R v Giardiello - [2011] SADC 76

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GIARDIELLO
[2011] SADC 76
Reasons for the Verdict of His Honour Judge Nicholson
30 May 2011
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
Accused charged with one count of trafficking in a controlled drug, namely methylamphetamine. The quantity found in his possession was sufficient to give rise to the statutory presumption of an intention to sell. As a consequence the accused carried the onus of establishing on a balance of probabilities that he had no intention to sell any of the methylamphetamine found in his possession. Onus discharged.
Held: not guilty of the charged offence of Trafficking in a Controlled Drug but guilty of the statutory alternative offence of Possession of a Controlled Drug.
Controlled Substances Act 1984 s 4(1), ss 32(5)(b), s 33R, s 33L, referred to.

R v GIARDIELLO
[2011] SADC 76
Introduction

By Information dated 9 August 2010, the accused, John Giardiello, stands charged with one count of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The accused pleaded not guilty to the charge and I conducted the trial sitting as a Judge alone.
On Friday 22 January 2010, police searched the accused’s house under the authority of a general search warrant. They located various packages of crystalline substances containing methylamphetamine. A total of 4.73 grams of substance containing a total of .81 pure methylamphetamine was seized. The accused assisted police and admitted that the drugs were his. He said that the drugs were for his own personal use and that he had no intention to sell the drugs.
The elements of the charge
In order for the prosecution to prove that the accused is guilty of the charged offence the Director of Public Prosecutions must prove beyond reasonable doubt each of two elements.
The first element is that the substance that the accused had or dealt with was a controlled drug. Methylamphetamine is listed as a controlled drug in the regulations made pursuant to the Controlled Substances Act 1984.
The second element of the offence, as particularised in the Information, is that the accused trafficked in the controlled drug, that is, was in possession of the controlled drug intending to sell it. Section 4(1) of the Controlled Substances Act contains a definition of the verb to traffic:
(a)     sell the drug; or
(b)     have possession of the drug intending to sell it; or
(c)     take part in the process of sale of the drug.
In this case, it is alleged that the accused possessed the methylamphetamine intending to sell it or some of it. Given the quantity located, if the accused were to be found to have been in possession of the drug, the prosecution would have the benefit of a statutory presumption. If I were to find that the prosecution has proved beyond reasonable doubt that the accused possessed a trafficable quantity of methylamphetamine, ss 32(5)(b) provides that, in the absence of proof to the contrary, it is presumed that the accused had the intention to sell the methylamphetamine. The definition of trafficable quantity of methylamphetamine, as prescribed in regulations to the Controlled Substances Act, includes 2 grams of a substance containing methylamphetamine. In order to rebut any such presumption which arises an accused must prove on the balance of probabilities that their possession of the controlled substance was for a purpose other than sale.
Legal considerations and general directions
Whilst the Court of Criminal Appeal in this State has made it plain that it is not necessary for the court, having conducted a trial by Judge alone, to set out in the reasons for verdict the standard or obvious directions of which the trial Judge is bound to be aware, I do nevertheless record that I have reminded myself of the following:
(i)An accused is presumed to be innocent unless and until guilt of any particular charge has been proved.
(ii)The prosecution bears the burden of proving a charge beyond reasonable doubt. Ordinarily, this requirement extends to proof beyond reasonable doubt of each and every element of an offence under consideration. However, if the Crown were to prove beyond reasonable doubt that the accused here possessed a trafficable quantity of a controlled drug, being at least 2 grams of a substance containing methylamphetamine, the accused would be presumed to have had the intention to sell the methylamphetamine in the absence of proof, on the balance of probabilities, to the contrary.
(iii)I have reminded myself of the usual directions given in this State to jurors concerning the proper approach to assessing the witnesses who gave evidence, their credibility and reliability and the proper approach to drawing inferences of fact. In this case, the accused himself gave evidence. He was not obliged to do so and always had the right to remain silent. I am required to assess his evidence in exactly the same way as I would assess the evidence of any other witness.
