R v Emery - [2021] SADC 13

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v EMERY
Criminal Trial by Judge Alone
[2021] SADC 13
Reasons for the Verdict of his Honour Judge Soulio (ex tempore)
2 February 2021
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
Defendant charged with trafficking in a large commercial quantity of methylamphetamine.
Verdict - Guilty
Controlled Substances Act 1984 (SA) s 32; Juries Act 1927 (SA) s 7; District Court Criminal Rules 2014 (SA) r 49, referred to.
R v Gardi [2015] SASC 186, considered.

R v EMERY
[2021] SADC 13

Introduction

The accused, Paul John Emery, is charged with the offence of trafficking in a large commercial quantity of a controlled drug contrary to s 32(1) of the Controlled Substances Act 1984.
The particulars of the offence alleged against him are that on 21 May 2019, at Bolivar, he trafficked in a large commercial quantity of a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact that the substance was a controlled drug.
Rule 49 Application
A Rule 49 application was instituted by the accused seeking to exclude evidence of a search by police, and evidence of an inculpatory statement made by the accused when interviewed by police.
The application to exclude the fruits of the search, and that statement, was heard prior to trial by another judge of this Court. That application was unsuccessful.
Trial by Judge Alone
The matter was listed 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 before me without a jury.
The Trial
The prosecution tendered the declarations of various police officers,[1] together with a schedule of items seized from the accused as part of the search process, details of items seized during a subsequent search of the accused's house, books of photographs, the recording of the police interview of the accused, and a schedule of agreed facts. No witness was required for cross-examination, and no case presented by the accused. No submissions were made on behalf of the accused.
[1] See appended schedule of declarations.
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, namely that:[2]
As the judge of 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 partially 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 a reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond a 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.
[2] R v Gardi [2015] SASC 186 at [9]-[12].
I must determine whether I can rely on the evidence of the witnesses called, as I have indicated, in this case called by way of tendered declarations.
Lovell DCJ went on to say:[3]
If, however, the evidence which I accept fails to satisfy me beyond a 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 common sense and experience in assessing the evidence.
[3] R v Gardi [2015] SASC 186 at [14]&[15].
The accused did not give evidence. He was not obliged to give evidence, and I must not draw any adverse inference against him as a consequence of him not giving evidence.
Consideration
The offence of trafficking in a large commercial quantity of a controlled drug has a number of elements, each of which must be proven beyond reasonable doubt.
First, it must be proven that the accused had a controlled drug. The drug seized was methylamphetamine. Methylamphetamine is a controlled drug.
Next, it must be proved that the accused trafficked in methylamphetamine. In the present matter the allegation is that he had the drug in his possession with the intention of selling it. If I am satisfied that he had the drug in his possession then the prosecution has the benefit of the statutory presumption. The trafficable quantity of the drug is 2 gm. Possession of more than that amount means that there is a presumption that the accused had that drug in his possession for the purpose of selling it, unless he proves on the balance of probabilities that he had it for some other purpose. The accused has not so sought to persuade me.
The prosecution must prove that when the accused possessed the methylamphetamine he did so knowing that the substance involved was methylamphetamine, or at least a controlled substance.
In order to make out the offence of trafficking in a large commercial quantity of a controlled drug it is necessary to establish that the accused had in his possession more than 1 kg of mixed weight material containing methylamphetamine, or more than 0.75 kg of pure methylamphetamine.
Here it is common ground that the total mixed weight material containing methylamphetamine was 1.946 kg, so the element relating to the more serious offence of trafficking in a large commercial quantity would be made out, subject to establishing the other elements.
Having considered the declarations, and the additional material, and the schedule of agreed facts, I find to the requisite degree that on 21 May 2019 the accused drove by himself from Whyalla to Adelaide in his motor vehicle. He was under surveillance at the time. He drove to various addresses before being stopped by police on the return journey to Whyalla at about 6.15 p.m.
A search of the vehicle was conducted and police found concealed in the upper lining of the boot of the vehicle two large clear plastic bags containing 14 smaller bags, which in turn contained material suspected of being methylamphetamine.
Police also found a cryovac machine with a roll of clear plastic wrap suitable for use within that machine. The plastic wrap was at least consistent with the type of wrap used to wrap the drug found in the car.
In a bum bag located on the front passenger seat police found two mobile telephones and $500 in cash, a third telephone on a mount on the front dashboard, and in the centre console a fourth mobile telephone. In the accused's wallet was $1,650 in cash.
The contents of the bags were analysed. Each of the 14 separate bags contained some 139 gm of methylamphetamine, of which 111 gm was pure methylamphetamine.
Accordingly, the total amount located by police was 1.946 kg of mixed weight material, of which 1.554 kg was methylamphetamine, at a purity of just under 80 per cent.
I note that data collected by police indicated that had the quantity of methylamphetamine located been sold in points, the value of the total was just under a million dollars, and if sold in grams over half a million dollars.
At about 9.30 p.m. on the same day police officers attended at the accused's residence in Whyalla Stuart and there found two small amounts of methylamphetamine of less than one gram; three packets of resealable bags, one of which was about half full; together with a number of plastic tubs within an ice-cream container in a box containing new resealable plastic bags.
The accused's black Samsung Galaxy telephone was assessed and found to contain images and Facebook Messenger conversations said to be indicative of trafficking in drugs.
Having regard to all of the evidence to which I have referred and considered, I am satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence.
The substance contained in the vehicle was methylamphetamine, which, as I have said, is a controlled drug. I am satisfied that the accused was in possession of the drug. It was located hidden in the boot of a motor vehicle registered to and owned by the accused, and of which he was the only occupant.
I am satisfied that the accused knew that the substance in his possession was methylamphetamine, or at least a controlled substance. That finding is supported by the fact that the substance was hidden within the vehicle, and that there was indicia of involvement in methylamphetamine use or methylamphetamine trafficking, including the relevant messages, the existence of small amounts of methylamphetamine at the Whyalla Stuart address, and the presence of plastic resealable bags at that address.
I am satisfied that the accused had possession of the drug with the intention of selling it. The presumption establishes that there was no evidence by which the accused sought to persuade me otherwise. The presumption is not rebutted.
For the above reasons, I am satisfied beyond a reasonable doubt that the accused is guilty of the offence of trafficking in a large commercial quantity of methylamphetamine.
In doing so I have not relied upon the accused's statement to the police in which he said, with what was agreed to be a wry smile, that he supposed that “a personal defence” was not available to him, although that statement, in the context in which it was made, would be an additional piece of evidence which would only serve to fortify the finding I have made in any event.
Verdict – Guilty
Schedule of Declarations Tendered
Detective Brevet Sergeant Johanna Dalziel
Detective Brevet Sergeant Craig Glasson
Detective Brevet Sergeant Damien Henning
Detective Brevet Sergeant John Maclay-Ross
Detective Brevet Sergeant Craig Metschke
Detective Brevet Sergeant Angela Roberts
Senior Constable Steven Schaeffer
Detective Brevet Sergeant Jeffrey Spry