R v Goodman - [2016] SADC 14

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GOODMAN
Criminal Trial by Judge Alone
[2016] SADC 14
Reasons for the Verdicts of His Honour Judge Muscat
11 February 2016
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE
The defendant is charged with six counts of trafficking in methylamphetamine, one count of trafficking in a large commercial quantity of 4-hydroxybutanoic acid (GHB), also known as ‘fantasy’, two counts of possessing a prescribed quantity of a controlled precursor, namely iodine and hypophosphorous acid and one count of possessing prescribed equipment, namely a reaction vessel and distillation heads.
The defendant pleaded not guilty to all counts. The prosecution discontinued the counts relating to his possession of the prescribed quantity of controlled precursors and possessing the prescribed equipment.
Circumstantial evidence - whether DPP case amounts to proof beyond reasonable doubt.
Verdicts: Not guilty of all counts.

R v GOODMAN
[2016] SADC 14
Introduction

Leon Goodman (‘the defendant’) is charged upon an Information of the Director of Public Prosecutions with six counts of trafficking in methylamphetamine, one count of trafficking in a large commercial quantity of 4-hydroxybutanoic acid (GHB), also known as ‘fantasy’, two counts of possessing a prescribed quantity of a controlled precursor, namely iodine and hypophosphorous acid and one count of possessing prescribed equipment, namely a reaction vessel and distillation heads.
The defendant pleaded not guilty to all counts. The prosecution discontinued the counts relating to his possession of the prescribed quantity of controlled precursors and possessing the prescribed equipment.
He elected to be tried by judge alone.
The defendant is aged 73 years. He suffers from a number of physical and neuropsychological conditions which affect his physical and mental functioning. He is also obese and requires the use of a walking frame to assist in his mobility.[1]
[1] See reports of Dr Paul Dawson dated 29 July 2015 and Mark Reid dated 20 May 2015 and the evidence of Tracey Goodman.
In 2000 the defendant and his wife moved to a semi-rural property of some two and a half acres. The property consisted of a main house, a large shed, a smaller adjacent shed, some horse stables and yards and two paddocks.[2]
[2] See aerial photographs P3 and D1.
The defendant and his wife have three adult children; two daughters and a son. None of the children lived at the property during the period of the charged offending conduct, although they were regular visitors there.
Some time ago the defendant and his wife separated but remained living under the same roof. The defendant’s wife suffers from a serious mental illness and although they remain separated the defendant acts as her carer.
There are some horses agisted on the property, which in 2013, were being looked after by the defendant’s two daughters, who would regularly attend the property to feed and check the horses.
There is an easement that runs between the defendant’s property and Julian Road to the east, which permits access to the water metre. The defendant’s daughter gave evidence that the easement consists of a path about 1.5 metres wide. One can access the defendant’s property at the south eastern corner by walking along the easement from Julian Road. The easement is depicted in the certificate of title tendered by the prosecution[3] and the aerial photograph of the property tendered by the defendant.[4]
[3] Exhibit P1.
[4] Exhibit D2.
The defendant did not give any evidence and I have not used this against him when evaluating the evidence.
The defendant has no previous convictions and evidence was led of his good character and reputation.[5] I have had regard to this evidence when determining the likelihood that the defendant committed the offences charged.[6]
[5] See evidence of Detective Fahy and Tracey Goodman.
[6] See R v Trimboli (1979) 21 SASR 577; Melbourne v R (1999) 198 CLR 1.
Fitness to stand trial
Prior to the commencement of the trial the defendant raised a question of his fitness to stand trial. It was contended that he suffered from cerebro-vascular disease which affected his cognitive functioning, particularly his ability to concentrate and recall evidence. Having heard from two expert witnesses[7] I was not satisfied on the balance of probabilities that the defendant had rebutted the presumption that he was mentally fit to stand trial.[8]
[7] See evidence of Mark Reid, a neuropsychologist and Dr Paul Dawson, a psychologist.
[8] Part 8A of the Criminal Law Consolidation Act 1935. Both expert witnesses ultimately accepted that given the simplicity of the prosecution case and with regular breaks in the proceedings the defendant would be able to follow the evidence and the course of the proceedings.
The prosecution case
On 8 July 2013 a large number of police officers attended at the defendant’s property. The defendant was present and was in possession of a key to the larger locked shed. He was informed that his property was to be searched for drugs.
Various quantities of methylamphetamine and fantasy and other associated chemicals and equipment used in the manufacture of those controlled drugs were found hidden in a number of different locations upon the property.
Whilst the defendant has been charged with seven counts of trafficking in controlled drugs, it is on the basis that he took part in the process of the sale of those drugs.[9]
[9] See definition of traffic contained in s 4(1) of the Controlled Substances Act 1984 and the Written Prosecution Case Outline.
The prosecution case is not that the defendant would have sold any of the drugs found by the police, but that he knew that the drugs were being stored on his property and permitted or allowed his property to be used to hide those drugs for the purpose of the sale of them by others.[10]
[10] See definition of a step in the process of a controlled drug contained in s 4 (5)(f) of the Controlled Substances Act 1984 and the Written Prosecution Case Outline used as a substitute for the opening address.
