R v Durham (No. 2) - [2025] SADC 65

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DURHAM (NO. 2)
Criminal Trial by Judge Alone
[2025] SADC 65
Judgment of his Honour Judge Soulio (ex tempore)
12 March 2025
CRIMINAL LAW
Accused charged with three counts of trafficking in a controlled drug, namely cannabis, 1,4-Butanediol, and methylamphetamine, one count of trafficking in a commercial quantity of 1,4-Butanediol, and two counts of money laundering.
Verdicts: Guilty of all counts.
Criminal Law Consolidation Act 1935 (SA) s 138; Controlled Substances Act 1984 (SA) s 32; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) s 34R, referred to.
R v Gardi [2015] SASC 186, considered.

R v DURHAM (NO. 2)
[2025] SADC 65

Introduction

The accused Clinton Scott Durham is charged on Information of 9 September 2022 with three counts of trafficking in a controlled drug, one count of trafficking in a commercial quantity of a controlled drug, and two counts of money laundering.
The particulars of the charged offences are as follows:
Count 1 is a charge of trafficking in cannabis on 22 June 2021 at Beverley. Count 2 is a charge of trafficking in methylamphetamine on 22 June 2021 at Findon. Count 3 is a charge of money laundering on 29 September 2021 at Ottoway in relation to the sum of $13,170 in cash said to have been in the possession of the accused. Count 4 is a charge of trafficking in methylamphetamine on 29 September 2021 at Ottoway. Count 5 is a charge of money laundering on 29 September 2021 at Ottoway relating to what is said to be the possession by the accused of a sum of $6,750 in cash. Count 6 is a charge of trafficking in a commercial quantity of 1,4-Butanediol on 29 September 2021 at Ottoway.
Pre-trial Applications
A Rule 39 application was instituted by the accused seeking to exclude the evidence of three searches by police, the first on 22 June 2021 at Beverley, the second on 22 June 2021 at Findon, and the third on 20 September 2021 at Ottoway. The application to exclude the fruits of the searches was heard by me and was unsuccessful, having been dismissed on 24 January 2025.[1]
[1] R v Durham No. 1 [2025] SADC 71.
The matter proceeded before me for trial. The accused made a late application for trial by judge alone. That application was made by consent. It was granted. The trial accordingly proceeded without a jury.[2]
[2] Juries Act 1927 (SA) s 7.
The Trial
The prosecution tendered the declarations of various police officers, together with schedules of items seized as part of the search processes, books of photographs, screenshots of messages extracted by eCrime, and a schedule of agreed facts.
No witness was required for cross-examination and no case was presented by the accused. No submissions were made on behalf of the accused and the factual basis of the prosecution case was not disputed by the accused.[3]
[3] T 18 L 29.
Directions
I bear in mind the general directions which apply to consideration of evidence in relation to a charge against an accused as were conveniently summarised by Lovell DCJ, as he then was, in R v Gardi as follows:[4]
·As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
·The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged.
·The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
·The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.
·I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
·If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.
·I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my common sense and experience in assessing the evidence.
[4] R v Gardi [2015] SASC 186 at [9]-[15].
I bear in mind that the accused did not give evidence and that he was not obliged to give evidence. I do not draw any adverse inference against him as a consequence of him not giving evidence.
The Prosecution Case
I turn to a consideration of the prosecution case and to a determination as to whether I have been satisfied beyond reasonable doubt on the evidence as to any of the charges against the accused.
The Beverley Offending
Count 1 – Trafficking in a Controlled Drug (Cannabis)
Count 1, as I have said, is a charge of trafficking in cannabis. That charge arises out of the first search, of a storage unit at Beverley on 22 June 2021. In relation to the offence of trafficking in a controlled drug the elements are, in short form, that the substance is a controlled drug under the Controlled Substances Act, (‘the Act’) that the accused knew or was reckless as to the substance being a controlled drug, and that the accused did an act which constitutes trafficking. I bear in mind the extended definition of an act which constitutes trafficking as appears in the Act.
In relation to the issue of the substance in each count being a controlled drug, there is no dispute, and I am satisfied beyond reasonable doubt about that element of the offending without referring to that on each occasion.
I must be satisfied beyond reasonable doubt that the accused was in possession of the cannabis in the storage unit. Counsel for the Director of Public Prosecutions relied on six categories of evidence to establish possession.
