R v Hill and May - [2018] SADC 67

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HILL AND MAY
Criminal Trial by Judge Alone
[2018] SADC 67
Reasons for the Verdicts of His Honour Judge Tilmouth
15 June 2018
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
The accused May is charged with trafficking in a large commercial quantity of a controlled drug and three counts of trafficking in a controlled drug.
Discussion and application of the requirements to prove knowing possession or joint possession of controlled drugs in charges of trafficking in those drugs and of the proper construction of s 33P of the Controlled Substances Act.
Held:
1. As there is no proof May knew of, was reckless as to, or was in possession of controlled drugs, she is found not guilty of counts 35, 38 and 39.
2. As she had joint possession of the methylamphetamine with a co-accused for the purpose of sale, she is found guilty of count 37.
Controlled Substances Act 1984 (SA) s 4, s 4(5), s 4(7), s 32(1), s 32(2), s 32(3), s 32(5), s 33L, s 33P; Criminal Law Consolidation Act 1935 (SA) s 32(5), s 270A, s 278(1); District Court Criminal Rules 214 (SA) r 42(1), r 42(4), r 42(5); Juries Act 1927 (SA) s 7(1)(b), s 7(3); Juries Rules 1996 (SA) r 41; R v Gavare (2011) 274 LSJS 553; R v Chapman (2001) 214 LSJS 319; R v Reeves (1992) 29 NSWLR 109; Pryor v The Queen (1969) 43 ALJR 388; Azzopardi & Davis v The Queen (2001) 205 CLR 50; R v Brown (1913) 17 CLR 570; R v Robinson & Tiplady (1985) 123 LSJS 37; R v Copeland (1997) 194 LSJS 1; R v Parisi (2014) 119 SASR 277; R v Pringle [2017] SASCFC 9; R v Tassone [2016] SASCFC 146; R v Nguyen (2005) 12 VR 299; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) Schedule 1; Williams v The Queen (1978) 140 CLR 591; He Kaw Teh v The Queen (1985) 157 CLR 523; R v Clare [1994] 2 Qd R 619; Sheppard v The Queen (1990) 170 CLR 573; R v Merritt [1999] NSWCCA 29; R v Poulter (1978) 19 SASR 370; Evidence Act 1929 (SA) s 33R(2), s 34P(2), s 34Q; Narcotic and Psychotropic Drugs Act 1934 (SA) s 5(1)(a); R v Conley (1982) 30 SASR 226; Warner v Metropolitan Police Commissioner [1969] 2 AC 256; Thomas v The King (1937) 59 CLR 279; Sherras v De Rutzen [1895] 1 QB 918; R v GNN (2000) 78 SASR 293; Moors v Burke (1919) 26 CLR 265; Bahri Kural v The Queen (1978) 162 CLR 502; Saad v The Queen (1987) 61 ALJR 243; R v Alwazan [2016] SASCFC 155; R v Tran [2011] SASCFC 85; Douglass v The Queen (2012) 86 ALJR 1086; R v Cashion (2013) 115 SASR 451; R v Domokos (2005) 92 SASR 258; R v Ngo (2002) 135 A Crim R 550; R v Castle and Bucca [2015] SASCFC 180; R v Soteriou (2013) 118 SASR 119; R v Hill and Young [2014] QCA 107; Martin v Osborne (1936) 55 CLR 367; R v Schanker [2018] VSCA 94; R v Mustafa (2005) 91 SASR 62; R v Hulse (1971) 1 SASR 327; R v Derwish [2016] VSCA 72; Twining v Samuels (1971) 2 SASR 50; Whitmore v Harding (1974) 9 SASR 312; Dimitriou v Samuels (1975) 10 SASR 331; R v Celani (1983) 35 SASR 225; Camilleri v Wilkinson (1983) 35 SASR 270; R v Moore (1956) 40 Cr App R 50; R v Fowler (1985) 39 SASR 440; Bannon v The Queen (1995) 185 CLR 1, referred to.
R v Frangos (1979) 21 SASR 331; He Kaw Teh v The Queen (1985) 157 CLR 523, applied.
R v Scarpantoni (2013) 118 SASR 131, distinguished.

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - ATTEMPT
The accused Hill is charged with one count of trafficking in a large commercial quantity of a controlled drug, trafficking in a controlled drug, trafficking in a commercial quantity of a controlled drug and attempted trafficking in a controlled drug.
The prosecution did not raise the prospect of an alternative verdict of attempt until its closing address. This course was opposed by defence counsel due to a forensic disadvantage, because the charge of attempt focused differently on the accused's state of mind.
Held:
1. There is no forensic disadvantage because the mental state of mind required for the completed offences of trafficking and for attempted trafficking are identical. For an attempt, the actual intent to commit the completed offence must be proven.
2. The prosecution has failed to prove that the accused traded in 1,4-Butanediol, but it is proven one of the fantasy drugs specified in the particulars on counts 9, 16 and 23 was trafficked.
3. As it is proven Hill intended to acquire more than 2 kg of 1,4-Butanediol, she is found not guilty of count 9, but guilty to the alternative offence of attempt.
4. As it is proven Hill believed she had purchased 1,4-Butanediol and sold it on both occasions with that belief, she is found not guilty of counts 16 and 23, but guilty of the alternative offence of attempt.
5. As Hill intended to purchase 1,4-Butainediol and knowingly took steps more than merely preparatory of the completed offence and which can only be regarded as having no other purpose than the commission of that offence, she is found guilty of count 36 as charged.
Alister v The Queen (1984) 154 CLR 404; Britten v Alpogut (1986) 23 A Crim R 254; R v Mai & Tran (1992) 60 A Crim R 49; R v Mai (1992) 26 NSWLR 371; R v Milenkovski v State of Western Australia (2004) WASCA 85; R v Inegbedion (2013) NSWCCA 291; R v Willingham (2012) 112 SASR 278; Shaw v The Queen (1952) 85 CLR 365; R v Soma (2003) 212 CLR 299; R v Caratti (WACCA 9 June 1998, unreported); R v Howard (2005) 156 A Crim R 343; Patel v The Queen (2012) 247 CLR 531; R v Solomon [1980] 1 NSWLR 321; R v Torney (1983) 8 A Crim R 437; R v King (1985) 17 A Crim R 184; R v King (1985) 17 A Crim R 184; King v The Queen (1986) 161 CLR 423; R v GAS [1998] 3 VR 862; R v Powell [2014] SASCFC 48; R v Quinn (1991) 55 A Crim R 435; Keenan v The Queen (2009) 236 CLR 397; R v Donnelly [1970] NSLR 980; R v Tran (2000) 105 FCR 182; Johns v The Queen (1980) 143 CLR 108, referred to.
R v Collingridge (1976) 16 SASR 117; R v Franco (2003) 139 A Crim R 228; R v Benbolt (1993) 60 SASR 7; James v The Queen (2014) 253 CLR 475, applied.

CRIMINAL LAW - PROCEDURE - WITNESSES - POWERS OF JUDGE - LEAVE TO REOPEN CASE AND CALL WITNESSES - PROSECUTION EVIDENCE IN REBUTTAL - OTHER CASES
A declaration of a prosecution witness was tendered by consent. Defence counsel did not seek his production for cross-examination. The evidence of accused May put matters referred to in that statement in dispute. The prosecution sought to call the witness in rebuttal.
Held:
Allowing the rebuttal evidence on the basis that it was not open to reject the evidence of May without the witnesses recall and cross-examination on the topics in dispute.
Zoneff v The Queen (2000) 200 CLR 234; Hobbs v CT Tinling & Co Ltd [1929] 2 KB 1, referred to.
MJW v The Queen (2005) 80 ALJR 329, applied.

R v HILL AND MAY
[2018] SADC 67
Contents
The charges
Background course of the charges
Trial by Judge alone
An amended information
Fundamental legal principles
Brief summary of the prosecution case
Overview
Bianca Hill
Rebecca May
Defence cases
Elements of the offences
The basic offence of trafficking
Quantity offences
Attempt – Count 36
Mental element
The charges
Counts 35 -May and 36 - Hill
Counts 37, 38 and 39 - May
Call 4204 – 24 May
The Quentin Stone sale
Call 4619 – 26 May
Ben Cairns
Exhibits P24 and P25 – tick lists?
Personal drug use - May
Hire car

Evidence in rebuttal
Proof of knowledge
Count 35 – May
Counts 38 and 39 – Ms May
Count 37 - May
1,4-Butanediol, ‘GBL', and ‘GHB'
Counts 9, 16 and 23 - Hill
Count 9 communications
Counts 16 and 23 the Potter exchanges
The miscellaneous exchanges
Messages with ‘Maca’
Messages with ‘Benny’
Messages with ‘Nick’
Messages with ‘Kitty’
Messages with ‘Chris Lucas’
Message with ‘Rick Evans’
Messages with ‘Gary Jones’
Messages with ‘Chad’
Messages with ‘Vicki’
Messages with ‘unknown source’
Admission, use, misuse and prejudice
Co-Conspirators rule
Admissibility of evidence on 35, 37, 38 and 39?
The relevant communications

Some other substance other than fantasy
Use, misuse and prejudice
1,4-Butanediol, ‘GBL', or ‘GHB'?
Count 36 - Hill
Count 9 – knowledge of large commercial quantity.
Count 16 – trafficking
Count 23 – knowledge of commercial quantity
Counts 9, 16 and 23 – verdicts for attempt
Count 36 – trafficking
Conclusion and Verdicts Ms Hill
Count 9 – trafficking in a large commercial quantity of ‘fantasy’
Counts 16 and 23 – trafficking and trafficking in a commercial quantity of ‘fantasy’ respectively
Count 36 – attempted trafficking in 1,4-Butanediol
Conclusion and verdicts Ms May
Count 35, 38 and 39 – trafficking in a large commercial quantity of 1,4-Butanediol, trafficking in amphetamine and trafficking in MDMA
Count 37 – trafficking in amphetamine
The charges

The accused are before the court for trial on an Information dated 16 April 2018. Their trial proceeded at their election by Judge alone.
Bianca Hill entered pleas of not guilty to the following counts:
9trafficking in a large commercial quantity of the controlled drug 1,4-Butanediol, 4-hydroxybutanoic acid lactone (‘GBL’), or 4-hydroxybutanoic acid (‘GHB’), contrary to s 32(1) of the Controlled Substances Act 1984 (SA);
16trafficking in the controlled drug 1,4-Butanediol, 4-hydroxybutanoic acid lactone (‘GBL’), or 4-hydroxybutanoic acid (‘GHB’), contrary to s 32(3) of the Controlled Substances Act;
23 trafficking in a commercial quantity of the controlled drug 1,4-ol, 4-hydroxybutanoic acid lactone (‘GBL’), or 4-hydroxybutanoic acid (‘GHB’), contrary to s 32(2) of the Controlled Substances Act;
36 attempting to traffic in the controlled drug 1,4-Butanediol, contrary to s 32(3) of the Controlled Substances Act and s 270A of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).
For her part Rebecca May entered pleas of not guilty to these counts on the Information:
35 trafficking in a large commercial quantity of the controlled drug 1,4-Butanediol, contrary to s 32(1) of the Controlled Substances Act;
37 trafficking in the controlled drug methylamphetamine, contrary to s 32(3) of the Controlled Substances Act;
38trafficking in the controlled drug methylamphetamine, contrary to s 32(3) of the Controlled Substances Act;
39 trafficking in the controlled drug MDMA, contrary to s 32(3) of the Controlled Substances Act.
There is no dispute that both accused are properly joined on the one Information, because as will become apparent the charges form ‘part of a series of offences of the same or a similar character’ within the meaning of s 278(1) of the Criminal Law Consolidation Act 1935 (SA). Defence counsel did not contend otherwise. All counts allege each accused knew or was ‘reckless as to the fact that the substance was a controlled drug’, a phrase taken from the terms of s 33P(1) of the Controlled Substances Act. This section is later analysed in some detail.
