R v DART
[2019] SADC 55
•9 May 2019
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 18th 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 regarding some cannabis and a diversion notice for an ice pipe that was found in her bedroom. No methylamphetamine was found in her bedroom. She was not charged with any offence relating to methylamphetamine.
Evidence of clothing found in bedrooms 1 and 2 would suggest that an unidentified male might have occupied bedroom 1 with the accused and an unidentified female might have occupied bedroom 2 with Vass.
It is agreed (Agreed fact 1) that at the time of the police search the accused and a Joshua Holman were the only recorded tenants at the house. Holman was recorded as a tenant from the 3rd of May 2012. The accused had been living at the house since no later than September 2016 and was added to the lease as a co-tenant on or about the 3rd of February 2017.
The principal issue in the trial is whether the prosecution can prove beyond reasonable doubt that the accused was in possession of each of the three quantities of the drug. The accused exercised her right not to give evidence. The defence acknowledges that in the event that the prosecution proves that the accused was in possession of each of the drugs, then in respect of counts 1 and 3 she does not point to evidence which would rebut the presumption of an intention to traffic. No presumption arises in respect of count 2.
The prosecution relies entirely on circumstantial evidence to prove each count. Accordingly I may not find the accused guilty of any charge unless the circumstantial evidence excludes any reasonable hypothesis of innocence.
Some of the circumstantial evidence relied on by the prosecution is the subject of a Discreditable Conduct Notice dated the 6th of April 2018. The notice asserts that the alleged discreditable conduct may be used, pursuant to s 34P(2)(b) of the Evidence Act 1929 (SA), to demonstrate that:-
·The accused was in the business of dealing drugs;
·She had a particular propensity or disposition to sell drugs as part of that business;
·Her propensity or disposition made it more likely that she:
-Possessed the drug;
-Knew the nature of the drug;
-Intended to sell the drug.
·Her propensity or disposition enables the rejection of any innocent explanation (R v Soteriou [2013] SASCFC 114).
There was not, and could not be, any suggestion that the discreditable conduct evidence is inadmissible, or should be excluded on the basis that the probative value of the evidence does not substantially outweigh any prejudicial effect (s 34P(2)(a)) or that it lacks strong probative value bearing on the issue in the trial (sub-s (2)(b)). It was not suggested that it is not possible for me to keep sufficiently separate the permissible and impermissible uses of the evidence (sub-s (3)).
An impermissible use is provided by sub-s 1(a). The evidence cannot be used to suggest that the accused is more likely to have committed the offence because she engaged in discreditable conduct. There is a tension between permissible propensity use and impermissible reasoning. In the case of Soteriou (ibid) Vanstone J explained the resolution of tension in these terms:-
[38]In relation to the propensity warning given by the trial judge, that is, not to reason that the appellant was the “sort of person” who would traffic in drugs, I consider that it tends to contradict the direction going to proper use. As I have stated, I consider that the evidence was propensity evidence. It was the inference that the appellant had a propensity to engage in the drug trade – from those very premises and in that very period – that gave the evidence its power. The distinction between conducting a business and having a propensity to engage in that business, and being the sort of person to engage in that business are in my mind all but illusory. This was not a case like Harriman where the previous conduct was removed from the charged conduct. The use of the evidence was obvious and was as the judge outlined. I consider that no propensity warning was required.
[39]As McHugh J said in KRM v The Queen (2001) 206 CLR 221 at [32] where evidence is admitted as propensity evidence, a propensity warning can be given only in some very limited way. In R v MBJ (2011) 110 SASR 1 at 25, I reproduced the very general warning given by Cox J in the trial of Pfennig. In my opinion, if any warning is required at all in cases where evidence is to be used as propensity evidence, the purpose of that warning will be to ensure that the jury does not, as Cox J said in Pfennig “condemn a man simply on his record” or, as Kirby J said in KRM at 260, to ensure that “proof of one count is not taken, as such, as proof of another”.
[40]In Conley’s case, as here, there could be no question of condemning the accused upon his record, because the accused person had no record. Rather, the evidence suggesting earlier offending was inextricably bound with the charged conduct. I consider that it was at least partly because of a similar analysis that King CJ found that to have given such a warning would have been to have stated the obvious. The other reason why there, as here, misuse was unlikely was because the proper use of the evidence was so obvious and the misuse so enigmatic and illogical. Why would the jury be inclined to take the notebooks and text messages, divorce them from the finding of the drugs in the gutter, and then convict the accused on that evidence alone?
