R v Gibbett - [2024] SADC 135

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GIBBETT
Criminal Trial by Judge Alone
[2024] SADC 135
Reasons for the Verdicts of his Honour Judge Muscat
24 October 2024
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
The defendant is charged with two counts of trafficking in a controlled drug. The only issue in dispute is the possession of the drugs. The prosecution case is entirely circumstantial in nature. The evidence establishes the defendant’s possession of the drugs.
Verdicts: The defendant is guilty of both counts.
Controlled Substances Act 1984 (SA) s 32(5); Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) Schedule 1 Part 1; Evidence Act 1929 (SA) ss 34P and 34R, referred to.
R v Parisi (2014) 119 SASR 277; R v Tassone [2016] SASCFC 146, applied.
Shepherd v R (1990) 170 CLR 573; Chamberlain v R [No 2] (1984) 153 CLR 521; R v Hillier v R (2007) 228 CLR 618; R v Van Beelan (1973) 4 SASR 353, considered.

R v GIBBETT
[2024] SADC 135
Introduction

Following a search of a residential property at Seaford Rise, on 19 June 2020, the defendant was charged with trafficking in a commercial quantity of a controlled drug, namely 1,4-Butanediol[1] and trafficking in a controlled drug, namely 3,4‑Methylenedioxymethylamphetamine.[2] The defendant has pleaded not guilty to each charge.
[1] Contrary to s 32(2) of the Controlled Substances Act 1984 (SA) (Count 2 on the Information (Revision 1) filed 27 September 2024 for arraignment on 8 October 2024).
[2] Contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (Count 3 on the Information (Revision 1) filed 27 September 2024 for arraignment on 8 October 2024).
The trial proceeded largely on the basis of agreed facts[3] and the tendering of a number of exhibits.
[3] P1.
While there are several elements that must be satisfied to establish the offence of trafficking in a controlled drug, the only issue in dispute in the trial was whether the prosecution had proved beyond a reasonable doubt that the defendant was in possession of the controlled drugs.
The prosecution case on the issue of possession was based entirely on circumstantial evidence. This means that the inference to be drawn from circumstantial evidence proving that the defendant was in possession of the drugs must be the only rational inference that can be drawn from the evidence. Put another way, if upon a consideration of the entirety of the circumstantial evidence relied upon by the prosecution, there exists a reasonable explanation for that evidence which is inconsistent with the defendant being in possession of the drugs, it would follow that there would be a reasonable doubt the defendant was in possession of the drugs.
For the reasons that follow, I am satisfied beyond a reasonable doubt that the defendant was in possession of the controlled drugs and find her guilty of both charges.
Evidence
On the morning of 19 June 2020, the police conducted a search of a residential property at 23 Pebble Beach Grove, Seaford Rise (‘the property’).
At the time the police attended the property the defendant was in custody at the Christies Beach Police Station, having been arrested earlier that morning on other charges after she was detected driving a Toyota Hatchback in the Dover Gardens area. A male passenger in the vehicle at the time identified himself to the police as Bradley Leaford.[4] The vehicle the defendant was driving was registered to Sharon Partridge.[5]
[4] Agreed fact 2 of P1.
[5] Ibid.
When the house was entered by the police, a person who identified himself as Kevin Lomax, was in one of the rooms,[6] identified on the floorplan[7] as ‘bedroom 2’. This bedroom appeared to be occupied by Lomax.[8] The door to the bedroom was not locked. Lomax was escorted to the lounge room while the police searched the property. The police search of bedroom 2 did not locate anything of evidential value to the case.[9]
[6]     Agreed fact 12 of P1.
[7]     P7.
[8]     P1 and evidence of Detective Sergeant Klecko (P4).
[9]     Agreed fact 13 of P1.
Another room in the house, identified on the floorplan as ‘bedroom 3’, appeared to be used as a storage room at the time.[10] The door to this room was also not locked. Again, nothing of any relevance to the case was discovered in this room.
[10] Agreed fact 14 of P1.
