R v Jeisman (No 3)
[2014] SADC 52
•4 April 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v JEISMAN (No 3)
Criminal Trial by Judge Alone
[2014] SADC 52
Reasons for the Verdict of His Honour Judge Slattery
4 April 2014
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
Accused charged with one count of trafficking in a controlled drug, namely methylamphetamine - trial by judge alone - accused apprehended by police, searched and found in possession of 0.72 grams of methylamphetamine - police subsequently conducted a search of a premises the accused was seen leaving from - several items seized by police, including a mobile telephone - numerous SMS messages found on the mobile telephone which contained material consistent with drug dealing - prosecution case relies on circumstantial evidence which involves drawing inferences - analysis of the various stands of circumstantial evidence.
Verdict: Guilty.
Controlled Substances Act 1984 s32(3), s32(5); Juries Act 1927 s7(1) ; Juries Rules sub-rule 8(5), rule 16. rule 17, rule 18; Evidence Act s34P, s34R, s45, s45A; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 Schedule 1, Part 2, referred to.
Douglass v R [2012] HCA 34 ; R v Keyte (2000) 78 SASR 68; R v R,R and R,LJ [2008] SASC 35 ; R v MR reasons for verdict of his Honour Judge Beazley 8 May 2013; R v Panetta reasons for the verdict of his Honour Judge Chivell 24 May 2013; Hargraves v R [2011] HCA 44 , applied.
R v C, CN [2013] SASCFC 34; R v Soteriou [2013] SASCFC 194 ; R v McGee (1993) 61 SASR 208, considered.
R v JEISMAN (No 3)
[2014] SADC 52INTRODUCTION
The accused, Brett Jeisman is charged with trafficking in a controlled drug, contrary to s32(3) of the Controlled Substances Act 1984 (“CSA”). Particulars of the charge are as follows:
Brett John Jeisman on the 5th day of January 2013 at Ferryden Park, knowingly trafficked in a controlled drug, namely methylamphetamine.
PROCEDURAL MATTERS
Trial by Judge alone
The accused elected to be tried by a Judge alone pursuant to s7(1) of the Juries Act 1927. Under sub-rule 8(5) of the Juries Rules[1] the election to be tried by Judge alone must be made not later than the last day upon which the registry is open for business prior to the day of the accused person’s first arraignment on the information in respect of which the trial is intended to be held. That did not occur in this case for the reasons that I have already outlined in my published ruling dated 13 January 2014.
[1] Rule 8(5) – Except in the case of an accused person committed for a trial to a circuit sittings the election may be made:
(a) by filing at the Registry of the Court of trial not later than the last day upon which the Registry is open for business prior to the day of the accused person’s first arraignment on the information in respect of which the trial is intended to be held, a notice in writing signed by the accused person making the election and a certificate complying with Rule 10;
(b) by the accused person or by counsel appearing for the accused person orally informing the Judge on the accused person’s first arraignment on the information in respect of which the trial is intended to be held of the accused person’s election and tendering to the Judge a certificate complying with Rule 10; or
(c) by filing a notice in writing signed by the accused person making the election and a certificate complying with Rule 10 within such time and in such manner as the Judge on the first arraignment of the accused person on the information in respect of which the trial is intended to be held shall direct.
Under Rule 16 of the Juries Rules[2] a Judge may dispense with compliance with all or any of the requirements of the rules if the Judge is satisfied that there are special reasons for so doing or that it would be unjust not to do so. That may occur whether or not such period of time has expired under Rule 17 of the Juries Rules.[3] Under Rule 18 of the Juries Rules[4] the appropriate procedure is to apply in chambers concerning directions for procedures to be followed and that is the procedure that has been adopted in these proceedings. The question then becomes whether I as the person nominated as the trial Judge am satisfied that there are special reasons for making any order allowing an election now to be made so long after the first arraignment of this matter or that it would be unjust not to do so.
[2] 16. A Judge may dispense with compliance with all or any of the requirements of these Rules, if the Judge is satisfied that there are special reasons for so doing or that it would be unjust not to do so.
[3] 17. A Judge may extend or abridge any of the periods of time prescribed by these Rules if the Judge is satisfied that there are special reasons for so doing or that it would be unjust not to do so and the Judge may do so whether or not such period of time has expired.
[4] 18. Where these Rules do not provide for any procedure necessary for, or ancillary to, the making of the election the accused person or any other person interested may apply to a Judge in court or in chambers for directions concerning the procedure to be followed and the matter shall then proceed in accordance with such directions as may be given by the Judge.
There was no challenge to the application from the prosecution. I found “special reasons” did exist in this matter and the accused’s application was granted and the trial commenced before me on 14 January 2014.
Discreditable conduct notice
By notice dated 9 August 2013 the Director gave notice of an intention to adduce evidence of discreditable conduct under s.34P of the Evidence Act. I delivered my ruling with respect to this notice during the initial voir dire stage of the trial on 14 January 2014.[5]
[5] [2014] SADC 15.
I am obligated by s.34R of the Evidence Act to identify and explain the purpose(s) for which the evidence may, or may not, be used. The nature of the discreditable conduct described was on two bases; the first was charged and uncharged acts of possession of items associated with drug use and drug dealing, including electronic scales, cash, plastic bags and a knife. The second item of discreditable conduct was charged and uncharged acts of trafficking and interaction with drug users, drug buyers and/or drug dealers including (relevant) cash and text messages.
The use or uses of the evidence which are said to be permissible uses under s.34P(2), as set out in para.3 of the notice and para.4 of the notice, identified that the evidence was to be adduced as circumstantial evidence of a fact in issue, namely that on 5 January 2013, the accused possessed methylamphetamine for the purposes of sale.
The Director delivered detailed written submissions in support of the notice. In particular the Director pointed to the fact that the SMS messages on a telephone found at a home at Montrose Street in Ferryden Park (“Montrose Street”), which the accused left immediately prior to being apprehended by police shortly after 7.20 p.m. on that day, electronic scales, cash and a knife located on the accused’s person, were all relevant and admissible and support an inference that the accused was in the business of selling drugs.
The total amount of methylamphetamine found upon the person of the accused at the time of his apprehension totalled 0.72 g.[6] There was also $310 cash, empty plastic bags and a knife found on his person. It was not in contest that the total methylamphetamine, weighing some 0.72 g, did not activate the presumption for s.32 of the Controlled Substances Act and therefore the burden of proof in respect of all matters beyond reasonable doubt fell upon the prosecution without the benefit of any presumption.
[6] There was no evidence put before me by way of expert witness or forensic reports regarding the purity of the methylamphetamine found on the person of the accused. The trial was proceeded on the basis that the 0.72 g of methylamphetamine found on the person of the accused was 0.72 g of pure methylamphetamine.
In relation to the second of the bases for the s.34P notice, I refer in particular to the text messages taken from the subject mobile phone found in the house; the Director provided a schedule of six pages outlining 37 text messages (of a total of 222 texts) sent to or received by the telephone found at the Montrose Street property. Some of the text messages were identifiable as conversations concerning money, some were identifiable as conversations concerning what may be identified as well known euphemisms for drug dealing such as ‘lollies’ and other such references. One, no.16, was a text message sent by Telstra concerning the need for the defendant to recharge credit - that matter has been excluded by me as it is obviously irrelevant in light of other evidence.
Under the settled law of South Australia I considered and delivered judgment on the s.34P notice and I referred in particular to the decision of the Court of Criminal Appeal in this State in R v C, CN [2013] SASCFC 34.
