R v Cochrane
[2012] SADC 11
•17 February 2012
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v COCHRANE
Criminal Trial by Judge Alone
[2012] SADC 11
Reasons for the Verdicts of His Honour Judge Stretton
17 February 2012
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
The accused is charged with trafficking methylamphetamine, and trafficking MDMA (ecstasy). The accused was located at his Klemzig house with over 1600 tablets containing methylamphetamine and 56 capsules containing ecstasy located in a bedroom of the house. A substantial quantity of cash together with lists of names and money was located in his bedroom. Circumstantial evidence including SMS messages on phones associated with the accused, DNA and fingerprint evidence was also led. Two cars containing identical drugs were apprehended departing from the accused’s house.
Held: The only rational inference that can be drawn from the proven circumstances is that the accused was trafficking methylamphetamine and MDMA. Accordingly the accused is convicted of both counts.
Controlled Substances Act 1984 (SA) s 32(5), referred to.
Barca v The Queen (1975) 133 CLR 82; RPS v The Queen (1999-2000) 199 CLR 620; Dyers v R (2002) 210 CLR 285; R v Norton-St Clair & Riddle [2005] SASC 348; R v Franco [2009] SASC370; R v Long [2002] SASC 426, considered.
R v COCHRANE
[2012] SADC 11
The accused Beau James Cochrane is charged with trafficking methylamphetamine and trafficking MDMA also known as ecstasy, at Klemzig on 26 June 2010.
There is no eyewitness or other direct evidence of the accused trafficking methyamphetamine or ecstasy. On 26 June 2010 Police located the accused at his Klemzig residential address and found drugs and various other items present. They also located other evidence, including mobile phone records.
Circumstantial case
The prosecution case therefore rests on circumstantial evidence. That evidence comprises a number of elements which, together, the prosecution says proves the case beyond reasonable doubt.
In such a case, to be convicted, Mr Cochrane’s guilt must be the only rational inference that can be drawn from the proven circumstances.[1]
[1] I apply the principles articulated by the High Court, see for example Gibbs, Stephen and Mason JJ in Barca v The Queen (1975) 133 CLR 82 at 104:
“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are “such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused”: Peacock v. The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be “the only rational inference that the circumstances would enable them to draw”; Plomp v. The Queen; see also Thomas v. The Queen. However, “an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.” (Peacock v. The King). These principles are well settled in Australia.” (Footnotes omitted).
The accused has pled not guilty, and the defence argues that the case has not been proven beyond reasonable doubt.
Elements of the offence
There are two alleged offences, and each must be considered separately. In each case the prosecution must prove beyond reasonable doubt that the accused trafficked[2] in a controlled drug. The prosecution must prove he did so knowing that the substance involved was a controlled substance of some kind.
[2] A person traffics in a drug if he sells a drug; has possession of a drug intending to sell it or takes part in the process of sale of a drug,; section 4(1) of the Controlled Substances Act 1984.
In this matter, the prosecution alleged that the accused was in possession of a shoebox containing the methylamphteamine and the MDMA intending to sell it, and on that basis trafficked each drug.
Legal principles
The accused has elected to be tried by Judge rather than by a jury. I apply all the normal principles of law applicable in a criminal trial that would be applied and outlined were a jury present.
In particular, the accused did not give evidence in this trial. He was not obliged to do so, and it is particularly important to note there can be no adverse inference drawn against him whatsoever on that account.[3]
[3] I apply the full directions required were a jury present and as articulated by the High Court on the topic, see for example RPS v The Queen (1999-2000) 199 CLR 620 and Dyers v R (2002) 210 CLR 285.
Evidence was given that at certain times prior to his arrest the accused was on bail, and was bailed to a particular address. Evidence that he was required to live at certain addresses, and did live at the Klemzig address at the time the police attended and found drugs and other evidence there, was led as circumstantial support for certain aspects of the prosecution case. It is important to bear in mind that whether the accused was in fact on bail, or charged with any other offence is, apart than for the particular circumstantial purpose it is admitted, otherwise completely irrelevant to the charge before the court.[4]
[4] The fact of other charges, or bail, is in itself completely irrelevant to guilt in this matter.
The evidence
As the case is a circumstantial one, it is necessary to review the evidence with particular care.
The accused lived at an address in Kavel Lane, Klemzig. Kavel Lane is quite a short thoroughfare of some 150-200 metres in length.[5]
[5] T150.
Detective Lienert gave evidence that he attended the accused’s Kavel Lane address at about 7.20pm on the 26th of June 2010, initially to make observations from an adjacent street. He gave evidence of those observations, and through him much of the evidence seized on that day was tendered.
At about 8.10pm Detective Lienert saw a white van appearing to turn out of an area around Kavel Lane.[6]
[6] T57.
He pulled the white van over, and the two occupants of that vehicle were spoken to by police. The driver of the van was a person called Luke Highett. Police searched the van and located a number of empty plastic bags, a quantity of pills police believed at that time were ecstasy,[7] and a mobile phone. The plastic bags were photographed in situ.[8] Those bags have quite distinctive markings, being an apparent outline of a reclining nude female form. These items were handed to exhibit officer SC Tasovac.[9]
[7] Later analysis established the pills in fact contained methylamphetamine, see Agreed Fact #1 in P36, and P24 certificate of analysis.
[8] Photos 1 and 2 of P3.
[9] T 18.
Luke Highett’s mobile phone was also seized.[10] Phone contact #36 on that phone is for “Bo”.[11] The accused’s first name is “Beau”. Phone contact #56 in the iPhone later seized by police from the accused is for “Luke”.[12]
[10] T17 and T40.
[11] Page 8 of P8.
[12] Page 11 of P15.
Detective Lienert then attended the accused’s Kavel Street property itself, at about 8.45pm. Other police were already there. It was a single story free standing dwelling. He entered to assist in a police search of that property. In the open plan living area of that house he saw the accused, together with his younger brother Zane Donaldson and the accused’s girlfriend Brooke Malsom.
A map of the house (P1) and a video of the police search (P2) were tendered.[13]
[13] T22.
Detective Lienert searched bedroom 3 (so designated per the police map), locating a number of personal possessions belonging to the accused’s brother, the inference being it was a bedroom ordinarily occupied by him. In the wardrobe of that bedroom he located a shoebox containing items including what police believed to be drugs. Photographs were tendered (P3), which the detective then explained.[14]
[14] 1 and 2 – Distinctive plastic bags located on seat of Luke Highett’s van.
3 – Contents of a bin in bedroom 1.
7 – Contents of wardrobe in bedroom one with box with swabs and needles.
8 – Another picture of bin in bedroom 1 with plastic bags brought to the top.
9, 10, 11 – Supplements from bedroom 1.
12 – Contents of kitchen cupboard showing snap lock bags similar to those found containing drugs in bedroom 3.
13 – Mobile phone seized from the accused.
14 – Cash as depicted in video.
15, 16 – Close-up and other view of where cash located.
17 – Mobile phone located on floor in bedroom 1.
18 – A box located on the right hand side of the third shelf of bedroom 3, location shown in photos 39, 40.
19 – SHOEBOX CONTENTS: (electronic scales).
20 – SHOEBOX CONTENTS: plastic re-sealable bag with “Ned Kelly” logo.
21– SHOEBOX CONTENTS: plastic resealable bag containing a bag containing pink powder with a skull logo on it, bag containing white powder, and bag containing 5 pills and a gel capsule with substance inside.
22 – SHOEBOX CONTENTS: plastic re-sealable bag containing 58 gel capsules with substance inside.
23– SHOEBOX CONTENTS: plastic resealable bag containing another resealable bag with smaller resealable bags inside that, all empty.
24 – SHOEBOX CONTENTS: small resealable bag containing approx 100 pink pills.
25 – SHOEBOX CONTENTS: larger resealable bag containing approx 500 grey pills marked with ‘482’.
26 – SHOEBOX CONTENTS: larger resealable bag containing approx 500 pink pills marked with ‘500’.
27 – SHOEBOX CONTENTS: larger resealable bag containing approx 500 pink pills marked with ‘500’.
28 – SHOEBOX CONTENTS: larger resealable bag containing approx 200 pink pills marked with crossed-out ‘500’.
29 – SHOEBOX CONTENTS: picture of shoebox contents from above.
30 – Supplement shaker found in wardrobe of bedroom 1.
31 – Two bottles of empty gelatine capsules found in bedroom 1, similar to full capsules shown in photo 22 located in bedroom 3.
32 – Notepad found in bedroom 1.
33 – Phone number 0410179697 on notepad found on top of bedside table in bedroom 1.
34 – Open safe on floor of bedroom 1.
35 – Photo ID for Zane Donaldson, DOB 21/1/85.
36 – Cards in the name of Zane Donaldson, found in bumbag and wallet located in bedroom 3.
37, 38 – Photos of bedroom 3, “Zane’s room” on plan showing bumbag.
39, 40 – Photos of shoebox located in bedroom 3.
41 – Resealable bag containing gelatine capsule with substance inside located on bedside table bedroom 1.
42 – Mobile phone located on bedside table of room 1.
43 – 46 – Bedside table in bedroom 1 showing resealable bag containing gelatine capsule with substance inside.
48 – Large plastic resealable bag and three smaller resealable bags located in bedroom 1 bin, police exhibit CL.BR1.13.
49 – Plastic vacuum packing bag located in bedroom 1 bin, police exhibit CL.BR1.12.
50 – Large plastic resealable bag containing a small plastic resealable bag with a skull logo on it, police exhibit CL.BE1.11.
51 – Close up of the two bottles of empty gelatine capsules found in bedroom 1.
52 – Vodafone receipt dated 17 June 2010 from the Tea Tree Plaza Vodafone shop matching the iphone seized from the accused.
53 – Supplement shaker, police exhibit CL.BR1.8.
54 – Sheet on notepad paper with handwriting on it (lists of names and numbers) located in bedroom 1 wardrobe, right hand side shelving.
55 – Notepad located on wardrobe shelf of bedroom 1 (see photo 32), police exhibit CL.BR1.6.
56 – Notepad located on bedside table of bedroom 1, with phone number 0410179697, police exhibit CL.BR1.5.
The shoebox contained electronic scales, two re-sealable bags each containing about 500 pink pills, one with 200 pink pills and one with 100 pink pills, a re-sealable bag containing about 500 grey pills, one with 58 gelatine capsules with a substance inside, empty re-sealable bags, one marked with a Ned Kelly symbol, and a plastic resealable bag itself containing a bag containing pink powder with a skull logo on it, a bag containing white powder, and a bag containing 5 pills and a gelatine capsule with a substance inside.[15] As later mentioned, the pills, capsules and powder were later analysed and contained controlled drugs. The pills and powder contained methylamphetamine, whereas the capsules contained MDMA also known as ecstasy.
