R v Georgeson

[2017] SASCFC 93

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v GEORGESON

[2017] SASCFC 93

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Nicholson)

2 August 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS

Appeal against verdict of guilty returned by jury on trial in the District Court.

The appellant was charged with two counts of trafficking in a controlled drug. The appellant’s partner, Mr Lock, operated a drug distribution network where he would source drugs from Mr Nguyen and then supply them with Mr Ellis to dealers in Whyalla. On 31 August 2014, the appellant drove to Pt Pirie and gave Mr Ellis a package which contained drugs. That drive was the subject of count one. The appellant gave evidence that she did not know what was in that package. On 1 June 2014, it was alleged that the appellant drove with Mr Lock to meet Mr Ellis and give him drugs. This drive was the subject of count two.

The evidence suggested that the appellant knew that Mr Lock and Mr Ellis had been arrested for drug offending and that Mr Lock’s apartment contained paraphernalia from which it could be inferred that he sold drugs. In the time between count one and count two, the evidence showed that the appellant had counted and held substantial amounts of money for Mr Lock, had offered to drive with him to Pt Pirie on 1 June 2014 for some reward, and after 1 June 2014 offered to do another drive for money.

The jury found the appellant not guilty of count one, but found her guilty of count two. The appellant appeals on the ground that the verdict cannot be supported by the evidence and that the verdicts are inconsistent.

Held per Kourakis CJ (Vanstone and Nicholson JJ agreeing), dismissing the appeal:

1.       By the time the appellant accompanied Mr Lock on the trip charged as count two, the evidence additional to that evidence proffered on count one supported the finding of guilt on count two (at [29]-[35]).

2.       The verdict of guilty is supported by the evidence (at [35]).

Controlled Substances Act 1984 (SA) s 32, referred to.
R v Eccles-Smith [2016] SASCFC 84, applied.

R v GEORGESON
[2017] SASCFC 93

Court of Criminal Appeal:  Kourakis CJ, Vanstone and Nicholson JJ

1. KOURAKIS CJ:         This is an appeal against a conviction.  In a trial in the District Court, the jury returned a verdict of guilty on the second of two counts charging the appellant with trafficking in a controlled drug.[1]  On that count it was alleged that on 1 June 2014 the appellant, Ms Georgeson, with her then partner, Mr Lock, transported methylamphetamine by car to Port Pirie where it was supplied to another man, Mr Ellis, who in turn distributed it to drug dealers in Whyalla. 

   [1] Contrary to s 32(3) of the Controlled Substances Act 1984 (SA).

2. Ms Georgeson was, at the same trial, acquitted of the first count which charged an earlier offence of trafficking in a controlled drug which was alleged to have occurred on 30 April 2014 when Ms Georgeson drove to Port Pirie and delivered another parcel containing methylamphetamine to Mr Ellis.  It is common ground that Ms Georgeson was acquitted on the first count because the jury entertained a reasonable doubt as to whether she knew the package she delivered contained the drug methylamphetamine. 

3. The appellant appeals on the grounds that the verdict on the second count is not supported by the evidence and that the verdict of guilty on the second count is inconsistent with her acquittal on the first.  The appellant was given permission to appeal on the latter ground, on the concession of the Director of Public Prosecutions that it was reasonably arguable, and the former ground was referred to this Court at the same time.  I observe that a complaint that verdicts are inconsistent is a sub-species of the ground that the verdict is unreasonable or not supported by the evidence.  It is best treated as a particularisation of that ground.  The only substantive argument put in the appellant’s written submission is that ‘objectively the evidence against the applicant in relation to count 1 was no less compelling and capable of supporting a verdict of guilty than the evidence on count 2’ and that the verdicts are therefore inconsistent.  I would dismiss the appeal because even though the prosecution case on both counts was strong, there was additional evidence supporting the guilty verdict on the second count.  My reasons follow.

   The prosecution evidence

4. The prosecution case was substantially the subject of agreed facts which I summarise below. 

5. It was agreed that Mr Lock and Mr Ellis operated a wholesale methylamphetamine distribution network supplying dealers in Whyalla with methylamphetamine which was sourced from one Van Bob Nguyen (Mr Nguyen) in Adelaide.  It was also an agreed fact that the Whyalla dealers would pay ‘a delivery fee’ which the criminal organisation charged for the transport of the drugs from Adelaide to Whyalla.  The fee was paid to the courier who transported the drugs.

6. On 26 February 2014 Mr Ellis flew from Whyalla, where he resided, to Adelaide.  He met Mr Lock at Mr Lock’s apartment on 28 February 2014 and returned to Whyalla on that day where he was arrested in possession of 94.7 grams of a substance containing methylamphetamine valued in the order of $30,000.