In the written submissions filed on behalf of the Director it was correctly submitted that the intention of the prosecution to lead the evidence includes an intention concerning propensity evidence and I therefore considered s.34P(2)(b) in detail.
In relation to s.34P I also referred to the Court of Criminal Appeal in R v Soteriou [2013] SASCFC 194 and especially to the judgment of Vanstone J who wrote the judgment of the Court. At para.[14] of the judgment her Honour emphasised the wording of s.34P(1), namely:
“(1) In trial of a charge of an offence on the evidence tending to suggest that a defendant has engaged in discreditable conduct...”
Her Honour made reference in Soteriou to the tense of the words ‘has engaged’. Her Honour indicated those words are to be understood as having been expressed in the past tense, that is: ‘... in the past engaged in discreditable conduct; not that (he) might intend to do so in the future.’
The relevant matter necessary to identify is the connection between the factual background of the circumstances of this case and the matters in issue arising in argument under s34P. In paras.54, 55 and following of the Director’s submissions, the Director indicated that the material is relevantly admissible as supporting an inference that the accused was in the business of selling drugs.
Secondly, it was relevant to the question of whether the accused had a commercial purpose or motive associated with the methylamphetamine located on his person and if it be accepted that the accused was trading in drugs, that would tend to raise the improbability of the drugs located on his person being other than his stock in trade.
The Director correctly identified that a substantial portion of this evidence was propensity evidence, therefore for the purposes of s34P(2)(b) it was necessary to identify that the evidence has strong probative value having regard to the particular issues at trial.
I was required to identify the use or uses that the proposed evidence must be admitted. I needed to be satisfied that the probative value of the evidence for the permissible use or uses substantially outweighed any prejudicial effect it may have on the defendant and that it had a strong practical value. In doing so, I had regard to whether the permissible use was and could be kept sufficiently distinct from the impermissible use so as to remove the risk of the evidence being used inadmissibly. Thirdly and as was the case in this matter, whether the permissible use relied on the propensity of the accused as circumstantial evidence of the facts in issue, I was required to be satisfied that the evidence is of strong probative value.
I agreed that the portion of the evidence was to be treated as propensity evidence raising the question of inference of whether the accused had a propensity to engage in the drug trade at a time of him being located with ten plastic bags on his person, eight of which contained methylamphetamine.
I also agreed with the submission of the Director that proof of criminal disposition to sell prohibited drugs is essential to the proof of an offence of trafficking in a controlled drug pursuant to s.43(3) of the Controlled Substances Act. I refer to R v McGee (1993) 61 SASR 208.
Ms Stephens raised a number of contentions in relation to the evidence sought to be led. No serious argument was put about the question of the possession of the knife upon the person of the accused. However, the question for consideration in light of the Soteriou decision was whether one may view that as a concurrent (past) matter or a future matter and therefore what use may be made of it. The same applied to the question of the cash.
However on the question of the uncharged acts, Ms Stephens submitted that it was necessary to understand the inferences that may be sought to be drawn from the evidence sought to be led by the Director. For example, Ms Stephens objected to evidence being led of the discovery of scales within the premises at Montrose Street. She said the scales were found within the bedroom of the premises and asserted (in the absence of any evidence on the point) that this bedroom belonged to the principal resident of the premises and therefore an inference would arise that the scales belonged to that person. She also submitted and it was not put in contest, that the scales were analysed and no drugs were detected upon the scales.
I ruled that it was not appropriate that I isolate a piece of evidence in the way in which Ms Stephens had indicated. For example, there was evidence of some form of cohabitation between a female person living at the Montrose Street address and the accused. This was a matter for further evidence and was not a matter that would lead to me excluding that evidence in this application.
Ms Stephens also strenuously objected to a number of the text messages. I have already excluded one, namely No.16, however, she said in her submissions that I must be satisfied of the relevance of each of the text messages and I must also be satisfied that each is more probative than prejudicial. I must be satisfied that the text messages have a strong probative value having regard to the issues. Ms Stephens identified a number of those text messages and I refer in particular to Nos.1, 14, 15, 17, 18, 19, 20-25. Ms Stephens submitted that essentially third party text messages are not relevant.
At this juncture, I was unable to accept that submission. It was clear from the outset that the approach of the Director was to lead an inference case and it is necessary on the Director’s case to draw strands together from all of the evidence led in the prosecution case. In those circumstances and having regard to the fact that it was quite clear that expert evidence was to be called concerning the content of the particular text messages and that all of that evidence had not yet been heard, I ruled that it would have been premature to point to a particular message and say that standing alone or in concert with any other message, that it does not meet the criteria for s.34P.
In my view, the approach as outlined by Vanstone J in Soteriou at para.[15] was pertinent. Her Honour identified at that paragraph the relevant types of messages and notes and the words within them and said as follows:-
“[15] The notebooks and text messages stand differently. The text messages clearly speak of sales and payments. The subject matter of what is being traded is sometimes referred to as “biscuits” and other times as “green e’s”. However, viewing the various strands of the prosecution case cumulatively, the messages were clearly capable of demonstrating that the defendant had, in the past, sold drugs. Therefore the terms of s 34P were engaged.”
Further in the judgment at para.[21] her Honour dismissed the distinction between reliance on the continuing interest in the drug trade as against a propensity to trade in drugs. This was the approach taken by the Director in this matter.
Finally at para.[31] her Honour said as follows:-
“[31] In the present case, the evidence of the appellant apparently conducting the business of trafficking in drugs from the very premises where he was found and near to where the drugs were located, was evidence of an interest in the trade and of his inclination or propensity to possess drugs for that purpose.”
Notwithstanding that I have set out above some passages from the decision of Vanstone J in Soteriou, I acknowledge that the factual circumstances of that matter were different from the circumstances that are before me in this matter. I set out those passages in detail in order to identify what I consider to be the correct approach of the question of assessing the text messages upon which Ms Stephens made her submissions.
I ruled that having read all of that material and having heard the submissions of counsel, I was satisfied that this evidence as submitted by the prosecution may be described as having strong probative value having regard to the particular issues at trial. I was therefore satisfied that the requirement of s.34P(2) was satisfied for those reasons.
I found that I was also satisfied that I was able to deal with any prejudicial effect of that evidence because I was able to direct myself concerning any impermissible use as may be required to be considered for S34P(3)(b). In so deciding, I was also satisfied that I could keep separate any impermissible use as distinct from the permissible use. I was satisfied that I could give direction to myself for any evidence being used for that purpose. That approach was consistent with my satisfaction that the evidence was of strong probative value for the purposes of s.34P(2)(b). I was satisfied that, as I was advised, there was no reason to exclude this evidence as an exercise of discretion.
Rule 15 application
On 14 January 2014, I also delivered my ruling with respect to the rule 15 application filed on behalf of the accused. Regrettably, there had been a late flurry of depositions filed. This, in turn, led to late lodgement of rule 15 applications by the accused which were reactive to the late material filed by the Director.
With respect to the original rule 15 application dated 6 January 2014, and from my reading of the depositions - following consent given by the parties in the afternoon of 13 January 2014 - it was apparent that a contest arose about the evidence surrounding a mobile phone found at the Montrose Street premises. It was at this address that the accused was seen leaving on the day he was apprehended by police.
At the time of apprehension the accused did not have in his possession a mobile phone. Following his apprehension, the Montrose Street premises were searched. During that search a mobile phone was identified. The depositions of the police officers indicated some particular confusion about who may have first seen the mobile phone and who, in a proper recording sense within the police records, dealt with the mobile phone. A number of depositions were filed from a number of police officers attempting to clarify that matter. The significant point here is that access was taken to the mobile phone and the material was discovered on it. That material consisted of a number of videos together with SMS text messages.
