R v Fowler - [2005] SADC 72

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v FOWLER
Criminal Trial by Judge Alone
Reasons for the Verdict of His Honour Judge Boylan
1 July 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - FOR SALE OR SUPPLY
Accused charged with one count of Possessing Methylamphetamine for Sale, one count of Possessing Cannabis, and one count of Producing Cannabis.
Trial by Judge alone. Elements of offence - findings by trial Judge.
Controlled Substances Act 1984 Section 31, Section 32(1)(a), Section 32(1)(e), referred to.

R v FOWLER
[2005] SADC 72

Donna Fowler is charged with one count of possessing methylamphetamine for sale, one count of possessing cannabis and one count of producing cannabis. The charges and particulars (as amended) read as follows:-
“First Count
Statement of Offence
Possessing Methylamphetamine for Sale. (Section 32(1) (e) of the Controlled Substances Act, 1984).
Particulars of Offence
Donna Fowler on the 16^th day of November 2003 at Elizabeth North, knowingly had methylamphetamine, a drug of dependence, in her possession for the purpose of selling it to another person.
Second Count
Statement of Offence
Possessing Cannabis (Section 31 of the Controlled Substances Act, 1984)
Particulars of Offence
Donna Fowler on the 16^th day of November 2003 at Elizabeth North, knowingly had cannabis, a prohibited substance, in her possession.
Third Count
Statement of Offence
Producing Cannabis. (Section 32(1)(a) of the Controlled Substances Act, 1984)
Particulars of Offence
Donna Fowler between the 1^st day of October 2003 and the 17^th day of November 2003 at Elizabeth North, knowingly produced cannabis, a prohibited substance.
It is further alleged that the said offence involved 3 growing cannabis plants.”
Immediately before the trial was due to begin, Mr Stokes, counsel for the accused, applied for her to be tried by Judge alone. The Crown did not oppose that application. Accordingly, so far as was necessary, I dispensed with compliance with the Rules and the trial proceeded before me.
Overview
The alleged offences arose out of attendances by police officers on the 16^th day of November 2003 at premises at Elizabeth North which were owned by Ms Fowler. There were two sets of premises. The first of them was at 68 Dauntsey Road, Elizabeth North. Ms Fowler was the registered proprietor of those premises and was living there. The other premises were at 20 Knighton Road, Elizabeth North. Ms Fowler was also the registered proprietor of those premises. The Knighton Road premises are only around the corner from the Dauntsey Road premises.
On the afternoon of the 16^th of November 2003, a number of police officers attended first at the house at 68 Dauntsey Road. They searched the house. In the top drawer of a bedside table next to Ms Fowler’s bed, police officers found a package containing nine small plastic bags each of which contained a white powder which, in turn, contained methylamphetamine. The methylamphetamine contained in those nine bags is the subject of the charge in count 1.
In a shed in the garden of the premises at 68 Dauntsey Road police found a plastic bag which contained cannabis remnants. That cannabis is the subject of count 2.
Having searched the premises at Dauntsey Road, police officers then attended at 20 Knighton Road, Elizabeth North. There, they found three cannabis plants being grown hydroponically inside the house. Those plants are the subject of count 3.
The Prosecution Case
I now set out a summary of the prosecution evidence.
Police officers attended near the accused’s premises at 68 Dauntsey Road on the 16^th of November 2003. Before going to the accused’s premises, police officers stopped a car in the vicinity of the accused’s house. That car was driven by a woman named Beth Murphy. The police searched Ms Murphy’s car and found in it a letter addressed to the accused at her premises at 20 Knighton Road. At about the time that they were searching Ms Murphy’s car, the police officers observed at Ms Fowler’s premises a Ford Falcon motor vehicle registered number VGW 395.
The search of Dauntsey Road
After they left Ms Murphy, police went to 68 Dauntsey Road. The car VGW 395 which they had noticed there a short time before had gone. The police knocked at the door and the accused opened it. She was dressed in pyjamas or under clothes and went immediately, in the company of a female police officer, to her bedroom where she changed clothes. Police officers then searched the house.
In the accused’s bedroom were two speakers. In one of them, police officers found a set of electronic scales and a number of unused syringes still in their packaging.
In the other speaker the police found a number of items. They were:
·A yellow plastic container for the storage of used syringes.
