R v Caridi No. DCCRM-02-1267

R v Vincent Caridi
[2003] SADC 45
Judge Muecke
Criminal

At about 2.30 pm on Thursday 11 July 2002 a police officer was travelling north on Days Road, Regency Park when she saw the accused Vincent Caridi standing next to a white Nissan Bluebird. As the police vehicle in which she was travelling approached the Nissan she saw four people walk away from the accused and walk east across Days Road. She stopped the police vehicle and approached the accused who was at the driver’s side door of the vehicle. She asked the accused to come back to her vehicle and she there had a short conversation with him. She could smell cannabis on the accused and when she questioned him about this the accused said: “I’ve got a little bit in the car that’s what you can smell”. She asked another police officer to come to the scene to assist her in conducting a search of the accused.
Another police officer attended at the scene at about 2.45 pm that day. When he arrived he saw the accused standing next to the Nissan which was facing north on the western side of the road. He also saw a green Holden sedan parked on the opposite side of the road facing south. There were three males and one female standing beside that car.
As that police officer searched the accused the accused removed a packet of cigarettes from his pants pocket. The police officer looked in the packet and found 12 plastic press-seal bags containing a brown paste which he believed to be amphetamine. When he asked the accused “what’s this?”, the accused replied “you weren’t supposed to find that”.
When tested the brown paste was found to be methylamphetamine. The weights in each of the 12 bags ranged between .07 grams and .20 grams, and each was about 23% to 25.5% pure. Accordingly, the weight of methylamphetamine in each bag ranged between .01 grams to .04 grams.
The accused was interviewed on 11 July 2002. He was given his rights and he spoke to a solicitor. The accused informed police that the advice given to him was that he was not to say anything. The police officer said that in view of that she was not going to ask the accused any questions. She indicated that she was only going to refer to her notes as to the events that occurred on Days Road, Regency Park. The police officer then said:
... At about 2.30 today we stopped you on -, oh we didn’t stop you, you were on Days Road, Regency Park.
AMm, yes, mm hm.
QYou were in a white Nissan Bluebird, or you were outside a white Nissan Bluebird.
AYeah.
QYou were talking to about four, four persons - those persons were crossing the road.
ANo, not that’s not exactly what happened. I was inside the car, the girl just got out and the other people were already across the other side. They were going to pick up her mother and she went for, she was gonna go for the ride.
QOkay. Okay. When I got there, Vince, I saw you, I think you were outside the car, okay. I approached you and, and you came to the back of the car and stood by the back of the car.
AMm hm.
QI asked you for some identification. I then said ‘I can smell cannabis’.
AMm hm.
QAnd you said ‘I’ve got a little bit in the car, that what you can smell.’
AMm hm.
QI then called for another patrol because I believed at that stage that you may have more cannabis on your person.
AYes, fair enough.
QYou went over to the to the wall and you sat on the wall. A short time later a male officer, patrol officer, came over and he, he searched you –
AMm hm.
QAnd that’s when the- I’ll go through this with you in a minute –
AYeah.
QBut some plastic deal bags –
AYes.
QWere located.
AMm hm.
QYou produced them from your pocket and um, for the video, in a Escort Virginia packet.
AMm hm.
QAlso in your pocket - I’ll just cut these - there’s a sum of cash, 50, 100, 150, 200, 250, 300, 350, 400, 450, 500, 550, 600, 650, 700, 750, 800, 850.
AMm hm.
QEight hundred and sixty dollars.
AMm hm.
QI seized the cash and the amphetamine and I said to you ‘You’re under arrest.’ I said ‘As an arrested person you’re not obliged to say anything and anything you do say may be given in evidence.’ I said ‘Do you understand.’ You said ‘Yes, I do.’ Just put the cash there. All right, Vince, what I’m gonna do now is I’m gonna take out-
AMm hm.
QWhat’s in the Escort packet here.
AYeah.
QJust to show you what was in it.
AYeah, no worries.
QOne with a brown pasty substance in there.
AMm hm.
