R v Clavell - [2014] SADC 180

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CLAVELL
Criminal Trial by Judge Alone
[2014] SADC 180
Reasons for the Verdicts of His Honour Judge Boylan
5 November 2014
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF
Accused charged with two firearms offences and one drug offence - assessment of honesty and accuracy of police witnesses - each element of each offence proved beyond reasonable doubt.
Verdicts: Accused guilty on counts 1, 2 and 3.

R v CLAVELL
[2014] SADC 180

Richard James Luke Clavell is charged with two firearms offences and a drug offence. At his election, I heard the trial without a jury. I now publish my reasons for the verdicts I am about to deliver.
The charges are as follows:
First Count
Statement of Offence
Aggravated Possessing a Class H Firearm Without a Licence. (Section 11(1) of the Firearms Act, 1977)
Particulars of Offence
Richard James Luke Clavell on the 8^th day of September 2013 at West Beach, had in his possession a Class H firearm, namely a sawn off Winchester Model 490, without holding a licence authorising possession of that firearm.
It is further alleged that Richard James Luke Clavell was carrying a loaded firearm.
It is further alleged that the firearm was concealed about Richard James Luke Clavell’s person.
Second Count
Statement of Offence
Possessing Firearm With Identifying Characters Defaced. (Section 24A(7)(b) of the Firearms Act, 1977).
Particulars of Offence
Richard James Luke Clavell on the 8^th day of September 2013 at West Beach, had in his possession a Class H firearm, namely a sawn off Winchester Model 490, with the identifying characters of which had been defaced without the authority of the Registrar.
Third Count
Statement of Offence
Trafficking in a Controlled Drug. (Section 32(3) of the Controlled Substances Act 1984).
Particulars of Offence
Richard James Luke Clavell on the 8^th day of September 2013 at West Beach, knowingly trafficked in a controlled drug, namely methylamphetamine.
Overview of the prosecution case
At about 3.45 am on 8 September 2013, Senior Constable Tyson Mobbs and Constable Alison Gale were on uniform mobile patrol duty when they spoke to three occupants of a car apparently broken down in Davis Street at West Beach. Two of the men gave correct names: Darren Jordan and Stephen McKenney. The third man was the accused. Shortly after having given a false name to Snr Constable Mobbs, he got out of the car. He was wearing a bum bag which he opened when asked about its contents. Mobbs saw what he thought was a tub of methylamphetamine and said so to the accused who then turned as if to run away. As Mobbs went to restrain him by grabbing his shoulder Mobbs saw what he recognised as the handle of a firearm tucked under the accused’s right armpit. The firearm fell to the ground. There was then a struggle between the accused, Mobbs and Gale during which Mobbs used OC spray on a number of occasions. After other police officers had arrived, the accused was restrained and arrested. He was later taken to hospital to receive treatment for injuries suffered during the struggle.
The firearm was a Winchester model 490 self-loading rifle, chambered to fire .22 long rifle Rimfire ammunition; its serial number had been obliterated.
The bum bag contained, among other things, a number of cartridges suitable for use in the Winchester rifle. It also contained a toothbrush and a razor both of which were examined by a forensic scientist who concluded, after DNA comparisons, that there is extremely strong support for the proposition that the accused was one of the contributors to the DNA profiles found on those items. The bum bag also contained 5.43 grams of a crystalline substance which, in turn, contained 1.93 grams of methylamphetamine.
Only Darren Jordan was still at the scene at the time of the accused’s arrest; McKenney had decamped.
It was an agreed fact that, six months earlier, McKenney had been found in possession of a .22 semi-automatic rifle with its serial number ground off.
The accused’s case in outline
The accused gave evidence. He denied that he was ever in possession of the firearm; in particular, he denied that it was on his person when he got out of the Ford. He admitted that he was holding the bum bag but denied any knowledge of its contents, saying that it belonged to Stephen McKenney, the driver of the Ford, who had lent him the razor and the toothbrush earlier in the night. The accused’s case is that Jordan or McKenney must have dropped or thrown away the firearm when Mobbs and Gale were struggling with the accused.