Background course of the charges
The Information spans the period between late February to late May 2016 and in fact originally contained a total of 41 counts. The offences are alleged to have occurred in the Millicent region of the South East of South Australia (count 9), and the remainder at Hillcrest a suburb North-East of Adelaide.
When first arraigned Ms Hill and Ms May were charged along with David Puckridge, Troy Sharam, Shane Tippins, and Jason Climas on various counts on the Information. During the course of pre-trial applications, Mr Puckridge pleaded guilty to counts 5, 6, 7, 8, 9, 10, 13, 20, 26, 27, 29, 30, 31, 33, 35, 38 and 40. At the same time Mr Sharam pleaded guilty to counts 1 and 5, Mr Tippins to count 5 and Mr Climas pleaded guilty to counts 26 and 35. They were since sentenced for these offences.
It can be seen that Ms Hill was jointly charged with Mr Puckridge on count 9, Ms May jointly charged with him and Mr Climas on count 35, and jointly with Mr Puckridge on count 38. Of course a confession by way of a plea of guilty is evidence only against the accused entering it and not against the co-accused Ms Hill with respect to count 9, or with respect to counts 35 and 38 concerning Ms May: R v Moore,[1] R v Fowler,[2] Bannon v The Queen.[3]
[1] (1956) 40 Cr App R 50, 53–54.
[2] (1985) 39 SASR 440, 448–449.
[3] (1995) 185 CLR 1, 22.
Trial by Judge alone
After Puckridge, Sharam, Tippins, and Climas entered the pleas of guilty, both Ms Hill and Ms May filed applications for trial by Judge alone. This course was not opposed by the prosecution. As at least one of the accused who eventually pleaded guilty previously did not ‘concur’ in the election for trial by Judge alone, the trial could not then proceed as such: s 7(3) Juries Act 1927 (SA). The Information filed on 16 April 2018 replaced a previous joint Information which did not materially alter the substance of the charges upon which both were to be tried, so as to entitle them to make a fresh election pursuant to r 42(4) of the District Court Criminal Rules 2014 (SA).
Ordinarily such elections must be made ‘no later than the day of the accused’s first arraignment on the Information in respect of which the trial is intended to be held’, as required by r 42(1) of the District Court Criminal Rules. However r 42(5) thereof allows that:
(5)The Court may extend the time prescribed by or under this rule if satisfied that there are special reasons for so doing or that it would be unjust not to do so notwithstanding that such period has expired.
The ameliorative power conferred by these rules are designed to facilitate an extension of time in which to make an election in an appropriate case, so that a ‘genuine explanation as to why the right was not exercised earlier would be sufficient to meet the requirement of the rules’: R v Gavare.[4]
[4] (2011) 274 LSJS 553, [59].
As there was no question of forum shopping, and as the prosecution did not oppose this course, it was appropriate to extend the time prescribed for making the elections for trial by Judge alone in each case in the circumstances, pursuant to r 42(5) of the District Court Criminal Rules. To the extent necessary, a further order was made dispensing with the requirements of the District Court Criminal Rules under r 14(1) thereof, being otherwise satisfied each accused ‘sought and received advice in relation to the election from a legal practitioner’, as required by s 7(1)(b) of the Juries Act and r 41 of the Juries Rules 1996 (SA).
An amended information
Immediately after the orders for trial by Judge alone were made, and immediately preceding re-arraignment, the prosecution was granted permission to amend counts 9, 16 and 23, over the objection of counsel for Ms Hill. As originally charged on the Information of 16 April 2018, the controlled drug in question on each count was particularised as 1,4-Butanediol. These counts were amended to add ‘or '4-hydroxybutanoic acid lactone (GBL)', or ‘4-hydroxybutanoic acid (GHB).' As will become apparent later, these drugs are commonly and collectively generically known as ‘fantasy’. They have similar characteristics but are chemically different and therefore regulated individually as prescribed controlled drugs.
Although at first sight these amendments would appear to be duplicitous,[5] the amendment was permitted on the binding authority of the Court of Criminal Appeal of R v Chapman,[6] according to the following passage in the judgment of Bleby J (Wicks J agreeing);
[41] Where it is alleged that the same process, at the time of apprehension, if carried through to completion, must result in the manufacture of one or other or both of two possible prohibited substances, the prosecution is not required to elect which one, in order that the defence may raise a reasonable doubt because the prosecution has not excluded the possibility of the other. So to require would be a manifest manipulation and abuse of the judicial process. The information alleging taking part in the manufacture of one of two possible prohibited substances where the final result cannot be known is none the less an allegation of taking part in the manufacture of a prohibited substance, and that is the essence of the offence.
Even so, it remains for the prosecution at the end of the day to prove beyond reasonable doubt which controlled drug it is, if any of these three alternatives.
[5] S v R (1989) 168 CLR 266, 284-285.
[6] (2001) 214 LSJS 319.
Fundamental legal principles
The constituent elements of each charge require proof beyond reasonable doubt. Both accused come before the court with the presumption of innocence in their favour, so that each is entitled to the benefit of any reasonable doubt. Statutory exception apart, neither is required to prove their innocence: R v Reeves,[7] Pryor v The Queen.[8] Nor are they required to give evidence or to call any other evidence.
[7] (1992) 29 NSWLR 109, 117
[8] (1969) 43 ALJR 388, 388.
Each offence must be considered separately with respect to each accused and separately considered according to the evidence admissible on each count relating to that accused: R v Schlaefer,[9] R v Gibb and McKenzie.[10]
Brief summary of the prosecution case
[9] (1984) 37 SASR 207, 210.
[10] [1983] 2 VR 155, 163-164.
Overview
The following narrative of the events purports only to summarise key aspects of the prosecution case as a prelude to closer analysis of the evidence to come later. The prosecution case is that David Puckridge bought drugs for distribution and sale principally in the Mount Gambier and Millicent areas as well as in Adelaide. It is alleged his accomplices or customers included Jason Climas, Joshua Potter and Quentin Stone as well as the accused Bianca Hill and Rebecca May.
The evidence in relation to count 9 derives essentially from call charge records of stored communications in Puckridge’s phone, and on counts 16, 23 and 36 from telephone intercepts of Puckridge’s phones, and variously from a combination of call charge records, e-crime materials, police searches and occasionally surveillance observations. The charges on counts 35, 37, 38 and 39 concerning Rebecca May relate to methylamphetamine, 1,4-Butanediol and MDMA found in a vehicle driven by Puckridge on 28 May 2016 in which she was a passenger.
Bianca Hill
On the prosecution case there was a joint enterprise between Bianca Hill and Puckridge by which she sold fantasy for him in Adelaide. With respect to count 9 specifically, the prosecution alleges that intercepted Optus call charge records between 15 and 28 April 2016, prove that David Puckridge sold a large commercial quantity to her on 26 April. This material contains location data demonstrating that he travelled to Corio in Victoria to purchase drugs. The prosecution contend that she drove to Millicent on 25 April 2016 to collect the 1,4-Butanediol charged on count 9. The Location data in the call charge records taken from her mobile phone conclusively prove she travelled between the Adelaide suburb of Greenacres and Millicent in that period of time.
With respect to count 16, the allegation is that Joshua Potter contacted Puckridge to purchase fantasy. Puckridge directed him to Bianca Hill. She then sold Potter 200 ml on 5 May 2016 from her home at Hillcrest (count 16) and a litre on 10 May 2016, also at Hillcrest (count 23).
Finally the prosecution case on count 36 is that on 27 May 2016 she sent a series of text messages to Puckridge looking for fantasy, to which he favourably responded ‘have it now’ as he was about to depart for Adelaide after purchasing it. He reached Adelaide late on 28 May 2016 with Rebecca May and Climas, during which Ms Hill texted directions to her house. The house was under police surveillance when the car driven by Puckridge pulled into the driveway at around 6.36 pm.

In the rear hatch of the vehicle, police found a ‘magic mop’ cardboard box containing 12 plastic bottles of liquid weighing 11.45 kg, containing 1,4-Butanediol.[11] The seizure of this substance is the subject of the charge on count 35 against Ms May and count 36 against Ms Hill.
[11] Exhibit P26.
Rebecca May
Count 37 charges Rebecca May with trafficking in methylamphetamine following the seizure of a cigarette packet containing two resealable plastic bags and an Ice pipe located in the front passenger side door pocket of the vehicle. These bags contained 7.39 g of substance containing 5.16 g of methyl-amphetamine. Count 38 pertains to a black plastic magnetic container wired to the underside of the rear bumper of the vehicle in which two plastic resalable bags containing crystalline substances weighing 26.9 g (or an ounce) containing 19.9 g of methylamphetamine and 11 g containing 8.17 g of methylamphetamine, respectively.
Finally count 39, also relates to the contents of the black plastic magnetic container in which other plastic bags were found to contain 17 tablets, 1 tablet fragment and powder containing 11 g of MDMA.
Defence cases
Ms Hill did not give evidence. Her defence is primarily built upon the contention that there is at the very least a reasonable doubt that 1,4-Butanediol, GBL, or GHB were the drugs charged on counts 9, 16 and 23, or alternatively may have been other substances. As to count 36, her counsel Ms Mansfield contended that the events had not so far advanced so as to amount to an attempt to traffic in 1,4-Butanediol.
The failure to adduce evidence so in the case of Ms Hill is not evidence against her, does not constitute an admission, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proven its case beyond reasonable doubt against her: Azzopardi & Davis v The Queen.[12]
[12] (2001) 205 CLR 50, [51].
Ms May gave evidence in her own defence and was extensively cross-examined by prosecuting counsel. Her evidence is to be considered in the same way as the evidence of other witnesses: R v Brown.[13] She is entitled to such credit as is appropriate for taking the course of making a defence by way of giving evidence on oath: R v Robinson & Tiplady.[14] Her evidence is not to be discounted simply because she is an accused person: R v Copeland.[15] The gravamen of her evidence-in-chief may be summarised in the following manner, omitting several personal details.
[13] (1913) 17 CLR 570, 589.
[14] (1985) 123 LSJS 37, 38.
[15] (1997) 194 LSJS 1, 7.
She had a very unpleasant and disrupted upbringing. By the age of 14 she began to consume marijuana. She went to live in Mount Gambier on her 15^th birthday where she finished Year 10 in High School. She fell pregnant at the age of 16 and had to cope without parental assistance, from whom she was more or less estranged. She worked at various manual jobs whilst raising her first daughter, but left the area to ‘clean herself up’ in 2012.[16] She found herself running a dairy farm near Shepparton, when she ‘gave up drugs at the time and just went cold turkey’, frankly admitting that in Mount Gambier she was taking amphetamines, being ‘a needle user for 20 years’.[17] However she soon relapsed and began using again. She moved back to Mount Gambier by the beginning of 2014 with her daughter and son.
[16] T278.32-.33.
[17] T280.2-20.
It was on returning to Mount Gambier that she commenced a relationship with a Sam Taylor whom she knew to be a heavy user of ‘crack’ or crystal amphetamine.[18] She considered herself to be a ‘heavy’ user and him as ‘heavy, bad’. They purchased drugs from combined Centrelink benefits and her two sources of child support.[19] They began buying crack from Puckridge from around January 2016 and moved to a rental property in Church Street Yahl, in around February 2015.
[18] T307.7.
[19] T282.16-.33.
Situated about five minutes’ drive from Mount Gambier, this residence was shared with her eldest daughter, her partner Jamie, the father of her youngest daughter, Dion Mitchell and her granddaughter. All five adults were regular amphetamine users.[20] It was Ms May’s task to pool money acquired from them to pay the rent, food and other living expenses, for which she kept records in a black book tendered by the prosecution as Exhibit P23. The entries in it relating to monetary amounts marshalled as they were on a weekly basis, tend to support her evidence on this topic.
[20] T284.22-285.20.
She was also responsible for pooling money to purchase drugs, sometimes on credit.[21] She told the court drugs were usually collected by Taylor after contacting David Puckridge by text or phone message, ‘once every four, five days’.[22] She denied ‘on selling’ the drugs so purchased.[23] By the beginning of May 2016 she considered her own drug use was ‘really bad … addicted’ and Sam as ‘very highly addicted’.[24]
[21] T283.9-.20, T285.22-286.10.