QOne small money bag. Another two, three-
AThey should be all the same, they’d better be.
QFour, five, six, seven, eight, nine, ten, eleven, twelve.
ATwelve.
QI’ll just place them back. These twelve bags were located on your persons in this Escort packet. This plastic bag with cannabis in, in it-
AMm hm.
QWas produced by you-
AYeah.
QWhile you were standing at the car.
AMm hm.
QAnd a further, a further amount of cannabis was, was-
AYeah ..........
QLocated in this Peter Jackson.
AThat’s not real flash, yeah.
QOkay. Vince, I’m gonna ask you some questions in relation to this, these items. As you understand, you’ve been arrested for unlawful possession of the cash and for po-, possessing prohibited substance for sale.
AMm.
QI’m gonna ask you some questions in relation to that. You’re not obliged to answer them but anything you do say may be given in evidence.
AYeah, okay.
QAre you willing to answer questions.
AIf, if I, if I think it’s the right question I’ll answer it.
QOkay.
AOtherwise no, I won’t.
QOkay.
AOtherwise we don’t have to answer any. Oh she told me not to answer anything. But what I want to know is that, what’s happening with that, ‘cos that’s our food money, that’s the rent money, you know, I’ve got a house to pay for, you know.
QOkay.
ANo-one’s asked me what I do for a job yet either, you know, like what do you think, I’m a drug dealer, what’s what you’re assuming, and that money’s got to be drug money. That’s money that the four people have given me to rent and for food, you know, and I do have a, a wedding car business as well which isn’t real flash at the moment ‘cos two of them are broken down but, you know-
QSo Vince, you’re prepared to answer questions.
ALet’s see what happens.
QOkay.
AMm.
QWell I’m advising you once again that you’re not obliged to answer, answer any questions.
AMm, no, fair enough, I understand.
QAnd if you do so it will be recorded on this video equipment here.
AYeah, all right, mm hm.
QAnd you’re quite prepared, even though you’ve been given legal advice not to answer questions, you’re prepared to answer questions.
AI, I don’t see what I’ve done wrong, you know. I, I had that on me, I gave it to you, I showed it to you, all right, and that was it. This is something that the four of us do once a fortnight, you know. We went and bought it, it’s 360 bucks we paid for it ‘cos if we buy twelve at a time. That’s it. Now if you want me to tell you who sold it to us that’s a different story, you know. And now, now you write down ‘for sale’. Come on.
QOkay, Vince, what’s in, in here.
AWell it’d better be speed, it’s nothing else.
QHow much is there in there.
AThere should be two points per bag, should be. I mean, you know, I didn’t weight ‘em up, who knows.
QHow much is that worth.
AWell like I say, we get it at a reg-, at a cheap price if we buy bags of twelve.
QSo how much does it cost you for the bag of twelve.
AThree hundred and sixty dollars, thirty dollars each....
QOkay.
AAnd like I say, the four of us chip in and buy it. They all shoot up, I don’t, well you can see ....
QWhen you say ‘the four of us’ who are you talking about.
AI can’t mention that. The four people that, that live there basically.
QThat live –
ABut I’m not gonna mention their names.
QThat live where.
AAt my place.
QWhy were you carrying it.
ABecause they were going to the hospital.
QYeah.
AMm, and we were going home, you see and I didn’t expect the car to break down. I didn’t know, you know, like sort of thing and it’s just blew, you know, you can see the three bottles of water in the back, you know, and that’s where we stopped and that’s when we contacted them. They still haven’t picked up her mother from the Queen Elizabeth, you see, so and then when, when, when we rang him he said ‘I’ll be there in ten minutes.’ In the meantime I’d phoned Harry to get, organise a tow truck for us and that’s what was, I was waiting for the tow truck. When they pulled up they came around that side, right and that’s when –
QSo, so you buy the- Who bought the stuff.
AI got it.
QYou bought it.
AYeah, yeah, I bought it, yeah.
QOkay, with your cash.
ANo everyone put in their money. They all chip in when they get their cheques.
QOkay.
