R v Coburn
[2021] SADC 35
•26 March 2021
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v COBURN
Criminal Trial by Judge Alone
[2021] SADC 35
Reasons for the Verdict of his Honour Judge Durrant
26 March 2021
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
The accused was charged with one count of trafficking in a controlled drug - whether the accused had been in possession of the drugs found in his shed - circumstantial evidence of accused selling drugs from shed - drugs located concealed under temporary flooring - fingerprint of accused across seal of resealable bag - presence of indicia of drug use and trafficking in shed - plausibility of innocent explanation for presence of drugs in shed given by the accused.
VERDICT: Guilty.
Controlled Substances Act 1984 (SA) ss 4, 32(3), 32(5); Evidence Act 1929 (SA) ss 34P(1), 34P(2) 34R; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 Sch 1, referred to.
BCM v The Queen [2013] HCA 48; Douglass v The Queen [2012] HCA 34; R v Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438; Aiken v The Queen [2014] NSWCCA 213; Markou v The Queen [2012] NSWCCA 64; R v R, R & R, LJ [2008] SASC 35; R v T, WA (2014) 118 SASR 382; R v S, GJ [2012] SADC 150; R v Hillier (2007) 228 CLR 618; R v Trabolsi (2018) 131 SASR 297; Edwards v The Queen (1993) 178 CLR 193; R v Pringle [2017] SASCFC 9; R v Jones (2018) 131 SASR 532; R v Dhir (2019) 133 SASR 452; R v Soteriou (2013) 18 SASR 119; R v T, S (2017) SASR 66; Jones v Dunkel (1959) 101 CLR 298; Police v Kyriacou (2009) 103 SASR 243; Spence v Demasi (1988) 48 SASR 536; Dyers v The Queen (2002) 210 CLR 285; R v Apostilides (1984) 154 CLR 563; R v M, RS (2018) 131 SASR 24; Richardson v The Queen (1974) 131 CLR 116; Whitehorn v The Queen (1983) 152 CLR 657, considered.
R v COBURN
[2021] SADC 35
Introduction
The accused pleaded not guilty to a single charge on information:
Statement of Offence
Trafficking in a Controlled Drug. (Section 32(3) of the Controlled Substances Act, 1984).
Particulars of Offence
Scott Anthony Coburn on the 27th day of May 2018 at Elizabeth Downs, trafficked in a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact the substance was a controlled drug.
He elected for and I heard his trial without a jury. These are my reasons for verdict.
The offence of trafficking in a controlled drug contains several elements; each of which had to be proved by the prosecution beyond reasonable doubt.[1]
[1] Controlled Substances Act 1984, s 32(3).
First, the prosecution had to prove that the substance, located by Police in a resealable bag, inside a stubby holder and in the shed owned by the accused, had been a “controlled drug”.[2] That was not in dispute.
[2] Controlled Substances Act 1984, s 4.
Second, the prosecution had to prove that the amount of methylamphetamine found had been a traffickable quantity. That was also not in dispute.[3]
[3] The drugs were of a mixed weight of 10.3 g, of which 7.2 g was pure methylamphetamine; Two grams of methylamphetamine is deemed a trafficable quantity under the Controlled Substance (Controlled Drugs, Precursors and Plants) Regulations 2014, Schedule 1.
Third, the prosecution had to prove that the accused had been in “possession” of the methylamphetamine, by having control over the disposition of that substance.[4] That element was denied by the accused and, while he did not have to, he gave evidence of an innocent explanation.
[4] Controlled Substances Act 1984, s 4; Possession does not mean ownership. Obviously, you can possess something without necessarily being the owner of it. Nor does possession necessarily require actual physical custody of the thing. Possession means the power and the intention to exercise control over the thing. The power and intention to exercise control over something necessarily implies an awareness of the existence of the thing. Mere possession or acquiescence is not enough. Intention to exercise control is required.
The prosecution had to prove that the accused had knowingly possessed the methylamphetamine, knowing it had been methylamphetamine or another controlled drug or being reckless to the fact that it had been either methylamphetamine or another controlled drug.
Once proven to be in possession of a traffickable quantity, it is presumed, in the absence of proof to the contrary, that an accused is in possession for the purpose of sale.[5] The burden imposed on the accused in such a case is to satisfy the court of the probability that they had not intended to traffic any of the substance.
[5] Controlled Substances Act1984, s 32(5).
The sole issue was whether the accused had been in possession of the drugs found by Police during a search of his shed. The prosecution relied on agreed facts and tendered exhibits to prove its case. It also called six witnesses.
First, Detective Brevet Sargeant Sargent. He described the house and shed.
Second, Reannan Millhouse. She said the accused had supplied her and others with methylamphetamine and that she had been in the shed when Police attended.
Third, Detective Sergeant Forrest. She had located some digital scales and glass pipe during the search.
Fourth, Brevet Sergeant Potts. He had identified a fingerprint, on the plastic resealable bag containing the drugs, as belonging to the accused.
Fifth, Detective Sergeant Nguyen. He explained the sale, use and pricing of methylamphetamine and, what had been the commonplace indicia of drug trafficking.
Lastly, Brevet Sergeant Shepherd. He had found the methylamphetamine.
The accused gave evidence and denied possession. He gave an innocent explanation as why the drugs had been in his shed and why his fingerprint had been found on the bag in which they had been contained.
The prosecution relied substantially on circumstantial evidence to establish possession: that the accused had been selling drugs from his shed; the location of the drugs found in the shed of the accused and the manner in which the drugs had been concealed beneath a temporary shed floor covering; that the defendant’s forefinger had been placed and oriented across the seal of the bag, as if to seal it; and, the presence of items within the shed - such as digital scales, an ice pipe and CCTV monitoring – which pointed to drug use and trafficking in methylamphetamine.
Trial by Judge alone
As this was a trial without a jury, I must deliver considered and fully articulated reasons. Whilst sufficient reasons must be given to properly explain my verdict,[6] I am not obliged to express all matters, ‘which necessarily have to be stated to a Jury, unfamiliar with the basic principles of law’.[7]
[6] BCM v The Queen [2013] HCA 48: Douglass v The Queen [2012] HCA 34 [14]: R v Keyte (2000) 78 SASR 68: AK v Western Australia [2008] 232 CLR 438: and Aiken v The Queen [2014] NSWCCA 213.
[7] Markou v The Queen [2012] NSWCCA 64 [19]: R v R, R & R, LJ [2008] SASC 35; R v T, WA (2014) 118 SASR 382.
General Directions
In reaching a verdict, I have applied the principles, relevant to this case, helpfully set out by Lovell DCJ (as he then was) in R v S, GJ.[8]
[8] R v S, GJ [2012] SADC 150, [11]- [25].
As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offences as charged.
If the accused does adduce any evidence which is consistent with his innocence, as he has done here, he does not have to prove it; it is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not prove its case.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offences unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt. In the findings, I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
The accused is presumed by law to be innocent of each of the offences unless and until the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of any offence charged, then he remains presumed innocent and I must find a verdict of not guilty.
If I am satisfied that there may be an explanation consistent with the innocence of the accused, or I am unsure of where the truth lies, then I must find that the charge has not been proved to the standard of proof required by law and I must find the accused not guilty.
I must determine whether each of the witnesses are truthful and reliable, that is whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
In this matter, the prosecution seeks to establish guilt of the accused with a case reliant to a significant extent on the evidence of two witnesses. I must therefore exercise caution and examine their evidence very carefully in order to satisfy myself that I can safely act upon that evidence. I must approach their evidence with particular caution and only act upon it if I am satisfied beyond a reasonable doubt that it is honest, reliable, credible and truthful.
I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my commonsense, experiences and wisdom in assessing the evidence.
In this case I am asked to draw inferences from the proved facts. I accept that it is necessary to be careful about drawing inferences. I should examine any possible inference to ensure that it is a justifiable inference and I should not draw such an inference unless it is the only rational inference given the circumstances.
I note in this case that the accused gave evidence on oath. He was not obliged to give evidence. He had the right to remain silent in answer to the charge, leaving it to the prosecution to satisfy me of all the ingredients of the charge. I note I am entitled to give him such credit as I think appropriate for adopting a course that he was not obliged to adopt.
In assessing his evidence and the weight to be given to it, I am to approach the task in exactly the same way as with any other witness. It is for me to decide what weight I am prepared to attach to the evidence of the accused in the same way as it is for any other witness.
The Evidence
The prosecution and the defence tendered the following exhibits:
Reference
Description
P1
Mud Map of 95 and 97 Hamblynn Road, Elizabeth Downs
P2
Google Image of 95 and 97 Hamblynn Road
P3
Bundle of Photographs of 97 Hamblynn Road
P4
Bundle of Photographs Taken 27 May 2018
P5
Photographs of Scales
P6
Disc, Record of Interview
D10
Bundle of Photograph Text Messages
P11
Stubbie Holder
P12
Two Photographs of Fingerprint Images
P13
Fingerprint Chart Prepared by Sergeant Potts
P14
Statement of Agreed Facts
Facts were agreed:[9]
[9] Exhibit P14; some dates are obviously incorrect as they pre-date the offending, eg the offending is alleged to have occurred on 27 May 2018 yet, exhibits are removed or destroyed in early May 2018.
General
On 18 December 2008, Scott Anthony Coburn purchased the premises at 97 Hamblynn Road, Elizabeth Downs.
As at 27 May 2018, Scott Anthony Coburn resided at 97 Hamblynn Road, Elizabeth Downs with his wife Lauren Coburn, and their infant child.