[15] T25-28, and photos 18-29 and 39-40 of P3.
Also in bedroom 3, police located an Adidas “bumbag” and wallet containing identification and a number of cards in the name of Zane Donaldson, and schoolbag and books with the name Zane Donaldson written on them, and $25, but no other items of interest.[16]
[16] T30-31.
In bedroom 1, in the wardrobe, police found two bottles of fillable but empty gelatine capsules, containing 125 capsules similar to the substance-filled gelatine capsules that had been located in the shoebox in bedroom 3.[17]
[17] T28-29, photos 31 and 51.
In bedroom 1 they also found a notepad in the wardrobe, and a notepad page with a phone number 0410179697 on the bedside table.[18] The notepad has particular significance to the prosecution case, as it contains a list of names and numbers that the prosecution argues represent illicit drug sales, customers and amounts owing or paid for drugs.[19] In the wardrobe of bedroom 1, police also located a sheet of notepad paper with handwriting on it.[20] This sheet of paper also has particular significance to the prosecution case, as it also contains a list of names and numbers that the prosecution also argue represent illicit drug sales, customers and amounts owing or paid for drugs.
[18] T29-30 and T34, photos 32, 33, 55 and 56 of P3.
[19] Notebook is P30A and copy P30, depicted in situ in photos 32 and 55 of P3.
[20] Police exhibit CL.BR1.7, T33-34, photo 54.
On the bedroom 1 bedside table police also located a small resealable bag containing a gelatine capsule with a substance inside and a mobile phone .[21] In the bedroom 1 waste bin[22] police located a large plastic resealable bag, three smaller resealable bags,[23] a plastic vacuum packing bag,[24] and a large plastic resealable bag containing a small plastic resealable bag with a skull logo on it and a scrap of paper.[25]
[21] Photos 42-46, T31-32; Phone is police exhibit number CLBR1.1.
[22] Photo 8.
[23] Police exhibit CL.BR1.13, T32, photo 48.
[24] Police exhibit CL.BR1.12, T32, photo 49.
[25] Police exhibit CL.BR1.11, T33, photo 50.
Police also located a Vodafone receipt dated 17 June 2010, from the Tea Tree Plaza Vodafone shop, that matched the iPhone seized from the accused.[26]
[26] Police exhibit CL.BR1.9, T33, photo52.
After the search the accused was interviewed, arrested and a DNA sample was taken from him.[27] A short way into that interview he declined to answer police questions or be shown any items located.
[27] T34, interview video was tendered as P21 at T140.
At a much later time, on 11 March 2011, after two prior requests, a handwriting sample was obtained from the accused.[28]
[28] T34-35, T72.
The police seized mobile phones when they attended the house. Those phones were sent for analysis by the Police Electronic Crime Section.
·A Black Nokia E63 mobile phone was located on the floor of bedroom 1.[29] SMS and other information extracted from that phone tendered by consent tended to indicate that it was the accused’s brother Zane Donaldson’s phone.[30] Contents of that phone and its SIM card were both extracted and tendered, the phone extracts being P4, the SIM card extracts being P5.[31] Four separate incoming SMS messages to that phone between the early hours of 23 June 2010 and 7.12pm 26 June 2010 indeed address the holder of the phone as Zane.[32] Police entered the premises and located the phone shortly after this latter time, at or a little after 8.20pm on 26 June 2010. There were other SMS messages but there were no indicia of drug trading or anything similar detected on this phone or its SIM card.
[29] T35, photo 17, police exhibit number CL.BR1.3. Page 2 of P4 indicates the model number.
[30] T35 and T37, and P4 extracts.
[31] T37.
[32] P4; SMS phone-extracted messages 12, 25, 48, and 71. No messages were saved on the SIM card of that phone, see P5 extracts from SIM card.
·A pink Samsung mobile phone was located on the bedside table of bedroom 1.[33] SMS and other information extracted from that phone were tendered by consent, the phone extracts being P6, the SIM card extracts being P7.[34] Numerous photos apparently taken over time by the holder of that phone of herself in a mirror indicate the holder of the phone to be the accused’s girlfriend, Brooke Malsom.[35] There were SMS messages but there were no indicia of drug trading or anything similar detected on this phone or its SIM card.[36]
[33] T38 and T203, photo 42, police exhibit number CL.BR1.1.
[34] T38-39.
[35] At T39 Detective Lienert identified photos on page 51 and 54 of the P6 mobile phone extracts as being of Ms Malsom, and agreed that that the photos in a number of ways indicated Ms Malsom taking photographs of herself in the mirror. There are numerous similar photos taken over the 12 months since mid 2009, see between pages 51 and 68 of P6.
[36] T40, and see P6 and P7.
·A Nokia 2730 mobile phone had been located on Luke Highett when he had been stopped nearby, driving his white van away from Kavel Street, shortly before the police attended the accused’s house in Kavel Street.[37] SMS and other information extracted from that phone were tendered by consent, the phone extracts being P8, the SIM card extracts being P9.[38] The SIM card contained no message information, however the phone itself contained numerous sent and received SMS messages between 21 April 2010 and 7.51pm on 26 June 2010. It also contained a number of draft messages. A table of the SMS messages stored in this phone was tendered by consent as P10.[39] There are a number of entries that the prosecution argues indicate that the accused was initially the holder of the phone that was seized from Mr Highett as he drove away from the accused’s house on 26 June 2010.
[37] T17, T40-41, see page 2 of P8 for model number.
[38] T41.
[39] T42.
oA draft message was saved on the phone on 13 April 2010: “16 Nanette Road Valley View”. A message was sent from the phone on 25 April 2010: “Yeh bro 16 Nanette Road Valley view”. Bail documents were tendered indicating that from 12 December 2008 the accused was bailed to live at 16 Nanette Road Valley View, until on 27 April 2010 the accused applied to vary that address to allow him to live at the Kavel Lane address and on 5 May 2010 the District Court varied bail to require the accused to live at the Kavel Lane address.[40] So, at the time of the draft message on this phone giving the address 16 Nanette Road Valley View, and the sent message giving that address, that was the address the accused was legally required to occupy.
[40] P11, P12 and P13, see T43-44.
oOn 22 April 2010 there is a sent message from the phone “Its beau this is my pre paid one. Don’t worry bro might be joinin (sic) you in there soon haha”. This tends to indicate the phone holder is purporting to be a person called Beau, that caller indicating that he indeed owns the phone from which the message is sent.
oOn 24 April 2010 there is a message to the phone “Beau uv always had my respect and always will mate. Ur my mateb4 n nothings changed fuk the cunts who talk shit. Coz u look afta me il look afta u bro. Bros b4 bros 4 life XX”.
oOn 25 April 2010 there is a sent message from the phone “Its beau how much for an oz and a half oz?” This tends to indicate the phone holder’s name is Beau.
oOn 2 May 2010 there is a sent message from the phone “Beau Cochrane”. There is an incoming message that day saying “who is this”, albeit recorded as occurring later in time, although expert evidence was given as to how the recorded timing of such messages could be in error for several reasons, in part relating to incoming and outgoing messages being grouped rather than displayed chronologically, or timed at the time downloaded by the recipient rather than at the time sent, or for other reasons.[41]
[41] Electronic Support officer Noordin, T78-83.
oBy 26 June 2010 it seems apparent that the phone is not being used by the accused, as at 7.07pm there is a message “At bos you want anything”, and at 7.50pm, “Stay inside, cops looking down the alleyway”. Soon after, police pulled over the white van and this phone was seized from Mr Highett.
There are a number of SMS messages on this phone which the prosecution argue, with the assistance of expert evidence, show the accused when he was allegedly in possession of the phone, to have an interest in illicit drugs. The prosecution also argue that the fact that the phone used by the accused during a period where he showed an interest in illicit drugs is in the possession of Mr Highett shortly after Mr Highett was apprehended in possession of drugs matching those located at the accused’s house, shortly after leaving the vicinity of the accused, is also a piece of circumstantial evidence relevant to whether the accused was trafficking methylamphetamine on that day.
·A black Apple iPhone was located on the accused.[42] SMS and other information extracted from that phone were tendered by consent, the phone extracts being P8, the SIM card extracts being P9.[43] That information tended to indicate that the phone was indeed being used by the accused, for example it has the holder of the phone giving out an email address for “Beau_Beau”.[44] The SIM card contained no message information, however the phone itself contained a number of incoming and outgoing SMS messages on 25 and 26 June 2010. In particular there were innocuous messages with “Zane”, but several other messages that were less clear.
[42] T24-24, T48-49.
[43] T41.
[44] T52.
oAt 11.35 on June 26 2010 a message to the accused from “Greeny”: “Bro u better give me sus for 350 help me out I help u out an I lost my job soo 350 or what”.
oAt 12.07 on June 26 a message to the accused from “Adam”: Just spoke to the boys they reckon they’ll have the coin collected next few hours. When can I come finish your tattoo. Can I come tomorrow brother.”
oAt 3.43 on 26 June 2010 a message from the accused to “Mat”: “Oi come here and buy me this game for $2 and I will give yyou (sic) the coin lol I gave you two for free”.
oAt 4.03 a reply from “Mat”: “yea right Cunt”.
oAt 4.09 a reply from the accused to “Mat”: “Do it bitch”.
oAt 6.36 on 26 June 2010 a message from “Troy” to the accused: “Jst make it 20 moats :)”.
Each of these three contacts, “Greeny”, “Adam” and “Mat” (albeit spelt “Matt”) feature on one or more of the notepad lists of names and numbers located in bedroom 1, alleged by the prosecution to represent lists of illicit drug customers with corresponding outstanding sums of money owed. There were a number of contacts on that phone also said to be relevant.[45]
There were three saved images on that phone, self evidently photos taken by Ms Malsom of herself, but with the words “I love you” superimposed, the inference being they were taken by Ms Malsom, and then annotated with the words “I love you” for the purposes of sending to her boyfriend the accused.
[45] T53-54, “Pommy, McClatchie, Aaron, Greenie, Jakeb, Jamie Lee, Luke, Matt, Matthew, Michael R, Pommy, Reece, Cuttzy”.