7. During parts of 2014 Ms Georgeson and Mr Lock were in a romantic relationship.  Ms Georgeson was the owner of a blue sedan motor vehicle and also had access to a Hyundai Excel.  On 20 March police stopped the blue sedan, which at the time was being driven by Mr Lock, and found in it a substance containing methylamphetamine, two mobile phones and $490 in cash.  Mr Lock was arrested but granted bail.

8. On the next day police searched Mr Lock’s apartment and located 54.6 grams of a substance containing methylamphetamine valued at between $27,300 and $54,600.  A substantial amount of cash was also found together with other items of interest such as multiple electronic devices, mag wheels and plastic resealable bags, numerous debt lists, weights for scales and 27 ‘ice’ pipes. 

9. On 22 April 2014 Mr Ellis travelled to Adelaide by car and returned to Whyalla on the same day.  On that day Mr Ellis had SMS text communications with Whyalla dealers informing them that he had methylamphetamine to supply to them.

10. On 30 April 2014 Mr Lock used Ms Georgeson’s mobile telephone to arrange to meet Mr Ellis at the Tin Man Roadhouse just outside Port Pirie.  At about 7.28 pm on that day Ms Georgeson met Mr Ellis outside the Tin Man Roadhouse.  On his return to Whyalla later that evening Mr Ellis sent SMS messages to his Whyalla drug dealers informing them that he had methylamphetamine to supply to them.

11. On 10 May 2014 Mr Ellis again sent telephone communications to his Whyalla drug dealers informing them that he had supplies of methylamphetamine.

12. On 15 May 2014 Mr Lock arranged to purchase more methylamphetamine from Mr Nguyen.  Mr Nguyen arrived at Mr Lock’s apartment in Adelaide at about 5.00 pm.  After Mr Nguyen left, Mr Ellis visited the apartment and then returned to Whyalla the next day, again communicating to his Whyalla drug dealers that he had methylamphetamine.

13. On the evening of 1 June 2014 Mr Ellis again communicated with his Whyalla drug dealers indicating that he had methylamphetamine to supply to them. 

14. Mr Lock again supplied methylamphetamine to Mr Ellis again on 11 June 2014.  On 12 June 2014 Mr Ellis’ car was intercepted on the Lincoln Highway as he drove towards Whyalla.  Methylamphetamine crystals weighing 54.1 grams and containing 34.6 grams of methylamphetamine were seized.  The crystals were valued at between $18,000 and $24,000 if sold in ounce quantities.

15. On 16 June 2014 Mr Nguyen was arrested in possession of methylamphetamine crystals weighing 83 grams, containing 56.5 grams of methylamphetamine and valued between $27,000 and $36,000.  On the same day Mr Lock’s apartment was again searched.  Methylamphetamine crystals weighing 31.3 grams and a white crystalline substance weighing 20.15 grams which contained methylamphetamine were seized.  The total amount of methylamphetamine in two substances was 34.94 grams.

16. Ms Georgeson gave evidence at her trial.  She admitted that she was a user of methylamphetamine in 2014.  She testified that she met Mr Ellis through Mr Lock and that she would go on drives to meet him to deliver things like car parts.  Ms Georgeson gave evidence that she would do a variety of chores for Mr Lock and that she was paid varying amounts for that work:

    A.I can't be sure because as I said, we used to do - I used to do all sorts of things for him. Quite often - there was a car place, I can't even remember what suburb it was, it takes about an hour to get there, and he had to get a new bumper for his car, and there's things like collecting paint, and I would help out with things like that. In regards to the money, I wasn't working at that time. $20 would be a massive help to me. If I would clean his apartment or if I would go shopping for him, he would give me $50 or $100 because I was too embarrassed to actually ask for help financially from him.

17. Ms Georgeson testified that she visited Mr Lock’s house almost daily and sometimes cleaned it.  Ms Georgeson admitted that she had often seen Mr Lock in possession of large quantities of drugs but testified that she believed the drugs were for his use and denied knowledge that he was a dealer.  Ms Georgeson testified that she believed that Mr Nguyen was merely a friend of Mr Lock’s.  Ms Georgeson admitted that she was informed of Mr Ellis’ arrest on 28 February 2014 but did not link that arrest to any drug trading by Mr Lock.