[22] T289.28-.36.
[23] T291.21-.22.
[24] T288.21-.38.
The evidence shows Sam Taylor left her unexpectedly on 23 May 2016. At the same time she claims he ‘cleaned [her] out’ by taking with him all her money of close to $800, her purse as well as ‘my drugs - our drugs that we had left’.[25] She told Puckridge this in a text message in the early evening of that day, which ended ‘… if you can come see me tomorrow my car is fucked so I can't go far’.[26] It was at this time she began to bestow on Puckridge ‘sexual favours’ in exchange for drugs and she slept with him three times over the next few days.[27] He spent the night with her at Church Street on Monday 24 May 2016, and she spent the night with him on Wednesday 26 May after having bought some lingerie ‘… that will blow your mind … the sexiest thing that I’ve ever bouth myself ...’.[28] It was on the former occasion that she proposed '(H)ow about we go away this weekend … taking me to the Crown Casino’, to which he explained having ‘to go over that way to pick up his mother’ from Avalon airport and that Jason Climas might possibly come as well.[29] She denied acquiring any detailed knowledge of his drug dealings in that period and in fact claimed he was ‘secretive with what he was doing’.[30]
[25] T289.14-.22.
[26] Exhibit P8, call 3918.
[27] T293.2-.9.
[28] Exhibit P8, calls 4664 and 4689, T351.14-.36.
[29] T299.27-.30, 300.11-301.23.
[30] T293.31-.36.
She suggested hiring a car for the proposed Melbourne trip as neither had very roadworthy vehicles. In the company of Puckridge she hired a Toyota Yaris Hatch from Avis at the Mount Gambier airport at 11.30 am on Thursday the 27^th.[31] She had by then already packed her bags thinking they would return on the following Sunday. They drove the hire car back to his house at Millicent after stopping beforehand at a house ‘behind some shops’, which he entered whilst she waited in the car.[32] Whilst showering at Puckridge’s Climas had arrived and she soon learnt he was ‘coming along’. This did not ‘bother her’ as she ‘wanted to go away for just a good weekend’.[33] She explained this expectation was the result of just having ‘a bad week, very miserable and upset’ and because Sam left her.[34] She denied any suspicion or knowledge that the excursion was intended for the purpose of transporting drugs.[35]
[31] Exhibit P15, CCTV footage, Exhibit P21, rental agreement.
[32] T304.1-.10.
[33] T304.18-.26.
[34] T304.27-.32.
[35] T306.26-.31.
After loading their own luggage into the boot of the car, they commenced the journey with Puckridge driving and Climas in the back seat. She was at this time the front seat passenger. She believed from what he told her that whilst she had no drugs herself, he ‘brought some Ice and pipe and stuff so we could have a smoke’.[36] She described first smoking Ice on this journey in a pipe ‘loaded by him’ stored in a cigarette packet ‘on him’ at a picnic ground ‘or similar’ just out of Hamilton, Victoria.[37] It was after this stop that she began to drive, with him in the passenger seat, with the cigarette packet remaining in his possession ‘either down beside him or in his pocket …’.[38]
[36] T305.18-.19.
[37] T306.1-.6.
[38] T305.29-306.17.
She continued to drive until just after Glenthompson when Puckridge resumed at the driver’s wheel, after which she fell asleep. She awoke as they pulled into a service station somewhere in the Avalon Airport area ‘off the freeway’ during the night.[39] It was here that she was told to ‘take my time, go and get something to eat, drink, whatever, go to the toilet, take my time’.[40] As she entered the service station she ‘looked over and the car was driving off’ causing her to contemplate that she ‘was getting left there’.[41] Once inside she purchased a drink, a bag of chips, some lollies and went to the toilet.
[39] T307.18-.26.
[40] T307.18-37.
[41] T308.30-.34.
After leaving, she walked out, looked around, but as they did not reappear she began trying to find them. She then walked from the area of the petrol bowsers to a garden area, where she saw the car stationery in the distance.[42] Ms May approached, inquiring 'What are youse doing?', to which they responded 'We just went to have a smoke, like had a pipe', following which she entered the front passenger seat before setting off again with Puckridge driving.[43]
[42] T309.20-.24.
[43] T309.36-310.6.
She professed to be ‘quite pissed off’ with them at the time:[44]
I just said 'What the hell is going on?', like, you know, 'What's happening?'. He said 'It's all right, we have just got to go somewhere', he wouldn't tell me anything and then he started to fall asleep behind the wheel, so I said 'Let me drive'. I had no idea where I was going, took me on all these back roads, nearly hit a kangaroo, a wombat. They were asleep, they kept falling asleep. I said 'Fuck this, next town I'm finding somewhere to stay, I need to sleep'.
[44] T310.18-.26.
Although she expected to go to Melbourne, they in fact ended up driving to Ballarat via ‘back roads’. By 1.30 to 2.00 am the following morning, they eventually checked into a Motel paid for in cash by Puckridge.[45] She claims that he took her luggage from the rear of the Hatch and brought it to the Motel room and that when they checked out at about 10.00 am the following morning, he took her luggage back to the car as she was doing her hair.[46]
[45] T310.18-311.36.
[46] T312.4-313.11.
Whilst in Ballarat she continued to press him with 'What's going on?', reminding him that he told her before leaving Mount Gambier 'We are going to pick my mother up from Avalon Airport'.[47] These inquisitions came to nothing as she felt ‘intimidated’, to the point that she ‘didn't want to ask anything’ because of ‘the way they act, they are talking in their secret, talking without - just I didn't really know what was going on’, even though at one point she was told they were returning to Mount Gambier.[48]
[47] T312.19-.26.
[48] T312.37-313.22.
After leaving Ballarat they stopped at a bakery in Ararat and from there headed towards Horsham. At some point thereafter Puckridge advised her 'Oh, we have got to go to Adelaide', which according to her evidence was the first time she was told that was his intention.[49] Quizzing him 'For what?', he responded 'go and look at a car', which did not perturb her as she could then collect her son who ‘went to live with his dad in Murray Bridge for the weekend’ on the way back.[50]
[49] T312.4-.12.
[50] T314.36-315.4.
Ms May admitted consuming more Ice during this part of the journey, given to her and packed in the pipe by Puckridge and taken from the same cigarette packet as before.[51] Even so, she denied any knowledge or suspicion of any other drugs in the car, of opening the glovebox or going to the boot at any time other than when she loaded her bags at the very beginning of the trip.[52] Once in Metropolitan Adelaide, Puckridge resumed driving, taking them to a residence she was not familiar with.[53] As will appear this was Ms Hill’s home in Hillcrest.
[51] T314.15-.27.
[52] T313.28-.35.
[53] T318.9-.27.
As a general preliminary observation, it can be said that Ms May’s evidence was largely internally consistent and was not strikingly inconsistent with the objective or proven facts. Although she was curt, even smug in manner at times,[54] and prone to be argumentative at others,[55] it is not possible to completely reject her version of critical events out of hand. Subject to specific qualifications on the topic of her credibility made later, even though some explanations are otherwise admittedly surprising or even unlikely, they are unless otherwise stated not so inherently unbelievable to warrant outright disbelief.
[54] e.g. T277.24-.36, T283.11-.15, T284.5-.16, T285.4-.12, T299.14-.23, T302.27-.36, T309.5-.19, T312.30-.36, T313.26-.38.
[55] e.g. T322.35-323.1, T345.29-346.20, 381.14-.22, T384.29-385.1, T387.28-388.5, T390.30-391.18, T392.11-.18, T397.14-398.4.
The admission of using drugs extensively in the past and in the months beforehand, is not employed as evidence of bad character or as evidence that she is the type of person to traffic in drugs: R v Beserick,[56] KRM v The Queen.[57] It is admitted for the purpose of supporting her defence that the only interest she had in drugs was for her own consumption. This evidence is further admissible on the very limited basis that she knew what methylamphetamine or Ice was and more importantly as to her knowledge of Puckridge’s dealings in it.
Elements of the offences
[56] (1993) 30 NSWLR 510, 516.
[57] (2001) 206 CLR 221, [40].
The basic offence of trafficking
The essential elements of the basic trafficking offence (counts 16 and 36 Ms Hill, counts 37, 38 and 39 Ms May), which must be proven beyond reasonable doubt, are these:
1. The substance they had or dealt with was a controlled drug. There is no dispute as to this on all charges in respect of all particularised drugs.
2. The accused trafficked in that controlled drug. A person traffics if he or she (a) sells a drug, (b) has possession of a drug intending to sell it; or (c) takes part in the process of sale of a drug: s 4(4) to s 4(7) of the Controlled Substances Act. A step in the process of sale of a controlled drug when done for the purpose of sale, includes storing, carrying and transporting the drug: s 4(5).
3. The accused knew the substance involved was the controlled drug particularised in each case, or at least that it was a controlled substance in the sense that it is prohibited under the laws relating to illegal drugs: R v Frangos.[58]
[58] (1979) 21 SASR 331, 337.
Quantity offences
The above elements equally apply to the offences charging trafficking in commercial (count 23 Ms Hill) and large commercial quantities (count 9 Ms Hill, count 35 Ms May). On those counts it must be proven to the requisite degree that each accused intended to traffic in no less than a prescribed commercial, or large commercial quantity as the case may be: R v Parisi,[59] R v Pringle,[60] R v Tassone,[61] R v Nguyen,[62] R v Micalizzi.[63]
[59] (2014) 119 SASR 277, [36].
[60] [2017] SASCFC 9, [114].
[61] [2016] SASCFC 146, [6].
[62] (2005) 12 VR 299, [10], [22]-[23].
[63] [2004] NSWCCA 406, [35].
The prescribed mixed quantities for commercial and large commercial purposes under the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) Schedule 1, are respectively:
1,4-Butanediol: 0.5 kg and 2.0 kg
4-Hydroxybutanoic acid (GHB): 0.5 kg and 2.0 kg
4-Hydroxybutanoic acid lactone (GBL): 0.5 kg and 2.0 kg
Methylamphetamine: 0.1 kg pure or 0.5 kg mixed and 0.75 kg pure or 1 kg mixed
3,4-Methylenedioxymethyl amphetamine (MDMA); 0.1 kg pure or 0.5 kg mixed and 0.75 kg pure or 1 kg mixed.
With respect to the element of trafficking, defence counsel concede the respective quantities involved – where quantity is proven - exceed those prescribed as traffickable quantities for each controlled drug. These are:
1,4-Butanediol 50g
4-Hydroxybutanoic acid (GHB) 50g
4-Hydroxybutanoic acid lactone (GBL) 50g
Methylamphetamine 2g
3,4-Methylenedioxymethyl amphetamine (MDMA) 2g
Proof of the possession of such quantities attract the rebuttable presumption of purpose in respect of each, as provided for in s 32(5) of the CSA:
32—Trafficking
(5)If, in any proceedings for an offence against subsection (1), (2), (2a) or (3) it is proved that the defendant had possession of a trafficable quantity of a controlled drug, it is presumed, in the absence of proof to the contrary—
(a)     in a case where it is alleged that the defendant was taking part in the process of sale of the drug, that the defendant—
(i)    was acting for the purpose of sale of the drug; and
(ii)had the relevant belief concerning the sale of the drug necessary to constitute the offence; or
(b)     in any other case—that the defendant had the relevant intention concerning the sale of the drug necessary to constitute the offence.
It was not suggested by the prosecution that this presumption directly applies to the charges against Rebecca May as she was not in possession of the drugs,[64] although this concession requires some refinement when it comes to count 37, for the reasons articulated later.
[64] Prosecution written submissions on elements of the offence in relation to May, para 9.