·A black “Rosetti” purse (Exhibit P5) which contained numerous small plastic bags which, in turn, contained traces of powder and residue. The ten bags with most residue were selected for analysis and were later analysed. Nine of them contained methylamphetamine. (See Certificate of Analysis Exhibit P20).
·A black “Starcraft” wallet (Exhibit P6) which contained four plastic bags. One of those bags held 0.21 grams of powder which was later analysed and found to contain 0.05 grams of methylamphetamine. The other bags were also analysed and found to contain residues containing methylamphetamine. (See Exhibit P20)
·A small black box which contained
(i) a number of plastic bags
(ii) a red wallet (Exhibit P8) which contained three bags each of which contained a white powder. The contents of the bags were later analysed. Two of the bags were found to contain magnesium sulphate, otherwise known as Epsom salts, and one contained glucose. No drugs were detected in the powders in any of those three bags.
There was unchallenged evidence from Senior Sergeant Jeffries that both glucose and Epsom salts are cutting agents used by sellers of illicit drugs to “bulk up” the amount of substance to be sold. (Transcript 109 Line 23 – 110 Line 2)
Also found in the accused’s bedroom were:
·A set of measuring spoons suitable for use in preparing methylamphetamine for intravenous injection. (See Jeffries’ evidence at T114 Lines 7-11) The measuring spoons are Exhibit P9.
·A pink covered note book was found in the top drawer of a set of drawers next to the bed in the accused’s bedroom. (See Exhibit P1 photograph 3). That exhibit contains a number of entries in the accused’s handwriting. Those entries include references to refinancing the houses which she had bought at Dauntsey Road and at Knighton Road; to amounts of money owed by the accused or owed to her; to work to be done on her houses; to items she wanted to buy; and to tasks to which she had to attend.
·An A5 size piece of paper with writing on it which was found in a black purse on a dresser. (Exhibit P11) The piece of paper contained, in the accused’s handwriting, a list of names against each of which was written a monetary amount. It also contained, again in the accused’s handwriting, references to amounts of money next to which were written the word “cash” and “credit” and “gave” and what appear to be calculations of monetary amounts.
·The nine plastic bags containing methylamphetamine which are the subject of count 1. (Exhibit P14) Those nine bags were wrapped in yellow coloured paper which was bound with black adhesive tape (Exhibit P15). The packaging containing the nine plastic bags was found in the top drawer of the chest of drawers next to the accused’s bed. On analysis, each of the bags was found to contain between 0.12 and 0.35 grams of powder. Each of the bags contained methylamphetamine. The methylamphetamine content of the powder in each bag ranged between 21% and 32%. In seven of the bags, the percentage of methylamphetamine was between 25% and 29%. The total amount of white substance was 2.07 grams and the total amount of methylamphetamine was 0.54 grams (See the Certificate of Analysis Exhibit P20).
·An envelope was found in a chest of drawers in the bedroom. (Exhibit P12) That envelope contains handwriting of the accused in which she has written a number of names (or identifying words) against which are monetary amounts.
In another bedroom in the house, on a desk, police found an A4 notebook entitled “2003 Year Book” (Exhibit P13). It contained numerous entries in the accused’s handwriting. Those entries included a history of the difficulties with letting agents for her properties; a list of things for her to achieve in 2003; a list of things important to her in life; a list of what she called “Good Debts”; calculations about money to be saved by giving up smoking; a memorandum about striving to be an active/passive investor; a memorandum about refinancing property once owned by the accused at Hill Street, Elizabeth South; a list of urgent debts; a list of other debts to pay; a list of other expenses; a list of things to be done urgently; a list of things the accused needed; notes about shopping for loans, debt management specialists, financial counsellors and financial managers; a list of things to do; a list of priorities at Dauntsey Road, including references to security screens on the front door and windows, sensor lights, “heightening” fences, and an alarm; another list of things to do; a list of telephone numbers with markings against many of the numbers; a list of significant dates (including birthdays).
In addition to the matters listed above Exhibit P13 contained the following entries:
·money owed to Donna
*Helga                25
* Sandra             60
*Andrew             100
Others – no chance of getting
Ned, Gary, Pat,
Lirum, Reece, Jimmy”
“Sandra     $60
Helga        $30
                 $90
*get adrenalin from Paul
should have about $1000 worth to get rid of”
“?list of poisons we can get
?pseudo
?How many more No.1
- How regular”
·There was a page headed “Knighton Road” which contained references to nutrients, increasing security, an alarm system and motion censored cameras, security/sensor lights, exhaust fans, and pots and lights set up.
