R v Hunt & Becirovic

[2016] SADC 22

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v HUNT AND BECIROVIC

[2016] SADC 22

Reasons for the Verdicts of His Honour Judge Tilmouth

11 March 2016

CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - ELECTION

Discussion of the principles applicable to the discretion to make an order for trial by Judge alone when the time for making an election has expired.

Juries Act (SA) s 7(1)(b), s 7(3); Juries Rules 1996 (SA) r 42(4); Wigmore on Evidence 34th Ed 1904, referred to.
R v Gavare (2011) 274 LSJS 553; Mule v The Queen (2005) 79 ALJR 1573, applied.

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE

Evidence of search of a vehicle and home premises admitted, there being no identifiable illegality or impropriety.

R v Lobban (2000) 77 SASR 24; Summary Offences Act 1953 (SA) s 67, s 67(4)(a); Summary Offences Act s 67(4), Schedule 1; R v Nguyen (2013) 117 SASR 432; R v Khan [2014] SADC 206; R v Little (1976) 14 SASR 556; Criminal Law Consolidation Act 1935 s 278; Darby v The Queen (1982) 148 CLR 668; R v Glover (1987) 46 SASR 310; R v Collie (1991) 56 SASR 302; De Jesus v The Queen (1986) 61 ALJR 1, referred to.
R v Nguyen [2015] SASCFC 7; R v Heidt (1976) 14 SASR 574, distinguished.

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION

Discussion and application of the requirements to prove knowing possession or joint possession of controlled drugs in charges of trafficking in those drugs.

Controlled Substances Act 1984 (SA) s 5(f), s 32(2), s 32(3), s 32(5), s 33S(a); R v Frangos (1979) 21 SASR 331; R v Nguyen (2005) 12 VR 299; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) Schedule 1; R v MJJ & CJN [2013] SASCFC 51; R v C, CA [2013] SASCFC 137; R v Soteriou (2013) 118 SASR 119; R v Yalman [1998] 2 Cr App R 269; R v Guney (1998) 2 Cr App R 262; R v Sultana (1994) 74 A Crim R 27; R v Edwards [1998] Crim LR 207; R v Lewis (1989) 46 A Crim R 365; R v Morris [1995] 2 Cr App R 69; R v Gordon [1994] 2 Cr App R 61; R v Grant [1996] 1 Cr App R 37; R v Guney [1994] 2 Cr App R 242; R v Radi [2010] NSWCCA 265, referred to.
R v Tran [2011] SASCFC 85; 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 Gibb and McKenzie [1983] 2 VR 155; He Kaw Teh v The Queen (1985) 157 CLR 523; R v Phung (2003) 141 A Crim R 311; R v GNN (2000) 78 SASR 293; R v Dib & Dib (1991) 52 A Crim R 64, applied.
R v Strawhorn [2008] VSCA 101, distinguished.

CRIMINAL LAW - EVIDENCE - HEARSAY

Discussion of the admission and use of documents received into evidence without calling the maker thereof.

Evidence Act 1929 s 34T; Re Hodge's Case (1838) 168 ER 1136.; R v Van Beelan (1974) 9 SASR 163; Myers v Director of Public Prosecutions [1965] AC 1001; Patel v Comptroller of Customs [1966] AC 356; R v Kearley [1992] 2 AC 228; R v Kelly (1975) 12 SASR 389; R v Romeo (1982) 30 SASR 243; R v Tartaglia (2011) 110 SASR 378; R v Wilson and Morrison (1994) 176 LSJS 435; R v Bilick and Starke (1984) 36 SASR 321, referred to.
Chamberlain v The Queen (No 2) (1984) 153 CLR 521; Sheppard v The Queen (1990) 170 CLR 573; Ratten v The Queen [1972] AC 378; Belhaven Stanton Peerage [1875] 1 AC 278, applied.

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS

Discussion of the mental element required to prove the possession of an unlawful firearm.

Firearms Act 1977 (SA) s 5(14) & (15), s 11(1); R v Sandery [2013] SADC 38, referred to.
R v Joyce [2014] SADC 125; R v Khan (No 2) [2014] SADC 207, applied.
R v Fuller & Zazzaro [2012] SASCFC 101; R v Marafioti (2014) 118 SASR 511; R v McGhee (1993) 61 SASR 208, discussed.

R v HUNT AND BECIROVIC
[2016] SADC 22

Formalities
The charges
Trial by Judge alone
General overview of the prosecution case
Illegal search and seizure?
Applications for separate trials and severance
Discreditable conduct evidence
Uncharged and charged substances

Dimethyl sulfone:

Methylamphetamine
Hypophosphite salt
Metandieneone (aka methandrostenolone)

Cocaine

Mannitol

Procaine

Nicotinamide

Stanozolol

Nandrolone

Testosterone
3,4-methylenedioxymethylamphetamine (MDMA)

Fundamental legal principles
Possession and joint possession – controlled substances
Possession and knowledge – firearms
Elements of the offences
Circumstantial evidence
The evidence

DNA and fingerprint evidence

Documentary and photographic evidence

The Chrysler sedan in the driveway

Evidentiary considerations
Association with the Glandore property?

Ms Hunt
Mr Becirovic

Documentary material – temporal connections
The charges

Preliminary consideration
Counts 3 and 4
Count 2
Count 1

Conclusion and verdicts

Formalities

1. Both accused, Laura Hunt and Kenan Becirovic, were arraigned on 1 February 2016, when they pleaded not guilty to charges laid on an Information of the same date.  They are jointly charged with trafficking in a commercial quantity of a controlled drug, trafficking in a controlled drug (3 counts), and possessing firearms without a licence (2 counts).  The accused Mr Becirovic alone faces three additional aggravated counts of possessing firearms without a licence.

2. Both accused made elections for trial by Judge alone. These reasons proceed to deal with preliminary objections and applications, the reception or exclusion of various items of contested evidence and then to analyse the evidence and to bring in verdicts with respect to both accused. The case was conducted almost exclusively on the basis of the many prosecution statements and declarations before the court,[1] and for the most part consisted on both sides of legal argument, based on those primary materials over the course of some 11 sitting days.

   [1]    Exhibit P20.

   The charges

3. Each charge particularises the offence as occurring at Glandore on 7 January 2011. They arise from a police raid of the residence and the home address of Ms Hunt, under the authority of a General Search Warrant. Count 1, trafficking in a commercial quantity of a controlled drug contrary to s 32(2) of the Controlled Substances Act 1984 (SA) (the CSA), relates to an estimated 3,033 tablets weighing a total of 861.8g of 1-benzylpiperazine (BZP) commonly sold as ecstasy, found in an empty ‘Dulux’ paint tin in a garden shed at the very rear of the premises.

4. Counts 2 and 3 charge trafficking in the controlled drug cocaine, contrary to s 32(3) of the CSA.  These relate to 42.30g of substance containing 7.06g of cocaine, found in a pot-plant in the dining room of the subject premises (count 2), and 2.95g of substance containing 0.51g of cocaine, found in a kitchen pantry cupboard inside an ‘Easy Mac’ cheese box (count 3).  Count 4 consists of a third charge of trafficking in a controlled drug, a mixture of 8.45g of 4-methylmethcathinone (4-MMC or Mephedrone, an ecstasy like substance) and ketamine (the greater portion being 4-MMC), located in another plastic bag found inside the same empty ‘Easy Mac’ box referable to count 3.

5. Counts 5 and 6 charge both accused with possessing firearms without a firearms licence authorising the possession of that firearm, contrary to s 11(1) of the Firearms Act 1977 (SA). Count 5 relates to a ‘Norinco’ brand SKS semi-automatic repeater rifle and scope contained in a ‘Beretta’ case, and count 6 to a ‘Winchester’ 12 gauge pump action shotgun, both Class D firearms. Both were found by the police in the same garden shed behind an empty bookshelf, and both were found to be operative.

6. Mr Becirovic is charged alone with three aggravated offences of possessing Class H firearms without holding an appropriate licence, once again contrary to s 11(1) of the Firearms Act. All three were found by Police in the engine compartment of a Black Chrysler 300C sedan parked in the driveway of the house. They were not discovered until later when the vehicle was searched at the Ottoway Police compound. These were respectively two semi-automatic pistols a ‘Jennings’ .22 calibre revolver and a ‘Savage’ .32 calibre, both loaded with magazines containing live rounds (counts 7 and 8), and a ‘Harrington & Richardson’ double action semi-automatic revolver loaded with five live rounds (count 9). The fact that all three were loaded furnishes the particulars of aggravation in each count: s 11(7b)(a) Firearms Act.

7. Following a series of preliminary applications, an order was made for the severance of these latter three charges, because of the complexities involved in the differing modes of proof available to the prosecution with respect to the same underlying facts – to be explained later – and the potential prejudice to both accused.

   Trial by Judge alone

8. Mr Becirovic filed an election for trial by Judge alone months before the trial was due to commence. As Ms Hunt did not, the trial could not proceed as such, as she did not ‘concur’ in the election: s 7(3) Juries Act 1927 (SA). The Information filed on 1 February was in substitution of a previous joint Information dated 29 January 2013, on which Ms Hunt purported for the first time to make her election. As the new Information did not materially alter the substance of the charge or charges upon which she was to be tried, she was not thereby entitled to make a fresh election: r 42(4) Juries Rules 1996 (SA).

9. 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 Juries Rules.  However r 42(5) of the Juries Rules 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.

10. Ms Powell QC counsel for Ms Hunt, submitted both limbs of this rule (special reasons and injustice), were applicable to the circumstances of her client.  She pointed to ‘the plethora of material’ disclosed by the prosecution since 9 May 2014 when the accused were first arraigned on the original Information.  More significantly, she highlighted the recent application by the prosecution to introduce ‘discreditable conduct’ evidence served by a notice dated 22 January 2016, which significantly altered the basis upon which the prosecution case was to be conducted.  As will appear, the evidence encompasses complex and difficult questions of law and fact, so much as to require the protection of the accused from impermissible lines of reasoning and from the misuse of potentially prejudicial evidence.

11. The application of the ameliorative powers conferred by the Juries Rules was the subject of extensive consideration in R v Gavare,[2] by Gray J, Duggan and Sulan JJ concurring:

    [59] The discretion of the court to dispense with compliance with the requirements of the rules or to extend time are both conditioned on the court being satisfied that either there is special reasons for so doing, or that it would be unjust not to do so. The fact that the discretion is conditioned on the above alternatives would suggest that rules were designed to facilitate an extension in an appropriate case. The use of the phrase “would be unjust not to do so” is designed, it might be suggested, to enable the court to act in a wide variety of circumstances. As the purpose of the rule appears primarily to be directed to control process and avoid abuses of process, then it may be understood that a genuine explanation as to why the right was not exercised earlier would be sufficient to meet the requirement of the rules. It is relevant to note that even if the justice of the case does not call for an extension, special reasons may otherwise exist.

    Gray J proceeded to emphasise that a court exercising the powers so conferred, must consider whether its processes are abused by ‘judge-shopping’, and to ascertain why the proposed election was not made at or before the time of the first arraignment, as prescribed in the rules.

    [2] (2011) 274 LSJS 553; [2011] SASCFC 38.

12. There was no question of forum shopping here, as the election was made before the defence became aware of the identity of the trial Judge.  Prosecution counsel had no quarrel with this position.  The explanation for the late election was the materially different circumstances in which the election was made, a position not disputed by Mr Foundas, lead counsel for the prosecution.  Nor did he oppose an order for trial by Judge alone.  For his part Mr Becirovic adhered to his earlier stance.

13. That being so, the combined circumstances were such that it was appropriate to extend the time prescribed for making the election for trial by Judge alone by Ms Hunt to 1 February 2016, upon being satisfied she had before making it, ‘sought and received advice in relation to the election from a legal practitioner’, as required by s 7(1)(b) of the Juries Act.

    General overview of the prosecution case

14. When the Police attended the home at Glandore in the mid-morning of 7 January 2011, Ms Hunt was present and answered the door.  By and large she declined to answer any questions.  She maintained that the items later seized by the police were not hers.[3]  This claim, although in the nature of a self-serving statement, is admissible evidence in her case with respect to each count, to be given such weight ‘as it appears to be entitled to in comparison with the facts clearly established by evidence’: Mule v The Queen.[4]  This is of course no evidence in the case against Mr Becirovic; nor is her assertion that she ‘lived there alone’.[5]

    [3]    Exhibit D27, agreed facts, T96.5-.10.

    [4] (2005) 79 ALJR 1573, [22].

    [5]    T76.9-.10.

15. The prosecution case is that this home was occupied by her, even though it was registered on the Title in the name of her parents, Peter and Delia Hunt.[6]  They lived on an adjoining property immediately to the rear.  By all accounts Mr Becirovic was not present at this time.  He was in fact at that very time, at his home in Eden Hills where he lived with his wife and two children, who were also present.  None of the members of those respective families were called by the prosecution or the defence.  Neither side sought any adverse inference should be drawn because of this situation.

    [6]    Exhibit P27.

16. All the same, it is the prosecution case that Mr Becirovic frequently visited Ms Hunt at this and at a previous property in Richmond then occupied by her.  He has in fact fathered a child by her, a son Arman Hunt born on 2 October 2009.[7]  The house itself was under significant renovation for some time, which as of 7 January was incomplete.

    [7]    Exhibit P25.

17. The prosecution pitches its case against both accused on the footing that they were in joint possession of the Glandore property and the drugs and firearms charged on counts 1-6, but that Mr Becirovic alone was in possession of the firearms hidden in the Chrysler, charged on counts 7-9.  As to the latter three counts, that vehicle was registered in the name of Mr Becirovic’s wife at the Eden Hills address as of January 2011.[8]  Neither accused held firearms licences authorising the possession of any one of the subject firearms.[9]

    [8]    Exhibit P23.