Attempt – Count 36
The charge of attempted trafficking (count 36 Ms Hill) is constituted by taking steps going beyond mere preparation to commit the crime, to the point that she must actually have embarked on the commission of the crime with an intention to commit the completed offence: Alister v The Queen,[65] R v Collingridge,[66] Britten v Alpogut,[67] R v Mai & Tran.[68] Such steps as are taken to embark upon the commission of the crime must be proximate to it in the sense of an immediate as opposed to a remote correlation with it, and which cannot reasonably be regarded as having any other purpose other than the commission of that crime: R v Mai & Tran,[69] R v Milenkovski v State of Western Australia,[70] R v Inegbedion.[71] It is a question of fact whether the proven acts are sufficiently proximate to constitute an attempt, or were merely preparatory to it: Director of Public Prosecutions v Stonehouse.[72]
[65] (1984) 154 CLR 404, 421 and 467.
[66] (1976) 16 SASR 117, 131.
[67] (1986) 23 A Crim R 254, 262 and 264.
[68] (1992) 26 NSWLR 371, 60-61.
[69] Ibid, 381-872.
[70] (2004) WASCA 85, [23].
[71] (2013) NSWCCA 291, [17]-[20].
[72] [1978] AC 55, 94.
Mental element
In the normal run of cases trafficking requires proof of possession. This entails an element of knowledge, that is a sufficient degree of knowledge of the presence of the drug in the accused’s custody or control, or alternatively with a ‘reckless state of mind’: Williams v The Queen,[73] He Kaw Teh v The Queen,[74] R v Clare.[75]
[73] (1978) 140 CLR 591, 610.
[74] (1985) 157 CLR 523, 539, Aper Gibbs CJ (Mason J agreeing), 585 and 589 (Brennan J), 598-599 (Dawson J).
[75] [1994] 2 Qd R 619, 636, 644.
With these observations, principles and directions in mind, it is now possible to consider the charges in detail. It is convenient and appropriate to begin with counts 35 and 36, because the evidence in relation to both is interrelated and as there is no doubting that 1,4-butanediol was the controlled drug involved.[76] Of course each count must be considered separately against each accused according only to the evidence admissible against that particular accused.
The charges
[76] Exhibit P22, Agreed Fact 15.
Counts 35 -May and 36 - Hill
The prosecution case is that the evidence of the telephone communications by and between Puckridge and Climas between Monday 24 and Wednesday 26 May 2016, related to negotiations with a person identified only as ‘Lenny’ for the purchase of around 12 litres of fantasy from him. The prosecution has proven there were a number of calls from the mobile phone of Jason Climas to ‘Lenny’ between 1.30 am on 24 May and 5.38 pm on 28 May 2016. Climas was clearly playing his part in the formation of a joint criminal enterprise with Puckridge to purchase drugs from Lenny in this period of time. By 9.38 pm on 26 May 2016 David Puckridge personally converses at length with Lenny, during which he agrees at first to take ‘10 as a sampler…’, which he increases to ‘12 for $11,800’, and also asks for an ounce of ‘meth’ agreed at $3,750.[77] This request for an ounce of methylamphetamine connects with an ounce later found in a box wired under a car he later drove to Adelaide. At 10.25am on 27 May, Puckridge inquires of Lenny ‘… those sluts have arrived, have they?’ to which he receives a prompt affirmative answer ‘yeah…’. [78] In this message Puckridge advises that ‘we’re just runnin’ a bit late … we’ll be there today … Geelong? … we’ll let ya know… what time to be there…’. By 11.30 am that morning Puckridge and Rebecca May attend the Mount Gambier Airport where they hire the Toyota Yaris Hatch from Avis.[79]
[77] Exhibit P8, call 4818.
[78] Exhibit P8, call 4874.
[79] Exhibit P15, CCTV footage.

At 9.59 pm that evening Lenny texts Puckridge:[80]
Im having trouble finding the servo I want bro but If u can make it to the corner of ‘shell parade’ and ‘foreshore rd’, It’s a secluded little spot mate not far off the freeway near the water’.
and later ‘Il head over anyway’ and ‘How u boys travellin’.[81]
[80] Exhibit P8, call 4947.
[81] Exhibit P8, call 4948 and 4950.
The location data and the surrounding circumstances prove Climas travelled in the hire car from the Mount Gambier East Showgrounds at 5.15 pm on 27 May, to Corio West by 11.35 pm.[82] Corio West is situated North of Geelong and more or less due East of and not very far from the Shell Parade and Foreshore Road area, to the West of the Princess Highway.[83] The communications data proves Puckridge met Lenny at the corner of Shell Parade and Foreshore Road, Geelong in the State of Victoria as planned.[84] The location data further shows Climas pass near Verdun in the Adelaide Hills and then Oakden a suburb of Adelaide at 5.38 pm and 6.29 pm respectively the next day.[85]
[82] Exhibit P12.
[83] Exhibit P14, Google Maps.
[84] Exhibit P14, Exhibit P14, Google Maps.
[85] Exhibit P12, Google Maps.
There is no doubt that Puckridge, May and Climas travelled in the rented vehicle from Mount Gambier to the Geelong area on 27 May. As seen from the evidence of Ms May and the location data itself, the vehicle then made its way to Adelaide after an overnight stop in Ballarat. According to police surveillance, they arrived at Bianca Hill’s residence in County Court, Hillcrest at around 6.36 pm on 28 May 2016, where it pulled into the driveway. Ms May was seated in the front passenger seat. Puckridge was identified as the driver and in the rear passenger seat was Jason Climas. Ms Hill remained inside her home whilst Puckridge walked to the front door. May, Puckridge and Climas were arrested soon afterwards. Ms Hill was arrested later on 31 August 2016.[86]
[86] T133.13-.20.
The rental vehicle was duly searched by the police. In the rear hatch area they found a large ‘magic mop’ cardboard box containing 12 plastic bottles of liquid.[87] The contents had a ‘moist solid’ appearance when later analysed at Forensic Science SA, were found to weigh 11.45 kg and to contain 1,4-Butanediol.[88]
[87] Declaration of Robert Martin dated 4 August 2016, and Exhibit P26.
[88] T207.14-208.3, Mr Painter.
Other items of relevance found and seized by the police from the Yaris at this time, included:
·a cigarette packet containing two resealable plastic bags of a white substance located in the front passenger side door pocket. Upon analysis this was found to weigh 7.39 g and contained 5.16 g of methylamphetamine. This is the subject of count 37. A third plastic bag contained 0.04 g of cocaine – this is put forward by the prosecution as an uncharged act.
·cash from the glovebox totalling $9,075.00.
·two Ice pipes, one with a lighter.
·a plastic container of frozen liquid weighing 68 g containing 1,4-Butanediol.
·a resealable bag containing a white substance comprising 0.66 g of methylamphetamine.
These drugs or drug related items from the glovebox are not the subject of formal charges but are said to be relevant uncharged acts.
A further item of significance was seized by police from the Yaris on 29 May 2016, notably a black plastic magnetic container wired under the rear bumper of the vehicle. This was detached by Detective Martin using of a pair of pliers found in the front passenger’s side area between the seat and the door jam.[89] Within this box were plastic resalable bags, two containing crystalline substances later analysed as weighing 26.9 g (more or less an ounce) and containing 19.19 g of methylamphetamine. This is the subject of count 38. Amongst other things the black box also housed a total of 17 tablets, a tablet fragment and powder all containing MDMA. The combined weight of these came to 11 g, and are the subject of count 39. Within the vehicle police found a copy of the Avis paperwork in the centre console.[90]
[89] Exhibit P19, p 5 bottom photograph.
[90] Exhibit P21.
A search of the handbag belonging to Ms May produced the coloured covered notebook referred to earlier.[91] A police search conducted during the afternoon of 29 May 2016 of the premises at Tenth Street, Millicent occupied by Puckridge, produced a black note book containing references on the prosecution case to Rebecca May and her ex-partner Sam Taylor.[92]
[91] Exhibit P23.
[92] Exhibit P24.
Counts 37, 38 and 39 - May
The case against Rebecca May builds upon the fact that Puckridge was a drug dealer, as was clearly well known to her. The contention is that she earned his trust particularly once they became sexual partners in the days before the interstate trip to the Geelong area. Given her active use of drugs supplied by Puckridge in the months leading up to this trip, she must have realised he was embarking upon a drug run at this time. The prosecution further submit she must have known about the large box in the boot due to its size and proximity to her own luggage, and that she also knew of the magnetic box under the car or that other drugs were likely to be about the car, even if she did not know exactly what, or where they were, or in what quantities.
There is no doubting Ms May’s relationship with Sam Taylor came to an end when he left her on 23 May 2016. In a call of that day she tells Puckridge 'Sam has done the dog on all of us, plus took what I had left, including the $$’.[93] From then on she begins to see Puckridge more often than every four to five days, as was the pattern of the past. For instance on 9 May 2016, she advises Puckridge of ‘waiting on everyone’s coin this week so my bill is paid up before I come see you’.[94] On 12 May she informs him of the need ‘to catch up with you’ the next morning and she does the same again on the 17^th.[95] Then on 18 May 2016, she informs him she was:[96]
… just waiting on more coin been fucked around today I might still pop over and just grab half of what I normally get just so I can keep on keeping on.
And on 21 May 2016 she texts him ‘I need to catch up with you I’ve got some $$ I’ll head to yours shortly if that’s cool’.[97]
[93] Exhibit P8 call 3918.
[94] Exhibit P8, call 1381.
[95] Exhibit P8, calls 1814, 2096 and 2895.
[96] Exhibit P8, call 2987.
[97] Exhibit P8, call 3440.
In terms of their personal relationship, on 20 May she asks to visit Puckridge the following night ‘to hang out with a mate’ before she parted with Taylor.[98] By 26 May she is referring to him as ‘gorgeous man’, of buying ‘that sexy thing just for your eyes’ and that she has ‘just bought the sexiest thing’.[99] As noted above Puckridge stayed overnight with her at Church Street on 24 May and she stayed overnight with him on 26 May, admitting in her evidence sleeping with him three times in that period.[100] And of course she was planning to spend at least three nights with him during the forthcoming interstate trip.
Call 4204 – 24 May
[98] Exhibit P8 calls 3403 and 3409.
[99] Exhibit P8, calls 4608 and 4689.
[100] T293.2-.9.
In one of the monitored calls between Climas and Puckridge commencing at 6.22 pm on Tuesday 24 May 2016, a female voice can be heard faintly in the background. On the prosecution case this was Rebecca May.[101] In this call Puckridge asks Climas to come to ‘Bec’s house’, he provides directions to Church Street and during which there are discussions about travelling on Thursday ‘first thing’ to ‘run with the ten’. This reference to quantity corresponds to the reference by Puckridge in his call to Lenny about three hours later to take ‘10 as a sampler’. This call is clearly a prelude to the trip to Victoria for the purpose of purchasing fantasy, which did in fact eventuate on Thursday of that week.
[101] Exhibit P8, call 4204.
Having heard this conversation played several times, the female voice is far too indistinct in quality and volume to safely draw the conclusion that it was Rebecca May. There were others about the house at various times in this period, including her adult daughter and who may be the female voice to be heard in the background. The conversation about the trip is couched in such guarded, incomplete and prosaic terms to permit the inference to be drawn that she knew what it was about, even if she was in a position to overhear.
The Quentin Stone sale
The prosecution further rely on the fact that David Puckridge sold methylamphetamine to Quentin Stone from the vicinity of Ms May’s house at Yahl on 24 May 2016, between about 8.00 and 8.30 that evening. There are agreed facts and surveillance material before the court to the effect that the police pulled over a Taxi in which Stone left the house.[102] He was caught in the possession of a plastic resealable bag containing a crystal substance weighing 27.1 g, or roughly an ounce, containing 21 g of methylamphetamine.[103]
[102] Exhibit P17.
[103] Exhibits P11 and P17.
It is true enough that Ms May was present and can be heard on an intercepted call between Puckridge and Stone earlier at 7.41 pm in which the purchase is discussed.[104] She can be heard telling Puckridge to ‘tell him to come here’, during which Puckridge tells Stone ‘I’ve just had some Gina’ and that ‘I’ll do you halfy’. The expert evidence of Detective Glasson based on years of experience in police drugs investigations was that ‘Gina’ is often used in a drugs context as a common street name for fantasy.[105]
[104] Exhibit P8, call 4222.
[105] T181.30-182.1.