AYou know, same as, same as the rent money, they give me 125.
QOh so how much money do they give you for, for this.
AFor that there, er, $90 each.
QNinety dollars each.
AYeah, yeah.
QAnd the ninety dollars each that they give to you –
AMm hm.
QHow much does that, do you give-, what do you give back to them.
AI don’t - Well if you’re gonna try and say to me that I, I then sell it to them or I give it to them ‘cos I buy it, no, that’s not. Three of them belong to it, three to, you know, three each to each one of us. One of the four of us three, three bags are each belong to us sort of thing, that’s basically what it is.
QSo –
AIt’s like if I go to the supermarket and I do the shopping, right.
QYeah.
AAnd I buy Weetbix, bananas, apples and they take an apple and a banana each. What, what are you gonna say, it’s the same thing, you know, I mean we don’t all go there. You know, they went to the hospital, we went and done that and then we were gonna meet up at home and that’s it, that’s where we were going.
QSo you –
AYou know, it’s no, it’s no big drama, you know, so I just can’t, I can’t see what, what you’re trying to grasp at.
QSo how much cash did they - When you talk about ‘we’ how many people are you talking about.
AI’m talking about three others.
QThree others.
AMm.
QEach person gives you how much money.
ANo, see, I’m not gonna answer that.
QYou’re not prepared to answer that.
ANo, not that one because you’re making it sound like they’ve given me the money for gear and then I give ‘em gear back in return. Come on, no, that’s the same as they give me money for food, 125 a week each they pay. Right, we break it down like this, $50 rent, $15 for gas, electricity and phone and $50 for food. So what are you saying now that I’m, I’m, I’m a dealer of food. No, I’m, I’m not gonna answer, that’s bullshit.
QOkay.
ADo what you have to do, I’m going home.
QYou don’t –
AOr lock me up, I don’t really care, but I’m not gonna answer no more, this is rubbish.
QYou don’t want to answer any more questions.
ANo. ...
The accused was charged with possessing a controlled substance for sale (in relation to the methylamphetamine) and unlawful possession (in relation to the cash). He was charged on an Information dated 17 July 2002.
He appeared in the Port Adelaide Magistrates Court on 20 August 2002. He was represented by a solicitor. No plea was taken. A preliminary examination was set for 6 November 2002.
On 6 November 2002 the first count on the Information was amended to allege that the accused was knowingly in possession of amphetamine for the purpose of supplying it to another person. The second count, alleging unlawful possession of the cash, was dismissed for want of prosecution. The accused pleaded guilty to possessing amphetamine for supply. On 16 December 2002 he was committed to this court for sentence.
On 16 December 2002, on an Information dated 16 December 2002, the accused pleaded guilty to possessing methylamphetamine for supply. The particulars were that he, on 11 July 2002 at Angle Vale, knowingly had methylamphetamine in his possession for the purpose of supplying it to another person. The allocutus was given. The Crown tendered an antecedent report. The accused’s solicitor asked that the matter be adjourned for sentencing submissions. Thursday, 16 January 2003 was set for that purpose.
On 16 January 2003 the Court was informed by the accused’s solicitor that Mrs Shaw QC, of Senior Counsel, was to have attended that day to make submissions in mitigation of the penalty. The court was informed that there had been developments since the plea and that Mrs Shaw and an officer of the DPP had discussed the matter at length. Issues had arisen with respect to the basis of the plea. The court was informed that Mrs Shaw had put to the Crown that the factual basis of the matter may not make out the elements of the offence of possessing amphetamine for supply. The officer of the DPP was not sure if submissions on sentence were to be made that day or whether Mrs Shaw was to make an application to vacate the plea and for the matter to go back to an arraignment list. Ultimately the allocutus was “revoked” and the matter was remanded to an arraignment list on Monday 3 February 2003.