Seizure of items
The following items were seized by Police:
Exhibit No. allocated by Det Sergeant Kylie Forrest Item description Police Property Management System No. (PPMS number) HR1 Plastic resealable bag containing approx. 10g white crystalline substance 18/A73074-1 HR2 Stubby holder 18/A73074-2 HR3 Set of scales 18/A73074-3 HR4 Ice pipe 18/A73074-4 No other plastic resealable bags were located and seized by Police.
On 20 May 2018, item 18/A73074-1 was removed from the Police Property Management System and a decant procedure was undertaken, resulting in the original plastic resealable bag being booked into PPMS as item number 18/A73074-012, and the crystalline substance being booked into PPMS as item number 18/A73074-001.
Item 18/A73074-4 was authorised for release via means of destruction on 2 May 2018 in accordance with standard Police procedures. The item was subsequently destroyed by Police on 4 June 2018.
Analysis
On 1 June 2018, item 18/A73074-001 was delivered to the Forensic Science Centre SA (FSSA) by Police.
Following receipt, item 18/A7307-001 was placed into secure storage from which it was later removed in order to conduct analytical tests, and was allocated exhibit number 1802783/10.01.
Item 18/A73074-001 weighed 10.3g and contained 7.2g of methylamphetamine.
Arrest
At about 2.06pm on Sunday 27 May 2018, Police activated a video camera and placed the accused under arrest for Trafficking in a Controlled Drug.
At about 2.38pm on Sunday 27 May 2018, Police activated a video camera and conducted a record of interview with the accused.
Fingerprints
On Sunday 27 May 2018, following his arrest, fingerprints were obtained from the accused between 3.36pm and 4.46pm.
On 1 June 2018, item 18/A73074-012 was deposited at the SAPol Evidence Desk for the purposes of fingerprint analysis.
Item 18/A73074-12 was treated and examined for the presence of fingerprint ridge detail. An impression was located and identified by a unique barcoded label marked 901-80-077-2.
The print marked by label 901-80-077-2 is the fingerprint of the left index finger of the accused.
Other persons present
Alex George Winter was arrested at 97 Hamblynn Road, Elizabeth Downs, on 27 May 2018 in relation to the offences of Trafficking in a Controlled Drug and Possession of a Firearm Without a Licence.
Reannan Lee Millhouse was arrested at 97 Hamblynn Road, Elizabeth Downs, on 27 May 2018 in relation to the offences of Trafficking in a Controlled Drug and Possessing a Firearm Without a Licence, and was interviewed by Police.
No items of interest were located in the possession of Reannan Lee Millhouse.
The offence of Trafficking in a Controlled Drug was withdrawn in relation to Alex George Winter and Reannan Lee Millhouse on 23 November 2018.
The offence of Possessing a Firearm Without a Licence was withdrawn in relation to Reannan Lee Millhouse on 23 November 2018.
Evidence in Chief- Detective Brevet Sergeant Logan Sargent
Detective Sargent told me he attended at 97 Hamblynn Road, to search for a firearm thought to be in the possession of Alex Winter. The front of the house had a roller door and, to its right, a section of corrugated iron with a cut out pedestrian gate.[10] A CCTV had been on the wall between the roller door and the corrugation. Officers knocked. The wife of the accused opened the roller door.[11] They could see, through a fence and gate, a shed and shed door. He had seen three people emerge from the shed; including the accused. As the accused approached from the shed, Police announced they were there to search for a firearm and were invited through. [12] Detective Sargent had also seen Mr Winter standing in the rear yard, at the southern boundary of the fence. During a search of the shed, methylamphetamine and drug paraphernalia had been found. The accused had been arrested. [13]
[10] Exhibit P3, T21 line 16.
[11] T24.
[12] T26 line 4 (Exhibit P3, T21 line 16, T26 line 4).
[13] Exhibit P6.
The accused was interviewed and asked what had occurred that morning.[14] He said he had got in a cab to get some milk and, when he returned, had seen Larry Cicarello and the girlfriend of Alex Winter, Reannan, in his driveway. He said he had let Larry and Reannan into his back yard and had then gone inside. After he had burped his baby son, he had gone to the back shed. He had been “…only one step in the door like two steps in the door”, and had heard the roller door go up and turned to see Police.
[14] Exhibit P6.
The accused was asked where Reannan and Larry had been. He said they both had been sitting at a table in the shed; Reannan in a green deck chair and Larry in a wheelchair. He had heard Reannan speak to Police on her phone about bail for a friend.[15] He said he had not had any conversation with Alex Winter that morning. [16] He said he had not been expecting either Larry or Reannan that morning.[17] He said that when he had first seen Reannan, he said nothing to her. He had just instructed Larry to come through the roller door and let Reannan in through the corrugated side gate. He said that when he had gone into his shed, he had asked Larry who Reannan had been speaking to on the phone. Larry had said, “the coppers or something like that”. He said he then, “went back inside … and …when I came back out and that’s when you [Police] were already there ... I barely actually seen…Rea I seen out front and then pretty much when I walked in she was on the phone to well obviously the cops or the Police station or whatever, she was swearing at something.”
[15] Exhibit P6.
[16] Exhibit P6.
[17] Exhibit P6.
The accused was asked whether Alex Winter had been there that morning. He said that, at no point, had he seen Alex Winter go into his shed.
The accused denied any knowledge of the stubby holder, resealable bag or the drugs.[18] He said he had not seen the stubby holder or the resealable bag in the stubby holder before; “no see I don’t really know I haven’t seen that one before”. The accused said he had seen the scales before; they were Zac’s.[19] He disavowed the glass pipe and said he assumed that it had also been Zac’s because he had been staying in the shed. [20]
[18] Exhibit P6.
[19] Exhibit P6.
[20] Exhibit P6.
When asked about, “…the orange floor when was that put in?” he responded,[21] “It’s been up a few times because we cut wood on there the other night and some mates stapled more down and whatever …”
[21] Exhibit P6.
When Police asked him whether any other persons had been in the shed since the Friday before that Sunday morning, he said, “Well obviously Larry, Rea, Alex because he there this morning Shaun I think Shaun stopped in I think Friday yeh.”[22] Asked to confirm whether anyone else had been in the shed, he responded, “no I can’t really think of”. When Zac was mentioned, he said that Zac had been in the shed.[23]
[22] Exhibit P6.
[23] Exhibit P6.
In relation to when he had last used methylamphetamine, the accused told Police; “oh way before my misses was even pregnant. When we found out she was like pregnant”.[24] He elaborated:
Yeah because I got, well the last time … I got it was the night before in town, it was like easily I was coming down. I went to pick up the cupboard from Mrs dads house at Golden Grove and I was driving the car and basically I was pulled over, I think I was slightly speeding and I was on Bridge Road, off Bridge Road onto what’s the name, there was a radar there so I pulled up a bit further and I thought yeah sweet no worries it had been like hours you know what I mean like I had slept that morning all up until about lunchtime, I think it was about 4 o’clock when I got done um and then pretty much then I had obviously done it, it had come up on the system and I was like seven to nine hours or something like that so I thought I would be alright no worries because I wasn’t, I had been asleep so I didn’t feel the effect, I wasn’t feeling the effect of it so you know I was yeah … no licence after that.
Cross-examination of Detective Brevet Sergeant Sargent
[24] Exhibit P6.
Detective Sargent was cross-examined. He confirmed that the scales found had not been tested for fingerprints, DNA or controlled substances.
Evidence in Chief of Detective Sergeant Forrest
Detective Forrest said she had been the exhibits officer for the firearms search and had executed her general search warrant when the methylamphetamine had been found. She had searched the office area within the shed and had found the digital scales on a wooden table within the rear of the shed and the ice pipe on top of a desk in the rear of the shed.[25] She had also searched the house but had found nothing of interest. She had seen Alex Winter, Reannan Millhouse, Larry Ciccarello and the accused at the property that day. Finally, she said a firearm had also been found.
Cross-examination of Detective Forrest
[25] Exhibit P4 being a book of photographs of those items amongst others.
In cross-examination, Detective Forrest confirmed a mobile phone had also been seized and that no tick list had been found.
Examination in chief of Reannan Lee Millhouse
Ms Millhouse, in her evidence in chief, said she had known the accused since about March 2018[26] and had met him through her ex-partner, Alex Winter. She and Alex had only ever met with the accused in his shed. They had only entered and left through the side gate at the front. She had been in the shed just once without Alex; because she had been hiding from him. Once or twice, the accused had not been in the shed when she had been there.[27]
[26] T75 line 16.
[27] T79 lines 20-35.
She said that she had not been allowed into the house; except maybe three times when she had used the toilet connected to the laundry. She had never gone into the rest of the house because the wife and child of the accused had been inside; she considered it would have been disrespectful.[28] She had got into the laundry, as directed by the accused, across some decking at the side of the house.
[28] T79 lines 10-17.
Ms Millhouse told me about significant changes she had seen to the inside of the shed. At first, she said, there had just been a shed and shed floor. Later, an internal loft had been built and tools and other stuff had gradually filled the inside area. Scaffolding, a table and couches had been moved around. She had seen welding, the building of stairs, a sunroof and plastic sheeting being laid down on the floor ready for concreting; “like one minute there was dirt, the next there was orange plastic”.[29]
[29] T83 lines 16-18.
She told me that usually there had been a few other people in the shed; it had been “a hang out because he (the accused) had a lot of mates”.[30] She had known the other people hanging out in the shed through the accused and Alex. She had smoked methylamphetamine and marijuana in the shed; as had the accused and Alex. They had consumed methylamphetamine from a glass pipe, in both the loft area and at a table in the little room under the loft. She had seen methylamphetamine on that table.