At the rear of the property was a detached room, described as a ‘granny flat’[11] and identified on the floorplan as ‘bedroom 4’. The room was not locked. No one was in the room at the time. This room appeared to be occupied by a male. A wallet located in the room contained a driver’s licence in the name of Martin Paul Hay.[12] Nothing of any evidential value was located in this room.
[11] Agreed fact 15 of P1.
[12] See ‘walk through’ video P9.
A room in the house was found to be locked.[13] This room was identified on the floorplan as ‘bedroom 1’. No one was inside bedroom 1 at the time. The room appeared to be used as a bedroom.[14] The controlled drugs the subject of the charges were discovered in this bedroom, as well as other evidence suggesting that whoever was occupying the bedroom was involved in trafficking those drugs.[15]
[13] Agreed fact 16 of P1.
[14] P9.
[15] A CCTV monitor was in the room and was operating at the time which permitted vision of the exterior of the house: P9. A functioning taser was on the bedside table: P9; Agreed facts 8 and 19(e) of P1.
The prosecution contend that the defendant was the sole occupant of bedroom 1 and was in possession of the items within it, including the drugs.
In the lounge room, next to the television set, was a CCTV monitor that was connected to various cameras outside of the house.[16] A similar CCTV monitor was set up in bedroom 1.[17]
[16] P9.
[17] Ibid.
The following items were located in bedroom 1 and seized by the police:[18]
[18] Agreed fact 19 of P1.
a.On the right-hand side of the bed was a set of bedside drawers. In the top drawer was a beige pouch, which contained:
i.       A plastic snap lock bag containing 22 white capsules in a bag (labelled ‘PB2’ in P8). The capsules were sent to Forensic Science SA (FSSA) for analysis; they contained crystals and crystalline powder, with a total weight of 2.4g and contained 1.8g of 3,4-methylenedioxymethylamphetamine (MDMA).
1.The weight of the capsule contents was determined using the total weight of all 22 capsules and the heaviest empty capsule shell weight of 3 capsules.
2.The total amount of MDMA was calculated based on the analysis of the content from 20 of the 22 capsules.
ii.      A larger plastic snap lock bag containing two large white crystals and two small white crystals (labelled ‘PB3’ in P8). The crystals were sent to FSSA for analysis; they weighted a total of 11.8g and contained 9.05g MDMA.
1.The total combined weight of the crystals and crystalline powder was 14.2g. It contained a total of 10.85g MDMA.[19] As at 19 June 2020, that quantity, if sold, was worth somewhere between about $1,420 and $2,840 depending on the quantities in which it was sold.
[19] This is more than a trafficable quantity of MDMA, which is 2g (mixed): Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) Schedule 1, Part 1.
iii.     Several empty plastic snap lock bags.
b.In the same top drawer of the bedside cabinet:
i.       Two Department for Correctional Services (DCS) prisoner ID cards in the name ‘Sashauna Mourish’ in the top right drawer near the bed (labelled ‘PB5’ in P8).
ii.      A Commonwealth Bank Australia debit card in the name ‘Juliann Lock’, found in the top right drawer near the bed (labelled ‘PB6’ in P8).
c.In a bucket on the top of this set of drawers, a glass ‘ice’ (methamphetamine) pipe (labelled ‘PB7’ in P8).
d.In the shelves near the television, a 750ml pump water bottle containing liquid (labelled ‘PB8’ in P8). Police picked up the bottle and saw that the liquid was viscous in consistency. 1,4-Butanediol is a viscous clear liquid. The liquid in the bottle was sent to FSSA for analysis; it contained 607g of 1,4-Butanediol (also known as ‘Fantasy’).[20] As at 19 June 2020, that quantity, if sold, was worth somewhere between about $550-$3,000 depending on the quantities in which it was sold.
e.A homemade electronic control device (‘taser’) about 30cm long, wrapped in black electrical tape, in the bedside table on the right side of the bed (labelled ‘PB9’ in P8). This item was tested by police on 19 June 2020; it was functioning (activating the device caused the prongs of the taser to spark).
i.       Weapons such as tasers can be used by drug dealers to provide protection from persons seeking to steal drugs or money from the dealer, and to enforce payment of monies owed.