18. Ms Georgeson acknowledged that she was informed of Mr Lock’s arrest in her car on 20 March and that police seized methylamphetamine on that occasion and again on the next day when they searched his apartment.  She explained that even though they were both using amphetamines, she ‘wasn’t going around weighing everything’.  Ms Georgeson agreed that paraphernalia that might have been used for, or indicative of, drug trading was in plain view in Mr Lock’s apartment.

19. Ms Georgeson testified that she used resealable plastic bags found in her home to store her jewellery. 

20. Ms Georgeson testified that she believed that the parcel she delivered to Mr Ellis in Port Pirie on 30 April 2014 was a guitar pedal.  Ms Georgeson explained that Mr Lock and Mr Ellis shared an interest in guitars.  There was evidence that police saw guitars in Mr Lock’s apartment when it was searched.  Ms Georgeson denied that she received any money from Mr Ellis for the delivery of the guitar pedal. 

21. The prosecution also led evidence of intercepted mobile telephone audio and text communications.  The salient communications and Ms Georgeson’s explanations of some of them are summarised below. 

22. The meeting of 30 April 2014 at the Tin Man Roadhouse was preceded by communications between Ms Georgeson and Mr Ellis and between Mr Ellis and Mr Lock.

23. On 24 May 2014 Mr Lock sent Ms Georgeson a text message asking ‘How much was of what you counted last night’.  Ms Georgeson replied ‘71’.  In her evidence-in-chief Ms Georgeson said of that text that her guess was the ‘71’ was an abbreviation of 7,100.  In cross-examination she agreed that it appeared from the text that she had counted money for Mr Lock, adding that she sometimes counted his money because ‘I just really like counting’.

24. On 27 May 2014 the telephone intercepts record what appears to have been an argument between Ms Georgeson and Mr Lock over Ms Georgeson’s delay in delivering something promptly to Mr Lock.  At one point Mr Lock said that he would go to Ms Georgeson’s house ‘and get the whole lot and that’s it’.  In a later text on that day, Ms Georgeson responded ‘Fine I’ll bring you your stuff’.  In a subsequent text Mr Lock expressed alarm that Ms Georgeson proposed to leave ‘the stuff’, which, it transpired, was $25,000 in cash, in her unattended car.  Ms Georgeson explained that she had possession of that money because she was storing it for Mr Lock in an effort to keep it from his former wife.

    ABecause I had $25,000 - again, from what I was told, it was from when Jon was working away.  The reason I had it was that he was suspecting his ex - well, Trish, was stealing from him, and so if it was at my house, it meant that it was safe and she was unable to get to it.

25. On 31 May 2014 Mr Ellis and Mr Lock had a conversation from which it can be inferred that an arrangement was made for Mr Lock to deliver methylamphetamine to Mr Ellis.  At 12.23 pm on 1 June, Ms Georgeson telephoned Mr Lock and enquired ‘if you want me to drive or not’.  Mr Lock replied that he would do it himself.  Minutes later Mr Lock must have had a change of heart and sent a text asking if Ms Georgeson wanted to accompany him and suggested ‘Split in UN half’.  Ms Georgeson relied ‘Sure, why not’. Ms Georgeson testified that the text exchange was about splitting the driving in half and denied that the text referred to sharing the courier fee.  The verb ‘split’ is perhaps more suggestive of dividing a courier fee than sharing the driving.  At the very least the jury were entitled to take that view.

26. Ms Georgeson accepted in cross-examination that she accompanied Mr Lock to Port Pirie on 1 June 2014: 

    QYou accept now, don't you, that when you went for the drive together with Mr Lock on the occasion that is charged as count 2 - you're aware of the occasion that I'm talking about.

    ACount 2, yes.

    QAnd you accept now, don't you, that there were drugs in the car destined for Mr Ellis.

    ALooking at that evidence now, yes, I do.

    QAnd you accept, don't you, although your memory, you say, is very hazy, you would have gone halves in the driving on that second occasion.

    AIt's a long drive, so yes, I do.

    QYou probably drove there and he drove back or something like that.

    AProbably.

27. On 9 June 2014 Ms Georgeson sent a text to Mr Lock asking for ‘one favour’ that she ‘do the drive for you tomorrow’ because the ‘money would be a MASSIVE help to me right at the moment’.  In her testimony Ms Georgeson explained that text by referring to the arrangements by which Mr Lock would give her small amounts of money to do odd jobs for him.  When she did not receive a reply, Mr Georgeson persisted by sending another text pleading that it would help her greatly.

