R v Evangelou - [2017] SADC 76

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v EVANGELOU
[2017] SADC 76
Ruling of Her Honour Judge Schammer
12 July 2017
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
Defendant pleaded guilty to trafficking in a controlled drug. Dispute as to whether the offending was part of an ongoing course of conduct of drug dealing by the defendant or whether the defendant's offending was confined to her allowing her premises to be used or jointly occupied by another for the purpose of the sale of drugs.
Finding: Prosecution has not proved beyond reasonable doubt that the defendant's offending was part of an ongoing course of conduct of drug dealing by her.
Controlled Substances Act 1984 (SA) s4, s 32(5), referred to.
R v Olbrich (1999) 199 CLR 270; R v Kreutzer (2013) 118 SASR 211, considered.

R v EVANGELOU
[2017] SADC 76
Introduction

On 10 March 2017 Ms Evangelou pleaded guilty to three counts of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (‘the Act’).
The offending occurred on 13 July 2016 at Kilburn.
On that day police attended at Ms Evangelou’s home at Kilburn (‘the property’). During a search of the property police found numerous plastic resealable bags and tins containing substances, being substances containing methylamphetamine (counts 1 and 2) and a combined total of 0.33 g of mixed substances containing heroin (count 3). Four mobile phones, a tick list and a set of digital scales were also seized from the property.
Count 1 relates specifically to four quantities of methylamphetamine seized from a lounge room coffee table, with a combined weight of 2.31 g (mixed) of the drug.
Count 2 relates specifically to five quantities of methylamphetamine seized from a separate rear table in the lounge room, with a combined weight of 0.46 g (mixed) of the drug.
Count 3 relates to heroin seized from the coffee table, with a combined weight of 0.33 g (mixed) of the drug.
At the time of the search Ms Evangelou’s co-accused, Peter Wayne Chantrill was at the property. Mr Chantrill was also charged with the same three counts and has pleaded not guilty to each count.
Ms Evangelou denies that the drugs found by police at the property were hers and maintains that her role in the offending was simply to provide or allow the use of the property for the purpose of the sale of the drugs by Mr Chantrill.
The prosecution allege that the offending by Ms Evangelou occurred as part of an ongoing course of conduct by her which included five counts of drug trafficking for offences committed on 15 July 2014, 26 April 2015, 2 June 2015 and 25 September 2015. Ms Evangelou was sentenced for that earlier offending by Judge Soulio in the District Court on 10 August 2016. The prosecution allege that while on home detention bail for those offences, Ms Evangelou continued to actively engage in the business of drug dealing from the property and that her role in the offending was not simply to allow her home to be used by another to sell drugs. The prosecution submit that it is implausible that Ms Evangelou would permit her home to be used by others trafficking in drugs while she was on home detention bail if there was to be no benefit to her.
I accept that the prosecution allegation, if proved, constitutes an aggravating factor to the offending. The onus of proving those facts is therefore on the prosecution beyond reasonable doubt.[1]
[1] See R v Olbrich (1999) 199 CLR 270; R v Kreutzer (2013) 118 SASR 211.
The Act
In s 4 of the Act, ‘traffic’ is defined as meaning to:
(a)     sell the drug; or
(b)     have possession of the drug intending to sell it; or
(c)     take part in the process of sale of the drug.
Pursuant to s 4(4) and s 4(5) of the Act, a person takes part in the process of sale of a controlled drug if they provide or allow the use of premises or jointly occupy premises if done for the purpose of sale of the drug.
Ms Evangelou admits that she allowed Mr Chantrill to use and jointly occupy her home for the purpose of selling drugs. The prosecution submits that while such a finding is available on the evidence I should make inferences from the evidence to find beyond reasonable doubt that the drugs found at the home were jointly in the possession of Ms Evangelou and Mr Chantrill and that Ms Evangelou intended to sell at least some of each of those drugs.
Section 32(5) of the Act states:
(5)     If, in any proceedings for an offence against subsection (1), (2), (2a) or (3) it is proved that the defendant had possession of a trafficable quantity of a controlled drug, it is presumed, in the absence of proof to the contrary—
(a)     in a case where it is alleged that the defendant was taking part in the process of sale of the drug, that the defendant—
(i)     was acting for the purpose of sale of the drug; and
(ii) had the relevant belief concerning the sale of the drug necessary to constitute the offence; or
(b)     in any other case—that the defendant had the relevant intention concerning the sale of the drug necessary to constitute the offence.
A ‘traffickable quantity’ of a mixed substance containing methylamphetamine is 2 g.
A ‘traffickable quantity’ of a mixed substance containing heroin is 2 g.