Assessment of witnesses generally
In considering the evidence of all of the witnesses at the scene, including the accused, I have borne in mind that the relevant events took place over a very short period of time; that the situation was stressful for all involved, that emotions were running high and that, by the end of the struggle, Snr Constable Mobbs and Constable Gale and the accused were all suffering the effects of OC spray. I have borne those matters in mind because they may all bear upon the ability of the various witnesses, including the accused, accurately to observe and to recall the events of a few minutes. I have not treated the police officers, and particularly Mobbs, as being any different from any other witnesses. I have borne in mind the fact that police officers, too, are sometimes wrong and sometimes give false evidence.
I have considered the evidence of the accused in the same way as I have considered the evidence of the other witnesses. I shall deal with it in more detail later. I do not accept much of the accused’s evidence but I emphasise here that my rejection of his evidence is no basis for conviction. I have reminded myself of the presumption of innocence and directed myself that, before I can convict the accused on any count, I must be satisfied that the evidence produced by the prosecution in support of that count, considered separately from the evidence in support of the other counts, proves the particular offence beyond reasonable doubt.
I have ignored the fact, obvious from the evidence of the accused himself, that he was breaching parole by being out and about on the night in question. I have also ignored what can obviously be inferred from his breach of parole, namely, that he must have committed a criminal offence for which he had served time in prison.
I have not reasoned at any stage that, owing to his criminal history, the accused is the sort of person who is likely to have committed the offences charged.
The evidence of Senior Constable Mobbs
The prosecution case turns very much on the evidence of Snr Constable Mobbs. Its case in respect of the accused’s alleged possession of the firearm depends entirely upon Mobbs’s evidence that he saw the gun tucked under the accused’s armpit. Accordingly, I set out Mobbs’s evidence in some detail.
Snr Constable Mobbs and Constable Gale were on mobile uniform patrol duties on the night in question when they noticed a Ford motor car parked in Davis Street. Without getting out of the police vehicle, Mobbs spoke briefly to Jordan who was standing at the open bonnet of the car. He told Mobbs that their car had overheated and that they were trying to start it. Constable Gale ran a check through the computer in the police car and ascertained that the Ford had not been reported stolen and was registered. Mobbs, who at that stage thought that there were only two men in the Ford, Jordan and the driver, determined that everything was in order and he and Gale drove off. Within minutes, they received a tasking to return to Davis Street because a member of the public had made a report to police about the men and the car. Gale and Mobbs returned.
Back at Davis Street, Snr Constable Mobbs stopped the police fleet vehicle roughly parallel with the Ford but facing the opposite direction, in about the same position as he had done a few minutes earlier. Mobbs got out of the fleet vehicle and asked the man on the road to identify himself. He gave his name as Darren Jordan. Mobbs then asked Constable Gale to enter that name into the police computer to check if it was false. Gale ran the check and Mobbs was satisfied of Jordan’s identity. The driver then gave the name Stephen McKenney which Gale also checked. That name, too, was genuine. At about that stage, Mobbs noticed a third man in the vehicle, sitting in the front passenger seat. Mobbs addressed him through the driver’s side window, asking for identification. That man, the accused, appeared nervous and agitated and he hesitated before giving the name ‘Adam Crowe’. Mobbs passed that name on to Gale who began to run a check on it. According to Mobbs, although he cannot remember the words used, Gale let him know that ‘Adam Crowe’ appeared to be a false name. When that name was confirmed as false, Mobbs walked behind the Ford sedan and around to its front passenger door and told the accused to get out. As the accused got out of the vehicle, Mobbs saw that he had a bum bag under his left side with its shiny strap over his right shoulder. The accused was wearing a black jumper and track pants.