A Mr Pare had also been located at the property that day.[46] An MVA certificate was tendered though Detective Lienert indicating that Mr Marques Pare resided at Elizabeth Vale between 22 December 2008 and 16 December 2010, then at Salisbury until 24 February 2011 and from then on at Parafield Gardens, to indicate that at no relevant time had his residential address been the Klemzig premises. In cross-examination Detective Lienert said that police could not locate any evidence that Mr Pare was involved in any of the trafficking of the drugs that were found.[47]
[46] T57, T122-123.
[47] T66, as reiterated by other police, eg Detective Hayes at 122-123.
As mentioned, Detective Lienert also obtained a handwriting sample from the accused at a much later time, while the accused was on remand for this offence. The accused was legally obliged to comply with that request and after two prior attempts by police to have him provide a sample, after consulting with his solicitor he ultimately complied on 11 March 2011.[48]
[48] T66-69, 72.
Bail documents relating to the accused were tendered, indicating that from 12 December 2008 the accused was on electronically monitored home detention bail. From that day he was required to live at Nanette Road, Valley View. On 27 April 2010 he applied to vary the residential condition of that bail to the Kavel Lane address, which such application was granted requiring the accused to reside at the Kavel Lane address from 8 May 2010. This evidence was led to establish that as at 26 June 2010, Kavel Lane was the accused’s address and that he was legally required to be there.
As mentioned, at the time of these events the accused was on home detention bail. Evidence was called about the electronic monitoring of the accused’s movements over 26 and 27 June 2010.[49] The systems administrator for the electronic monitoring system gave evidence that the system monitors the location of the person by way of an electronic ankle bracelet. An electronic ‘boundary’ approximating the boundary of the premises is set. If the person moves outside that boundary then that is detected and recorded. If the person remains outside the boundary for more than five minutes then a report is electronically sent to the monitoring home detention officer. The monitoring indicated that:
·The accused was at home and in the Kavel Lane premises all day on 26 June 2010 until 6.39pm, when he left for a short period of 2 minutes and 49 seconds.
·The accused then returned to and remained in the premises until 8.09pm whereupon he left for 13 minutes, returning at 8.22pm.
·The accused then remained in the premises until 10.45pm when he left, with no return recorded either that day or the next.
[49] T348-357, and P35.
Birth certificates for both the accused and his brother Zane Donaldson were tendered, indicating the accused was born on 14 December 1990, his brother Zane Donaldson on 21 January 1995.[50] Accordingly on 26 June 2010 the accused was 19 years of age, his brother 15.
[50] P18 and P19.
Detective Hannam gave evidence that he was also tasked to this investigation, initially also to observe the accused’s address at Kavel Lane Klemzig. He saw a white Holden Statesman arrive in the area, which he then saw parked near the accused’s house. At about 8pm that vehicle drove off. Detective Hannam followed and pulled it over. The occupants were Aaron Herft and Andrew Cutts. A number of tablets and gel capsules were found on Mr Cutts by Detective Hayes. Detective Hannam and his partner Detective Hayes searched the vehicle and found a bong and an amount of cannabis.
Detective Hannam gave evidence that at 8.24pm together with Detectives Hayes, Featherby and SC Tasovac, he approached the accused’s house in Kavel Lane. As they got to the corner of Kavel Lane Detective Hannam saw two young males run back along Kavel Lane from the corner. He and Hayes entered the accused’s house shortly after Featherby and Tasovac, and saw Featherby and Tasovac speaking to three young males in the living room area. He heard water running in the bathroom, and forced the door to check that drugs were not being disposed of thereby. A woman, who turned out to be Ms Malsom[51], was showering, and he gave evidence that no items of drug interest were observed or located in the bathroom.[52]
[51] T111.
[52] T93.
Detective Hannam searched bedroom 1. He located $4140 in cash in the second drawer of the bedside cabinet. He described how he located the other items found in the room, including the notebook and separate piece of note paper from the wardrobe. He located the various press-seal bag items found in the bin including a small press seal bag with an emblem.[53]
[53] T95-96.
In cross examination Detective Hannam agreed that as well as male clothing there were also items of women’s clothing and makeup located in the room. He also agreed that some of the photographed items may have been moved to a small degree to enable them to be more easily photographed. He said that a black item appearing in photograph 46 pointed out by defence counsel may have been a wallet, although later evidence seemed to establish that this was a mobile phone that police overlooked at the time.
Detective Hayes gave evidence that he accompanied Detective Hannam on 26 June 2010. He spoke to the passenger of the white Holden vehicle, an Andrew Richard Cutts, when it was stopped by police at about 7.55pm. He searched Mr Cutts locating a substance believed to be cannabis, a brass smoking pipe, four see-through capsules containing an off-white powder and 10 light pink tablets.[54]
[54] T120.
Phone contact #99 stored in the iPhone seized from the accused was for “Cuttzy”.[55] The other person in the car with Mr Cutts was Aaron Herft. Phone contact #11 in the iPhone seized from the accused was for “Aaron”. The name “Aaron” features on one of the notepad lists of names and numbers located in bedroom 1 alleged by the prosecution to represent names of illicit drug customers and corresponding amounts of outstanding money owed.
[55] Page 17 of P15.
Detective Hayes then entered the accused’s premises on Kavel Lane with other police. He saw the accused and his brother Zane Donaldson and Marques Pare. Mr Pare produced identification, was searched as was his car, and as nothing of interest to police was found Mr Pare was allowed to leave.[56]
[56] T123.
Detective Featherby gave evidence that he was the investigation supervisor of the operation on 26 June 2010. He arrived at the accused’s address in Kavel Lane Klemzig at about 7.25pm. He saw a white van parked outside the accused’s house. At 7.55pm he saw a white Holden statesman park adjacent to the accused’s house in Kavel Lane. The two occupants alighted. About 5 minutes later the lights of that car came back on and it drove away. Detective Featherby instructed Detectives Hannam and Hayes to stop that vehicle.[57]
[57] T132.
Detective Featherby then noted that the white van had left the premises and had been stopped by Detective Lienert. He then received information that both vehicles that had been stopped and searched contained what were believed to be drugs including ecstasy.
Detective Featherby then arranged police to attend the accused’s premises in Kavel Lane, he approaching the property at 8.24pm. As he approached in his police vehicle he saw two males in their late teens standing on the corner of Kavel Lane, who then ran towards the accused’s premises in Kavel Lane. Detective Featherby got to the front door, knocked, and after a short delay the door was answered by Zane Donaldson, then after telling Mr Donaldson a number of times that he was a police officer with a warrant to search the premises, Mr Donaldson opened the door and admitted police.[58]
[58] T135.
Upon entry Detective Featherby observed the accused and Mr Pare entering the lounge-dining area from the direction of the bedrooms. He heard water running in the bathroom and instructed Detective Hannam to enter the bathroom, which occurred.
Then the search of the premises and the occupants commenced. Detective Featherby located the Samsung mobile phone and a press seal bag containing one gel cap with a brownish colour powder in it, both on the bedside table of bedroom 1, and the black Nokia mobile phone on the floor of bedroom 1.[59]
[59] It appeared that there was a further phone, possibly a black Nokia touch screen phone visible on close examination of photo 46, on the bedside table of bedroom 1, which police overlooked and did not seize. See the XXN of Detective Featherby at T155-159 and T198-204, and T206.
It was led from Detective Featherby, with the consent of the defence, that at the time of the accused’s arrest he was wearing a black “New Boys” street gang windcheater,[60] and he also told Detective Featherby he was a member of that group.[61] Consistent with this, eleven of the phone contacts stored in the iPhone seized from the accused are described as “Newboys”.[62]
[60] T139-140.
[61] T141.
[62] See contacts #3, #14, #16, #23, #37, #45, #48, #59, #77, #82, #95 on pages 4-17 of P15.
In cross-examination, defence counsel led from Detective Featherby that the “New Boys” street gang, as with other street gangs, is involved in drug trafficking, and that members and associates of the “New Boys” may be involved in the sale of drugs. In cross examination he also agreed that Mr Pare was also either a member or associate of the “New Boys”.[63]
[63] T160.
The accused was interviewed by police at the premises in the presence of his mother Ann Marie Donaldson and her partner Linden Fairclough,[64] and a video of that interview was tendered.[65] The accused confirmed that the premises were his then current address, however he then declined to answer further questions or see what the police had located.[66]
[64] T99-100.
[65] P21.
[66] The accused was legally entitled not to answer questions, and there can be no adverse inference whatsoever against him for exercising his legal right not to do so.
Senior Constable Tasovac gave evidence that he was also part of the operation that evening, at the outset accompanying Detective Featherby, and eventually taking up the role of exhibits officer. He recalled arriving at Klemzig at about 6.50pm on 26 June 2010. He observed a white Hi-ace van parked at the front of the accused’s premises. At 7.55pm he saw the white Holden sedan arrive and park on the corner of Kavel Lane. He observed two people alight and walk into Kavel Lane. A few minutes later the two people returned from Kavel Lane and drove the Holden off.[67]
[67] T180.
He and Detective Featherby then attended nearby where Detective Lieniert had stopped the same white van that had been parked at the front of the accused’s house. Shortly after they drove back and SC Tasovac saw the accused with Zane Donaldson and Mr Pare standing on the corner of Kavel Lane. Police then did a u-turn, returned to Kavel Lane, parked in front of the accused’s house and knocked on the front door. When SC Tasovac entered, he saw the accused, Zane Donaldson and Mr Pare in the lounge-dining room.[68]
[68] T184.
SC Tasovac searched the accused, locating and seizing his mobile phone, an iPhone.[69] He also filmed the video of the premises, photographed relevant items and recorded seized exhibits, including those that had been taken in relation to Mr Highett.[70]
[69]T 184, Photo 13 of P3, T189, T192-193.
[70] T186.
Forensic evidence
Police arranged DNA analysis of several of the seized items.
Ms Malsom was not ultimately DNA swabbed. Police said that they did not locate any evidence suggesting she was involved,[71] and at the time of the DNA analysis it seems she was uncontactable.[72] It was also hard to determine if any female DNA was present on any item.[73]
[71] T65.
[72] T212.
[73] T216.
The 4 capsules that were seized (together with the 10 pink tablets) from Mr Cutts were submitted for DNA analysis, however there was insufficient DNA located for DNA profiling.[74]
[74] P23, T227-228.
An orange lid, 11 plastic bag seals, and two pink tablets each with a hair were also submitted for analysis.[75]
[75] P22.
The orange lid[76] was tested as “inconclusive” in all three swabbed areas tested for both the accused and Zane Donaldson, with Mr Highett “excluded” for two of the swabbed test areas and “inconclusive” for one.