Circumstantial evidence
There were found in the accused’s bedroom the following items:-
·Unused ice pipes;
·A small quantity of methylamphetamine (0.13g) in the top drawer on the right bedside table. This is uncharged;
·$2,365 cash in the same drawer;
·$6,490 cash in a safe in the bedroom;
·In a handbag on the bed, papers associated with the accused, a set of digital scales with traces of methylamphetamine, the accused’s DNA and that of two unidentified persons, a taser and a used ice pipe;
·On the bed, a diary alleged to contain a tick list with writing alleged to be by both the accused and Vass;
·A pack of 159 unused small plastic bags hidden in a cushion;
·On the top of the right side bedside table there was a second set of digital scales with traces of methylamphetamine and DNA of the accused, Vass and another unidentified individual;
·Two mobile telephones, one on the bed, and one on the top of the bedside table.
There was found in the front passenger door of a car parked at the front of the premises an item that looks like a baton but which can also be used as a torch. The car was registered to the accused.
There was about the house evidence suggestive of drug trafficking. That evidence is as follows:-
·There was camera security about the exterior of the house. There was a live feed monitor in the lounge and a movement sensor at the front gate;
·A “book safe” in the lounge; and
·Plastic bags in the lounge (Exhibit P10).
Handwriting Evidence
Before turning to the competing cases for the prosecution and the defence I discuss one aspect of the evidence adduced by the prosecution, namely, the handwriting evidence relating to the alleged tick list in the diary found in the accused’s bedroom. The prosecution called a handwriting expert, Ms Elizabeth Ockleshaw. I need not dwell on Ms Ockleshaw’s expertise because, while the defence does challenge aspects of Ms Ockleshaw’s findings I do not understand there to be any challenge to her expertise. However I make it plain that I accept that Ms Ockleshaw is a person with appropriate training and experience to give expert evidence about handwriting. Further, I find that she applied herself competently and diligently to the task of making relevant observations about the handwriting she was asked to examine. Ms Ockleshaw was careful to identify the limits of her observations. Further, contrary to the submissions of the defence, I accept Ms Ockleshaw’s evidence that she had before her sufficient writing provided by the accused and Vass, and sufficient writing in the diary and a post-it note found in Vass’ bedroom to make meaningful comparisons. Ms Ockleshaw concluded that there was “qualified support” for the propositions that both the accused and Vass had written in the diary entries which in my view were indicative of a drug tick list, that is, entries which indicated monies owing by drug purchasers who had been given credit for the drugs they had bought. Some of the entries are consistent with transactions involving methylamphetamine while others are more suggestive of cannabis. The entries on the post-it note found in Vass’ bedroom are likewise in my view a tick list. There is qualified support for only Vass being the author of that tick list.
Ms Ockleshaw acknowledged that her opinion did not go beyond finding that there was qualified support for the proposition that each of the accused and Vass had made the relevant entries. However that finding is not insignificant. Ms Ockleshaw explained that in handwriting comparison work there are only five levels of certainty about a match between known handwriting and suspect handwriting, two each side of an inconclusive finding. In what I describe as the positive side of the inconclusive finding, the most certain is that there is strong evidence of a match. The less certain is that there is qualified support for the finding of a match. There are two corresponding levels of certainty on what I describe as the negative side of the inconclusive finding.
Section 30 of the Evidence Act 1929 (SA) permits the admission into evidence of handwriting evidence of the sort given by Ms Ockleshaw.
It is not necessary that I be satisfied beyond reasonable doubt of the provenance of the handwriting in the diary before I may use that evidence as a piece of circumstantial evidence tending to prove the accused’s guilt of an offence. That is so unless the circumstantial evidence is an indispensable link in the chain of reasoning towards an inference of guilt. The handwriting evidence is not an indispensable link (see Shepherd v the Queen (1990) 170 CLR 573 at 579-80 and [1990] HCA 56 at [4]-[6]).
