R v Elmawey - [2005] SADC 150

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v ELMAWEY
Ruling of Her Honour Judge Shaw
2 November 2005
CRIMINAL LAW
Disputed Facts Hearing
Determination of extent of commerciality in relation to possession for sale.

R v ELMAWEY
[2005] SADC 150

These are my reasons for decision upon the disputed facts hearing concerning the extent of the commerciality in relation to 100 ecstasy tablets found in Exhibit VG22.
In this matter, Abdul Zaiter Elmawey, pleaded guilty in this court on the 8^th of September 2005 to one count of possessing 3,4 methylenedioxymethamphetamine for sale, one count of possessing methylamphetamine for supply, one count of simple possession of lysergide and one count of simple possession of cocaine. The issue on this disputed facts hearing relates to the extent of commerciality in relation to the drug, which is the subject of count one, namely methylenedioxymethamphetamine, also known as ecstasy, which Mr Elmawey had in his possession for sale. It is common ground that 100 tablets containing this drug were found in the pouch, Exhibit VG22. The contents of the pouch included 100 tablets (VG24) which are shown in photographs 23 and 26 in Exhibit VD P2. The 100 tablets are said to contain a total of 5.56g of ecstasy
Mr Elmaway has admitted, through his counsel, Mr Sale, that half of the 100 tablets of ecstasy found in the separate bag in his possession were for sale. The Prosecution contend that all of it was for sale.
Counsel are agreed that the extent of commerciality is a circumstance of aggravation which the prosecution is required to prove beyond reasonable doubt.
The amount of ecstasy involved in count one was, as I have said, 100 tablets. It is the defendant’s submission that he had been invited to a party in Renmark and that he had intended to provide 50 of the tablets to a friend at the party and keep the remaining 50 for himself. The Prosecution contends that he had gone to Renmark to sell all of the 100 tablets. The Prosecution dispute that any proposed sale of the tablets would result only in a reimbursement of the price paid by the defendant for the tablets.
The Prosecution submitted that there are two aggravating features of Mr Elmawey’s offending with respect to this count:
1.The extent of commerciality involved in the possession of the 100 tablets of ecstasy;
2.The length of time that the defendant had been dealing in the drug ecstasy. The Prosecution has invited me to find proved beyond reasonable doubt that Mr Elmawey had been dealing in the drug ecstasy, during the period between August 2003 and the end of November 2003, a period of four months.
Mr Sale, on behalf of the defendant, submitted that the Prosecution evidence was incapable of establishing that period of dealing in ecstasy and submitted that it was a ‘one off’ situation.
During submissions the Prosecution appeared to concede that the issue of whether Mr Elmawey had been dealing in the drug from August to November 2003, did not necessarily support or assist in a resolution of the issue of how many of the 100 tablets in the separate package, were in Mr Elmawey’s possession for the purpose of sale.
Prosecution Submissions
The Prosecution submitted that all of the 100 ecstasy tablets found in the defendant’s possession were for sale. The defendant submitted that only 50 of them were for sale. To support its submission, the Prosecution relied upon a number of pieces of circumstantial evidence. Most importantly, the Prosecution relied upon the location of the tablets. The 100 tablets were located in a plastic bag, found inside a black zip-up pouch (Exhibit VG22), under the driver’s seat of the defendant’s car. The ecstasy (VG24), was packaged separately from the other drugs in the defendant’s possession. The Prosecution accepted that the other drugs located, namely 7 bags of methylamphetamine, 25 LSD trips, 8 ecstasy tablets, 1 viagra tablet and 2 bags of cocaine, found in the defendant’s possession, were for his personal consumption.
The other items of circumstantial evidence included firstly, that the defendant had too much of the drug for his own personal consumption, or to deliver to his acquaintance.
The sheer quantity of the 100 tablets of ecstasy and their value it was said, were strong indicators of commercial activity.
The Prosecution disputed the explanation offered by the defendant for his possession of such a large quantity of tablets, namely that he was a heavy user of drugs. Mr Muscat, on behalf of the Prosecution referred to what were said to be inconsistencies in the defendant’s record of interview upon that subject and submitted that this court ought to be sceptical about what the defendant said on this topic.
Secondly, the Prosecution said that the explanation offered by the defendant was merely a bare submission not backed up by any oral evidence on oath. It was also said to be in conflict with what the defendant told police in his record of interview.
The Prosecution said that the defendant in his interview, initially said he was going to Renmark to meet a friend to look at a dog. Now he was saying, through his plea and his counsel, that he was going to Renmark to sell the 100 tablets of ecstasy.
Thirdly, the Prosecution pointed to the value of the 100 ecstasy tablets which was estimated to be between $2,500 and $6,000. The defendant had approximately $1,500 worth of drugs for his personal consumption in his possession. It was submitted by the Prosecution that the only way the defendant could finance the purchase of these drugs was by selling drugs, given his statement to police in his record of interview that he was unemployed.
Fourthly, the Prosecution pointed to the large number of empty plastic bags in the defendant’s possession and their location.
Fifthly, the Prosecution relied upon the contents of the notebooks (VG25 and VG26) and pointed to what the Prosecution submitted was a list of customers owing money to the defendant, written in partial code to make it look like a list of customers for motor vehicle repairs. The Prosecution submitted that this was a poorly disguised credit list of people owing money to the defendant for drugs. It referred the court to the evidence of Detectives Dewar and Gray about the use of codes in the drug trade.
The Prosecution submitted that in his record of interview the defendant offered vague and unsubstantiated answers to questions about his motor repair work. The Prosecution submitted that the only obvious inference to be drawn from the lists was that the defendant was involved in a commercial enterprise of dealing in ecstasy.
The Prosecution also submitted that the lists in the notebooks dated between August 2003 to November 2003 were evidence from which the inference could be drawn that the defendant was engaged in an ongoing enterprise.