The Evidence
Ms Evangelou gave evidence.
The prosecution elected not to call any oral evidence and instead relied upon the following documents:
1Statement of Nicholas Jonathon BLANDFORD dated 26 September 2016.
2Statement of Derek KELCH dated 17 September 2016.
3Statements relating to Ms Evangelou’s arrest on 15 July 2014:
(a)     Statement of Kylie Anne EVANS dated 22 September 2014.
(b)     Statement of Alyce SULLIVAN dated 23 August 2014.
4Statement relating to Ms Evangelou’s arrest on 2 June 2015:
(a)     Statement of Iain BOWMAN dated 16 July 2015.
5Statements relating to Ms Evangelou’s arrest on 25 September 2015:
(a)     Statement of Rebecca BURNS dated 18 October 2015.
(b)     Statement of Scott Brett MITCHELL dated 16 November 2015.
6Certificate of record re grant of home detention bail on 1 September 2015 in MCPAD-15-3037.
7Certificate of record re grant of home detention bail on 5 May 2015 in MCPAD-15-2408.
8Certificate of record re grant of home detention bail on 2 October 2015 in MCPAD-15-5544.
9Sentencing Remarks of His Honour Judge Soulio dated 10 August 2016.
In response to a question directed by me, I subsequently received and have considered written ‘Prosecution Submissions as to Particulars of the Charges’.
Summary of the Evidence
Evidence not in issue
There is no dispute that at approximately 11.50 am on Wednesday 13 July 2016 police attended at the property as part of an investigation relating to the death of a female (‘the deceased’) following a heroin overdose at a different location in the hours shortly beforehand.
The property was a rental property leased solely to Ms Evangelou. The front of the property was covered by CCTV cameras.
A mobile phone belonging to the deceased had been examined and there was a record of the deceased having made a telephone call shortly prior to her death to a number connected with Ms Evangelou.
At the time the police entered the property Ms Evangelou was present, sitting on a couch in the lounge room, immediately in front of a coffee table. On the coffee table and within arms’ reach of Ms Evangelou was a set of digital scales, numerous drugs which appeared to be methylamphetamine, a quantity of heroin, deal bags and balloons.
A ‘tick list’ was also located.
Mr Chantrill was present at the property when police arrived. He was found to be carrying a quantity of cannabis.
Both Ms Evangelou and Mr Chantrill were arrested for trafficking in a controlled drug and interviewed by police.
Ms Evangelou told the police ‘I had nothing to do with it’ and denied that the drugs were hers. She denied knowing the deceased.
Samples of Ms Evangelou’s handwriting were taken to be compared to the handwriting on the ‘tick list’. The results of that comparison testing are not before the court.
There is no DNA evidence linking Ms Evangelou with the drugs or drug paraphernalia.
There is no evidence as to what, if anything, was captured by the CCTV cameras at the property in the hours leading up to the police attendance at the property.
There was no evidence before the Court in the nature of any forensic analysis from any mobile phone found at the property.
Mr Chantrill told the police that the heroin, methylamphetamine and cannabis were his and that the drugs were all for his personal use. He said he had been at the property since 8 pm the night before and that he resided at a unit in Rosewater. He denied any knowledge of the deceased or of being involved in the sale of heroin to the deceased.
Ms Evangelou’s oral evidence
Ms Evangelou gave evidence that she had rented the property for approximately one month prior to the date of her arrest for this offending. She said the rent was $550 per fortnight and that she could not afford the rent on her own as she was on a Newstart allowance. As such she had agreed to let Mr Chantrill also reside at the property and that he had lived with her at the property for approximately 3 weeks prior to the arrest, sharing the cost of the rent.
However, she said that she had asked Mr Chantrill to move out and that he was intending to move out on the day of her arrest. She had become sick of him constantly being on the phone and of his visitors coming to the property. She said:[2]
..I couldn’t take in anymore. I couldn’t handle the drugs, the people at all hours of the night, the ringing, the texting, or coming over.
[2] T9.2-4.
Ms Evangelou gave evidence that Mr Chantrill and one of his friends had put up the CCTV cameras at the front of the property.
She denied ever touching the drugs or drug paraphernalia that was found on the coffee table, or of having anything to do with or of ever touching the ‘tick list’.
Ms Evangelou gave evidence that the drugs belonged to Mr Chantrill, that it was his hand writing on the ‘tick list’ and that Mr Chantrill had been dealing drugs from the property. She had allowed him to do so and not reported this to police as she was a bit frightened of Mr Chantrill, she said she was ‘a bit nervous of him’ and that he was a friend.
