R v Gerace - [2016] SADC 24

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GERACE
Criminal Trial by Judge Alone
[2016] SADC 24
Reasons for the Verdict of Her Honour Judge S David
18 March 2016
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
Accused charged with two counts of trafficking of methylamphetamine. The methylamphetamine was located in a hotel room booked by the accused in his name. The prosecution case was that the accused was in exclusive possession of the drugs - possession by the accused not proved beyond reasonable doubt.
Held - Not Guilty on both counts 1 and 2.
Controlled Substances Act 1984 s32(3); R v Franco (2003) 139 A Crim R 228; R v Nguyen (2010) SASCFC 23; R v GNN (2000) SASC 477, (2000) 78 SASR 293, referred to.

R v GERACE
[2016] SADC 24
Introduction

William Salvatore Jozef Gerace (‘the accused’) is charged on Information dated the 11^th August 2014 with two counts of trafficking in a controlled drug contrary to Section 32(3) of the Controlled Substances Act, 1984 (SA) (‘the Act’). It is alleged the accused committed the offences between 29 January 2014 and 1^st February 2014.
The Information reads as follows:
William Salvatore Jozef Gerace is charged with the following offences:
First Count
Statement of Offence
Trafficking in a Controlled Drug. (Section 32(3) of the Controlled Substances Act, 1984.)
Particulars of Offence
William Salvatore Jozef Gerace between the 29^th day of January 2014 and the 1^st day of February 2014 at Adelaide, trafficked in a controlled drug, namely methylamphetamine.
Second Count
Statement of Offence
Trafficking in a Controlled Drug. (Ibid)
Particulars of Offence
William Salvatore Jozef Gerace between the 29^th day of January 2014 and the 1^st day of February 2014 at Adelaide, trafficked in a controlled drug, namely methylamphetamine.
The accused pleaded not guilty to both counts. At his election, I heard the trial without a jury.
Factual overview
On 31 January 2014, at about 12pm the duty manager at the Crowne Plaza Hotel conducted a check of room 622, as the registered occupant had failed to check out by the time required by the hotel. The registered occupant of the hotel was the accused. The room was registered for 3 adults.
Inside a safe in the room, the duty manager located a plastic bag which contained a crystalline substance, digital scales, and a white latex glove. The crystalline substance weighed 278g and contained 208g of methylamphetamine, and is the subject of count 1 on the Information.
Also on the desk in the room was a small round Tupperware container inside which was a crystalline substance which weighed 1.21g and contained .49g of methylamphetamine, and is the subject of count 2 on the Information.
Inside a desk drawer in the room, there were latex gloves, a packet of press seal bags, an ice pipe, gas lighter and plastic straws. There was also a laptop bag which contained a latex glove, a straw and an expiation notice in the accused’s name.
The accused checked into the hotel on 31 January 2014 at about 4.15 am accompanied by two other males, one a person by the name of Mr James DeFrancesco. The three males remained at the hotel for about 2 hours and left the hotel together at about 6.15 am.
During the afternoon of 31 January 2014, after the duty manager had inspected room 622 and located the crystalline substances, the general manager contacted the police who attended at the hotel. At about 6.30pm that evening, the accused returned to the hotel with a Mr Manalopoulos, who may have been the third male at the hotel when the accused booked the room. The police searched the accused and seized from his person .4g methylamphetamine, a pipe, plastic bags and $93. Mr Manolopoulos had $1690 on his person and his black BMW was in valet parking.
Pre-trial applications
A rule 49(1) application was brought on behalf of the accused seeking the following orders or directions:
1.   That items located by police during a search of the defendant’s home be excluded from the evidence to be led at trial.
2.   That the evidence of the contents of the laptop case located within the hotel room be excluded from the evidence to be led at trial.
3.   That the search of the defendant’s person was unlawful and the items located during that search be excluded from the evidence to be led at trial in the exercise of the judicial discretion.
4.   That evidence of the defendant’s interview with police be excluded from the evidence to be led at trial.
The Crown conceded paragraphs 1 and 4. Defence counsel argued that the evidence of the contents of the laptop was more prejudicial than probative, and the search of the accused’s person unlawful. During the trial I received the evidence de bene esse.
At the conclusion of the crown case I made the following rulings:
1. I admit the evidence of the contents of the laptop as in my view the probative value of the evidence substantially outweighs any prejudicial effect it may have.
2. I find the search of the accused was lawful. Further, in my view, the probative value of the items seized during the search outweigh any prejudicial effect. I admit the evidence.
I indicated that I would provide reasons for my rulings at the time of the verdict. As it happens, it will not be necessary for me to do so.
The Prosecution Case
The Prosecution case is that the accused was in exclusive possession of the methylamphetamine located in room 622 to the exclusion of all others, including Mr De Francesco and the other male (be it Mr Manolopoulos or another person) with whom he initially entered the hotel.