Following discovery of that material some inquiries were made concerning identification of the person registered with the relevant carrier, Telstra Corporation, of the service on the mobile phone. It was not until the first day of this trial that a witness statement of Constable Joel Boyd dated 14 January 2014 was delivered to this Court and to defence counsel. The statement is an addendum provided by Constable Boyd to a previous statement made by him on 23 January 2013.
The addendum to the statement of Constable Boyd informed the Court that on 10 January 2014 he made a request from Telstra through police intelligence in relation to the mobile phone. In the statement he identifies the SIM card number of the phone which is of multiple characters. He then deposed that on 13 January 2014 he received an email from police intelligence section which contained an attachment from Telstra with information concerning that SIM card. Attached to the statement is the document received from Telstra. The document attached, annexure A to this second statement of Constable Boyd, records an amount of information provided by Telstra concerning ‘a service’ as it is described. That service refers to the SIM card number which was the number of the SIM card found in the phone at Montrose Street on 5 January 2013. The period described for the purposes of the inquiry from Telstra is 8 December 2012 to 5 January 2013. The response discloses a service number. It is described as a prepaid service. There is an account number. There is also a connection date of 17 October 2012 and a disconnection date of 12 July 2013.
It then describes the service name as the name of the accused and the service address of an address other than Montrose Street. The billing name is the accused. The billing address is described as the address other than Montrose Street. There is then an explanatory memorandum set out at the bottom of the page. The Director sought to tender in evidence material disclosed in both of the deposition of Constable Boyd and presumably the documentary evidence of the Telstra report.
In an addendum to the rule 15 application received by the Court on 14 January 2014, the accused sought an order excluding as evidence this material sought to be led from Constable Boyd on the basis that it was hearsay evidence and that the evidence had no probative value or, if probative value, the probative value is outweighed by its prejudicial effect.
In the course of argument I referred counsel to s.45A of the Evidence Act. No argument was put that the Telstra document was otherwise than an apparently genuine document purporting to be a business record. It followed that the document should be admissible in evidence without further proof and shall be evidence of any facts stated in the record or any fact that may be inferred from the record (s.45(1)(a) Evidence Act 1929).
The argument put during the voir dire hearing by Ms Stephens was that the document should not be admitted in evidence under the section because the Court should be of the opinion that the evidentiary weight of the document is slight and it is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence (s.45A(2)(b) Evidence Act).[7] The substantive argument of Ms Stephens was that there was an arguable disconnect between the existence of the phone and messages and material recorded on the phone and the question of the ownership of the SIM card. Ms Stephens submitted that the material provided by Telstra refers to a service and response to the request of the police in relation to that service in respect of a mobile phone. In the absence of any proof of a connection between the owner of the SIM card and the user of the phone at the relevant time, there is no proof of connection sufficient as a matter of inference to implicate the defendant. As a result on her argument the defendant would suffer prejudice which outweighed any evidentiary effect of the document.
[7] T9.1-5.
Ms Stephens further developed her argument by submitting that there would be real prejudice suffered by the accused by the admission of the document because of an absence of clarification of what she called evidence of connection between the accused and, for example, the authorship of the text messages on the phone or the videos on the phone which were stored separately from the SIM card.[8]
[8] T10.3-12.
The argument of the Director was that there would be no prejudice in the admission of the phone because it proved that at the least that the SIM card in the phone was in respect of a service requested of Telstra Corporation for that particular service number for the particular period described and for the person described, namely the accused. Mr Wilson’s argument was that the material was to be considered as one strand of circumstantial evidence and no final decision on that matter could be made until such time as all of the strands of circumstantial evidence were considered.
I put to both counsel that on the question of circumstantial evidence case, inferences would be sought to be raised from the circumstantial evidence and the question that I must address is whether the inference sought to be drawn is the only inference that arises. Both counsel agreed with that proposition. However, the position of the Director was that was a matter that could not be decided at this juncture but would be decided after all of the evidence had been heard.
I questioned Ms Stephens on the issue of prejudice and it became clear from the answers given by Ms Stephens that the question of prejudice arising from the admission of the document is a matter that is, to an extent, “in the ether” because depending on the question of what strands of circumstantial evidence are available it was yet to be seen whether or not the inference that might be sought to be made by the prosecution was the only inference that arose.
I was mindful of the strength of the argument made by Ms Stephens concerning the aspect of ‘disconnect’ as she put it. However, be that as it may, the question for my consideration was whether or not, on the argument put by the accused under s.45A(2)(b) of the Evidence Act, the evidentiary weight of the document was slight and was outweighed by the prejudice that might result to any parties from its admission in evidence.
It was my opinion that the evidentiary weight of the document was not slight and it was certainly not outweighed by any prejudice that might result to any of the parties from the admission of the document. That was because if Ms Stephens was correct in her argument, it will be necessary to consider the question in light of the information contained in the document, which as a fact discloses the service connected, the number of the service, the customer’s name and the customer’s address.
I ruled that the evidentiary weight of the document was more than slight because of the material that it discloses on its face concerning the connection between the SIM card identifying the service and its connection to the accused.
I reiterated that this was an argument not about the application of s.45A of the Evidence Act, but a discrete point arises under s.45A(2)(b) of the Evidence Act. In those circumstances, it was my decision to refuse para.10 of the rule 15 application brought by the accused dated 14 January 2014.
Reasons
It is my responsibility to disclose sufficient reasons to explain the verdict that I have reached in this matter.[9] Although the Court of Criminal Appeal in this State has recently confirmed that it is not necessary in a trial heard by a Judge alone for the Court to detail in the reasons for verdict what may be described as obvious directions of law in respect of which any trial Judge is bound to be aware, it is my view that there are a number of fundamental directions which apply in every criminal trial.[10] Although these matters are well known and have been recorded elsewhere[11] it is appropriate that I repeat them here.
[9] Douglass v R [2012] HCA 34 at [14]; R v Keyte (2000) 78 SASR 68.
[10] R v R,R and R,LJ [2008] SASC 35 at [42].
[11] R v MR reasons for verdict of his Honour Judge Beazley 8 May 2013; R v Panetta reasons for the verdict of his Honour Judge Chivell 24 May 2013.
The accused comes before this Court with the presumption of innocence in his favour. The law regards him as innocent unless and until his guilt of the charged offence has been proved beyond reasonable doubt. In the context of this case, the accused is innocent unless the prosecution has satisfied me of his guilt beyond reasonable doubt.
In assessing the evidence of any witness, I am entitled to accept the evidence of the witness in whole, in part or not at all. Even if I were to find that a witness may be unreliable about some of the evidence, it does not follow that I must not accept other parts of that witness’s evidence.[12]
[12] Hargraves v R [2011] HCA 44 at [25].
The accused is charged with one count of trafficking in a controlled drug. The accused does not have to prove anything and he was not obliged to give evidence. At trial, the accused elected not to give evidence on oath but to leave it to the prosecution to prove its case beyond reasonable doubt. I have drawn no inference adverse to the accused in consequence of him exercising his right to silence.
Only proof beyond reasonable doubt by the prosecution can give rise to a conviction. It follows that if I am left with a reasonable doubt as to any element of the charge I am then considering, I must give the accused the benefit of that doubt and find him not guilty of that charge.
It is quite often the situation, in criminal trials, that direct evidence of a particular fact is not available. Nevertheless it is also frequently the case that the existence of such a fact follows logically, from the proven existence of other surrounding facts. I ought not to hesitate to draw proper inferences where common sense and logic indicates the propriety of doing so.