The matter came on before me on Monday 3 February 2003. I was informed by the accused’s solicitor that the application was “to strike out the current plea which is on the court file and senior counsel requests an opportunity to make submissions in that regard”. I was informed by an officer of the DPP that the Crown did not oppose the matter being set down for argument but would oppose the vacation of the guilty plea. I asked the accused’s solicitor whether it would be “possible to send a letter to my chambers informally making the application and perhaps in this case setting out some grounds. If there is any affidavit you wish to file, you better file and serve it on Ms Vass before then”. The accused’s solicitor acknowledged that. I adjourned the matter to Tuesday 18 February 2003. Without anyone attending court I further adjourned the matter to 20 February 2003 upon a request from one of the parties.
The night before 20 February 2003 I received by facsimile an Outline of Submissions prepared by Mrs Shaw QC. On 20 February 2003 I was informed by Mrs Shaw that the factual basis upon which the matter was to proceed has always been agreed. The account given by Mr Caridi in his interview was accepted. The question was whether, in law, that is “possession for supply as compared to, for example, joint possession or some other simple possession”. She submitted that this was a matter that needed to be determined.
As no application or affidavit had been filed I asked Mrs Shaw what her application was. She informed me that she wanted me to decide whether, as a matter of law, the evidence supported possession for supply. If it did not, “then the plea is vacated - well, not vacated completely, but a substituted plea of simple possession is entered”. If, as a matter of law, it did support possession for supply, then the accused “will continue with the possession for supply. The plea remains”, and the matter would proceed to sentence. She said “If, indeed, the papers support possession for supply the plea stands. If they don’t support possession for supply, then the substituted plea of simple possession would be the basis upon which the matter would proceed”. She stated that that matter should be decided upon all the declarations and no other evidence. She said that the Crown had accepted the plea on the basis of the accused’s interview. She submitted that the question I should decide was whether, on the face of the depositions, can the Crown make out the charge of possession for supply beyond reasonable doubt.
Mrs Shaw referred me to the case of R v Liberti (1991) 55 A Crim R 120. In that case the Court of Criminal Appeal of New South Wales said this (at p. 121):
Power to set aside a conviction following a guilty plea
This Court has power to set aside a conviction recorded following a plea of guilty: see Forde [1923] 2 KB 400 at 403; Gower v Ross [1959] SASR 278; Stewart [1960] VR 106; Foley (1963) 80 WN (NSW) 726. From these and other cases it is clear that a court will entertain an appeal against such a conviction, notwithstanding a guilty plea, if it appears:
(a)that the appellant did not appreciate the nature of the charges or did not intend to admit that he was guilty of them; or
(b)that the appellant, upon the admitted facts, could not in law have been convicted of the offence charged: see esp Caruso (1988) 49 SASR 465 at 489; 37 A Crim R 1 at 26.
Mrs Shaw submitted that in her application before me the accused did not rely on ground (a) of the above citation from Liberti’s case. The accused’s application was based upon ground (b) of it.
I understood that the application that was being sought to be advanced before me was one to set aside the accused’s guilty plea which he had entered before this court on 16 December 2002 having been committed for sentence in this court on 6 November 2002 by the Port Adelaide Magistrates Court upon his guilty plea before that court. I had considerable misgivings as to whether I should proceed to hear an application of that type on the basis that it was sought to be made. No-one submitted that I did not have power to hear and determine an application of this type or that I should not do so. In Liberti the President of the Court of Criminal Appeal wrote (at p. 125):
Duties of the legal advisers and of the sentencing judge
The Crown sought to answer these arguments in two ways. First, it sought to distinguish Carey ((1990) 20 NSWLR 292; 50 A Crim R 163) and to limit the authority of that case to a decision on its own special facts. For example, it was pointed out that in this case Mr Liberti had pleaded guilty whereas Ms Carey had not pleaded guilty, but had been convicted. This distinction is irrelevant to the legal principle which is contained in Carey. A plea of guilty should be taken to relate only to those facts of which Mr Liberti was aware and which are contained in his statements to the police and to the court.
An accused person will not always know the legal consequences of the facts to which he pleads guilty. He or she is normally entitled, where represented, to look to the lawyers to explain those facts for their legal significance. Ultimately, the accused is entitled to look to the court before which he or she comes to offer protection from a conviction which is not, in law, sustained by the facts.