During the course of the evidence the prosecutor indicated the Crown case was not based on a joint enterprise or joint possession of the drug by the accused and the two other males.[1] However at the close of the evidence, the prosecutor indicated that while it was the Crown case that the accused was in exclusive possession of the methylamphetamine, if I found the accused was in joint possession of the drugs, with one or both of the other males, it was open for me to convict.[2]
[1] T 177-178
[2] T 210-211
The prosecutor indicated that the Crown needed to exclude the exclusive possession of the drugs by Mr De Francesco or Mr Manolopoulos or any other male.[3] While that is undoubtedly true, it is a different proposition (the exclusion of sole possession of the drugs by another) from the prosecutor’s earlier indication that the case against the accused was one of exclusive possession, that is, exclusive possession of the drugs by the accused, not a case of joint possession with Mr DeFrancesco and the other male with whom he entered the hotel.
[3] T 212-216
The accused, through his counsel Ms Shaw QC, indicated that the defence had been conducted to meet a Crown allegation that the accused was in exclusive possession of the drugs, not joint possession. Mrs Shaw QC made clear during the course of argument at the close of the Crown case[4], and again at the close of the evidence[5], that she understood the prosecution alleged exclusive possession by her client of the drugs. Mrs Shaw QC indicated she had made forensic decisions based on a case against her client of exclusive possession.
[4] T 177-178;
[5] T 216-219
As the prosecution has presented its case on the basis that the accused alone was the person in possession of the drugs, I am precluded from considering whether the accused was in joint possession of the drugs with one or other of the two men present with him at the hotel when he booked the room and with whom he left the hotel.
In R v Franco (2003) 139 A Crim R 228, Duggan J (with whom Debelle and Lander JJ agreed) dealt with the complaint by a convicted person that the trial judge had directed the jury on an alternative path by which a conviction could be found on a basis not relied upon by the prosecution and without warning to the parties. The conviction was overturned as it resulted in unfairness to the defendant at trial such that it was a possible cause of a miscarriage of justice. While that case involved a trial by jury, the law remains the same. A fair trial may be compromised where to proceed to a conviction on a basis other than that relied upon by the prosecution, results in the defendant being placed at a disadvantage.
Given the way in which the prosecution has presented its case, I take the view that I will only convict the accused if I am satisfied of his guilt on the basis he was in exclusive possession of the drugs to the exclusion of all others, including Mr De Francesco and the other male who he was with at the hotel, be it Mr Manalopoulos or anyone else.
Defence case
The defence case is that the prosecution has not proved beyond reasonable doubt that the accused was in exclusive possession of the methylamphetamine. Further the defence contend that the prosecution has not excluded as a reasonable possibility that either Mr De Francesco or Mr Manalopoulos were in sole possession of the drugs and the accused had booked the room at the hotel to use drugs sold or provided to him by one or other of those men.
Elements of the offence of trafficking in a controlled drug
The offence of trafficking in a controlled drug contains three elements each of which must be proved by the prosecution beyond reasonable doubt. There is a qualification to this as far as the second element is concerned.
First, it must be proved that the substance that the accused had in his possession or dealt with was a ‘controlled drug’. In this case there is no contest and the evidence clearly established that the substances found by police the subject of the charges contained methylamphetamine, a substance declared to be a ‘controlled drug’ by regulations made pursuant to the Act.[6]
[6] Certificate of analysis P18
Second, it must be proved that the accused trafficked in some or all of the substances containing methylamphetamine that were found. Section 4 (1) of the Act contains the definition of “to traffic”.
“Traffic” in a controlled drug means –
(a) sell the drug; or
(b) have possession of the drug intending to sell it; or
(c) take part in the process of the sale of the drug.
In this case, the Crown asserted that the accused had possession of the methylamphetamine in question intending to sell all or some of it. There is no evidence and the Crown did not contend that the accused had in fact sold any of the drug or had taken part in the process of sale of any of the drug.
There are two parts to this element of trafficking. First, that the accused was in possession of the methylamphetamine the subject of the charges, and second, if so he had an intention to sell the drug or any of it.
In this case, in respect of count 1, given the quantity of the drug located (208.49g of methylamphetamine)[7], if the accused was found to have been in possession of the drug, he would be deemed by operation of the law to have had possession with an intention to sell unless he was able to establish on the balance of probabilities that he had no such intention. Given the absence of any evidence put on behalf of the defence on this issue, if I were satisfied beyond reasonable doubt that the accused was in possession of any of the methylamphetamine, the accused would have been deemed by operation of law to have had an intention for sale.
[7] Certificate of analysis P18
In respect of count 2, the presumption does not apply as the amount of methylamphetamine (.49g) is less than a trafficable quantity.[8] The prosecution relied on the presence of the larger amount of the drug in close proximity to the methylamphetamine the subject of count 2, and alleged all or some was intended for sale.