    Inconsistent verdicts

28. The considerations which inform the determination of a complaint that a jury verdict of guilty is inconsistent with an acquittal returned in the same trial were recently considered by this Court in R v Eccles-Smith.[2]  They include:

    ·The test is one of logic and reasonableness;

    ·Verdicts are inconsistent when they are ‘an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty’;

    ·The significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case and in the context of the common law criminal trial in which juries are the constitutional tribunal of fact;

    ·A verdict of guilty returned by a jury will rarely be set aside on the ground of inconsistency alone where the evidence in support of the different counts is substantially different;

    ·A verdict of not guilty does not necessarily imply that a complainant has been disbelieved (or that an accused who has given evidence has been believed) but may simply reflect a cautious approach to the discharge of the criminal onus; and

    ·The different verdicts may be explicable by the commonly given direction that the jury give separate consideration to each count which is often accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part;

    ·In a criminal trial the emphasis is invariably placed upon the onus of proof borne by the prosecution;

    ·The proposition that a verdict of guilty is inconsistent with a verdict of not guilty must, if sound, also hold true for the converse such that it must be equally irrational for the jury to have acquitted on one count having found the other proved beyond reasonable doubt. 

    [2] [2016] SASCFC 84 at [13]-[26] per Kourakis CJ and Blue J.

    Application to this case

29. The evidence common to both counts from which the jury could properly have inferred that Ms Georgeson knew that the packages delivered to Mr Ellis in Port Pirie contained methylamphetamine included:

    ·her close personal relationship with Mr Lock, who, it was agreed, was engaged in a substantial methylamphetamine distribution network;

    ·her knowledge of Mr Ellis’ arrest and that Mr Lock was found with a substantial quantity of methylamphetamine when driving her car on 20 March 2014;

    ·the presence of substantial quantities of methylamphetamine, cash and drug selling paraphernalia in Mr Lock’s apartment in March 2014;

    ·her knowledge of methylamphetamine distribution by reason of her own drug habit which had persisted from before her relationship with Mr Lock commenced, and 

    ·the arrangements made for deliveries to Mr Ellis which involved roadside meetings at relatively isolated locations which were more consistent with illicit than legitimate activity.

30. The jury’s verdict of not guilty on the first count shows that they were not prepared to draw an inference of knowledge beyond reasonable doubt on that first count having regard to Ms Georgeson’s testimonial denials.  Plainly the circumstantial evidence did not satisfy them beyond reasonable doubt about her state of knowledge on that count.  However the acquittal on the first count does not necessarily imply that the jury believed Ms Georgeson’s story that she thought she was delivering a guitar pedal. 

31. Be that as it may, there was additional evidence from which it could be inferred that by the time Ms Georgeson accompanied Mr Lock to Port Pirie on 1 June 2014 she well knew that they were delivering methylamphetamine to Mr Ellis.  That evidence included:

    ·the text message on 24 May 2014 referring to the counting of $7,100 of Mr Lock’s money by Ms Georgeson;

    ·the admitted safekeeping by Ms Georgeson of $25,000 in cash for Mr Lock on or about 27 May 2014;

    ·the messages making the arrangements for Ms Georgeson to accompany Mr Lock on the delivery on 1 June 2014, and

    ·the text message of 9 June 2014 asking that she be entrusted to ‘do the drive for you tomorrow’ together with the agreed fact that Mr Ellis received an assignment of methylamphetamine on 11 June 2014.

32. Even though the texts of 9 June 2014 were sent after delivery on the second count, the jury could properly infer that the knowledge they manifest was gained by no later than 1 June 2014.  I acknowledge that Ms Georgeson proffered testimonial explanations for the text exchanges but the jury rejected them.  The terms of the text exchanges suggest a need for money which exceeds small amounts which might be paid for lawful chores.

33. Importantly, in contrast to her evidence on the delivery of 30 April 2014, Ms Georgeson proffered no innocent explanation for the trip to meet Mr Ellis on 1 June 2014 to counter the inference that the purpose was to deliver methylamphetamine.  I observe here that accompanying Mr Lock with an offer to share the driving, knowing that purpose, is material assistance to him and satisfies the element of taking part in the sale of a drug for the purposes of the Controlled Substances Act 1984 (SA).

1. The additional evidence as a whole contributed substantially to the prosecution case.  It rationally explains why the jury declined to give Ms Georgeson the benefit of the doubt on the second count, which she was, perhaps, fortunate to receive on the first count.    

2. The verdict of guilty on the second count is not inconsistent with the acquittal on the first count.  Nor is it unsupported by the evidence.  The evidence leaves no reason to doubt the conclusion of the jury.

   Conclusion

3. I would dismiss the appeal. 

4. VANSTONE J:     I agree.

5. NICHOLSON J:   I would dismiss the appeal for the reasons given by the Chief Justice.