    [9]    Exhibit P21.

18. The case against Ms Hunt commences with her acknowledged occupancy of the premises, and the inferences to be drawn from all the objective evidence from which it can be deduced that she must have known of the drugs and firearms.  Essentially the broad contention is that because the drugs, the other related substances and the firearms were found in such obvious places regularly accessed, she must have known about them.

19. As to Mr Becirovic, apart from the evidence of the presence of toiletries, shoes and clothing suggesting a male occupied the premises, a DNA profile matching his was detected on two toothbrushes in the main bathroom and on a bottle of male steroid pills found in a kitchen medicine cabinet.  His finger prints were found on two water bottles, one on a bedroom side table and another near the kitchen sink.  Other evidence said to connect him with the premises were numerous documents associating him and Ms Hunt in acquiring and renovating the Glandore home, found in various places therein, as well as his connection to the Chrysler referred to earlier, through documents found in the glove-box.  It is further contended that other material personal to Ms Hunt, such as photographs and diaries depicting them both, establishes a lasting and close intimate connection between the two, and in demonstrating the joint use of the premises.

20. Mr Foundas contended that the evidence surrounding the presence of the black Chrysler sedan in the driveway at the time of the police search, as well as the evidence of the three firearms found therein, was ‘cross-admissible’ on the counts relating to the drugs and firearms charges, quite apart from direct relevance to counts 7-9 against Mr Becirovic.  It will therefore become necessary to review that evidence in detail.  Before returning to the facts, it is convenient to deal first with several preliminary applications advanced by the defence.

    Illegal search and seizure?

21. Mrs Shaw QC on behalf of Mr Becirovic, in a submission adopted by Ms Powell QC on behalf of Ms Hunt, submitted the search of the Glandore property and of the Chrysler were illegal, and as a consequence should be excluded in the court’s undoubted discretion to exclude illegally or unfairly obtained evidence: R v Lobban.[10]  The issue arose in this way.

    [10] (2000) 77 SASR 24, [32]-[40].

22. Detective Tuplin gave evidence on the voir dire that he was in possession of a General Search Warrant, renewed as a matter of course every six months, by the Commissioner of Police. Section 67 of the Summary Offences Act 1953 (SA) authorises the sweeping power vested in the Commissioner, to issue such warrants enabling the holder to exercise the powers conferred by s 67(4)(a) thereof, in the following ways:

    (4)The police officer named in any such warrant may, at any time of the day or night, exercise all or any of the following powers:

    (a)     the officer may, with such assistants as he or she thinks necessary, enter into, break open and search any house, building, premises or place where he or she has reasonable cause to suspect that—

    (i)an offence has been recently committed, or is about to be committed; or

    (ii)    there are stolen goods; or

    (iii)there is anything that may afford evidence as to the commission of an offence; or

    (iv)there is anything that may be intended to be used for the purpose of committing an offence;

    The warrant so conferred was in the form provided for in Schedule 1 to the Summary Offences Act, which in terms repeats the authorisations provided for in s 67(4).[11]

    [11]   Exhibit VDP12.

23. Detective Tuplin disclosed that a search was planned ‘for a number of weeks as a result of information we had obtained’, and that the decision to conduct this search was made ‘pretty well the prior day’.[12]  His suspicions were based on the receipt of ‘a substantial amount of information from a number of sources from within SAPOL and also external agencies’.  He declined to reveal those sources, exercising the public interest immunity privilege preventing disclosure of police sources.[13]

    [12]   T52.38-53.5.

    [13]   T53.16-.26, see R v McKelliff (2004) 87 SASR 476, [19]-[27].

24. As to holding ‘reasonable cause to suspect’, a precondition to the exercise of the power vested by s 67(4)(a) of the Summary Offences Act, was based on the information received:[14]

    … to search the premises occupied or frequented by Mr Becirovic which included the address of his partner Laura Hunt … information that equipment, drugs, contraband firearms maybe stored or used at the residence as a safe house’.

    It was to the effect that:

    Mr Becirovic was involved in a large scale importation, distribution and sale of methylamphetamine and MDMA ecstasy … large scale hydroponic cannabis syndicate … able to source and sell, supplying firearms ….’.[15]

    Detective Tuplin added his understanding was that ‘he had a child with Ms Hunt’,[16] and:[17]

    … in addition to his other residential address with his wife, he was living with Ms Hunt on that basis as well so we expected to find items of property and equipment in relation to Mr Becirovic at that address.

    [14]   T57.11-.17.

    [15]   T56.36-.57.6.

    [16]   T73.17.

    [17]   T57.24-.30.

1. The information available to him at the time suggested Ms Hunt had lived at an address in Richmond for some time.  This was the address he and his team attended earlier that morning of 7 January 2011.  At the same time other police executed a search warrant at Mr Becirovic’s home at Eden Hills, from which the court was informed no relevant evidence or incriminating material was obtained.[18]  Tuplin found the Richmond premises vacated.  He eventually forced access and ascertained that Ms Hunt had ‘moved out weeks prior’.[19]  He then made enquiries as to where she had moved, and was given an address which turned out to be the Glandore address, which they were told was ‘at the rear of Ms Hunt’s parent’s address’.[20]  This information led him to the Glandore address by about 10.00am.  Detective Tuplin acknowledged during his evidence-in-chief that this address was not one he had planned to search, as he was unaware of its association with either accused.[21]

   [18]   T95.16-.19.

   [19]   T58.21-.26.

   [20]   T58.34-59.-9.

   [21]   T59.16-.17.

2. Upon arrival, he first conducted a reconnoitre of the vicinity by driving down the street.  He observed vehicles on the property including a black Range Rover and the black Chrysler 300CC referred to earlier.[22]  The police gained entry to the premises at about 10.47am.

   [22]   T59.26-.60.17.

3. Under cross-examination Detective Tuplin maintained that his information was not specific to any particular address, in the following exchange:[23]

   [23]   T77.14-.32.

   QSo when you say 'wherever they were residing', you mean your information relates to where you understood Ms Weaver [sic] was residing at Weaver Avenue; is that right.

   ANo, it's not, no, the information wasn't specific to a premises or address.  The information was specific as to where they were residing, where they were living.

   QI see, you had no information as to where either of them was residing, it was just wherever they were residing you would expect to see guns and drugs.

   AI knew where they were living at the initial stage of the investigation; that was at Richmond.

   QI thought you were saying wherever they were residing, no matter where it was, they would have guns and drugs; that was the information.

   ANo, that is not correct.  The information was specific to where they were residing as it was being used as a safe house for guns and drugs.

   QSo wherever they were residing.

   AThat's correct.

4. He further conceded having no specific information that Mr Becirovic was living or attending the Glandore Avenue address at the time,[24] and that the intelligence gathered ‘at these two addresses on 7 January 2011 attached to [Ms Hunt] other than that she was associated with him’.[25]  Tuplin added that after undertaking checks of the registration to confirm Mr Becirovic retained possession of the Chrysler,[26]

   … in addition to the other information that I had in relation to the premises and the use of the premises, was all that I needed at that point in time.

   [24]   T87.33-.35.

   [25]   T93.36-94.1.

   [26]   T87.4-.18.

5. The submission mounted on behalf of the defendants was that information gathered by Detective Tuplin related exclusively to the Richmond address, and therefore had nothing to do with the Glandore property at which the warrant was ultimately executed. Accordingly, the police could not have entertained ‘reasonable cause to suspect’ any relevant matter within the terms of those subjects delineated in s 67(4)(a) of the Summary Offences Act.

6. The import in the evidence of Detective Tuplin was that the focus of his enquiry pertained to any residence occupied by Ms Hunt, which Tuplin believed was necessarily associated with Mr Becirovic because of their close personal relationship.  His information to that point was admittedly property specific, however his suspicions were not so confined.  The passage quoted above from his cross-examination makes that abundantly clear.  In any case, once he became aware she had moved, it is obvious that his suspicions transferred to the Glandore property.  This aspect of the submission must therefore fail.

7. A further submission was that the warrant was executed on the basis of ‘past information’ having no relevance or currency as of the time of execution.  It can be accepted that Tuplin’s intelligence gathering commenced much earlier, possibly around the end of 2010 ‘roughly October, November’.[27]  It clearly was an ongoing enquiry in which his level of intelligence grew and continued to be evaluated.  By the time Detective Tuplin left the Richmond premises, it had become sufficiently current and property specific to sustain the formation of reasonable cause to suspect that a search of the Glandore property may have afforded evidence as to the commission of drugs or firearms offences, or that the property was intended to be used for such purposes, given all his information.

   [27]   T73.36.37.

8. With respect to the search of the car, Tuplin’s suspicions were premised on much the same material.  Upon driving past he noted the registration number of the cars on the Glandore property, from a distance of some 9-10 m as they drove by,[28] although he made no written note of that.[29] During this time he undertook ‘subsequent checks’ with respect to the registration of the Chrysler, which in fact ‘came out to Mr Becirovic’s wife’,[30] as well as receiving information that this vehicle was associated with Mr Becirovic in the past.[31]  Detective Tuplin considered ‘the same suspicion that was attached to the premises’ attached to the Chrysler, that it was ‘the only vehicle that we couldn’t access’ at the premises, together with the additional information of ‘finding drugs, money and firearms at the premises’, which ‘added to my suspicion that we needed to search that vehicle’.[32]

   [28]   T86.26-.29.

   [29]   T79.25-.30.

   [30]   T87.4-.10.

   [31]   T87.10-.18.

   [32]   T64.34-65.11.

9. A particular criticism of Detective Tuplin’s evidence was his failure to keep notes of the registration details of the vehicles.  This is hardly surprising given that they were on mobile reconnoitre surveying the surrounds, preparatory to entering the premises.  There is nothing to suggest anything unreliable in Tuplin’s observations with respect to that particular issue, as it is proven the registration particulars were correct, at least so far as the Chrysler is concerned.[33]  As the vehicle was locked and as it could not be searched, arrangements were made for it to be taken to the Ottoway police compound where Tuplin directed it be examined.[34]  He claimed to have seized the vehicle ‘as an exhibit’ as an aspect of the ‘common law power to seize exhibits’,[35] which Mrs Shaw QC contended was an unauthorised act of seizure. The complete answer to that submission lies in the power residing in s 67(4)(c) of the Summary Offences Act, which specifically permits the authorised officer to ‘seize any such goods or things to be dealt with according to law’.

   [33]   Exhibit P23, Exhibit P4.

   [34]   T65.2-.17.

   [35]   T91.28, T92.7

10. It can be readily accepted that ‘mere curiosity, speculation or “idle wondering” about the existence of a fact or matter, is not the same as a suspicion that it exists’, and that the additional element of reasonableness ‘must not only rationally produce a suspicion in the mind of the police officer, but it must also engender that suspicion in the mind of a person thinking reasonably about that information’: R v Nguyen.[36]  These requirements are satisfied here.  This is not a case in which a suspicion is engendered or confined to past or outdated intelligence, unrelated to the present time.  The information was gathered over the course of time, and was updated whilst Detective Tuplin was at the Richmond address and as the police surveyed the vicinity of the Glandore home, right up to the moment the warrant was executed.  So far as the Chrysler was concerned, the basis of his suspicions naturally mounted during the course of the search and seizure process in the house, quite unlike the situation in R v Nguyen.[37]

    [36] (2013) 117 SASR 432, [21].

    [37] (2015) SASCFC 7, [29], [31]-[32].

11. Nor is this a case of unreasonably acting on the basis of erroneous information.  Although it may be that Detective Tuplin held incomplete information by the time he arrived at the Richmond address, he updated his information using the operational systems available to him, in the context of a mobile police investigation, quite unlike the circumstances in R v Trout.[38]  It may be acknowledged that simply because police happen to stumble across evidence of crime, that forms no retrospective justification for an otherwise illegal search: R v Khan,[39] for it is:[40]

    … of great importance that police officers entrusted with powers which abrogate fundamental liberties pay close attention to the conditions on which their lawful exercise depends.

    [38] (2008) 257 LSJS 268, [2008] SADC 110, [17] and [24].

    [39] [2014] SADC 206, [33].

    [40]   R v Nguyen above, [42].

12. Indeed the courts in this jurisdiction have a longstanding tradition of setting their faces against the admission of evidence unlawfully obtained, ‘at least unless the taint of unlawfulness is light and of little consequence’: R v Little.[41]  In this instance there was no breach of fundamental liberties.  There was no cutting of corners.  There is no hint of ‘widespread and arbitrary infringement of civil liberties’, as there was in R v Nguyen.[42]  There is accordingly no identifiable illegality or impropriety giving rise to the discretion to exclude.  No consequential prejudice or unfairness emerges in any event giving rise to the exercise of the general discretion to exclude under the rubric of the wider Christie discretion.  The cogency of the evidence and the seriousness of the offences combine to weigh heavily in favour of inclusion, should the discretions to exclude arise.

    [41] (1976) 14 SASR 556, 572.

    [42] (2013) 117 SASR 432, [40].

13. Much the same considerations apply to the search of the Chrysler motor vehicle, partially for additional reasons.  Here again illegality is put on the premise that the police were acting on dated information, without specific cause to underpin a reasonable belief that a search of the particular motor vehicle was warranted.  The vehicle itself was parked well up the driveway in front of the Range Rover.  It was locked.  Somewhat surprisingly, no ignition keys were found on the premises.  Quite apart from any suspicions held on account of the activities of Mr Becirovic which of themselves were justification enough to search the vehicle, given the quantity and serious nature of the various drugs found secreted about the premises as well as the firearms, it would have been undeniably remiss if the police did not search it.

