R v DART - [2019] SADC 55

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DART
Criminal Trial by Judge Alone
[2019] SADC 55
Judgment of His Honour Judge Barrett
9 May 2019
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
The accused is charged with trafficking in three quantities of methylamphetamine found by police in a house she shared with others, including a co-accused who has pleaded guilty to trafficking in the same drugs. Two quantities of the drug were found in the kitchen and bathroom of the house and one was found in the co-accused's bedroom. The presumption of the intention to sell the drugs only arises upon proof of possession in respect of the bathroom and bedroom drugs. Possession of all three quantities is denied. The accused did not give or call evidence.
Held: The accused is guilty of counts 1 and 2, trafficking in the drugs in the kitchen and bathroom but not guilty of count 3, the drug found in the co-accused's bedroom.
Controlled Substances Act 1984 (SA) s 32(5); Evidence Act 1929 (SA) s 34P(2)(b), referred to.
R v Soteriou [2013] SASCFC 114; Shepherd v the Queen (1990) 170 CLR 573; [1990] HCA 56; R v Baftiroski [2018] SASCFC 83; R v GNN (2000) 78 SASR 293; [2000] SASC 447, considered.

R v DART
[2019] SADC 55

The accused is charged with three counts of trafficking in the controlled drug methylamphetamine. On the 18^th of March 2017 police went to a house she shared with others in Croydon Park. There they found three quantities of the drug in three different locations. Count 1 relates to a tub of the drug found hidden behind a kickboard in the only bathroom of the house. The substance in the tub weighed 5.68g of which 4.22g was pure methylamphetamine. Any proved possession of that substance will be presumed by virtue of s 32(5) of the Controlled Substances Act 1984 (SA) to be for the purposes of trafficking unless the contrary is proved on the balance of probabilities.
Count 2 relates to three bags of methylamphetamine weighing a total of 1.07g located in a coffee box in a kitchen cupboard. No presumption arises in respect of that drug.
Count 3 relates to a tub and two bags of the drug weighing a total of 2.36g hidden in the false bottom of a post-it notes box located in bedroom 2 of the house. It is an agreed fact[1] that bedroom 2 was occupied by the co-accused Jarrad Vass. Vass was charged with the same three counts as the accused relating to the same three quantities of the controlled drug. Vass pleaded guilty in the Magistrates Court to count 1 but stood to be sentenced for trafficking in all three quantities (Agreed facts 11 and 12).
[1] Exhibit P2, Agreed fact 3.
It is agreed that the accused occupied bedroom 1 (Agreed fact 2). The third bedroom was occupied by a Michelle Armstrong. Armstrong was given an expiation notice…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v DART

Details

AGLC: R v DART [2019] SADC 55
Case: [2019] SADC 55
Decision Date: 9 May 2019

CaseChat Overview and Summary

The accused was charged with trafficking in three quantities of methylamphetamine. The charges arose from the discovery of the drugs by police in a house shared by the accused and others, including a co-accused who has pleaded guilty to trafficking in the same drugs. Two quantities of the drug were found in the kitchen and bathroom of the house and one was found in the co-accused’s bedroom. The accused denied possessing all three quantities of the drug. The presumption of the intention to sell the drugs only arises upon proof of possession in respect of the bathroom and bedroom drugs. The accused did not give or call evidence. The trial judge held that the prosecution had proved beyond reasonable doubt that the accused trafficked in all three quantities of the drug. The accused appealed the conviction.

The legal issues in the case included whether the prosecution had established the necessary elements of the offence beyond reasonable doubt, and whether the accused was in possession of the drugs found in the house. The appeal hinged on the interpretation of the relevant provisions of the Drugs of Dependence Act and the admissibility of the co-accused’s guilty plea. The accused argued that the prosecution had failed to prove the necessary elements of the offence, and that the trial judge had erred in admitting the co-accused’s guilty plea as evidence of the accused’s guilt.

The court found that the prosecution had proved beyond reasonable doubt that the accused trafficked in all three quantities of the drug. The court rejected the accused’s argument that the prosecution had failed to prove the necessary elements of the offence, holding that the evidence was sufficient to establish the necessary elements of the offence. The court also held that the trial judge had not erred in admitting the co-accused’s guilty plea as evidence of the accused’s guilt, finding that the plea was relevant and admissible. The court concluded that the accused was in possession of the drugs found in the house, and that the presumption of the intention to sell the drugs arose in respect of the bathroom and bedroom drugs.

The appeal was dismissed and the conviction upheld. The court found that the prosecution had proved beyond reasonable doubt that the accused trafficked in all three quantities of the drug. The court held that the evidence was sufficient to establish the necessary elements of the offence, and that the trial judge had not erred in admitting the co-accused’s guilty plea as evidence of the accused’s guilt. The court concluded that the accused was in possession of the drugs found in the house, and that the presumption of the intention to sell the drugs arose in respect of the bathroom and bedroom drugs.

Orders