[8] Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014, schedule 1 provides a trafficable quantity of methylamphetamine is 2 g
The third element to be proved by the Crown is that the accused knew that the substance concerned was methylamphetamine or at least a controlled substance. Again, this element was not the subject of contest.
Ultimately, the only issue for the Court was whether or not the accused was in possession of the methylamphetamine the subject of the charges. If found to be in possession, a guilty verdict would follow.
Prosecution evidence
On 31^st January 2014 at 4.20am, the accused booked into and paid for room 622 at the Crowne Plaza Hotel at Hindmarsh Square.[9] The accused produced a proof of age card for identification.[10] The room was registered for three adults.[11]
[9] P4A
[10] P5, T 32
[11] P4A
The prosecutor tendered CCTV footage[12] (and an aide memoir) from the Crowne Plaza Hotel which showed the following images taken on 31 January 2014:
[12] P1
4.14:23 am        the accused at the check in alone
4.14:51am         the accused leaves and heads to the concierge
4.22:43amthe accused with an unknown man and a man later identified as a Mr De Francesco entering the hotel
4.22:46am         the accused returns to the check in
4.24:21amthe accused, an unknown man and Mr DeFrancesco on level 6 lobby in the vicinity of room 622
4.24:22amthe accused carrying a laptop bag and Mr De Francesco carrying a bag on level 6 lobby in the vicinity of room 622
4.24:25am Mr De Francesco looking into his bag on level 6 lobby
As set out above, the accused and Mr De Francesco carried a laptop bag into the hotel to the sixth floor.
The CCTV footage next showed the accused, an unknown male and Mr Defrancesco leaving the Hotel. It depicted as follows:
6.13:48am Mr De Francesco with bag in hand and an item on his shoulder in the level 6 lobby
6.14:37am the accused, unknown male and Mr De Francesco (with bag in hand and an item on his shoulder) walk past the check in towards the Hotel exit.
The hotel room was booked for one night and check out was scheduled for 11.00 am on the morning of 31 January 2014. The occupants did not check out. After the recorded check out time passes, a late checkout report is completed manually.[13]
[13] Bulfield, T 19
Mr James Bulfield was the duty manager on the morning of the 31^st January 2014. After he became aware that the occupants of room 622 had not checked out, he attended at the room.
The DPP tendered a “Lock Link” report[14] which showed all entry into room 622 on the 31^st January 2014. By reference to that document, Mr Bulfield indicated that he first entered room 622 at 12.02 pm on the 31^st January 2014.[15] Mr Bulfield said that he did not turn on any lights. The room was dark. He noticed there was a black laptop bag and what appeared to be a yellow canister of some sort under the room desk.[16]
[14] P2
[15] P2, point 8.
[16] Bulfield T 19
Mr Bulfield said he then left the room and tried to telephone the registered occupant of the room (the accused) but was unable to do so. He said he believed that the accused called the hotel at a later time.[17]
[17] Bulfield T 20
Mr Bulfield gave evidence that he next returned to the room at 1.18 pm[18] at which time he again saw the yellow canister under the room desk. He also inspected the safe which was partially open. He saw a zip lock bag, latex gloves and a set of small digital scales.[19] He moved those items from the safe to the desk and contacted the general manager of the hotel.[20] He and the general manager then called the police.[21] At 1.40 pm the key card which allowed access to room 622 was over ridden so that access could no longer be gained to the room using that key.[22]
[18] T P2, point 6
[19] Bulfield, 20-21
[20] Bulfield, T 21
[21] Bulfield, T 21
[22] P2, point 5, Bulfield, T 24
Shortly after 2.00 pm, police attended at the hotel. By reference to the “Lock Link” report, Mr Bulfield gave evidence that police were first let into room 622 at 2.22 pm.[23]
[23] P2, point 1 Bulfield, T 25
Senior Constable Jahna Perry and Constable Michael Hardy were the first police in attendance. They saw a clear plastic bag on the desk containing a white crystallized substance and a small décor container inside of which was a small amount of white crystalline substance.[24] There was also a yellow canister which was labelled a benzymatic oxy lighter on the desk.[25] The lighter was tendered as an exhibit.[26]
[24] Perry, 48
[25] Perry, T 47-48
[26] P11
Detective Sergeant Thompson and Senior Constable Butcher were the next police to attend at the Crowne Plaza Hotel. They were shown to room 622 by Mr Bulfield. Mr Bulfield identified to the police officers those items he had moved from the safe and placed onto the study desk. The plastic resealable bag which contained a white crystalline substance was folded over with rubber bands around it and 2 pieces of paper attached to the bag. The rubber bands were tendered as an exhibit.[27] The 2 pieces of paper wrapped around the resealable bag were also tendered.[28] The 2 pieces of paper had 10 numerical figures on them said to be consistent with 10 weights. There was a final figure of 279.47 written on one of the papers which was the sum total of the 10 figures and close to the weight of the substance contained within the large press seal bag, the subject of count 1 (279.21g).