In the case of R v Baftiroski [2018] SASCFC 83 the Court of Criminal Appeal considered the adequacy of directions given by a trial judge to a jury about the caution that must be taken with relying upon expert evidence of handwriting. As it happens the expert called in that case is the same as the expert in this case. There are some similarities between her evidence in the two cases. Nicholson J, with whom Kourakis CJ and Parker J concurred, found that the warnings given by the trial judge were sufficient. I have borne in mind those warnings.
While I acknowledge the qualified nature of Ms Ockleshaw’s findings I find that her evidence is probative circumstantial evidence indicative of both the accused and Vass being in the business of trafficking in methylamphetamine. I find that the handwriting evidence is circumstantial evidence of the accused and Vass recording in the diary found in the accused’s bedroom, the names of people who have purchased methylamphetamine from each of them and who have made the purchases on credit. The handwriting shows the sums owing by numerous purchasers. There is circumstantial evidence of the accused and Vass jointly selling methylamphetamine, at least in respect of the transactions appearing in the diary. The entries on the post-it note found in Vass’ bedroom appear to have been made by him alone. Those entries may relate only to transactions made by him.
The case for the prosecution
The case for the prosecution proceeded in five steps:-
1The accused was a user of methylamphetamine. She was familiar with the drug. So much was proved by the contents of her handbag – the used ice pipe, and the scales with traces of methylamphetamine and her DNA. There was also a small quantity of the drug in her bedside table.
2The accused was in the business of selling methylamphetamine. So much is proved by the paraphernalia of sale. The tick list in her diary, substantial amounts of cash in her bedside table ($2,365) and the safe ($6,490), used plastic bags hidden in a cushion, the second set of scales on top of the bedside table which had on them traces of methylamphetamine and her DNA and two mobile telephones. The accused had a taser in her handbag and a baton in her car.
3The accused was in the business of selling methylamphetamine jointly with Vass. He has pleaded guilty to trafficking in the drugs the subject of the charges against her. The house was fitted with security cameras. Vass had made tick list entries in the diary. Vass’ DNA was found on both sets of scales in the accused’s bedroom. There was a “book safe” and unused plastic bags in the lounge.
4The accused’s being in the business of selling methylamphetamine jointly with Vass makes it more likely that she and Vass were both jointly in possession of the methylamphetamine secreted in the bathroom (count 1), the kitchen (count 2) and even that secreted in Vass’ bedroom (count 3).
5The possession of the drugs by each of the accused and Vass was for the purpose of sale. Upon proof of possession, the accused’s intention to sell is presumed in respect of the drugs the subject of counts 1 and 3 and is proved on the evidence in respect of the drug in the kitchen the subject of count 2.
The case for the defence
The case for the defence is that the prosecution has not adduced evidence sufficient to establish beyond reasonable doubt that the accused possessed any of the charged drugs. Two of the drugs were in common areas of the house, count 1 in the bathroom and count 2 the kitchen. One was in Vass’ bedroom (count 3). The house may have been occupied by as many as five people. Vass admits possession of all three drugs. The evidence that he was not in sole possession is lacking.
I did not understand the defence to be denying that the evidence proves the accused was a user of methylamphetamine. I indicate that I am satisfied beyond reasonable doubt that she was. The items in her handbag clearly prove that. The accused does however dispute every other step in the case for the prosecution.
First, the accused disputes that the evidence establishes she was in the business of selling methylamphetamine. The accused submits that Ms Ockleshaw’s evidence does not indicate that she has written a tick list in the diary. That is so because there was insufficient material for Ms Ockleshaw to draw the conclusion that there is qualified support for the proposition that she wrote some of the entries, or alternatively, if her evidence is sufficient for that conclusion, that conclusion is slight weight as circumstantial evidence. The support for the accused being the writer is qualified.
The handwriting evidence is really the only evidence disputed by the defence. The other evidence relied upon by the prosecution is not itself disputed. Rather, the inferences sought by the prosecution to be drawn from the evidence is disputed.
The scales in the accused’s handbag might have been used by her as a user of methylamphetamine. Vass’ DNA on the scales suggests that it might have been his. The cash in the accused’s drawer might have been earned by her as a prostitute. I will turn to that question shortly.
The cash in the safe might have been earned by the accused in the same way or it might have been placed there by Vass or others in the house. The safe may have been used by occupants of the house as the most secure place to safely store cash.