As to the lawyers who represented Mr Liberti both before the magistrate and before Judge Ford, there was read before the Court today without objection an affidavit by Ms Janelle Ford, solicitor. She had the earlier carriage of these proceedings. It was she who appeared on Mr Liberti’s behalf before Judge Ford to offer the pleas. She deposed to the fact that, at the time of the pleas of guilty before Judge Ford, she was unaware of the then unreported decision in Carey. Although no evidence was placed before the Court relating to the state of knowledge of the representative appearing for Mr Liberti when the matter was before the committing magistrate, I am prepared to infer that it was of no different quality than that of which Ms Ford gives evidence.
Beyond the duty of the accused’s lawyers, there is a duty in the court receiving the proceedings pursuant to s. 51A of the Justices Act 1902 (NSW) to ensure that the accused may properly be convicted on the facts in respect of which the accused is charged: see s. 51A(1)(d)(i) of that Act. This duty fell upon Judge Ford. It is a duty which must be taken seriously, as the Parliament intended. Ultimately, its application must be assured by this Court.

The appeal court’s conclusion was that the convictions entered by the judge at first instance could not stand. The President said this (at p. 126):
I would propose a retrial because, as I have foreshadowed, there is an issue of fact to be tried. It may be that the Crown will elect to put Mr Liberti up for trial upon different or additional evidence upon a charge of supply. On the other hand, the Crown may elect to proceed on a charge that he was an accessory before the fact of supply. Or it may proceed on a charge of “possession” or otherwise. These will be decisions for the prosecuting authorities. This Court should not, by its orders, control such decisions, as was properly acknowledged by counsel for Mr Liberti.
In this case there is no suggestion that there be a trial of Mr Caridi.
Notwithstanding my misgivings I proceeded to hear the application on behalf of the accused.
Mrs Shaw’s submissions were based upon the accused’s record of interview. She submitted:
... what Mr Caridi is telling the police is that the group of four bought the speed, his car broke down and he was minding it for them whilst they went to the hospital. Because, in that sense, his possession was temporary, that the ownership of the speed and the possession of the speed in essence was not ever - it was never in his exclusive possession. His intention was to return it to them once the issue of collecting the mother from the hospital had been resolved. Then the cases say that, firstly, that to be in possession, to make out an element of possession for supply, you must intend to have exclusive possession of the drug and here is Mr Caridi telling the police that the drug belongs to the four of them, in the sense of himself and three others. In fact, he uses that expression at p.12, 1.12 ‘Three of them belong to it as well as himself’. Rather than asserting it is his drug in respect of which he has the right to exercise exclusive control, he’s telling the police ‘It’s not all mine’, and not only that ‘I have it in my physical control at the moment because they are going to the hospital’. So the question is whether or not that does make out the offence of possession for supply at all. That’s the issue.
Mrs Shaw later submitted:
...I draw this distinction between Mr Caridi’s description of the four of them going and doing it and then leaving him to mind it while they take the person to hospital because there is a discussion in some of the cases which I’ll come to, if you send one person who goes and buys it on behalf of everybody else and subsequently distributes it, that may well be supply. I’m contrasting that to Mr Caridi’s situation where he says ‘We went and bought it’. At the time the police speak to him, indeed they all are there, that is the three other men and the fourth.
Mrs Shaw referred to another passage of the record of interview and submitted:
In that sense he’s therefore explaining that he was holding it on their behalf whilst they went to the hospital.
Mrs Shaw submitted that on the basis of the decisions in Liberti, Carey and R v Fong NSW CCA 29/11/1996 the facts in this case do not make out, in law, an offence of possession for supply. She also referred to R v GNN (2000) 78 SASR 293. She submitted that that case said that what is critical is the intention, at the time of the possession or the asserted possession, to exercise exclusive control. She submitted:
Here the statements of Mr Caridi to the police make it plain that he was doing the opposite, namely, he was asserting that certainly as to the two packages that he said belonged to him, he asserted they were his but the remaining that belonged to the other three he was minding whilst they were at the hospital.