However, as I have said, the Prosecution did not appear to maintain its reliance upon the evidence alleged to demonstrate a course of dealing in ecstasy, in order to support its case that all of the 100 tablets rather than some lesser number, were for sale (see transcript page 74 line 35).
Defence submissions
I now summarise the defence submissions. Mr Sale, on behalf of Mr Elmawey, submitted that the guilty plea to possession for sale on count one related to approximately half of the quantity of 100 ecstasy tablets. The defence submitted that only 50 of the 100 tablets were going to be sold by the defendant.
In response to the Prosecution’s submissions, the defence said that the quantity argument lacked merit, as this was not a case involving thousands or even hundreds of tablets. Mr Sale submitted that:
“Quantity arguments in drug matters like this gain weight at the more extreme end”
The defence submitted that this was not a case at the more extreme end of the scale and that it was plausible that the defendant had such a substantial number of tablets in his possession largely for personal use given his background of drug taking.
Mr Sale submitted that the defendant does not say that all of the tablets were for his own consumption. Rather, the defendant was planning to sell 50 tablets and keep 50 tablets for himself. The defendant was not intending to make a profit from the sale of the 50 tablets. He was only going to be reimbursed for the money that he had paid for them. The defence submitted that there was no commercial gain to be had by the defendant through this transaction other than the reimbursement of the cost to him of the tablets. This submission was not supported by evidence on oath. The defendant had in effect, told the police that all of the ecstasy tablets located in his possession were for his own use. By his plea of guilty to count one, he admitted that this was not completely correct. On behalf of the defendant, it was submitted that the evidence was incapable of proving beyond reasonable doubt that the entire 100 tablets were in the defendant’s possession for the purpose of sale.
The defence also submitted that this was not such a large quantity of the drug to make the defence submission completely improbable. In addition, it was submitted that what the defendant says becomes more probable when viewed against the background of the other offending to which the defendant has pleaded guilty, namely possessing methylamphetamine for supply, simple possession of lysergide and simple possession of cocaine. Mr Sale said that the quantity argument must be assessed in the light of the other drugs which the Prosecution accept were for the defendant’s personal consumption. That is, the defendant was a heavy consumer of illicit drugs and the Prosecution accepted that the defendant was found to be in possession of approximately 49 individual doses of drugs for his own consumption. Therefore, it was said, the argument that the 50 – 100 tablets is far too great to be for the defendant’s own personal use, was doubtful. Given that the defendant says in his record of interview that he takes 2 ecstasy tablets per day, 50 tablets is not too large to be for his own personal consumption. He would have an estimated 25 days worth of supply of the drug for his own use.
In response to the Prosecution’s submission, which relied upon the large number of small plastic bags found in the defendant’s possession, the defence submitted that the defendant used those bags to divide up his own doses of the drug. The defence submitted that there is nothing improbable about this explanation, given that the Prosecution have accepted that the defendant was a user of drugs.
In response to the Prosecution’s submission that the defendant could not afford to purchase the $1,500 worth of drugs found in his possession for his own personal use, the defence submitted that there is no evidence offered by the Prosecution to support this contention and in fact the court has no evidence before it of the defendant’s financial position at the time of this offending. The defence submitted that having regard to the contents of the defendant’s record of interview, there was material which showed that the defendant could afford to purchase these drugs because the defendant stated that he performed odd jobs for which he was remunerated.
The defence submitted that the Prosecution cannot prove that the lists were not legitimate records of motor vehicle work done for various people by the defendant.
Taking into account the declarations, the exhibits and all of the submissions put by both counsel, and bearing in mind that the defendant has not given evidence on oath, I am not satisfied that the circumstantial evidence relied upon by the Prosecution establishes beyond reasonable doubt that all of the 100 tablets of ecstasy found in the defendant’s possession were for sale. I am not satisfied that the only reasonable inference to be drawn from the declarations, and the exhibits relied upon by the Prosecution is that the defendant had the entire 100 tablets in his possession for the purpose of sale. Thus, I am not satisfied that the defendant had a commercial purpose in relation to his possession of all of the 100 tablets found in the separate bag.
I am not convinced that the Prosecution evidence excludes or disproves all alternative reasonable hypotheses or possibilities, particularly when regard is had to the defendant’s high consumption of drugs as described in his record of interview (although he is not consistent as to that usage), and the quantity of other drugs in his possession, which were accepted by the Prosecution to be for his personal consumption.
The defendant admits, through his counsel, that half of the ecstasy tablets in his possession were for sale. I am satisfied beyond reasonable doubt that a substantial amount of the drug in the separate bag, which is the subject of count one, was for sale. I am not satisfied beyond reasonable doubt that the amount in his possession for the purposes of sale, was more than 50% of the 100 tablets in the separate bag.
Having regard to the content of the declarations, the exhibits and the submissions of counsel, I am not satisfied that the only inference to be drawn from the notebook entries is that such entries related to or were for the purpose of recording transactions relating to dealing in ecstasy between August 2003 and November 2003. Having regard to all of the declarations and exhibits, I am satisfied that this was a one off event.
I will hear further submissions from counsel as to penalty, bearing in mind my findings upon the Disputed Facts Hearing.