·“Sandra
3 points @ $30
2 ½’s @ $100
Rose $40
Kate $200”
·The final page has an entry which begins “Reece from about 18^th Jan” and which contains calculations of monetary amounts. Against an amount 50 appear the words “Pure B”.
Police officers also searched a shed which was located in the garden at the accused’s house at Dauntsey Road, some 4 or 5 metres from the house. Inside the shed, they found a plastic bag containing green vegetable matter which, when weighed and analysed, was found to be 1,100 grams of cannabis leaf material (See Exhibit P21).
The Search at Knighton Road
At 20 Knighton Road, police found three cannabis plants being grown hydroponically. In the bathroom of the house there were remnants of a cannabis plant or cannabis plants. There was a set of keys on the table in the kitchen. In a bedroom in the house, which also contained a green swag, police officers found a small piece of paper with handwriting on it. That piece of paper is Exhibit P18. When police officers attended at 20 Knighton Road the Ford Falcon registered number VGW 395 which they had seen earlier at the accused’s premises at Dauntsey Road was parked in the driveway at Knighton Road. No-one was present inside the house at Knighton Road when police gained entry and there is no evidence as to the ownership of the vehicle.
It appears from the items observed in one of the bedrooms at Knighton Road and from enquiries made by police officers of neighbours that at least one person was spending time there. Police officers found no evidence of the identity of that person or persons when they attended there. Although a name appears on the swag found in the bedroom, it is an agreed fact that that person has nothing to do with the premises at 20 Knighton Road.
The evidence of Detective Senior Sergeant Jeffries
In addition to calling the police officers who searched the premises at both Dauntsey Road and Knighton Road, the prosecution called Detective Senior Sergeant Glen Jeffries. Senior Sergeant Jeffries has been attached to the Drug and Organised Crime Investigation Branch of the Police Force for several years. In addition, he was stationed at the drug squad between 1983 and 1986 and at the Organised Crime section of the Police Force between l990 and l994. During his time in the police force he has investigated many drug related matters. He has taken part in what are called “controlled buys” of illegal drugs as an undercover operative and has also been a controller of other undercover operatives. He has worked as an investigator in drug offences. He has extensive knowledge of the illicit drug trade. In particular, he has extensive knowledge of the way amphetamine and methylamphetamine are sold and the prices which those drugs command in the market. His expertise was not challenged and neither was any of his evidence. I accept Detective Senior Sergeant Jeffries’s evidence.
He gave evidence that methylamphetamine is sold in various weights. They are: “points”, weighing between 0.1 to 0.2 grams which are sold for about $50; “grams”, weighing about 1 gram which are now sold for about $200 but which were generally sold some years ago in powder form for $50; “8 balls” weighing about 3.5 grams sold for between $450 and $600; ounces, sold for $2,500 to $3,500 and, finally, pounds which sell for a great deal more. Detective Jeffries told me that, some years ago, methylamphetamine was normally sold in the form of a white powder. For some years now it has been sold in a different form which Detective Jeffries described as a paste which eventually dries into a powder-like form.
He said that grams and points are usually sold in small plastic press seal bags which he described as “J-bags”. He said it would be very unusual to find methylamphetamine sold in powder form in 2003.
I mention here that Mr Jeffries was also asked about the expression “Pure B”. He said that he was not familiar with that term but that it may refer to “pure base”. He went on to say that that opinion was educated speculation. I find that there is no evidence at all upon which I can make any finding about the meaning of the expression “Pure B”.
Detective Senior Sergeant Jeffries also gave evidence about the practice by purchasers of illegal drugs of using them at the premises at which the drugs were bought. There are a number of reasons for that which reasons include hiding from police officers the fact that a purchase of drugs has been made at particular premises. If the drugs are consumed before the buyer leaves the premises, then a search of the buyer immediately after his leaving the premises will not provide investigating police officers with proof of purchase.
Detective Senior Sergeant Jeffries also gave evidence that the types of plastic bags located in the accused’s bedroom were the types used for the sale of drugs. He said that the spoons found in her bedroom may be used to dilute the drug and that the percentage of amphetamine found in the nine packets suggested it was being sold in the form that he described as a paste. He said that most users buy grams but there would be occasions when they would buy 8- balls.