[20] This is more than a trafficable quantity of 1,4-Butanediol, which is 50g (mixed): Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) Schedule 1, Part 1.
No fingerprints were located on any of the packaging/bottle containing the drugs.[21]
[21] Evidence of Brevet Sergeant Wurst: T 72 – 73.
A ‘walk-through’ video recording of the property was taken by Brevet Sergeant Wurst.[22] Each room at the property was filmed. I will say more about aspects of what the recording depicts later but, relevant to the issue of the drugs being trafficked, was a CCTV monitor in bedroom 1 which was connected to a number of cameras on the outside of the property. The video recording clearly shows the CCTV monitor is working.[23] It is agreed that such security measures can be used by those involved in the trafficking of drugs to provide an increased level of protection for the property. Such measures can provide time to dispose of drugs when law enforcement officers attend to search a property or to provide protection from other drug dealers or persons seeking to steal or extort drugs or money.[24] Moreover, it is also agreed that the presence of a functioning taser found inside bedroom 1 can be used by a person trafficking in drugs to provide further protection or to enforce payment of money owed for the purchase of drugs.[25]
[22] P9.
[23] Ibid.
[24] Agreed Fact 8 of P1.
[25] Agreed Fact 19(e) of P1.
No investigations were made by the police in relation to the following persons:
a.Bradley Leaford (who was the passenger in the vehicle being driven by the defendant at the time of her arrest);
b.Sharon Partridge (who was the registered owner of the vehicle the defendant was driving at the time of her arrest);
c.Kevin Lomax (who was located in bedroom 2 when the police entered the house to conduct a search);
d.Martin Paul Hay (whose driver’s license was discovered in a wallet in bedroom 4);
e.Sashauna Mourish (two Department of Correctional Services Prisoner ID cards with her name and photograph on the cards were located in the top right drawer in bedroom 1 where the controlled drugs were discovered),[26] or
f.Juliann Lock (a Commonwealth Bank Debit Card in her name was also found in the same drawer as the controlled drugs in bedroom 1).
[26] Brevet Sergeant Wurst attempted to contact Sashauana Mourish recently but was unsuccessful: T 68.
It is an agreed fact that ‘South Australian Police records show that Sashauna Dell Mourish was sentenced by the Port Adelaide Magistrates Court on 2 June 2020. She received a partially suspended sentence bond of 10 months and two weeks imprisonment from 7 April 2020. Mourish was to be released after serving two months imprisonment on that sentence’. T 76.
No DNA samples were ever obtained from any of these persons and no items were submitted for DNA analysis.[27] Brevet Sergeant Wurst said that he did not consider any of these persons to be suspects in the case.[28]
[27] Brevet Sergeant Wurst: T 63 - 74.
[28] T 74 - 75.
Evidence connecting the defendant to the property
The property was leased to the defendant by SA Housing Authority between 30 March 2019 and May 2021.[29] The defendant’s two children, Ty Sellers-Gibbett (born 25 February 2010) and Brock Gibbett (born 24 July 2015) were the only other registered tenants of the property.[30]
[29] Agreed fact 6 of P1.
[30] Ibid.
The defendant was arrested by Brevet Sergeant Hogg who then conveyed her to the Christies Beach Police Station for charging. Brevet Sergeant Hogg commenced the defendant’s prisoner custody record at the police station at 3:04 am on 19 June 2020.[31]
[31] P6.
An application for release on bail (Form 1) was made by the defendant to the officer in charge of the cells, which the defendant signed at 3:59 am.[32] The application was refused at 4:17 am, with a written record of the reasons for refusal of the bail application (Form 2) provided to the defendant.[33] The defendant signed an acknowledgement of the reasons for refusal of bail that had been handed to her.[34] The Form 2 records the defendant’s name and date of birth. Her address was recorded on the Form 2 as 23 Pebble Beach Grove, Seaford Rise SA 5169.[35]
[32] P5 (Form 1).