[30] T80 line 5.
Ms Millhouse said she had seen drugs being purchased from the accused in the shed and had also seen him sell drugs to Alex Winter. Alex Winter had taken money from her bank account and she believed he had used that money to pay the accused. The accused had given her drugs, but she had never paid for them because they “were friends”.[31]
[31] T81 line 16.
On 27 May 2018, she said her and Alex had arrived, uninvited, at the Coburn house. The accused had been leaving in a taxi with another lady. He told them to come back later. When they came back, Alex either yelled out or knocked and they were let in through the small corrugated gate by Scott’s friend, Larry. She had met Larry before. They walked down to and into the shed. She sat down at the table in the shed in a green chair and Alex sat in a camper chair. The accused had been sitting across from them.[32] A marijuana bong and a starter gun had been on the table. A security camera fixed on the wall, had been running live footage of the driveway.
[32] Exhibit P4, photograph 6.
Once in the shed, Ms Millhouse said that the accused, Larry, Alex and her, had just started talking. Alex had wanted drugs and the accused had said he had none. She told me that Alex had been having difficulty sourcing drugs because he had not been paying his suppliers and had earlier told her that the accused had told him he would not be supplying him anymore; because he had not paid him. Alex tried to use the last of any methylamphetamine left in the ice pipe on the table.
Ms Millhouse said that, while in the shed, she had been calling the Police station to see if one of her friends had been granted bail. She had heard the Coburn address mentioned and told the others. She could not remember whether the accused had left the shed at all while they were there.
Ms Millhouse told me that, after about half an hour, she and the accused had seen Police on the screen of the security camera and; “we all kind of freaked out”.[33] She stood up and went over to the shed door to see if the Police were going to come straight in or whether they had to be let in. She said; “[e]veryone [was] kind of just moving around but then the Police got let straight in, and it’s kind of a bit hazy from there hey”.[34] Ms Millhouse thought the accused had let the Police in. The Police then separated them: Mr Coburn at the gate to the back garden; Alex Winter at the back of the house; and, her out the front.
Cross-Examination of Reannan Lee Millhouse
[33] T90 line 2.
[34] T90 lines 8-15.
Ms Millhouse was subject to extensive cross-examination and was challenged strongly on several key elements of her evidence.
She accepted that she had previously been charged, along with Mr Winter and the accused, as a co-accused. She accepted, when challenged, that actually it had been another person who had posted the transcript of her interview on Facebook and she had assumed that the accused had given that person the transcript. She also accepted she had only told Police that her transcript of interview had been posted on Facebook when she had dealt with Police to obtain a recent intervention order against Alex Winter. She explained that she had not told Police earlier because she had believed Police had been her enemy.[35]
[35] T100 line 6.
Ms Millhouse said that while she had been sitting with Larry, the accused and Alex around the table in the shed, the accused had been pottering around and had stood a lot of the time.
She rejected the suggestion put to her that, when the accused and Mr Winter and herself had been in the dock at the Magistrates Court, she had audibly said to the accused, “ha ha ha you’ll get lumbered for all of this”. She volunteered that she had mumbled that the accused had been trying to intimidate her because he had sent people to her father’s house. She accepted that she had no direct knowledge of the accused sending any people around to her father’s house, and that she had assumed that to be the case because of the identity of the person who had come around.
Ms Millhouse had her attention drawn to several asserted inconsistencies between her written statements and her evidence. First, that she had not mentioned in her statements that her interview had been posted on Facebook and, second, that she had not mentioned that people had attended at her father’s premises to intimidate her. She was taken to her written statement in which she had described multiple crack pipes and also crack bongs and weed bongs being in the shed. She accepted that was inconsistent with her evidence in chief, that there had been only one crack bong and one weed bong on the table. She accepted that she had signed a statement and explained that it had not reflected what she had told Police. She said there had actually only been one bong and ice pipe.
Under challenge, Ms Millhouse maintained that she had gone to the toilet three times in the house and had accessed the laundry across the backyard and over decking at the side of the house. She accepted, when put to her, that in giving that evidence she had assumed that the internal laundry door had been locked and that she had never actually tried to get through the door.
She also confirmed one incident (after her arrest), when Alex Winter had jumped the accused’s back fence and had stolen from the property.
Ms Millhouse maintained, under challenge, that the first time she and Alex had been at the Coburn house the day the Police attended, her and Alex had walked and, the second time, they had gotten a lift.[36] She also maintained that, when they had first arrived that day, Mr Coburn had been taking a woman home in a taxi.
[36] T228 line 30.
Ms Millhouse maintained, under challenge, that the shed had been a place for methylamphetamine use. She said; “it wasn’t a secret, it was just because when you use methamphetamine you are up all night. He [the accused] didn’t want people waking his wife and his son up”.
Evidence in chief of Detective Sergeant Nguyen
Detective Sergeant Nguyen, an experienced officer from the Drug and Organised Crime Task Force, gave evidence that the press sealed bag, in which the methylamphetamine had been found, represented a common example of the type of bag which had been used to store methylamphetamine in 2018.[37] In and around May 2018, he said, a street deal of a point or one tenth of a gram of methylamphetamine fetched about $50.00 and a gram fetched between $250.00 and $300.00. The value of the methylamphetamine found in the shed, he said, had been significant.
[37] Exhibit P4.
He also told me that payment for drugs at that time would usually be in cash but often drugs would be sold on credit; that is, “on tick”. He said that purity levels for methylamphetamine fluctuated but, for the relevant period of this case, a purity of 69.9% methylamphetamine had been common place. Further, he said he considered that the methylamphetamine found that day, had been diluted just once.
Detective Sergeant Nguyen also explained that, at the time of this alleged offending, CCTV had been commonly used within the general community, but, given the risks for people who engaged in drug trafficking, CCTV had also been commonly used by drug dealers as a monitoring and security tool.
Cross-examination of Detective Nguyen
In cross-examination, Detective Nguyen confirmed that: testing for methylamphetamine residue on the items found in the shed had been possible; tick lists had been a common indicia of drug dealing; drug dealers often had multiple phones in their possession; passwords to mobile phones had, in his experience, sometimes been provided by suspects; and, drug dealers often had sophisticated security, including multiple cameras, in place, where they conducted business.
Evidence in chief of Senior Constable Shepherd
Detective Senior Constable Shepherd told me he had attended at 97 Hamblynn Road, Elizabeth Downs to search for a firearm. He observed, when he arrived, several people talking to Police: Reannan Millhouse had been at the front of the property; Alex Winter had been on the western side of the property in the rear yard and towards its southern end; and, Mr Coburn had been seated in the driveway on the northern side of the property.
He had observed the large shed in the back garden and he had noticed orange plastic sheeting on the floor of the shed; as if being renovated. Inside, he said, the shed had been cluttered with lots of tools, mechanical items and other handy-man type items. There had been a loft area at the rear of the inside of the shed on the far western side at the top of some stairs to the left-hand side. In the main shed area, he said, there had been a screen on a wall which showed a CCTV image of out the front of the house to the road. A table had been located in the central area underneath the loft around which chairs, including a wheel-chair, had been placed.
Detective Shepherd told me he had searched the area under the loft for firearms and did not find anything of significance. [38] He then proceeded to search the base of the stairs near a green Heineken Fridge. His attention had been drawn to that area as the orange plastic appeared slightly raised. [39] He described how he had located a stubby holder, containing a resealable bag, underneath the orange plastic flooring.[40] He said that the stubby holder had not been immediately visible and had only been revealed when he had lifted back the orange plastic flooring. He said the plastic had been quite easy to pull back.
[38] Exhibit P4, photograph 6.
[39] Exhibit P4, photographs 9 and 10.
[40] Exhibit P4, photographs 1 and 2.
Detective Shepherd told me he had then looked inside the stubby holder and had seen a plastic resealable bag. He removed the bag and had looked inside and had seen a crystalline substance tucked in the bottom.[41] He replaced the bag in the stubby holder and informed Detectives Williams and Hewish that he suspected that he had located drugs. Detective Sergeant Forrest had then executed her general search warrant.
[41] Exhibit P4, photograph 4.
Detective Shepherd said that he had then assisted Detective Williams in taking a series of photographs.[42] He did not recall the sequence in which the photographs had been taken. After the photographs had been taken, he had handed custody of the stubby holder and bag to Detective Williams and had continued his search of the shed. He said he had not found anything further of significance in the shed, but in his search of the rear yard he had located a firearm, just over the fence in the neighbouring property.
Cross Examination of Detective Shepherd
[42] Exhibit P4.
Detective Shepherd was subject to detailed cross-examination by Mr Mancini.
He agreed that no photographs had been taken of the shed before his search had commenced. He also agreed that he had failed to mention in his examination in chief and his written statement that he had moved things around in the shed during his search and, that the photographs tendered had been taken after those various items had been moved around. He elaborated that the shed had been heavily cluttered and he had been required to move items in order to gain better access to the corner where the drugs had been found.
He maintained, under challenge, that the orange plastic on the floor had been covering the stubby holder. He said he had to hold the plastic back in order to photograph the place where the stubby holder and drugs had been found. He said that, after the photographs had been taken, when he had let go of the orange plastic, the plastic had fallen back in place on its own. He accepted that he had taken the drugs out of the location he had found them in - concealed under the orange plastic floor covering - and that he had put them on top of a nearby plastic tub so they could be photographed.