The Crown case
The following exhibits were tendered without objection in the Crown case:
(a)Exhibit P1 – declarations of Simon Smithies dated 28/3/2010, 14/5/2010, 18/6/2010 and 27/9/2010; declaration of Neil Innes dated 4/5/2010, declarations of Richard Power dated 8/3/2010 and 25/6/2010, declaration of Chantelle Brook dated 6/3/2010 together with attached exhibit log ‘CB1’ dated 22/1/2010 and declarations of David Pedder dated 18/8/2010 and 22/11/2010;
(b)Exhibit P3 – Certificate of Analysis by Matthew David Cox dated 12/4/2010; and
(c) Exhibit P4 – Bundle of 20 colour photographs.
A record of interview given by the accused to the police (a transcript of which was marked for identification only, MFI P2) was not tendered but both parties agreed to three facts arising from the record of interview. The agreed facts are as follows.
(a)The accused was questioned by police and during that questioning the accused told the police that the amphetamines found at his premises belonged to him.
(b)The accused told the police that he purchased all of the amphetamines for $400-$500.
(c)Thereafter the accused exercised his legal right to decline to answer any further questions.
The matters set out in the following sub-paragraphs are not in dispute and, in any event I find them to have been established on the evidence beyond reasonable doubt.
(i)During a search of the residential premises of Mr Giardiello and his partner, on Friday 22 January 2010, the police located five packages of crystalline substances; four packages stored in resealable plastic bags and one package stored in a plastic container. The police also located a bag containing 34 small plastic resealable bags, a bag containing 27 small plastic resealable bags, a bag containing 94 small plastic resealable bags and a set of electronic scales. All of these items were found in a bar area located in the rumpus room at the side of the house.
(ii)The crystalline substances were analysed. A white crystalline power found weighed 0.53 grams and contained 0.06 grams of methylamphetamine, that is, a purity of approximately 11.3%. I will call this the ‘white’ methylamphetamine. A cream coloured crystalline powder found weighed 2.19 grams and contained 0.53 grams of methylamphetamine (approximately 24.2%). I will call this the ‘cream coloured’ methylamphetamine. A light brown powder found weighed 2.01 grams and contained 0.22 grams of methylamphetamine (approximately 10.9%). I will call this the ‘brown’ methylamphetamine. One other package contained glucose and a fifth package contained 6.59 grams of pseudoephedrine hydrochloride.
Mr Pedder, a drug expert from SAPOL gave evidence for the Crown. He gave general evidence about the trade of methylamphetamine in South Australia. He told the court that, typically, amphetamines are sold by the point, that is, 0.1 of a gram. Each point is usually packaged in a press-sealed bag.
Mr Pedder told the court that large amounts of cash, lists of debtors commonly referred to as tick lists, scales and implements for cutting drugs such as spatulas and razors were items commonly found with people who are in the business of selling drugs. During cross-examination he conceded that items such as press-sealed bags and cutting agents and implements are also commonly found in the possession of users of drugs. He said that the press-sealed bags shown in photograph 4 of Exhibit P4 were a type of bag used to package illicit drugs. He said that you would expect to find a greater quantity of unused bags in the possession of someone who is dealing in drugs as compared with somebody who was simply a user of drugs.
Mr Pedder said that the drugs found in this case were at the lower end of the price or value scale. However, he said that a substance containing 11.32% of methylamphetamine could be cut or diluted, with glucose or another type of substance in order to increase the yield by another two or three times. He said that a substance containing 14.2% of methylamphetamine could be cut a further four or five times and a substance containing 10.9% of methylamphetamine could be cut a further two or three times.
Defence case
The defence called evidence from the accused and from Ms Gillian Nickles. The accused maintained that all of the drugs found by the police belonged to him but were for personal use only.