Mobbs, then on the footpath, said ‘What’s in the bum bag?’. The accused unzipped the main section of the bag before closing it quickly. In the brief time that it was open, Mobbs saw a tub which he thought contained methylamphetamine and said to the accused ‘I saw the tub of meth’. The accused then turned as if to run. Mobbs grabbed his shoulder. It was then that he saw the butt of a firearm protruding from under the accused’s right armpit. Mobbs pushed the accused, who stumbled a bit, and the gun fell to the ground, into the gutter at the kerbside. As it fell, Mobbs stepped back onto the road to create distance between him and the accused. The accused fronted-up to Mobbs who drew and used his OC spray. At that stage the firearm was still between them. As Mobbs used the spray, he tried to yell the word ‘gun’ but his throat was affected by the spray, making it hard for him to speak. He could not yell properly. The spray did not appear to have any immediate effect and the accused ran towards Mobbs and then between the two cars. Mobbs followed the accused and grabbed him. Between the two cars the accused turned and again faced up to Mobbs who used OC spray a second time. At that stage, Gale was in front of the fleet vehicle and at the rear of the Ford. Again, the spray appeared to not have any immediate effect on the accused. Mobbs holstered his spray and tried to restrain the accused who broke free and ran north between the cars. The accused got to the rear of the fleet vehicle and was, therefore, slightly in front of the Ford. Mobbs grabbed him, the accused faced-up to Mobbs and again Mobbs used his spray with no apparent effect. The accused ran north and onto the footpath but tripped, apparently on account of the spray affecting his eyesight, and Mobbs and Gale got him to the ground. At that stage, the accused was five to six metres north of the firearm. He managed to get up and move north but Mobbs still had hold of him although not with an effective restraining hold. At one point, Gale ran and used the radio in the fleet vehicle to summon help. Some minutes later other police officers arrived. At the end of the struggle, the firearm was still in the place where it had fallen. Mobbs put a police officer next to the firearm to watch it and, later, seized it and put it in a bag and into the boot of the police fleet.
Mobbs also seized the bum bag by unclipping it, he said, from the accused’s body. Mobbs was adamant that the accused was bare-chested when he was hand-cuffed but that he still had the bum bag on his person, albeit tangled.
Towards the end of his cross-examination, a number of allegedly prior inconsistent statements were put to Mobbs. He agreed that he said this to communications over the police radio:[1]
[1]    T 175.
Roger…located firearm, was on the male when arresting him, saw it on the ground and hence the big brawl, we are trying to remove it from him. We are safe from injury, they are effectively all sprayed, the male is in cuffs.
Mobbs explained that statement by saying that he was :[2]
[2]    T 175.
…trying to convey to police communications that there was a firearm involved hence the altercation, that situation reports are given very quickly, very briefly, to let other patrols know what is happening and also the shift manager know.
He was implying that police had got the firearm off the accused. Later, Mobbs agreed that he said to police communications: [3]
[3]    T 177
Vixen 20, roger, the firearm has been taken off the male so there’s no firearms that we know of…
Mobbs explained that by saying:[4]
[4]    T 175, at 16.
I was trying to get across that there was no longer a threat, that he was no longer in possession of the firearm. That’s the first question that I would have been asked by superiors.
And Mobbs agreed that he said this:[5]
The passenger wasn’t in custody next to the vehicle, I’ve noticed something under his arm. He became noncompliant at which point aggressive, then a fight and I saw him reaching under his arm and a firearm falling out from his arm at which point he continued to be aggressive. He’s been sprayed several times and eventually got him in the cuffs. There was a firearm tucked under his arm, a whole bunch of meth in his bum bag as well.
Mobbs explained that statement by saying it was ‘accurate for operational needs, any information that we need to do our job at the time.’
Later, Mobbs said:[6]
At the time and throughout the rest of the evening I was transmitting those details I was also suffering the effects of OC spray struggling to talk on the radio, there should be transmissions of me on there of me coughing, what have you. Again, it’s me getting as much information as I can for the other patrols attending so we can do our job.
Later, he said:[7]
To transmit information is something hard especially when you’ve been fighting with someone for five minutes which is quite some time. You are physically exhausted plus you are suffering the effects of the OC spray.
[5]    T 177.
[6]    T 179, at 16.
[7]    T 179, at 31.
I shall deal later with another statement made by Mobbs, this time to Constable Cabot.
Evidence of Constable Gale
Constable Alison Gale’s evidence very generally accords with Mobbs’s in many respects but there are some differences. She recalls that Mobbs handed her some document from the driver; she did not recall giving Mobbs the results of her check on the name ‘Adam Crowe’. Unlike Mobbs, she saw the accused carrying a number plate in his left hand. She only saw Mobbs use the OC spray once and she heard Mobbs say that there was a gun only after the accused had pushed past her. (Mobbs said that he had mentioned the gun earlier than that) When Mobbs said ‘Watch out, Ali, spray’ his voice did not sound to her to be affected by OC spray. She could not recall seeing the bum bag around the accused’s neck at the end of the incident, when the accused was bare-chested.