[76] 10/B79003 – item no 37 on page 7 of Forensic science Report P22, item 37 of items located in accused’s premises see T185.
Four of the 11 plastic bag seals from the seized press-seal bags were tested.[77] These were exhibit item 39 seized at the accused’s property. The bag seal received in a press seal bag labeled LAH.1.5 contained insufficient DNA for profiling. The bag seal received in a press seal plastic bag labeled CL.BR3.1.5 (one of the press seal bags located in the shoebox in bedroom 3) returned a “not excluded” for the accused, “inconclusive” for Zane Donaldson, and “inconclusive” for Mr Highett. The likelihood ratio for the accused’s reading on this bag was categorized by the DNA expert as “Cannot be calculated – limited evidentiary value”. The remaining two bags did not provide any DNA results.
[77] 10/B79003 – item no 39 on page 7 of Forensic science Report P22, item 39 of items located in accused’s premises see T185. Only the seals of the press-seal bags were submitted as it was said that they are where the bags are most likely to have been touched by individuals, see T214.
These DNA concepts are explained in each tendered report.
·I need not discuss in any detail the obvious meaning of “excluded”. In short if dissimilar elements (the measured elements being “alleles”) are located without there being an explanation for that, then the two samples do not match and the person is excluded as a possible match.
·“Inconclusive” is defined as “If a profile (or interpreted component of a mixed DNA profile) is too complex, weak and/or incomplete to either exclude or not-exclude an individual, then it is considered inconclusive as to whether that individual has contributed DNA to the sample.”
·“Not Excluded” is defined as “An individual is said to be ‘not excluded’ as a possible contributor to, or source of a DNA profile if the alleles present in their reference DNA profile are also present in the evidence (scene) DNA profile. The extent to which the components in the reference profile are represented in the evidence profile may be dependent on the quality of the evidence DNA profile. Usually the term ‘not excluded’ is used when a statistical weighting cannot or has not been calculated, in which case the non-exclusion should be considered of limited evidentiary value.”
The forensic scientist who conducted the testing and compiled the consequent reports was called to explain the DNA evidence. I am satisfied based on her qualifications and experience that she was fully qualified to undertake the testing, compile the reports and give expert DNA evidence.
She confirmed the findings in the reports and explained that her conclusion that the accused was “not excluded” (concerning press seal plastic bag labeled CL.BR3.1.5) was because the sample was mixed and it is weak, such that she could not put a statistical weighting on her reporting of the non-exclusion.[78]
[78] T224.
One of the hairs located with the submitted pink tablets was deemed unsuitable for analysis, the other was “not human like” and also unsuitable for analysis.[79]
[79] P22.
The drugs
Mr Norris, a forensic scientist qualified in illicit drug analysis, analysed the drugs found on 26 June 2010.
·It was agreed that 7 apricot pink tablets, 41 dark pink tablets, 2 dark pink half tablets and dark pink fragments/powder, were the drugs seized from Mr Highett by police at Klemzig on 26 June 2010.[80] Mr Norris concluded that all of these items contained methylamphetamine.[81]
[80] Agreed fact #1, P36.
[81] P24.
·It was agreed that 10 dark pink tablets and 4 clear capsules containing off white crystalline powder, were the drugs seized from Mr Cutts by police at Klemzig on 26 June 2010.[82] Mr Norris concluded that the dark pink tablets contained methylamphetamine and that the clear capsules contained 3,4-methylenedioxymethylamphetamine (MDMA) also commonly known as ecstasy.[83]
[82] Agreed fact #3, P36.
[83] P25.
·It was agreed that all the drugs referred to in Mr Norris’ certificate of analysis P24 under item PPMS No. 10/B79003, were the drugs seized from the shoebox located in the bedroom at Kavel Lane, Klemzig on 26 June 2010. The total weight of the items containing methylamphetamine was 441.53 grams, containing 7.47 grams of pure methylamphetamine. The total weight of the 56 capsules analysed to contain 3.4-methylenedioxymethlamphetamine (MDMA) was 2.91 grams of powder containing 0.38 grams of pure MDMA. I set out the items and their analysis in the order they appear in the certificate:
o1 clear capsule containing off-white crystalline powder containing methylamphetamine.
o13 apricot-pink tablets and 161 dark pink tablets, all containing methylamphetamine
o22 apricot-pink tablets, 478 dark pink tablets, and two red-pink tablets impressed with a “Mercedes” symbol, all containing methylamphetamine.
o49 apricot-pink tablets, 438 dark pink tablets and dark pink tablet fragments/powder, 7 red-pink tablets impressed with a “Mercedes” symbol, 1 dark red-pink tablet, 3 white-pink tablet fragments, all containing methylamphetamine.
o413 grey tablets, each impressed with a “Mercedes” symbol and some grey tablet fragments/powder, all containing methylamphetamine.
o9 apricot-pink tablets, 90 dark pink tablets and dark pink tablet fragments/powder, all containing methylamphetamine.
o55 clear capsules containing off white crystalline powder, totaling 2.81 grams of powder which contained some 0.37 grams of 3,4-methylenedioxymethylamphetamine (MDMA).
oPink lumpy powder containing methylamphetamine.
oHalf an off-white tablet containing methylamphetamine.
oUnidentified pale apricot-coloured powder.
oWhite crystalline powder containing methylamphetamine.
o1 blue tablet impressed with a “reclining lady” design, containing the uncontrolled compound caffeine and no illicit drug, with the remaining tablets as follows; 1 green,1 grey-green impressed with a “Mercedes” symbol, 1 pale orange and 1 dark pink, each containing methylamphetamine.
o1 clear capsule containing off-white crystalline powder containing 3,4-methylenedioxymethlamphetamine (MDMA).
o1 apricot-pink tablet containing methylamphetamine.
o1 dark red-pink tablet containing methylamphetamine.
The forensic scientist then compared the dark pink tablets seized from Mr Highett and from Mr Cutts with the dark pink tablets found in the shoebox at Kavel Lane, Klemzig and concluded that they could not be distinguished from each other.[84]
[84] P26.
The forensic scientist also compared the apricot-pink tablets seized from Mr Highett with the apricot-pink tablets found in the shoebox at Kavel Lane and concluded that they also could not be distinguished from each other.[85]
[85] P26.
The forensic scientist also compared the 4 clear capsules containing 3,4-methylenedioxymethylamphetamine (MDMA) seized from Mr Cutts with the 56 clear capsules containing 3,4-methylenedioxymethylamphetamine (MDMA) found in the shoebox at Kavel Lane. Whilst there were differences in the quantity of powder between capsules, he concluded that all three items were prepared in a similar manner and the powders could not be distinguished from each other. In particular he observed that all the capsules were only partially filled, which he had not previously encountered,[86] a finding of some significance given that he had worked for more than 20 years in the area of illicit drug analysis.[87]
[86] P27.
[87] T236.
Expert evidence about the illicit drug trade
Detective Hudson was then called and gave expert evidence about a number of aspects of the illicit trade in drugs. He is a police officer of 32 years service, with 16 years of extensive drug investigation experience, including having undertaken courses including Drug Investigation and Clandestine Laboratories, been involved in drug investigation training, local and national drug intelligence, ‘controlled buys’ of drugs, and monitoring drug conversations by listening devices and telephone intercepts.[88] I am satisfied based on his qualifications and experience that he was qualified to give expert evidence about the illicit drug trade.
[88] T245-247.
Detective Hudson made a number of observations about the illicit trade in methylamphetamine, and 3,4-methylenedioxymethylamphetamine (MDMA) otherwise known as ecstasy:
·Methylamphetamine is usually sold in a powder or paste form at street level as a ‘point’, or .1 of a gram. However, in 2010 or thereabouts there was a shortage of ecstasy and as a result quite often drug dealers would sell methylamphetamine in a form which resembled ecstasy tablets. The methylamphetamine tablets from the shoebox in this case are consistent with the common appearance of ecstasy, and were particularly sold in such a form in 2010 when there was a scarcity of ecstasy, likely sold purporting to be ecstasy.
·It is common that when people are buying tablets that in fact contain methylamphetamine they usually think they are buying ecstasy.
·Ecstasy can be sold as individual tablets but may usually be sold in amounts of 10 in a small plastic re-sealable plastic bag. Larger bags of 100 or thousands are usually in the possession of drug dealers who are on-selling them to either sub-dealers or persons who have a large ring of users.
·In 2010 the price of between 1 and 10 ecstasy tablets in a press seal bag would be about $20 to $30 per tablet. The price decreases to between $15 and $20 for between 10 and 100 tablets, to $12 to $15 for between 100 to 1000 tablets, and for amounts of 1000 or more its often negotiated down to $8 or $12 although he had heard of it as low as $6 or $7. For, say, 1000 tablets a median price might be $10,000.[89]
·Ecstasy is either sold in tablet form or in a capsule, often called eccies or caps. The capsule is usually a medicinal sort of gel capsule. They are just about always sold in press-seal bags. A 10-pack is a common term. A user would quite often buy 10 in one press-seal bag, or a person buying that quantity may be the first level of dealer who then on-sells or on-supplies them to somebody else.[90]
·Sometimes the press-seal bags are marked with a logo, to promote or brand that dealer’s product.[91]
·Electronic scales (such as those located in the shoebox in bedroom 3) depicted in photo 19 of P3 are commonly found in drug investigation work, and are used for measuring sensitive amounts of product, powders and the like, usually how much material is going to be afforded weight-wise into tablets and capsules, to measure the methylamphetamine and the cutting agent. The scales located in this case can measure up to 200 grams by .1 of a gram.[92]
[89] T250.
[90] T251.
[91] T252. Such press-seal bags with logos were located on the seat of Mr Highett’s van see photos 1 and 2 of P3, on the small bag within another bag located in the bin in bedroom 1 see photo 8 of P3, on a plastic re-sealable bag with “Ned Kelly” logo located in the shoebox found in bedroom 3 see photo 20 of P3, on a plastic re-sealable bag containing a bag containing pink powder with a skull logo on it within a larger plastic bag located in the shoebox found in bedroom 3 see photo 21 of P3, and in a large plastic re-sealable bag containing a small plastic re-sealable bag with a skull logo on it located in the bin of bedroom 1 see photo 50 of P3
[92] T253.
Located documents - allegedly indicative of trafficking
Detective Hudson also gave evidence directed to assist the court in understanding and interpreting other located material. In particular, he was asked to comment on the sheet of notepad paper with handwriting on it containing lists of names and numbers located on a right hand side shelf in the wardrobe of bedroom 1.[93] The note reads as follows:
[93] P34, photo 54 of P3.