Ms May’s evidence as to her part in this conversation was that she would never have anything to do with fantasy and had never heard of the expression ‘Gina’ in that context.[106] Whilst this might seem questionable for a person having close involvement with drugs over twenty years or more, her denial is not such that one can infer she did know what Puckridge was talking about. There is nothing in the content of the conversation which suggests she played any active part in the sale that was about to occur with Stone, irrespective of whether it took place inside the house or not. More to the point, nothing in the content of the conversation gives any hint of a prospective interstate fantasy purchase to come and there is no reference in any of the other communications involving Ms May before the court containing any reference that could suggest involvement with fantasy.
Call 4619 – 26 May
[106] T355.11-.26.
The prosecution point to Puckridge’s SMS message to her on 26 May 2016 at 9.19 am in which he informs her that his cousin had ‘ripd off my juice gear and etc’, to which she responded ‘WTF what a fucking dog, if you need a hand with anything at all im free and I got some stuff if you need’, as evidence of her knowledge of his immediate need to source more drugs to sell.[107] The expert evidence is that ‘juice’ is another common expression for fantasy.[108]
[107] Exhibit P8, messages 4616 and 4619.
[108] T175.27-.32.
The fact of the matter is the interstate purchase of ‘10 as a sampler’ was already planned by 24 May as evidenced by exchanges between Puckridge and Climas during which ‘12 for 10 g’ and ‘12 l for 10 k’ were discussed as well as leaving ‘first thing’ Thursday.[109] Here again Ms May somewhat surprisingly denied any knowledge of the coded meaning of ‘juice’ amongst drug consumers.[110] Even so, this exchange provides a flimsy foundation for an inference that she knew or suspected Puckridge was about to embark on a major purchase of fantasy. Although her explanation for offering him drugs ‘just in case he didn't have enough … I was just being nice … I would have got it back’ does not make a lot of sense, it is consistent with her wanting to continue favouring him in order to keep the regular supply of drugs intact,[111] as much as it is consistent with her evidence that ‘he gave me some …’ the evening before when he stayed overnight at Yahl.[112]
Ben Cairns
[109] Exhibit P8, calls 4152, 4154, 4156 and 4198.
[110] T367.34-358.17.
[111] T359.4-.10.
[112] T360.14-.25.
So far as the arrangement for Ben Cairns to hand his payment for the purchase of drugs to her to convey to Puckridge on 26 May 16 is concerned, this was a direct arrangement made between the two men to which she was not privy, made on the coincidence that she was hoping to go to Puckridge’s house that evening.[113]
[113] Exhibit P8, calls 4768, 4773 and 4774.
None of these items of circumstantial evidence are capable of themselves, or in combination with each other, of giving rise to the inference that Ms May knew or must have suspected Puckridge was planning to go interstate the following Thursday to purchase drugs, let alone a large quantity of fantasy. Insofar as that conclusion was open as a link in a chain of reasoning towards guilt, it is one that is far from open beyond reasonable doubt: Sheppard v The Queen,[114] R v Merritt,[115] R v Poulter,[116] s 33R(2) of the Evidence Act.
Exhibits P24 and P25 – tick lists?
[114] (1990) 170 CLR 573, 579.
[115] [1999] NSWCCA 29, [70]-[71].
[116] (1978) 19 SASR 370, 374.
The supposed ‘tick list’ said to be contained in the notebook and on the vacuum cleaner manual seized from a bedroom wardrobe of David Puckridge’s Millicent home on 29 May 2016, is not probative of the prosecution case, insofar as it purports to evidence the purchases of drugs by Ms May to deal in herself.[117] The respective notes in the former ‘Sam & Bec 1500’ and ‘Sam Bec 2600’ in conjunction with accompanying calculation, make no arithmetic sense. Similarly those on the manual are not specific enough to draw any conclusion from. None are dated, or time related, they do not distribute values as between Taylor and Ms May, they are not all that consistent with each other, and they cannot be connected to any specific past transaction or communication.
[117] Exhibits P24 and P25.
The prosecution position with respect to both Exhibits P24 and P25 overlooks the fact that Ms May was responsible for pooling money for the collective purchase of drugs from all five drug users in the Church Street household at the time. In these circumstances to reason that those notations prove nothing other than costly purchases solely on her own account for the purpose of on sale is unfounded speculation. In that event this material is insufficiently probative to justify admission for that purpose under s 34P(2)(a), in combination with s 34P(3) of the Evidence Act 1929 (SA). It might be noted that apart from those notes, there is no other evidence connecting Ms May to trading in drugs, such as the presence of electronic scales, wads of cash, deal bags and the like. Regrettably her house was not searched by police following her arrest.
Personal drug use - May
The evidence of Ms May as to her own drug use nevertheless contains admissions on her part of securing drugs on multiple occasions from Puckridge during 2016 for her own use and the consumption of others at the Church Street property. Similarly the sale to Quentin Stone is probative of her knowledge of Puckridge’s drug dealing business and the extent of it. Used solely for these limited purposes and for no other, it falls within s 34P(2)(a) of the Evidence Act as sufficiently probative so as to substantially outweigh any prejudicial effect. As so used, the permissible and impermissible purposes are thereby kept ‘sufficiently separate and distinct’ in compliance with s 34P(3) and s 34R thereof. This material was in any event introduced in her own defence as evidence of her personal drug use that did not escalate into dealing. Reception is not sought nor granted on the basis of disposition or propensity pursuant to s 34P(2)(b) of the Evidence Act.
Hire car
Rebecca May’s active involvement in hiring the Toyota Yaris from Mount Gambier airport and travelling with Puckridge and Climas to Geelong and then to Adelaide, is another matter altogether. Here the prosecution advance the proposition that she must have thereby become aware the purpose of such an unusual trip was more than just a short holiday and was to collect or transport drugs. The evidence of the duty manager for Avis Mr O’Donohoe, was that she produced her own credit card to place a contingency hold or bar of $500 over the potential costs of a long trip, and that Puckridge paid the initial upfront costs of $350 in cash.[118] This is unusual given her supposed strapped cash circumstances, but then again she may have expected reimbursement, or the in-kind supply of drugs from him. It was in Puckridge’s interests to distance himself from the transaction by leaving a documentary trail.
[118] T439.14-.17, 434.20-.22.
More concerning was her evidence-in-chief that it was only soon after leaving Horsham that she first learnt of the plan to go to Adelaide instead of Melbourne. They had already driven West rather than Eastwards for some time. The evidence of Mr O’Donohoe was that Geelong was mentioned at least twice in conversation between her and Puckridge at the Avis counter, and:[119]
… if they had time they were going to do some shopping in Geelong because they were picking a friend up from Avalon Airport and they were possibly going through to Adelaide.
[119] T437.26-.31, 435.13-.19, 446.10-.13.
Under cross-examination Ms May was adamant the counter attendant was told they were going to Avalon to pick up Puckridge’s mother rather than his friend.[120] She had no memory of any reference of going to Adelaide to drop off his mother whilst at the Avis counter.[121] She was equally adamant that there was no mention of shopping in Geelong.[122] She insisted when pressed by prosecution counsel:[123]
Well, of course if he hadn't - if I didn't know anything about that and he's saying he's going shopping at Geelong or whatever, I'd be questioning him like 'What are you going shopping at Geelong for? The plan is to go to Melbourne after you pick your mother up from the Avalon Airport.
[120] T379.2-.11, 380.13-.22.
[121] T379.24-.30.
[122] T379.28-.30, 380.23-.24.
[123] T381.17-.22.
Evidence in rebuttal
It might be noted at this juncture that Mr O’Donohoe gave evidence in rebuttal on these topics. The situation was that his declaration containing references to the exchanges at the Avis Mount Gambier airport counter was tendered with the consent of the defence.[124] Ms May’s counsel did not seek his production for cross-examination. After closing its case and upon Ms May giving evidence particularly under cross-examination, it became manifest that potentially material portions of the discussions in which Mr O’Donohoe took part or otherwise overheard, were disputed. Counsel for the DPP indicated she would submit later that Ms May should be disbelieved on the topics on which her evidence was inconsistent with Mr O’Donohoe.[125]
[124] Exhibit P16.
[125] T398.29-.36.
As a consequence, I indicated a reluctance to accept that position in the absence of his recall, for as the joint judgment of Gleeson CJ and Heydon J in MWJ v The Queen suggests:[126]
(F)airness ordinarily requires that if a challenge is to be made to the evidence of a witness, the ground of the challenge be put to the witness in cross-examination.
[126] (2005) 80 ALJR 329, [18].
Over the opposition of Mr Jolly for Ms May, leave was granted to call the witness in rebuttal on the grounds identified by Gummow, Kirby and Callinan JJ in MWJ v The Queen:[127]
[40] … If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross-examination, can almost always, … mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put. …..There may be some circumstances in which it could be unfair to permit the recalling of a witness, but in general, subject to the obligation of the prosecution not to split its case, and to present or make available all of the relevant evidence to an accused, the course that we have suggested is one that should be able to be adopted on most occasions without injustice.
The circumstances are in principle akin to that seen in MJW.
[127] Ibid.

There is no reason to doubt the accuracy or recall of Mr O’Donohoe on the above topics. Quite apart from having no interest in the matter, he recollected the reference to Adelaide because the length of the proposed journey affected the potential for extra charges and consequently the amount of the holding bond.[128] He particularly recalled the prospect of shopping in Geelong:[129]
… because it rang a bell in my head, there's shop in Geelong I wanted to go and look at so that's why I remembered that.
[128] T436.17-.24, T438.2-.7.
[129] T449.25-.31.
It was suggested during closing submissions by counsel for the prosecution, that Ms May was untruthful in giving evidence on these topics, lies amounting to ‘a piece of circumstantial evidence going to her knowledge of what the actual plan was’.[130] There are a number of shortcomings with these propositions. It can be accepted that proven deliberately told lies go to her credit, however their significance in relation to the issues in the case is another matter. As the High Court warned in Zoneff v The Queen,[131] just because a person is shown to have told a lie about something is not of itself evidence of guilt. Simply because she may have been untruthful about her knowledge of the ‘actual plan’ does not prove that she did have actual knowledge if; it simply means there is no evidence on the point. So much is captured in the famously rhetorical flourish of Scrutton LJ in Hobbs v C T Tinling & Co Ltd:[132]
But by destroying the evidence you do not prove the opposite. If by cross-examination to credit you prove that a man's oath cannot be relied on, and he has sworn he did not go to Rome on May 1, you do not, therefore, prove that he did go to Rome on May 1; there is simply no evidence on the subject.
[130] T530.8-.13.
[131] (2000) 200 CLR 234, [23].
[132] [1929] 2 KB 1, 21.
Having made these observations about the prosecution case against Ms May, it is now convenient to consider the nature of the mental element required in charges of trading in controlled drugs.
Proof of knowledge
The case against Ms May rests on a different footing in respect of the counts she faces than in the case against Ms Hill. As it is conceded she was not in the direct possession of the drugs in the cardboard box in the rear of the vehicle, or of the black box attached under the rear bumper, prosecution counsel relied heavily on s 33P of the Controlled Substances Act as exhaustive of the necessary state of knowledge. The submission proceeds broadly along the following lines.
As the purpose of s 33P is to prescribe the mental element for all Part 5 offences, the prosecution need only establish an accused knew or was reckless with respect to the fact that a substance was, or was to be a controlled substance. Therefore the prosecution are not required to establish knowledge or recklessness with respect to the precise identity of the controlled substance concerned. So much can be accepted.
Accordingly, Ms May need not have specific knowledge of the cardboard or the magnet boxes or their contents in order to be found guilty on counts 35, 37, 38 and 39. It is sufficient if she knowingly takes part in trafficking controlled drugs by transporting them. Having taken part in the process of sale as broadly defined, the specifics of what she was transporting and where they were located need not be proven. As will appear, this submission serves to merge the substantive provisions defining the offence of trafficking, with the limited operation of s 33P in respect of the nature of the drugs involved.