Ms Evangelou was shown a photograph taken by police of a mobile phone seized from the property. She said that the mobile phone belonged to Mr Chantrill but that it contained her SIM card and was being used both by herself, for home detention purposes and to keep in contact with her son and by Mr Chantrill.
She explained that she had a SIM card but could not afford to get a new phone other than a very cheap one that did not work very well. She said Mr Chantrill had a new phone but did not have a SIM card as he had insufficient identification to obtain one. She said that they therefore agreed that he could use her SIM card in his phone if they could both use the phone. She described Mr Chantrill as receiving many more messages and calls on the phone than she received and said this his nickname, ‘Neddy Chantrill’ showed up on the phone when it rang.
She denied knowing the deceased or the male who had reported the deceased’s death to police.
She denied being actively involved in drug dealing as at the date of her arrest and stated that as she had been ‘clean’ for nearly 12 months, there was no longer any need for her to deal in drugs. She said she just wanted a clean life and to start again.
Ms Evangelou said she had undergone five or six drug tests with the Department of Correctional Services between 23 December 2015 and the date of her arrest and they had been negative. She also denied any breaches of her home detention bail during the period 23 December 2015 to the date of her arrest.
In cross-examination, Ms Evangelou agreed that at the time she was being searched by police with respect to the earlier offending on 15 July 2014 she had dropped a bag containing methylamphetamine in a bin and had lied to police as to the source of the noise associated with that action. She said she was panicked and ‘frazzled’ at that time.
As to the offending on 2 June 2015, she agreed that she had initially denied that the drugs located by the police (methylamphetamine and 1,4-butanediol) were hers and of saying to police ‘I don’t know what you’re talking about’ and ‘I don’t know’ when asked about those substances. She agreed that they were in fact her drugs and that she was on home detention bail at the time of that offending.
As to the offending on 25 September 2015, Ms Evangelou agreed that she had told the police the substance they had located was not methylamphetamine, but was instead a health supplement called MSM. She agreed she had told the police the drugs belonged to a friend called ‘Annie’, that she was hiding the drugs for her friend and that she had nothing to do with the drugs. She agreed what she had told the police was untrue. She agreed she was on home detention bail at the time and did not want to get in trouble with the police.
Ms Evangelou denied that what she had told police at the time of her arrest on 13 July 2016, namely that the drugs were not hers and she had nothing to do with them was also untrue so as to minimise the extent of her conduct.
She explained that she agreed to allow Mr Chantrill to stay at the property despite knowing he was a drug dealer as she was desperate for the rent money, could not find anyone else (to cover the rent) and as she had nowhere else to stay while on home detention she would probably have had to go back to prison.
Other documentation
The prosecution tendered statements obtained by police with respect to Ms Evangelou’s earlier offending on 15 July 2014, 2 June 2015 and 25 September 2015. Those statements contained the information forming the basis for the cross-examination of Ms Evangelou as to what she had done or told police at the time of each of those earlier offences.
As to the most recent of those offences (25 September 2015) police also found messages on Ms Evangelou’s Facebook account consistent with her dealing in drugs. She denied any knowledge of the same to police and said that everyone at that property used the computer. When asked about the necessity to sign into the Facebook account using a password she had told police ‘I don’t know what you’re talking about’.
The prosecution also tendered information relating to when Ms Evangelou was granted home detention bail with respect to the earlier offending.
With respect to the offending on 15 July 2014, on 5 May 2015 Ms Evangelou was granted home detention bail to reside at an address in Semaphore. That bail agreement was subsequently varied on 11 September 2015 to enable her to reside at 61 May Terrace, Ottoway (‘the Ottoway property’).
The offending on 2 June 2015 occurred at the Ottoway property while Ms Evangelou was on home detention bail residing at that address.
When arrested for that offending Ms Evangelou was initially refused bail. However on 1 September 2015, David J conducted a bail review and Ms Evangelou was granted home detention bail to reside at the Ottoway property.
The offending on 25 September 2015 occurred at the Ottoway property while Ms Evangelou was on home detention bail residing at that address.
Following her arrest on 25 September 2015 Ms Evangelou was arrested and initially denied bail.
On 2 October 2015 Ms Evangelou was granted home detention bail to reside at the Ottoway property. On 3 February 2016 that bail agreement was varied to enable Ms Evangelou to reside at a Wingfield address.
There was no documentation before the Court confirming when or on which particular matter Ms Evangelou was granted home detention bail to reside at the property.
The prosecution also tendered the sentencing remarks of Judge Soulio who sentenced Ms Evangelou on 10 August 2016 with respect to the earlier offending I have referred to. As at that date Ms Evangelou was in custody following her arrest for this offending and the revocation of her home detention bail.