Recee - 100 paid
Micheal - 200 paid (200 seemingly written-over to 100)
Greeny - 50+50 paid
Matt - 30 paid
Aaron - 10
Pommy - 10 paid
Greeny - 100
5500 5500
-1800 2000 (these two paragraphs crossed out)
-1000 2700
2700
2700
1800
1000
1700
All these names are also listed as contacts stored on the accused’s iPhone, ie the names Reece, Michael R, Greeny, Matt (at least two Matts are listed), Aaron and Pommy.[94]
[94] Pages 4-17 of P15.
Detective Hudson gave evidence that this note was similar to many he had located in other similar searches. He said that normally these types of chits of paper refer to persons who have been supplied by the drug dealer, and act as a record of who has paid and who has not. For example, he said that the numbers listed of 10, 30, 50 and 100 represent the kinds of dollar amounts commonly bought by street purchasers of the drug, with for example $100 possibly buying 5 tablets and $30 representing perhaps the purchase of one or two tablets.
Detective Hudson was also shown a copy of the notepad also located on a wardrobe shelf in bedroom 1.[95] Pages 3 and 4 of that notebook contained the following:
[95] MFI P28, later tendered as P30, the original of which is P30A, also depicted in photos 32 and 55 of P3.
Sally - $400 ($400 crossed-out replaced by $300)
Greeny - $1300 $240 $300 (all crossed out)
Danny - $1100
Adam - $13000 + $1400
Dario - $910 (400)
Jakeb - $750 (all crossed out)
Steven - $900
Matt - $70
Aaron - $150 (all crossed out)
Troy - $900
Greeny - $600
Most of these names are also listed as contacts stored on the accused’s iPhone, ie the names Sally, Greeny, Daniel (albeit not exactly the same as “Danny”), Adam (two Adams are listed), Jakeb, Matt (at least two Matts are listed), Aaron, and Troy.
Similarly, Detective Hudson gave evidence that this appeared to be a chit list of persons who owe or who have paid money. In relation to entries where the sums are crossed out such as the line for “Greeny”, he said that is often the way an initial amount which is owed is recorded, and then crossed out when some is paid, the new balance being recorded, and so on.
In relation to the $13000 recorded against the name Adam, Detective Hudson gave evidence that such a sum could equate to a quantity in the realm of 1300 tablets of either ecstasy, or methylamphetamine tablets sold as ecstasy.
Cash located – allegedly indicative of trafficking
Detective Hudson gave evidence that it was common in drug search situations to find cash, almost always in denominations of $50 and $100, due to methylamphetamine so often being sold for $50 a point, or say $200 for a pack of 10 tablets, also its easier to conceal a smaller number of larger notes, and further, larger denominations are often preferred as dealers often have to pay their own supplier in a quick transaction.[96]
[96] T262-263.
Police located $4140 in the second drawer of the bedside cabinet of bedroom 1.
$4050 of this sum comprised $50 and $100 notes.[97]
[97] As evident from the video P2, it was made up of $3650 in $50 notes, $400 in $100 notes, $80 in $20 notes and one $10 note.
SMS messages - allegedly indicative of an interest in illicit drugs
Detective Hudson also gave evidence directed to assist the court in understanding and interpreting a number of SMS messages.[98] He said that people dealing in illicit substances often speak in coded terms. They do not usually use words like methylamphetamine and ecstasy, but rather refer to the drugs by common street jargon or code. Often they refer to unspecified items, having been received or being put aside for someone, or refer to whether a person wants any or anything, which is often referring to illicit drugs. Often the word “thing” is used, or a term for the drug is simply not used at all.
[98] T245-T310.
Detective Hudson explained terms commonly used in the illicit drug trade.
“Little things”, “little ones”, “lollies” and “lolls” are common terms often referring to ecstasy tablets. “Eccies” refers to ecstasy tablets. “Paper or paperwork” in this type of jargon almost always refers to money in the context of drug trading. “Tick” can refer to credit and therefore “on tick” is getting product on credit. A “10-pack” in his experience commonly refers to a press-seal bag containing 10 ecstasy tablets. “Coke” or “c” are terms commonly used to refer to cocaine. “Speed” commonly means methylamphetamine so “speed-based” commonly means that something has methylamphetamine in it.
A “ball” or “eight-ball” is a term used for 3.5 grams of a drug, and a “g” for a gram of drug. Where the drug is sold as methylamphetamine it is usually referred to as a powder or weight such as “ounce”, “half ounce”, an “oz”, “eight-ball” or “ball”, a “gram” or “g”, whereas where numbers are used that usually refers to numbers of tablets or capsules such as ecstasy. A “big one” can mean several things, for example where used in relation to methylamphetamine it can, depending on the level of dealing, mean a full gram or a full ounce. “Killer” can mean various types of drugs, or that something is very good, fine or wonderful. “Hydro equipment” can mean hydroponic equipment used for the indoor production of cannabis.
Detective Hudson explained how drug dealers will often ring a number of people shortly after getting a new batch of drug, advising them and seeing whether they are interested in buying.
He explained how, in his experience, language and messages similar to many of those located in this matter would relate to trading in illicit substances.
SMS messages were located on the Nokia 2730 phone seized from Mr Highett, which such phone as earlier mentioned appeared to have been operated by the accused at least between 13 April 2010 and 2 May 2010 when the holder was giving out the accused’s residential address and describing himself as “Beau”. From 2 May 2010 through to 11 June 2010 the SMS messages continue in a similar vein, and some messages appear to potentially relate to the accused. For example, an incoming message is received on 28 May 2010, “Are you still on home D?” The evidence separately establishes that at that time the accused had indeed been on Home Detention bail.[99] Messages allegedly seeming to relate the supply of illicit drugs continue from at least 22 April 2010 until 11 June 2010 when the SMS messages largely cease before restarting on 25 June 2010.
[99] Condition 2 of Bail Agreement P11.
The inference is that the accused was using this phone from at least 13 April 2010 until at least 11 June 2010.
The seized Vodaphone receipt located by police indicated the accused may have purchased his new iPhone on 17 June 2010. The earliest recorded SMS on the new iPhone is recorded as 25 June 2010. Once the accused had his new iPhone he may accordingly have had no further use for the Nokia 2730 phone ultimately located on Mr Highett on 26 June 2010.
In all the circumstances the inference is that the accused was in possession of this phone at least from 13 April 2010 and gave it to Mr Highett some time after he got his new iPhone on 17 June 2010 and before it was seized from Mr Highett on 26 June 2010. Accordingly, the evidence is that the Nokia 2730 phone was in the possession of the accused when the following SMS messages were recorded on it:
·On 22 April 2010 the accused sent a message “just got some in bro you want any?” to number 0423799205 referred to as “Innes” on that phone. That name and number is also recorded in the accused’s iPhone directory.
·On 22 April 2010 the accused sent a message “Alright bro too easy. Just put yours aside for ya” to number 0422732352 referred to as “Matt” on that phone. That name and number is also recorded as a contact in the accused’s iPhone directory, on the iPhone however as “Matt L”. A “Matt” is mentioned in both the lists of names and figures located in the wardrobe of bedroom 1 at the accused’s premises on 26 June 2010.
·On 22 April 2010 there is a series of messages between the accused and number 0430133243. They are grouped together in blocs, but logically appear to relate to each other as follows:[100]
[100] As to how this grouping occurs, see electronic Support officer Noordin, T78-83.
oThe caller asks the accused “Goin on mate? Its mitch”.
oThe accused replies “Fuk all. Heard you get rid of some lil things? What you get them for? I would beat them haha”.
oThe caller tells the accused “14 on tick 13 if pay upfront”.
oThe accused asks “for how many?”.
oThe caller responds “100”.
oThe accused responds “Oh ok well if you need any let us kno always got and could prob beat that price”.
oThe caller says “No worries”.
·On 22 April 2010 there is a series of messages between the accused and number 0435883175 referred to as “Rezgar” on that phone.[101] “Rezgar (Newboys)” is also recorded as a contact in the accused’s iPhone directory albeit with a different number. The messages are printed seemingly out of order[102] but logically appear to relate to each other as follows:
[101] See full extracted details of that phone including the contact name Rezgar for this number, in P8, eg contacts list on page 4 of P8 and eg call 182 on page 25 of P8.
[102] See electronic Support officer Noordin, T78-83.
oThe caller asks the accused “Did you tell him to give me the paper that his got now. Send me his address and tell him that i will go past to get it off him”.
oThe accused replies “He popping round Saturday bro so will have cash then”.
oThe caller says “I will come past before you go to the gym. Let me know when you getting home”.
On 23 April 2010 there are two more messages from the accused to “Rezgar” on that phone, although there are no replies recorded.
oThe accused messages Rezgar “Might need another 500 by tonight bro can you do it?”
oA few minutes later the accused messages Rezgar “Alright to (sic) easy cheers bro”.
·On 23 April there are a series of messages to the accused from number 0422259044 referred to as “Shaun” on that phone. That name and number are also recorded as a contact on the accused’s iPhone. There are no replies recorded. The messages to the accused are as follows:
o“Need a 10 pack asap”.
o“Okay mate!”
o“Where limbo gym?”
o“II there in half an hour”
o“Im out front!”
“Limbo Gym” is also recorded as a contact on the accused’s iPhone.
·On 23 April there is a message to the accused from number 0433074927, from a person who gives their name as “jaimieelee”. “Jaimie-Lee” is also recorded as a contact in the accused’s iPhone directory albeit with a different number.
o“Hey pal Its jaimieelee, my mate needs 500 lol’s? How much? Call my fone x”.
·On 24-25 April there is a series of messages with number 0400995008. That number is recorded on the accused’s iPhone, on the iPhone as “Troy L”. A “Troy” is mentioned in one of the lists of names and figures located in the wardrobe of bedroom 1 at the accused’s premises on 26 June 2010. These messages may have again been grouped together in blocs rather than chronologically, but logically appear to relate to each other as follows.
oThe caller says “Hey bro let me now when ur ready and if u need anything”.
oThe accused says “Ready bro haha. Can you get coke if you can”.
oThe caller says “No worries ill be there shortly”.
oThe accused says “Oi bro i fukd up i gave you a ball not a g lol. You still got it?”
oThe caller says “Yeah most of it only had a little”.
oThe accused says “Oh oh ok you wanna just have it and pay for a ball? Its 1600? So 1200 more”.
oThe caller says “That’s done mate and iv still got a few”.
oThe accused says “Still in town?”
oThe accused says “You want more tomorrow or not?”
oThe caller says “Cheers mate”.
oThe accused says “Too easy bro just makin money for ya haha”.