None of the prosecution evidence to which I have referred above was disputed.
It is the prosecution case, with respect to the methylamphetamine, that the accused possessed it for sale. The prosecution points to the fact that there were found in her bedroom nine separate packages of methylamphetamine all packaged for sale; a large quantity of plastic bags of the type used for packaging methylamphetamine for sale; electronic scales which could be used for measuring small amounts of drugs; glucose and Epsom salts which are used as cutting agents by sellers of methylamphetamine; and a series of documents which contain names and money amounts which the prosecution says are records of drug sales.
As to count 2, the prosecution case is that the accused was in possession of the bag of marijuana in the shed.
As to count 3, the prosecution case is that the accused, together with others or another, was growing the cannabis plants found at 20 Knighton Road. The prosecution relies upon the fact of the accused’s ownership of the premises, the note in her handwriting found at the premises, and the 2003 Year Book, Exhibit P13, which contains entries, again in the accused’s handwriting, dealing with the production of cannabis under the heading “Knighton Road”.
The Accused’s Case
The accused gave evidence and called one witness. Before turning to her evidence, I direct myself that she is presumed to be innocent until and unless the prosecution proves beyond reasonable doubt each of the elements of the offences charged against her. I remind myself that there is, in this case, no onus upon her at all. In particular, owing to the amount of methylamphetamine found, no presumption operates against her. On the subject of the onus of proof, I further direct myself that, were I satisfied that Ms Fowler were guilty of producing the cannabis the subject of count 3, I could only find that she had a commercial purpose in doing so if I were satisfied beyond reasonable doubt that the Crown had proved some element of commerciality.
With respect to her evidence, I remind myself that she was not obliged to give evidence. Nor was she obliged to call any evidence. Even if I reject all of some of her evidence or all or some of the evidence given by the witness whom she called, such rejection is an insufficient basis for conviction. I can only find her guilty of any of the offences charged against her if I am satisfied beyond reasonable doubt that the Crown has proved each of the elements of the relevant charge.
I turn to the evidence of the accused.
Ms Fowler is now 31 years old. She is a trained nurse. Although she has worked as a nurse in the past, her last employment was selling motor vehicles
Some time before March 2001, Ms Fowler decided to invest money in real estate. She bought a property at Hill Street, Elizabeth South in March 2001. Later in the same year she bought the properties at 68 Dauntsey Road and 20 Knighton Road. Owing to problems with tenants, she was having difficulty making her mortgage commitments and she sold Hill Street in June or July 2003. Although the evidence is not clear, it seems that she finally settled on that sale some time in August. She sold that property for about $60,000 more than she paid for it.
After selling Hill Street, Ms Fowler moved into Dauntsey Road where she lived until the time the police raided the premises on the 16^th November 2003. While living at Dauntsey Road, she was not working and was in receipt of a New Start allowance from Centrelink. She was not receiving any rental income from Dauntsey Road while she was living there. She had difficulty finding tenants for Knighton Road and, although the evidence is not completely clear, it seems that she received little rent from those premises between the time of its being let and the 16^th of November 2003. She gave evidence that, at the time of the police raid, she thought that she still had some of the profits of her sale of Hill Street. She thought that she did not use up all of those profits until some time in 2004.
Ms Fowler gave evidence about her drug use. She said that she had been a user of methylamphetamine since she was about 17 but for many years her use had been recreational. In more recent times it had developed into a habit. When she was living at 68 Dauntsey Road, she was a regular user and was using about a gram a day. She said that she was buying methylamphetamine in 8-ball form. She said that she knew other users of methylamphetamine who would sometimes use the drug at her premises. While admitting that she was a regular user of amphetamine, she denied that she had ever sold it. In particular, she denied that the amphetamine the subject of count 1 on the Information belonged to her. She said that she did not know that it was in the drawer in her bedroom.

Ms Fowler also gave evidence about her personal life and her closer circle of associates.
At the time of the police raid she was in a relationship with a man called Paul Trigg. They had been living together in the premises at Hill Street, had broken up for a short period, but had resumed their relationship after her move to Dauntsey Road. She said that he was living with her at Dauntsey Road in November 2003. She said he had few clothes, that he was accustomed to carry his possessions round with him in a small bag and that, had the police searched the laundry at Dauntsey Road, they would have found his spare set of clothes. She said that by November 2003 her relationship with Paul Trigg had developed into a very violent one. She gave numerous examples of his violent treatment of her and said that the relationship was so violent that it got to the stage where she wished to commit suicide by overdosing on heroin, a drug that she had never taken.