Detective Shepherd confirmed he had been searching for a firearm, not drugs. He said he did not routinely video searches and had not made any notes of what, and how far, items had been moved.
Examination in chief of the accused Scott Coburn
The accused gave evidence in chief. He told me he had purchased the house at Hamblynn Road from the estate of a relative and had begun building the shed at the property in early 2018; with the help of friends. He said the shed had two floors. The mezzanine had been used as a storage space and to entertain friends. At the time, his friend, Zac Hunt, had been temporarily living in the shed.
The accused said he had used drugs in the past; beginning with cannabis. He had sourced those drugs, before he had been married, from his then roommates, who had lived with him at Hamblynn Road. His friends had been excessive users. He said he had continued smoking cannabis into 2018, either using a bong or rolled up. He had purchased cannabis in bags for $25; about two and half grams. That quantity had lasted him two to three days. His use of cannabis had assisted with anxiety and knee pain from a sports injury. He said he had become addicted to cannabis, after his grandfather had died in 2016 to cope with grief and out of boredom. He said he had stopped using cannabis in 2018.
The accused told me that he had been disqualified from driving in around October 2017, for 12 months, after he had been caught driving with cannabis in his system.[43] He said he had also used methamphetamine between the ages of 18 and 25 years and when out with friends. He had either got that drug from friends or had purchased it. He told me that the last time he had used methamphetamine was at a bucks party in 2017. After that, he said, he had no further interest in using that drug and had never sold or supplied it to anyone. He told me that he had not sold drugs to Mr Winter, Ms Millhouse or anyone else.
[43] T414 line 9 - T415 line 2.
The accused said that he had known people who had used drugs in 2018 and that he had turned a blind eye to the use of drugs in his home; he had an open-door policy. He said he had not smoked drugs in his house. He said that he had seen the ice pipe seized by Police and had assumed that it had belonged to Zac Hunt because he had seen him smoke methylamphetamine.
The accused said that he had celebrated his 30th birthday the day before he had been arrested and had hosted a party. His guests had included his brother and friends John Gartner, Zac Hunt, Jaron Marks, Larry Ciccarello, Andrew McGawky and Shaun Winter. They had all been drinking in the shed. He had seen his guests come and go from the shed and had assumed they had gone outside to smoke drugs, because his brother- who had attended the party for a time- did not condone the use of drugs. He also said he had gone up to the mezzanine level during the party and had seen Jaron Marks and Zac Hunt smoking a pipe packed with methylamphetamine. Jaron had a red straw and had been lighting the ice pipe with a lighter. He had not seen anyone else use methylamphetamine. Everyone, except him and his brother, had also smoked cannabis upstairs.
At the party, he had been drinking for five to six-hours. He had about eight to nine cans of Jim Beam and a few shots of Sambuca. He had also smoked cannabis. He told me he had gone to bed around 4 am the following morning and had been intoxicated. His guests had still been celebrating in the shed when he had gone to bed and he had left them there. He had done that because Mr Hunt had also been friends with his guests. When he had left the party, he asked those remaining to keep the noise down.
The accused said he had a clear memory of the day of his arrest. He said he had woken up groggy and his wife had asked him to go and get some milk. He had called a taxi. He had not gone into the shed before he left to get the milk.
He told me that, coming back from the service station, he had noticed a missed call from Alex Winter. He had not called him back. When he had got home, Larry Ciccarello and Reannan Millhouse had been in the driveway out the front of his house. His wife had called him inside and he had gone into the house to tend to his son. He had not seen Mr Winter but he had assumed he had been there; because Ms Millhouse had been there.
The accused gave several accounts (in his evidence in chief) of what had occurred before and when Police arrived about half an hour later. He said that just before Police arrived:
·the others had been in the shed and he had been inside the house; or
·he had been in the shed with Mr Ciccarello (who had been rocking back and forth in a wheel chair), Mr Winter (who had been sitting in a corner) and Ms Millhouse (who had been on the phone to Police inquiring about a friend); or
·he had not seen Mr Winter at all.
When he realised that Police had arrived the accused said that he had:
·stood up from the table in the shed and panicked. He had seen a stubby cooler on the corner of the table and had not known what was in it. He had picked it up and had thrown it. They had then been marched out of the shed by Police; or
·stood up from the table in the shed and panicked. He had initially been concerned to remove the cannabis bong from the table because cannabis was illegal. He had seen the stubby holder and had thrown it toward the stairwell and had started walking out; or
·been scared because when he had gone to grab the cannabis bong, he had seen the white substance in the stubby holder as the bag had been hanging out. He had assumed the white substance was something bad and had just thrown the stubby holder; or
·been scared when he had gone to grab the cannabis bong. He had not seen the white substance in the stubby holder, but had picked it up and thrown it.
The accused told me that he recalled- when he had picked up and thrown the stubby holder- that he had held the resealable bag with his left index finger and thumb.
The accused also told me that he had met Alex over 10 years before; through his cousin, Shaun Winter. He said that he had not seen Alex for the nearly ten years since, except, on two occasions in the couple of months before the day of his 30th birthday. He gave two accounts of the first time as follows:
·he had been working on the shed with a few friends and one of his friends had let Alex in and Alex had just sat around while the rest of them worked on the shed, Alex had not participated in the work but had just been on his phone and then had subsequently left; or
·Alex had come around with Ms Millhouse to ask about borrowing a car.
The accused also gave two accounts of the second occasion. Either, Alex and Ms Millhouse had come around and had asked about borrowing a car and had argued between themselves before Alex and Zac had argued, or, the second time had been the morning of his arrest; the “Police thing”.
The accused denied that he had asked anyone to bring methylamphetamine to his party or that he had sold methylamphetamine to anyone - including to Alex on credit or to Ms Millhouse. He denied that Ms Millhouse had been to the shed by herself. He denied he had posted materials from this case on Facebook or that he had any involvement in or knowledge of that or of any harassment of Ms Millhouse. He admitted that he had known the person Ms Millhouse had said had harassed her father.
He told me that sometime after his arrest, his shed had been broken into and some of his property had been stolen. He had seen, that day, a white Magna parked down the road from his property and had seen the same car, driven by Ms Millhouse, involved in a car accident. He had concluded that Ms Millhouse and Alex had been involved in the break in to his shed.
He said that he had previously seen the scales which had been seized by Police, in the belongings of Zac Hunt, but he had not seen those scales the morning of the search of his shed.
The accused denied that he had ever let Ms Millhouse into his house and that she had never used the toilet in his house. He said there had been no lock on the door leading from the laundry area into the main house.
The accused also said that he had not told Police, in his interview on the day of his arrest, that he had thrown the stubby holder because, he thought, they would try to get to the bottom of who owned the stubby holder. He said he had been worried about incriminating himself.
Cross-examination of the accused
The accused was subject to lengthy cross-examination.
He told me that when he had woken up that morning, he had known everyone at the party had left the shed because it had been quiet and the gates appeared to have been locked. He accepted that he had not checked the backyard or shed, to see if any of the party attendees remained.
He denied that he had said in his evidence in chief that Larry had been at the party.[44] He was asked why Larry, a good friend, had not been invited to his birthday party. He said, in response, that it had not been a birthday party as such. Rather, some of the people helping with the shed had brought drinks and had consumed them. He said that Larry had a medical issue and that had been why he had not been there the night before.
[44] At T423 lines 21-26; the accused stated Larry Cicarello had been at the celebration.
Asked whether he had known that Larry would be at his house the following morning, the accused said that he did, as he and Larry had exchanged text messages that morning. It was put to him that he had told Police that he had not been expecting Larry. He said, in response, that; “obviously Larry didn’t message me that morning”.[45]
[45] T472 line 4- T473 line 4.
The accused recanted, when asked about his evidence in chief that he had seen Alex Winter in the shed that morning, and said he must have been mistaken:[46]
…”it must have just been his bag and that I’d seen there and that’s why I thought I had seen him there but I must have been mistaken”.
Q.How do you know it was his bag.
A.I’d never seen the bag before. Just like I said I assumed- like, I assumed that he was with her. I must have- I was assuming.
[46] T499 line 38, T506 lines 1-26.
The accused maintained that he had not seen the Police arrive on the CCTV screen. He said that he had been inside the shed and that he had heard the roller door go up and knew it must be Police. He said that he had exited the shed and that the first time he had actually seen the Police, was when they had nearly entered the shed.[47]
[47] T516.
The accused confirmed his evidence that he had stopped using methylamphetamine, either: when aged around 25 years; or, after a friend’s bucks night in 2017 (less than a year before his arrest). He said that, at the bucks party, he had contributed to the purchase of the methylamphetamine consumed. He said that he had been assisted in his recollection of when he had last consumed methylamphetamine by a recent Facebook memory for the bucks night which had appeared in his feed; it had been seven years ago.
The accused was asked about the evidence he had given about the loss of his licence in 2017.[48] He was reminded by Ms Park, for the prosecution, that he had said in his evidence in chief that he had consumed cannabis on that occasion. She asked him whether he had also consumed methylamphetamine and whether he had tested positive for methylamphetamine when he had been stopped by Police. The accused denied that he had consumed methylamphetamine on the same occasion. He said he had taken methylamphetamine a few days before the stop. When challenged further that he had said in his evidence in chief that he had last taken methylamphetamine seven years before, the accused, in answer, drew a distinction between methylamphetamine in gel form and in pill form. He said they were “…nothing like the same.”[49] He contested the proposition, put to him, that he had lost his licence because he had methylamphetamine in his system. He accepted that he had tested positive for methylamphetamine on the occasion he had lost his licence, but he did not accept he had lost his licence because of that positive test.