The prosecution case was presented by way of a Statement of Agreed Facts.[11] A series of photographs together with a legend was also tendered[12] and the investigating officer, Detective Fahy, was called to give some supplementary evidence.
[11] Exhibit P2.
[12] Exhibit P4 and P5.
The issue in contention in the case was whether the prosecution could establish that the defendant had knowledge of the presence of the drugs located by the police and hidden in the various locations on his property as detailed in the Statement of Agreed Facts and in the evidence of Detective Fahy.
The prosecution case was based on circumstantial evidence, namely, the drawing of inferences from the location of the items found by the police on the defendant’s property and the quantity and value of those drugs to support the conclusion, beyond reasonable doubt, that the defendant must have had knowledge that the drugs were on his property and allowed them to be stored there for the purpose of sale by others.[13]
[13] Written Prosecution Case Outline and prosecution closing address.
As the prosecution case is entirely circumstantial in nature, the defendant’s guilt must be the only rational inference which can be drawn from the totality of the circumstantial evidence.[14]
[14] Shepherd v R (1990) 170 CLR 573; Barca v R (1975) 133 CLR 82.
When a case against a defendant is based wholly on circumstantial evidence, as here, a verdict of guilty cannot be returned unless the circumstances exclude any reasonable hypothesis other than the guilt of the defendant.[15] If an inference or hypothesis consistent with innocence is open on the evidence, a defendant must be given the benefit of the doubt necessarily created by those circumstances.[16]
The charged counts
[15] Barca v R (1975) 133 CLR 82; Doney v R (1990) 171 CLR 207; Chamberlain v R [No2] (1984) 153 CLR 521; Peacock v R (1911) 13 CLR 619.
[16] Knight v R (1992) 175 CLR 495.
Count 1
This count concerns two small plastic tubs each containing amounts of methyamphetamine, together with a number of empty plastic press seal ‘deal’ bags. These items were found inside a blue plastic bucket sitting on the southern shelf at the rear of the main shed.
Count 2
This count relates to a small plastic tub containing methlyampetamine paste in liquid together with an accompanying handwritten note which was not in the defendant’s writing. These items were found inside a postage box on the bottom of the shelves in the main shed.
Count 3
This count concerns items, including glassware, found inside a cupboard in the main shed. A 500 ml glass beaker contained liquid methylamphetamine.
Count 4
This count relates to a container buried in the south eastern corner of the property near to the horse stables. Inside a cryovac bag in the buried container were three tubs each containing significant amounts of methylampetamine.
Count 5
This involves a quantity of liquid methylampetamine found inside a glass ‘schott duran’ brand 1000 ml bottle located inside the small shed adjacent to the main shed.
Count 6
This concerns a large black plastic tub found partly concealed under a large blue tarpaulin inside the eastern most horse stable. The tub contained glassware and chemicals and two plastic drink bottles each containing liquid methylampetamine.
Count 7
Finally, this count relates to a 10 litre water container in which was 7.7 litres of 4-hydroxybutanoic acid, commonly known as ‘fantasy’, found inside the small shed.
There were other items associated with the manufacture of methylampetamine, including glassware and chemicals found in various locations in the main shed and the smaller adjacent shed.
The evidence reveals that the items found in the two sheds and the horse stables were not easily visible to anyone who did not know of their presence there. Those items were all stored inside containers of various sorts, such as a bucket, postage box, plastic tub and other containers, as well as inside a cupboard. The container buried in the ground was obviously not visible and the police only unearthed that container after surveying the entire property whilst digging holes following information they had gathered from another investigation involving others who had also buried drugs in a similar way at other country sites.[17]
[17] See evidence of Detective Fahy. It is agreed that two defendants are presently awaiting trial before this Court in respect to those drugs and the manufacture of controlled drugs for sale.
The photographs and the evidence given by Detective Fahy reveal that the drugs the police located, as well as the chemicals and equipment as detailed in the Statement of Agreed Facts, would not have been obvious to anyone other than the person or persons who had placed the items there, or unless someone was informed of their presence and location on the property.
This is an important consideration in the context of the prosecution case. The defendant’s health affects his mobility and thus his ability to have physically entered and inspected the various locations where the drugs were hidden.[18] Further, on this topic, the defendant’s daughter gave evidence that her father spent most of his time inside the house with her mentally unwell and agoraphobic mother.[19]
[18] See evidence of Tracey Goodman.
[19] Ibid.
For example, the two tubs containing methylamphetamine, the subject of count 1, were inside a bucket on the back shelf of the main shed as depicted in photograph 4 of Exhibit P4. Unless one went to the back of the shed and looked into the bucket, one would not have known that the drugs were there. I have taken notice of the state of the shed as depicted in the photographs, and the undisputed state of the defendant’s physical health in determining the likelihood as to whether he would have known what was placed inside his shed without having witnessed that himself or having been told by others, who on the prosecution case, had hidden the drugs there.
Another similar example of this concerns the postage box on the bottom of some shelving in which an amount of methylamphetamine was found, the subject of count 2. Detective Fahy was unable to tell me what the postage box looked like or exactly where it was located. There is no photograph of the box in evidence. Unless the defendant knew that the postage box was in the shed and what it contained, then plainly he would not have had knowledge of the presence of the methylamphetamine inside it.