The process of ascertaining the facts involves not only assessing the weight to be attached to the various items of evidence testifying directly as to the existence or non-existence of facts, but also the drawing of inferences from the facts directly attested to. The drawing of inferences is a commonsense matter. Inferences may be drawn with greater or less assurance according to the circumstances. It is part of my function to apply my commonsense and experience of life to the process of deciding what inferences are to be drawn from the facts of which evidence is given by the witnesses and what degree of force or cogency attaches to those inferences.
In the end my task is to weigh the various items of evidence, with their varying degrees of force or cogency, and the inferences which I draw from them, with the varying degrees of force or cogency attaching to those inferences, in order to decide whether the inference that the accused is guilty can be drawn to the exclusion of reasonable doubt.
The drawing of inferences is also used to discern a person’s state of mind. A person’s state of mind is a fact like any other fact, and may be inferred from what he says or does.
Factual background
On 5 January 2013, police made observations of Montrose Street. The accused left the home at that address on a bicycle at approximately 7.20pm, and at that time he was carrying a small dog. He was pursued by police and was ultimately apprehended a short distance from the home.
At the time of apprehension the accused was searched and the police located a throw knife and a white plastic container holding ten small plastic bags on his person. There were nine identical smaller plastic bags that carried an imprint impression of the face of Ned Kelly and are distinguishable on that basis. Eight of the nine bags contained an amount of methylamphetamine totalling 0.72 grams. These nine smaller bags were contained in a larger (the tenth) plastic bag. This plastic bag was in turn found inside the hard plastic container that is to be seen in the first photograph of Exhibit P2. There was no evidence of any testing having been done on the ninth empty (smaller) bag. There was some suggestion by the accused that a reasonable inference arises that the empty smaller bag had contained methylamphetamine that had been used by the accused. In the absence of any evidence on the topic, I am not satisfied that such an “inference” arises on the evidence. For example, an inference equally arises that the bag was always empty; alternatively that if the bag did contain some portion of the drugs, that it had been provided in an earlier dealing by the accused to someone else. A discussion of these matters makes obvious the danger of this process and emphasises that I should confine myself to a consideration of the evidence.
Also discovered was $310 cash, a tine and two empty plastic bags.
The police then returned to Montrose Street and acting under the authority of a general search warrant, searched the premises. At the premises the police located electronic scales, a black face cloth or bandana, a bong and a mobile phone which contained text messages. The text messages are those which have been extracted by the Director. A table containing some 37 text messages that were extracted from a total of about 222 messages on that mobile phone were tendered by the Prosecutor and have been marked Exhibit P13.
Elements of the charged offence of trafficking in a controlled drug
The prosecution must prove each of the following three elements beyond reasonable doubt:
1.The substance in question was a controlled drug.
2.The accused ‘trafficked’ in the drug.
‘Traffic’, by virtue of s 4 of the CSA, is a verb which means to:
(a) sell the drug; or
(b) have possession of the drug intending to sell it; or
(c) take part in the process of sale of the drug.3.When the accused trafficked in the drug, he did so knowing that the substance was methylamphetamine, or at least that it was a controlled substance, or was reckless about that (s 33P of the CSA).
The prosecution was not aided by the statutory presumption of trafficking[13], as the total amount of methylamphetamine found on the accused totalled less than 2 grams.
[13] Controlled Substances Act 1984 s32(5); Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 Schedule 1, Part 2.
Overview
The prosecution called the following witnesses: Constable Matthew Schar, Constable Joel Boyd, Detective Brevet Sergeant Joanna Gale, Constable Tristan Macdermot, Constable Sacha Yan, Senior Constable Ciaron Rush, Senior Constable Grant Jennings, Constable Anthony Costalos and Detective Brevet Sergeant David Tiss. Ms Stephens did not call any witnesses to give evidence. The accused did not give evidence.
I had the opportunity to assess each witness called on behalf of the prosecution. In my view, each of those witnesses gave their evidence freely and truthfully. I was able to accept their evidence completely. However, that finding does not completely address the issues that arise on the evidence. That is because a matter of significance in this case is not so much what the police witnesses did as opposed to what they failed to do in and about the fulfilment of their duties. Therefore, a finding of the credibility of the witnesses called by the prosecution does not address an essential feature of the case. This is obviously important because of the burden of proof falling upon the prosecution, the absence of any presumptions concerning trafficking and the presumption of innocence in favour of the accused. I will have more to say about this later but it is important to state here that the prosecution case relies to a large extent upon inferences arising from established facts. It is always much more difficult to establish inferences in the manner and to the extent required where the forensic approach at the relevant time is a little muddled. That is the case here. In my view an essential feature for me in this consideration of the evidence is the reliability of that evidence.
Fifteen exhibits were tendered and it is appropriate that I set out a description of them as follows:
1.Exhibit P1 is a knife seized from the accused at the time he was apprehended by the police riding his bicycle;
2.Exhibit P2 is a bundle of seven photographs of items seized by Constable Schar;
3.Exhibit P3 is the Samsung mobile phone which was seized by the police during the search of Montrose Street;
4.Exhibit P4 is a record of police property exhibits which identifies all of the items seized by police that relate to this matter, both at the time of the accused’s apprehension and during the search of Montrose Street. This record also identifies Officer Boyd as the Case Officer and Exhibit Officer;
5.Exhibit P6 is a disc marked Electronic Crime Section 2013-0641, which contains information extracted from the mobile phone (exhibit P3) by the Electronic Crime Branch of the South Australian Police;
6.Exhibit P7 is a bundle of three photographs of the accused taken at the time of his arrest;
7.Exhibit P8 is a document sent by Telstra to the State Intelligence Branch of the South Australian Police. The information in this document relates to the SIM card number of the SIM card found inside the mobile telephone exhibit P3, and it was submitted to Telstra by Officer Boyd. Amongst other material, this exhibit identifies the “service name” as JEISMAN, BRETT and that the service is a prepaid service;
8.Exhibit D9 is a Prisoner Screening Form completed and signed by Officer Boyd at some point after he conducted an interview with the accused at the police station. The form contains observations Boyd made of the accused and questions he asked him at this time. Of significance in this trial is that Boyd circled the section of the form which indicates that he believed that the accused was under the influence of drugs at the time;
9.Exhibit P10 is a disc marked “Brett Jeisman ROI copy” which is a copy of the record of interview with the accused on the day of his arrest;
10.Exhibit P11 is a photocopy of the handwritten notes taken by Officer Yan in respect of the search of Montrose Street on 5 January 2013, with the relevant sections highlighted in yellow;
11.Exhibit P13, which was tendered by consent, is a schedule which includes a reproduction of a selection of text messages extracted from the memory of the phone that was examined by Senior Constable Jennings (exhibit P3). Message number 16 was deemed by me as being inadmissible.
12.Exhibit P14 is a Certificate of Analysis, prepared by Mr Justin Granleese and is dated 21 January 2013. This certificate is in relation to the eight bags found on the person of the accused containing a crystalline substance.
13.Exhibit P15 is a further Certificate of Analysis, prepared by Mr Justin Granleese and is dated 31 July 2013, which relates to a swab taken of digital scales found at Montrose Street.
14.Exhibit P16 is a document containing the statement of agreed facts. I have set these out in detail in the paragraph below.
Agreed facts
The following facts were agreed between counsel. I have regard to these facts as having been proved, without the need for further evidence, pursuant to s34 of the Evidence Act:
Mobile Phone
1. On 5 January 2013 police seized a black Samsung GT-S5360T mobile telephone containing a Telstra SIM card and a 2GB Micro SD memory card from Montrose Street.