Ms Fowler also gave evidence of her association with a man called Andrew Eyres. She said that Mr Eyres was a dealer in amphetamines. (One of the police officers called by the prosecution agreed that the police were interested in Mr Eyres’s activities and that he is now incarcerated in Victoria.) Ms Fowler said that she relied on Eyres to extricate herself on occasions from Paul Trigg’s violent behaviour. She said that she would sometimes drive around with Eyres when he went to sell drugs. She also said that she and Eyres would use drugs together. On occasions, she said that Eyres would inject her with amphetamines while she was asleep. He would sometimes go to her house to sleep and would ask her to hold his drugs and his telephone until he woke up. When he woke he had people coming to the house to purchase amphetamine from him.
The accused gave some quite detailed evidence about her method of ingesting methylamphetamine. She said that, owing to her nursing training, she was very fussy about health issues associated with intravenous drug use. Her evidence was that she divided the contents of the speakers into “clean” and “dirty” items associated with drug use. She said that she always kept a supply of clean syringes in the house for use by her and others. She said that it was her practice, for reasons of hygiene, to use clean plastic press seal bags in which she mixed a solution containing methylamphetamine before injecting it. She said that she used one ml., or a little less, of water to mix with the powder containing amphetamine. By using this method, she said that she avoided the risk of contamination from a dirty syringe or from other people using the same things. She said that she used the spoons (Exhibit P9) to spoon from an “8-ball” into another bag.
Ms Fowler said that she used the scales to measure dosages and that she also used them to weigh drugs which she had bought.
As to the glucose and Epsom salts she said that some of the drugs which she bought were of very high quality and, if the drug was too toxic, she cut it. She said that the really “pure stuff” would burn her veins.
Ms Fowler gave evidence at some length about the writings and documents discovered by police at the premises at Dauntsey Road and at Knighton Road. She admitted that most of the handwriting in those documents was hers and that it was her habit to keep “lists of everything”. She agreed that it was a habit of hers to keep lists of people who owed her money. She also gave evidence that it was a practice of hers to record details for Andrew Eyres of moneys owed to him. She said that it was easier for him to remember who owed him money if he saw written down the names of his debtors and the amounts they owed him. Accordingly, the accused said that Eyres would dictate to her and she would write out the details dictated. She said that this often occurred immediately prior to their ingesting amphetamine, during the period, sometimes lasting up to one hour, during which Ayers was attempting to obtain a vein suitable for injecting the drug. She denied that any of the records found by police were records of amounts owed to her by people to whom she had sold drugs.
With respect to one page of Exhibit P13, Ms Fowler admitted she wrote the following:
“?List of poisons we can get” and “?pseudo”.
On the same page appear the words
“+*get adrenalin from Paul
Should have about $100 worth to get rid of”
She said that she knew that pseudoephedrine was a substance used to manufacture methylamphetamine and said that she thought that somebody must have asked her if she knew somebody from whom pseudoephedrine could be obtained. She said she was unable to explain the mention of “poisons”. With respect to the adrenalin, she said that she was well aware that adrenalin, if misused, could cause death and that she kept some Paul had obtained so that she could get rid of it, thereby avoiding danger to potential users of it.
As to the cannabis in the shed at Dauntsey Road. Ms Fowler denied any knowledge of it. Her brother Blake Fowler gave evidence about it. He said that he and Andrew Eyres had found that cannabis in a bag on the side of the road in the hills. He said that he and Eyres put the cannabis, which he described as “just crap”, in the shed.
As to the cannabis found growing hydroponically at Knighton Road, Ms Fowler denied that she had any knowledge of it. She said that the house was rented to a man called Malcolm Fuss who had been introduced to her as a prospective tenant by Andrew Eyres. She said it was Fuss’s practice to deliver the rent money to her and, although she had attended once outside that house during his tenancy, she had not gone inside. She said that P18, the scrap of paper with her writing on it, must have been dropped or left at Knighton Road by Eyres. Ms Fowler did admit, however, that she, Andrew Eyres and Paul Trigg had discussed growing a cannabis crop at Knighton Road. She said she “looked at the figures for doing a set-up of dope” at Knighton Road. She agreed that one of the pages in the 2003 Year Book, Exhibit P13, contained notes she had made about the possibility of growing cannabis hydroponically and that the notes contained a reference to her growing such a crop in partnership. She said that she decided against the plan to grow cannabis there.