14. There is simply no suggestion of any taint by reason of illegality or impropriety which could possibly trigger the discretion to exclude the evidence obtained from the Chrysler.  As no resort was had by the police to the powers of search and seizure conferred by s 52 of the CSA, and as they were not relied on by the prosecutor, that topic calls for no examination.

    Applications for separate trials and severance

15. An application was made on behalf of Mr Becirovic for a separate trial from Ms Hunt. Alternatively, severance of the firearms counts 5–9 was sought, and in the further alternative severance of the firearms found in the Chrysler charged in counts 7-9. The submission was originally based upon s 278 of the Criminal Law Consolidation Act 1935 (CLCA).  This requires the joinder of offences on the same Information to be ‘founded on the same facts, or form, or are a part of a series of offences of the same or a similar character’: s 278(1). However, as the prospect of admitting ‘discreditable conduct’ evidence arises – to be considered later – it must additionally be kept in mind that insofar as s 34P applies, ‘strong weight’ must be given to the real possibility of prejudice, as dictated by s 34T of the Evidence Act 1929 (SA).

16. The thrust of the submission was that there was a paucity of evidence implicating Mr Becirovic, there was a large volume of prejudicial evidence inadmissible as against him and there were marked differences in the case against him as opposed to Ms Hunt.  It is clear that the prosecution built its case against both accused individually.  (Note that s 267 of the CLCA does not apply to these charges by virtue of s 33S(a) of the CSA.)

17. The review of the evidence examined in detail during the course of this judgment, demonstrates that although the paths of proof commence separately, the means of proof become intimately interconnected, particularly through the nature and length of the relationship between the two accused, and their connections to the Glandore property, so that ultimately the evidence adduced as proof against both largely merges.  This is not a case in the event where the evidence admissible against one accused is significantly different from that admissible against the other: Darby v The Queen,[43] R v Glover,[44] and the cases discussed at length by King CJ in R v Collie.[45]  Nor is it a situation in which there were ‘separate episodes with different actors’, as in R v Heidt.[46]

    [43] (1982) 148 CLR 668, 678.

    [44] (1987) 46 SASR 310, 312.

    [45] (1991) 56 SASR 302, 307-309.

    [46] (1976) 14 SASR 574, 580.

18. It was further contended by Mrs Shaw QC that there was an insufficient foundation for describing the charged offences as a ‘series’, within the meaning of s 278 of the CLCA.  The drugs counts were sufficiently committed in point of time and place.  Although both categories of firearms offences are distinct, the firearms in the rear shed of the property are capable of admission in aid of proof of the drug offences, so in that sense they furnish a common subject matter, thus providing a sufficient factual nexus or connection to justify joinder: De Jesus v The Queen.[47]  Quite apart from that consideration, it is a well established policy of the law that prima facie accused persons should be jointly charged in the interests of justice: R v Conley,[48] and R v Glover.[49]

    [47] (1986) 61 ALJR 1.

    [48] (1982) 30 SASR 226.

    [49]   Above, 312.

19. The case for severance of counts 5 and 6 essentially rests on the same footing.  The case against Mr Becirovic here is dependent upon a prior conclusion that he was closely associated with the house, which is the same core issue underpinning proof of the drugs charges against him in the first place.  As the evidence to be led is substantially the same, the application for severance of these two counts must fail.  Any prejudice occasioned by the infusion of the presumption of possession that arises with respect to Ms Hunt, can safely be kept entirely separate, should it arise.

20. The application for severance of counts 7-9 is another matter.  There is evidence linking Mr Becirovic with the Chrysler through the documents found in the glove-box of the car.  There is no evidence that Ms Hunt regularly used that vehicle, if at all.  As it was registered in his wife’s name, the distinct possibility that she used it obviously cannot be discarded.  Apart from physical proximity to the Glandore home, the evidence of connection between the Chrysler and the firearms in the rear shed is tenuous at best.  The single identifiable link is that three .22 calibre rounds found inside the ‘Coles Quick Oats’ box on the top shelf of the kitchen pantry, could be used in the Jennings pistol referred to in count 7.[50]  Taken in isolation this is a very fragile connection given that ammunition of that gauge is common and is not specific to the firearm itself.  The submission that a line of reasoning is available to the effect if Mr Becirovic is found to be in possession of the firearms under the bonnet of the Chrysler, it is highly coincidental and therefore likely he would know of the firearms in the rear shed, is little more than speculation.  The two groups of firearms have nothing in common, either in characteristics or in classification.  They were found in quite disparate locations in different coverings.  Those in the vehicle were loaded, whereas those in the rear shed were not.

    [50]   ALM37.4 and ALM52.2, Exhibit P2, image 77.  The ‘ALM’ designation referred to here and latter, relate to exhibit numbers assigned by police during the investigation and frequently referred to as such by counsel.

21. For those reasons it was appropriate to order severance of counts 7-9 and to order they be tried separately.  This conclusion does not mean to say that the presence of the Chrysler and the documentary material found within it, are not inadmissible in relation to the wider question of whether Mr Becirovic was connected with the house, but that is another matter.  It does mean however, that the prosecution are precluded from adducing evidence of the firearms found in the Chrysler, in respect of any other counts, whether gun related or not.

    Discreditable conduct evidence

22. Quite apart from the BZP found in the paint container in the garden shed the subject of count 1, the cocaine found in a pot plant in the dining room the subject of count 2, and in the kitchen pantry the subject of count 3, the methylmethcathinone and ketamine found in the kitchen pantry cupboard the subject of count 4, a body of other evidence is sought to be adduced by the prosecution, of other drugs or compounds said to be admissible in proof of the element of ‘trafficking’ on those counts.  This stance is allied to the evidence of a cash sum of $13,450 in denominations of 50’s and 100’s, found in a sealed money bag of a built in robe in the main bedroom, within an aftershave box marked ‘Paco Robanne’, in a drawer of the wardrobe in bedroom 1,[51] together with a money counting machine located on the top shelf of a wardrobe in bedroom 3.[52]  All are said to be admissible as aspects of the indicia or ‘tools of trade’ of drug dealing, in support of the element of trafficking.  None of these items of evidence inform or are relevant to the antecedent question of possession or joint possession of the property.

    [51]   ALM7, Exhibit P2, image 109, Exhibit P8, image 14.

    [52]   ALM33, Exhibit P2, MJW-02, images 141 and 156.

23. This ‘discreditable conduct’ evidence is sought to be adduced in aid of proof of the intention to traffic, that is to sell, rather than to suggest prior dealing or offences involving the distribution or sale of drugs, as such. Both sections 32(2) and (3) of the CSA require proof of the element ‘to traffic’ in controlled drugs.  The expression ‘traffic’ is further defined by s 4 thereof, as meaning ‘selling the drug’, having ‘possession of the drug intending to sell it’, or to ‘take part in the process of sale of the drug’.  As each is expressed disjunctively, the satisfaction of any one is sufficient to amount to trafficking for the purposes of trafficking offences: R v Tran.[53]

    [53] [2011] SASCFC 85, [29].

24. In this instance the prosecution relies primarily on the limb of having ‘possession … intending to sell …’, and alternatively on an extended definition contained in s (5)(f) of the CSA, which provides:

    (5)For the purposes of this Act, a step in the process of sale of a controlled drug includes, without limitation, any of the following when done for the purpose of sale of the drug:

    …

    (f)providing or allowing the use of premises or jointly occupying premises.

    Uncharged and charged substances

25. Apart from the charged controlled drugs, a considerable number and volume of other substances were seized from inside the Glandore home.  The substances involved and the location in which they were found are these:[54]

    [54]   Unless specified, weights or volume were not provided.

    Dimethyl sulfone:

    ·ALM1.1 – In a Woolworths bag found in a bathroom under the sink cabinet of a detached flat towards the rear of the property, containing seven plastic bags of white powder and one of yellow powder marked ALM 1.1 - ALM1.8 respectively.  These collectively were marked 603-02 once received by the Forensic Scientist, Mr Painter.  The white substances were found to be dimethyl sulfone on analysis.  The bag containing the yellow powder weighed 23.4 g, of which 0.25g was methylamphetamine.  This is less than 1 per cent in purity and thus considered to be too low for sale and so more likely to be used as a cutting agent.[55]

    [55]   Statement of Detective Hudson, T31.5-.24.  The 603- numbers are those given to items received by Forensic Science SA.

    ·ALM3 – 603.04 – In the detached flat at the rear of the property, in the ensuite bathroom under the sink cabinet.

    ·ALM4 – 603.05 – In the detached flat, in the ensuite bathroom under the sink cabinet in an ‘I love shoes’ bag.

    ·ALM10  603.11 – Two bags found in the laundry, top corner cupboard.

    ·ALM15 – 603-16 – Residue in a coffee/spice grinder found in the laundry, right hand cupboard above a bench.

    ·ALM23 – 603.24 – In bags 1 and 2 of five plastic bags of white powder found in the kitchen, overhead cupboard above the microwave.

    ·ALM27 – 603.29 – In the kitchen, in an overhead cupboard above the microwave.

    ·ALM36 – 603.38 – Kitchen, in a pantry cupboard on the top shelf, centre rear in a container labelled ‘MSM’.

    This substance is commonly used as a dietary supplement and ‘most commonly encountered as a cutting agent in diluted methylamphetamine’.

    Methylamphetamine

    ·ALM1.8 – 603.71 – The yellow powder found in the bathroom of the detached flat, under a sink cabinet in a Woolworths bag.

    ·AML22 – 603.23 – Traces of residue found on pocket electric scales in the kitchen utensils drawer.

    Hypophosphite salt

    ·ALM2 – 603.03 – Consisting of two plastic bags found in a ‘Rivers’ bag each containing exactly 253 g of crystalline powder found in the detached flat in the ensuite bathroom under the sink cabinet.

    Hypophosphite salts are listed as ‘controlled precursors’ in Schedule 2 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA); and can be a ‘key reagent’ chemical employed in one method of manufacturing methylamphetamine, from pseudoephedrine.

    Metandieneone (aka methandrostenolone)

    ·ALM18 – 603.19 – 164 capsules of powder found in the kitchen medicine cabinet.

    ·ALM19 – 603.20 – 45 ml of liquid containing metandieneone in a glass bottle in the kitchen medicine cabinet.

    ·ALM28 – 603.30 – 300 capsules of powder found in the kitchen, in the overhead cupboard above the microwave.

    ·ALM37.2 – 603.39 – two glass bottles from a ‘Coles Quick Oats’ cereal box found in the kitchen pantry cupboard on the right hand front side of the top shelf.

    Metandieneone and akin substances is a compound classed as a steroid.

    Cocaine

    ·ALM22 – 603.23 – trace of residue (including amphetamine) on the pocket electronic scales found in the kitchen, utensil drawer.

    Mannitol

    ·ALM23 – 603.24 – five plastic bags found in the kitchen, in the overhead cupboard above the microwave, bags containing mannitol powder.

    ·ALM24 – 603.25 – predominant component of mannitol found in the kitchen, in the overhead cupboard above the microwave.

    Mannitol is a type of sugar used as a cutting agent encountered in heroin samples.

    Procaine

    ·ALM23 – 603.24 – comprising five plastic bags, two containing 151.6 g and 28.1 g respectively found in the kitchen, in the overhead cupboard above the microwave.

    ·ALM25.1 – 603.27 – a bowl containing 288.5 g of crystalline powder found in the kitchen, in the overhead cupboard above the microwave.

    Procaine is used as a local anaesthetic and can be used as an adulterant in drug samples.

    Nicotinamide

    ·ALM26.1 – 603.28 – found in the kitchen, in the overhead cupboard above the microwave.

    This substance is a vitamin and has been encountered in methylamphemtamine submitted to Forensic Science SA for analysis, although it is uncommon.

    Stanozolol

    ·ALM29.1-29.2 – 603.31 – 100 capsules of white creamy powder and 100 capsules of off-white powder found in the kitchen, in the overhead cupboard above the microwave.

    Stanozolol is classed as a steroid.

    Nandrolone

    ·ALM37.1 – 603.39 – found in two small bottles in the kitchen, in the pantry, on the top shelf, front right hand side, in the Quick Oats Cereal box.

    Nandrolone is also a steroid.

    Testosterone

    ·ALM37.3 – 603.39 – comprising two plastic bags containing two glass sealed ampoules both containing 45 ml found in the kitchen, in the pantry on the top shelf, front right hand side, in the Quick Oats Cereal Box.

    Testosterone is a male hormone steroid.

    3,4-methylenedioxymethylamphetamine (MDMA)

    ·ALM41.1.1 – 603.95 – a plastic sealable bag found in the main bedroom, western wall, south west corner inside a rose coloured bag with sex toys and tablet.

    Fundamental legal principles

1. The constituent elements of all charges require proof beyond reasonable doubt.  Both accused come before the court with the presumption of innocence in his or her favour, so that each is entitled to the benefit of any reasonable doubt, and neither is required to prove their innocence: R v Reeves,[56] Pryor v The Queen.[57]  Neither is required to give evidence, nor call any other evidence, and the failure to do so is not evidence against either, 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 as to each accused: Azzopardi & Davis v The Queen.[58]

   [56] (1992) 29 NSWLR 109, 117

   [57] (1969) 43 ALJR 388, 388.

   [58] (2001) 205 CLR 50, [51].

2. As the case is pressed against both as principal offenders rather than on a complicity basis, each offence must be considered separately with respect to each accused on the evidence admissible on each count as against that accused individually: R v Schlaefer,[59] R v Gibb and McKenzie.[60]

   [59] (1984) 37 SASR 207, 210.

   [60] [1983] 2 VR 155, 163-164.