The accused and his brother jointly own the house in which the accused lives. They each pay half of the mortgage repayments. The accused left school in year 10 after which he worked at Castalloys for about 8 years. He stopped working after suffering a work-related injury. About 11 years ago, he received two lump sum payments form WorkCover; one of $10,000 and one of $50,000. He lost about $20,000 in the stock market. He has not returned to work since receiving the payouts.
The accused’s partner receives a pension. Their joint income is about $1,300 a fortnight. The accused’s share of the mortgage repayments is $175 a fortnight. After household expenses and mortgage repayments he is left with about $150-$200 spending money each fortnight.
The accused first used methylamphetamine whilst working at Castalloys after his injury in 1996. He began to use methylamphetamine on a social basis; sometimes weekly, sometimes fortnightly and sometimes monthly. The accused consumes methylamphetamine by drinking or sniffing it. He has never smoked or injected methylamphetamine.[1] His use was sporadic during the period 1996 to 2010. When the accused first started using methylamphetamine he financed its cost with his work wages. When he became unemployed he used the payment that he received for his injury to purchase methylamphetamine.
[1] The police also found a number of bongs and pipes, including two ice pipes. The accused said that the two ice pipes were given to him some years before as a gift.
The accused told the court that in early 2009 he sold his eight cylinder 1983 model Ford Fairlane to his friend Gillian Nickles for $5,000. The purchase price was paid over a period of time by way of an initial payment of $1,500 and thereafter, roughly fortnightly, payments of $100. The money was received in cash. A final payment of $2,000 was received in early December 2009.
Gillian Nickles told the court that she bought a 1983 V8 Ford Fairlane from the accused in about April of 2009 for $5,000. She said that she made an initial payment of about $1,500 in April and payments, about once a fortnight, of around $100-150; sometimes a little bit more. She made a final payment of about $2,000 in December of 2009.
The accused said that he used money from the first (car) payment to purchase the ‘white’ amphetamine for about $200 in early December. He said that he used this methylamphetamine only two or three times. On each such occasion he used a tenth to two-tenths of a gram. He mixed it with glucose and sniffed it. He mixed the amphetamine with glucose because “it lasts longer and it’s smoother”. The accused said that the glucose was obtained from a friend. This first batch of methylamphetamine gave him a mild headache and he therefore stopped using it. He did not throw it away because he though that he might be able to mix it with another batch of methylamphetamine later on.
The accused said that he then purchased the ‘brown’ methylamphetamine for about $400. He was told that it was a better batch than the white methylamphetamine. This money also came from the car payments. He used that batch of methylamphetamine three or four times. He also mixed this methylamphetamine with glucose. He did not like the second brown batch of methylamphetamine either. It made him fell nauseous with a headache. He put that methylamphetamine aside.
The accused used car money to purchase the ‘cream coloured’ methylamphetamine in early 2010. He paid $550 for it. He intended to mix the earlier white and brown methylamphetamine with this better methylamphetamine. This cream methylamphetamine was a lot cleaner. It didn’t leave him feeling nauseous or with a headache.
The accused said that he obtained the plastic resealable bags from a newsagent. The bags were sold in packs of 100. He used the bags to store his collectibles ranging from old-type marbles to coins. He said that his partner used them for storing glass beads. He also used the bags to store the children’s teeth that fell out and for other things like screws.
The electronic scales belong to the accused. He used them to double check the weight of the methylamphetamine that he was buying. He does not use the scales to measure his own use.
The accused said that his intention was to consume all of the methylamphetamine over a period of time. During cross-examination he gave the name of the friend from whom he had purchased the drugs.
Possession of a trafficable quantity of a controlled drug
There were three separate packages of substance containing methylamphetamine located by the police at the premises of the accused. An analyst’s certificate of record confirms that a total of 4.73 grams of substance containing 0.81 grams of methylamphetamine was found.
Methylamphetamine is listed as a controlled drug in the regulations made pursuant to the Controlled Substances Act 1984. I find that the first element of the offence, that the substance dealt with by the accused is a controlled drug, proved beyond reasonable doubt.
