R v Haseldon

[2012] NSWDC 15

District Court

New South Wales

Medium Neutral Citation:

R v Haseldon [2012] NSWDC 15

Hearing dates:

8, 9, 14, 17 February 2012

Decision date:

24 February 2012

Before:

Murrell SC DCJ

Decision:

Count 2 ( Supply cannabis resin ): Guilty

Count 3 (Supply cannabis leaf): Guilty

Count 4 ( Supply methylamphetamine ) : Not guilty

Count 6 ( Supply cannabis resin ): Guilty

Catchwords:

Judge alone trial
Deemed supply
Actual supply
Possession

Legislation Cited:

Drug Misuse and trafficking Act 1985, s 29
Criminal Procedure Act 1986

Cases Cited:

R v Carey (1990) 20 NSWLR 292
Alliston v R [2011] NSWCCA 281

Category:

Principal judgment

Parties:

NSW DPP
Mr Haseldon

Representation:

Mr C. McPherson (Crown)
Mr N. Harrison (Accused)
Ms A. Lee/Ms Sanderson (DPP)
Mr V. Boss (Accused)

File Number(s):

2011/102027

Judgment

The Trial

1. Jeffrey Haseldon (the accused) elected to be tried by a judge alone and the Director of Public Prosecutions consented. Pursuant to s 132(6) of the Criminal Procedure Act 1986, I was satisfied that, before making the election, the accused had sought and received advice from his legal representative (MFI 1).

1. The accused was indicted on six counts. He entered the following pleas:

Count	Date of Offence	Charge	Plea
1	1.1.11 - 24.3.11	Manufacture cannabis resin	Guilty
2	24.3.11	Supply cannabis resin (deemed supply 64.8g)	Not guilty
3	24.3.11	Supply cannabis leaf (deemed supply 1044g)	Not guilty
4	24.3.11	Supply methylamphetamine (deemed supply 12.9g)	Not guilty
5	24.3.11	Cultivate prohibited plant (5 cannabis plants)	Guilty
6	24.3.10 - 24.3.11	Supply cannabis resin (actual supply)	Not guilty

General Directions

1. The trials of four offences contrary to the Drug Misuse and T rafficking Act 1985 (the Act) to which the accused pleaded not guilty were heard together as a matter of convenience. I must consider each charge separately and return a separate verdict on each .

1. The accused is presumed to be not guilty of each of the four offences . The onus is on the Crown to prove him guilty beyond reasonable doubt in relation to each offence . In order to prove an offence, the Crown must prove each legal element of that offence beyond reasonable doubt. Having regard to the way in which the trial was run, in relation to counts (2) and (3), if the Crown satisfies the onus cast upon it then the onus shifts to the accused to prove on the balance of probabilities that he possessed the relevant drug otherwise than for supply .

1. In making findings of fact, I must rely upon the evidence, ie the evidence given by the witnesses and that contained in the exhibits.

1. The accused gave sworn evidence. He was not obliged to give evidence and subject himself to cross-examination. However, as he did so, I assess his evidence in the same way that I assess the evidence of any witness, inter alia, by considering apparently significant inconsistencies and by applying common sense.

Undisputed Facts

1. On 24 March 2011, police executed a search warrant at premises owned and occupied by the accused. A police sniffer dog accompanied the police. The accused was present during the search. The search was video recorded (Exhibit B). During the search, the accused made admissions in relation to the manufacture of cannabis resin and the possession of cannabis leaf and plants. A transcript of the conversation between police and the accused during the search was made av ailable as an aid to the Court (MFI 2). Later that day, the accused was interviewed electronically and confirmed most of the statements made during the search (Exhibit D).

1. In the period immediately preceding the search, the accused was the sole occupant of the premises. He slept in the main bedroom. Ordinarily, his wife resided at the premises but, as at 24 March 2011, she had been overseas for several months. In effect, both parties agreed that she had no association with prohibited drugs. T, a son of the accused, had occupied the second bedroom until a few weeks before the search. T has a criminal history for amphetamine supply. Just before the search, he was charged with possessing apparatus for the manufacture of a prohibited drug. From time to time, the accused was visited by his other two sons, S and H, and by friends who belonged to a motorcycle gang. Several years before the search, while the accused was absent from the premises, S resided there with another man (who may be the person referred to in Exhibit D, A13).