   Possession and joint possession – controlled substances

3. Fundamental to the prosecution case is the necessity to prove possession of the drugs and guns separately as against each accused on the evidence admissible against that accused.  Ordinarily ‘possession’ means that one has in one's possession whatever is to one's knowledge, physically in one's custody or under one's physical control: He Kaw Teh v The Queen.[61]  Only if they can be shown beyond reasonable doubt to know the particular controlled drug (or at least a controlled drug), or an illegal firearm was in his or her own knowledge physically in his or her custody or control, can he or she be in possession in the eyes of the law: R v Phung.[62]

   [61] (1985) 157 CLR 523, CLR 600.

   [62] (2003) 141 A Crim R 311, [33].

4. So far as the drugs charges counts 1-4 are concerned, the prosecution must prove more than knowledge that the drug the subject of a particular charge was in his or her possession.  It must demonstrate that he or she knew it was a drug to which the CSA applies, that is it was a controlled drug in the sense that it is prohibited under the laws relating to illegal drugs: R v Frangos.[63]

   [63] (1979) 21 SASR 331, 337.

5. Further with respect to count 1, the accused must be shown to hold the intent to traffic in a particular commercial quantity, so that it is necessary for the prosecution to further demonstrate knowledge of the quantity of the substance at the time of the commission of the offence, or alternatively that the accused knew there was a significant or real chance that the prohibited drug in which it is proven he or she knowingly possessed, involved quantities of the drug not less than the specified commercial quantity: R v Nguyen.[64]  The prescribed commercial quantity of 1-benzylpiperazine is 0.25 kg: Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA), Schedule 1.

   [64] (2005) 12 VR 299, [10] and [23].

6. A further complication for the prosecution is that proof of the mere knowledge of the presence of any particular charged item on the property is insufficient, because it is necessary for the prosecution to go further and prove physical control over that item and an intention to exercise control over it: R v GNN.[65]  This requires proof in a case of joint possession, that both accused held the right to exclude all other persons: R v Dib & Dib,[66] R v GNN,[67] R v Pham & Tran.[68]  This means the prosecution must exclude the reasonable possibility that either ‘merely acquiesced’ in hiding the drugs and the gun(s), in the sense of merely permitting them to be concealed on the property: R v GNN.[69]

   [65] (2000) 78 SASR 293, [20].

   [66] (1991) 52 A Crim R 64, 66.

   [67] Above [20].

   [68] (2008) 187 A Crim R 21 [45]

   [69] Above [25].

   Possession and knowledge – firearms

7. Where, as here, statutory reversal of the onus of proof as to possession is invoked, the mental element required is as a matter of basic principle dictated by statute.  In general, subject to statute, the onus remains on the prosecution to prove that an accused at the time of having physical custody or control of the firearms in question, knew of the existence and nature of the firearm, that is to say held actual knowledge that it was a firearm: He Kaw Teh v The Queen.[70] As seen earlier, the provisions of s 5(14) of the Firearms Act deems a person to have ‘custody of the firearm’, however this section is silent as to knowledge. 

   [70]   Above at CLR 589.

8. In R v Fuller & Zazzaro,[71] David J, with the concurrence of Nyland and Anderson JJ held:

   [72] In my view, s 5(14) does not require an accused to have knowledge that the object is a firearm in order for them to be presumed to be in possession of it, nor does s 5(15)(a) enable an accused to rebut the presumption of possession created by s 5(14)(c) by establishing that they knew did not know that the object the subject of the charge was in fact a firearm. Section 5(15) of the Act is directed only to the presence of the firearm at the premises and not knowledge that it was in fact a firearm. Both sections are concerned with custody of the firearm and do not require proof of any knowledge, or lack thereof, on behalf of an accused that the object over which they have custody is indeed a firearm.

   [73] It follows that the prosecution was not required to prove that either appellant knew that the pen gun was a firearm. Once the elements necessary to prove the offence were established under s 5(14)(c), a prima facie offence contrary to s 11 of the Act was made out. The burden then shifted to each appellant to either rebut the presumption of possession under s 5(15) or to prove a defence pursuant to s 36A of the Act. Aside from counsel in their opening, the issue of s 36A defence was never raised.

   [71] [2012] SASCFC 101.

9. Subsequently a differently constituted court of Criminal Appeal in R v Marafioti,[72] considered the same presumptive provisions:

   [23] I return to the extended definition of possession. I start by observing that s 5(14)(a) of the Act is, broadly, the equivalent of the common law concept of possession, but includes within it, possession by an agent. Subpara (b) extends the common law concept of possession by removing the requirement of exclusivity and providing that access to a firearm may constitute possession of the firearm. Section 5(14)(c) of the Act must be construed in the context of the preceding subparagraphs which manifest an intention to extend the concept of common law possession. That suggests a broad reading of the term “in charge of”.

   …

   [25] It can be seen that s 5(14)(c) of the Act in effect creates rebuttable presumption of possession of a firearm by a person who exercises a degree of control over the premises or vehicle in which it is found. With respect to both premises and vehicles, forms of control or relationship less than ownership are sufficient. With respect to premises it is important to observe that “care or management” of the premises, which will generally be something significantly less than control of the premises, is sufficient to found the inference.

   [72] (2014) 118 SASR 511, per Kourakis CJ, Vanstone and Stanley JJ concurring.

10. The decision in R v Fuller & Zazzaro was not referenced in R v Marafioti, however both were considered by Judge Lovell in R v Joyce,[73] as follows:

    [88] R v Fuller was a case that dealt predominately with the operation and interrelation of s 5(14)(c) and s 5(15)(a) rather than s 5(14)(a) and (b). There are comments in the judgment that refer to sub-s (14) generally and suggest that s 5(14) does not require an accused to have knowledge that the object is a firearm in order for him to be presumed to be in possession of it. In my opinion, a fair reading of the case should involve bearing in mind that the case was dealing with s 5(14)(c). There is nothing in the decision of Marafioti that would suggest that such a presumption would arise from s 5(14)(a) and (b).

    [89] It is clear that Parliament intended by the relationship between s 5(14)(c) and s 5(15)(a) to alter the law relating to knowledge and possession in those restricted circumstances. There is nothing in the other subsections that demonstrate an intention by Parliament to alter the common law position on possession other than the extension noted by the Chief Justice in Marafioti. Had Parliament intended such a result, such intention should be clearly stated.[74]

    [90] I do not think there is necessarily any inconsistency between the decisions of Fuller and Marafioti but if I am wrong about that I think it is prudent to approach the matter conservatively and apply the reasoning from Marafioti.

    [91] Thus I will assume when interpreting s 5(14)(a) that it is broadly the equivalent of the common law concept of possession but includes within it possession by an agent.

    [92] Therefore, pursuant to sub-s 14(a) a person has possession of an object if he knowingly has physical custody of the item or has the firearm in the custody of another. That includes control of it. ‘Control’ includes the power to dispose of the object.

    [93] Simply being aware of the existence and place of an item does not amount, of itself, to possession.  

    For similar reasons in R v Khan (No2),[75] I held that proof of knowledge that what was possessed was a firearm, was required. I proceed on that basis in the instant case, given the present state of the authorities.

    [73] [2014] SADC 125, as his Honour then was.

    [74]   He Kaw Teh v R (1985) 157 CLR 523.

    [75] [2014] SADC 207, [19].

11. The prosecution argued that s 5(14) of the Firearms Act should be construed as extending to knowledge, whereas the defence maintain it goes no further than serving as an aid in proof of simple possession. The construction favoured by the defence sits awkwardly with the terms of s 5(15)(a) of the Firearms Act, in as much as it would be unnecessary for an accused to prove ‘he or she did not know that the firearm was on or in the premises’, if a presumption of knowledge was not already erected. In other words, s 5(14) would be rendered an ineffective ellipsis on this construction. Second, possession necessarily entails knowledge, so that it seems clear enough that Parliament intended just that. Thirdly, the Court of Criminal Appeal decisions cited above, proceed implicitly on that basis.

    Elements of the offences  

12. The essential elements of the charged offences are these:

    Count 1, trafficking in a commercial quantity of a controlled drug

    1.     the quantity involved was a commercial quantity.

    2.     the elements 1-3 inclusive as for counts 2, 3 and 4.

    The defence do not dispute that a commercial quantity of BZP is involved.

    Counts 2, 3 and 4, trafficking in a controlled drug

    1.the substance the accused had or dealt with was a controlled drug.

    2.the accused trafficked in that controlled drug.  A person traffics in a drug 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: ss 4(4) to s 4(7) of the Controlled Substances Act.

    3.the accused knew the substance involved was the substance charged or at least that it was a controlled substance.

    Counts 5 and 6 possessing a firearm without a licence

    1.the accused had knowingly in his and/or her possession the firearm of the specified Class in the charge.  The law informing this element of the charge is outlined above.  It is not disputed that the firearm referred to in each charge is a Class D firearm. 

    2.The accused was not the holder of a licence authorising possession of that firearm.  This element is not in dispute as to either accused.[76]

    [76]   T513.2-.6.

13. There is no dispute that the charged substances are controlled drugs.  As to the element of trafficking in all four drug offences, defence counsel further concede the respective quantities exceed those prescribed as traffickable quantities for each charged controlled drug,[77] thus attracting the reversible presumption of purpose in respect of each count, as provided for in s 32(5) of the CSA:

    [77]   T5513.7-.18, T623.38-624.17

    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.

14. That being so, given that no evidence was adduced to the contrary, and given the quantity of the drugs involved, the element of trafficking in a commercial quantity of a controlled drug on count 1 is satisfied, as is the element of trafficking on counts 2 and 4.  The fate of count 3 on this aspect or element of the charge, is considered later.

15. The evidence of the many cutting agents is particularly relevant on the question of an intention to traffic, because it is difficult to imagine what legitimate use those agents could possibly be put to, bearing in mind that 5060 g of hypophosphite salt from the bathroom of the detached flat, 179.7g of procaine from the cupboard above the microwave, and the 288.5g of procaine in the bowl from the cupboard above the microwave is valued.

16. What remains very much in issue is proof of possession in the first place and proof of knowledge that what was possessed was a controlled drug or an illegal firearm, in second.

    Circumstantial evidence

17. The case against each accused is quintessentially a circumstantial one.  It is therefore necessary to approach the evidence effectively in two stages.  First to decide whether to accept the evidence of a particular fact, steadily bearing in mind that ‘a single circumstance which is inconsistent … destroys the hypothesis of guilt’: Re Hodge's Case.[78]  The second stage is to analyse the whole evidence and by drawing inferences from a combination of facts, none of which when viewed alone might or would not support a particular inference.  Nevertheless an ‘intermediate fact’ is an indispensable basis for an inference of guilt, only if proven beyond reasonable doubt: Chamberlain v The Queen (No 2),[79] Sheppard v The Queen.[80]

    [78] (1838) 168 ER 1136.

    [79] (1984) 153 CLR 521, 535.

    [80] (1990) 170 CLR 573, 576.

18. It follows from these fundamental principles that guilt should not only be a rational inference, but the only rational inference to be drawn from the circumstances, that is one excluding any reasonable hypothesis consistent with innocence: Chamberlain,[81] Sheppard,[82] and R v Van Beelan.[83]

    [81]   Above, 535.

    [82]   Above, 578.

    [83] (1974) 9 SASR 163, 370.

    The evidence

19. A rough plan of the home is contained in Exhibit P3.  The master bedroom (‘bedroom 1’) contained a built-in wardrobe separated into two sections, one containing male clothing hung on a rail, male shoes, and drawers containing male clothing, accessories and toiletries.  The other on the right hand side contained female clothing and accoutrements.

20. Various photographs show the course of renovations over that time.  They demonstrate Ms Hunt attended the property from time to time before moving in.  It is equally clear that as of 7 January 2011, the renovations were incomplete.  Evenso the home was comfortably habitable by that time, so far as sleeping in bedroom 1 and using the kitchen and bathroom 2 is concerned.  The laundry on the other hand was in an incomplete state of renovation and therefore was of no use for that purpose.  The photographs attest to that conclusion.[84] The rear shed was empty, but for two unused bookcases and the paint tin, and a few house tiles. It would appear that renovation of the rear flat had not commenced. Clearly at the time of the search, Ms Hunt was in possession of the premises within the meaning of s 5(14)(c) of the Firearms Act, quoted above.

    [84] Exhibit P2, MJW-02, images 51, 59, 60 and 90.

21. There is incidentally, no formal proof over the ownership of the two other vehicles parked at the property that day, the Range Rover in the driveway and a small two-door silver sedan on the front lawn.[85]  For reasons to be explained, it is unlikely Ms Hunt had much access to the Chrysler, and although she is seen at the wheel of a similar vehicle at an unknown time, bearing the registration plate ‘AGRRESA’.  Those number plates happened to be found in bedroom 2 on 7 January 2011.[86]

    [85]   Exhibit P8, photographs 1 and 2.

    [86]   Exhibit P2, MJW-02, image 146.

22. The question of her connection to the Range Rover stands a little differently.  As it was parked behind the Chrysler, the inference is that it was placed there later.  She is seen associated with a Chrysler at another property in October 2010, as seen in photographs stored on her computer file entitled ‘Keno and Lau Cars’.[87]

    [87]   Exhibit P16, photographs 16-20 and 30.

    DNA and fingerprint evidence

23. An examination by the forensic scientist Ms Windram produced the following results of significance:

    ·Two of four ‘plastic sealable bags containing cannabis’ were sampled for DNA and found that Ms Hunt was not excluded, nor was the ‘unknown male A’.  This was considered by Ms Windram as of limited evidentiary value as a probability ratio could not be calculated.  It is an agreed fact that the ‘unknown male A’ is in fact Mr Becirovic.[88] 

    [88]   ALM12, 603-13.1A and -13.2A, T319.17, T506.14-.25.