[33] Ibid (Form 2).
[34] Ibid.
[35] Ibid.
As the written reasons for refusing the defendant’s bail application reveal, the defendant was on bail for other offences at the time.[36]
[36] Ibid.
Following the defendant’s arrest and charging, Senior Sergeant McDonald, who was the custody sergeant on duty in the cells, at 3:06 am lodged into police safekeeping the defendant’s personal property that had been removed from her after she was taken into custody at the police station.[37]
[37] P2 (Affidavit of Senior Sergeant McDonald).
The Prisoner Property Custody Record itemises the personal property that was removed from the defendant upon her being taken into custody.[38] The log entry of the defendant’s personal property is recorded as having been entered at 3:21 am.[39] Included in the defendant’s personal property was a set of keys.[40] The defendant is recorded as having made an electronic signature at 3:24 am acknowledging the police custody of her personal property.[41]
[38] P6 (see also P2).
[39] P6. The defendant’s shoes were added to the personal property log at 3:24 am (P6).
[40] Ibid.
[41] Ibid.
The Prisoner Property Custody Record records that at 7:01 am a set of ‘Keys/House Keys’ were removed from the defendant’s personal property by Sergeant Conlon and given to the ‘CIB to enable search of premises [sic]’. This accords with Detective Sergeant Klecko’s evidence that he sought and was granted permission from the officer in charge of the cells, to use the keys so that he could access the defendant’s property to search it without causing any damage to the property.[42]
[42] P4 (Evidence of Detective Sergeant Klecko).
Using the set of keys that were removed from the defendant’s personal prisoner property, Detective Sergeant Klecko entered the property through the front door at about 7:50 am.[43] He was in the company of other police officers and was executing his general search warrant in conducting a search of the property. Bedroom 1 was found to be locked. The door was unlocked with a key from the set that Detective Sergeant Klecko had been given from the defendant’s personal prisoner property.
[43] Ibid at T 22.34.
A Certificate of Record of the Christies Beach Magistrates Court reveals that the defendant appeared (self-represented) before the court on the 3 June 2020, after being arrested on a warrant issued by the court on the 2 March 2020 when she failed to appear in answer to her police bail.[44]
[44] P10.
The Certificate of Record records that on 3 June 2020 in the Christies Beach Magistrates Court the defendant was granted bail on the file, with a condition that she was to reside at 23 Pebble Beach Road [sic] Seaford Rise SA 5169.[45]
[45] Ibid.
On a subsequent appearance in the Christies Beach Magistrates Court on the 23 October in relation to the file (and after the defendant had earlier pleaded guilty to the charges she was facing), the court ordered a Home Detention Order Report for the nominated address of 23 Pebble Beach Grove, Seaford Rise, with the defendant also nominated as the contact person for the preparation of the report. On the 7 December 2020 the court ordered a further Home Detention Order Report for the nominated address of 23 Pebble Beach Grove, Seaford Rise, with the defendant again nominated as the contact person for the report.[46] The report was to address the defendant’s compliance with her home detention bail conditions.[47]
[46] Ibid.
[47] Ibid.
The defendant elected not to give or call evidence
The defendant did not give or call any evidence in the trial. No adverse inference against the defendant is drawn by her decision not to give or call evidence. Consistent with the burden of proof in a criminal trial resting solely upon the prosecution to prove the offence charged against a defendant beyond a reasonable doubt, a defendant is not required to prove anything. In the context of this trial the defendant is not required to prove that she was not occupying bedroom 1 at the property at the time, or that she was not in possession of the drugs discovered in that bedroom. The prosecution must establish these matters and do so beyond a reasonable doubt.