1. During the search, police located a number of items in the main bedroom. Within a bedside table drawer, they located 111.2 g of dried loose cannabis leaf in a resealable plastic bag (Exhibit C, Item 6; part of count 3). Elsewhere in the room, they located a bag containing 276g of damp, loose cannabis leaf ( Exhibit C, Item 1; part of count 3). On the second bedside table, they located a small amount of cannabis resin (Exhibit C, Item 3; part of count 2). It was beside a pipe and two bundles of money. The Crown did not allege that the money was the proceeds of crime. On one of two dressing tables/chests in the main bedroom, police located a substantial ball of cannabis resin (Exhibit C, Item 2; part of count 2). The total weight of the two quantities of cannabis resin was 64.8g.

1. The accused admitted ownership of all the cannabis found in his bedroom (Exhibit D, A30). He said that the cannabis resin was for his personal use. He said that he smoked cannabis resin every night and the resin in the bedroom would last him about three months (MFI 2, p 4). The accused suffers from osteomyelitis and osteoarthritis. Those conditions cause him pain and difficulty with sleep.

1. Beside the ball of cannabis resin on the dressing table /chest , there was a small dressing table drawer. Police said that, when they removed the drawer, they located a small resealable plastic bag of white powder (Exhibit C, Item 15), being methylamphetamine (purity 1.5%) that had been wedged behind the drawer (count 4). The accused was not present in the main bedroom when the powder was found and did not concede that it was found in the manner alleged by police. When told of the find ing , he expressed shock and denied prior knowledge of the substance (MFI 2, p 27).

1. Police proceeded to a garage/shed, where the accused indicated a tub. The accused said that the tub was used to produce cannabis resin. The police sniffer dog did not detect cannabis in the area of the tub and it was only through the accused that police became aware of the use to which the tub had been put. In describing the manufacturing process, during his later interview the accused said that cannabis was harvested, the cannabis "heads" were dried and the dry material was th en processed via an iced water/filter system (Exhibit D, A 49; count 1). The accused said that he used the tub to make resin about once every six months for personal use. The last batch of cannabis resin had been manufactured three or four months before the search with the assistance of "a mate" (MFI 2, p 12)

1. Within a small room in the garage/shed, police saw five cannabis plants of significant size that were being cultivated hydroponically (Exhibit C, Item 8; count 6). During the later interview, the accused admitted that he had constructed the room about 12 months earlier and had planted the five plants three or four months earlier.

1. In an upstairs area of the garage/shed, there were drying racks containing damp cannabis that appeared to be freshly picked , including "high quality cannabis head" (MFI 2, pp 14-15; Exhibit C, Items 7 and 11; part of count 3). During the search, the accused referred to the material on the drying racks, stating that he had harvested 12 plants recently and volunteering that he had separated the cannabis (MFI 2, p 15). When later interviewed, the accused made the following statements (Exhibit D):

Q80 : Do you agree that outside the room police located, or you indicated to police a quantity of high quality cannabis head on a drying type rack?

A :      Yeah.

Q81 : Can you tell me where that cannabis came from?

A :      Ah, out of the hydroponic.

Q82 : When did you harvest that?

A :      4, 3 or 4, 2 days ago, you know, over a period of time, yeah, just did it there.

Q83 : Also, a short distance away from th at cannabis was a quantity of l ower grade cannabis leaf. Do you agree with that?

A :      Mmm.

Q84 : Where did that leaf come from?

A :      That's what I trimmed off those plants.

The accused indicated another room, stating that he had previously grown cannabis in that room . It contained empty pots and hose connections.

1. With the possible exception of the resealable plastic bags referred to in par (9) and par (11), police located no scales, resealable plastic bags or other such indicia of drug supply. The videorecording did not illustrate affluence inconsistent with the status of the accused as an invalid pensioner.