In this case the accused conceded that all of the methylamphetamine found belonged to him. The trial proceeded on the basis, from the defence perspective, that the only matter in issue was whether, on the balance of probabilities, the accused had possession of the methylamphetamine for a purpose other than that of sale.
Notwithstanding the accused’s concessions, I have reviewed the evidence tendered on behalf of the prosecution together with the evidence given by him and adduced on his behalf. I find, beyond reasonable doubt that the accused was in possession of a controlled drug. As outlined above, a trafficable quantity of methylamphetamine is any substance containing methylamphetamine which weighs 2 grams or more. Given the amount of drugs located at the premises of the accused, I find that it has been established beyond reasonable doubt that the accused was in possession of a trafficable quantity of methylamphetamine.
Rebutting the presumption of trafficking in a controlled drug
The prosecution submitted that there was not a lot of money coming into the house and that it was Christmas time when the accused bought the third batch of methylamphetamine; an expensive time for the family. He purchased one batch for $200 and then, based on a recommendation, paid double for the second batch and then, unsatisfied with the second batch, he bought a third batch for $550. The prosecution submitted that $1,150 was a lot of money to be spending at that time of the year. On the basis of Mr Pedder’s evidence the methylamphetamine if cut further and sold as street deals would be worth considerably more than that which the accused paid.
The prosecution submitted that the scales, resealable bags and glucose were indicia of sale and that the accused’s explanations for the presence of these things and generally should be rejected.
The quantity of methylamphetamine found, whilst by definition a trafficable quantity, was relatively small and well within the amounts (both as to quantity and value) often acquired for personal use. There were few of the common, so called, indicia of sale found in the accused’s presence and a credible explanation for those that were found was given. Small resealable plastic bags are purchased in large quantities and have multiple uses. Electronic scales are typically used by users to check their purchases. Cutting agents such as glucose are also used by users to increase the yield of drugs purchased. Of potential significance is the fact that none of the less equivocal indicia – such as tick (debtor) lists, large quantities of cash, multiple mobile phones, and evidence of inculpatory phone conversations or text messages – was located.
It is against this background that I must assess the evidence of the defence witnesses and, in particular, whether or not I am satisfied on a balance of probabilities that the accused told the truth to the court when he said he had no intention to sell any of the methylamphetamine.
I found the accused to give his evidence in a frank and forthcoming way. His evidence was internally consistent and intrinsically believable. I accept that Ms Nickles was honest and trying to assist the court. Her evidence served to corroborate the accused’s evidence concerning the source of funds available to purchase the methylamphetamine. The onus is on the accused to persuade me on a balance of probabilities that he did not have the intention to sell any of the methylamphetamine found in his possession. The accused in his evidence, gave explanations consistent with and supportive of innocence. I accept, on the balance of probabilities, that the accused has told the court the truth. I find that the accused has discharged the onus imposed upon him by s 32(5)(b) of the Controlled Substances Act and that he is not guilty of the offence charged.
Alternative offence
Section 33R of the Controlled Substances Act provides:
Alternative verdicts:
(i)If, in any proceedings against a person for an offence against this Part, the court is not satisfied that the person committed the offence but is satisfied that the person committed another equivalent or lesser offence against this Part, the court may find the person not guilty of the offence charged but guilty of the other equivalent or lesser offence (and the person is liable to be punished accordingly).
(ii)For the purpose of this section, an equivalent or lesser offence is an offence for which the maximum penalty is the same as or less than the maximum penalty for the offence charged.
In relation to the offence of trafficking in a controlled drug, a relevant alternative offence is that of possession of a controlled drug (s 33L of the Controlled Substances Act). The accused admitted that he was in possession of the 4.73 grams of substances containing methylamphetamine. On the basis of the accused’s evidence, as summarised above, I am satisfied beyond reasonable doubt that the elements of the offence under s 33L have been established.
Verdict
The accused is not guilty of the charged offence of Trafficking in a Controlled Drug but guilty of the alternative offence of Possession of a Controlled Drug pursuant to s 33L of the Controlled Substances Act.