    ·A ‘Caredent’ toothbrush found in bathroom 2 on the sink contained a complete DNA match to Ms Hunt.[89]  A ‘match’ is employed by Ms Windram when two DNA profiles ‘have the same alleles’.

    [89]   ALM43.1, 603.48.

    ·Ms Hunt could not be excluded as a minor contributor to a ‘Colgate’ toothbrush for which a probability ratio was not calculated as to her.[90]

    ·A second ‘Colgate’ toothbrush found in the same bathroom was found to match Mr Becirovic (unknown male A) and from which Ms Hunt was not excluded as a minor contributor.[91]

    ·A tape lift of the bag handles of an orange ‘AGA Meats’ bag found in the detached flat under the bathroom sink cabinet, contained mixed DNA profiles, for which Ms Hunt was excluded and from which Mr Becirovic could not be so excluded.  A probability ratio could not be calculated in view of the limited evidentiary value of the sample.[92]

    ·Two containers found in the medicine cabinet of the kitchen were inconclusive as to Ms Hunt as a minor contributor, however the major contributor was Mr Becirovic (unknown male A), and from which the unknown males B, C and E were excluded, whereas the unknown male D was considered inconclusive.[93]  These contain the 164 capsules each holding powdered metandieneone (methandrostenolone), a male hormone.

    ·Five plastic bags taken from the overhead cupboard above the microwave in the kitchen containing white crystalline powder, one of which was examined for the presence of DNA on the entire outer surface.[94]  This revealed a weak and incomplete mixture of at least two individuals, of which Ms Hunt was excluded and Mr Becirovic was not.  Unknown males B, D and E were excluded.  The sample was inconclusive in respect to unknown male C and considered of limited evidentiary value.

    ·A swab of the outside lid of the Dulux paint tin found on the ground of the garden shed, containing the 1-benzylpiperazine charged on count 1, revealed a weak and incomplete mixture of at least two individuals, from which all relevant persons (including the accused) were excluded.[95]

    ·Two of four battery operated devices (sex toys) found within a female toiletries bag in bedroom 1 sampled for DNA contained complete matches for Ms Hunt’s DNA.[96]

    ·Two plastic bags seized from within the Kraft ‘Easy Mac’ cheese box taken from the top shelf of the kitchen pantry cupboard, were swabbed on both outer surfaces, revealing the major contributor was Ms Hunt.  Mr Becirovic could not be excluded, whereas all unknown males B, C, D and E were.[97]

    ·A sock associated with the firearms in the Chrysler revealed DNA on the outer surface with a profile of at least three individuals, of which Mr Becirovic, unknown male B, D and E were excluded, and for which Ms Hunt was not excluded as a minor contributor.  The major component originated from an unknown male C.[98]  An inner surface swab did not exclude either accused, but the major component originated from unknown male D.[99] 

    ·A swab of a rifle sight scope from the rear shed was found to contain the complete DNA profile of unknown male E.[100]

    [90]   ALM43.2, 603.49.

    [91]   ALM43.3, 603.50.

    [92]   ALM3.3 – 603.75.1, 75.A.

    [93]   ALM18, 18.1.2, 603-81 & 81.1.A.

    [94]   ALM23.2.2, 603-83.

    [95]   ALM14, 14.1.2, 603-80 and 80.1.A.

    [96]   ALM41.2, 603-100.

    [97]   ALM38, 603.96.1A, 96.2A.

    [98]   ALM 50.1, 603.57.A.

    [99]   ALM 50.1, 603.57.B.

    [100] ALM16, 603-103.

1. It might be noted that neither defence counsel took issue with the various probability ratios ascribed by Ms Windram to the respective DNA samples.  Objection is taken to the DNA evidence insofar as it affects Mr Becirovic, on the initial basis that there is insufficient connection between him and the Glandore premises to justify drawing any inference of connection with it.  It was repeatedly emphasised by his counsel that there is no evidence as to when the toothbrushes or the two containers from the medicine cabinet were used, how they came to the premises, or for how long the DNA might have been deposited.  The same point was made as to fingerprints located on two water bottles.  Counsel emphasised the home was occupied for no more than about two weeks at the very most beforehand and more likely no more than 11 days between 27 December 2010 and 7 January 2011.

2. All the same the evidence demonstrating Mr Becirovic was a major contributor to the DNA profiles on the two ‘Colgate’ toothbrushes and the two containers containing steroids from the medicine cabinet in the kitchen, is admissible circumstantially, potentially demonstrating that he went to the house and into the particular places within it where his DNA was found.  There is no prejudice in this evidence as it is simply a question of what inferences may be properly drawn, bearing in mind the matters pointed to by defence counsel.  This is essentially a question of weight.

3. Insofar as DNA profiles do not exclude Mr Becirovic as a minor contributor, they are admissible to the very limited extent as items of consistent circumstantial evidence to that effect: R v Green,[101] R v Pantoja,[102] R v Karger,[103] R v Smith.[104]  Nevertheless this aspect of the DNA evidence is of little probative value, for as King CJ emphasised in R v B,[105] ‘consistent with’ does not equate with ‘confirmation of’, so this cluster of evidence is treated precisely in that way.

   [101] (Unreported CCA (NSW)) 26/3/1993: BC9303689, BC 9 & 12.

   [102] (1996) 88 A Crim R 554, 572-573.

   [103] (2001) 83 SASR 1, 126.

   [104] (1998) 71 SASR 543, 538-559.

   [105] (1993) 66 A Crim R 192, 196.

4. The DNA evidence further suggests, so counsel submitted, that the complete profile match with unknown male E detected on the rifle scope found in the Beretta firearms case, excluded Mr Becirovic from any connection with it.  This is a hasty generalised assumption, built on the premise that no-one else handled the scope.  Obviously the weapon came from some unknown source and must have been handled at that time and in its transportation to the shed.  The obvious fallacy in the submission is that it was handled by just one person, an assumption that is not open to make as a matter of common sense.  This aspect of the DNA evidence proves only that unknown male E handled the scope at some point in time, nothing more and nothing less.

5. A discrete submission mounted on behalf of Ms Hunt by Ms Powell QC, focussed on a particular aspect of the DNA chain of evidence insofar as it affects her.  The ‘Easy Mac’ cheese box within the kitchen pantry cupboard, contained the plastic bags of white crystalline substance.[106]  One bag contained the 4-methylmethcathinone and ketamine and the other the 2.95 g of powder containing the 0.51 g of cocaine.[107]  Swabs taken from the bag containing the cocaine proved insufficient for DNA profiling.[108]  Those bags containing the 4-MCC both contained mixed DNA profiles, the major component in each case being Ms Hunt, the first within a probability ratio of greater than 1 billion to 1, and the second 179 million to 1.[109]

   [106] ALM38.1.2 and ALM38.2.2, 603-40.

   [107] ALM38.1.1 and ALM38.2.1.

   [108] ALM38.1.2, 603.95A.

   [109] ALM38.2.2, 603-96.1.A and 603-96.2.A, Exhibit P2, MJW-03, image 201, written submissions 4 March 2016, para 4.

6. The chain of evidence demonstrates the knotted plastic bags containing the 4-MCC and the single bag containing the small amount of cocaine, were lodged initially at the Adelaide Police Station Exhibit Property Section, and later removed to the Fingerprint Bureau on 19 January 2011.  On 21 January 2011 they were taken to the Forensic Services Branch and in early February returned to the police.  At these times the bags were transported together, so that the distinct possibility of contamination or secondary transfer from one plastic bag to another, or from inside the box cannot be excluded: Fitzgerald v The Queen.[110]  So much was conceded by prosecution counsel to the point that the primary source of the DNA might have originated from within the box itself.[111]  Accordingly, as far as this evidence goes is to point conclusively to Ms Hunt’s DNA from inside the ‘Easy Mac’ cheese box, but not to any specific bag within it, as appears at first sight.

   [110] (2014) 88 ALJR 779, [28], [36].

   [111] T118.35-119.25, T545.35-546.32.

7. Tape-lifts of the handles of the green shopping bag hidden under the bonnet of the Chrysler containing the ‘Savage’ .32 calibre semi-automatic pistol relating to count 8, produced a mixed DNA profile of at least four individuals, from which both Mr Becirovic and Ms Hunt could not be excluded as minor contributors, but otherwise considered to be of limited evidentiary value.[112]  The major component matched an unknown male, B.  Tape-lifts from the inner and outer surfaces of socks containing the handguns, produced mixed DNA profiles from which both Mr Becirovic and Ms Hunt could not be excluded as minor contributors.[113]  In respect of count 7, relating to the ‘Jennings’ brand .22 calibre semi-automatic and count 9 the Harrington and Richardson .32 calibre double revolver pistol, the DNA returns from the tape-lift of the handles from the re-usable bag is obviously the same as for count 8.  In light of the order for severance, this evidence has no relevance to the present charges.

   [112] ALM55, 603-68, 603-68.A.

   [113] ALM50.1-50.3, 603-68A.

8. The fingerprints of Mr Becirovic and Ms Hunt were found on a water bottle taken from a bedside table in bedroom 1,[114] the only room containing a bed and used as a bedroom at the time, as well as on a water bottle found on the kitchen bench top.[115]  Fingerprints of Ms Hunt were located on a ‘Clinique for Men’ box of toiletries, having a price tag of $109, from the male side of the bedroom wardrobe immediately above the drawers.[116]

   [114] Exhibit P8, photographs 16, 17, 23, 25 and 26.

   [115] Exhibit P8, photographs 29-32.

   [116] Exhibit P8, photographs 14, 15, 27 and 28.

   Documentary and photographic evidence

9. A considerable body of evidence adduced by the prosecution consisted of mostly recent photographs found in various places in the Glandore home and on Ms Hunt’s iPhone, of Mr Becirovic, either alone, with his son Arman or in the company of Ms Hunt, many taken about the house.  Other photographs depict him on the Glandore property during renovations, often with their son.[117]  Yet other photographs taken around October 2010, place him near the Chrysler sedan parked in the driveway on 7 January (SA Registration S189ACK), admittedly at another undisclosed property, at which a Range Rover can be seen parked nearby.[118]  Although the number plate cannot be seen on the earlier occasion, there is a distinct correlation with insignia ‘Notorious’ on the front side panels behind the front wheels.[119]  Many documents were in the nature of invoices and a few receipts, for which the prosecution declined to call the maker.[120] 

   [117] Exhibit P16, pp 2-5, 9, 13-15, 27-28.

   [118] Exhibit P16, pp17-20.

   [119] Exhibit P16, images 18 and 19, Exhibit P4, images 1-4, quite apart from the singularity of outward appearances.

   [120] T385.29-388.8.

10. A minor body of evidence derives from a few written materials referring to them both, viz:

    ·congratulating Arman on his first birthday;[121]

    ·to ‘Laura and Keno’ congratulating them on the arrival of their son Arman;[122]

    ·addressed to ‘Laura Keno Arman’ congratulating them on their new house;[123]

    ·a baby book nominating Mr Becirovic as the father of Arman Hunt.[124]

    ‘Keno’ is an acronym used severally by Ms Hunt in her address book, on her mobile telephone and in a diary belonging to her as a reference to Mr Becirovic’s first name ‘Kenan’.

    [121] Exhibit P15, images 7 and 8.

    [122] Exhibit P15, images 9 and 10.

    [123] Exhibit P15, images 13 and 14.

    [124] Exhibit P15, images 11 and 12.

11. As there is no dispute about their son Arman, these references merely confirm what is already known.  The card congratulating them on their new house is not admissible to prove the underlying fact.  It is only admissible to the extent that their names appear together on it as a small fragment of connection.

12. A brown leather diary for the calendar year 2010, found in a sideboard in the dining room, contained a number of loose documents which may be tabulated in this way:[125]

    [125] ALM34, Exhibit P10 and Exhibit P2, MJN-02, photograph 136.

    TABLE “A” - DOCUMENTS SEIZED FROM HOUSE AT ALMOND GROVE
    RELATING TO EXHIBIT P10A (ALM 34) “BROWN LEATHER DIARY”

Date	Document Title	Details
29/06/2010	Letter	Adjustment Note in the name of Laura Hunt, 19 Clarke Avenue Glandore, from GE Money relating to the cancellation of a loan.
7/2/2010	Email	Email from Charmaine Del Barrio on behalf of Richard Ellames PO Box 323 SEAFORD SA 5169 to Laura Hunt, 2A Weaver Avenue, Richmond, regarding Rent Account.
04/06/2010	Oroton Gift Card	The value of $50 addressed to : Laura, from: Nadia & Aaron
16/08/2010	Letter	From Patsouris & Associates Lawyers relating to “Traffic Matter”, Signed by Laura Hunt on 23 August 2010 of 19 Clarke Avenue Glandore.
10/08/2010	Receipt and Warranty Information	Shades Shop Pty Ltd of 32 Jetty Road Glenelg.  For sunglasses in the amount of $210 paid by cash.
Not Stated	Prepaid Sim Card Number Document	Pre paid Sim Card number stated as 3410 5432 56795 Handwritten entry “ LAU P/P IPHONE 4”
2/11/2010	Letter	“Intention to Commence Proceedings” from National Credit Management Limited  for $925.95 in the name of Peter Charles Hunt, 8 Almond Grove.
2/11/2010	Letter	“Intention to Commence Proceedings” from National Credit Management Limited in the amount of $925.95 addressed to Delia Edda Hunt, 8 Almond Grove.
30/10/2010	Certificate and Receipt of Registration  and Compulsory Third Party Insurance	Chrysler Sedan registration “S777AAP” for $400 in the name of Laura Anna Hunt, 19 Clarke Avenue Glandore.
29/11/2010	Letter and Forms	An appointment booked with Dr Susan Evans for Laura Hunt, mobile [phone], home 82933346, 19 Clarke Avenue Glandore. Email address stated as: laurabecirovic@...............
24/11/2010	Expiation Reminder Notice	Relating to an Offence committed on 21/09/2010 by Laura Hunt, 19 Clark Avenue Glandore for $256.
20/12/2010	Statutory Declaration	Declaration filled out and signed by Laura Hunt, 19 Clark Avenue Glandore, relating to vehicle registration BB933N
Expiry Date – 09/06/2010	Application for Renewal of Registration and Compulsory Third Party Bodily Insurance	A Mitsubishi Sedan registration “WHI002” in the name of Delia Hunt, 19 Clark Avenue Glandore.
03/08/2009	Contract for Sale of Used Motor Vehicle	Contract between Murray Bridge Motor Company Pty Ltd and Wheel Worx Pty Ltd of 71-73 Port Road, Thebarton business phone [phone] mobile [phone], for $66100.