Evidence of discreditable conduct
The evidence discloses the defendant was arrested on other charges in the early hours of the 19 June 2020; that she was refused bail and the written reasons for refusing bail reveal the defendant has a criminal history and other matters that reflect adversely on her.[48] Allied to this is that the Christie Beach Magistrates Court Certificate of Record[49] also reveals the defendant was charged with and had pleaded guilty to offences of providing false or misleading person details to the police and driving while disqualified.
[48] P5.
[49] P10.
This evidence discloses that the defendant has engaged in discreditable conduct in the past, other than the alleged conduct constituting the charged offences.[50]
[50] Section 34P of the Evidence Act 1929 (SA).
The evidence was presented by the prosecution because it was necessary to explain how the defendant’s keys were accessed by the police to conduct the search of the property, particularly the use of the keys to open the locked door to the bedroom in which the drugs were discovered, and further, to establish that the defendant had nominated the property as her residential address when applying for bail and in seeking a Home Detention Report, which was relevant to prove (circumstantially) that she occupied bedroom 1 where the drugs were discovered at the relevant time.
There was no objection to this evidence. Clearly, the probative value of the evidence (for the permissible use identified) outweighs any prejudicial effect it has on the defendant.[51] It was not disputed that the permissible use of the evidence could be kept sufficiently separate and distinct from the impermissible use of the evidence (revealing the defendant to be a person of bad character).[52]
[51] Section 34P(2)(a) of the Evidence Act 1929 (SA).
[52] Section 34P(3) of the Evidence Act 1929 (SA).
In considering the use of this discreditable conduct evidence I have directed myself that the only permissible use of this evidence involves establishing that the defendant occupied bedroom 1 at the property during the relevant time. While the fact that the evidence also discloses the defendant to have a criminal history and poor compliance with bail and other court orders and, in doing so, paints her in a bad light, I have not used this to reason that the defendant is therefore the sort of person who would more likely have committed the offences.[53]
[53] Section 34R(1) of the Evidence Act 1929 (SA).

In addition to this discreditable conduct evidence, there is also evidence within the agreed facts that also amounts to discreditable conduct. I am referring to the CCTV monitor,[54] the ‘ice pipe’,[55] the taser,[56] a number of empty plastic snap-lock bags,[57] and the prisoner identification in the name of Sashauana Mourish and a Commonwealth Bank debit card in the name of Juliann Lock[58] all located within bedroom 1. This evidence of discreditable conduct is said to be relevant as circumstantial evidence of the defendant’s interest in methylamphetamine (the ‘ice pipe’) and an intention to traffic in the controlled drugs located in the bedroom (CCTV monitor, the taser, empty snap-lock plastic bags and false identification) should the court be satisfied that the defendant was in possession of the controlled drugs in bedroom 1. As with the other discreditable conduct evidence identified earlier, there was no objection to the evidence being used for the purposes identified by the prosecution (the permissible uses of the evidence). This evidence will not be used for any other purpose.
[54] Agreed fact 8 of P1.
[55] Agreed fact 19(c) of P1.
[56] Agreed fact 19(e) of P1.
[57] Agreed fact 19(a)(iii) of P1.
[58] Agreed fact 19(b)(i) and (ii) of P1. These items, if found to be in the possession of the defendant unlawfully, clearly amounts to discreditable conduct.
I have put to one side the evidence of the discovery of $300 in counterfeit $50 notes located in the lounge room.[59] While the counterfeit money, if proved to be in the defendant’s possession, would amount to evidence of discreditable conduct, no use of this evidence was identified by the prosecution, nor were any submissions made during the prosecution’s closing address. As such, I have disregarded this evidence altogether.
[59] Agreed fact 20 of P1.
Consideration
This trial was conducted on the sole basis that whoever was occupying bedroom 1 at the relevant time was in possession of the drugs and was clearly trafficking in those drugs.