[27] P8A
[28] P8
The police officers Thompson and Butcher also located a small plastic tub which contained white crystalline substance on top of the desk. Detective Thompson was informed it had not been moved from anywhere and was in that position when Mr Bulfield first entered the room.[29]
[29] Thompson T 63
Detective Thompson gave evidence that inside the study desk drawer were the following items, all of which were tendered at trial: a latex glove[30] which contained 10 plastic bags and another latex glove[31], an ice pipe[32], a packet of multix resealable bags[33], a red straw[34] and a smaller benzymatic oxy lighter[35].
[30] P14
[31] P15 (latex glove and 10 plastic bags tendered as one exhibit)
[32] P12
[33] P13
[34] P10
[35] P9
Detective Thompson observed that the smoke alarm in the room had been covered with plastic bags and rubber bands.
Detective Thompson organised for three drink containers located in the room and the large yellow benzymatic oxy lighter to be dusted for fingerprints.[36] Detective Thompson also organised for photographs to be taken of the room. A selection of the photographs taken by the crime scene examiner Ms Cross was tendered.[37]
[36] Thompson, T55
[37] P3
At about 4.00 pm on 31 January 2014, Senior Constable Zauch, Detective Detective Sergeant Jones and Sergeant Kilpatrick attended at the Crowne Plaza Hotel and went to room 622.
Senior Constable Zauch was in charge of the investigation of the accused.
Senior Constable Zauch inspected room 622 and seized a laptop bag from the room. The bag and its contents were tendered into evidence.[38] Inside the laptop bag, police located the following items[39]: in the front section was a lighter, some stationary and texta pens, a bottle of cologne, one latex glove and a mint; in the main section was a blank envelope with no content and an expiation notice[40] addressed to the accused dated 29 November 2013; and in the rear section of the bag was half a red straw with a hole in it.
[38] P 27
[39] Zauch T 129-130
[40] Expiation notice tendered separately as P26
Senior Constable Zauch organised for all of the items located in room 622 to be transferred to police exhibit property, and ultimately the Forensic Science Centre. He and the other police officers then left the Hotel.
Later that evening, Senior Constable Zauch was notified that the accused had returned to the hotel. He re-attended at the Crown Plaza Hotel at 6.32 pm with Detective Sergeant Jones. Detective Sergeant Kilpatrick returned to the Hotel separately. Upon arrival at the Hotel, they saw the accused and another male. [41] There was no Hotel CCTV footage available of the accused or the other male at this time.
[41] Zauch T 120

Senior Constable Zauch gave evidence he approached the accused. He directed him to an area behind a glass partition in the lobby. He instructed the accused to empty his pockets, which he did.[42] Senior Constable Zauch seized the following items from the accused’s person, each of which was tendered into evidence (with the exception of the methylamphetamine):
·a proof of age card[43]
·a cloth sunglasses case containing a glass pipe and lighter[44]
·rubber bands[45]
·a plastic bag containing a white substance
·2 pieces of paper each with a number written on it[46]
[42] Zauch, T 120-121
[43] P5A
[44] P21
[45] P23
[46] P20
Senior Constable Zauch could not be any more specific as to where the rubber bands, plastic bag containing a white substance and 2 pieces of paper were located except to say they were found on the accused’s person.[47]
[47] Zauch, T 125-126
The plastic bag containing a white substance was later sent to the Forensic Science Centre and found to contain .4 grams of methylamphetamine.[48]
[48] Certificate of analysis P18
Detective Kilpatrick spoke with the male who had arrived with the accused.[49] This person identified himself as a Mr James Manalopoulos. Detective Kilpatrick said he spoke with him in the foyer area on the sixth floor.[50] A black BMW parked in the valet area of the hotel was registered to Mr Manalopoulos.[51] Detective Kilpatrick searched the car. Detective Kilpatrick said he found personal effects including a change of clothes and $1690 cash in a Country Road bag in the car. The money was not seized.[52]
[49] Kilpatrick, T 71
[50] Kilpatrick, T 72
[51] Kilpatrick, T 72
[52] Kilpatrick, T 72
In cross-examination, Detective Kilpatrick said the $1690 cash was located in the accused’s pocket, not in the car.[53] Detective Kilpatrick did not locate a room key card on his person.[54] Detective Kilpatrick also asked Mr Manalopoulos where he was going. Mr Manalopoulos said that ‘he would rather not say where he was going to’.[55]
[53] Kilpatrick, T 76
[54] Kilpatrick, T 77
[55] Kilpatrick, T 78
The police did not investigate or make any enquiries as to whether Mr Manalopoulos was one of the three males depicted on the CCTV footage entering the hotel with the accused and Mr De Francesco.[56] The home of Mr Manalopoulos was not searched. Mr Manalopoulos was never charged with this offence.