I have no doubt that Constable Gale was doing her best to tell me the truth but, as she admitted, she could not remember every detail of the incident. She said that it was ‘highly stressful’ for her. She was so much affected by the OC spray that she was struggling to breathe when other police officers arrived and needed Ventolin. Further, on some details she is clearly wrong. For example, she said that she realised that there was a third man present only when she got out of the vehicle and was walking towards Mobbs and the accused. Yet, on her own evidence, she had been given a third name before getting out of the police fleet. Where the evidence of Snr Constable Mobbs and Constable Gale differs, I prefer and I accept Snr Constable Mobbs’s evidence.
Constable Gale drew in her notebook a rough plan showing the positions of the cars, and of Snr Constable Mobbs and the accused and the gun. Mobbs’s and the accused’s position in that diagram do not accord with Mobbs’s evidence about their positions immediately after he had gone to the passenger side of the Ford. The diagram does not accord with Gale’s evidence. In the diagram, she places both Mobbs and the accused on the footpath to the south of the passenger door of the Ford. I prefer Mobbs’s evidence about his and the accused’s positions. I accept Constable Gale’s explanation that the diagram’s purpose was to ‘have an overall picture of how the cars were and where the firearm was’ and that she ‘did not intend to depict as faithfully as she could one particular instant throughout the whole incident’.
Of the effects of OC spray, Constable Gale said ‘The spray makes it hard to speak – words get caught in your throat a little bit’. I accept Mobbs’s evidence that he tried to call out ‘gun’ shortly after first seeing the firearm.
Constable Gale only became aware of there being a bum bag towards the end of the incident when she saw it on the rear of the police fleet. She looked inside its main section and saw a tub, a toothbrush, a shaver, some tool bags and a multi-tool swivel. She believed she put the bum bag into a bag which she then put in the car. There were no other items in that brown paper bag. She did not seize an ice-pipe or a cigarette lighter and neither of them was in the brown paper bag.
Evidence of other police officers
Cabot and Wood were on uniform mobile patrol duty when they were tasked to assist Mobbs and Gale. Cabot had heard Mobbs on the police radio and described him as sounding ‘very clearly panicked’. On her arrival at the scene, Cabot noticed that Mobbs was obviously affected by the OC spray – he was coughing and his voice was raspy – but that he was coping a lot better than Gale. To her, Mobbs appeared ‘rattled by the incident’. I asked her about that and there followed this interchange between her and me:
QWhy do you say that; what did you observe to lead you to form the opinion that he was rattled.
AWhen I was trying to ask questions about what had happened he did reference the firearm on the ground.
QHe did not.
AHe did reference the firearm on the ground and I recall him at that time saying to me he didn’t realise it was there until it hit the floor, and he seemed really bothered by this, as I would be under the circumstances.
Cabot found Jordan sitting on a grass verge about 15 to 20 metres from the Ford with his head in his hands, obviously affected by the OC spray.
Constables Ashleigh Delorenzo and James Cortes were also tasked to assist Mobbs and Gale. When they arrived, Mobbs and Gale were struggling with the accused on the footpath. The accused was naked from the waist up. Constable Delorenzo could not recall that he had anything else on his body and she did not see the accused wearing a bum bag that night. She took nothing out of the bum bag. She did not tell Mobbs that an ice-pipe and a set of keys had come from the accused.
Record of interview
The accused was interviewed by police officers on 5 November 2013. He told them that, owing to the beating that he had received at the hands of the police and to the drugs prescribed for him, he had dizzy spells and did not even know where the incident had happened. He denied that the firearm was his and denied that it had been on his person. He knew the bum bag was in the car because he saw McKenney take some identification out of it but denied that the bum bag was in his possession. He had just got out of the car and was just standing there trying to avoid Mobbs when ‘Boom…he’s onto me…within seconds my eyes are burning like crazy so I don’t even know what direction I’ve gone in…and then I remember being on the ground on all fours.’ He admitted that the number plate was his. At the end of the interview the accused said that his DNA would not be found on the firearm or on the contents of the bum bag.