The first was that the storage unit had been rented in the accused's name. The unit was accessible by way of a PIN that had been set up by the accused on 17 March 2021. The storage unit was regularly accessed using that PIN. So much was confirmed by the access control history annexed to the declaration of the manager of the storage facility, Mr Hubbard.
The prosecution also relied on the fact that closed-circuit television screenshots depict a man using a red motor vehicle attending at the storage unit on 18 June and 19 June 2021. It is an agreed fact that the accused was the registered owner of a red motor vehicle. The prosecution relied on evidence that a notebook located within the storage unit contained personal and social media account names related to the accused.
The prosecution also relied on the presence, in a granny flat at the address at Findon where police conducted the second search, of a quantity of cannabis which does not form the subject of a charge. The basis upon which the prosecution seeks to rely on the presence of that cannabis at the Findon address is for a non-propensity purpose, to demonstrate that the accused was familiar with cannabis, and to reject an innocent explanation for the cannabis found in the storage unit rented in his name.
The prosecution also relied on the discovery by police, during the third search, at the address at Ottoway, of a quantity of cannabis, again not the subject of any charge. Counsel for the prosecution accepted that the cannabis located at the time of the third search was a weaker piece of circumstantial evidence, to be used only in the way asserted.
In relation to the issue of possession of the cannabis said to constitute Count 1, the prosecution relied on the evidence extracted by eCrime, namely text messages on two mobile telephones, which included messages, albeit postdating the charged act, relating to the sale of cannabis.
In considering the evidence, I give myself a direction, as required by s 34R of the Evidence Act. I will expand upon that direction if required to do so by the Court of Appeal.
The prosecution also relied on the other drug trafficking charges as constituting cross-admissible evidence upon which the charged offence. Count 1, might be proved.
The Findon Offending
Count 2 – Trafficking in a Controlled Drug (Methylamphetamine)
Count 2 relates to the discovery during the second search of a quantity of mixed weight material containing methylamphetamine in a granny flat at Findon. That material was analysed and found to weigh 59.89 gm. The same elements must be established beyond reasonable doubt. In order to establish possession by the accused the prosecution relied on evidence that the accused was located in the granny flat at the time they attended. Police also located ice pipes said to demonstrate a familiarity with methylamphetamine. I bear in mind that that is non-propensity discreditable conduct evidence.
The eCrime evidence relating to Count 2 is said to show that the accused was in the business of selling methylamphetamine, and that is said to support the prosecution case that the accused was in possession of the methylamphetamine in question. I note the evidence contained within the declaration of Mr Henning as to the terms used for transactions involving methylamphetamine. I accept that the messages did so relate.
Further, in relation to the issue of the intention to sell the drug, there was present in the granny flat at Findon scales, and multiple plastic resealable bags, said to be circumstantial evidence of the possession of the drugs, and of the intention to sell the drugs.
The quantity of the drugs meant that there is a presumption, upon finding that the accused was in possession, that he intended to sell that drug or some of that drug.
Counsel for the prosecution also relied on the discovery of cash in the sum of $2,490 at that address to demonstrate that the accused was in the business of trafficking the methylamphetamine which forms the basis of Count 2.
Again, the prosecution relied on the other charged acts of drug trafficking in the manner to which I have already referred.
The Ottoway Offending
Counts 3 to 6 arise out of the third search, at Ottoway on 20 September 2021.
Evidence relied upon by the prosecution included the declarations of Ms Woodhouse of 11 October 2021 and 16 January 2025 of observations of the accused at the Ottoway address carrying a satchel which he dropped on the floor of the kitchen after running from Ms Woodhouse. That bag contained an amount of mixed weight material containing methylamphetamine and weighing 0.77 gm which is the subject of the trafficking charge, Count 4; a sum of $6,750 in cash being the subject of a money laundering charge, Count 5; together with a set of scales, cutting agent, and unused plastic resealable bags. I find that it is established beyond reasonable doubt that the accused possessed that satchel and the contents of that satchel.
Count 4 – Trafficking in a Controlled Drug (Methylamphetamine)
There is no presumption within the terms of s 32(5) of the Act in relation to a quantity of mixed weight material containing methylamphetamine of less than 2 gm. Counsel for the DPP properly conceded the need to prove beyond reasonable doubt that the accused intended to sell at least some of that drug.