Mrs Shaw concluded her submissions by saying:
... We are saying that either he is not in exclusive possession because he’s indicated that it belongs to other people and he’s not intending to assert control over it but in any event he is not on the second limb intending to supply because he is only holding it on a temporary basis.
HIS HONOUR:           How would he be guilty of simple possession?
MRS SHAW:              He’s guilty of simple possession either on his own part or on the basis of joint possession; that is that sometimes -
HIS HONOUR:           You do say he is guilty of simple possession of speed?
MRS SHAW:              Simple possession of the speed that is his own and on the Crown basis of joint possession.
Counsel for the DPP submitted that the facts before me clearly make out the elements of the offence of possessing methylamphetamine for the purpose of supplying it to another person. Counsel submitted that the accused had physical control of the drugs as they were in his trouser pocket and he knew they were there. It was submitted that the cases relied upon by the accused were distinguishable as those cases concerned real questions as to whether the accused persons involved in them had actual control of the drugs which were the subject of the charges. Here the drugs in question were in the actual possession of the accused and he knew they were.
Counsel for the DPP submitted that the element of the offence of intending to supply the drugs to another person is established by the record of interview. “Supply” means provide, distribute, barter or exchange and includes offer to supply. The record of interview establishes that the accused purchased the drugs using money to which he and his housemates had contributed. He was going to meet up with his housemates after they had gone to hospital. It was submitted that, on those facts, it is plain that the applicant purchased the drugs for himself and others and was then going to distribute the drugs. That was possession for supply.
Counsel for the DPP referred to the cases relied upon by the accused that involved a bailment situation. She referred to Carey’s case in which Hunt J had stated (at p. 297):
I should also refer to one very common situation which that construction should not be understood as including. That is the situation where one person has obtained a quantity of drugs on behalf of another person or on behalf of a group of persons (which may or may not include himself) and where he transfers physical control of those drugs (or some portion of them) to that person or to those other persons. That is in no sense analogous to the ‘bailment’ situation as is that with which the present appeal is concerned, and in my view such a situation would necessarily fall within the ordinary meaning of the word ‘supply’.
Counsel for the DPP submitted that this case is the situation that Hunt J said would fall within the ordinary meaning of the word “supply”.
My initial disquiet in hearing and determining this oral application on the basis advanced on behalf of the accused never entirely dissipated during submissions. It may be one thing to decide issues such as those I am asked to decide where there is no doubt at all as to the objective facts. It may be quite another where various interpretations could be placed upon answers by an accused person during a record of interview such as we have here (and which was not shown to me), and where there may be inferences that could be drawn from the record of interview in conjunction with other surrounding circumstances disclosed by the depositions.
I will determine the issue, as I have been asked to determine it, on the basis of the record of interview and the other depositions insofar as they may relate to the methylamphetamine with which the accused is charged with possessing for supply.
On the basis of those materials I am satisfied, beyond reasonable doubt, that the accused is guilty of possessing three-quarters of the methylamphetamine that was found in his pocket for the purpose of supplying it to others. He was in possession of the remaining quarter of it for his own use. I consider that the inevitable inference from the materials before me is that the accused purchased all the methylamphetamine in his pocket with money that had already been contributed to by himself and three friends or would later be. He purchased all the methylamphetamine with the intention of providing or distributing three-quarters of it to his friends at some later stage, probably after they had returned from the hospital. I am unable to find, beyond reasonable doubt, who was with him when he purchased all of the methylamphetamine, but if there was anyone there it was probably only one person. I don’t know whether that person was in his presence when he purchased the drug or whether that person remained in the car.
I consider that on all the materials before me there was no reasonable possibility that the accused was in possession of three-quarters of the methylamphetamine as a bailee.
I have no doubt that all the methylamphetamine in the cigarette packet in his pocket was, as a matter of law and fact, in his possession when police searched him.
Accordingly, I refuse the accused’s application to set aside his plea.

[2003] SADC 45

1 April 2003