[56] Kilpatrick, T 80
On 1^st February 2014, Detective Jones and Senior Constable Zauch searched the home address of Mr De Francesco because he was identified from the CCTV footage as having arrived at the hotel with the accused on 31^st January 2014.[57]
[57] Zauch, T127
The police first attended at an address at 8 Old Coach Lane, Glen Osmond. However, Mr De Francesco was not at that address. The police then attended at 45 Cross Road, Kingswood. Mr De Francesco was there and the police searched the residence. The police did not seize any items except clothing that was said to have been worn by Mr De Francesco in the early hours in the morning of 31^st January 2014 when he attended at the Crowne Plaza Hotel.[58] Those items of clothing were tendered.[59]
[58] Zauch, T128
[59] P25
Mr DeFrancesco was jointly charged with the accused with both offences, however those charges were not proceeded with by the DPP.
Forensic Science Centre results
The following items were sent to the Forensic Science Centre where they were analysed with the following results.[60]
·The crystalline powder in the zip lock bag (located in the safe of room 622) weighed 278 grams and contained 208 grams of methylamphetamine.
·The crystalline powder in a décor plastic container (located on the desk in room 622) weighed 1.21 grams and contained .49 grams of methylamphetamine.
·The crystalline powder (found on the accused’s person) weighed .4 grams and contained methylamphetamine.
·The latex gloves P14 and P15 (located inside the desk drawer in room 622) both had no controlled substance detected on them.
·The latex glove (located within the safe) also had no controlled substance detected on it.[61]
[60] Certificate of analysis P18
[61] This latex glove was not tendered but shown in photographs P3 at photo 12
Finger prints
The larger benzymatic oxy lighter (P11) found underneath the desk in room 622 was the subject of fingerprint analysis. Nine sets of impressions were obtained from the lighter, labelled and forwarded for analysis to a fingerprint investigator, Ms Donna Ratley. Ms Ratley conducted a comparison between those impressions with fingerprint impressions taken from the accused.[62] The results were as follows: the impression ending in the numbers 287 was identical with the left little finger of the accused, impression 306 was identical with the left palm of the accused, impression 338 was identical with the left palm of the accused, impression 351 was identical with the left little finger of the accused and impression 360 was identical with the left ring finger of the accused.[63]
[62] Ratley, T 91
[63] Ratley, T 92-93
There were three impressions taken from the exhibit P11 which contained insufficient detail for identification.[64]
[64] Ratley, T 93
Mr Ratley said that she was only given the finger print card of the accused, and did not receive the finger print impressions of any other person including Mr De Francesco or Mr Manalopoulos.[65]
[65] Ratley, T 93
DNA
The police forwarded several exhibits to the Forensic Science Centre for DNA analysis. There was insufficient DNA material for profiling on the following items[66]:
1.   The latex glove located in the safe.
2.   The latex glove seized from the desk drawer[67] (inside which was another latex glove and ten plastic bags).
3.   The décor plastic tub containing methylamphetamine (located on the desk in room 622).
4.   The press-seal plastic bag containing methylamphetamine (located in the safe).
[66] Chart of DNA results prepared by Ms Windram tendered as P19
[67] P 14
The latex glove[68] contained within another latex glove and located in the drawer was also submitted for DNA analysis. A swab was taken from the ‘inner surface’ of that glove. When the glove was presented to the evidence recovery section, it was inside out so a swab was taken from the outside surface as received, which was the inner surface as manufactured.[69] Senior Constable Thompson also gave evidence that the latex glove (P15) was provided to the evidence recovery section in the condition it was seized. She did not turn it inside out.[70]
[68] P 15
[69] Windram, T 106
[70] Thompson, T 148-149
A mixed DNA profile of two contributors was extracted from the swab. The major contributor was compared with the DNA profile of the accused. Two alternative scenarios were considered. The first was not the accused and an unknown unrelated individual was the source of the DNA. The second was that two unknown unrelated individuals are the source of the DNA.
Ms Windram gave evidence that the DNA profile obtained is greater than 100 billion times more likely to have been obtained if the accused and an unknown unrelated individual are the sources of the DNA rather than two unknown unrelated individuals.[71]
[71] Windram, T 99
Ms Windram was also provided with a DNA reference sample of Mr James De Francesco. She was able to conduct a comparison between Mr De Francesco’s DNA profile and the profile obtained from the latex glove (P15). Ms Windram considered two alternative scenarios, namely that Mr De Francesco and an unknown unrelated individual are the source of the DNA and second, that two unknown unrelated individuals are the source of the DNA. She gave evidence that the propositions are equally likely.[72]
[72] Windram, T 99
Ms Windram gave evidence that in respect of the minor contributor there is only one region or loci at which she can say Mr DeFrancesco does have a minor contributor allele.[73] Ms Windram gave evidence there is a decreasing amount in the minor contributor’s profile, which results in a decrease in the ability of the result to inform the likelihood ratio and provide support for one scenario compared to the other. The information was minimal.[74]
[73] Windram, T 101
[74] Windram, T 99
Ms Windram said in cross-examination that she could not exclude Mr De Francesco as a minor contributor to the DNA profile.[75]
[75] Windram, T 105
Ms Windram agreed in cross-examination that she could not comment on how DNA was deposited on an item, nor could she say whether there was a direct deposit of DNA or transfer by an intermediate.[76] She agreed with the proposition that if a first person shook hands with a second person, and the second person made contact with an item, the first person’s DNA might be on that item even though the first person had not touched it.[77]
[76] Windram, T 106
[77] Windram, T 104
Standard Directions
I deal now with the standard directions which I give myself.