The offence of knowingly trafficking or trading in illegal drugs was first created in this State by the now repealed s 5(1)(a) of the Narcotic and Psychotropic Drugs Act 1934 (SA). This was successively interpreted to require knowledge, as in R v Frangos:[133]
… the prosecution must prove, not only that the accused knew that the thing which is the subject of the charge was in his custody or control, but also that he knew that it was a drug to which the Act applies.
and in R v Conley.[134]
It is of some significance to note here that King CJ proceeded to observe in R v Frangos:[135]
It is not, of course, necessary that the accused should know that the Act applies to the particular substance if he is aware of the nature of the substance and, in fact, the Act applies to it. If he is not aware of the nature of the substance, I think that he must at least be aware that he has possession of a substance whose possession is prohibited under the laws relating to illegal drugs.
This observation is entirely consistent with the common law position established by the House of Lords in Warner v Metropolitan Police Commissioner,[136] that possession did not connote or imply full knowledge of the nature of the drug concerned, but otherwise required proof of the knowing possession of a prohibited drug.
[133] (1979) 21 SASR 331, per King CJ, 337, and see 339-340 per Walters J (Wells J agreeing).
[134] (1982) 30 SASR 226, 223–226.
[135] (1979) 21 SASR 331, 337.
[136] [1969] 2 AC 256, 286.
The Narcotic and Psychotropic Drugs Act which contained no equivalent to the present s 33P, was wholly repealed by the Controlled Substances Act. Various incarnations occurred with the insertion of s 31(1) of the Controlled Substances Act in 2005, before replacement by s 33L, but now controlled by s 33P, as to which, see and R v Scarpantoni.[137] On the face of it, s 33P(2) of the Controlled Substances Act serves merely to codify the common law position established in Warner. The case law since does not indicate a change in the previous situation so far as this question is concerned.
[137] (2013) 118 SASR 131, [35].
This construction is entirely in keeping with the fundamental common law position that the mental element of an offence is the ‘most fundamental element in a rational and humane Criminal Code’: Thomas v The King.[138] As pointed out by the High Court in He Kaw Teh v The Queen,[139] there is a presumption that mens rea is required before a person can be held guilty of a grave criminal offence, a presumption that is not here displaced either by clear words in the Controlled Substances Act, or by the subject matter with which it deals: Sherras v De Rutzen.[140] The decision in He Kaw Teh v The Queen,[141] requires the prosecution to prove an intent to commit the charged act (trafficking) and knowledge of the nature of the drug, subject of course in the latter respect to s 33P of the Controlled Substances Act.
[138] (1937) 59 CLR 279, 309.
[139] (1985) 157 CLR 523.
[140] [1895] 1 QB 918.
[141] (1985) 157 CLR 523.
This conclusion equally accords with the generally understood position that proof of drug offences entails proof of possession in the sense understood by the common law, and that mere knowledge of the presence of drugs is insufficient: R v GNN.[142]
[142] (2000) 78 SASR 293, [20].
An analysis of the constituent elements of the core offence of trafficking confirms this analysis. Trafficking is comprised of selling, having possession intending to sell, or taking part in the process of sale of controlled drugs: s 4 of the Controlled Substances Act. Each of these composite means of committing the offence of trafficking necessarily require proof of possession (or joint possession in complicity cases). In those cases in which an accused is not proven to be in possession but charged on the basis of taking part in the process of sale, liability will depend on proof of the accused’s participation in and assent to a joint criminal venture, knowing or being reckless as to the fact that the other participant(s) were in possession of and intended to sell or had the intention to sell controlled drugs: Johns v The Queen.[143]
[143] (1980) 143 CLR 108, 111-112.
Proof of possession demands proof of physical custody or control, coupled with the intention to possess with knowledge of the contents: Warner v Metropolitan Police Commissioner,[144] Moors v Burke,[145] He Kaw Teh v The Queen.[146]
[144] [1969] 2 AC 256.
[145] (1919) 26 CLR 265, 271.
[146] (1985) 157 CLR 523, 537.
These fundamental principles are statutorily displaced only to the extent that s 33P(1) adds recklessness to the requirement of proof of knowledge at common law, that the substance ‘was or was to be’ a controlled drug. This reflects the common law position that while it was necessary to establish knowledge of the subject matter of, it was unnecessary to prove the accused ‘actually knew’ of the nature of the substance so that establishing an awareness of the likelihood of presence of that substance was enough: Bahri Kural v The Queen,[147] Saad v The Queen.[148] Whereas s 33P(2) of the Controlled Substances Act codifies the common law position as to knowledge of the precise nature of the illegal substance involved: R v Scarpantoni.[149] So much was acknowledged, in the joint judgment in Scarpantoni:[150]
[38] We acknowledge that in the absence of s 33P of the Act there would be a case to construe s 33 of the Act as implicitly requiring proof of intention or knowledge as the case may be of the quantity produced, but, as said at the outset, that is not the question of statutory construction which the Act presents.
[147] (1987) 162 CLR 502, 504-505.
[148] (1987) 61 ALJR 243, 244.
[149] (2013) 118 SASR 131, [32].
[150] Ibid 38.
The reliance of prosecuting counsel on the statement in the joint judgment of Kourakis CJ and Sulan J in Scarpantoni,[151] that the purpose of s 33P ‘is to prescribe the mental element of Part 5 offences’, is understandable and yet misplaced. The issue in Scarpantoni was not one of knowledge or proof of possession, it was confined to knowledge of quantity, as explained in this passage:
[9] … It is not in dispute that s 33(1) requires proof that the defendant had knowledge that a controlled drug was being manufactured. It is contended, however, that this knowledge alone is not sufficient to found guilt under s 33(1). The additional element that must be proven, according to the submission of the defendant, is that the defendant knew he was intending to manufacture a large commercial quantity of the drug. [Emphasis in original].
Peek J points out in R v Parisi,[152] that it was ‘in this context that the court found s 33P of the Act to be applicable’. To adopt an analogous situation considered in R v Alwazan,[153] if Ms May merely knew fantasy and/or methylamphetamine was in the Yaris, that does not establish she was in possession of it, and furthermore possession is not established by proving she acquiesced in someone else placing it there if that was the case.
[151] Ibid.
[152] (2014) 119 SASR 277, [34].
[153] [2016] SASCFC 155, [24].
Count 35 – May
There is simply insufficient evidence that Ms May knew of or was recklessly indifferent in the sense of having an awareness of the likelihood of the presence of the cardboard box in the rear of the Yaris, still less that it contained 2 kg or 0.5 kg of 1,4-Butanediol. There is no DNA or other connection with it or any other drug found in the car for that matter. For those reasons she is entitled to an acquittal on this charge.
Counts 38 and 39 – May
Essentially for the same reasons applicable to count 35, proof of each one of these two charges fails. The prosecution cannot otherwise prove, knowledge or reckless knowledge of the methylamphetamine or the MDMA within the black box under the bumper of the Yaris, that she was in possession, or that she was aware it, or its contents were somewhere in the car. The requisite proof of knowing possession is equally absent.
To the extent that the court was invited to reject her evidence that she did not see the large box in the boot on the basis of its size and proximity to her suitcases as unlikely, the fact that she might be disbelieved about that does not prove that she did: Trainer v The King.[154] There is in that instance simply no evidence she knew anything at all about it or the black box secreted under the rear of the hired car. There is no evidence at all that she had any idea the black box was wired under the car, still less of what was in it. The suggestion that she might know something about it because of the presence of a pair of pliers found between the door jam on the front driver’s side door, is speculation in the extreme. The photographs do not even suggest that it would be obvious to her in the position it was found.[155]
[154] (1906) 4 CLR 126, 133-134.
[155] Exhibit P19, images 1168 and 1171.
Count 37 - May
This charge is based on the 7.39 g of substance containing 5.16 g of methylamphetamine found in the cigarette packet taken from the front passenger side door pocket of the hire car parked in Ms Hill’s driveway. Here the prosecution case is that Ms May had specific knowledge and took steps in the process of sale of the drugs by transporting it. It is known from her own evidence that this belonged to Puckridge and that he supplied her with it at least twice on the trip to the Geelong area and at least once on the return trip to Adelaide. Referring to it as ‘Ice’, she admits knowning this was a crystalline form of methylamphetamine, or ‘Meth’.[156]
[156] T307.6-.8.
Once Puckridge told her before embarking on the trip that he brought with him some Ice and a pipe so they ‘could have a smoke’,[157] they had clearly embarked upon a common purpose to possess and consume a controlled drug, contrary to s 33L of the Controlled Substances Act. By the time he produced it for their joint consumption and kept it afterwards, they had widened the scope of the common purpose to include the storage, carrying, concealment and transportation of the cigarette packet containing the methylamphetamine in the car, even though she may not have actually known how much was in it. Each of these attributes constitutes a step in the process of sale within the meaning of s 4(5) of the Controlled Substances Act when done for the purpose of sale. Although the prosecution case was based on transportation, it is entitled to pursue alternative cases under this expanded definition such as storage, carriage and concealment for instance: R v Tran.[158]
[157] T305.16-.19.
[158] [2011] SASCFC 85, [31]-[32], [43]-[45].
The remaining question then is whether in taking part in the process of sale, it was ‘done for the purpose of sale’. Her evidence that Puckridge kept the cigarette packet containing the methylamphetamine very much to himself, and then left it in the driver’s pocket when she drove for a second time, is an unconvincing convenient explanation for what was otherwise a situation in which the drug was shared and consumed at will between them. Quite apart from the doubts expressed earlier concerning her creditability as a witness, this account of the circumstances is inconsistent with the suggestion that he left it in the side pocket of the front passenger seat door after he resumed driving, in that it demonstrates he was not always carefully retaining exclusive possession of it as she suggested in her evidence. On the contrary, the facts that they freely shared the drug as they pleased, together with the fact that it was located in the door pocket adjacent to the seat which she occupied for the majority of time she was in the car, leaves no other reasonable conclusion open other than that they were in joint possession of it, in pursuit of the common purpose of consuming it. Expressed in another way, there is no reasonable possibility that Ms May’s evidence on this topic was true: Douglass v The Queen.[159]
[159] (2012) 86 ALJR 1086, [13].
Since Puckridge produced his ‘stash’ seemingly at will or on demand given her self-confessed drug addiction to Ice, she must have appreciated there was such a quantity in the cigarette packet that he was intending to sell some, particularly given her intimate knowledge of the extent of his drug dealing in the past and over recent days. So much can be safely inferred as the only reasonable inference open from all the surrounding circumstances: R v Conley.[160] She then comes with definitional extensions to the meaning of trafficking in s 4(5) of the Controlled Substances Act in as much as she knew what the precise drug was in respect of count 37 and was in joint possession of it with him in transporting, storing and concealing it.
[160] (1982) 30 SASR 226, 235.
There is no reasonable possibility that Mr Climas was in possession or in joint possession of this material either. Ms May conceded in her own evidence that he had his own to consume,[161] a fact corroborated by the finding according to the agreed facts and the photographic evidence of another cigarette packet in the rear seat of the Toyota Yaris weighing 0.99 g containing methylamphetamine.[162] On all the evidence including the surveillance material, the rear seat was exclusively occupied by Climas throughout the entire journey from Mount Gambier to the Geelong area and then to Adelaide.[163]
[161] T314.28-.30.
[162] Exhibits P9, P19, and P22P26.
[163] T305.12-.13.
Since Ms May was acutely aware of the existence of the amphetamine and its location within the car and knowingly took part in the process of sale in as much as she willingly took the steps of storage, carrying, concealing and the transportation of it for the purpose of sale, and was knowingly in joint possession of it with Puckridge, she must be found guilty of count 37. In reaching this conclusion no account is taken of the drugs, cash or Ice pipes found in the glovebox of the car or of the small quantity of cocaine in the third plastic bag in the cigarette packet said to constitute ‘uncharged acts’. There is no provable connection between those and Ms May and it is a very reasonable possibility that she did not open the glovebox besides. Those items in the glovebox are therefore not admissible in the prosecution case against her.
In so concluding, it is strictly unnecessary to invoke the presumption of purpose contained in s 32(5) of the Controlled Substances Act, given that she was in joint possession of more than a traffickable quantity. Obviously the application of this presumption to the facts produces the same result.
