that no implements were found that might be used for smoking cannabis or ingesting methylamphetamine. There were no syringes found, although the accused said in evidence that he would mostly take it orally. He also said in evidence that there were some there that the police failed to locate.
As the video of the search clearly shows, it is simply not right to say that no instrument or implement capable of being used for taking illicit drugs was found. Constable Nash can be seen to locate a pipe in the sock drawer of the tallboy. Why he put it back in the drawer and later signed a declaration saying there were no such implements was never satisfactorily answered and reflects badly upon his credit. Finding the pipe supports the case for the accused.
What are the important features of the evidence with respect to the charge of possessing cannabis for sale?
The total amount of cannabis in the possession of the accused was about 185 grams. The prescribed amount for cannabis is 100 grams and therefore the presumption in s 32(3) of the Controlled Substances Act 1984 is activated. I will return to this later.
One of the important features of the cannabis is that it is contained in 29 resealable plastic bags. The six small bags randomly selected for weighing weighed between 2.1 grams and 3.2 grams. As mentioned, the other two bags contained 19.5 grams and 83.5 grams respectively. It should also be mentioned that the cannabis was not really secreted. The bags were in an esky that was easily accessible in the shed.
At the end of the day it must also be said that it is not a particularly large amount. As Mr Webber acknowledged, the total amount could have come from a single plant.
What are the important features of the evidence with respect to the charge of possessing methylamphetamine for sale?
The prosecution rely upon the sheer number of small resealable plastic bags in combination with the quantity of the drug and the way it was secreted. It was accepted by both parties that the quantity of the drug was above the prescribed amount and also attracts the presumption within s 32(3).
The prosecution also relies upon the cash in his pocket and elsewhere plus the large amount of alcohol in the form of spirits. It is alleged that the spirits were a form of currency when the accused sold either drug but particularly the methylamphetamine.
The value of the spirits is a relevant matter. Even on the accused’s evidence the value of the spirits was in excess of $10,000. Some of the individual bottles were very valuable, for example, Johnnie Walker Blue Label at about $300 per bottle, there being three of them.
The quantity of individual spirits and individual brands is also relevant to the likelihood that the accused simply bought them or was given them as presents. For example, there were over five dozen 700 ml Johnnie Walker Red Label, 17 bottles of 700 ml Johnnie Walker Black Label, 16 bottles of St Agnes Brandy and 12 bottles of Baccardi Rum. There were about 150 bottles of Scotch Whisky of varying sizes. In all there were hundreds of bottles of spirits.
What are the important features of the charge of unlawful possession
Alongside the allegation that alcohol was used as currency to buy drugs is the accused’s possession of cash in his pocket and inside the house. There was almost $5,000 in total. The allegation by the prosecution is that the possession by the accused of the cannabis, methylamphetamine, cash and alcohol is an incident in his involvement in an ongoing commercial drug enterprise. There are some hidden dangers in such an approach. The first is the risk of circuitous reasoning, namely, that the cash and excessive amounts of alcohol are from the sale of drugs, therefore the drugs are for sale. Put around the other way, these drugs are for sale because the cash and alcohol are the proceeds of previous sales.
There is also the danger of impermissible reasoning that there have been previous sales and therefore these drugs are for sale or that the accused is the type of person who sells drugs and therefore these drugs are for sale. I have not permitted any such form of reasoning to influence my decisions.
Even if I thought the accused was guilty on count 3, that could not be used in aid of guilt of either other count unless I was satisfied that the money came into the accused’s possession as the result of (mostly) the sale of drugs.
Returning to the aspect of the cash and alcohol, in my view the proper approach in this instance is to initially consider the evidence, including the accused’s evidence, without reference to them.
What is the evidence of the accused on these important features and other features of the case?
Broadly speaking, the accused acknowledges possession of each of the drugs but says they were for personal use.
Concerning the cannabis, he said he had a pipe in the bedroom (as seen on the video), another in the lounge and possibly one in the shed. I cannot criticise the accused for failing to point out any pipes or syringes because he had a right not to answer questions, which would include showing the police potentially incriminating material. It would involve a diminution of that right to draw any inference adverse to him for exercising that right.
The accused said he had been using drugs for many years and that the cannabis was in various bags because that is the way he bought it. He was looking to buy two or three ounces but the seller only had it in that form. An ounce is equivalent to about 28 grams. He said he paid $700-$800 for what he bought. He was not prepared to wait to buy in bulk.
The onus rests on the accused to demonstrate, on the balance of probabilities, that he had the cannabis in his possession other than for sale: see, more recently, R v Zampogna (2003) 85 SASR 56, R v Granger (2004) 88 SASR 453 and R v Atkinson [2004] SASC 332. His evidence was that it was for personal use. The accused has not demonstrated, on the balance of probabilities, that the cannabis was other than for sale. Although, overall, it was not a large quantity of cannabis, the fact that it was in so many small plastic bags suggests that it was for sale. Further, I was not impressed with his answer that he was not prepared to wait to buy in bulk. If he bought in bulk, he would have been in a position to negotiate a better price. In addition to that, if, as the accused said, he had been using drugs for 20-25 years, I infer he would have known someone from whom he could buy it all in bulk.
One additional matter. The fact that some was in bulk and some in bags suggests it was bagged for sale.
I find proved, beyond reasonable doubt, that the accused had the cannabis, or most of it, in his possession for the purpose of sale. He may have smoked a minor amount, but that would have been quite insignificant compared with the total. He has not displaced the statutory presumption.