·On 24-25 April 2010 there are more messages from 0422732352. As mentioned, that number is referred to as “Matt” on that phone, that name and number also recorded as a contact in the accused’s iPhone directory, on the iPhone however as “Matt L”. A “Matt” is mentioned in both the lists of names and figures located in the wardrobe of bedroom 1 at the accused’s premises on 26 June 2010.
oThe caller says “He said hel take em at 11 oclock, n he told sage if there bad hel want the cash bak. X”.
oThe caller says “How long do u reakon it wil take 4 that paper coz thats the last bit so il get more wen ur done wit it”.
oThe caller says “Yer and il grab more n yel if u need”.
·On 24 April 2010 there are many more messages between the accused and number 0435883175 referred to as “Rezgar” on that phone[103] As mentioned, “Rezgar (Newboys)” is also recorded as a contact in the accused’s iPhone directory albeit with a different number. Again the messages are printed seemingly in blocs[104] rather than chronologically but logically appear to relate to each other as follows.
[103] See full extracted details of that phone including the contact name Rezgar for this number, in P8, eg contacts list on page 4 of P8 and eg call 182 on page 25 of P8.
[104] See Electronic Support officer Noordin, T78-83.
oThe caller says “Hey bro you got the paperwork”.
oThe accused says “Hey bro 11 for sure.. He had to work late so yeh def on. Shop all ok?”
oThe caller says “No bro no good pigs shut the shop down talk to you when i come see you”.
oThe accused says “Oh what bullshit they raid?”
oThe caller says “Yep”.
oThe accused says “Anyone get locked up?”
oThe caller says “Talk to you when i get there”.
oThe accused says “O really. Alright bro should have in my hand by 11. You boys wanna come here?”
oThe caller says “I will see if we have time bro”.
oThe accused says “Alright bro.. Talk show”
Two further messages on 25 April with “Rezgar” may also have some relevance, although any answers from “Rezgar” are not recorded.
oThe accused says “Hey bro you getting any more today?”
oThe accused says “Find me something like that on the asap bro haha. Got just about 1500 now should have a lot more by end of week”.
·On 24-25 April there are a series of messages with number 0402159255 which may have some relevance. These messages have again been grouped together in blocs rather than chronologically but logically appear to relate to each other as follows.
oThe caller says “bro did you message me? I just wake up”.
oThe accused says “Yeh bro just wanted to see about new ones yet?”
oThe caller says “Not yet bro but hopefully this week sometimes. Still got some of those one’s that i gave you at the moment”.
oThe accused says “Oh ok you wanna drop a few around?”
oThe caller says “I will come see you tonight sometimes. Before 9. Cool?”
oThe accused says “Yeh too easy bro..”
oThe caller says “I think you still owe some on the other ones I gave you. I write all down, do you or you didn’t know”.
oThe accused says “Yeh think it might be 700 or something?”
oThe caller says “950 by my account don’t worry we will sort it out”.
oThe accused says “Oh ok yeh nah knew it was something like that.. Yeh sort it out when I see you haha”.
On 26 April there is a further message to the accused from this caller
oThe caller asks “Hey bro. Have you got any paper for me, anything around $500 need to take my gf out tonight Haha fucken sluts cost too much”.
On 30 April there is a further series of messages between the accused and this caller, grouped together in blocs but which logically appear to relate to each other as follows.
oThe caller says “Hey bro i will come past in 20 mint’s. Can you have some paper for me”.
oThe accused says “Hey bro only got 700 on me. Mate picking up 100 tomorrow”.
oThe caller says “K i will quickly come past.”
oThe caller says “Out side bro”.
On 4 May there are two further messages between the accused and this caller. The accused is recorded as having sent the first message, however they read logically the other way around. Again, this was explained by the technical evidence called.[105] Logically they read in the following order:
[105] See Electronic Support officer Noordin, T78-83.
oThe caller says “Hey bro wat you up 2? Bro can you get that paperwork ready for me tonight cos im going out of town tonight.”
oThe accused says “Hey bro got no more cash on this lot just yet coz ppl want new ones that’s why i asked if i could swap on the asap”.
On 5 May there are a series of messages from this caller to the accused, although any replies were not recorded. The messages commenced with the following:
oThe caller said “Hey buddy, can you call dick face danny and tell him that i said that if he Dosent have $1500 for me by Friday i will go to his house and smash the Fuck out of him and i will do the same thing I done to Daniel and them. I dont give a Fuck how, where his getting it from i need it by friday after noon. Send this message to him and if he said any thing let me know.”
On 7 May there is a further message from this caller to the accused:[106]
[106] Some further messages are sent from this number to the accused up to and including 21 May 2010.
oThe caller said “Hey bro, with this new ones who ever want’s them it has to be cash just let them know”.
·Between 25 April and 26 May there are a series of messages between the accused and number 0434627909. That number is also recorded as a contact on the accused’s iPhone directory, on the iPhone as “Dylon 2”.
oThe accused’s message to Dylon 2 on 25 April is “Its beau how much for an oz and a half oz?”
oOn 27 April the caller says “Hey mate it will have 2 be cash up 4 ya mate, i got too much out on tick at moment”.
oOn 3 May 2010, that caller says “Hey mate, howd ya go wiv the dosh?”.
oOn 5 May the caller says “Hey bud, goin on? Hows ya mate gone wiv that coin?”
oOn 26 May the caller says “Yo?”
·On 25-26 April there is a series of messages between the accused and number 0406914941. These messages have again been grouped together in blocs rather than chronologically. They make more sense as follows.
oThe accused says “Hey its dario’s mate you stll after them lil things?” (“Dario” is mentioned in one of the lists of names and figures located in the wardrobe of bedroom 1 at the accused’s premises on 26 June 2010.[107] )
[107] Page 3 of P30.
oThe caller responds “Man pissed all my $$$ up da wall bro”.
oThe accused says “Who’s this?”
oThe caller responds “Darios other mate”.
oThe accused says “Oh ok too easy bud. Let me kno if you ever need any..”
oThe caller responds “Too easy”.
·On 25 April the accused sends a message to number 0422259044 referred to as “Shaun” on that phone, who as mentioned earlier requested a 10 pack from the accused on 23 April. That name and number are also recorded as a contact on the accused’s iPhone.
oThe accused asks “After any?”
On 27 April there are further messages between the accused and “Shaun”. Again, these messages have been grouped together in blocs rather than chronologically. Logically they read in the following order.
oThe caller says “I need 20”.
oThe accused responds “When you want them?”
oThe caller says “Might just get them around 4.30 if that’s cool”.
oThe accused responds “Yeh all cool..”
oThe caller says “Kila so from ur place then yeah? And how much?”
oThe accused responds “340.. Yeh will be at mine just after 4.30”.
On 29 April “Shaun” sends a further message:
o“Hey mate just need 10 now!”
On 15 May “Shaun” sends a further message:
o“Hey bud I need just 3?”
·On 25 April the accused sends a message to number 0422845649, referred to as “Glenn” on that phone. That name and number is also recorded as a contact in the accused’s iPhone directory.
oThe accused asks “After any?”
·On 25 April the accused sends another message to number 0423799205, referred to as “Innes” on that phone. That name and number is also recorded in the accused’s iPhone directory.
oThe accused asks “You after anything bud?”
·On 26 April there is a series of messages between the accused and number 0422732352, referred to as “Matt” on that phone. As mentioned earlier in relation to the accused’s 22 April and 24-25 April messages to and from that number, that name and number is also recorded as a contact in the accused’s iPhone directory, on the iPhone as “Matt L”. A “Matt” is mentioned in both the lists of names and figures located in the wardrobe of bedroom 1 at the accused’s premises on 26 June 2010. Again, these messages have been grouped together in blocs rather than chronologically. Logically they read in the following order.
oThe caller asks “How u goin wit that thing coz I got more waitin 4 pik up”
oThe accused responds “Yeh he dropping the paper off tomorrow that alright?”
oThe caller says “Yes man, is that the last ov it?”
oThe accused responds “Yeh all of it bro”.
oThe caller says “Kilah. Leme kno if u need more. Xo”.
On 27 April a further message is sent to the accused from this number:
oThe caller says Did he drop that cash md bro xo”.
·On 28 April the accused receives a message from number 0433831887. He had previously texted his address to it.[108]
[108] On 25 April he had texted “Yeh bro 16 nanette road valley view” to this number.
oThe caller asks “You know anyone that wants 6K of hydro equipment?”
On 5 May the accused receives a further message from this number.
o“Could I suss a bg mate?”
·On 30 April a draft message is saved on the accused’s phone.
“Jakeb 350… Steven 900… Greeny 300… Danny 1100… Dario 1760…” This appears to be a list of names with corresponding figures, similar to the lists located on notepads in the wardrobe of bedroom 1. All the saved names are on at least one of those notes, with the numerical figures corresponding with Steven and Danny matching the figures on the notepad list tendered as P30/P30A exactly. Detective Hudson gave evidence that in his experience of illicit drug investigation this kind of list is commonly a stocktake-type list of outstanding monies from particular customers.[109]
[109] T282-283.
·On 30 April there are more messages from 0422732352, “Matt” on that phone. Both the name and numbers are also recorded as a contact in the accused’s iPhone directory, on the iPhone however as “Matt L”. A “Matt” is mentioned in both the lists of names and figures located in the wardrobe of bedroom 1 at the accused’s premises on 26 June 2010.
oThe accused says “You talked to that guy yet?”
oThe accused says “Alright bro 100? Just ring us when you can”.[110]
[110] There are a number of other blocs of grouped messages to and from “Matt” at around this time consistent with the cited messages.
·On 4-5 May there are three messages from a woman calling herself Annalise on 0411323347.
oThe caller says “Hey its annalise i was wounderin if u have eccies? Wb to my phone”.
oThe caller says “Hey its annalise if its ok can i come grab 2 of them now? If ure free”.
oThe caller says “Hey sorry to bug u but iv got to go pick up my friends kid n iam goin past ures now are u home?”
·On 7 May there is a further message from 0400995008. As mentioned, that number is recorded on the accused’s iPhone described as “Troy L” and a “Troy” is mentioned in one of the lists of names and figures located in the wardrobe of bedroom 1 at the accused’s premises on 26 June 2010.
oTroy asks “Hey dude so what do u hv”.