2. Data was extracted from the black Samsung GT-S5360T mobile telephone, the Telstra SIM card and the 2GB Micro SD memory card and burnt to a disc, exhibit P6.
3. A total of 222 messages were extracted from the memory of the mobile telephone.
4. A selection of SMS messages extracted from the telephone is reproduced in exhibit P13.
5. A video file that depicts the accused having sexual intercourse with a female who was operating a mobile telephone was extracted from the 2GB Micro SD memory card (file name video-2012-11-07-23-53-02).
6. A video that depicts the accused sitting in a room next to a naked woman who was operating a mobile phone was extracted from the 2GB Micro SD memory card (file name video-2012-11-07-23-53-02).
Forensic analysis
1. The contents of the eight plastic bags containing crystals that were seized from the accused on 5 January 2013 were analysed at the Forensic Science Centre of South Australia.
2. The results of the analysis of the contents of the eight bags are set out in the Certificate of Analysis of Justin Yorke Granleese dated 21 January 2013, exhibit P14.
3. The digital scales seized from Montrose Street on 5 January 2013 were submitted to the Forensic Science Centre of South Australia.
4. The results of the swab taken from the surface of those scales are set out in the Certificate of Analysis of Justin Yorke Granleese dated 31 July 2013, exhibit P15.
The Prosecution Case
Police witnesses and their evidence
The police witnesses who gave oral evidence were as follows:-
Constable Matthew Schar (Schar). Schar observed the accused leaving Montrose Street on a bicycle. In the company of Constable Boyd, he stopped and searched the accused and located a knife and a cylindrical container containing small plastic bags, some of which contained a crystalline substance.[14] Schar then conveyed the accused to the Port Adelaide Police Station and arranged for Detective Sergeant Gale and Senior Constable Rush to attend Montrose Street to conduct a search. Schar was present during the police interview with the accused and came into the possession of $310 cash that was provided by Boyd.[15] Boyd had seized the cash from the accused. The cash had been found in a wallet on the person of the accused. After the search of Montrose Street was completed, the items seized from the search, which included digital scales, a mobile phone and a bandana, were returned to the Port Adelaide Police Station and were booked into the Police Property Management System by Schar.[16] Gale described to Schar how the items were found at the premises, but she did not tell him where they were found. Schar only entered the address into the system in relation to the seized items.
[14] T45.5-8.
[15] T48.27-28.
[16] T49.10-38.
Constable Joel Boyd (Boyd), who is the Investigating Officer in this case, in the company of Schar observed the accused walking out the front door of Montrose Street.[17] Boyd was present when the accused was searched by Schar. The accused was then arrested and Boyd thereafter assisted Schar with taking the accused back to the Port Adelaide Police Station. Boyd located the accused’s wallet and provided the $310 cash within the wallet to Schar.[18] Boyd then conducted the police interview with the accused in the presence of Schar. Boyd submitted eight resealable bags containing a crystalline substance found on the person of the accused and a set of digital scales located at Montrose Street to Forensic Science SA for testing.[19] Boyd also took the mobile telephone found at Montrose Street from the Police Property Management System to the State Intelligence Branch of SAPOL.[20] Boyd gave the SIM card found within the mobile telephone, the mobile telephone number and the name of the person who the police believed to be the holder of that number to Telstra.[21] Boyd confirmed that Schar was tasked with taking all of the items seized from the search to the police station. In addition, Boyd completed the Prisoner Screening Form for the accused at the police station.[22] As part of completing this form, he circled the entry on the form that (on his assessment) the accused was under the influence of drugs. Boyd confirmed that no drug swab test was conducted following the accused’s arrest.[23]
[17] T57.26-27.
[18] T58.11-12, T58.21-24.
[19] T62.2-6.
[20] T62.29-31.
[21] T64.10-18.
[22] T107.20-27.
[23] T109.8-10.
Exhibit P10 is a copy of the record of interview between the accused and the police that occurred at the Port Adelaide Police Station on 5 January 2013. A viewing of the record is instructive. During the interview the accused appears to be affected presumably by drugs. He looked dishevelled and unkempt. His speech was slurred. He did not sit upright properly. He answered questions from the police in an almost dismissive fashion. He was able to tell the police that at that time he had no fixed abode. He said that he sometimes stayed at Montrose Street, the house occupied by his girlfriend Lisa. Although it is clear from the content of the interview between the accused and the police that the accused has no fixed place of abode, the address at Montrose Street was the only place of abode that the accused was able to nominate on that day. The answer given by the accused that he “sometimes” stays at that address must be understood in that background. And he had certainly been at that address on that day because the police had the house under observation and arrested him after he left the house. Despite all of that, the accused had a large amount of cash in his wallet at the time of his arrest.
Detective Brevet Sergeant Joanna Gale (Gale), who was the holder of a general search warrant and as the most senior police officer present, took the lead in the search of Montrose Street on 5 January 2013. Gale stated that the police gained access to the premises through an open window. Gale only searched one room, being the room she believed was the main bedroom.[24] In this room she located a set of scales and a face mask.[25] Gale asked one of the police officers involved in the search to be the Property Officer or Exhibits Officer who would be responsible for managing all of the items found and seized during the search, however she could not remember to whom she gave this role. Gale confirmed that the police officers searched different sections and rooms of the house for efficiency purposes. She gave further evidence that after the search was completed the officers were “rounded up” to discuss what was found. Gale was made aware of items found, including a mobile telephone.[26] She stated that there were no notes taken in relation to which officer found each of the items and where in the premises they were found. The reason given by Gale for her not taking notes was that she expected the other officers to take notes of where they found the items. She was also unaware of any video or photos found on the mobile telephone seized. Gale believed there was a woman residing at the premises, but was not one hundred per cent sure. Her belief was based on her observation of the contents of the bedroom.
[24] T77.4-5.
[25] T77.13-17.
[26] T86.28-31.
Constable Tristan Macdermot (Macdermot) was also part of the search of Montrose Street. Macdermot confirmed that Gale was the holder of a general search warrant for the premises. He conducted a search of the living and kitchen area, where he was given a mobile telephone seized in the house. Macdermot searched the phone looking for relevant evidence and discovered a video of a male and female having sexual intercourse, which included close up shots of genitalia.[27] During cross-examination Macdermot gave evidence that the search took 20 to 30 minutes and that the police gained entry to the premises through an open window which led into the kitchen/dining/living area of the premises.[28] Macdermot did not take notes during or after the search; he could not recall whether there was a designated Exhibit Officer; he could not describe how many rooms were in the house; and he did not come across any other personal items during the search, aside from being given the mobile telephone. Whilst watching the videos on the seized mobile telephone, he could not see the faces of the two individuals engaging in sexual intercourse and it was not clear to him whether or not it had been downloaded from the internet. Macdermot gave further evidence that he was aware that drugs had been found on the accused during a previous search of his person and upon his apprehension.[29]
[27] T91.13, 15-18.
[28] T94.4-9.
[29] T101.35-37.
Constable Sacha Yan (Yan) was also part of the search of Montrose Street. Yan searched a western bedroom towards the front of the premises, and did not locate any items of interest in this bedroom or anywhere else in the house.[30] He did observe items seized by other officers, including a cannabis bong, a black bandana, a small set of scales and a black coloured mobile telephone.[31] During cross-examination Yan gave evidence that the police officers arrived at the premises at 7.30pm and that the entire search took 30 minutes. He also stated that the police gained access through an open window in the kitchen/lounge area. Yan confirmed that Gale had led the search and had indicated to him which room he was to search. He was not told if anyone else resided in the premises, but the second bedroom had belongings in it consistent with someone living there. Yan gave evidence that at the completion of the search, all of the officers were in the kitchen area of the premises in a group situation. He did not remember who was holding the items that were found. Yan did not transfer any of the seized items back to the police station. He gave evidence that he thought that Macdermot did not find the mobile telephone and that he did not think the pornographic video was relevant to the drug search.
