R v Cardy (No 2)
[2018] SADC 18
•8 March 2018
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CARDY (No 2)
Criminal Trial by Judge Alone
[2018] SADC 18
Reasons for the Verdict of Her Honour Judge Davison
8 March 2018
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
Accused charged with one count of trafficking in a controlled drug (methylamphetamine).
Verdict: Guilty.
R v Cardy [2018] SADC 3.
R v CARDY (No 2)
[2018] SADC 18Introduction
Sarah Anne Cardy is charged with one count of trafficking in a controlled drug. It is alleged that she committed this offence on 6 November 2016 at Brompton by having possession of 3.45 grams of methylamphetamine.
A voir dire hearing was conducted in respect of the search that yielded the methylamphetamine located within her handbag, which had been in the foot-well of the car she was seated in as a passenger. I delivered a ruling with reasons in relation to this matter.[1]
[1] R v Cardy [2018] SADC 3.
After my ruling had been delivered, Ms Cardy elected for trial by judge alone. The application was granted and the trial proceeded before me without a jury.
The prosecution opened in relation to the trial and then proceeded to tender the statements without objection. There were no submissions made on behalf of Ms Cardy throughout the trial. Ms Cardy did not give evidence.
Directions of Law
The prosecution bears the onus of proving the guilt of the accused at all times. The standard of proof is beyond reasonable doubt. In this case, the prosecution have the benefit of the presumption in relation to sale. The accused has not sought to rebut that presumption. In these reasons if I use the words proved, established or satisfied, then in each case I mean to an extent that excludes reasonable doubt.
The accused is presumed to be innocent of the charges unless and until the evidence that I accept satisfies me that each element of the offence has been proven beyond reasonable doubt. If the evidence that I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence charged, then she remains innocent and I must return a verdict of not guilty.
I must assess each of the witnesses’ statements as to their truthfulness and reliability. I must determine whether I can rely upon the evidence that a witness has given. I can reject or accept all or part of the evidence.
The accused did not give evidence. She was not obliged to give evidence. I must not draw any adverse inference against her or the case that she presents as a consequence of her not giving evidence.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, prejudice or fear, and not be influenced by public opinion in relation to the matter.
Evidence
The prosecution tendered statements of the witnesses. These statements are:
Exhibit Number Statement Witness Date P1 SAPOL Constable Daniel James WASLEY 5 February 2017 P2 SAPOL Senior Constable Sacha YAN 7 February 2017 P3 SAPOL Constable Ashley LIGHT 7 February 2017 P6 SAPOL Senior Constable Mark DUNN 8 February 2017 P7 SAPOL Detective Brevet Sergeant Michael WILCKENS 4 February 2017 P8 SAPOL Detective Brevet Sergeant Rodney Charles HANNAM 5 February 2017 P9 SAPOL Constable Stacey Anne JACOBS 18 January 2017 P10 SAPOL Senior Constable Alan GRAHAM 3 May 2017 P11 FSSA Certificate of Analysis Catherine WALL 6 February 2017 P12 FSSA Certificate of Analysis Catherine WALL 21 February 2017 P13 FSSA Certificate of Analysis Catherine WALL 20 June 2017 P14 FSSA Phillippa HEARNDEN 5 June 2017 P15 SAPOL Detective Brevet Sergeant David TISS 20 August 2017 Elements of the Offence
The offence of trafficking in a controlled drug has three elements, each of which must be proven by the prosecution beyond reasonable doubt.
First, it must be proved that the substance the accused had was a controlled drug. Methylamphetamine is a controlled drug.
The second element is that it must be proved that the accused trafficked in methylamphetamine. In this case, the allegation is that she had the drug in her possession with the intention of selling it. If I am satisfied that she had it in her possession, then the prosecution has the benefit of the statutory presumption. The trafficable quantity of this drug is two grams. If she had possession of more than two grams, then the law presumes that she had it in her possession for the purpose of selling it, unless she proves that she had it for some other purpose. The accused does not have to satisfy me beyond reasonable doubt that her purpose was not to sell it, rather, it is sufficient if she persuades me that it was more likely than not that her purpose was other than to sell the drug. She has not sought to persuade me.