[48] His evidence in chief was at T414 line 16.
[49] T534 lines 3-15.
Closing Address of the Prosecution
The prosecution relied on four pieces of evidence to prove possession.[50] First, the location of the drugs found in the shed and the concealment of those drugs under the orange plastic floor lining. Second, the point of location of the left index fingerprint of the accused on the plastic resealable bag containing the methylamphetamine. Third, the items found within the shed, consistent with drug trafficking and lastly, the evidence of Ms Millhouse.[51] Ms Park submitted that, while the evidence of Ms Millhouse was linked to the other evidence,[52] the other three pieces of evidence, when combined, were enough to prove possession beyond reasonable doubt.
[50] T563–564.
[51] T564.
[52] T564.
As for Ms Millhouse, I was urged to accept her evidence that: in May 2018, she had been a drug user and she had known the accused; on occasions prior to the Police attending, she had consumed drugs given to her by the accused while in his shed; and, she had been present in the shed on the day Police attended.[53] I was also urged to prefer her evidence to that of the accused. First, in respect of her evidence that she had attended the shed on multiple occasions and had consumed drugs; the accused had said that the day of his arrest had been the first or second time Ms Millhouse had been in the shed and he had not given or sold her or anyone else drugs. And second, in respect of her evidence that she had been inside the main house in order to go to the bathroom; the accused had said she had never been in the house.
[53] In opening, the prosecution said Ms Millhouse would say that she was present when methylamphetamine was being sold. In closing, consistent with her evidence, the prosecution said I should accept that she had consumed drugs given to her by the accused in his shed.
The prosecution said Ms Millhouse had been reliable and truthful and the accused unreliable and incredible. Further, it was submitted, his version of events, as to how his fingerprint had come to be on the resealable bag, had been implausible. Ms Park, said Ms Millhouse had correctly recounted the layout of the laundry and the toilet.[54] She submitted the only way she could have known that detail, was if she had been inside that area of the house with the accused’s permission.[55] Further, she said Ms Millhouse knew the accused well enough to know that he had a wife and young baby.[56] Ms Park submitted that Ms Millhouse had frankly admitted where her memory had been inconsistent with the facts and that she had readily accepted when she had not actually had direct knowledge of a topic and had been making assumptions.[57] Further, it was submitted, Ms Millhouse had not attempted to exaggerate the conduct of the accused to embellish his involvement with drugs.[58] Finally, the prosecution said the evidence of Ms Millhouse, that she had seen the Police arrive on the CCTV camera, had been both likely and plausible.[59]
[54] T567; see the layout in Exhibit D8.
[55] T566.
[56] T568.
[57] T569.
[58] T571.
[59] T573.
In respect of the accused, Ms Park submitted that I could be certain he had lied in his evidence and to Police.
He had told Police in his record of interview that he had not seen Mr Winter. In chief, he had said that Mr Winter had been sitting in a green chair in the corner of the shed. The accused had initially maintained in cross-examination that he had seen Mr Winter in the shed but, when taken to his record of interview, had said he had not seen Mr Winter until he had been in the backyard after Police had arrived. The accused reversed his position and had then said he was certain that he had not seen Mr Winter. He said, in explanation of that change, that, he had just assumed Mr Winter had been there because Ms Millhouse had been there; or alternatively, because he had seen a black bag (which the accused said he had not seen before).[60]
[60] T580-581.
The accused had said that when Police arrived: he had been inside the house; or, he had been just in the doorway of the shed; or, he had been a few steps into the shed; or, he had been sitting at the table in the shed.[61] The prosecution submitted that, most probably, the accused had been sitting at the table in the shed and had observed the Police arrive on the CCTV monitor. That finding, it was submitted, could be made from a consideration of the evidence of Ms Millhouse and of Detective Sargent; who had said that when he had arrived and the roller door had been opened, he had seen straight through the carport into the rear yard, all the way to the entryway of the shed[62] and he had seen three people, including the accused, exit the shed.
[61] T581.
[62] T584.
Further, the accused had maintained, in respect of his account that he had been sitting at the table, that he had not seen the Police on the monitor.[63] Rather, he had said he had heard knocking on the roller door and it had been that which had alerted him to the presence of Police. The prosecution submitted that was implausible; there had been nothing in and of itself in the opening of the roller door to lead the accused to assume that Police had been in attendance.[64]
[63] T582.
[64] T584.
Rather, as there had been a CCTV screen located in the shed that had showed the front of the premises, it was likely, it was submitted, that the accused had seen the Police arrive on the screen. The accused, therefore, had the opportunity to conceal the drugs in his possession in the specific way they had been hidden.[65] The accused, it was submitted, had known Police had arrived and had wanted to ensure that they did not find the illegal substances in his possession. Alternatively, submitted the prosecution, the accused had concealed the drugs, where they had been found, at an earlier time.[66]
[65] T585.
[66] T585.
The prosecution said that the explanation given by the accused, as to how his fingerprint had been found on the bag, had been improbable. In one account, the accused had said he had made a split-second decision, when Police arrived, to inspect the stubby holder and had then found what appeared to be drugs. He said he had touched the bag holding the drugs using his thumb and forefinger at precisely the press-seal and had then thrown the stubby holder in a flicking motion, so that it landed in the hollow beneath the orange plastic which had covered the floor in the corner.[67] That was particularly improbable, submitted the prosecution, given that the more obvious cannabis bong and glass pipe had also been on the table.[68] Those items might, said Ms Park, have been expected to have caught the attention of the accused before the stubby holder.[69] The reason the accused had made hiding the stubby holder his priority, said Ms Park, had been because the accused had known exactly what had been in the bag; that is, it was his property.[70]
[67] T585.
[68] T586-587.
[69] T587.
[70] T587.
The prosecution submitted there was no other plausible explanation for how the drugs had come to be in the shed; other than because the accused had been in possession of them. The accused had built the shed separate from his family; his wife and baby had been inside the house. The shed had been his space; it had contained his tools and he had socialised and entertained there. The shed had been the space he had conducted his business of selling drugs from.[71]
[71] T588.
It was submitted that, if I accepted the accused had lied about throwing the stubby holder, I should also have misgivings about accepting other parts of his evidence. In that respect, it was inherently implausible, submitted the prosecution, that one of the accused’s associates or friends had simply left a considerable quantity of methylamphetamine in the shed in the manner described; an amount worth approximately $5,150.[72] A person who had been in possession of such a quantity of methamphetamine, it was submitted, would simply not have forgotten it or left it on a table. That was particularly so in respect of a place (the shed) where drug users had constantly been coming, going and gathering.[73]
[72] T588.
[73] T588.
The prosecution submitted the whole of the evidence showed an interest on the part of the accused in methylamphetamine and his involvement in the trade of that drug and the possession of that drug.[74] Accordingly, I could be satisfied the accused had been in the business of drug dealing.[75]
[74] T574.
[75] T590.
The prosecution also relied on the common location in the shed of the drugs and drug paraphernalia and the use of that shed as a place of drug dealing.[76] That evidence also established, it was submitted, that the accused had knowledge of the drug, how it had been consumed and how it had been sold and, a propensity on his part to engage in the business of selling methylamphetamine as part of a business.[77]
[76] T574.
[77] T575.
The prosecution submitted that the fingerprint evidence should satisfy me the resealable bag had belonged to the accused and that he had knowingly possessed the bag containing the methylamphetamine.[78] Further, the value of the contents of the bag - about $5,000 worth– should be sufficient for me to conclude that the accused had been in possession of the drugs. The only plausible explanation, it was submitted, for the presence of his fingerprint- in that location and oriented in that particular way- had been that the accused had sealed the bag containing the methylamphetamine.[79]
[78] T575.
[79] T576; Having said that, the prosecution conceded that if I accept the accused’s evidence as to how his fingerprint came to be on the bag, I must return a verdict of not guilty.
As for the evidence of Detective Shepherd, I was invited by the prosecution to accept his evidence in whole that: his attention had been drawn to an out of place section of the plastic flooring near the base of the stairs; the stubby holder had been under that section of plastic flooring; the stubby holder and drugs had not been immediately noticeable upon approach; the plastic had to be pulled back in order to reveal the drugs in question; the flooring had been secure in other places; and, the two tubs and the fridge on the floor had been closer to the back of the locker than they appeared in the photographs.[80]
[80] T577; Exhibit P4.
Further, the prosecution said the drugs had not been concealed amongst items that belonged to another person. Rather, their concealment had been consistent with the accused hiding his methylamphetamine in and amongst his items and under the orange plastic floor covering and away from others.
Finally, the prosecution submitted that, in the event I rejected the evidence of the accused in relation to how he had handled and thrown the plastic bag containing the drugs that Sunday morning; the inevitable conclusion had to be that the accused was guilty of the charge of trafficking in a controlled drug.[81]
[81] T597.
There could be, it was submitted, no other reasonable hypothesis open on the evidence and guilt was the only rational inference proven on the facts; in view of the combined strength of the circumstantial evidence.[82]
[82] T597.
Submissions of the accused
Mr Mancini, for the accused, said the submissions of the prosecution had been overstated and that much of what had been submitted, had not been put to the accused in cross-examination.[83] As to the admitted previous drug use of the accused, he submitted that previous drug use had not been led as part of the prosecution case and had only been revealed during cross-examination.[84] Mr Mancini said that the evidence of the accused, concerned with his use of drugs seven months before this alleged offending, had not proved that he had used methylamphetamine.[85] All it had proved, he submitted, was that there had been a drug test which had revealed that methylamphetamine had been present.