[30] T113.14-15.
[31] T113.34-36.
Senior Constable Ciaron Rush (Rush) acting in a supervisory role, attended Montrose Street to assist with the search under the general search warrant. Rush recalled a mobile telephone being found,[32] but was never told about a pornographic video found on it.
[32] T125.21.22.
Senior Constable Grant Jennings (Jennings) who gave evidence relating to the data extracted by him from the mobile telephone seized from Montrose Street and the SIM card that was found inside the telephone. Jennings gave the following evidence in relation to SIM cards:
oThey are means by which a telephone connects to the network and identifies the caller;[33]
oIt is not possible to make calls (except for “000”) without a SIM card;[34]
oThey have a particular ICCID identification number;[35] and
oIt is possible to store incoming and outgoing messages on both a SIM card and the internal phone memory.[36]
[33] T148.7-9.
[34] T148.13.
[35] T148.24.
[36] T148.38-T149.1-6.
He stated that as part of the data extraction process, the unique ICCID number is produced and burned on to a disc. In relation to files produced using a camera on a telephone, Jennings gave evidence that there is a default setting used when creating names for the files, which often relates to the date and time when the file was created.[37] He stated that the file name for the pornographic video in question suggests that that the video was taken at 9:43pm on 9 November 2012.[38] During cross-examination Jennings gave evidence that contacts are unlikely to be kept on the memory card of the mobile telephone.
[37] T150.32-33.
[38] T151.2-4.
Constable Anthony Costalos (Costalos) was also part of the search of Montrose Street. He searched a second bedroom and the laundry. Costalos also gave evidence that the search took between 20 to 30 minutes. He did not personally locate any items to be seized and did not observe anyone in possession of other seized items.
Detective Brevet Sergeant Tiss (Tiss) gave expert evidence about his experience in detecting drug-related crime, and methylamphetamine in particular. He said:
oMost methylamphetamine investigations involve some investigation into communication and often seized mobile phones;[39]
[39] T164.18-22.
oThere are numerous names for methylamphetamine including speed, ice, rocks, shards and coal;[40]
[40] T166.13-16.
oAs at January 2013, the purity of methylamphetamine that was found was usually between 10 – 100%;[41]
[41] T166.23 - the transcript records a range of 10-8%. This is a typographical error. The range given in evidence was 10% to 100%.
oThe white crystalline substance seen in the plastic zip-lock bags in exhibit P2 appeared to be something marketed as “ice”;[42]
[42] T167.7-8.
oMethylamphetamine is usually packaged in plastic zip-lock bags which are sometimes referred to as “money bags”;[43]
[43] T167.14.
oIt is not uncommon to have plastic zip-lock bags with insignias, like the bags seen in exhibit P2, and they are usually a quirk of the specific dealer;[44]
[44] T167.31-36.
oThe way in which methylamphetamine is packaged depends on the amount of the substance being sold;
oMethylamphetamine is commonly sold in one gram portions in resealable plastic bags;[45]
[45] T168.24-26.
oA common deal size is 0.1 of a gram which are commonly known as “points” or are referred to by the price which can be anywhere from $50 - $100;[46]
[46] T169.5-10.
oSome street level dealers will deal amounts of methylamphetamine smaller than 0.1 grams because the buyer cannot afford a full point[47]
[47] T169.23-35.
§0.05 grams (half point) – it would be unusual for a dealer to sell such a small amount
§0.07 grams – this would cost somewhere in the vicinity of $50
oThe price of methylamphetamine can fluctuate due to a number of market factors such as supply and demand;[48]
[48] T170.22-26.
oDuring searches of premises relating to methylamphetamine dealing, police commonly find amounts of cash, plastic resealable bags, scales, mobile phones, SIM cards and plastic tubs;[49]
oElectronic scales similar to those seen in photograph 7 of exhibit P2, are often found in association with drug dealers who use them to weigh amounts of methylamphetamine they are packaging;[50]
oUsually the way a dealer will avoid detection by the police is to use many mobile phones, many mobile phone numbers and pre-paid SIM cards;[51]
oIt is not uncommon for drug dealers to carry illicit weapons as they are often carrying cash and drugs of value;[52]
oA very heavy user of methylamphetamine would use 4 to 5 points per day;[53]
oMethylamphetamine tends to be an addictive drug, so people may find themselves wanting to use the drug more and more;[54]
oWhen communicating over the telephone and using SMS, some dealers communicate in ordinary language, others use code:[55]
§There are certain phrases and codes used to arrange deals and amounts – e.g. asking to catch up for a coffee;
§If the dealer replies “yes”, it can be a positive response that they can come and buy the drugs from them.
[49] T172.12-17.
[50] T172.25-26.
[51] T174.16-25.
[52] T175.19-27.
[53] T176.16-18.
[54] T176.26-31.
[55] T177.21-22.
Tiss was shown exhibit P13, which is a schedule of messages extracted from the mobile telephone seized from Montrose Street. He made the following comments on specific SMS messages and terms:
oMessage 2 – the words “could have got a weighted half for 4 hun” could possibly relate to a weight;[56]
oMessage 3 – the term “rock” is a term used to describe the appearance of methylamphetamine or ice;[57]
oMessage 4 – the term “lollies” is a term more commonly used for the drug ecstasy or drugs marked as ecstasy; and the number “150” could relate either to the quantity the purchaser wanted to obtain or the amount of money worth of crystal methylamphetamine;[58]
oMessage 25 – term “3 hund” could be a request for $300 worth of a particular drug;[59]
oMessage 36 – the content of this message is consistent with a dealer letting a purchaser know that they have drugs of good quality available.[60]
[56] T178.34-35.
[57] T179.12-14.
[58] T179.33-36.
[59] T181.20-25.
[60] T183.10-12.
Issues of proof
I now turn to the issues of proof. The central issue is whether it has been proved beyond reasonable doubt that the accused trafficked in methylamphetamine.
Method of search
Ms Stephens referred to the police search of Montrose Street as a “slap-dash” and quick search. The focus of this submission was that it was not possible to form a view that the accused resided at or, for that matter, had any connection to the house and therefore anything in the house. For the reasons which follow, I am unable to accept that submission as the evidence put before the Court militates to the opposite conclusion.
The police searched the premises under a general search warrant held by Detective Brevet Sergeant Gale. There was no house plan tendered during the trial. From the evidence given by police officers Gale, Macdermot, Yan, Rush and Costalos, it was difficult to get a clear understanding of the physical layout of the house. Each of the officers informed me that they searched different parts of the house for efficiency purposes. It appears that there were at least two bedrooms and also a living/dining area which was in an “L” shape.
During cross-examination Gale gave evidence that she did not take notes in relation to which officer seized each of the items (mobile telephone, electronic scales, black bandana and cannabis bong). The reason she gave for not taking notes was that she expected her fellow officers to take their own notes in respect to what items they had found,[61] but she gave no evidence that she was aware of whether that was occurring or that she made sure that it occurred.
[61] T84.15-17.