The accused is convicted on count 1.
The cash and the alcohol have not played any part in the decision.
Concerning the methylamphetamine, I now give that separate consideration. I am not influenced by the finding I have made concerning the cannabis.
The accused gave evidence that he had been a long-time user of methylamphetamine. I am prepared to accept that he was a sometimes user of methylamphetamine but not in the quantities and of the value he asserted in evidence. I return to this topic later.
One of the most important aspects of the possession of this drug is that it was in small plastic bags, although the weights varied. Again, this is the way in which the accused said he bought it. In fact, he said he bought the drug in 150 of the small resealable bags and not in a bulk quantity of the drug itself (and then place it himself into bags).
He said he was using four grams of amphetamine per day, sometimes more (TP221), supplemented by Epsom Salts. On that basis, the accused agreed that the 99 bags remaining would have lasted about two weeks. However, the accused also said he bought the 150 bags for between $6,500-$7,000 about eight months earlier. He also said that in that period he bought half an ounce for $2,000 plus “bits and pieces” (TP224). It is clear to me that, on the basis of a use of about 4 grams per day, he would have needed to buy much more amphetamine or, alternatively, he has greatly exaggerated his use.
In other evidence the accused said he was spending “probably $300” every day on amphetamine (TP224). That would mean he was spending about $100,000 per year on amphetamine. He said he did not concern himself with the cost, he had the cash and spent it.
In my view, the accused has grossly exaggerated his amphetamine use to endeavour to account for his possession of a large number of bags. Even having regard to undeclared income, he could not have afforded, in a practical sense, that level of use having regard to normal household expenditure. His assessable income by the year ended 30th June, 2005 was a modest $55,013 (D27), yet he was supposedly working 50-60 hours per week and getting $450 per day (TP229). I also do not accept he was working those hours.
The other aspects of the methylamphetamine storage that I do not accept relate to the use of the aerosol cans and Kinder Surprise capsules. He said he used the aerosol cans because they were a means of safely hiding them from his child or children because at most they would be in the laundry to throw their clothes in (TP202). The accused must have had a safer place in the house to hide such a dangerous drug.
Further, there was no need to put the plastic bags into Kinder Surprise capsules and then place the capsules into three aerosol cans. All of the small plastic bags, even assuming there were 150 of them, could easily have fitted into one aerosol can if the capsules were not used. The capsules were simply unnecessary. When the accused supposedly took amphetamine out (to work or otherwise) he would take one or two small plastic bags. The use of capsules suggests that was the way he carried them for sale.
Again the onus rests on the accused to demonstrate, on the balance of probabilities, that he possessed the methylamphetamine other than for sale. Not only has he not displaced the statutory presumption, I am positively satisfied, beyond reasonable doubt, that he possessed the majority of it for sale. He may have used some himself but most was for sale. Overall I found him to be a very unsatisfactory witness.
The accused is convicted on count 2.
I reach that conclusion quite independently of the money found in his possession and the vast amount of spirits to be found in the house.
I do, however, make these observations concerning the receipts tendered by the accused to show that he continued to be a buyer of alcohol, particularly spirits, since his arrest in 2003 (D25). The accused said he always paid cash since his arrest and kept the receipts. Prior to his arrest he said he did not keep receipts because they were not deductible. The accused said he used cash, paper money, to pay for the recent purchases, did not have a credit card and did not know how to use EFTPOS (TP253). The problem with that account is that many of the purchases were made either using EFTPOS or using a credit card. Various cards have been used for that purpose.
I also note that, on 24 June, 2004, the accused claims he made two purchases, one at BWS Welland and the other at Golden Grove Liquor Land. The first, at Welland, was made using a VISA card at 17.41, the other was a cash payment at Golden Grove at 17.47, six minutes apart!
These matters further adversely affect the accused’s credibility.

I move now to a consideration of the money for the purposes of count 3. Constable Nash said he had a suspicion that all of the cash found at the accused’s home was the proceeds of the sale of amphetamine. He said he formed that view, most significantly, because of the amount of amphetamine located. I find that Constable Nash did hold that suspicion and that it was reasonable for him to have held it. I find that he held that suspicion before the accused was charged.
Pursuant to s 41(2) “[i]t is a defence to a charge for an offence against this section to prove that the defendant obtained possession of the property honestly.” That sub-section places the onus on the accused on the balance of probabilities.
Essentially, the defence of the accused is that he came by the money honestly as the result of his work as a painter and decorator. Some of it was tax money and it had not been banked. I do not draw any adverse inference against him for not calling his wife on this or any other count. I have no reason to doubt that the accused has worked for some years as a painter and decorator. His financial records support that view. I also have no reason to doubt that some of the people for whom he does work would pay in cash because no GST has been added.
The accused also said he was a sub-contractor working on an hourly rate or at a fixed price for a particular job. It is unlikely that such a contractor would pay in cash because the contractor would normally pay by cheque and obtain the deduction as part of the cost of the job. I appreciate cash could be used but that is unlikely. The opportunity to be paid in cash would more likely present itself for smaller, private jobs, perhaps on the weekend, when the accused would deal directly with the customer.
In this case, in my view, the likelihood is that most of the money is the proceeds of the sale of methylamphetamine.
The accused has not satisfied me, on the balance of probabilities, that he came into possession of the cash (or the major portion of it) by lawful means. I am satisfied of this charge beyond reasonable doubt.
The accused is convicted on count 3.