[83] T605.
[84] T598; The past drug use of the accused had been led in chief by Mr Mancini.
[85] T598.
Mr Mancini submitted that no inference could be drawn from the presence of the ice pipe in the shed, because it had been destroyed within a month of its seizure and no photographs of it had been taken. He said that, accordingly, the ice pipe had not been relevant to this case. That the ice pipe had been seen by the accused on previous occasions had not, it was submitted, established he had been in possession of the ice pipe or that the ice pipe had belonged to him.[86] Further, it had been the accused’s evidence that the ice pipe and the scales had belonged to Mr Hunt, and I should make that finding of fact because the accused had not been challenged in that respect.[87]
[86] T605.
[87] T605.
The accused further submitted that the Police investigation in this case had been inadequate in several respects. The mobile phone of the accused had not been opened and had resulted in the accused being at a forensic disadvantage.[88] The evidence of Detective Shepherd as to the location of the drugs under the orange plastic, it was submitted, had been impressionistic. His evidence had been a reconstruction and had not been dependant on his independent memory. Rather, it was submitted, the evidence of the location of the drugs had been based upon an interpretation of photos taken at the time.[89]
[88] T607.
[89] T607.
In relation to the evidence of Ms Millhouse, Mr Mancini submitted she had been an incredible and unreliable witness.[90] He said that her confected delay in returning to court, after an adjournment to allow her to get advice concerning self-incrimination, had demonstrated her discomfort in cross-examination. Having said that, the accused did say I should accept her evidence, that, when Police arrived, Alex Winter, Larry Ciccarello, Ms Millhouse and the accused had been in the shed and near the table and those present had seen Police through the CCTV. Particularly, it was submitted, I should accept her evidence, that there had been some panicked activity in the shed when Police arrived. That description of panic, it was submitted, had been consistent with and supported the accused’s evidence as to his actions in picking up and throwing the stubby holder.[91]
[90] T610.
[91] T615.
The accused submitted that the ultimate question in this case was whether it had been possible that the accused’s contact with the stubby holder had occurred; as he had described it.[92] The accused, it was submitted, had been the only person who had given any evidence about the stubby holder being on the table. As Ms Millhouse’s evidence had not addressed that topic, Mr Mancini submitted that the accused should be accepted in that respect.[93] Further as Ms Millhouse’s evidence had been limited to an observation that she had not seen any drugs on the table, I could not conclude, it was submitted, that there had not been drugs on the table.[94] It was submitted that, given her state of mind, she may not have been able to identify the presence of drugs in the mess of the shed.
[92] T617.
[93] T617.
[94] T618.
Mr Mancini submitted that, in my assessment of the credibility of Ms Millhouse, her prior inconsistent statements showed a facility to embellish, magnify, exaggerate or make-up things adverse to the accused.[95] Further, he submitted, her personal circumstances- social deprivation, mental health, intoxication, consequence of drug use- and the passage of time, meant she could have conflated what had happened with other events, at other premises and with other people.[96] Notwithstanding, Mr Mancini, urged me to find the combination of the evidence of Ms Millhouse and the accused, supported a finding the accused had grabbed and thrown the bag contained in the stubby holder.[97]
[95] T624.
[96] T624.
[97] T625.
Counsel for the accused also submitted that, as the shed had been a place in which people had gathered and socialised, the drugs could have belonged to someone else. That established fact, it was submitted, undermined the prosecution submission that the accused had exclusivity of use of the shed.[98]
[98] T620 – I do not consider that the prosecution contended the accused had exclusive use of the shed; the prosecution had said it had been a place where he had stored and kept his property.
Finally, it was submitted by the accused, that a rejection of his evidence should not automatically lead to a conclusion the offence had been proved.[99] The circumstantial case as put by the prosecution, it was submitted, relied upon the location of the drugs at the premises and the presence of the fingerprint on the plastic bag.[100] Mr Mancini submitted that the location of the fingerprint of the accused had been consistent with his evidence that he had thrown the bag. Further, he said, I could not conclude that the accused had opened or used the plastic bag in the context of possession or trafficking.[101] Particularly, it was submitted, the presence of others at the premises, both historically and the night before the attendance of Police, gave rise to a doubt in this case. Finally, he submitted it was not possible to rule out that other people who had been present that day or the night before, had been in possession of and trafficking in the drugs found.[102]
[99] T629.
[100] T631.
[101] T631.
[102] T632.
Consideration
Circumstantial Evidence
As this prosecution depended substantially on circumstantial evidence, I cannot return a verdict of guilty unless the circumstances established excluded any reasonable hypothesis consistent with innocence. I must be satisfied, not only that guilt is a rational inference, but that it is the only rational inference that the circumstances proved enable me to draw.
In my consideration of the circumstantial evidence I have taken two steps. First, I have determined the facts established by the evidence and, second, I have considered what inference or inferences can be drawn from those facts. I have had regard to the whole of the established facts in considering what inference or inferences to draw. I have considered the inferences capable of being drawn from the combined strength of all the established facts.[103] I have considered whether the combined strength of all of the established facts had been enough to prove the prosecution case beyond reasonable doubt.
Credit of prosecution witnesses
[103] R v Hillier [2007] HCA 13 at [46]- [48] per Gummow, Hayne and Crennan JJ.
The credit of both Ms Millhouse and Detective Sergeant Shepherd had been challenged by the accused. Their evidence went to significant matters. In assessing their evidence, I have exercised caution and have examined their evidence very carefully in order to satisfy myself that I can safely act upon their evidence. I have, given the reliance placed by the prosecution on that evidence, approached the evidence of both Ms Millhouse and Detective Shepherd with particular caution and I will only act upon it if I am satisfied beyond a reasonable doubt that it is honest, reliable, credible and truthful.
I must determine whether each of those witnesses are truthful and reliable, that is whether I can rely on the evidence that each witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
Prior inconsistent statements
The accused also said that Ms Millhouse had made several prior inconsistent statements. Prior inconsistent statements are only relevant to my assessment of credibility. It is up to me to decide whether any statements of Ms Millhouse are relevantly inconsistent and any impact on my assessment of her evidence.[104]
Lies of the accused
[104] R vTrabolsi (2018) 131 SASR 297 ; [2018] SASCFC 57 [167].
The prosecution submitted that I should conclude that the accused had lied in his evidence and in his record of interview in respect of several matters: when he said that he had not seen Mr Winter; when he said that he had not seen Mr Winter until he had been in the backyard after Police had arrived; when he said that when Police had arrived he had been inside the house; when he had said that he had not seen the Police on the monitor; and, about throwing the stubby holder.
As the High Court recognised in Edwards v The Queen,[105] ordinarily the telling of a lie by the accused is relevant only to credibility. Whether the accused has told any lies in his record of interview or in his evidence is a question for me. In the event I find the accused has lied, I can use that when deciding whether his evidence is credible or believable. Much will depend on how significant the lie is, and any explanation for it.
[105] (1993) 178 CLR 193; [1993] HCA 63.
I cannot and have not used any lie told by the accused as evidence of guilt. A finding that the accused lied may affect my assessment of the truth of what he said, but it does not of itself add to the prosecution’s evidence. Even if I reject all of the accused’s evidence, I must carefully assess whether the prosecution has proved its case beyond reasonable doubt.
I have also reminded myself that there may be many reasons to lie; including panic, to escape an unjust accusation, to protect another person, guilt of a lesser offence or to avoid some consequence which is not related to the alleged offence.
Discreditable conduct evidence
The prosecution led evidence of discreditable conduct in this case: possession of a set of scales and a glass pipe; prior possession of methylamphetamine; and, participation in the sale and supply of methylamphetamine to others.
There had been no formal objection to that evidence. While s 34P(1) of the Evidence Act1929, specifies that propensity reasoning is impermissible, s 34P(2) does not require me to intervene and exclude evidence where there is no objection. Nonetheless, I am still required to decide the permissible use of discreditable conduct evidence. I have directed myself, in accordance with s 34R of the Evidence Act1929, as to both the permissible and impermissible uses of the discreditable conduct evidence led in this case.[106]
[106] R v Pringle [2017] SASCFC 9, [74]; R v Jones (2018) 131 SASR 532; [2018] SASCFC 96, [41]-[42]; R v Dhir [2019] SASCFC 55, [57]; c.f. R v Soteriou (2013) 118 SASR 119; [2013] SASCFC 114, [38].
If I accept the discreditable conduct evidence, then I am entitled to reason it showed: that the accused had an interest in drugs and a propensity to possess drugs; that the accused had been in the business of selling drugs and had a tendency or propensity to sell drugs as part of that business; that the accused had been more likely to have been in possession of the drugs and to have been taking part in their sale; and, that the innocent explanation provided by the accused should be rejected.
They are the only ways I may and have used that evidence. I must not and have not used it for any other purposes.
In particular, I have not used that evidence to reason simplistically that merely because the accused had done bad things in the past, he is a bad person, and therefore he is more likely to have committed this crime. Reasoning in that way would be wrong and unfair.
I also must not and have not allowed that evidence to distract me from the need to consider whether the prosecution had proved this charge beyond reasonable doubt. I have not reasoned that as the accused had done something similar before, that is enough to prove he committed this offence. Again, that sort of reasoning would be wrong and unfair.
Expert evidence
The Crown called two expert witnesses, Sergeant Potts and Detective Nguyen. The evidence of Detective Nguyen was uncontroversial. The evidence of Sergeant Potts identified the fingerprint on the resealable bag as belonging to the left index finger of Mr Coburn. He said the fingerprint had been at a location on the bag which indicated the accused had sealed it.