1. These documents are only admissible against Ms Hunt to the narrow extent that her name appears therein as evidence of occupation of the Glandore property.  The reference in the contract dated 3/8/09, is admissible only to the extent that it refers to a mobile number (0432162572) (572) subscribed to Mr Becirovic.  They are otherwise completely inadmissible against him.

2. Two folders placed in a second drawer of a centre cupboard of bedroom 2 as marked in Exhibit P3, both labelled ‘Cocksauld’, contained a number of documents, at face value referrable to both accused.[126]  The contents of these folders are collated in this table:

   [126] ALM32, Exhibit P9, and Exhibit P2, MJN-02, photograph 135.

   TABLE “B” DOCUMENTS SEIZED FROM HOUSE AT ALMOND GROVE
   RELATING TO EXHIBIT P9B (ALM 32) “Cocksauld Folders”

Date	Document Title	Description of Document
4/5/2010	Form 1	Form 1 Statement relating to Almond Grove Address In the name of Laura Hunt and/or nominees of 19 Clark Avenue Glandore, SA 5037. signed 3/5/2010
4/5/2010	Contract of Sale of Land	Regarding 8 Almond Grove property in the sum of $550,000 in the name of Laura Anna Hunt and/or nominees of 19 Clark Avenue Glandore SA 5037. signed 3/5/2010
7/5/2010	Trust Account Receipt	Cocks Auld Real Estate – Initial Deposit for house of $5,000 cash in the name of Laura Anna Hunt of 19 Clark Avenue Glandore SA 5037
24/06/2010	Letter	From Oxford Conveyancing to Peter and Delia Hunt of 19 Clark Avenue Glandore SA.  $550,000 and $81,349.50 (due on settlement).  Cheque.
25/06/2010	Letter	From Finlaysons re settlement to Mr PC and Mrs DE Hunt of 8 Almond Grove, Glandore.
28/06/2010	Two letters	From AGL relating to electricity addressed to Mrs Delia Hunt of 19 Clarke Avenue, Glandore, SA 5037: Supply address 8 Almond Grove Glandore.
12/8/2010	Cash Sale Tax Invoice	Bone Timber Industries in the sum of $1172.80.  Name Kenan typed “Hunt” handwritten. 8 Almond Grove Glandore. Contact mobile [phone].
13/8/2010	Quote	Statesmen Windows in the name of Kenan Hunt, 0432162572 of 8 Almond Grove Glandore. Total quote $2073.  $1000 deposit paid remaining balance to be paid in cash on delivery.
16/9/2010	Tax Invoice	Dulux Paints for $192.96 cash sale.  In the name of C/- Rino Detrioa.
16/9/2010	Contract for Sale	Relates to sale of Audi A6 in the name of Laura Hunt of 19 Clark Avenue Glandore mobile [phone].  $1000 deposit paid in cash.
23/9/2010	Tax Invoice	De Lights in the name of Peter Hunt mobile [phone] for $1596.  $596 paid in cash.
30/09/2010	Tax Invoice	Boral Plasterboard for $768.20 in the name of Rhett Hodge, 9 Abelia Avenue Flinders Park. Mobile [phone].
18/10/2010	Tax Invoice	Sailmex (Roof Seal) for $4000.  Mr and Mrs Hunt of 8 Almond Grove, Glandore mobile [phone].
20/10/2010	Tax Invoice	Dulux Paint. $592.04 paid in cash in the name of C/- Rino Detioa of Port Adelaide
26/10/2010	Tax Invoice	The Good Guys, Mile End.  Cash sale $85.
02/11/2010	Tax Invoice	Wattyl Paints.  Cash sale $172.55 in the name of Friends of the Heyson Trail of 10 Pitt Street Adelaide, 82126299.
12/11/2010	Letter	Premier Home Loans SA Pty Ltd re Change of Interest Rate in the name of Mrs D E Hunt of 19 Clark Street Glandore.
26/11/2010	Cash Receipt	Sailmex (Roof Seal) for $4000 in the name of Mrs Hunt.
02/12/2010	Eftptos Receipt	Kresta Blinds & Curtains in the sum of $1286.00.
11/12/2010	Tax Invoice	De Lights for $680 in the name of Keno mobile [phone].

1. These documents are admissible against Ms Hunt to the extent that they illustrate the extent of her association with the Glandore home.  They are not admissible to prove the truth of the underlying facts.  They are admissible against Mr Becirovic to the extent that his telephone number appears on four occasions, three in conjunction with Ms Hunt, and that his name appears on three of them, as some evidence of association between the two of them and of some evidence of his connection to the property in the renovation stages.

2. Next a diary containing two CDs found in a drawer of the dining room console, contained images of Mr Becirovic with Arman, some designated ‘Babo and Arman’, as well as a picture of a baby in a crib in Ashford Hospital named Arman Hunt and ‘My parents are Laura and Kenan’.[127]  ‘Babo’ was used as a nickname of Mr Becirovic, as father to Arman.  These prove nothing more than is already known about Arman.

   [127] ALM34, Exhibits P17, 17A, 18A-18D.

3. A further group of documents tendered, was in the nature of invoices and receipts, ostensibly referable to the Glandore property, found in a striped box in the dining room sideboard.[128]  A tabulated summary of these is as follows:

   [128] ALM35, Exhibit P11, Exhibit P2, MJN-02, photograph 148.

   TABLE “C” DOCUMENTS SEIZED FROM CHRYSLER VEHICLE
   RELATING TO EXHIBIT P11A / P11B (ALM 35) “STRIPED BOX”

Date	Document Title	Description of Document
10/08/2010	Invoice	Plush Marion, Shop 2, 804 Marion Road for $7,912 in the name of Laura Hunt, 8 Almond Grove Glandore, 0403245342.  $7000 paid in cash.
16/08/2010	Tax Invoice	Harvey Norman Bedding Marion for $9500 in the name of Peter Hunt, 8 Almond Grove Glandore, 0432162572. Cash – in instalments.  Final instalment made 22/12/2010 Items purchased: ·    Blue Ray Device ·    Accusound 5.1 Blk Piano ·    Onkyo HDMI 1.4A ·    1M HDMI Cable ·    Monster Monster Power ·    Convoy MC 2M Digital Fibre ·    2m HDMI Cable ·    Monster 30m XP Speaker Cable ·    Monster MC XP ·    Outdoor Speakers ·    Mobile Installation Services ·    Monster Aerial Cable ·    Dining Table ·    Buffet ·    10 x Alabama Dining Chair Brown ·    Byron Bay Small Coffee Table
10/08/2010	Tax Invoice	Plush Marion, Shop 2, 804 Marion Road for $6912 in the name of Laura Hunt, 8 Almond Grove Glandore, 0403245342. $1000 cash deposit paid.
26/09/2010	Tax Invoice	Harvey Norman Bedding Marion for $3,750 In the name of Peter Hunt, 19 Clark Avenue Glandore, 0432162572.  $1,000 cash deposit paid. Items: ·    Toscana King Bed ·    Toscana 11 Drawer Chest ·    Toscana 3 Drawer Bedside
27/09/2010	Tax Invoice	Harvey Norman Bedding Marion for $1,456 (cash payment) in the name of Peter Hunt, 19 Clark Avenue Glandore, 0432162572 Items: ·    JVC Everio Full HD Black ·    Sony DSCTX%
7/12/2010	Cash Receipt	Corinthian Industries for $2,380 cash payment in the name of Laura Hunt.
9/12/2010	Order Form	Power Dekor Supply and install - 12mm Hickory Gloss Underlay Trims. $7,198 cash payment in the name of Kenan Becirovic, 8 Almond Grove Glandore, 0432162572.
22/12/2010	Tax Invoice	Harvey Norman AV/IT Superstore Marion for $3,024.  In the name of KB Wholesaling 71-73 Port Rd Thebarton, 83715711.  $1,000 cash deposit paid.  Item: ·    Saeco Xelsis Coffee Maker
23/12/2010	Tax Invoice	Harvey Norman Bedding Marion for $3,750 cash payment in the name of Peter Hunt, 19 Clark Avenue Glandore.  0432162572
29/12/2010	Tax Invoice	De Lights Ashford for $650 cash payment.
16/9/ ??	Cash Receipt	Wavelength Developments trading as “Autos Sell” 106 Finniss St, Oaklands Park 5046. $1,000 cash being For “A6 part payment” in the name of Kenan Becirovic.
31/12/2010	Receipt	Receipt from Sue Ellemor Interiors at 345 Anzac Highway, Plympton SA 5038 for a number of items, including ‘Oncidium Orchid w/Soil – Green/Brown’ and ‘Ceramic Cambodia Pot Silver’. All Items purchased total $2,840.

1. These are admissible against both accused to demonstrate connection with each other insofar as their names or telephone numbers appear thereon.  They are not admissible to prove Mr Becirovic paid the invoice(s) himself, or that this was done in cash.  They are further admissible as proof of the connection of one or both to the Glandore property, as and when an identifiable temporal nexus is established.  Those connections are identified later.

   The Chrysler sedan in the driveway

2. The black Chrysler sedan was in fact registered to Mr Becirovic’s wife, at the Eden Hills home address on 1 May 2009.[129]  Nevertheless, the court is asked to draw the conclusion that the vehicle was regularly in his use and under his control, and therefore in his possession.  The three loaded firearms the subject of the severed counts were found secreted ‘tightly wrapped in socks’ within a green shopping bag, in the engine bay of that vehicle on 7 January 2011.[130]

   [129] Exhibit P23 Certificate of Registration S198 ACK, Detective Miller 6/2/11 p 3.

   [130] Exhibit P4, photographs 10-46.

1. The frequent references to ‘Kenan’, ‘Kenan Hunt’, and ‘Keno’ in the documents contained in the Cocksauld folders, are consistent with this conclusion.[181] Furthermore, the references in the documents contained in the striped box to ‘Kenan Becirovic’, (in documents dated 9 December 2010 and 16 September (year not clear)),[182] and the three references to his mobile phone number therein 0432 162 572 on no less than five occasions, serve only to cement the conclusion of a concrete connection with the Glandore property, already independently made.

   [181] ALM32, Exhibit P9 documents dated 12 and 13 August, 23 September, 18 October and 11 December 2010.

   [182] ALM35, Exhibit P11.

2. These documents are evidence of a close interest in the progress of the renovations, which is manifest from the various photographs referred to anyway.  The evidentiary value of this material lies in the nexus and coincidence with the other material suggestive of that connection.  To so conclude is not to employ these documents for impermissible hearsay purposes.  It is long established that a statement of fact in a document, such as a name or for that matter the telephone number of a person, is not of itself evidence of the truth of the matter so stated: Myers v Director of Public Prosecutions,[183] Patel v Comptroller of Customs,[184] R v Kearley,[185] R v Kelly,[186] and R v Romeo.[187]

   [183] [1965] AC 1001.

   [184] [1966] AC 356.

   [185] [1992] 2 AC 228.

   [186] (1975) 12 SASR 389, 395-396.

   [187] (1982) 30 SASR 243, 362.

3. Nevertheless, the evidence of the contents of the documents in Tables B, C and D above, in their extraordinary conjunction with so much other evidence located around the residence referable to Mr Becirovic, are probative of the fact that they must be associated with him as a matter of ordinary human experience and as a matter of coincidence.  The principle is expressed by Wigmore as applying where extraordinary evidence ‘consists of particular facts of human conduct or external events which are of themselves only minor and additional and are not the sole mode of proof for the matter in issue’: Wigmore on Evidence, 34^th Ed d 1904.

4. This is a process of reasoning independent ‘of, the number of items of circumstantial evidence but the causal relationship … between those items’: R v Tartaglia.[188]  Likewise when speaking of the added strength of proof through ‘reciprocal confirmation’:[189]

   … a number of independent circumstances point to the same conclusion, the probability of the justness of that conclusion is not merely the sum of the simple probabilities of those circumstances, but the multiplied or compound ratio of them.

   This type of evidence is a species of real or original circumstantial evidence when used in this way.  This was the very point made by King CJ in R v Wilson and Morrison,[190] that as so used it ‘may be viewed as objective facts which tend, as part of a circumstantial chain, to establish their identity’, and in R v Bilick and Starke,[191] as ‘evidence in the nature of connection’.

   [188] (2011) 110 SASR 378, [90].

   [189] Best on Evidence, 2^nd Ed s 289, emphasis in original.

   [190] (1994) 176 LSJS 435, 440.

   [191] (1984) 36 SASR 321, 325.

5. The distinction between hearsay and original evidence used in this way is explained by Lord Wilberforce in Ratten v The Queen:[192]

   The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called, is no objection to its admissibility. Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on 'testimonially,' i.e., as establishing some fact narrated by… words. Authority is hardly needed for this proposition, but their Lordships will restate what was said in the judgment of the Board in Subramaniam v Public Prosecutor: [1956] 1 WLR 965, at 970]

   Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.