A starker example related to the drugs that were found buried in a container in the south-eastern corner of the defendant’s property next to the horse stables. Unless the defendant was present when the drugs were buried there or was told of their presence by those who had buried them there, then he could not possibly have known that the drugs were there. The same can be said of the black plastic tub inside one of the horse stables. The evidence reveals that the defendant would not have gone to that part of his property.[20]
[20] Ibid.
Finally, in relation to the small shed adjoining the main shed in which the drugs, the subject of counts 5 and 7 were discovered, there is no evidence of precisely where they were located by the police inside that shed or what else was inside the shed. The evidence given by the defendant’s daughter was that the shed was used to store ‘junk’.[21] Again, there is no evidence of the defendant having any particular reason to enter that shed.
[21] That shed contained, amongst other things, empty drums and old horse rugs, as well as being used to store horse feed: see evidence of Tracey Goodman.
As previously stated, the prosecution does not contend that the defendant was in possession of the drugs located on his property or that he was personally trafficking in them.
It was an agreed fact that the defendant’s son was convicted and imprisoned for trafficking in amphetamines and being in possession of cocaine and ecstasy. The defendant’s son was imprisoned in respect of those offences between 17 May 2012 and a date after 8 July 2013.
Two other men, one of whom was closely associated with the defendant’s son, have been arrested by the police in relation to the manufacture and trafficking of methylamphetamine and are presently before the court facing similar charges as the defendant but relating to different properties. It was an agreed fact that a tracking device had been placed on a vehicle used by both men which revealed attendances at the defendant’s property during 2013, before the police raid. It was a further agreed fact that there is no evidence to prove that the defendant was present at the time those men attended at the property on any occasion.[22]
[22] See last paragraph of Statement of Agreed Facts.
These concessions by the prosecution alone raise a reasonable possibility that the defendant was not aware of the presence of the drugs found by police at his property on 7 July 2013.
Whilst the defendant had a key to the locked main shed when the police arrived, the defendant’s daughter gave evidence that there were also keys to that shed kept in either of the two power boxes on the property.[23] Presumably, if she knew the spare keys were kept there then the defendant’s son would also have known.
[23] One power box was next to the shed and the other behind a caravan.
Proof of the charged offences
The prosecution case is that the defendant knew that either his son or others had hidden the drugs on his property and that he allowed them to do so for the purpose of the sale of those drugs by them.
The prosecution has contended that the circumstantial evidence should satisfy me beyond reasonable doubt that those other persons, including the defendant’s son, would not have stored the drugs on the defendant’s property without his knowledge, and that I should be satisfied beyond a reasonable doubt that the defendant knew that to be the case because he had either personally witnessed the drugs being stored on his property and agreed to doing so knowing that they would be sold, or that he was told by those placing the drugs there that they had done so and he allowed his property to be used for that purpose, again knowing that the drugs were to be sold by them.
It is accepted by the prosecution that there is no evidence to show how long the drugs had been stored at the defendant’s property; whether they had been placed there by the defendant’s son before his imprisonment on 17 May 2012, or placed there by others after that date.
It must be proved beyond reasonable doubt that the defendant knew the drugs, the subject of the charged counts, were on his property and not some other drugs that may have once been stored there but later removed.[24]
[24] For example, as suspected by Detective Fahy, drugs might have been hidden in some plastic tubing underneath a bath tub in the horse yard.
On all of the evidence I am simply not satisfied beyond a reasonable doubt that the defendant had knowledge of the drugs that the police located on his property on 7 July 2013.
In my consideration of the circumstantial evidence there exists a number of reasonable explanations not excluded by the prosecution and consistent with the defendant not knowing that the drugs, the subject of the charged counts, had been placed on his property.
For example, on the admitted facts, it is a reasonable possibility that the defendant was not at home when others attended there and placed the drugs in the various locations discovered by the police.[25] It is also a reasonable possibility on the evidence that before the defendant’s son was imprisoned, he had hidden all of the drugs on his father’s property without his father’s knowledge.
[25] See last paragraph of Statement of Agreed Facts.
Given the poor state of the defendant’s health and his immobility and the evidence given by the defendant’s daughter that her parents remained inside the house due to her mother’s conditions, it is a reasonable possibility that the defendant may not have been aware that anyone had attended the property.
There exists a reasonable possibility that persons may have accessed the south eastern corner of the defendant’s property, where the drugs the subject of counts 4 and 6 were found by the police, via the easement, without the defendant’s knowledge.
There exists a reasonable possibility that even if the defendant was aware that others were on his property, that he did not know what or where anything was being stored by them or whether they were there to retrieve something from a previous occasion.
All of these possibilities simply highlight the difficulty faced by the prosecution in establishing that the only rational inference to be drawn from the circumstantial evidence is that the defendant knew of the presence of the drugs on his property and permitted or allowed his property to be used for the purpose of the sale of those drugs by those others who had placed them there with his knowledge and consent.
Verdicts
I find the defendant not guilty of all counts.