In considering the evidence of Mssrs Potts and Nguyen, I have accepted them as experts. I have assessed their evidence in the same way as other witnesses. While I could reject their evidence, I have found no reason to do so and have accepted their evidence in its entirety.
Accused assertions of “forensic disadvantage’ and application for mistrial
Mr Mancini, for the accused, asserted that in several respects, the accused was at a “forensic disadvantage’ because:
·the prosecution had not proved the location where the methylamphetamine had been found because the photographs tendered had not shown the stubby holder and bag in situ; and,[107]
·the ice pipe found had been destroyed and there had been a failure to test for fingerprints, DNA and drug residue on the scales and ice pipe and a failure to open the mobile phone of the accused.
[107] Exhibit P4.
Further, it was submitted that the accused had been at a forensic disadvantage because of the way the cross-examination of Ms Millhouse had been completed. That related to the acceptance by both counsel, that a warning to Ms Millhouse against self-incrimination had been required in this case. That warning led to a delay, part way through cross-examination, because Ms Millhouse availed herself of the opportunity I had afforded her to obtain legal advice.
A further delay to the completion of her evidence was caused by COVID-19 public health restrictions. When we did resume, Ms Millhouse did not attend in person. Rather, the prosecution told me she was available by audio visual link from Whyalla. I had not granted permission for audio visual link and permission to complete her evidence by AVL was opposed. Ms Millhouse, subsequently, attended in person to complete her cross-examination.
The accused said, that when Ms Millhouse had failed to attend in person on the resumed date, he had been put at a forensic disadvantage. He made an application for mistrial because, he submitted, in person cross-examination was best and the delay allowed Ms Millhouse to compose herself.
A “forensic disadvantage” must concern the accused’s ability to present a defence or test the prosecution case in Court.[108] I consider the accused’s complaints of a forensic disadvantage to be misplaced.
[108] R v T, S (2017) 128 SASR 66; [2017] SASCFC 67, [101], [106].
As detailed above, the accused had raised matters of detail; which had each been the subject of effective cross-examination by Mr Mancini. Further, those matters had also been the subject of submissions as to whether the prosecution had satisfied its burden. I do not consider that those matters, as asserted, put the accused at a forensic disadvantage.
Mr Mancini submitted the prosecution had not proved the location where the methylamphetamine had been found because the photographs tendered had not shown the stubby holder and bag in position, as they had been found. I have had regard to that submission, as detailed later, in assessing the evidence of Detective Shepherd. [109]
[109] Exhibit P4.
Mr Mancini submitted that as the ice pipe found had been destroyed, I could not have regard to it as evidence of discreditable conduct. I am not persuaded by that submission. The evidence established that an ice pipe had been located in the shed and I have set out, earlier in these reasons, the use to which that evidence has been be put.
As to the asserted failure by Police to test for fingerprints, DNA and drug residue on the scales and ice pipe and a failure by Police to open the mobile phone of the accused, I understand the accused to have asserted that the taking of such steps may have provided him with exculpatory evidence. The absence of evidence from those steps, it was submitted, should cause me to hold a reasonable doubt. I have considered that submission as part of my consideration of the whole of the evidence and whether the prosecution had proved the charge beyond reasonable doubt.
In respect of the failure of Ms Millhouse to attend upon resumption, in person, a delay to and break in evidence is a commonplace, but unfortunate vagary of criminal trials. While less than ideal, a delay or break in evidence does not, of itself, impact on the ability to present a defence or test a prosecution case. Part of the delay in this case was due to a public health lockdown and a mandated closure of the Court. Further, the conduct of Ms Millhouse, in not attending in person but making herself available by AVL in Whyalla, had been the subject of extensive cross-examination by Mr Mancini. The conduct of Ms Millhouse, in that respect, had also been the subject of submissions by the accused; as to how I should assess her evidence.
In any event, Ms Millhouse did attend to complete her cross-examination. The accused was able to test the prosecution case as presented through her and I refused the application for a mistrial on that basis.
Failure to call witnesses
Mr Mancini also submitted that the prosecution had failed to call several key witnesses; a number of close associates of the accused. He submitted that I should direct myself that those witnesses would not have assisted the prosecution case.[110] A direction of that nature may be necessary if the prosecution breaches its obligation to call material witnesses.[111] It is for the prosecution to determine the evidence to be called and how the case is to be presented;[112] the prosecution cannot be compelled by a trial judge.[113] The prosecution submitted that the evidence and witnesses it had called proved its case. I consider that there had been no further material witnesses such that any failure to call them presented the accused with a disadvantage.
Elements of offence not in dispute
[110] See Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8; Police v Kyriacou (2009) 103 SASR 243; [2009] SASC 66, [8], [53]; Spence v Demasi (1988) 48 SASR 536, 547.
[111] Police v Kyriacou (2009) 103 SASR 243; [2009] SASC 66, [11], [15]; Dyers v The Queen (2002) 210 CLR 285, [5]-[13] (Gaudron and Hayne JJ); R vBolte [2010] SASC 112, [123], [137]-[140]. See R v Apsotilides (1984) 154 CLR 563; [1984] HCA 38 and R v M, RS (2018) 131 SASR 24; [2018] SASCFC 37 for information on the prosecution’s duty to call material witnesses.
[112] Richardson v The Queen (1974) 131 CLR 116, 119; [1974] HCA 19.
[113] Ibid; [1974] HCA 19; Whitehorn v The Queen (1983) 152 CLR 657, 674; [1983] HCA 42.
It was agreed that the substance found by Police in the resealable bag had been a controlled substance. I find beyond reasonable doubt that the prosecution had proved that first element of this offence.
It has also been agreed that the drugs located and seized by Police in this case totalled an amount of 10.3 g of mixed weight material; of which 7.2 g was pure methylamphetamine. As 2 g of methylamphetamine is deemed a trafficable quantity,[114] I find that the prosecution had also proved, beyond reasonable doubt, the second element of the offence.
Assessment of witnesses
[114] Controlled Substance (Controlled Drugs, Precursors and Plants) Regulations 2014.
It is for me to decide how much or how little of the evidence of any witness I believe or rely on. I may believe all, some or none of a witness’s evidence. It is also for me to decide what weight should be attached to any particular evidence, and, the extent to which that evidence helps me to determine the relevant issues.
In assessing the evidence of the witnesses in this case, I have assessed their credibility and reliability. Credibility concerns honesty – is the witness telling you the truth? Reliability may be different. A witness may be honest, but have a poor memory or be mistaken.
I have used common sense in making my assessment of the witnesses in this case. I have appreciated that giving evidence in a trial is not a common thing to do and may be a stressful experience. I have not jumped to conclusions based on how a witness gave evidence. Looks can be deceiving. People react and appear differently. Witnesses come from different backgrounds, and have different abilities, values and life experiences. There are too many variables to make the way a witness gave evidence the only, or even the most important factor, in assessing their evidence and in making a decision.
Assessment of Ms Millhouse and Detective Shepherd
The dispute in this case related to “possession” of the methylamphetamine.[115] The accused urged me to reject, in material respects, the evidence of two significant prosecution witnesses: Reannan Millhouse and Brevet Sergeant Shepherd.
[115] Controlled Substances Act 1984, s4.
Ms Millhouse candidly announced at the start of her evidence that due to longstanding drug use and domestic abuse, she suffered from brain damage. She said that her memory from the time in question had been hazy. Notwithstanding that proclamation, she clearly followed the questions put to her. She gave responsive, helpful and coherent answers. She presented as an intelligent person.
Ms Millhouse also had made proper concessions when required. Those concessions reflected the tendency on her part to, firmly at first, assert that a particular thing had been a certain fact. When pressed, she accepted that she had actually been making an assumption. For example, she accepted that she had assumed that the internal laundry door in the house had been locked and that she had never actually tried to get through the door. She didn’t really know whether it had been locked or not. Another example was her concession, in cross examination, that her evidence that Alex Winter had purchased drugs from Mr Coburn by payment with construction equipment had also been assumed.
In making my assessment of Ms Millhouse, I have had regard to what I consider to be a prior inconsistent statement; in respect of how many bongs and ice pipes had been on the table in the shed. In that respect, she readily admitted the inconsistency. She also accepted she had signed written statements without assessing their accuracy and without considering them properly.
In respect of the major challenges to her evidence, Ms Millhouse had not been shaken. She maintained the accused had, in the shed: supplied her with drugs; sold drugs to others; and, had used drugs himself. She confirmed that she, Larry, the accused and Alex had all been sitting down around the table when Police arrived. She maintained that, when she had arrived for the first time that morning, the accused had been taking a woman home in a taxi and had told them that he would be back shortly. She maintained that she had gone to the toilet three times within the house and had accessed the laundry across the backyard and over a deck at the side of the house. That description had been consistent with the description of the property given by the accused. She maintained that the shed had been a place for methylamphetamine use. She correctly detailed the changes to the shed, as described by the accused. She described the dirt floor, construction of the internal loft; scaffolding; welding, the building of stairs, a sunroof; tools and other stuff gradually filling up the inside; and, then the laying down of plastic sheeting ready for concrete.[116] She knew the accused well enough to know that he had a wife and young baby. Her evidence that she had not gone further into the house out of respect, reflected her understanding of why she had been there; to get and consume drugs.[117] She readily accepted that she did not actually have direct knowledge of a topic and had been making assumptions.[118] She did not exaggerate the conduct of the accused to embellish his involvement with drugs. Rather, she had downplayed his transactions with others.