·Between 13 and 29 May 2010 there is a series of messages from 0435945074. The person indicates their name is “Rez” and that it is their “other phone”. As mentioned, there were a number of previous messages from “Rezgar” and a “Rezgar (Newboys)” is also recorded as a contact in the accused’s iPhone directory, albeit with a different number.
oOn 13 May the caller says “Hey buddy its rez this is my other number just text message. Im leaving the state tomorrow got 1 big one i will leave it with you see what you can do with them till i come back on Monday”.
oOn 15 May the caller says “Im going to get my brother to drop off the things. How much money you got there for me?”
oOn 16 May the caller says “Hey buddy, wats cracking down town” then calls again to say “Coming back tomorrow. I will come see you when i get back please make sure all the paper work is ready. thank’s buddy.”
oOn 29 May the caller says “Let me know when your mate come around”.
·On 20 June 2010 a call is recorded as having been made to the accused from 0431276531, the number for “Rezgar (Newboys)” in the accused’s iPhone directory, although no message was left on that occasion
·On 14 May 2010 there is a message to and from 0449121315. It is not clear which is first, given the various technical issues addressed by the expert evidence,[111] however they more logically flow as follows
[111] See Electronic Support officer Noordin, T78-83.
oThe caller says “Hey bro, speed based”.
oThe accused says “? You think they are?”
These messages may be consistent, in the totality of the circumstances, with a customer telling the accused that the tablets the accused sold him as ecstasy are in fact methylamphetamine, ie “speed based”, and the accused querying that assertion.
·On 23 May 2010 there is a message from 0429833643, referred to as “James Pitt” on that phone. That name and number is also recorded as a contact in the accused’s iPhone directory.
oThe caller says “50 bux a lol up here that’s crazy !!! Haha”.
oOn 4 June 2010 this caller is recorded as having rung again but not left a voice message.
·On 5 June there is another message from 0422732352, “Matt” on that phone. That name and number are also recorded as a contact in the accused’s iPhone directory, on the iPhone however as “Matt L”. A “Matt” is mentioned in both the lists of names and figures located in the wardrobe of bedroom 1 at the accused’s premises on 26 June 2010.
o“Do u know any 1 who wants c.”
·Between 2 and 11 June there are several messages from 0402156286
oOn 2 June the caller says “Call my hm ph”.
oOn 3 June the caller says “Im on my way to urs”.
oOn the same day the caller says “I dnt give a fuck im ment to be leavin for lincon 2mrow ring me now”.
oOn 7 June the caller says “ring me”.
oOn 11 June the caller says “Just lyk u said to me u dnt wanna know what happened wid the half oz I dnt wanna know what ahmed is doin simple”.
oOn the same day the caller says “Ring me asap”.
A number of SMS messages were also recorded on the iPhone seized from the accused on 26 June 2010. All these messages were recorded as having occurred on 26 June 2010.
oAt 11.35 on June 26 2010 a message to the accused from “Greeny”: “Bro u better give me sus for 350 help me out I help u out an I lost my job soo 350 or what”.
oAt 12.07 on June 26 a message to the accused from “Adam”: Just spoke to the boys they reckon they’ll have the coin collected next few hours. When can I come finish your tattoo. Can I come tomorrow brother.”
oAt 3.43 on 26 June 2010 a message from the accused to “Mat”: “Oi come here and buy me this game for $2 and I will give yyou (sic) the coin lol I gave you two for free”.
oAt 4.03 a reply from “Mat”: “yea right Cunt”.
oAt 4.09 a reply from the accused to “Mat”: “Do it bitch”.
oAt 6.36 on 26 June 2010 a message from “Troy” to the accused: “Jst make it 20 moats :)”.
Of note, each of these callers “Greeny”, “Adam”, “Mat” (albeit spelt “Matt”) and “Troy” feature on at least one of the seized lists of names and numbers located on notepad paper in the accused’s bedroom (bedroom 1).
The prosecution puts all of this forward as circumstantial evidence, indicating an ongoing interest in illicit drugs. It is important to note that the use of such evidence is strictly limited. I use it strictly in accordance with the Supreme Court’s authorities as to its use.[112] It cannot be used in any other way as evidence against the accused. In particular the evidence cannot be used to suggest that the accused has a propensity to commit any offence, is of bad character nor to reason that because it may indicate the commission of other drug offences that the accused might for that reason be guilty of the charged offences.
[112] See, for example R v Norton-St Clair & Riddle [2005] SASC 348, R v Franco [2009] SASC 370, R v Long [2002] SASC 426.
Fingerprint evidence
Sergeant Clements was called to give fingerprint evidence.[113]
[113] T311-318, and 4 page witness statement tendered as P29.
Sergeant Clements examined a number of items. Overall, he found fingerprints that were in his opinion identical to the accused’s fingerprints on the two notebooks seized in this matter. He found a fingerprint that could not be identified on one of the two screwtop jars located in this matter. He did not locate any other fingerprints.
Item 17 received from Detective Tasovac on 13 July 2010 was the lined page spiral notebook, allocated forensic register exhibit number 51009840 located on the bedside table of bedroom 1 and tendered as P31. It contained writing and a phone number.[114] A fingerprint impression identical to the accused’s left middle finger was located on the rear cover.
[114] Depicted on pages 2-3 of P31.
Item 18 received from Detective Tasovac on 13 July 2010 was the lined page spiral notebook, allocated forensic register exhibit number 510019867 located in the wardrobe of bedroom 1 and tendered as P30A/P30. It contained the list of names and corresponding amounts of money earlier referred to.[115] Two fingerprint impressions identical to the accused’s left middle finger were located on the inside cover of that notebook, and a fingerprint impression identical to the accused’s left thumb was located on the second page.
[115] Depicted on pages 3-4 of P30 and P30A.
Item 22 received from Detective Tasovac on 13 July 2010 was one of two screw top jars, allocated forensic exhibit number 510019856. A single fingerprint impression on this jar did not match either the accused or come up on the national police fingerprint computer system.
Handwriting analysis
Ms Bird, a forensic scientist with training and expertise in handwriting analysis and comparison was called.
She explained that throughout all government and police handwriting laboratories in Australia and New Zealand there is an accepted five level scale used to categorise the levels of opinion expressed about compared handwriting material, as follows:[116]
1That in the opinion of the examiner the questioned handwriting was written by the writer of the comparison material, or in other words that there is very strong support for the proposition that the questioned handwriting was written by the comparison writer.
2Qualified support for the proposition that the questioned handwriting was written by the comparison writer.
3No opinion in relation to the proposition. This level is given where there may be similarities or dissimilarities observed but there may be limitations associated with aspects of the comparison, such that the examiner cannot offer an opinion about authorship.
4Qualified support for the proposition that the questioned handwriting was not written by the comparison writer.
5Very strong support for the proposition that the questioned handwriting was not written by the comparison writer.
[116] T324.
She analysed the original handwriting depicted in both notepads seized from bedroom 1,[117] two scraps of seized paper,[118] and the single piece of notepad paper with names and numbers on it also seized from bedroom 1.[119] She compared that writing with the sample of handwriting obtained by police on request from the accused.[120] It is relevant to note that the sample obtained by police on request from the accused was written when the accused had been charged with these offences, and in these circumstances the potential for the writer to attempt to disguise their writing was present and recognized by Ms Bird.
[117] P30/30A and P31.
[118] P32.
[119] P34.
[120] P33.
She excluded from examination any items which were overwritten, as overwriting obscures features, for example the second page of the notebook P30/30A containing the list of names and money, which I observe contains amongst other notations the heavily emphasized and overwritten words “People i owe .. Brooke – a lifetime of money!!”[121] It is however relevant to observe that the woman Brooke Malsom was the girlfriend of the accused.
[121] T326-327.
Ms Bird said she was unable to express an opinion about the two scraps of seized paper due to the small amount of handwriting present on them.[122]
[122] T327.
In relation to P31, the notebook with writing and a phone number, Ms Bird concluded that she was unable to express an opinion about authorship.
In relation to P30/P30A, the notebook with the names and numbers written in it seized from the wardrobe in bedroom 1, Ms Bird said that the front cover had too little material to express an opinion about authorship, the next page with the emphasized and overwritten words was not analysed for that reason, and the last three pages including the list of names and money was inconclusive, in other words she was unable to express an opinion about authorship.
In relation to P34,[123] the single sheet of notepad paper also seized from the wardrobe in bedroom 1 containing a list of names and numbers, Ms Bird concluded that there was qualified support for the proposition that the handwriting was written by the writer of the comparison handwriting, ie the accused.[124]
[123] Single notepad page seized by police in the wardrobe of bedroom 1, police item number 19, described as CL.BR1.7, depicted in photo 54 of P3
[124] T339
The defence case
The accused neither gave nor called evidence in the trial.
It is important to remember that he was not bound to give evidence. He has the right to decline to give evidence. Because that is his legal right a court must not draw any inference adverse to him or the case he puts forward from the exercise of that right. There may be many reasons why he did not give evidence and a court should not speculate on those reasons. The accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.
The recurrent theme courts always bear in mind is that it is for the prosecution to prove its case beyond reasonable doubt.
The respective cases
The prosecution argues that the only rational inference to draw from the totality of the circumstances in this case is that on 26 June 2010 the accused was in possession of and trafficking both methylamphetamine and ecstasy as alleged in count 1 and count 2 of the Information.
The defence argues that the prosecution has not established guilt beyond reasonable doubt in relation to either of the alleged offences. In particular counsel for the accused argues that the prosecution case does not rise above possibilities, inconclusive evidence and inconclusive opinions, emphasizing that for guilt to be established, the circumstances must be inconsistent with any reasonable hypothesis of innocence.
While it is of course not for the accused to prove his innocence in any respect whatsoever, the defence argues that, for example, the prosecution has not excluded the possibility that others, for example Ms Malsom and/or the accused’s brother were in possession and trafficking the drugs concerned, and that the prosecution’s case is speculative and inconclusive.
Defence counsel emphasized the limited or partial nature of the DNA, fingerprint and handwriting evidence, and that the box containing drugs was not found in the accused’s bedroom. He argued that the evidence was insufficient to be confident that the accused was in possession of the Nokia 2730 phone for the period the prosecution argues, and that perhaps the majority of the drug related messages on that phone may have in fact been made by Mr Highett, and that one phone located at the house was missed altogether by police.
I have carefully considered all the arguments and submissions made by both counsel in their comprehensive closing addresses.
Discussion
I have closely scrutinized the evidence as it was given and subsequent to the trial reviewed it all in detail. In particular I have closely considered the matters raised, put and answered in cross-examination, and in particular Mr McCarron’s address concerning the prosecution witnesses, their evidence, and the inferences which may or may not arise.