1,4-Butanediol, ‘GBL', and ‘GHB'
It was observed earlier there is no doubting proof of 1,4-Butanediol so far as counts 35 and 36 go. This is however the very issue at stake so far as the remaining counts against Ms Hill are concerned. The defence case is that there is at least a reasonable doubt as to proof of the substance being 1,4-Butanediol on those three remaining counts, or indeed that they were GBL or GHB either. Because of the way in which the issues shaped during the course of the trial, it is necessary to have some understanding of the different properties and characteristics of each of these separately regulated controlled drugs.
The following analysis is taken exclusively from the combined evidence of Detective Glasson, and the forensic scientist Mr Painter the present team leader of the illicit drug and clandestine drug laboratory groups of the Forensic Science Centre. The qualifications and experience of either to give expert evidence on these topics went unchallenged.
Mr Painter told the court that 1,4-Butanediol and GBL (4-hydroxybutanoic acid lactone) are generally found in liquid form. Dependent on temperature GHB (also known as 4-hydroxybutanoic acid) whether mixed with water or in salt form, has a ‘solid’ crystal appearance.[164] When unadulterated, GBL and 1,4-Butanediol present as clear viscous (thick) liquids. Whereas GHB when dissolved in water could present as a viscous liquid and look like 1,4-Butanediol or GBL, but it could also have the appearance of water, depending on the concentration of GHB.[165] All three substances are colourless in pure form and relatively odourless. In terms of taste, 1,4-Butanediol and GBL have a ‘chemical or solvent-type taste’, whereas GHB when dissolved in water has a more ‘salty-type taste’,[166] and when placed in water it becomes a solution.[167]
[164] T202.22-203.3.
[165] T204.4-.10.
[166] T204.19-205.6.
[167] T220.16-.22.

It follows there is a reasonable doubt about which controlled drug of the three charged ‘fantasy’ alternatives it was. On the other hand, all this material taken in combination and especially Ms Hill’s own words referring to quality, quantity and pricing per volume, are categorical enough to draw the conclusion beyond reasonable doubt that she intended to procure 1,4-Butanediol from Puckridge on count 9, and that this is exactly what she intended to sell to Mr Potter on the count 16 and 23 transactions.
That conclusion is drawn from a number of her own statements reveal an intimate knowledge of the chemical properties of 1,4-Butanediol, chief amongst them being these:
·I put a small amount in a shot glass and it doesn't freeze. It's frothy on the top when you shake it … (P)robably was good at one stage it's just been watered down hard;
·It's been a slow process getting all the water out … But I must say it’s pretty fucking killa now. So out of 2 I get back around 1.5 or just over the whole lot hasn't been done, only 4 �)�k6;
·The reason it was good was cuz we got all the bullshit out…I told u once my mate had fixed it that it was killa but before it was shit…(I)f it were killer from the start I would not of said that I would give it back cuz if it killer then I would have money to make…’;
·And the one u tried had been evaporated from wen I last seen u;
·Lucky u said cuz I would of charged him $4 per m;
·The one was ripper that was had better buz;
·... it freezes up and shit but it’s just not … the same one;
·Its just that its gotten worse each time. Its heaps watery. One way to check is that it should freeze in the fridge’: call 5, 20/3/16.
·This one heaps thick cools outside … U can save me sm of it so I can take back and compare …’
The evidence that it was 1,4-Butanediol that Puckridge brought to her home on 28 May supports this conclusion.
Count 36 - Hill
Returning to the arrival of the Yaris at Ms Hill’s Hillcrest home in the early evening of Friday 28 May 2016, the completed act of trading only failed on account of police intervention. The two boxes remained in the boot and under the car whilst Puckridge reached the front door at a time when Ms Hill remained inside the house. The delivery was not completed and she did not therefore acquire actual possession of any drug. For her part, there was nothing more she could do other than take possession. It is true enough that no quantity or price was agreed upon, however the previous communications between them as to pricing resolved in agreement and on the second Potter transaction Puckridge in fact deferred the question of price to her.
Her communications with Puckridge as he was on the way to her house indicate a belief on her part that he had secured the drug, and her communications with Chris Lucas, Rick Evans, Gary Jones, Chad, Maca and the unknown sources show unequivocally that she was very keen to source ‘drinks’ from 25 May 2016, and that she had become desperate by 28 May 2016. This latter conclusion is very evident from her message to Puckridge on the 27th of May 2016 ‘Should I start searching elsewhere … Hey ru still going to be able to help with drinks’, seeking from ‘Rick Evans’ ‘any drinks’ at 4.01 pm that day, from ‘Gary Jones’ ‘any drinks’ at 4.11 pm on the 27^th and asking ‘Maca’ at 28/5/16 at 10.11am ‘(H)ey its Bianca any drinks’, not to mention her delighted reply to Puckridge ‘(O)k yay thank god’.
To all outward appearances both parties intended and came to the cusp of completing the transaction. Even if they failed to reach an agreement as to price they would be caught by the extended definition of trading, because they have on the basis of the proven objective facts, participated in ‘a step … in the process of sale’ for that purpose: s 4(4) of the Controlled Substances Act.
It is well established that it is no defence to a charge of attempt that an accused was prevented by an outside agency such as police or Customs, from committing an offence, see cases discussed in R v Donnelly.[261]Nevertheless the preceding communications with Puckridge demonstrate the common intention to commit the offence of trafficking and then putting that intention into execution by some means adapted to its fulfilment, manifested by the proven overt acts, falling short of actually committing the offence.[262]
[261] [1970] NZLR 980, 990.
[262] R v De Silva (2007) 176 A Crim R 238, [14]-[15].
A verdict of attempt in these circumstances is authorised by s 270A(1) of the Criminal Law Consolidation Act, which provides:
… a person who attempts to commit an offence (whether the offence is constituted by statute or common law) should be guilty of the offence of attempting to commit that offence.
This was replaced by s 140 of the Criminal Procedure Act 1921 (SA) in practically identical terms, so is unnecessary to resolve which section applies.[263] A verdict of attempt is not an option under s 33R of the Controlled Substances Act, because although this section permits alternative verdicts for ‘another equivalent or lesser offence under this Part’, no offence of attempt is provided for thereunder.[264] The situation is distinguishable from that contemplated in R v Willingham,[265] as that case concerned different forms of the same controlled substance.
[263] Effective from March 2018.
[264] Part 5 of the Controlled Substances Act embraces ss 31-40B.
[265] (2012) 112 SASR 278, [38] and [80].
Count 9 – knowledge of large commercial quantity.
As seen earlier, large traffickable quantities are regulated at 2.0 kg for each of the three forms of fantasy charged on counts 9, 16 and 23. The drugs were however measured for analysis in volume rather than weight. The evidence of Mr Painter was that 1,4-Butanediol weighs 1.017 g per millilitre, 1.12 g for GBL and for GBH it depends on concentration, but no less than the weight of water which is 1 g per millilitre.[266] It follows that 10 litres weighs at least 10 kg, whatever version was supplied and is therefore a large commercial quantity. This is supported by the conclusion that the two sales to Mr Potter amounted to a total of 2.2 litres, so that it is clear Ms Hill must have obtained a significantly greater quantity than that.
[266] T205.23-.30.
With respect to count 9, Ms Hill asserts ‘ok cool’ to Puckridge’s offer ‘is 10 too much’ in their exchanges during the evening of 25 April 2016, when she must have been on the way to Millicent to collect. As this was undoubtedly a reference to 10 litres it is proven to the requisite degree the she knew at least 2 kg was involved.
Count 16 – trafficking
It is clear from the exchanges between Potter and Puckridge in the late evening of 25 May 2016 that Potter orders ‘200 millilitres for which he ultimately pays $2.60 per millilitre and that armed with Ms Hill’s contact details he attends upon her to buy it. Days later he describes it as ‘killa’ and of taking ‘a bit longer to freeze’.
Count 23 – knowledge of commercial quantity
In the exchanges between Potter and Puckridge, Potter says ‘I had people screaming for a drink’ and he asks for a ‘big one tonight’. He indicates he is happy to pay ‘two twenty two thirty’ and then ‘anywhere between two and two fifty’. He eventually agrees ‘done’ at ‘two fifty’. Later during the evening of 10 May 2016, Hill asks Puckridge ‘what did you want me to … charge him for it’ and Puckridge tells her ‘probably twenty five’. Based on the evidence of Detective Glasson, fantasy sold for between $3,000 - $5,000 per litre at that time, the inference is open from the prices discussed that it was a litre under discussion. This conclusion is consistent with the reference by Potter to ‘a big one’, a reference of itself of little probative weight apart from that.
Although the price agreed upon was lower than the estimates given by Detective Glasson, it remains in touch with that range. The lowish price is also consistent with ‘2 per mil for $400’. The internal consistency in pricing and the aforesaid references to quantity, leave no reasonable possibility other than that Ms Hill knew more than the prescribed commercial quantity of 0.5 kg was involved, calculated on the safe margin of 1 litre weighing 1 kg. That being the case it is proven beyond doubt that not less than a commercial quantity of fantasy was involved in this transaction to the knowledge of Ms Hill.
Counts 9, 16 and 23 – verdicts for attempt
The conclusions that Ms Hill intended to purchase 1,4-Butanediol and intended to sell it twice to Mr Potter, calls into question whether it is open to return verdicts of attempt on these counts, given the inability of the prosecution to prove which of the three charged variants it was. The proven facts applied to the principles applicable to attempt, demonstrate that on each one of these three counts, Ms Hill had otherwise knowingly intended to carry out the completed offence. Two consequential issues arise from these conclusions of fact.
The first point taken by Ms Mansfield was that it is not proven the three charged controlled drugs are exhaustive of all forms of fantasy. In other words, there is a reasonable possibility another or other forms of fantasy exist and it is not demonstrated that it or they were regulated controlled drugs. Very little evidence was unfortunately adduced on this topic.
Detective Glasson did say that ‘within that fantasy family there's also GHB gabba hydroxybutanoic acid and also GBL which is gabba hydroxybutanoic acid lactone’.[267] Under cross-examination he added that ‘fantasy’ is a ‘street word’ rather than a generic chemical description.[268] He was cross-examined by Ms Mansfield as to pricing of fantasy ‘generically’,[269] and his evidence-in-chief was generically based as well.[270] Mr Painter was not taken to the topic at all during his evidence. Neither the affidavit of Detective Glasson of 6 April 2018 nor the report of Mr Painter of 16 April 2018, refer specifically to the topic either. Neither suggest there are any other forms of fantasy. Both were read into the record.[271]
[267] T174.37-175.3.
[268] T184.17 -.20.
[269] T189.23-.36.
[270] T183.15-.22.
[271] T171.3-.14.
Nothing was put to either witness by defence suggesting there were any other forms of fantasy other than the three charged variants. It is clear the prosecution proceeded on the assumption that this was not in issue. The only reference before the court therefore is to the effect that 1,4-Butanediol, GHB and GBH are exhaustive of those drugs compendiously described in lay terms as ‘fantasy’. As these are regulated that disposes of the present question. Even so, it would have been clearer if Mr Painter was examined on the issue to clarify matters by referent to Schedule 1 of the Regulations.
The second point taken by defence counsel is of more substance. Counts 9, 16 and 23 were amended at the beginning of the trial because the prosecution was obviously alert to the prospect that the text communications may fail to convince the court 1,4-Butanediol was at stake, so it sought to cover that contingency by making the amendments referred to above. The prosecution did not however advert to the prospect of alternative verdicts for attempt as a consequence, until commencing its closing address. Counsel for the prosecution raised the issue in this way at the time:[272]
MS BOREK:Now if your Honour is satisfied that was Ms Hill's intention to traffic in [1,4-Butanediol] … but that she was duped into buying an inferior product … [it is] open … to convict of attempt. … that alternative attempt is available to your Honour.
HIS HONOUR: Now this is 9, 16 and 23, is it?
MS BOREK:Yes, that's right.
[272] T484.28-485.2.