[116] T83 lines 16-18.
[117] T566.
[118] T569.
For those reasons, I accept Ms Millhouse as a reliable and truthful witness. Further, I consider her evidence as to what had occurred in the shed on the day Police attended, to be inherently plausible. Further, it was plausible that Ms Millhouse had been to the shed on many occasions to take drugs.[119] Finally, her evidence that she and the accused had seen the Police arrive on the CCTV camera, made sense.
[119] T567; see the layout in Exhibit D8.
I have also accepted, in its entirety, the evidence of Detective Shepherd. He was an impressive, honest and reliable witness. He was clear about the matters he did not have a clear memory of, for example, the items he could not recall moving during his search and when and where particular photographs had been taken. He was clear about the items he recalled he had moved and gave plausible explanations for the reasons he had moved them. He was clear that he had been searching for a firearm and that he had happened upon the concealed drugs when he had seen an inconsistency in the plastic flooring; which he had to check out. When he had found the drugs, he had turned them over promptly. He then recommenced his search for a firearm; which was what he had been there to do. He had been diligent and later located a firearm in the neighbouring property. His evidence, as to how he had located the drugs, made sense. He recounted the way the stubby holder had been concealed and that the orange plastic had to be held up so the stubby holder could be seen. He recalled that the stubby holder had not been visible until it had been revealed.
Assessment of the accused
In assessing the evidence of the accused, I have approached his evidence in the same way as I have all other witnesses who gave evidence in this case. I have also given him credit for taking a course that he was not required to take; giving evidence and exposing himself to cross-examination.
In my assessment, I have had regard to the fact the accused was a nervous witness; it was clearly a stressful experience for him. I have not jumped to any conclusion based on how he gave his evidence and have kept in mind that looks can be deceiving. Particularly, I have had regard to his unsophisticated manner and that he did not present as an educated or articulate person.
Having regard to those matters, I have concluded that the accused had been a poor historian and a poor witness. He said whatever came into his head, particularly when challenged about what he had previously said. His version of events changed several times and very quickly and diametrically. He could not keep track of the answers he had given to Police during his record of interview, to Mr Mancini in chief and, during his cross-examination. When reminded of something he had earlier said, which had been inconsistent with or the opposite of what he had been saying at that moment, he immediately recanted and changed his evidence. For example, in chief, he had said that Larry had been at his party. He then said, in cross examination, that Larry had not been at his party. He went on and said he had known Larry would be at his house that morning as he had exchanged text messages with him. He was challenged by Ms Park that he had told Police he did not know Larry would be coming around. He immediately changed his evidence, and said he had not exchanged any messages with Larry at all. His evidence, in relation to whether he had seen Alex Winter, also changed several times. He told Police in his record of interview he had not seen him. He said in chief that he had not seen him on the driveway but he had seen him sitting in a chair in the shed. He later said in cross-examination he had not seen him in the shed. He explained his changes in evidence to be the consequence of an assumption made that Alex had been there; because his girlfriend Reannan had been there and a black bag (he had never seen before) had been there and because the chair (which he had previously said he had seen Alex sitting in) “looked” like someone had been sitting in it.
I have further concluded that the accused told lies to Police and in his evidence. Those lies have reflected on the credibility and believability of the whole of his evidence. I consider the accused lied about: whether Alex Winter had been present that day; when he had last taken methylamphetamine; the effect of testing positive for methylamphetamine at a Police stop; consuming cannabis and methylamphetamine in the shed; whether Larry had been at his celebration; whether he had known Larry had been coming around that morning; how many times and for how long Alex and Reannan had been in his shed; and, whether Reannan had been inside the laundry to access the toilet.
I have not inferred guilt from the simple telling of lies by the accused. I consider that those lies go to his credit and whether I should otherwise accept his evidence.
As to the version of events the accused gave in evidence- as to how his fingerprint had got onto the resealable bag- I consider his account to be inherently implausible. The whole of that evidence had been improbably premised on an attendee at the celebration leaving a valuable quantity of drug- worth about $5000- out on the table in a shed used as a drop-in venue and a place to consume drugs. It required the accused to ignore or dismiss the most obvious items on the table. It required a split-second decision by the accused to ignore the bong and ice pipe and pick out the stubby holder as the most damning item on the table; all the while not knowing at all what had been in the stubby holder or not knowing what the white substance in the bag in the stubby holder had been.
It required the accused to affect a quick and aimless throw of the bag- which Detective Shepherd said had been in the stubby holder when he had found it- while holding the bag on the seal between the thumb and forefinger of his left hand and with his forefinger oriented at precisely the point at which, in the opinion of a fingerprint expert, the action of sealing the bag would have been effected. It required, holding the bag in that manner, the stubby holder- after being aimlessly thrown by the accused- to have come to rest in a hollow and beneath the orange plastic which had covered the corner of the floor near the bottom of the stairs. That result, was inherently implausible. The evidence of Detective Shepherd was clear. The stubby holder had not been visible and had only been able to be revealed after he had moved items surrounding it and only after he had folded back the orange plastic; plastic that would spring back into place when released.
Given the unreliability and the lack of credibility of the accused and given the implausibility of his version of events, I have rejected, in its entirety, his evidence about picking up and throwing the stubby holder. In doing so, I have had regard to the submission of the accused as to the characterisation of the evidence of Ms Millhouse that, when Police arrived, those present in the shed had panicked. I am not persuaded by that submission because I do not consider that what Ms Millhouse had recounted supported the accused’s evidence that he had picked up the stubby holder in the manner described or at all. Ms Millhouse gave no evidence to that effect and had not been asked about that at all. Her evidence had been that they had been, “freaking out.”
Established facts
As well as the agreed facts, I have also found the following facts to have been established by the witnesses and exhibits.
The accused had an interest in methylamphetamine. The accused had knowledge of the drug, how it was consumed and how it was sold. The accused had possessed, consumed and sold methylamphetamine in the shed and showed a propensity to possess methylamphetamine and engage in the business of selling methylamphetamine from his shed.[120] The accused had consumed methylamphetamine in his shed with Ms Millhouse and Alex Winter.
[120] T575.
The accused, Alex Winter, Ms Millhouse and Larry Cicarello had been sitting at the table in the shed and had observed the Police attending on the CCTV monitor. When Police had arrived, the roller door had been opened by Mrs Coburn and the accused had exited the shed to greet Police. He did not return to the shed.
The attention of Detective Shepherd, during his search, had been drawn to an out of place section of the plastic flooring near the base of the stairs. The stubby holder and drugs found had not been immediately noticeable upon approach and the plastic had to be pulled back to reveal the drugs. The orange plastic flooring had been secured in other places in the shed and the two tubs and the fridge on the floor against the back of the locker in the corner had been closer to the locker than they appeared in the photographs.[121] Those items had been moved by Detective Shepherd to enable him to locate the stubby holder. The stubby holder had been concealed in a hollow under a section of plastic flooring with and around items which had belonged to the accused and in the shed from which the accused had been conducting his business of selling drugs.
[121] T577; Exhibit P4.
The fingerprint on the bag was that of the accused. Its placement and orientation indicated that the accused had sealed that bag.
Consequence of rejecting evidence of accused
The accused submitted that a rejection of his evidence- as I have rejected it- should not automatically lead me to conclude he had been in possession of the drugs. Particularly, he submitted, the presence of others at the premises, both historically and on the night before the attendance of Police, gave rise to a doubt. It was not possible, he submitted, to rule out that other people present that day or the night before had been in possession of and had been trafficking in the drugs found.
I am not persuaded by that submission. The whole of the evidence in this case showed:
·the knowledge of the accused as to how methylamphetamine had been consumed and how it had been sold;
·both an interest on the part of the accused in methylamphetamine and his involvement in the trade of that drug;
·that Alex and Ms Millhouse had attended at the shed to obtain drugs from the accused and that the accused had gifted Ms Millhouse methylamphetamine for her own use;
·that the accused and Ms Millhouse and Alex had used drugs together in the shed;
·the use of the shed as a place of drug dealing by the accused and the propensity of the accused to engage in the business of selling methylamphetamine;
·that the drugs were contained in a bag which had been sealed by the accused; and
·that the drugs had been concealed in the shed in which there had been drug paraphernalia and items of the accused.
Inferences drawn
I have found that the whole of the evidence in this case showed an interest on the part of the accused in methylamphetamine and his involvement in the trade of that drug and the possession of that drug. I have found that the accused had knowledge of the drug, how it was consumed and how it was sold. Further, I have found that the accused had used his shed as a place to deal drugs; separate from his wife and child. There had been a common location in the shed of the concealed drugs and drug paraphernalia. The drugs were concealed near and in amongst the accused’s property. Finally, I have found that the fingerprint of the accused showed he had sealed the bag which had contained methylamphetamine to the value of about $5,000.
I have drawn, from the whole of the evidence, the following inferences:
·the accused continued to participate in the drug trade, as at the day of the Police search;
·the accused had concealed the bag containing the drugs under the orange plastic floor in his shed; and
·the accused intended to sell the drugs he had concealed.
I am satisfied, not only that guilt is a rational inference in this case, but that it is the only rational inference that the circumstances I have found proved enable me to draw.
I find that the whole of the evidence at trial established beyond reasonable doubt the third element of the offence; that the accused had been in possession of the methylamphetamine found. I further find, beyond reasonable doubt, the fourth element of this offence. The accused had been in possession of the methylamphetamine in his shed and he had intended to sell at least 2 grams of it.
I find the accused guilty of the charge of trafficking in a controlled drug.
0
35
1