Count 2: Supply prohibited drug (cannabis resin, deemed supply)

Elements

1. In order to prove this offence , the Crown must establish three legal elements beyond reasonable doubt :

(1)   The accused possessed the resin substance in the main bedroom.

(2)   The substance was cannabis resin, a prohibited drug.

(3)   The quantity of cannabis resin exceeded the trafficable quantity for cannabis resin.

1. A person "possesses" a substance if he or she intentionally has actual control over the substance (either individually or jointly with another person or persons) to the exclusion of third parties, or has the ability to exercise control over the substance to the exclusion of third parties. The person must know of the presence or likely presence of the substance, and that it is or may very well be a prohibited drug . They must intend to possess it.

1. It is the actual knowledge and intention of the particular accused that must be considered (rather than what a reasonable person would have known and intended). The state of mind of the accused may be the subject of an admission, or it may be capable of inference from the circumstances. Often a person's acts provide the most convincing evidence of their knowledge and intention.

Evidence

1. Cannabis resin is a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985. The prescribed "trafficable quantity" for cannabis resin is 30 g.

1. At the time of the search, in the electronically recorded interview and in his evidence at the trial, the accused admitted that he owned the cannabis resin located in his bedroom. He said that he had manufactured it, he knew what it was , and he intended to personally use the whole of the cannabis resin.

1. There was expert evidence that the substance in question was cannabis resin and that the quantity of resin was 64.8g, approximately twice the trafficable quantity of 30 g (Exhibit J).

1. The Crown has proved beyond reasonable doubt each of the three legal elements that it is required to prove. As the Crown has proved beyond reasonable doubt that the accused was in possession of not less than the trafficable quantity of cannabis resin, the onus shifts to the accused to prove on the balance of probabilities that he had the drug in his possession "otherwise than for supply".

1. The accused has consistently asserted that he possessed the cannabis resin for the sole purpose of smoking it to alleviate pain a nd enable him to sleep. There is no dispute that the accused does suffer from painful medical conditions.

1. As to that part of the cannabis resin that was located on the bedside table, having regard to its quantity, bedside location and the proximity of the pipe, I accept on the balance of probabilities that it was intended for personal use by the accused.

1. As to the ball of cannabis resin that was located on the dressing table, it is necessary to consider the ev idence:

(1)   The accused was involved in the small-scale manufacture of cannabis resin. The accused consistently maintained that all the resin was for personal use.

(2)   The quantity on the dressing table was substantial but, at one point in his evidence, the accused said: "I only used a little bit" (albeit on a regular basis).

(3)   During the search, the accused said that he had three months worth of resin (MFI 2, p 4) but, at the time of the search, he was preparing to make more resin using the "head" on the drying rack.

1. I found the accused to be a most unreliable witness and I place no credence on his evidence . In the face of clear statements made during the search and interview, in evidence the accused equivocated about whether there was separated "head" on the drying rack. He also asserted for the first time that the "leaf" near the drying rack was intended for use as vegetable garden compost. The assertion advanced for the first time in the witness box that the accused was drying "leaf", a valuable illegal commodity, for use in his vegetable garden is preposterous. W hen giving evidence the accused himself seemed to hesitate when he appreciated the import of his assertion. I note my finding that the evidence of the accused in relation to the count of actual supply of canna bis resin to an unnamed person was a fabrication: see par (48) .

1. The accused was preparing to make more resin at a time when there was a significant amount (three months worth, according to the accused) of unused resin in the main bedroom. It follows that the accused must have intended to supply others either with the material in the bedroom or with the new resin that he proposed to make, or both. The accused has failed to prove on the balance of probabilities that he possessed the ball of resin found on the dressing table otherwise than for supply.

Count 3: Supply prohibited drug (cannabis leaf, deemed supply)

Elements

1. In order to prove this offence , the Crown must prove beyond reasonable doubt:

(1) The accused possessed the "leaf" and "head" in the bedroom and on the drying rack.

(2) The substance was cannabis leaf, a prohibited drug.