All the witnesses called gave evidence in a clear and forthright way. They all had good recall of events, albeit some with the assistance of notes taken at the time. There was no hint of exaggeration or bias. Their evidence was consistent and presented a clear picture of the events of 26 June 2010.
With the exception of one matter, I find all witnesses to be truthful and reliable. The one exception is the initial observation by Detective Hannam that a black item appearing in photograph 46 pointed out by defence counsel may have been a wallet. Whilst I find Detective Hannam an honest witness, I find his initial observation was mistaken, and that item was a further mobile phone, unfortunately overlooked by police.
I find that each witness that gave expert evidence in the trial was well qualified to do so. Further, no issue was taken with their qualifications.
With the one exception mentioned, I accept the evidence of all the witnesses called in the matter, without having necessarily restated it all in these reasons, beyond reasonable doubt.
As with the classic description of a circumstantial case, being akin to a rope, comprising many strands of widely varying strength, so it is here. Some of the elements of circumstantial evidence proffered in support of the prosecution case are strong, others weak. Ultimately, it is the combined strength of all those strands both strong and weak that must be considered.
The primary circumstances which I find proven beyond reasonable doubt, which I find are relevant to the potential guilt of the accused, are as follows.
·On the charged date, 26 June 2010, the accused resided at the Kavel Lane address, and had done so since 8 May 2010.
·The accused had been in possession of a Nokia 2730 mobile phone at least from 13 April 2010 until he gave it to Mr Highett between 17 June 2010 and 26 June 2010. During the time the accused was in possession of that phone numerous SMS messages were sent to and by him. Read as a whole, the messages indicate the accused had a strong ongoing interest in illicit drugs.
·While the accused was in possession of the Nokia 2730 phone, a 30 April 2010 draft message appearing to be a list of names and numbers indicative of a list of outstanding monies from customers of illicit drugs was created and stored, also indicative of an interest in illicit drugs.
·The accused was in possession of an iPhone from 17 June until it was seized from him by police on 26 June 2010. That iPhone contained SMS messages made or received on 26 June 2010, which messages when read as a whole I find indicate an interest on the part of the accused in illicit drugs that day.
·The accused occupied bedroom 1 of the Kavel Lane address, as described on the police plan (hereafter referred to as the accused’s bedroom). The accused’s girlfriend also occupied that room although it is not clear whether she permanently resided at the property.
·The accused was aged 19. His 15 year old brother also lived or stayed at the house, using bedroom 3, although it is unclear whether he permanently resided at the property.
·There was no material indicative of an interest or involvement in trafficking illicit drugs located on the phone of either the accused’s girlfriend or the accused’s 15 year old brother.
·A Mr Pare was located by police at the house. He did not reside there. Police searched Mr Pare and his vehicle and located nothing indicating involvement in illicit drugs.
·Electronic home detention monitoring establishes that the accused was at home and in the Kavel Lane address all day on 26 June 2010 until 6.39pm, when he left for a short period of 2 minutes and 49 seconds. The accused then remained in the premises until 8.09pm whereupon he left for 13 minutes, returning at 8.22pm. The accused then remained in the premises until 10.45pm when he left, after being arrested by police.
·At some point between 8.09pm and 8.22pm the accused was seen at the end of Kavel Lane by police with his younger brother and Mr Pare, whereupon the three ran back to the Kavel Lane property.
·The police entered the property shortly after this. There was time for items in the house to have been moved by the accused or others between the moment the accused re-entered the house at 8.22 and when the police entered a minute or two later. Police located the significant quantities of methylamphetamine in tablet and powder form, and ecstasy in clear fillable gel cap form, described in these reasons, all in plastic press seal bags, in a shoebox in the wardrobe of bedroom 3.
·There were over 1600 tablets containing methylamphetamine, together with some fragments and powder containing methylamphetamine. The total weight of the items containing methylamphetamine was 441.53 grams, containing 7.47 grams of pure methylamphetamine.
·The total weight of the 56 capsules analysed to contain 3.4-methylenedioxymethlamphetamine (MDMA), also known as ecstasy, was 2.91 grams of powder containing 0.38 grams of pure MDMA.
·The very large quantity of methylamphetamine tablets located was inconsistent with being for personal use of that drug.
·The significant quantity of ecstasy tablets located was inconsistent with being for personal use of that drug.
·The accused’s DNA was “not excluded” as being upon one of the press seal bags containing drugs located in the shoebox in bedroom 3.
·In the accused’s bedroom two notepads and a piece of notepad paper were located. On one notepad, and also on the separate piece of notepad paper, there were lists of names and numbers, of a kind commonly located in illicit drug matters, commonly relating to lists of customers of illicit drugs and amounts owing. These lists bore significant similarity to the list created and saved on the accused’s Nokia 2730 phone on 30 April 2010.
·The accused’s fingerprints were detected on the two notepads located in the accused’s bedroom, including the notepad containing the list of names and numbers.
·Most of the persons named on the notepad lists of names and numbers were also “contacts” saved in the accused’s iPhone.
·Expert handwriting analysis concluded that there was “qualified support” for the proposition that the accused wrote the single sheet of notepad paper containing a list of names and numbers seized from the accused’s bedroom. An opinion could not be expressed about the other documents.
·Two plastic jars of empty, fillable gel caps were located in the accused’s bedroom. These matched the filled gel caps containing ecstasy located in the shoebox in bedroom 3 and in one of the cars that had departed Kavel Lane shortly before.
·A number of plastic press seal bags were located in the bin of the accused’s bedroom including one with a logo. A press seal bag containing one similarly filled gel cap was located on the bedside table in the accused’s bedroom
·$4140 in cash was located in the drawer of the accused’s bedside table. This was nearly all in the $50 and $100 denominations often located in, and associated with, drug trafficking situations.
·The police stopped and searched both a white car and a white van which had just departed from being parked adjacent to the Kavel Lane address. Each contained relatively small quantities of illicit drugs. All the illicit drugs located exactly matched some of the large quantity of illicit drugs located in the shoebox at the Kavel Lane address.
·The two persons located with the drugs in the white car and white van were Luke Highett and Andrew Cutts. “Luke” and “Cuttzy” are both contacts saved on the accused’s iPhone.
·Mr Highett was found in possession of the Nokia 2370 phone that the accused had been using between 13 April 2010 until some time between 17 and 26 June 2010. There were numerous similar contacts saved on the phones located on the accused and Mr Highett respectively.
Notwithstanding the defence submissions in the matter, and giving the fullest consideration to all the matters and aspects of the evidence emphasized by defence counsel, the overwhelming inference and indeed the only rational inference arising from these circumstances is that the accused was in possession of the drugs located on the shoebox in bedroom 3 of the Kavel Lane address, although there is a possibility that Ms Malsom and the accused’s younger brother may have also played some lesser joint role or part in their possession.[125] It is an overwhelming inference, and again the only rational inference in the totality of these circumstances, that the drugs in the shoebox were possessed for the purposes of sale.
[125] I apply the classic definition of possession, that the accused knowingly had each of the drugs, and did so with the power and intention to exercise control over them to the exclusion of others, noting that per section 4(1) of the Controlled Substances Act possession includes having control over the disposition of the drug, and includes having joint possession of the drug.
There is in my view no reasonable possibility that the accused, with his strong ongoing interest in illicit drugs, with the written lists of drug customers and money linked to him in the ways described, with the large quantity of cash in large denominations in his bedside drawer, with the association he had apparent from his phone contacts with two people leaving his premises with illicit drugs identical to those in his house, one of whom had his former phone, with the relative absence of evidence of involvement by others present a much younger brother his girlfriend and a visitor, in the totality of the listed circumstances; there is no reasonable possibility that the accused was not in possession of the methylamphetamine located in the shoebox and the MDMA located in the shoebox and no reasonable possibility that either drug was not being possessed for the purposes of sale.
I find beyond reasonable doubt that the accused was in possession of both the methylamphetamine and the MDMA in the shoebox, for the purposes of selling it.[126] I make this finding without reference to the provisions of section 32(5) of the Controlled Substances Act.
[126] Satisfying the mental element required for “Trafficking” as defined in section 4(1) of the Controlled Substances Act.
In any event I note that section 32(5) provides that in any proceedings alleging trafficking a controlled drug if it is proved that the accused had in his possession a traffickable quantity of that controlled drug, it is presumed in the absence of proof to the contrary that he had the relevant intention concerning the sale of the drug necessary to constitute the offence.
The accused possessed in excess of the traffickable quanitity of MDMA.[127] The accused possessed far in excess of the traffickable quantity of methylamphetamine.[128] The accused neither called evidence as to this, nor do I find that there is sufficient other evidence in the case to prove to the contrary on the balance of probabilities that either the MDMA or the methylamphetamine were not possessed with the relevant intention. As mentioned above, I have concluded quite the opposite on the evidence, ie that both drugs were possessed for the purposes of sale.
[127] The traffickable quantity of mixed substance containing MDMA, per part 1 of schedule 1 to the regulations is 2 grams. The amount of mixed substance containing MDMA located in the shoebox was 2.91 grams.
[128] The traffickable quantity of mixed substance containing methylamphetamine, per part 2 of schedule 1 to the regulations is 2 grams. The amount of mixed substance containing methylamphetamine located in the shoebox was 441.53 grams.
Methyamphetamine and MDMA are both controlled drugs.
I have considered each charge separately. I have not allowed evidence only relating to one charge to affect my consideration of the other, nor my conclusions on either charge to affect the assessment of the other.
Conclusion
In relation to count 1, I find proven beyond reasonable doubt that on 26 June 2010 at least the majority of the methylamphetamine located in the shoebox was possessed by the accused for the purpose of sale. It is plain in all the circumstances that the accused must have known and I find beyond reasonable doubt did know that the drug he possessed for sale was a controlled substance.
In relation to count 2, I find proven beyond reasonable doubt that on 26 June 2010 at least the majority of the MDMA located in the shoebox was possessed by the accused for the purpose of sale. It is plain in all the circumstances that the accused must have known and I find beyond reasonable doubt did know that the drug he possessed for sale was a controlled substance.
Verdict
Accordingly, I find proven beyond reasonable doubt that the accused on 26 June 2010 at Klemzig, trafficked in a controlled drug, namely methylamphetamine.
I find proven beyond reasonable doubt that the accused on 26 June 2010 at Klemzig, trafficked in a controlled drug, namely MDMA.
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