The prospect of an alternative verdict on this basis was vigorously opposed by Ms Mansfield:[273]
My friend in her address invited your Honour if you're not satisfied beyond a reasonable doubt as to the substance relating to counts 9, 16 and 23, being a species of fantasy, to convict Ms Hill of attempting, of attempts on those three charges.
My first submission would be that in doing so, the burden to meet a charge of attempt on the basis that the substance cannot be identified artificially alters the prosecution case and the manner in which the entire case has been run in relation to Ms Hill in relation to those counts, namely, that the contest has always been one where the prosecution have said that the successful proof of a substance that they undertake to prove the chemical identity of was the fact in issue in relation to these charges and it was a very clear contest from the beginning.
[273] T602.6-.21.
When the matter was called on again for further submissions on the point, Ms Mansfield took her objection still further.[274]
Prior to the issues of attempt being raised, the question of Ms Hill's state of mind at each stage was not a matter of import in terms of the contest that was being mounted and I might put as an example this: it might have been, had attempt been an issue, firstly it was something that would clearly have required a consideration as to Ms Hill giving evidence because it was going to go directly to her state of mind and she was obviously going to be the best source for that and it might have been, for example, that at the time of the particular sale, because of the nature of the substance, she herself did not believe it was fantasy. She might have given evidence that she didn't think it was fantasy, having tried it she thought it might have been ecstasy or she thought it might have been an amphetamine. If that evidence had been accepted, in those circumstances she would have been not guilty of the attempt.
Counsel protested that the prospect of alternative verdicts placed Ms Hill at a ‘forensic disadvantage’ as she would be ‘deprived of the opportunity to meet that critical aspect by giving evidence if she so wished’.[275]
[274] T15.32-16.11, 05/06/2018.
[275] T16.14-.26, 05/06/2018.
It is of fundamental importance that the prosecution present its case completely before an the accused is called upon to answer a charge, so that the prosecution is not permitted to ‘split’ its case on any issue, and it may not reopen unless the circumstances are most exceptional: Shaw v The Queen.[276] This governing principle was reaffirmed in R v Soma,[277] as a general principle of long standing. The many cases in point generally arise when the prosecution apply to reopen and call additional evidence, or seek to cross-examination an accused or defence witnesses on material that could and should be introduced in the prosecution case, as in R v Caratti.[278] A corollary of the general principle is that the prosecution cannot put a quite different case to the jury after the evidence is closed, as in R v Tran,[279] and R v Howard.[280]
[276] (1952) 85 CLR 365, 379–80.
[277] (2003) 212 CLR 299, [28]–[29].
[278] (WACCA, 9 June 1998, unreported),14.
[279] (2000) 105 FCR 182, [133].
[280] (2005) 156 A Crim R 343, [28].
An important adjunct to the general principle is that trial Judges should not raise paths to conviction not expressly relied upon by the prosecution: Patel v The Queen,[281] R v Solomon,[282] R v Torney,[283] R v King,[284] upheld in King v the Queen,[285] R v GAS,[286] R v Howard,[287] R v Powell.[288] This is precisely what occurred in R v Franco.[289] In that situation the duty of the trial judge is explained by Duggan J in Franco:[290]
[20] Although it is desirable that the prosecution should indicate at the commencement of the trial the basis upon which it seeks a conviction, there will be cases in which the course of the evidence gives rise to the possibility of a further basis for conviction on the offence charged or the basis for a conviction on an alternative offence which is available at law. An important consideration for the trial judge in deciding whether to leave to the jury a path to conviction not previously mentioned is whether the accused has had an adequate opportunity to test evidence relevant to such reasoning, to call evidence relevant to it, and to address the jury on it.
[281] (2012) 247 CLR 531, [112].
[282] [1980] 1 NSWLR 321, [13]
[283] (1983) 8 A Crim R 437, 440.
[284] (1985) 17 A Crim R 184, 187.
[285] (1986) 161 CLR 423.
[286] [1998] 3 VR 862, 863, 878-879.
[287] (2005) 156 A Crim R 343, [28]-[30].
[288] [2014] SASCFC 48, [24]–[30].
[289] (2003) 139 A Crim R 228.
[290] Ibid, Debelle and Lander JJ concurring.
Another overarching consideration is the duty of the trial judge to leave alternative verdicts. As a general rule judges are under a duty to leave alternative verdicts for which there is a reasonable basis in the evidence. This rule is tempered when unfairness, prejudice or a denial of natural justice to the accused is evident: R v Solomon,[291] R v Quinn,[292] R v Benbolt.[293] This very consideration was adverted to by Duggan J in R v Franco:[294]
[21] A trial judge is not bound by the prosecutor's formulation of its case. It may be necessary for the judge to consider whether it is appropriate to leave alternative verdicts to the jury or direct on alternative paths to conviction irrespective of whether such alternatives are relied upon by the prosecution. However, it is essential when considering such a course to have regard to whether unfairness would result if, through no fault of the defence, the alternative basis had not been properly addressed during the trial.
[291] [1980] 1 NSWLR 321, 327–328.
[292] (1991) 55 A Crim R 435, 443–445.
[293] (1993) 60 SASR 7, 19, 23, 27.
[294] (2003) 139 A Crim R 228
There are of course cases in which putting a lesser charge to a jury might jeopardise an accused’s chances of complete acquittal: Keenan v The Queen.[295] On the other hand as King CJ points out in R v Benbolt:[296]
…I cannot agree that it is unwise for a judge to raise alternatives on his own initiative. There are strong considerations of justice and policy in favour of the disposal of all alternatives at the trial and the judge ought not lightly to take a course which would preclude consideration of an alternative to the offence charged. I consider that it is his duty to raise alternatives on his own initiative if there is a reasonable basis for them in the evidence, subject only to overriding considerations of fairness.
[295] (2009) 236 CLR 397, [138].
[296] (1993) 60 SASR 7, 19.
This statement of principle was referred to with some qualification in the joint judgment of six judges of the High court in James v The Queen:[297]
[36] An accused may successfully raise a plea in bar on arraignment for an offence of which the accused might have been convicted on the allegations in the indictment at an earlier trial. This consideration inclined King CJ to the view in Benbolt v R that it was the trial judge’s obligation to direct the jury on any alternative verdict, notwithstanding that the parties had made no reference to that possibility. The failure to do so might preclude the prosecution of the accused for an offence of which he or she was guilty. Contrary to the burden of the appellant’s argument, King CJ considered that the overriding fair trial obligation would in an appropriate case justify the decision not to leave an alternative verdict.
[37] The importance under Australian law of maintaining the separation between prosecutorial and judicial functions has been stated in a number of this court’s decisions since Benbolt. The view that it is the duty of the trial judge to invite the jury to determine the accused’s guilt of an included offence at a trial at which the prosecution has elected not to do so is incompatible with the separation of those functions. It is not the function of the trial judge to prevent the acquittal of the accused should the prosecution fail to prove guilt of the offence, or offences, upon which it seeks the jury’s verdict. At a trial at which neither party seeks to rely on an included offence, the trial judge may rightly assess that proof of the accused’s guilt of that offence is not a real issue. In such an event, it would be contrary to basic principle for the trial judge to embark on instruction respecting proof of guilt of the included offence.
[38] The trial judge’s duty with respect to instruction on alternative verdicts is to be understood as an aspect of the duty to secure the fair trial of the accused. The question of whether the failure to leave an alternative verdict has occasioned a miscarriage of justice is answered by the appellate court’s assessment of what justice to the accused required in the circumstances of the particular case. That assessment takes into account the real issues in the trial and the forensic choices of counsel. As earlier noted, not infrequently defence counsel will decide not to sully the defence case (that the only proper verdict is one of outright acquittal) by an invitation to the jury to consider the accused’s guilt of a lesser offence. Such a forensic choice does not prevent counsel from submitting that the alternative verdict should nonetheless be left. Much less does it prevent counsel from making that submission where, as here, he or she is asked about the matter. It remains that the forensic choices of counsel are not determinative. The duty to secure a fair trial rests with the trial judge and on occasions its discharge will require that an alternative verdict is left despite defence counsel’s objection.
[297] (2014) 253 CLR 475 (footnotes omitted).

This present case is not one where the prosecution seeks to rely on an ‘included offence’ as such. However for reasons to follow alternative verdicts of attempt are appropriately left on counts 9, 16 and 23 without unfairness.
The underlying premise on which the defence objection depends as expressed by Ms Hill’s counsel was:[298]
…the focus moves from what the substance was and in fact that becomes irrelevant and moves entirely to a focus on the state of mind of Ms Hill…and there is a very real disadvantage that accrued because, in terms of the charge of attempt, it required a focus on an entirely different aspect of the prosecution case, being Ms Hill's state of mind…
This premise fails for the fundamental reason that the mental state of mind required for the completed offences of trafficking as well as for attempted trafficking are wholly congruent. As demonstrated above, before a verdict of attempt can be entertained, proof of the actual intent to commit the completed offence must be evident. Precisely an identical state of mind is required in each case in proof of the substantive offences. Accordingly, when Ms Hill exercised the election not to give evidence, she faced exactly the same forensic choices, irrespective of the prospect of the alternative verdict of attempt. There was in that situation no forensic disadvantage, and hence no unfairness, prejudice, or denial of natural justice.
[298] T15.22-T16.18, 5/6/2018
It is impossible to envisage how the evidence required any further testing or how Ms Hill could have conducted her case any differently as a result of leaving attempt. The decision whether or not to give or call evidence in the defence case was made in what were identical circumstances so far as her ‘state of mind’ was concerned. It follows that verdicts of attempt are fairly open and duly entered in the case of Ms Hill on each of counts 9, 16 and 23.
Count 36 – trafficking
Such steps as Ms Hill did take were immediately connected to the commission of the completed offence of trafficking and they cannot reasonably be seen as having any other purpose than trafficking. Those steps include pestering Puckridge for fantasy and encouraging him to acquire and deliver it. This she did pursuant to the prior formation of and continuing a joint criminal venture with Puckridge to traffic in 1,4-Butanediol, by her encouragement for him to obtain the drug quickly, to bring it to her promptly and by her messages ‘(S)hould I start looking elsewhere’,[299] and her assent ‘(O)k yay thank god. Good timing too cuz there’s nothing about here’.[300] Having the intention to purchase 1,4-Butanediol she is found guilty of count 36.
Conclusion and Verdicts Ms Hill
[299] Exhibit P8, call 4916.
[300] Exhibit P8, call 4988.
Count 9 – trafficking in a large commercial quantity of ‘fantasy’
Although the prosecution cannot prove which of the three versions of fantasy it was, it is proven that Ms Hill intended to acquire 1,4-Butanediol, and knowingly acquired more than 2 kg, she is found not guilty of trafficking but guilty of attempting to traffic in a large commercial quantity of 1,4-Butanediol.
Counts 16 and 23 – trafficking and trafficking in a commercial quantity of ‘fantasy’ respectively
Holding the intention and belief that she purchased 1,4-Butanediol and with that knowledge sold fantasy on both occasions to Joshua Potter, Ms Hill is found not guilty of trafficking but guilty of attempting to traffic in 1,4-Butanediol on 5 May 2016 and on 10 May 2016.
Count 36 – attempted trafficking in 1,4-Butanediol
As she took steps, with the intention to commit the completed offence, that were more than merely preparatory and which are only reasonably explicable as having no other purpose than the commission of the offence of trafficking, Ms Hill is found guilty of attempting to traffic in 1,4-Butanediol as charged,
Conclusion and verdicts Ms May
Count 35, 38 and 39 – trafficking in a large commercial quantity of 1,4-Butanediol, trafficking in amphetamine and trafficking in MDMA
As there is no proof that Ms May knew of, was reckless as to, or was in possession of controlled drugs, she is found not guilty of these three charges.
Count 37 – trafficking in amphetamine
As it is proven beyond reasonable doubt that Ms May knew of and held joint possession with Puckridge of the methylamphetamine within the cigarette packet seized from the front passenger side door pocket of the Yaris for the purposes of sale, she is found guilty of trafficking on this count.
Verdicts are entered accordingly.