Gale also said that she asked one of the attending officers to nominate as the Property or Exhibit Officer, however she couldn’t remember who, if anyone, had nominated themselves. On exhibit P4, Constable Boyd is listed as both the Case Officer and Exhibit Officer. This was not drawn to my attention by either counsel during the course of the trial. It is not clear if Boyd knew or understood that he was the nominated Exhibits Officer. He gave no evidence to that effect.
None of the officers were able to identify the specific location where the mobile telephone was found or who found it. Macdermot can recall inspecting the mobile telephone within the house, but could not recall how he came into possession of it. I am satisfied beyond reasonable doubt that the phone was found in the home but I am unable to make any finding about who found the phone or where it was found.
Resolution of those criticisms
Although the method of the search was not satisfactory, from the evidence given by the police officers, in combination with the agreed facts, I am satisfied that the evidence given about the search is reliable and I am also satisfied beyond reasonable doubt of the following facts arising from or in relation to the search:-
1. Police seized a black Samsung GT-S5360T mobile telephone (exhibit P3) containing a Telstra SIM card and a 2GB Micro SD memory card from one of the rooms of Montrose Street;
2. Gale located and seized small electronic scales from the main bedroom of Montrose Street;
3. The accused resided from time to time at Montrose Street with his girlfriend Lisa, having said on 5 January 2013 to the police that he had no fixed place of abode.
Essential pieces of evidence
It is plain that the case for the prosecution relies on circumstantial evidence. Circumstantial evidence involves the drawing of inferences. On a circumstantial evidence case, the accused’s guilt must be the only rational inference which can be drawn from that circumstantial evidence. In doing so, those same circumstances must exclude any reasonable hypothesis other than the guilt of the accused. It follows that if there is a reasonable explanation of the circumstances which is consistent with the innocence of the accused, he must be found not guilty because that reasonable explanation would be sufficient to constitute a reasonable doubt. Similarly, if an inference or hypothesis which is consistent with the innocence of the accused is open on the evidence then the accused must be given the benefit of that doubt and in that respect, one circumstance in the accumulation of a series of circumstances is all that is sufficient.
It is not the end of the matter that there may be a reasonable possibility that there is some other circumstance inconsistent with the guilt of the accused in respect of the charged offence. If that is the case, then that possibility could then be excluded by the prosecution beyond reasonable doubt and if the prosecution is able to achieve that position, then I may be satisfied beyond reasonable doubt that the circumstances therefore exclude any reasonable hypothesis other than the guilt of the accused.
The relevant principles that operate here are as follows:-
1. In determining whether an inference is reasonable, I must consider the evidence as a whole;
2. A reasonable inference can be drawn from a combination of facts (usually described as threads or strands) none of which used alone would support that inference;
3. I am not required to (but I may) analyse each circumstance individually;
4. The individual primary facts used to establish guilt need not of themselves each be proved beyond reasonable doubt in order for guilt to be established beyond reasonable doubt;
5. Even though one particular circumstance considered alone, does not give rise to any reasonable inference of guilt, it is not necessary to reject that circumstance but to consider its weight in the context of the weight to be given to it in the context of the united force of all of the circumstances put together. One disparate piece of evidence may resolve the doubt about another piece of evidence;
6. It is not the case that my task is merely to attempt to accumulate all of the relevant pieces of circumstantial evidence. There is a distinction to be made between an accumulation of circumstances in which the individual circumstances need not of themselves be proved beyond reasonable doubt and cases where guilt is proved by sequential reasoning in which the intermediate facts must be proved beyond reasonable doubt.
7. What is necessary for a conviction is that I reach a conclusion that the accused is guilty of the offence charged beyond reasonable doubt by virtue of the combined force of the circumstantial evidence that I find proved; and
8. It is not for the defence to establish some inference other than guilt should reasonably be drawn from the evidence nor is it necessary for the defence to prove particular facts that would tend to support such an inference. If the evidence, viewed as a whole, is susceptible of a reasonable alternative explanation, then the accused is entitled to be acquitted.
Here, the case as presented by the prosecution against the accused is based upon the inferences that arise from the accumulation of circumstances and, the prosecution contends, does not require the prosecution to prove every fact and every piece of evidence relied upon beyond reasonable doubt in order to prove circumstantially that the accused was guilty of the offence charged. In light of the criticisms that I have made of the search by the police I have had particularly close regard to all of the items of evidence led by the prosecution that form the strands that may or may not lead to the inference sought to be proved beyond reasonable doubt – being the intermediate facts proved by sequential reasoning.
In my opinion, I am in a position where I may properly draw the necessary inferences leading to a verdict in this matter (i.e. proof beyond reasonable doubt) or alternatively dismissal of the charge, having regard to the whole of evidence admitted in this trial. In that context, I remind myself again that no burden falls upon the accused and the entire burden falls upon the prosecution.
In this case the prosecution relies on the following six pieces of circumstantial evidence:-
1. The mobile telephone, its content and the associated evidence relating to it;
2. The $310 found on the person of the accused;
3. The knife (exhibit P1) found on the person of the accused;
4. Digital scales found at Montrose Street;
5. The quantity of methylamphetamine found on the person of the accused;
6. The method of the packaging of the methylamphetamine in J-bags, in the plastic container found on the person of the accused.
I will now proceed to consider each of these pieces of circumstantial evidence separately.
Mobile telephone
As I have already stated, I am satisfied beyond reasonable doubt that the Samsung mobile phone tendered (exhibit P3), was the mobile telephone seized from Montrose Street on 5 January 2013. The issue in contention is the identity of the owner and user of this mobile telephone. The evidence relating to the mobile telephone can be broken down under the following sub-headings:
The SIM card and the Telstra Corporation subscriber check
Jennings gave evidence in relation to SIM cards generally. He informed me that a SIM card has a unique identification number known as an “ICCID”. After the mobile telephone had been seized and stored in the police Property Management System, Boyd requested that Telstra Corporation undertake a “subscriber check” based on the ICCID number on the SIM card extracted from the mobile telephone. The information generated by this check can be seen in exhibit P8, the document sent by Telstra Corporation to the State Intelligence Branch of SAPOL. This document identifies the accused as the registered prepaid account holder at the time of the alleged offending. It is not in dispute that the accused purchased the SIM card. Ms Stephens submitted that the mobile telephone and the associated SIM card were purchased by him for his girlfriend Lisa. No direct evidence was led about this contention but that can be put to one side as no burden falls upon the accused in terms of proof. I reject this as a reasonable possibility for the reasons that follow.
The SMS messages extracted from the phone
The Prosecutor tendered a schedule of SMS messages extracted from the mobile telephone by consent (exhibit P13). The Prosecutor asked me to draw various inferences from representations made within these SMS messages. I will consider these messages in detail. When taking into account these messages, I have considered the expert evidence given by Tiss.
It is necessary for present purposes to also state that I will use neutral expressions in describing the “sender” or the “recipient” of these messages. There is no doubt that the messages were sent and received through this phone. The questions for resolution is what inference arises (if any) about the user of the phone (proved beyond reasonable doubt) and then what (if anything) is proved beyond reasonable doubt from the content of the messages. I do not intend to continually restate that this is the approach that I am taking in this matter in my consideration as follows of the relevant evidence.
Messages 1 & 2
Message 1 (incoming from unknown contact) – “I know ya phone is on dont avoid this shit. Its your fuckup so fix it. If you want me to come to your unit in hamstead gardens it wont be a problem” (2.01.56 am)
Message 2 (outgoing to unknown contact) – “Its not my fuckup I told ur son they were street deals not points and if you had been able to wait a bit I couldve got a weighed half for four hun so if ur keen to cum to ur sense that would be good if not im at home” (2.07.35 am)
It was submitted by the Prosecutor that these two messages form a conversation and relate to a customer complaint and that the user of the phone is holding themselves out to be someone who deals in quantities of drugs, other than a “point”. There is generally a consistent feature about these messages, which is the time at which they were sent or received. There are some exceptions. The time of the receipt in transmission of the messages is disclosed below.