(3) The quantity of exceeded the trafficable quantity for cannabis leaf.

Evidence

1. The accused admitted intentional possession of the substances in his bedroom and on the drying racks, and admitted that he knew them to be cannabis. He volunteered that he had cultivated and picked the cannabis.

1. There was expert evidence that the substances were cannabis leaf in a tota l quantity of 1044 g (Exhibit J: 111.2g in the smaller bag, 657g on the drying rack, 276g in the larger bag). The "trafficable quantity" for cannabis leaf is 300g.

1. During the search and police interview, the accused did not assert that he had intended to smoke or otherwise personally dispose of the cannabis leaf in his bedroom.

1. In evidence, the accused asserted that he had intended to use the "head" component of the cannabis leaf to make resin for personal consumption, and to dispose of the "leaf" component as rubbish, or by using it as compost on his vegetable garden. As to the fact that the cannabis leaf in the bedroom was bagged, the accused said that it was the first picking from the new crop and he would have bagged it unt il the time came to make resin.

1. I consider the bagging of the cannabis (particularly the use of a resealable plastic bag) and the placement of the cannabis in the bedroom to be actions that are not consistent with an intention to further process "head" in the garage and place the remainder on the vegetable garden.

1. For the reasons stated in par (26) , I find the accused to be an unreliable witness. I am not satisfied on the balance of probabilities that the cannabis leaf in the main bedroom and on the drying racks was in his posses sion otherwise than for supply.

Count 4: Supply prohibited drug (methylamphetamine, deemed supply)

Elements

1. In order to prove this offence, the Crown must prove beyond reasonable doubt:

(1)   The accused possessed the powder in the bedroom.

(2)   The powder was methylamphetamine, a prohibited drug.

(3)   The quantity exceeded the trafficable quantity for methylamphetamine.

Evidence

1. There was expert evidence that the powder was 12.9 g of methylamphetamine with a purity of 1.5% (Exhibit J). The "trafficable quantity" for methylamphetamine is 3 g. "Trafficable quantity" refers to the total quantity, not the pure quantity of methylamphetamine.

1. The contentious issue is whether the Crown has proved beyond reasonable doubt that the accused "possessed" the powder in the sense that he intentionally controlled the substance. In the circumstances of this case, the issue is whether the Crown has proved beyond reasonable doubt that the accused knew of the existence of the resealable plastic bag of white powder that was wedged behind a drawer in his bedroom.

1. Important circumstances upon which the Crown relies to establish that the accused must have known of the presence of the methylamphetamine are that, on 24 March 2011, the accused was the sole occupant of the premises and of the bedroom in which the powder was located. T, the son of the accused who had recently occupied the second bedroom of the premises, gave evidence that he had no knowledge of the methylamphetamine. The drawer behind which the powder was located was adjacent to the ball of cannabis resin, ie the methylamphetamine was found in an area of the bedroom where the accused kept other illegal drugs.

1. T appeared to be a credible witness. He was obviously reluctant to give evidence and distressed at the prospect that his evidence might harm his father.

1. The accused noted that, on 24 March 2011, he had readily admitted his involvement with growing cannabis plants. He had volunteered that he had manufactured cannabis resin. In contrast, when confronted with the methylamphetamine, the accused expressed shock and disavowed any knowledge of the substance. He had taken no care to conceal the cannabis resin in the bedroom, but the methylamphetamine was well concealed. The police sniffer dog detected no trace of methylamphetamine elsewhere at the premises. Although the accused was the sole occupant of the premises, unsavoury characters often visited the premises. T 's evidence may have been prima facie believable, but he was a convicted amphetamine supplier and, immediately prior to searching the premises of the accused, police had found equipment at T 's residence that they believed was used to manufacture amphetamines.

1. While I consider it very probable that the accused knew of the presence of the methylamphetamine, the matters referred to in par (40) do create a reasonable doubt about the knowledge of the accused.

Count 6: Supply prohibited drug (cannabis resin, actual supply)

Elements

1. In order to prove this offence , the Crown must prove beyond reasonable doubt:

(1)   The accused supplied (in that he intentionally gave) a substance to an unnamed man.