The inferences contended by the prosecution said to be drawn from the combination of the circumstantial evidence proving that the defendant occupied bedroom 1 at the time and was in possession of the drugs, must be the only rational inference that can be drawn from the circumstances that are found proven. This means that if upon a consideration of the whole of the circumstantial evidence presented by the prosecution, there exists a reasonable or rational view of the circumstantial evidence that is inconsistent with the defendant having occupied bedroom 1 and therefore being in possession of the drugs, then the charges will not be proved. The circumstantial evidence relied upon by the prosecution to establish that the defendant occupied the bedroom and was in possession of the drugs is not strengthened by the defendant’s decision not to give or call evidence.
The prosecution has submitted that a combination of the following circumstances enables the court to conclude beyond a reasonable doubt that the defendant was occupying bedroom 1 at the relevant time:
i.The defendant (along with her two young children) was the registered tenant of the property between 30 March 2019 and May 2021.
ii.The defendant was released on bail on 3 June 2020 on unrelated charges to reside at the property. This is only 16 days before the police searched the property on 19 June 2020.
iii.On 23 October 2020 the defendant appeared in the Christies Beach Magistrates Court on unrelated charges and a Home Detention Order Report was ordered by a magistrate to assess the suitability of the property for such an order.
iv.On 7 December 2020 the defendant appeared in the Christies Beach Magistrates Court on the same file when a Home Detention Order Report was again ordered by a magistrate to assess the suitability of the property for such an order.
v.Upon her arrest on 19 June 2020 for other offences the defendant’s application to be released on bail was refused. The written reasons for refusal of bail, which the defendant acknowledged receipt of by signing the form, records the defendant’s address as 23 Pebble Beach Grove, Seaford Rise.
vi.By a process of elimination, it can be inferred that bedroom 1 was not occupied by Kevin Lomax or Martin Hay. Lomax was in bedroom 2 when the police entered the property and from that and the walk-through video it can be inferred that he occupied that bedroom. Bedroom 4 contained men’s clothing and a wallet which contained Hay’s driver’s license. It can be inferred that bedroom 4 was occupied by Hay. Bedroom 3 was clearly being used as storage room, leaving only bedroom 1, which was not only locked, but was being occupied by someone other than Lomax or Hay.
vii.Bedroom 1 did not contain anything that would suggest that it was being occupied by a male. Rather, as the walk-through video reveals, the items in the bedroom are what might be expected if a female occupied the room, namely jewellery, skin care products and notably female clothing.
viii.The video of bedroom 1 reveals on the bed is a frame containing a card or picture that has written on it ‘Happy Mother’s Day. I love you. Ty. 2018’. One of the defendant’s children is named Ty.
ix.Also depicted in the video of the living area is a side table against the wall upon which are wooden block letters that spell the names Broc [sic] and Ty, the names of the defendant’s two children.
x.In the defendant’s personal property at the Christies Beach Police Station, which was taken from her for safekeeping following her arrest on the morning of 19 June 2020, was a set of keys which Detective Sergeant Klecko used to open the front door to the property and significantly, to the locked door to bedroom 1. The prisoner computer monitor displayed the defendant’s personal property that had been lodged by Senior Sergeant McDonald upon the defendant’s arrest. It was Senior Sergeant McDonald’s practice to activate the prisoner computer monitor for a prisoner to review while he read out the items of property removed from the prisoner upon arrest. Upon the prisoner agreeing with the property that was being placed in the secure bag matched the property displayed on the computer screen, Senior Sergeant McDonald would invite the prisoner to sign the property receipt on a scratch pad.[60] The custody record for the defendant depicts a signature that is dated 19 June 2020 at 3:24 am.
[60] P2 (Affidavit of Senior Sergeant McDonald).