The evidence relied upon included the fact that the drug was in a bag with other plastic or resealable bags, a cutting agent, and scales. Further, the prosecution relied upon messages extracted by eCrime which showed that the accused was in the business of trafficking in methylamphetamine as at the date of his apprehension in September 2021. The cash located is said to be consistent with being profit from prior drug sales, relied upon to show a propensity for the accused to offend in this way as he was in the business of selling drugs. Bank records are said to show the same.
Count 3 – Money Laundering
In relation to the amount of cash, $13,170, which is said to form the basis for the charge of money laundering, Count 3, the prosecution must establish that the accused engaged in a transaction involving profiting. 'A transaction' is defined as including possession of the cash. The prosecution must establish that the property was tainted, and to that end relied on the circumstances of the possession of the cash including its proximity to the items in the satchel I have referred to.
As to Count 3, the accused was residing at the address at Ottoway and had been for about a month as at the time of the police search. He was using bedroom 3 at that address. Another bedroom was used by a man who had been originally charged but against whom charges were discontinued. The other bedroom in the house, described as bedroom 2, was not being used as a bedroom.
The prosecution relied upon the possession of drugs which form the subject of charges, and the possession of drugs which do not form the subject of charges as discreditable conduct demonstrating that the accused was in the business of selling drugs. The prosecution also relied on a tick list said to have been in the possession of the accused.
The prosecution, in establishing the third element of money laundering, that is, that the accused knew that the property was tainted, relied on the same evidence.
Count 5 – Money Laundering
As to Count 5, relating to the cash in the sum of $6,750 found in the bag the accused was carrying, the prosecution relied, in establishing the elements of the charge of money laundering, on the evidence of possession of the charged and uncharged quantities of drugs, and the tick lists, to show that the accused had engaged in a transaction by possessing tainted property knowing that it was tainted.
Count 6 – Trafficking in a Commercial Quantity of a Controlled Drug (1-4 Butanediol)
Count 6 was that of trafficking in a commercial quantity of 1,4-Butanediol, that drug having been found in a shed at the premises at Ottoway. The prosecution case in respect of that count was that the accused was either solely or jointly in possession of that drug, and intended to sell at least some of that drug.
The evidence said to establish possession included a DNA profile identified on the bottle containing the larger amount of the drug, which was part of a four-person mixed profile, with extremely strong support for the accused being a contributor.
The prosecution also relied on the accused's familiarity with the drug and items associated with trafficking that drug, including an amount of the same drug located within his bedroom at the premises on the day of the third search, the presence of two syringes in his bedroom, and the presence of nine plunger syringes located in the storage unit at the time of the first search.
The prosecution relied upon the possession of those items for both propensity and non-propensity purposes. The former included the possession or tendency to possess that drug at an earlier date. The non-propensity uses included familiarity with the drug which negated any innocent explanation for the presence of a trafficable quantity of the drug at the accused's residential premises, and negated the suggestion that it might have belonged to another person, or that the accused was not aware of its presence.
Further, the prosecution relied upon possession of the other charged and uncharged quantities of illicit drugs, the quantity of cash discovered, and the tick lists, all for a propensity purpose, to demonstrate that the accused was in the business of selling controlled drugs.
Further, the prosecution asserted that a number of specific messages extracted by eCrime were consistent with the sale of that drug. The prosecution also relied upon bank records[5], which included names which appear in the records, and indicated that certain persons were purchasing drugs from the accused in 2021.
[5] Agreed Facts 31-36.
Conclusion
Having considered the material relied upon by the prosecution,[6] and heard the submissions of counsel, I am satisfied beyond reasonable doubt that each of the elements of each of the charged offences have been established.
[6] Exhibit P1, the tender book.
I therefore find:
In relation to Count 1, the charge of trafficking in a controlled drug, namely cannabis, that the accused is guilty.
In relation to Count 2, the charge of trafficking in a controlled drug, namely methylamphetamine, that the accused is guilty.
In relation to Count 3, the charge of money laundering to the sum of $13,170 in cash, that the accused is guilty.
In relation to Count 4, the charge of trafficking in a controlled drug, namely methylamphetamine, that the accused is guilty.
In relation to Count 5, the charge of money laundering relating to $6,750 in cash, that the accused is guilty.
And in relation to Count 6, the charge of trafficking in a commercial quantity of a controlled drug, namely 1,4-Butanediol, having accepted that the total amount of the drug in question qualified for the more serious category of trafficking, that the accused is guilty.