The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The burden of proving each of the two charges lies wholly upon the prosecution. The accused is not obliged to prove anything.
Nothing short of proof beyond reasonable doubt will do. It is insufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. Before I could convict the accused of either count, I must be satisfied that the prosecution has proved beyond reasonable doubt each of the elements of that count.
The accused elected not to give evidence as was his right. I have not drawn any adverse inference to him on account of his exercise of that right. Nor have I speculated on the many reasons why he may have chosen not to give evidence.
Exclusive possession
The central issue for me is whether the Crown has proved beyond reasonable doubt that the accused was in exclusive possession of the methylamphetamine, the subject of the charges. That is, whether the accused was in possession of the methylamphetamine to the exclusion of all others.
Whether or not someone is in possession of something is a matter of inference to be drawn from all of the circumstances. I will need to be satisfied not just that it is an inference available on the facts but it is the only rational inference available, such that there is no other reasonable possibility consistent with innocence available on the evidence.
Section 4 of the Act contains a definition of the term ‘possession’. However, the definition is of the inclusive type and I adopt the words of White J in R v Nguyen[78].
“It is not clear what purpose is served by the definition as it does not seem to add to, nor confine, the concept as developed by common law.”
[78] [2010] SASCFC 23 at [95]
I also adopt the statement of principal set out by His Honour in that case:
“the basic concepts of possession are not in doubt. Persons have possession of an item if they have physical custody or control of the items or of the place in which it is located, knowledge that the item is in their custody or control, and an intention to control the item.”
In R v GNN[79], Doyle CJ (as he then was) said:
First, it was important to explain to the jury that, in the circumstances, knowledge of the presence of the heroin was not enough. For example, satisfaction on the jury’s part that Ms GNN knew that one of the men had concealed the heroin in the house was not sufficient to establish that she was in possession of the heroin. Another matter which called for particular attention was to explain to the jury that before finding Ms GNN guilty they had to be satisfied that the heroin was not in the exclusive possession of one of the men who was at the house that night. Thirdly, it was necessary to emphasise the requirement to prove the physical control over the heroin and an intention to exercise control over it.
[79] [2000] SACS 447; (2000) 78 SASR 293 at [20]
In this case, it was not enough for the Crown to establish that the accused had knowledge of the presence of the methylamphetamine in the hotel room and that he was able to gain access to the drug for his own personal use. The Crown was also required to prove that the accused had the right to, and intention to control the methylamphetamine and the use or uses to which it might be put to the exclusion of all other persons, including the two other males with whom he entered the hotel and left the hotel.
A person’s control includes the power or ability to dispose of the methylamphetamine without reference to any other person.
Even if I was satisfied that the accused knew of the methylamphetamine in the room, and had from time to time handled the methylamphetamine, or, used some of the methylamphetamine, those facts were not of themselves sufficient to demonstrate that he had a right to control and an intention to control the methylamphetamine to the exclusion of all others, particularly the two males who initially attended and stayed at the hotel with him.
Prosecution submissions
The Crown argue that the accused’s exclusive possession of the drugs the subject of the charges was proved by the following pieces of circumstantial evidence:
First, the accused booked the room in which the drugs were located. The Crown relied on the CCTV footage which depicted the accused as the person who approached the desk to book that room. The room is booked in the accused’s name. The accused is also depicted as ‘leading’ the other men to the lift. The Crown asked me to infer that he being in the lead shows that he was in control of the drugs ultimately located in the room.
Second, the accused was in possession of a laptop bag in which the Crown asked me to infer that he had carried the drugs into the room. They make that submission notwithstanding that Mr De Francesco also carried a bag up to level 6 of the hotel. However, they say that Mr De Francesco left the hotel with the bag, while the accused’s laptop bag remained in the room with the drugs. From this fact the Crown asked me to infer that the drugs were brought to the room by the accused in his laptop bag.
Third, the prosecution relied on the fact there was evidence of drug use in the room, in particular, the plastic which covered the smoke detector, the red straws and the ice pipe. Further, they submitted it can be inferred that the accused smoked methylamphetamine in room 622 from the fact that the accused’s fingerprints were found on the benzymatic oxy lighter (P11), along with the items located on his person. On the Crown case, the accused’s interest in methylamphetamine made it more likely he was in possession of the methylamphetamine the subject of the charges.