Accused’s evidence

I now summarise the accused’s evidence. Earlier in the night the accused and his girlfriend had driven in her car to a farm near Strathalbyn owned by an acquaintance whom the accused knew only as ‘Rob’. Darren Jordan, whom the accused knew, was there as was Stephen McKenney, whom the accused had met on a couple of occasions not long beforehand. The accused noticed that McKenney had in his possession the bum bag, now exhibit P6.
The accused, who was homeless at the time and was sometimes sleeping in his car, had not showered or cleaned his teeth for a couple of days and felt dirty and depressed. He had no toiletries as he had nowhere to store them.
Rob’s farmhouse had a bathroom with a shower. The accused showered in there but, because there were no towels or toiletries, he called out to Rob asking for some. Rob said that he had none but McKenney –who also happened to be homeless at the time - came into the bathroom and left on the basin a toothbrush, toothpaste, and a razor. The accused used all of those items, telling me that he would not usually use somebody else’s toothbrush but was happy to do so in the circumstances. The toothbrush and razor looked the same as the ones which police officers eventually found in the bum bag, exhibit P6. After showering, the accused used clothes to dry himself – a couple of his own t-shirts and, perhaps, one of his jumpers. He then put on a new set of clothes, a spare set, produced by his girlfriend who ‘organises everything’.
While at the farm, the accused used ‘a bit’ of methylamphetamine.
Some 10 or 20 minutes after the accused had showered, McKenney said that he was going for a drive as he wanted to meet up with a girl. Because he was bored, the accused went, too, as did Jordan. The accused sat in the front passenger seat and Jordan in the rear seat behind McKenney. They drove first to premises from which the accused collected a number plate for a caravan he had recently bought.
During the hour or so that it took them to drive to West Beach, all three men smoked methylamphetamine from pipes. McKenney supplied the methylamphetamine which the accused smoked. While the accused accepted that McKenney must have been taking the methylamphetamine from some sort of container and then putting it into a pipe to give to the accused, he insisted that he did not see a container of methylamphetamine nor the bum bag throughout the whole of the drive as he was looking out the window. He also agreed that filling an ice-pipe was a two-handed job but said that it was not necessarily difficult to fill an ice-pipe in the dark car while driving if the driver was steering with his knees.
The three men had some trouble with the car, which finally broke down in Davis Street, where it was very dark. Jordan was at the open bonnet checking the engine when some police officers arrived, made some enquiries, were told that the car had broken down, and left. Five to 10 minutes later the police returned and one officer spoke first to Jordan and then to McKenney who was asked for identification. Still behind the wheel, McKenney took a wallet from his bum bag which he held at window height as he gave some sort of identification document to the officer. That was the first time that the accused had noticed the bum bag in the car. While the police officer was at the fleet vehicle, McKenney put the bum bag on the accused’s lap. He did not know what was in it when he took it.
At some stage, McKenney had told the accused that he, McKenney, was on a curfew and was breaching bail. McKenney was stressed about that.
Standing at the driver’s window, the police officer then asked for the accused’s details. The accused gave the name ‘Adam Crowe’, giving a false name because he was in breach of parole. Within seconds the male police officer was at the passenger window demanding that he get out of the car. With the bum bag under his left arm, he opened the car door with his right hand and got out, unconscious that he was holding the number plate in his left hand and the bum bag under his left arm. He was not carrying a firearm and had not seen a firearm in the car at all that night. He opened the bum bag to show its contents to Mobbs but, as soon as he did so Mobbs said ‘That’s speed’. The accused replied ‘Oh shit’ and quickly closed the bag, not getting the chance to say that the speed which Mobbs had seen was not his. A scuffle began immediately and the accused dropped the bum bag. At the end of the scuffle, when the accused was handcuffed, he was bare-chested and did not have the bum bag around his neck.
None of the items in the bum bag belonged to the accused. Nor did the car keys for the Ford, an ice-pipe and a cigarette lighter – all of which were seized by the police –belong to him.