That is a brief summary of the evidence of the accused and her brother. It is only a summary of the evidence, the whole of which I have considered .
Although there was almost no dispute about the prosecution evidence, there are some matters to which I must refer.
Ms Fowler gave evidence that on occasions prior to March 2005, police officers had attended at her house and found notes similar to those tendered in evidence in this trial. She said that on those occasions police did not seize the notes. She said that on some such earlier occasion or occasions, police officers had also seen at her house packets of syringes, scales, the yellow container for used syringes, plastic bags and the black wallet or purse containing deal bags. Detective Senior Constable White agreed in cross-examination that he had attended at the premises before and seen the paraphernalia of a drug user, including syringes which, he believed, he saw inside the speakers. Detective Acting Senior Sergeant Whittaker also agreed in cross-examination that he had attended at Ms Fowler’s house before and had seen the two speaker boxes and that he had seen, inside them, drug related implements. He also agreed that, on previous visits, he may have seen pieces of paper with names and amounts of money on them. Police officers agreed that, after previous visits, they have referred Ms Fowler to the Drug Diversion Programme.
I note, however, that there is no evidence from the police that, on other occasions, police officers had seen electronic scales or drugs packaged as were the drugs in Exhibit P14, the drugs the subject of count 1.
Before turning to my conclusions about the evidence, I remind myself that I must consider each of the three counts separately. There is no suggestion that there is cross admissibility of counts. I have considered the evidence in respect of each count quite separately.
I also direct myself that there is no basis on which any of the evidence can be used as evidence of propensity.
There is evidence that the accused has, for many years, been a user of illegal drugs. I have used that evidence only as evidence of motive. I have not in any way used the evidence of her prior use of drugs and her association with other drug users and drug dealers to affect her credit.
There has also been evidence which suggests that, on occasions prior to the 16^th of November 2003, the accused was engaged in dealing in drugs. I refer particularly to the evidence of the written records containing names and monetary amounts. I have used that evidence only as evidence of the accused’s involvement in an ongoing business of selling methylamphetamine prior to the police search on 16 November 2003. That fact may be used as evidence of the purpose of Ms Fowler’s possession of methylamphetamine.
This is a circumstantial case. I direct myself that, in the case of all three counts, I can only convict the accused if there is no rational inference to be drawn from the evidence other than that she is guilty.
I must also direct myself as to the elements of the offences.
The elements of the offence of possessing methylamphetamine for sale are:
1. That the substance in question is methylamphetamine
2. That it is a drug of dependence
3. That it was in the possession of the accused in the sense that she knew of its existence, had physical control of it and intended to exercise control over it.
4. That the accused knew that possession of the substance was unlawful
5. That she had the substance in her possession for the purpose of selling it.
The elements of possessing cannabis are:
1. That the drug in question was cannabis
2. That cannabis is a prohibited substance
3. That the accused knowingly had it in her possession (in the sense referred to above).
4. That the accused knew that possession of cannabis was unlawful.
The elements of count 3 are:
1. That the substance was cannabis
2. That cannabis is a prohibited substance
3. That the accused produced it in the sense that she cultivated it by taking part in any or some of the steps necessary for cultivation such as sowing or planting, fertilizing, tending, watering or caring for the plants.
4. That the accused knew that what was being produced was a substance the production of which is unlawful.
Each of the elements of each offence must be proved to my satisfaction beyond reasonable doubt before I could convict the accused.
I turn to my conclusions about the evidence.
I did not find the accused to be a reliable and truthful witness and I do not accept her evidence on many topics. Many of the explanations she put forward were implausible. I refer only to some of them.
I do not accept that she kept and used plastic bags for reasons other than to use them again for packaging methylamphetamine. She said she did not put them in the rubbish bin lest it be knocked over and local residents be forced to see plastic bags which they would associate with drug use. That explanation is implausible.