The sentencing remarks confirm the factual basis upon which Ms Evangelou was sentenced for the earlier offences, being contrary to her initial denials made to police with respect to the offending on 15 July 2014, 2 June 2015 and 25 September 2015. Judge Soulio sentenced Ms Evangelou on the basis that the offences were committed to fund Ms Evangelou’s drug addiction against a background of mental health issues and abuse.
Judge Soulio imposed a head sentence of 2 years, 4 months, 1 week and 4 days imprisonment with a non-parole period of 1 year, 1 week and 4 days, backdated to commence as at 13 July 2016.
Findings
It is for the prosecution to establish beyond reasonable doubt with respect to each count that Ms Evangelou was in possession of the drug with the intention of selling at least some of it, being the factual basis for the pleas of guilty as advanced by the Director.
With respect to each count, the first issue for my determination is whether I am satisfied beyond reasonable doubt that Ms Evangelou was in possession of the drugs.
Section 4(1) of the Act states:
Possession of a substance or thing includes –
(a) having control of the disposition of the substance or thing; and
(b) having joint possession of the substance or thing.
It is for the prosecution to prove beyond reasonable doubt, with respect to each count, that Ms Evangelou had the power to control and the intention to exercise control over the drugs being the subject of the charge, to the exclusion of others except a joint possessor (for example, Mr Chantrill).
Ms Evangelou does not dispute that she had knowledge of the drugs found at the property. However she maintains the drugs were not hers and that she had no power or control over them.
When questioned by police Mr Chantrill immediately volunteered that the drugs were his.
The prosecution case is a circumstantial case.
The drugs and other paraphernalia consistent with drug dealing were located within arms’ reach of where Ms Evangelou was sitting when police entered the property.
Drugs of a similar type to those which were involved in the deceased’s overdose shortly beforehand were found at the property.
The deceased had called a phone number linked to Ms Evangelou shortly prior to her death.
The prosecution relies on those facts and on Ms Evangelou’s previous willingness to lie to protect herself when charged with drug trafficking and her propensity to continue to deal in drugs despite being on home detention bail, to support an inference that in this instance she is also lying as to her possession of the drugs and her involvement in their sale.
Ms Evangelou was not an impressive witness. Ms Evangelou gave evidence that Mr Chantrill was in receipt of a pension. It is therefore implausible that he would lack sufficient identification to purchase a SIM card for a mobile phone.
Further, Ms Evangelou’s evidence that Mr Chantrill had been residing at the property as she was unable to afford the rent on her own, in circumstances where she knew he was a drug user, was seemingly inconsistent with her evidence that she had asked him to leave the property and that he had agreed to do so on the day of the arrest. There was no evidence as to how she was intending to otherwise pay for the rent with respect to the property following his intended departure.
Further, Ms Chantrill’s evidence that Mr Chantrill and his friend were responsible for the installation of the CCTV cameras, on a property rented solely in her name, was unconvincing.

Ms Evangelou has admitted to lying in the past in an attempt to avoid prosecution for drug dealing and has continued to deal in drugs while on home detention bail.
That being said, there was no evidence before me to establish that Ms Evangelou had ever touched the drugs, the drug paraphernalia or the ‘tick list’.
Although the call from the deceased to a phone linked with Ms Evangelou raises obvious suspicions as to a possible connection between Ms Evangelou and the deceased, there is no evidence as to the content or length of that telephone call.
The information provided by the deceased’s male acquaintance as to the deceased’s actions prior to her death implicated a male, unknown to him, to the provision of the drugs then used by the deceased.
There was no evidence before the court of any text messages (or for example Facebook messages) related to Ms Evangelou which were consistent with her dealing in drugs.
There was no evidence of Ms Evangelou having any unexplained wealth.
There was no evidence that Ms Evangelou had tested positive to any drug testing undertaken of her while on home detention bail during the period 2 October 2015 and the date of her arrest on 13 July 2016, which may provide an explanation for her to continue dealing in drugs. Ms Evangelou gave evidence that she had trafficked in drugs previously to support her drug addiction, being the factual basis upon which she was sentenced by Judge Soulio in August 2016.
Having regard to all of the evidence, I cannot be satisfied beyond reasonable doubt that the drugs, being the subject of each count, were in Ms Evangelou’s possession.
I cannot exclude as a reasonable possibility that the drugs were solely in Mr Chantrill’s possession.
In the absence of such a finding, the factual basis for sentencing as advanced by the prosecution has not been established.
Conclusion
As to each count, Ms Evangelou is to be sentenced on the basis that she trafficked in a controlled drug by allowing her premises to be used or jointly occupied by another for the purpose of the sale of those drugs.