The taser and the baton might have been used by the accused to protect herself when working as a prostitute.
The tick list in the diary was used by Vass. His DNA on the second set of scales on the bedside table might indicate that they were his. Neither of the two mobile phones could be interrogated. They were locked. Even if they did both belong to the accused she might have used one in her work as a prostitute.
The accused appears not to have had sole occupancy of bedroom 1. There is evidence that a male shared the room with her. The 159 plastic bags hidden in the cushion in the accused’s bedroom might have been used by her as a consumer of the drug or they might have belonged to Vass or the male occupying the bedroom.
For these reasons the defence case is that the prosecution has not demonstrated that the accused was in the business of selling methylamphetamine.
While the accused did not specifically make any submission about what might be the consequence of a finding that the accused was in the business of selling methylamphetamine I accept that proof of that fact would not prove the accused’s guilt of any of the charges. Implicit in the case for the defence is the proposition that even if the accused at some stage had been in the business of selling methylamphetamine, that does not prove that she possessed the subject drugs. There remains the reasonable possibility that those drugs were possessed by Vass alone or by Vass with others in the house. Two lots of the drugs were found in common areas of the house and one was found in Vass’ bedroom.
Discussion
I have already indicated that I am satisfied that the accused was at the time of her arrest a user of amphetamines. I am satisfied that the handbag on her bedside table was hers. The documents inside it confirm that the bag was hers. The scales and the ice pipe alone would establish that the accused was a user but the small uncharged quantity of methylamphetamine in her bedside drawer together with the other set of scales support that conclusion. The accused was familiar with the drug.
I am also satisfied that the accused was in the business of trafficking methylamphetamine. The tick list in the diary is significant evidence of that fact. I find that the diary belonged to the accused. There was in it a reference to a court date on the 14th of March 2017 (photograph, page 13 of Exhibit P16). It is an agreed fact (no. 44) that the accused had a court appearance on that date. There are two further items of evidence found in the accused’s bedroom which confirm my conclusion. There were the two quantities of cash ($2,365 in the bedside drawer and $6,490 in the safe) and the 159 small plastic bags secreted in the cushion. Of less significance is the taser in the handbag and the baton/ torch in the accused’s car.
Mr Charman for the accused submitted that the cash, the taser and the baton were possibly indicative of the accused working as a prostitute. He submitted that the security cameras and sensor at the house might have been installed for the same purpose.
There is scant evidence that the accused was working as a prostitute. Mr Charman put to Officer Popa[2] that at a briefing before the police attendance at the house there was some suggestion that the premises was being used as a brothel. Officer Popa agreed that he had put that part of the briefing in his notes.[3] The prosecutor objected to questions on that topic on the bases that the evidence was both hearsay and speculative police intelligence. I allowed the questions but there is no evidence at all that the house was being so used.
[2] T39.
[3] T39.
Mr Charman pointed to an entry in the diary (page 18 of P16)‘450/45 mins’ which he submitted would be unlikely to be a note about drugs but may be a note suggesting a prostitution transaction. I accept that it may be so but it is scant evidence of prostitution or at least prostitution on the part of the accused.
In any event the hypotheses of drug trafficking and prostitution are not mutually exclusive. More pertinently, prostitution does not negate drug trafficking.
I find the combination of the tick list, the cash and the plastic bags in the cushion and the two sets of scales are highly probative of drug trafficking by the accused. The taser and the baton and the home security are merely consistent with trafficking. They add little to the more probative evidence.
I am also satisfied that the accused was in the business of trafficking methylamphetamine jointly with Vass. He has acknowledged by his guilty plea trafficking in the three counts of drugs found in the house. His DNA is found on both sets of scales in the accused’s bedroom. He wrote part of the tick list in the diary.
However those findings do not inevitably lead to the conclusion that the accused possessed the subject drugs. Before considering the evidence bearing on possession I refer to the law relating to possession.
The law on possession
In the recent case of R v Baftiroski [2018] SASCFC 83 the Court of Criminal Appeal discussed the law of possession in the context of facts not dissimilar to those in the present case. That case was an appeal from a guilty verdict in a jury trial. The appeal dealt with the appropriate warnings a trial judge should give a jury in relation to handwriting evidence and also possession. I must bear in mind the same warnings which must be given to a jury. In that case police had found 58.7g of methylamphetamine in the laundry of the house occupied by the accused and his fiancée. The only issue in the trial was whether the prosecution could prove that the accused possessed the drug. The question on appeal was the adequacy of the judge’s directions. Nicholson J wrote the principal judgment. Their Honours Kourakis CJ and Parker J concurred.