The defence submitted that there existed too many variables in the circumstances presented by the prosecution to enable the court to be satisfied beyond a reasonable doubt that the defendant occupied bedroom 1 at the relevant time. The factors were outlined by counsel as being:
a.The defendant was not present at the property when it was searched.
b.The defendant’s children were not at the property when it was searched.
c.The presence of two identification cards in name of Sashauana Mourish and a Commonwealth Bank debit card in the name of Juliann Lock were located in the same drawer as the drugs. Mourish was released from custody 12 days before the property was searched.
d.There was no evidence that there was any identification in the name of the defendant in the bedroom, such as identification cards or letters addressed to the defendant.
e.There was no direct evidence as to who occupied which rooms at the property.
f.All bedrooms at the property were within close proximity of one another casting doubt on who may have occupied which room.
g.There were no fingerprints recovered from the drugs.
h.There is no DNA evidence.
i.There were no police investigations made concerning Martin Hay, Bradley Leaford, Sashauana Mourish or Sharon Partridge.
j.There was no evidence as to the provenance of the keys used to gain entry into the property and open the locked door to bedroom 1, or as submitted by counsel, ‘There is no chain of evidence with the keys’.
k.There was no evidence as to whether the keys were part of a set that included the key to the vehicle that was registered in Partridge’s name.
l.The written reasons for refusal of bail reveal that the defendant has a history of not complying with bail conditions. It was submitted that this undermines the prosecution’s contention that the defendant would more likely have resided at the property at the relevant time because she had been bailed to reside there 16 days earlier.
It must be remembered that in a circumstantial evidence case when determining whether an inference is reasonable, the court is to consider the evidence as a whole. A reasonable inference can be drawn from a combination of facts, none of which viewed alone would support that inference.[61] The court is not required to analyse each circumstance individually, none of which by themselves would support an inference that the defendant occupied bedroom 1 at the relevant time.[62] While such a conclusion must be established beyond a reasonable doubt, the individual primary facts used to establish that conclusion need not themselves each be proved beyond a reasonable doubt.[63]
[61] Shepherd v R (1990) 170 CLR 573; Chamberlain v R [No 2] (1984) 153 CLR 521; R v Hillier v R (2007) 228 CLR 618.
[62] R v Van Beelan (1973) 4 SASR 353.
[63] Shepherd v R at 575 and 585.
Further, in considering circumstantial evidence, the court need not reject one circumstance because, considered alone, no reasonable inference of what is sought to be proved can be drawn from that circumstance. The court must approach circumstantial evidence by considering the weight which is to be given to the united force of all the circumstances put together. One piece of evidence may resolve a doubt about another.[64]
[64] R v Hillier v R; Shepherd v R; Chamberlain v R [No 2]; R v Van Beelan.
I have considered and weighed all of the circumstantial evidence and, in doing so, have taken into account everything the defence has submitted when determining what inference can be drawn from the combined circumstances presented by the prosecution.
The factors identified by counsel for the defendant said to undermine the combined strength of the prosecution’s circumstantial evidence can readily be dismissed when deciding what inference should be drawn from the prosecution’s circumstantial evidence.
The absence of the defendant’s children from the property is immediately apparent from the walk-through video that young children were not living at the property. None of the bedrooms contained any evidence that suggested children might have occupied the bedrooms at the time. On the evidence, I am satisfied that the defendant’s children did not live at the property at the time. The fact the children were not living at the property, is not inconsistent with the defendant living at the property at the time. There may be a variety of reasons why the defendant’s children were not residing at the property with their mother at the time. The written reasons for refusing bail reveal that the defendant may have been experiencing some difficulties and challenges in her life such that it might not have been in the best interests of the children to be living with her at the time.
I am satisfied that each of the males identified as connected to the property occupied the respective bedrooms contended for by the prosecution when consideration is had to all of the circumstances, particularly by what is shown in the walk-through video. From my viewing of the walk-through video, it appears that bedroom 1 was being occupied by a female. There was nothing in bedroom 1 to even suggest that a male shared that bedroom with a female.
There is no reason to suspect that either Bradley Leaford or Sharon Partridge were residing at the property, let alone occupying bedroom 1 at the relevant time, based solely on Leaford being a passenger in a vehicle registered to Partridge that the defendant was driving in the early hours of 19 June 2020 when the defendant was arrested. Their connection to the drugs is so tenuous that I can well understand why Brevet Sergeant Wurst did not consider them suspects in the case.