The accused denied that he had ever seen the actual firearm but admitted that he had seen a photograph of it, shown to him by McKenney, on McKenney’s mobile phone a short time beforehand.
Rejection of accused’s evidence
I do not accept that the accused used McKenney’s toothbrush and razor. It is implausible that McKenney happened to be homeless and, therefore, had toiletries at hand at a Strathalbyn farm at a time when the accused also happened to be homeless but without toiletries although he had ready access to a spare set of clean clothes. In coming to that conclusion I have not overlooked the fact that on the toothbrush was a mixed DNA profile with two contributors.
I do not accept the accused’s account of what McKenney did in the car without the accused’s seeing it. His evidence on that topic is fanciful, as is his explanation to me about his practice of opening the passenger side door with his right hand.
In my view, he manufactured the story about his using the toothbrush and razor to account for his DNA being found on those items. He lied about not noticing what was going on in the car to distance himself from the bum bag and its contents.
I do not accept the accused’s evidence that he was not conscious of the number plate being in his left hand when he alighted from the car, that he just has ‘a habit of holding stuff sometimes’. In my view, immediately before he got out of the car, the accused had collected his possessions with the intention of leaving the scene, if he could.
Assessment of Senior Constable Mobbs’s evidence
As I said earlier, I cannot convict the accused of the firearms offences unless I am satisfied beyond reasonable doubt that Mobbs saw the firearm under the accused’s armpit before he saw it on the ground. I have considered carefully all of the evidence that bears upon that issue including the danger of relying upon the demeanour of a witness, especially of a professional witness such as a police officer; the statements made by Mobbs on the radio to police communications and to Constable Cabot; the fact that Jordan’s and, especially, McKenney’s movements were unaccounted for after the scuffle began; the fact that McKenney is a man who has had previous association with an illegal firearm; the fact that McKenney must have known and suspected that back-up police officers would arrive on the scene; and Mobbs’s insistence that the accused was still wearing the bum bag after the arrest despite the evidence of other police officers who were present.
I accept Mobbs’s explanations for his statement to police communications and note that they are not all necessarily inconsistent with his evidence. He was not asked about his statement to Constable Cabot, but, in my view, his statement to her is explicable by his being ‘rattled’ at the time.
I find that Snr Constable Mobbs is an honest witness who has given me a reliable account of his first seeing the firearm tucked under the accused’s armpit and of his seeing the accused wearing the bum bag. Discrepancies between his evidence and that of other officers on some matters, do not cause me to doubt the reliability of his account of his first seeing the firearm. Further, his seeing the firearm in the accused’s possession explains the undisputed sudden and violent struggle between him and the accused. Mobbs was, understandably, alarmed at the sight of the gun and his first reaction was to put some distance between the gun and the accused after the gun had fallen to the ground. The possibility of Mobbs’s initiating a struggle with the accused if he thought that he had only discovered evidence of a drug offence is implausible, to say the least. After all, Mobbs and Gale were not alone with the accused: there were two of his associates present in a dark side street in the early hours of the morning. I do not accept it as a reasonable possibility that Mobbs would have initiated a struggle with a suspected drug offender in those circumstances.
Verdicts on counts 1 and 2
On the basis of Snr Constable Mobbs’s evidence, I am satisfied beyond reasonable doubt that the accused was knowingly in possession of the firearm immediately after he got out of the Ford. There is no dispute about the other elements of the offence, namely, that the firearm was a Class H firearm and that the accused did not hold a licence authorising his possession of it. I find the accused guilty of count one.
There is also no dispute, and I am satisfied beyond reasonable doubt, that the firearm’s identifying characters had been defaced. I find the accused guilty of count two.
Verdict on count 3
I turn now to the drug offence, count three. In order to prove that the accused trafficked in a controlled drug the prosecution must prove beyond reasonable doubt, first, that the crystalline substance found in the tub in the bum bag contained methylamphetamine. There is no dispute that the tub, which was analysed and weighed, contained 5.43 grams of a substance which, in turn, contained 1.93 grams of methylamphetamine. Next, the prosecution must prove that methylamphetamine is a controlled drug. There is no dispute about that. Thirdly, the prosecution must prove that the accused knew that the substance in the tub was a controlled drug. There is no dispute about that. Lastly, the prosecution must prove that the accused trafficked in the drug. Here, that means that the prosecution must prove that the accused intended to sell the methylamphetamine in the tub or that he intended to sell some of it.
