R v Ghamrawi (No 2)

[2019] SADC 27

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v GHAMRAWI (NO 2)

Criminal Trial by Judge Alone

[2019] SADC 27

Reasons for the Verdict of His Honour Judge Barrett

8 March 2019

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING

The accused is charged with Trafficking in the Controlled drug methylamphetamine.  He was arrested for carrying an offensive weapon.  Two packages of substance weighing 11 grams were found at his feet.  When they were placed on the seat of a vehicle he attempted to ingest them. He had $1,850 cash on him.  His mobile phones indicated trafficking in drugs.  The accused did not give or call evidence. 

Verdict: Guilty

Controlled Substances Act 1984 (SA), s 32(3), referred to.

R v GHAMRAWI (NO 2)
[2019] SADC 27

1. The accused is charged with trafficking in the controlled drug methylamphetamine pursuant to s 32(3) of the Controlled Substances Act 1984. He made a late application on the 5^th of March 2019, the day set for his jury trial, to be tried by judge alone.  In the somewhat unusual circumstances of the matter the prosecution consented to the application.  I had conducted a voir dire in the matter and had refused the accused’s application to exclude evidence of the police detecting the drugs in the accused’s apparent possession.  In due course I will deliver written reasons for my ruling.  I ordered that the matter proceed in the absence of a jury.  The trial was conducted on the 6^th of March 2019 with the prosecution tendering exhibits, including Agreed facts.  The accused did not give or call evidence.  I reserved my decision. 

   Case for the prosecution

2. At about 10.30 pm on the 17^th of July 2017 police were called to a house at Gardenia Street, Seacliff Park to investigate a domestic disturbance.  When they arrived at the house the accused was standing next to the open front door of a taxi parked in the driveway.  Police parked their car across the entrance to the driveway effectively preventing the taxi from leaving.  Senior Constable Stefan Rudevics was the driver of that police car.  He said that he parked the car across the driveway to prevent any potential domestic violence perpetrator leaving the address. 

3. Police approached the accused.  The accused said he had had an argument with his girlfriend and that she had left with a friend.  Police noticed the accused turn over a clear A4-sized folder which appeared to contain a significant number of $50 notes (the cash was later counted and amounted to $1,850).  When questioned about the cash the accused declined to provide information.  He appeared agitated and evasive.  A police body camera recorded part of what transpired.  The accused volunteered that he had something sharp in his possession.  Police located a knife in a sheath inside the pockets of his hooded jumper.  The accused was arrested for carrying an offensive weapon.  He was handcuffed with his hands behind his back. 

4. Police saw in the front passenger footwell of the taxi a plastic tub with duct tape wrapped around it and a plastic medication bottle.  The bottle contained the prescription medication dexamphetamine which the police recognised as a prescription drug which is known to be recreationally abused.  There was a small quantity of cannabis in the tub.  Police searched the accused where he was standing handcuffed.  They found two mobile telephones. When later interrogated those telephones contained messages indicative of the selling of methylamphetamine.  It is agreed that the accused used both phones (Agreed facts 18-27 of Exhibit P5).

5. As the accused was being searched police noticed at his feet two plastic resealable sandwich bags containing crystalline substance.  Police suspected that the substance was methylamphetamine.  Rudevics picked up the bags and put them on the front passenger seat of the taxi.  The accused then dived head-first towards the by-then-opened packages.  He tried to swallow the contents of one of them.  Police tried to remove the substance from his mouth but he resisted them.  Rudevics estimated that the accused ingested about 10g of the substance.  The substance was later analysed and found to be methylamphetamine (Agreed facts 6 & 7 of Exhibit P5).  Police called an ambulance which took the accused away to be treated for what was suspected to be an overdose of drugs.  The container from which the accused ingested the substance weighed 11g of which 8.69g was methylamphetamine.  The loose crystals in the outer sandwich bag weighed 0.06g (Agreed facts 6 & 7).

6. Police searched the house.  It is agreed that as at the 17^th of July 2017 Kristin Johnstone was in a relationship with the accused and she lived at that house (Agreed facts 1 & 2).  In a rear bedroom of the house police found paraphernalia of sale of drugs.  There were two digital scales, one of which had on it traces of methylamphetamine (Agreed fact 8).  In several parts of the house there was dimethyl sulfone (Agreed facts 10-15) which is a cutting agent used in the sale of methylamphetamine.  There was a Nissan motor vehicle at the address.  The keys to the vehicle were in the accused’s pockets (Agreed fact 3).  His driver’s licence was in the driver’s side door.  The accused’s association with the address is therefore suggested by his relationship with the occupant and the presence of his car there.  There were also documents in the house which had his name on them.

7. The evidence is overwhelming that the accused was in possession of the methylamphetamine found at his feet near the taxi.  Plainly he knew that the drug was methylamphetamine.  His trying to ingest it is the most obvious of that evidence but it does not stand alone.  The drugs were found at his feet.  The evidence is also overwhelming that the accused was engaged in trafficking of the drug.  The cash in his possession and the messages on his two phones are compelling.  In addition, the prosecution is assisted in proof of trafficking by the weight of the drug which far exceeds the trafficable quantity of 2g.  Upon proof of his possession of the drug the accused is deemed to have possessed it for the purpose of trafficking unless he satisfies me on the balance of probabilities that the purpose of his possession was other than trafficking.  The accused has given no evidence nor has he produced any evidence to that effect.

8. I am satisfied beyond reasonable doubt that the accused is guilty of the charged offence.

9. Verdict: Guilty of Trafficking in a Controlled Drug.