   [192] [1972] AC 378, 387.

6. Much the same process of reasoning applies to an analysis of Mr Becirovic’s potential connection to the Chrysler in the drive way.  Three documents in the glove-box make reference to ‘Kenan and Abby Becirovic’ of the Eden Hills address.  The glove-box contained two prescription medications in his name.  The registration and insurance documents were in his wife’s name.  These materials are exactly the kind of documents you would expect to find in the glove-box if it was regularly used by Mr Becirovic, and as such serve to support the conclusion that this vehicle was associated with him, without requiring proof of the underlying assertions contained within those documents.  Given the earlier primary findings in respect of his close and personal connection with Ms Hunt and the Glandore property, the only reasonable conclusion is that he left the Chrysler there.  It seems hardly plausible that his wife would take and leave it at the place of the abode of her husband’s mistress, assuming she was aware of that relationship, which is by no means apparent, or that Ms Hunt would be responsible for two large motor vehicles.

   Documentary material – temporal connections

7. Several documents found in the two Cocksauld folders and in the striped box,[193] are connected to the Glandore property by independent original evidence, linking them to it.  For example, an invoice of 18 October 2010 addressed to Mr and Mrs Hunt from Salex (trading as Roof Seal), correlates with a ‘Roof Seal’ sign at the front of the property photographed by police on 7 January 2011.[194]  A cash sale tax invoice of 12 August 2010 for just over $11,000, issued by Bone Timber Industries addressed to Kenan Hunt, endorsed with the 572 mobile number together with the address of Kenan at 8 Almond Grove, Glandore, marries with timber found about the renovated premises and is broadly consistent with the quantity of timber obviously required for an extension or renovation of the kind shown in the photographs.[195]

   [193] ALM32, ALM35 and Exhibit P9 and P11 respectively.

   [194] Exhibit P2, MJW-02, image 47, ALM32, Exhibit P9.

   [195] Exhibit P9, pp 85 and 87, Exhibit P2, image 65, Exhibit P12 images 1, 16-18, 20 and 21, Exhibit P16 pp 2-5, 8-10.

8. Next a Statesman Windows invoice of 19 September 2010, addressed to Kenan Hunt of 8 Almond Grove Glandore, bearing the 572 mobile number, refers amongst other items to a window comprising of glass tiles, which match precisely in a 4 x 11 configuration with installed glass window tiles shown in the photographs of the premises.[196]

   [196] Exhibit P2, MJW02, image 61, Exhibit P9, pp 101-105, Exhibit P16, pp 6-7 and 22 (30 October 2010).

9. An invoice issued by Harvey Norman for bedding of 23 December 2010 addressed to Peter Hunt bearing the 572 mobile number, records the purchase of a Blue-Ray recording system, a surround sound TV and related electrical items, with corresponding invoice numbers, which happen to correspond in kind with electrical equipment found in the home on 7 January 2011.[197]  Another invoice of Harvey Norman of 1 November 2010 addressed to Peter Hunt, once again containing the 572 mobile number, relates to ‘Alabama dining’ chairs brown in colour, which is entirely consistent with the 10 dining room chairs (as ordered) found in the dining room on 7 January 2011, as it does with a dining room table and buffet mentioned in the invoice.[198]

   [197] Exhibit P2, MJW-02, image 62, Exhibit P11, pp 7 and 24.

   [198] Exhibit P2, MJW-02, image 58.

10. A third Harvey Norman invoice of 27 September 2010 addressed to Peter Hunt together with the 572 telephone number, relates to the purchase of a Toscana king bed, Toscana draw chest and a Toscana 3 draw bedside table, which correspond with the items shown in images found on Ms Hunt’s iPhone of unpacking and assembling a bed, consistent with the brand and size of the invoiced description.[199]  There is an equivalent correspondence in description with the bedside drawers contained in the invoice.[200]

    [199] Exhibit P11,pp 20-21, Exhibit P14, images 212-218.

    [200] Exhibit P2, MJW-02, image 52, Exhibit P8, photograph 16.

11. An order form directed to ‘Power Dekor’ coming from the striped box, marked with a receipt of 9 December 2010 in the name of Kenan Becirovic, exhibiting the 572 mobile number, refers to laminated flooring and underlay in the sum of just over $7,000.[201]  Images taken from the laptop of Ms Hunt found in the sideboard of the dining room, reveal that in October or November 2010, no flooring was installed in the dining room/living room area,[202] whereas images contained on Ms Hunt’s iPhone taken on 13 December 2010, clearly show polished laminate flooring was by then in place.[203]

    [201] Exhibit P11, pp 64-65.

    [202] Exhibit P16, pp 2-5, and 22.

    [203] Exhibit P14, images 134-138.

12. It is as apparent as it can be from the combination of circumstances marshalled above, that there is such a close interrelated nexus in point of time and in point of circumstance as of 7 January 2011, leading to the inevitable conclusion that the specified items in these specific documents were delivered and installed in the Glandore premises.  The combined coincidences are simply too great to allow for any reasonable view of matters to the contrary.  As before, this conclusion does not entail the use of the documentary material on a hearsay footing in the manner prohibited in the cases discussed above.  What it does involve is drawing connections between the proven circumstances from the entire body of original evidence deposited all around the home, including the documents and photographs, which demonstrate that Mr Becirovic was closely involved with the house in the course of renovations together with Ms Hunt.  They do not serve to prove that he was the original purchaser of those items or that cash was paid for them, and they are not employed for that purpose in the above reasoning process.

13. The reasoning process is then, no different from that explained by Cairns LC in Belhaven Stanton Peerage:[204]

    My Lords in dealing with circumstantial evidence, we have to consider the weight which is to be given to the united force of all the circumstances put together.  You may have a ray of light so feeble that by itself it will do little to elucidate a dark corner.  But on the other hand, you will have a number of rays, each of them insufficient, but all converging and brought to bear upon the same point, and when united, producing a body of illumination which will clear away the darkness which you are endeavouring to dispel.

    [204] [1875] 1 AC 278, 279.

14. On the basis of the body of evidence, the male clothing, the male hormones, finger prints and the DNA, the presence of the Chrysler sedan and the large number of documents and photographs referable to him at poignant times, several having a distinct temporal connection with identifiable items in the house, combine to the point that the only reasonable inference to draw is that Mr Becirovic came and went to the Glandore premises as and when he pleased, and when there that he exercised control over the premises as if he were joint owner or occupier with Ms Hunt.

15. It is not to the point that he was not present on the day the police attended, or that he cannot be proven to have been there any later than 26 December.  He is demonstrated by an imposing body of evidence to have exercised the rights of ownership and possession jointly with Ms Hunt, and as a necessary aspect of that right, to exclude all others from the house had he wanted to: R v Dib and Dib,[205] R v GNN.[206]

    [205] (1991) 52 A Crim R 64, 66.

    [206] Above [20].

16. Given this conclusion it is strictly unnecessary to proceed to examine whether Mr Becirovic falls within one or another of the definitions of ‘occupies … has care, control or management of, premises’ contained in s 5(14)(c) of the Firearms Act, so as to engage the rebuttable presumption contained therein.  As noted, the section removes the requirement of exclusive possession.  It provides access to a firearm may constitute possession of it.  ‘Care or management’ is generally a state of affairs significantly less demanding than proof of control.  In R v Sandery,[207] I observed that in ordinary parlance ‘control’ meant ‘to exercise restraint or direction over’, or ‘the fact of checking and directing action’, concepts less demanding than possession at common law.  On the basis of the above primary findings of fact, there can be no doubt that Mr Becirovic was at the very least in control of the Glandore home occupied by Ms Hunt.

    [207] [2013] SADC 38, [25].

17. With these conclusions in mind, it is now opportune to focus attention on the specific charges.

    The charges

    Preliminary consideration

18. As in any case of a trial by a Judge alone, as it is with a trial by jury, the trier of fact is ‘free to deliberate’ in any order it thinks appropriate, and by commencing with any count or counts it considers appropriate: Gassy v The Queen.[208]  As with juries, Judges are equally entitled to bring their common sense and experience of life to bear upon an assessment of the evidence, providing adequate reasons are given: R v Chahine,[209] Fleming v The Queen.[210]  In this case it is convenient to commence an examination of the facts with a focus on the ‘Easy Mac’ cheese box found on the top right rear shelf of the kitchen pantry cupboard, as much of the evidence tends to gravitate towards this container and its contents and the immediate surrounding area.[211]

    [208] (2008) 236 CLR 293, [25].

    [209] [2006] NSWCCA 179, [88].

    [210] (1998) 197 CLR 520.

    [211] ALM38, Exhibit P2, MJW-02, images 76-81, MJN-03, images 198-202..

    Counts 3 and 4

19. The original position of the ‘Easy Mac’ cheese box was hidden from view behind the ‘Quick Oats’ box seen in image 76 in Exhibit P2.  Its position was exposed for taking image 79, by moving the items originally in the front.  Nearby was a partially consumed cordial container and next to that was a packet of plain flour, apparently unopened.  The contents of the ‘Easy Mac’ cheese box was two plastic bags of white powder.[212]  The smaller bag to the left shown in those images, contained the cocaine the subject of count 3.  This cocaine weighed 2.95 g and contained 0.51 g of cocaine, that is a purity of 17.3 per cent.  This cocaine was valued by Detective Hudson of the Drug Investigation Branch of the South Australia Police based on the quantity and purity involved, at between $1,000 and $1,500.[213] The larger of the two bags to the right contain the 4-MMC and ketamine, the subject of count 4.[214]

    [212] Exhibit P2, MJW-02, images 80 and 81, MJW-03, images 198-200.

    [213] Statement 12 June 2012, pp. 17-18.

    [214] ALM38.2.1.

20. There is no direct evidence as to the height of the shelf.  The photographs suggest it was at least to eye level of a reasonably tall police officer.  To reach this box at the rear, most people would need to stretch, and reach for it with an arm outstretched at the very least.[215]  The earlier photographs demonstrate there were no food substances in this vicinity as of 13 December, but that it was stocked by 30 December, at the latest.  It follows the time period involved in which these items of food stuffs must have been placed on the pantry shelf, was in the order of about a week, in light of the earlier findings as to when she moved in.

    [215] Exhibit P2, MJW-02, image 57.

21. Because of the height and depth of the shelf, putting the box where it was found necessarily required distinctly deliberate action or movement.  The top shelf contained other items likely to be in common, if not daily use, such as the cereals Weet-bix, Special K, Sultana Bran, as well as biscuits, cling and wax wrappings and the like.  Several appeared to have been previously opened.[216]  It is a distinct possibility that they were placed there by Ms Hunt in the course of moving to Glandore after vacating the Richmond property.

    [216] Exhibit P2, MJW-02, image 73, 202.

22. Ms Hunt’s DNA was present, as was admitted by her counsel on the bags containing the 4-MMC relating to count 4.  As indicated earlier, one cannot reason without doubt other than that the original source was from within the ‘Easy Mac’ cheese box itself, on account of the distinct possibility of cross-transference.  Nevertheless the only reasonable inference open is that she must have handled the box in the period of a week or so before 7 January 2011.[217]

    [217] T480.9-.21.

23. It is obvious from the photographs that the only contents were the two plastic bags containing the respective drugs.[218]  There would be no point in retaining the box if it was empty when placed on the shelf.  On the other hand, if it contained the plastic bags, one would have expected her to examine the contents and make a decision whether to discard or keep.  On either contingency she must have alluded to the contents so as to make those decisions.  There would be no point retaining an empty box or one containing nothing of consequence.  The inescapable conclusion is that she was in possession of the box in the requisite sense, adverted to its contents and deliberately hid it there.  It must follow that there is no reasonable doubt that she knew it contained controlled (illegal) drugs, even if she did not know precisely what they were, despite her assertions that they were not hers.  It is too far-fetched to reason that she may have handled the plastic bags earlier for different purposes.  It is simply not feasible that so much 4-MMC would be placed in a used plastic bag and thus risk soiling or contamination.  She is therefore proven to be knowingly in the possession of controlled drugs on counts 3 and 4. 

    [218] Exhibit P2, MJW-02, images 80 - 82.

24. As to count 3 specifically, as the quantity is quite small and is differently constituted than the cocaine in the dining room in that there is no hint of procaine, and given that the scales in the utensils drawer contained traces of cocaine consistent with the small calibration of the scales, this unique combination of circumstances links to the small amount of cocaine found in the ‘Easy Mac’ cheese box, and so the probabilities are that this small portion was for personal use.  There is no other sensible explanation for the presence of cocaine on those scales, other than for personal use.[219]  As s 33R of the CSA permits lesser verdicts to be returned for offences under Part 5 thereof, Ms Hunt is found not guilty of trafficking in cocaine on count 3, but guilty of the simple possession of it contrary to s 33L thereof, despite the presumption of purpose, since the other elements of this offence are proven.

    [219] Exhibit P2, MJW-02, image 78 (two white boxes to bottom left of Quick Oats box). ALM22, Exhibit P2, MJW-02, image 124.

25. The Coles Quick Oats box on the top shelf of the kitchen pantry, placed immediately forward of the ‘Easy Mac’ cheese box, stored the two containers of the Sustanon male steroid.  Given the antecedent conclusion of Mr Becirovic’s close and intimate association with the home, the only inference open is that he placed them there himself for his own personal use.  It is unlikely in the extreme that testosterones were kept there other than by him.  That inference is reinforced by his DNA detected on the two containers from the medicine cabinet containing male hormones.  Once it is accepted that Mr Becirovic was in the joint possession of the premises and exercised control over them, and in light of the proof of his extensive movements throughout the home, there can be no doubt that he was aware of the drugs and knew what they were.  It is inconceivable to consider that some other third person was responsible for the drugs on counts 3 and 4 or that anyone else would have left the valuable 4-MMC where it was, available to be accessed by the occupier(s).