(2)   The substance was the prohibited drug cannabis resin.

(3)   The accused knew or believed that the substance was a prohibited drug of some description.

1. As to the intention and knowledge referred to in (1) and (3), it is the actual intention and knowledge of the accused that must be proved, not that of a hypothetical reasonable person.

Evidence

1. To establish this offence, the Crown relies upon admissions made during the search on 24 March 2011 and confirmed during the electronically recorded interview on the same day, to the effect that, approximately three or four months prior, the accused deliberately gave approximately one quarter of the cannabis resin that he had manufactured to the man who had assisted him with the manufacturing process.

1. During the search (MFI 2, pp 12-13), the accused answered police questions as follows:

Police : When did you, when did you do that, when did you last make your last batch of cannabis resin?

A :         Ah, three or four months ago I suppose, yeah.

Police : Did anyone assist you do that?

A :          Yeah, a mate give me a hand.

Police : What was his name?

A :         Ah, I'd rather not say

Police : Okay

A :          Cause he's just helping me out

Police : Sure. Did he receive any of the proceeds of the wash-up?

A :          Oh, he took some for giving us a hand.

Police : Did he?

A :          Yeah.

Police : How much did he take?

A :          He took probably about a quarter.

During the interview on 24 March (Exhibit D), the accused said:

Q56 : Do you agree at the premises you informed me that you were assisted by a mate to --

A :      Yes

Q56:  M anufacture that resin?

A :      Yeah

Q57 : Do you agree that you also informed me that as a result of that assistance your mate received a quantity of cannabis resin?

A :      Yeah

Q58 : Can you tell me how much of that resin he received?

A:       Ah, about a quarter.

Q59 : A quarter of the total amount?

A :      Yeah

...

Q61 : What we seized to day was --

A :      Ah, that, that, from, that'd be one, could be one lot, maybe a bit more.

Q62 : One full lot?

A :       Yeah, maybe more.

Q63 : And he received what a quarter of one full lot?

A :      Yeah

1. In evidence, the accused claimed for the first time that the unidentified man who usually assisted him brought with him a quantity of his own cannabis leaf. It was combined with the cannabis leaf belonging to the accused. At one stage, the accused suggested that the quantity of cannabis that he, the accused, contributed to the joint manufacturing operation was small by comparison. The man brought the tub and bags with him. The accused provided the ice. The accused asserted that, once the resin had been manufactured, the man divided it up and allocated an amount to the accused.

1. The version given in evidence contrasted with that provided during the search and interview . In the earlier version, the accused was the principal in the manufacturing operation and was assisted by the unnamed man, who was paid in kind with approximately a quarter of the manufactured resin. The version given in evidence involved a partnership with the unnamed man (in which the accused was, if anything, the junior partner) whereby each contributed his own cannabis leaf. If the Court was satisfied of the later scenario on the balance of probabilities, the accused could have argued that there was no supply because s 29 of the Act does not capture the return of drugs to their owner: R v Carey (1990) 20 NSWLR 292 per Hunt J at p 294, Alliston v R [2011] NSWCCA 281.

1. At the time of the search, the accused was reasonably cooperative and helpful towards police. For example, but for the assistance provided by the accused, the police may not have identified the tub and bags used in the resin manufacturing process and may not have appreciated that the accused had manufactured resin. It is likely that, on 24 March 2011, the accused minimised his involvement with drug manufacture and supply. I reject the possibility that he overstated his involvement. For this and the reasons already given for finding that the accused was a most unreliable witness (par 26), I find that the evidence of the accused on this matter is a fabrication and the admissions made on 24 March reliably establish each of the elements of this count beyond reasonable doubt.

Verdicts

1. The Court returns the following verdicts:

Count 2 (Supply cannabis resin): Guilty.

Count 3 (Supply cannabis leaf): Guilty.

Count 4 (Supply methylamphetamine): Not guilty.

Count 6 (Supply cannabis resin): Guilty.

Decision last updated: 28 February 2012