Fourth, the accused’s DNA could not be excluded from the latex glove (P15) which was found inside another latex glove, along with ten plastic bags. There is also another similar looking latex glove found in the laptop bag associated with the accused. From these two pieces of evidence, the Crown submitted that I can infer that the accused handled the methylamphetamine the subject of the charges. They argue this evidence supported the Crown case that the accused went into the room with the drugs in his laptop bag, put on gloves, emptied all of the ten plastic bags of drugs, put them in one resealable bag and then disposed of one of the gloves he used and bags inside another latex glove.
The Crown also relied on the note paper which was found attached to the methylamphetamine located in the plastic bag, the subject of count one. The amounts written on that piece of paper equal almost the exact amount of 280 grams. The statement of Mr Murphy[80] which was tendered by agreement provided that methylamphetamine is often sold in ounce lots. Ten lots of one ounce is 280 grams, which is almost the precise amount of substance which contained methylamphetamaine and which was located in the plastic resealable the subject of count 1.
[80] P 17
Fifth, the Crown relied on the fact the accused returned to the hotel. From this they asked me to infer he returned to the hotel room, booked in his name, to retrieve the drugs which on the prosecution case were in his exclusive possession. The accused returned with Mr Manalopoulos. The Crown submitted there is no evidence that Mr Manalopoulos was one of the two men with whom the accused originally entered the hotel. The prosecution submitted that I can infer from the fact the accused returned without Mr De Francesco, that it was the accused who was in exclusive possession of the drugs and he returned to take control of what was a valuable commodity.
The value of the 280 grams of methylamphetamine (the subject of count 1), if sold as an ounce, was between $80,000 and $130,000.[81] The methylamphetamine was worth considerably more if sold at smaller amounts such as ‘points’ consisting of .1gram.[82]
[81] Statement of Murphy dated 23/7/14 at p 5
[82] Statement of Murphy dated 23/7/14 at p 5
Sixth, the Crown relied on the fact the accused returned to the hotel in possession of methylamphetamine. He also had rubber bands on his person. Rubber bands were used to wrap the resealable bag which contained the drugs the subject of count one. Also on his person was a piece of paper with numbers, which on the Crown case were consistent with monetary calculations. The Crown contended that the items located on the accused’s person were consistent with someone dealing methylamphetamine, and having had a sample of the drug for potential buyers.
Finally, the Crown contended that I can exclude Mr Manalopoulos and Mr De Francesco either together, or, each of them separately as being in possession of the drug to the exclusion of the accused. In respect of Mr De Francesco the Crown relied on the fact he did not return to the hotel. In respect of Mr Manaloupolos they argued that there was no evidence he was one of the original three men at the hotel, and there was no evidence that the $1690 found on his person was from the sale of drugs.
The Crown contend that the entirety of the evidence, when looked at as a whole, proved the accused was in exclusive possession of the drugs the subject of the charges, and excluded any hypothesis consistent with innocence. They contended that the accused’s possession was for a commercial purpose. To that end they relied on the presumption and the significant amount and value of the drugs.
Defence submissions
The Defence case was that the Crown had not proved that the accused was in sole or exclusive possession of the drug, to the exclusion of Mr De Francesco and Mr Manalopoulos. The defence further submitted that the evidence has not excluded that either Mr De Francesco or Mr Manalopoulos was in exclusive possession of the drugs. They relied on the following matters.
First, the accused was in the hotel and by inference in room 622 for 2 hours with Mr De Francesco and another male who could be Mr Manalopoulos. The police have not properly investigated Mr Manalopoulos who was clearly a person who should have been the subject of further inquiries. It is argued that the failure to investigate Mr Manolopoulos cannot now be used against the accused to suggest that there was insufficient evidence to show that Mr Manalopoulos was in possession of the drugs.
The defence pointed to the fact that the accused arrived with two males and the police have not excluded that one of those males was Mr Manalopoulos. The accused returned with Mr Manalopoulos at a time when Mr Manalopoulos had $1690 on his person.
Second, whilst the hotel room was booked by the accused, it was registered for three guests. The CCTV footage shows both the accused and Mr De Francesco had a bag in which the drugs could have been secreted and brought to the room. Further, the drugs were of a size whereby they could have been placed in a person’s pocket. Accordingly, there was no evidence which excluded that either of the two other men who first entered the hotel with the accused brought the drugs into the hotel room.

Third, room 622 was clearly used for the smoking or consumption of drugs. This is shown by the plastic placed over the smoke detector along with the presence of items used to smoke methylamphetamine, namely gas lighters, a pipe and straws located in the room.
Further, the accused when searched upon his return to the hotel, was in possession of a small amount of methylamphetamine, and smoking implements consistent with him being a user of drugs. Defence contended that the prosecution could not exclude that the accused booked the hotel room to use some of the drug provided to him by one or other of the two males with him.