Thirdly, it must be proved that when the accused possessed the methylamphetamine, she did so knowing that the substance involved was methlyamphetamine, or at least a controlled substance.
Findings of Fact
Having considered each of these statements and taking into account the address of Ms Park, I accept that at about 3:20am on Sunday 6th November 2016, Constable Wasley and Senior Constable Yan were on patrol in Brompton. At that time, they observed a silver Hyundai, in which Ms Cardy was a passenger, drive past them. They then stopped the motor vehicle as it was unregistered and uninsured. After the vehicle was stopped, further police officers were called to assist as both occupants of the vehicle were female. A handbag that had been located in the foot-well of the passenger seat in which Ms Cardy was seated was searched. This bag was a black Adidas bag and inside it was a black sliding container. Inside that container were press-seal plastic bags containing a white crystalline substance that was later analysed and found to be methamphetamine. One bag held crystals weighing 3.33 grams that contained methamphetamine, and the second bag held crystals that weighed 0.12 grams and contained methamphetamine. The total weight of the crystals is therefore 3.45 grams. Also located within the black Adidas bag was a wallet and other personal property belonging to Ms Cardy, as well as a Victorian driver’s licence in the name of Ms Cardy.
Ms Cardy was spoken to by the police. A record of interview has been tendered[2] and a transcript provided. During the course of the interview, Ms Cardy admits that the handbag was hers. In response to a question about the ownership of the drugs, she responded ‘no comment’. When asked later in the interview whether she was going to answer any questions in relation to the drugs, she responded ‘no’.
[2] P5A.
After the search in Brompton, the police attended at her home in North Haven. There were CCTV cameras at the front of the address and also a device near the letter box that appeared to be a laser sensor which would advise if someone passed the fence line.
Ms Cardy’s bedroom was searched. Inside the wardrobe were drawers containing hundreds of empty press-seal bags, most of which contained very small amounts of white residue. A sample of these bags were seized. A large number of syringes, a black IPhone, and digital micro scales were also located. The scales were tested and amphetamine was detected on their surface.[3] A DNA sample was also taken from the scales. It revealed a mixed DNA profile with four contributors. It is more than a hundred billion times more likely that Ms Cardy is a contributor than if she is not a contributor to that profile.
[3] P12.
Discussion
In this case, I am satisfied that the prosecution have proved each of the elements beyond reasonable doubt. The substance that was located within the handbag of which Ms Cardy admitted possession was methylamphetamine. Methylamphetamine is a controlled drug. I am satisfied that she was in possession of the drug. Ms Cardy admitted possession of the handbag. In addition, within that handbag located in the foot-well of the car where she was seated, were personal documents belonging to Ms Cardy as well as a driver’s licence in her name.
Further, I am satisfied that she had possession of the drug with the intention of selling it. She had more than two grams of the drug, and the law presumes that she had it for the purpose of sale unless she persuades me that it is more likely than not that she did not have it for that purpose. She has not sought to persuade me of that. The presumption is therefore not rebutted. The prosecution have proven this element beyond reasonable doubt.
Thirdly, I am satisfied that she knew the substance that was in her possession was methylamphetamine, or at least a controlled substance. The subsequent search of Ms Cardy’s premises revealed significant indicia of drug use. This included scales with her DNA and traces of methylamphetamine. I am satisfied that Ms Cardy had, as she says in the record of interview, ‘significant exposure to the drug over a period of time.’ In the record of interview, she made admissions to having the scales so that she can ‘weigh up when we get gear so that we know how much we’re having’. She also makes admissions to having various bags to ‘obviously to make up what we’re going to have for that rage or whatever when we have a rage’. She goes on to say ‘you know so we don’t mix up a gram, do you know what I mean?’ She also makes admissions to having ‘a small amount of methamphetamine in bags located as she had previously had a shot and it hadn’t been mixed properly’. There is simply no doubt that Ms Cardy has extensive knowledge in relation to the substance that is methylamphetamine.
For all of the above reasons, I am satisfied beyond reasonable doubt that Ms Cardy is guilty of the offence of trafficking in a controlled drug.
Verdict
Guilty.
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