Nicholson J referred to the definition of possession set out in s 4 of the Controlled Substances Act 1984 (SA):-
Possession of a substance or thing includes –
(a) having control over the disposition of the substance or thing; and
(b) having joint possession of the substance or thing.
His Honour expressed no concluded view about whether the reference in the section to “included” widened the concept of possession beyond the common law. That trial had been conducted on the basis of the more restricted common law understanding of possession. His Honour proceeded on that basis. I will do the same. It has not been suggested in this trial that a less restricted definition should be applied. Of course in this trial, unlike Baftiroski, joint possession is alleged. Nicholson J referred to the statement of principle regarding possession enunciated by Doyle CJ in R v GNN (2000) 78 SASR 293, [2000] SASC 447 at [18]-[27]. In that case Doyle CJ concluded that the trial judge had adequately directed the jury’s attention to the legal concepts of possession but had not sufficiently assisted the jury in applying those concepts to the facts of the case. In Baftiroski, Nicholson J held that the legal concepts had been sufficiently explained and the extent of attempts by the trial judge to apply those concepts to the facts were sufficient even if, as his Honour found, some of the matters referred to were apt, when taken in isolation, to be misleading.
I begin with the essential parts of the concept of possession. Doyle CJ described them as possession, knowledge, custody and control.[4] I apply those concepts to the case of joint possession:-
1The joint possessors must knowingly have physical custody and control of the drug.
2Control includes the power to dispose of the drug.
3Knowledge means that the possessors know of the existence of the drugs and that it is an illicit drug.
4There must be both physical control, although not necessarily on one’s person, and an intention to exercise control.
[4] [24].
It is important to appreciate what is insufficient for possession. Mere acquiescence in someone else’s possession of the drug will not be sufficient. Mere knowledge of the existence of the drug and acquiescence and its being stored in the house will not be sufficient unless the possessor intends to exercise control over the drug.
Of importance in the case of joint possession, the prosecution must exclude the possibility that the other joint possessor was in truth the sole possessor and the first alleged possessor merely acquiesced in that possession.
Application of the law to the evidence
I am satisfied that the accused was in joint possession with Vass of the drugs found in the bathroom (count 1) and the kitchen (count 2). I am not able to exclude the possibility that Vass was in exclusive possession of the drugs found in his bedroom (count 3).
I explain why I am satisfied of the accused’s joint possession of the drugs in the bathroom and the kitchen.
My finding that the accused was in business of selling jointly with Vass makes it more likely that she was jointly in possession with him of the drugs in the bathroom and kitchen. The presence of the small amount of methylamphetamine in the accused’s bedside table suggests that she kept there the drugs she planned to use herself. The quantity of drug in the bathroom (5.68g) suggests that it was for sale.
It is true that that observation cannot be so easily made about the smaller quantity in the kitchen cupboard (1.07g). However its being stored in the common area rather than in a bedroom suggests that it was for sale rather than personal use. I conclude that the accused and Vass were at the time of the police visit in the business of selling methylamphetamine. Their being so involved was not historical or in the past. I find that the cash in the bedroom was from previous sales and was for prospective purchases. There were plastic bags secreted in the cushion in the accused’s bedroom for ongoing sales. The accused and Vass were together compiling the tick list in the diary. It is unlikely that visitors to the house would secrete drugs in the common areas. There is no reason to speculate on the possibility that Armstrong, the occupant of bedroom 3, or the possible co-occupants with the accused and Vass of bedrooms 1 and 2 might have possessed the drugs in the common areas. There is simply no evidence implicating them.
Having found the accused in joint possession of the drugs in the bathroom and the kitchen I am satisfied that she intended to sell part at least of those drugs. The presumption of that intention is not rebutted in respect of the bathroom drugs. Even in the absence of a presumption applying to the kitchen drugs, I am satisfied that the accused intended to sell some at least of that drug too.
Verdicts
Count 1 – Guilty
Count 2 – Guilty
Count 3 – Not Guilty.
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