Fourth, defence relied on the fact that when the accused was searched he only had $93.00 on his person. They argued that this is inconsistent with a person who was in exclusive possession of the drugs in the hotel room and a person who was in possession of those drugs for sale. By contrast, Mr Manaloupolos was found with $1690 on his person.
Fifth, the defence contended that the accused did not return to the Hotel alone. In particular Mr Manalopoulos returned to the sixth floor and the vicinity of room 622.
Sixth, in respect of the argument that the accused’s DNA cannot be excluded from the swab taken from the latex glove located within another latex glove within the desk drawer, the defence argued that this is equally consistent with the accused being a user of the drug and having touched the glove in this capacity. Further defence submitted that the DNA evidence does not exclude the accused having had contact with another person, such as Mr De Francesco or Mr Manalopoulos, who then had contact with the glove.
Similarly, in respect of the rubber bands located on the accused, defence argued that those rubber bands are equally consistent with having been used by the accused to place plastic around the smoke detector. They also emphasised the differences between the appearance of the rubber bands around the plastic resealable bag in which the drugs were contained and those rubber bands found on the accused’s person.
Finally, in respect of the piece of paper with two numbers written on it, found on the accused’s person, defence submitted there is nothing about the numbers which indicated they are calculations or have any connection with drugs. Senior Constable Zauch could not say where on the accused’s person he located the notes.[83]
[83] Zauch, T 125
In summary, defence submitted that the Crown has not proved beyond reasonable doubt that the accused was in exclusive possession of the methylamphetamine in circumstances where there were at least two other men who initially attended at the hotel with him. The defence submitted that the Crown could not exclude that either Mr De Francesco or Mr Manaloupolos separately or together were in possession of the drugs the subject of the charges, to the exclusion of the accused. They contended that the Crown has not excluded as a reasonable possibility that the accused was a user or purchaser of drugs and booked the hotel room to consume drugs provided by one or both of the other two men who were at the hotel with the accused.
Defence counsel’s ultimate contention is that there is a reasonable and rationale hypothesis consistent with innocence and I should acquit the accused.
Conclusion
The Crown case certainly established beyond reasonable doubt that the accused booked room 622 in which the drugs were subsequently located.
I am also satisfied the accused along with two other men spent at least two hours in that room between 4.15 am and 6.15 am on 31^st January 2014.
I am satisfied that the accused was a user of methylamphetamine. That fact is established by methylamphetamine found on his person along with implements to smoke methylamphetamine. It is also established by his fingerprints on the benzymatic oxy burner (P11) located in the hotel room and the latex glove and straws located in a laptop bag in which there was an expiation notice in the accused’s name.
I am also satisfied that methylamphetamine was consumed in room 622 between 4 am and 6am on 31 January 2014 I am satisfied that the accused knew of the methylamphetamine located in the room, and the subject of the charges.
However the Crown must establish beyond a reasonable doubt that the accused was in exclusive possession of the drugs the subject of the charges, to the exclusion of all others to prove the guilt of the accused.
I am not satisfied that the prosecution has established beyond a reasonable doubt that the accused was in the exclusive possession of the methylamphetamine to the exclusion of Mr De Francesco and the other male, be it Mr Manalopoulos or another person. I remind myself this was not a case of joint possession by the accused, Mr De Francesco and the other male. Nor am I unable to exclude the reasonable possibility, on a consideration of the whole of the evidence that the methylamphetamine the subject of the charges was in the exclusive possession of Mr De Francesco or the other male initially present at the hotel with the accused. I make those findings for the following reasons:
(i) The hotel room while booked and paid for by the accused was registered for 3 guests.
(ii)The accused and Mr De Francesco and another male are seen on the CCTV footage on the sixth floor in the vicinity of the room at about 4.24am and next at about 6.14 am. I find that the accused and the two other males were in room 622 for the intervening 2 hours together.
(iii)Mr De Francesco was depicted on the CCTV footage entering the hotel carrying a bag in which drugs could have been secreted.
(iv)Mr De Francesco’s DNA could not be excluded from a latex glove in the room.
(v)The accused returned to the hotel with Mr Manolopoulos, who was in possession of a large amount of money. Mr Manolopoulos has not been excluded by police as one of the men with whom the accused originally entered the hotel in the early hours of the previous morning.
In my view, the prosecution evidence is equally consistent with the accused being a user of the methylamphetamine who booked a hotel room that night to receive and use drugs provided by others present in the room. I cannot exclude the defence case as a reasonable possibility.
For those reasons, I am not satisfied beyond reasonable doubt of the accused’s exclusive possession of the methylamphetamine the subject of the charges. Nor can I exclude as a reasonable possibility the exclusive possession of the methylamphetamine by one or both of the other two males.
Accordingly I enter verdicts of not guilty on both counts charged on the Information.