The presence of the identification cards in the name of Sashauana Mourish and the debit card in the name of Juliann Lock in the drawer where the drugs were found in bedroom 1 does not cast any doubt on the inference to be drawn that the defendant occupied the bedroom, when all of the other circumstances are considered, particularly the mother’s day card on the bed, that I am satisfied was written by the defendant’s child Ty. Moreover, unlike the defendant, there is no other evidence that either Mourish or Lock resided at the property.
I am satisfied that the keys used by Detective Sergeant Klecko were in fact the keys that were in the defendant’s personal property. A consideration of P5 and P6 leads me to no other inference and, of course, the keys opened the front door and unlocked bedroom 1 of a property that the defendant was the registered tenant of and had been bailed to reside at only 16 days earlier.
I do not consider the defendant’s non-compliance with bail weakens the inference to be drawn from totality of the evidence that the defendant was residing at the property at the time. The fact that the defendant has a history of non-compliance with bail conditions could relate to anything. It is not necessarily limited to the defendant not residing at the property, as contended by defence counsel. In fact, the evidence discloses that the defendant consistently nominated or acknowledged her residential address as being 23 Pebble Beach Grove, Seaford Rise, both before and after her arrest on 19 June 2020, suggesting that any breaches of her bail agreement likely involve other issues.
The absence of fingerprints or lack of any DNA evidence on the drugs is neutral and does not weaken the overall strength of the circumstantial evidence.
Conclusion
On my consideration of the totality of the circumstances identified by the prosecution at [40], which facts I accept, and having regard to what has been submitted by the defence about the sufficiency of that evidence, I am satisfied beyond a reasonable doubt that the only reasonable inference open on the evidence is that the defendant resided at the property and that she solely occupied bedroom 1 at the relevant time. Put differently, but with the same effect, in my assessment of the totality of the circumstantial evidence, there does not exist any reasonable possibility that someone other than the defendant occupied bedroom 1 at the relevant time. Therefore, it follows that I am satisfied beyond a reasonable doubt that the defendant was in possession of the drugs.
Given my finding that the defendant was in possession of the drugs and as each amount of the drug involved a trafficable quantity of that drug,[65] the defendant is presumed to be in possession of each drug for the purpose of sale, in the absence of proof to the contrary.[66] The defendant did not proffer any proof to the contrary or advance any submissions to rebut the presumption. As such, it is strictly not necessary to consider the use to be made of the discreditable conduct evidence in bedroom 1 that suggests the defendant was trafficking in drugs, namely the CCTV monitor,[67] the taser, empty plastic snap-lock bags and unlawfully possessed identification cards and a debit card.[68] This evidence simply confirms that the drugs were more likely possessed by the defendant for the purpose of sale.
[65] A trafficable quantity of 1,4-Butanediol is 50g (mixed). A trafficable quantity of MDMA is 2g (mixed): Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) Schedule 1, Part 1.
[66] Section 32(5)(b) of the Controlled Substances Act1984 (SA).
[67] I also include here the CCTV monitor in the lounge room, as the inference to be drawn from the evidence is that whoever occupied bedroom 1 found it necessary to set up another monitor in the living area.
[68] This evidence was admitted pursuant to s 34P(2)(a) of the Evidence Act1929 (SA) for the purpose of rebutting any suggestion that the drugs were possessed by the defendant other than for the purpose of sale.
A commercial quantity of 1,4-Butanediol is 500g.[69] There was 607g of 1,4‑Butanediol in the 750ml Pump bottle in bedroom 1. I am satisfied beyond a reasonable doubt that the defendant intended to traffic in at least 500g of the drug.[70]
[69] Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) Schedule 1, Part 1.
[70] R v Parisi (2014) 119 SASR 277; R v Tassone [2016] SASCFC 146.
Verdicts
I find the defendant guilty of trafficking in a commercial quantity of 1,4‑Butanediol (Count 2) and guilty of trafficking in 3,4‑methylenedioxymethylamphetamine (Count 3).