Of course, the prosecution must satisfy me beyond reasonable doubt that the drug weighed and analysed by a forensic scientist was, in fact, the drug found in the bum bag which, I have already found, was in the possession of the accused. I deal with that point now because defence counsel submitted that I could not be satisfied that the substance presented for analysis had come from the bum bag. That submission was made on the basis that the provenance of the examined substance is not certain. I turn to the evidence about that.
Snr Constable Mobbs’s evidence was that he seized the bum bag and, without opening it or removing any of its contents, put it into a brown paper bag which, in turn, he locked in the boot of the police fleet. I think he is mistaken about the bum bag still being on the accused’s person after the struggle, but I am satisfied beyond reasonable doubt that the bag seized was the one that the accused had been wearing when he got out of the car. Later in the morning Mobbs gave the brown paper bag containing the bum bag to Detective Brevet Sergeant Moloney.
Detective Brevet Sergeant Moloney’s evidence was that, at 7.07 am, Mobbs handed him a brown paper bag which Mobbs described as containing methylamphetamine, deal bags and other items. Moloney could not remember whether, when he looked into the brown paper bag given to him by Mobbs, he could see if there was a tub of methylamphetamine separate from the bum bag.
Possible confusion arises from the evidence of Constable Gale and Detective Brevet Sergeant Worden. Constable Gale’s evidence was that she saw the bum bag on the boot of the police fleet. It was not then in a brown paper bag. She looked inside the bum bag and saw a tub containing a crystalline substance which she took out of the bum bag and briefly examined. She went on to say that she ‘believed’ that she put the tub back into the bum bag. She was not certain about that. The effect of her evidence is, therefore, that, having removed the tub of methylamphetamine from the bum bag, she put the tub back into the bum bag which she then, in turn, put into an empty brown paper bag. But, again, she was unsure, saying that she thought that she had put the bum bag into a brown paper bag.
Detective Brevet Sergeant Worden was sitting next to Moloney when he received exhibits and it was her job to record their receipt and relevant details. She said that Moloney handed her a bum bag; that she looked inside it and separated items inside the bum bag. She said she ‘believed’ that the tub of methylamphetamine was separate from the bum bag when she received those items. Regrettably, the recording of the provenance of various exhibits was not ideal. But there is no doubt that a tub of methylamphetamine was in the bum bag at the time of the accused’s arrest. There is no suggestion that there was any other tub of methyamphetamine found at the scene nor is there any suggestion of a police ‘plant’. I accept Mobbs’s evidence that he put the bum bag containing the methylamphetamine into a brown paper bag which he then put into the boot. He gave that brown paper bag and its contents to Moloney. I have no doubt that the envelope which Mobbs handed to Moloney contained the tub of methylamphetamine which had been in the accused’s possession. Whether it was still inside the bum bag does not matter. Accordingly, I am satisfied beyond reasonable doubt that the accused was in possession of the tub of methylamphetamine which was eventually sent off to the Forensic Science Department.
While I accept the possibility that the accused may well have used some of the methylamphetamine himself, I am satisfied beyond reasonable doubt that he intended to sell some of it. I am so satisfied for a number of reasons. There were 5.43 grams of substance containing 1.93 grams of methylamphetamine and the accused has not satisfied me on the balance of probabilities that he did not intend to sell some of it. His evidence, of course, was a denial that he was knowingly in possession of it. The purity of the drug was about 35 percent, higher than the usual street level content which is about 10 to 12 percent. The purity of the drug suggests that it was to be cut further for re-sale. In the bum bag was found a quantity of clean j-bags. I accept the evidence of the expert, Detective Brevet Sergeant Lea, that the presence of a quantity of clean bags is one of the indicia of an intention to sell. The presence of the ‘spoons’ is another indicator of sale although I acknowledge that users of methylamphetamine are often in possession of such items. For those reasons, I am satisfied that the prosecution has discharged its onus of proving beyond reasonable doubt that the accused intended to sell some of the methylamphetamine. Accordingly, I find him guilty on count three.