1. The physical evidence, taken as a whole, places Mr Becirovic in the very area or immediately adjacent to where the two drugs charged in counts 3 and 4 were stored.  In light of his close connection with and control over the home, it is improbable that any third party was responsible for these drugs, so he must have known they were in there and that they were the specific drugs charged, or at least controlled drugs, so he must be found guilty of count 4 and not guilty on count 3, but guilty of simple possession of cocaine, for the same reasons as given in the case of Ms Hunt.  The presence of so much cash in the male section of the bedroom wardrobe is consistent with that conclusion.  The money counting machine takes the matter no further.

   Count 2

2. Count 2 pertains to cocaine found secreted in an artificial pot plant standing in the North-Western corner of the dining room in powder weighing 42.3 g, containing 7.06 g cocaine, that is 16.7 per cent pure.[220]  There is no evidence as to where precisely it was found within the pot plant, or to the extent that it was secreted or hidden, except it was not apparently open to view.  The declaration of Detective Miller indicates that it was contained in a ‘glad bag’ so the inference is if anything, that it was hidden from view.[221]  This cocaine was considerably greater in quantity and potential value than that the subject of count 3, having an estimate between about $20,000 and $45,000 in round figures.[222]  The upper estimates were based on a premise that the 17 per cent of ‘product’ could be cut to about 8.5 per cent, doubling its value.  Although this cocaine is practically of an equivalent purity to that contained in the pantry cupboard, it is of a considerably greater weight.  Unlike that in the pantry cupboard, this sample was cut with procaine.

   [220] ALM30, 603-32, Exhibit P12, image 41.

   [221] Detective Miller, 6/2/2001 p 2.

   [222] Detective Hudson, 12 June 2012, pp 17-18, T502.13-.20.

3. There is no evidence demonstrating an intention to trade in small street components such as deal bags, tick lists, multiple telephones and telephone communication, or of people coming and going from the premises for instance, that are commonly seen in such situations.  For this reason the evidence of the cocaine found on the small pocket scales in the kitchen utensil drawer is of no probative value in respect of count 2 or for that matter count 1, and is therefore excluded from further consideration at this point in the analysis.

4. Procaine was the cutting agent located in the kitchen, in the white bowl in the cupboard above the microwave.[223]  This procaine weighed 288.5 g.[224]  The two plastic bags shown more or less in the centre of the second drawer, contained 151.69 g and 28.1 g respectively of procaine.[225]  It is no accident therefore that the cocaine to which count 2 relates, just so happens to have been cut with the same substance.  Given the extraordinarily high combined weight of all the procaine, it is impossible to comprehend that it was used for anything other than to cut the cocaine in the pot plant for the purpose of later sale.  That conclusion is enhanced when one adds to this quantity the 23.4 g of powder containing the 0.25 g of methylamphetamine, also a cutting agent.[226]

   [223] ALM25, 603-24.27, MJW-02, images 71, 72, 127, 127, MJW-03, image 171.

   [224] ALM25, 603-27.

   [225] ALM23.4.1, 603-24.5, Exhibit P2, MJW-02, images 71-72, MJW-03, images 163-168.

   [226] ALM1.8.

5. The pot plant in question was plainly visible in the North-West corner of the dining room on 7 January 2011, yet it was not to be seen when the iPhone photographs of 30 December were taken.[227]  The inevitable inference is that it and the cocaine were placed between those dates.  An invoice of 31 December 2010 taken from the striped box in the sideboard of the dining room issued by Sue Ellemore Interiors, records the purchase of a ‘oncidium orchid w/soil green/brown’ and a ‘ceramic Cambodia pot silver’ on that day, as well as a cylindrical shade, amongst many other items.[228]  These correlate in description, and very distinctly in point of time, with the pot plant in which the cocaine relative to count 2 was found.  A runner in the same invoice described by colour as ‘sand’, can be seen in the photographs taken on 7 January, but not those on 30 December.[229]

   [227] Exhibit P14, images 231 and 232, Exhibit P12, image 41.

   [228] Exhibit P11, p. 28.

   [229] Exhibit P2, MJN-02 image 58, Exhibit P14, images 231-232.

6. As an artificial plant, it required no tending.  The plastic bag was not apparent to the naked eye.[230]  It is in these circumstances a reasonable possibility Ms Hunt did not become aware of it or did not know what it was, so she is entitled to be acquitted of this count, quite apart from the fact that she did not have the financial means to acquire drugs of this value.

   [230] Exhibit P2, MJW-02, image 133, MJW-03, image 184.

7. With respect to Mr Becirovic, in light of the antecedent findings already made, it is not reasonably open to infer that anyone else was responsible for such a valuable drug other than him.  In reaching this conclusion, no account is taken of the finding of guilt on count 3, as the cocaine there involved is a much smaller quantity and was not cut with procaine as this lot was.  The use of the conclusion on count 2 as to him is that of coincidence, not of propensity.  It is quite simply unlikely in the extreme as a matter of common sense that another person would coincidentally store this valuable drug where it was found.  Since the remaining elements of this offence are proven, he must be found guilty of count 2.

   Count 1

8. This analysis leaves only count 1 of the drug counts remaining.  This relates to the 3,033 1-benzylpiperazine (BZP) tablets located in the shed to the very rear of the property, hidden in the sealed Dulux paint tin in plastic bags.[231]  These weighed a total of 861.8 g.  They can be seen in various photographs that were taken.[232]  The tin itself was labelled ‘Dulux Wash and Wear 101 Advanced’.[233]

   [231] ALM14, 603-15.

   [232] Exhibit P2, MJW-02, images 95-99, 116, MJW-03, images 146 - 157.

   [233] Exhibit P2, MJW-03 images 147 and 157.

9. This quantity of the ‘ecstasy’ tablets could yield between $30,000 and $90,000 according to Detective Hudson, depending on ‘quality, supply and demand’, and the point in the chain of distribution at which it is sold.  A firmer link between these pills occurs with the white powder found in a blue Tupperware-like container in the medicine cabinet holding 1.82 g of benzylpiperazine (BZP).  This was stored on the top shelf of the medicine cabinet, difficult for most people to see or reach.  The containers were opaque.

10. There is no evidence directly linking Ms Hunt to having accessed this shed.  These considerations lead to the distinct possibility that she did not know of the container and did not know of its contents.[234]  Otherwise there is no direct evidence linking either accused with the paint tin, let alone its contents.  So far as Ms Hunt is concerned, it is not possible to identify any particular reason why she would want or need to go into that shed, particularly as a preoccupied mother of a very young child.  There was nothing in the shed that could be of any interest or of use to her.  The state of the surrounding yard resembled a building site, likely to deter her from going into the rear yard at all.  She did not have the financial capacity to purchase the tablets.  In these circumstances there is clearly a reasonable doubt as to whether she knew of the paint tin, let alone its contents, so she is entitled to the benefit of that doubt, by way of an acquittal on count 1.

    [234] ALM20, 603-21, Exhibit P2, MJW-02, images 57, 75 and 122, MJW-03, images 161 and 162.

11. Matters stand quite differently in the case of Mr Becirovic.  A temporal link to him is that involving the same substance found in the medicine cabinet, albeit in a different form (pills and powder).  It is here that the findings of guilt on the previous charges become relevant, except for that on count 3 for reasons already explained.  Once it is acknowledged that he is in the joint possession of the premises, and to have known specifically of the cocaine in the kitchen and dining room and the 4-MMC in the box from the pantry cupboard, there is no other logical explanation other than that he was immediately associated with the drugs in the shed.  It is highly implausible that a complete stranger would coincidentally secrete such valuable drugs in such an exposed place.  The only explanation therefore is that Mr Becirovic was responsible for putting them there deliberately, knowing exactly what they were.

12. To so reason is not to use the earlier findings of guilt on counts 2 and 4 on an impermissible propensity basis.  Rather, it is to acknowledge that those conclusions are circumstantially highly probative of guilt as to count 1, because of the extreme coincidental improbability that a stranger was responsible for putting such valuable drugs in the rear shed.  Any ‘prejudice’ here lies wholly in proof of guilt, that is the presence of the drugs in three places controlled by him occurring coincidentally: R v Zhang.[235]  If contrary to that view, those conclusions as to counts 2 and 4 contain such strong probative value having regard to the issue of how and who put the tablets in the shed, so as to become admissible on a propensity basis if necessary.

    [235] (2005) 158 A Crim R 504, [145].

13. Given these conclusions there is no need to consider the prosecution’s alternative argument that another basis of finding the accused guilty by allowing the premises to be used for the purpose of trafficking.  The submission arises from s 4(5)(f) of the CSA quoted earlier.  Putting aside the defence objection that this involves the prosecution impermissibly splitting its case, it can be seen that the section takes effect once there is proof of ‘allowing the use’ of the Glandore premises for the purpose of sale of a controlled drug.  Permitting something to be done requires proof of actually allowing it to be done, knowing what is to be done: R v Sanewski,[236] and Lomas v Peek.[237]  Since this necessarily entails knowing the premises were used for the purpose of the sale of drugs, the necessary elements of knowledge and possession would be satisfied in any event, so that there is no utility in this further inquiry.  Still further, as the accused are proven to be in joint possession of the Glandore property, the second limb of s 4(5)(f) of the CSA is satisfied in any event, without any question of an impermissible alternative basis arising.

    [236] [1987] 1 Qd R 374, 378.

    [237] [1947] 2 ALL ER 574, 575.

14. The question of responsibility for the firearms on counts 5 and 6 is a different matter.  There can be no doubting the fate of these firearms stands together, there being no question that they were placed in the shed separately or independently of each other, particularly in view of the way they were found stored together behind one of two bookshelves.[238]  Neither were loaded or secured in any way.  The prosecution contends there is a connection between the Class D shotgun charged on count 6, with the six rounds of 12 gauge shotgun ammunition found in the middle cupboard of the laundry in a black bag.[239]  As these are too generic in nature to provide a sufficiently probative link between the two, and as the unloaded shotgun itself was accompanied by seven rounds of ammunition, the evidence of the cartridges found in the house retain insufficient probative value to be inadmissible in respect of the shotgun in the shed.

    [238] Exhibit P12, images 58-59, Exhibit P2, MJW-02 images 100-101, MJW-02 images 118-119.

    [239] ALM11.1, Exhibit P2, MJW-02, images 83-85, MJW-04, images 209-212.

15. The issue of the firearms is compounded by the rebuttable presumption of possession noted earlier. As to Ms Hunt, despite the fact that she did not give evidence (from which no adverse inference is to be drawn), it is more likely than not that she ‘did not know, and could not reasonably be expected to have known’ about either weapon, essentially for identical reasons to those given in respect of count 1. She is therefore entitled to a verdict of not guilty on counts 5 and 6. Alternatively the objective circumstances are such that the s 36A defence under the Firearms Act applies to her.  As David J observed in R v Fuller & Zazzaro,[240]

    The existence of this section prevents a person who can prove that they had no intention to do anything wrong and no knowledge that they were doing so from being convicted of an offence against the Act. This defence would extend to an accused who was deemed to be in possession of a firearm by operation s 5(14) but can prove, for example that they did not know that the object the subject of the charge was in fact a firearm.

    [240] Above, [71].

16. As to Mr Becirovic, the same process of reasoning applies as it does with respect to count 1, that is through the medium of coincidence. There is no reasonable possibility that he was not responsible for the tablets. It is but a small inference from there that he must be associated with those firearms, on the same improbability basis that it is highly unlikely anyone else would have hidden them in the shed. On that footing there is no need to resort to s 5(14) of the Firearms Act. If this conclusion is wrong, then on the above findings he unquestionably had the ‘care’ of the property and/or exercised ‘access’ to the firearms, so that the rebuttable presumption is invoked as against him. That being so, he singularly fails to establish that s 5(15) applies to him or for that matter s 36A.

    Conclusion and verdicts

17. Ms Hunt was clearly in possession of the Glandore home as of 7 January 2011.  The evidence is overwhelming that she shared possession jointly with Mr Becirovic and that he had the care of the property.  If one puts aside the formalities, that the house and the Chrysler were registered in the name of others, just about every other piece of admissible evidence is strongly congruent in that direction.

18. On the basis of the united force of the entire circumstantial evidence, Ms Hunt is found guilty on the lesser charge of simple possession on count 3, and guilty on count 4 with respect to both controlled drugs found in the ‘Easy Mac’ cheese box in the pantry cupboard.  She is found not guilty of counts 1, 4, 5 and 6.  Based on the large body of circumstantial evidence admissible against Mr Becirovic, he is found guilty of all counts except for count 3, on which he is found not guilty of trafficking, but guilty of the possession of a controlled drug.

19. Verdicts will be entered accordingly, namely:

    Count 1:    (BZP in the rear shed) Ms Hunt not guilty, Mr Becirovic guilty.

    Count 2:    (cocaine in pot plant) Ms Hunt not guilty, Mr Becirovic guilty.

    Count 3:(cocaine in pantry cupboard) Ms Hunt not guilty, but guilty of simple possession, Mr Becirovic not guilty but guilty of simple possession.

    Count 4:    (4-MMC in pantry cupboard) Ms Hunt guilty, Mr Becirovic guilty.

    Count 5:(semi-automatic rifle in the rear shed) Ms Hunt not guilty, Mr Becirovic guilty.

    Count 6     (shot gun in the rear shed) Ms Hunt not guilty, Mr Becirovic guilty.