I do not accept her explanation for keeping unused plastic bags. She said that she used them for mixing drugs with water and filling a syringe from them. I do not accept that that is a practical way of preparing the drug for injection if only for the reason that a drug user would not risk loss of the drug by penetration of the bag by the needle. It is, in any event, an impractical way to draw the solution into a syringe.
I do not accept Ms Fowler’s evidence about her insistence upon strict standards of hygiene in drug use. She would hardly acquiesce in Andrew Eyres’ asserted practice of injecting her while she was asleep if she were genuine about standards of hygiene.
I do not accept that she kept a supply of unused syringes solely for reasons of hygiene. I prefer the explanation of Detective Senior Sergeant Jeffries, namely, that there is a practice among sellers and users of drugs that the purchasers inject the drugs prior to leaving the premises at which they have been bought.
I do not accept Ms Fowler’s evidence about having Epsom salts and sugar to mix with methylamphetamine because she often bought drugs of such high quality that they could cause burning in her arms. I am satisfied that she had the Epsom salts and sugar to use as a cutting agent to “bulk up” the drug which she intended to sell.
I do not accept her evidence about the scales insofar as it suggests she did not use them to weigh drugs for sale.
I do not accept her evidence about the various lists of names and monetary amounts. In particular I do not accept that those lists were written by her after having been dictated by Andrew Eyres so that he could more readily remember details of his drug dealings. I find that to be an implausible explanation for the notes which were written by her and, in most cases, obviously retained by her.
I again remind myself that my rejection of any or all of the accused’s evidence is no basis for conviction. She bears no onus of proof. The Crown must prove the whole of its case beyond reasonable doubt, which includes disproving any defence put forward by her.
I have considered all of the submissions put by both counsel in their addresses.
I am satisfied beyond reasonable doubt that the Crown has proved its case against Ms Fowler on count 1.
She was, at the relevant time, a user of methylamphetamine. She had a serious addiction to the drug, using about 1 gram each day. Even is she were buying it in “8- ball” amounts, two 8-balls per week (equals about 7 grams) would have cost her $900 each week. That is a conservative estimate. It is her own evidence that she was paying $600 for an “8-ball” at the time she said she was robbed in August 2003. Her lists of debts, even though the times at which some of those lists were written are uncertain, demonstrate that her financial position was parlous in November 2003. At that time, she was receiving the unemployment benefit. She had a very expensive drug habit which gave her a motive to buy drugs. On her own admission, her house was frequented by users of drugs. Accordingly, she had both the motive and the opportunity to sell methylamphetamine. In addition, she was found in possession of the paraphernalia of the drug dealer. I refer especially to her store of plastic bags of the type used for packaging methylamphetamine, “cutting agents”, scales, and lists containing records of drug transactions. Those factors, in combination, satisfy me beyond reasonable doubt that the Crown has proved that she was in possession of the methylamphetamine and that her purpose for possessing was to sell it. I enter a verdict of guilty on count 1.
I turn to count 2. The 1100 grams of cannabis found in the shed was undoubtedly of poor quality. It appeared old. Prosecution witnesses agreed that it comprised cut-offs. There was no suggestion that it was connected in any way with the cannabis at Knighton Road. The accused’s brother, Blake Fowler, gave evidence that it was his. Even though I regard him as an unsatisfactory witness who gave an implausible account of how he said he came into possession of the cannabis, there is insufficient evidence to find that the accused knew that the cannabis was in her shed. I am not satisfied beyond reasonable doubt that she was in possession of that cannabis and I enter a verdict of not guilty on count 2.
I turn to count 3. There is no doubt that cannabis was being grown hydroponically at Knighton Road. The accused was the owner of the premises which were very close to the premises in which she lived. Found in those premises when police searched them was the note, now Exhibit P18, which bore the accused’s handwriting. Those facts alone would not convince me beyond reasonable doubt of her guilt of count 3. But there is an important additional factor, namely, the page in the 2003 Year Book (Exhibit P13) which contains her notes about growing a crop of cannabis at Knighton Road. As I have already said, she admitted in evidence that those notes were made at a time when she was considering the possibility of growing cannabis at Knighton Road as a means of making money. In my view, those entries in Exhibit P13 together with the other matters to which I have already referred provide adequate evidence of her guilt of count 3. I am of the view that she, albeit with another or others, was producing the cannabis at Knighton Road. Further, I am of the view that her motives in doing so were commercial.
Accordingly, I record a verdict of guilty on count 3.