Message 2 refers to “street deals not points”. The evidence given by Tiss was that a common deal size is 0.1 of a gram, which is commonly known as a “point”. Another reference in Message 2 to “couldve got a weighed half for four hun” is to be read as a reference to the weight of drugs, the cost of the drugs or both. In particular, it introduces the notion of weighing and providing an amount described as a “half”.
Message 3
Message 3 (incoming from Ashbobsmate) – “Hey mate anychance u hav wheels i want 150 of that rock” (1.21 pm)
This is an incoming message. The Prosecutor submitted that the sender of the message is interested in purchasing $150 worth of methylamphetamine.
Tiss informed me that the term “rock” is often used to describe the appearance of methylamphetamine or by another commonly used term, “ice”. I accept that evidence. It was not seriously challenged. This term, when used in combination with the number 150 appears to indicate that the sender is looking to purchase a specific quantity of the “rock” substance. Consistent with the approach of message 2, message 3 speaks of an amount of methylamphetamine in money’s worth and not measured by weight.
Message 4
Message 4 (outgoing to Boyzes) – “U want those lollies we need to square up or ive found sumone else who wants them they hav to go today and there 50s” (12.10 am)
This is an outgoing message. The Prosecutor submitted that this is evidence that the owner and user of the mobile telephone is holding himself/herself out to be someone who can source and sell ecstasy tablets. According to Tiss, the term “lollies” is commonly used as a reference to ecstasy or drugs marked as ecstasy. I accept that evidence. It was not seriously challenged.
I am satisfied and I accept that this message refers to the availability of ecstasy tablets and the need for payment (“square up”) for their sale as there are other potential purchasers in the market.
Messages 5, 6, 7, 8, 9 & 10
Message 5 (incoming from Kimnew) – “Do u have a car yet” (7.17 am)
Message 6 (outgoing to Kimnew) – “Depends” (7.18 am)
Message 7 (incoming from Kimnew) – “On if i have cash or not? I don’t :(” (7.19 am)
Message 8 (incoming from Kimnew) – “Can pay u back on 17th if i get ton today plus 50 of the 75 and owe 25. Can u do it for me plz” (7.20 am)
Message 9 (incoming from Kimnew) – “Matt starts paying me more on 17th so i am ok with paying u back now” (7.21 am)
Message 10 (incoming from Kimnew) – “I got a dollar, can be there in 10.” (7.22 am)These messages form a conversation between the user of the mobile telephone and a contact identified as “Kimnew”. The sender is enquiring of the user of the mobile telephone where a response appears to be contingent on whether the sender Kimnew has cash for the delivery. It was submitted by the prosecution that the discussion indicates that Kimnew is trying to establish a payment plan and that this relates to the purchase of drugs.
Message 11
Message 11 (Incoming from Jay) – “No paper. Not well… U? Wanda… Don’t care… going back to bed. Pop in see me when U can.” (11.31 am)
This message is then followed by a series of other messages that make a similar reference to “paper”. I accept the evidence of Tiss on the subject of the meaning of the word “paper” that the reference to “paper” is a reference to money and the question of whether or not “paper” is available is connected with questions of whether the credit is or is not to be given. That becomes particularly obvious when the further messages on that topic are considered.
Messages 12, 17 & 18
Message 12 (outgoing to Jay) – “I need paper today” (12.50.38 am)
The Prosecutor submitted that message 12 indicates that the user of the phone requires money. There are additional references to paper in messages 17 and 18.
Message 12 is a response to the message from “Jay” in message 11. An ordinary reading of message 11 is that Jay does not have any money and is disinterested in the issue: the recipient of the message may come to “Jay”. An ordinary reading of message 12 is that the recipient wants the money outstanding paid “…today…”.
Message 17 (outgoing to C) – “U get my paper yet my mate is flippin out at me” (1.02.55 am)
Message 18 (outgoing to C) – “Ans ur phone mate we need to sort this out asap as friends u get my paper organized and plenty more u can have no worries” (2.06.12 am)In my view, the inference that quite obviously arises in this evidence is that the recipient of the message, “C”, has been given credit and that the recipient’s and the sender’s creditors must be satisfied.
This refers to both the payment and to the prospect of further trade. I am satisfied that this is the only inference that arises on this evidence.
I reiterate that Tiss gave evidence that the term “paper” is commonly used in the drug trade as a word for cash. I accept that evidence. It was not seriously challenged.
Message 13
Message 13 (incoming from Julie Denninh) – “Hey B n L tyres just got left on my drive way HAPPY NEW YEAR lv jx.” (8.53 am)
Ms Stephens paid particular attention to this message and that “B n L” was to be understood to mean “Brett and Lisa”. This, according to Ms Stephens was how the message was to be understood: as addressed to those two people. She submitted that the message is addressed to two people, “B” and “L”. This was indicative that both of these people can be contacted through the mobile telephone. Ms Stephens submitted that this evidence is to be understood to mean that the mobile telephone was purchased for the accused’s partner Lisa and was used by her. My understanding of the submission was that this was to be considered as a reasonable possibility arising on the evidence before the Court. Ms Stephens then submitted that even if I was to find that the accused was a user of the mobile telephone, it is equally open to find he and Lisa (“L”) were contactable on the mobile telephone. It follows, on this argument, that the accused was not the sole or continuing user of the telephone.
I am unable to accept that submission. Accepting that “L” refers to Lisa, who is the lessee or owner of the house premises and with whom the accused spent some time, a reference in a text message to both the accused and “L” does not raise as a reasonable possibility that the accused was not the sole or continuing user of the phone. To the contrary. An ordinary reading of the message is that it is directed to both the accused and Lisa. It is to be assumed on this argument that “B” is the first initial of the accused’s name (Brett John Jeisman). It is directed to his initial first (“B n L”) from a Julie. It is not directed to Lisa with a reference to “B” or to “Brett”. As a matter of ordinary common sense and in the usual course, if Julie was communicating with Lisa as the continuing user of the recipient phone then it is to be expected that the person to whom the message would be directed would be Lisa. The evidence is to the opposite effect and thus is especially important because the state of the evidence is that this message appears to be social in nature. It stands in contradistinction to the other messages.
Message 14
Message 14 (incoming from Ivan Chicago) – “Merry happy new year bro. Its ivan. Just wunderin if there is any good newz
? If there is can we catch up?
Holla bak . Ivan Milat.” (2.38 am)It was submitted by the Prosecutor that the sender of this message is interested to know if the user of the telephone has drugs to sell, through his use of the expression “can we catch up”, which was or may be another reference to drug dealing based on the evidence of Tiss.
It may be understood that the name Ivan Chicago is a pseudonym. Importantly the message addresses the recipient as “bro”, a male appellation. I accept the evidence of Tiss, that was not seriously challenged, that the expression “can we catch up” is a common reference associated with drug dealing. It is commonly used when a purchaser is enquiring about meeting with the supplier. That reference appears to be incorporated in the reference to “good newz”. Very soon after this message was sent to the phone by “Ivan Chicago”, (and in the absence of any response to it), another message was sent by “Ivan Chicago” to the phone at 2.43 am as follows: “I’ll take that as no gd news. Sorry i have bothered u. Hav a gd new year”. It is apparent that the expression “good newz” is a euphemism and has some onomatopoeic quality about it when considering the expression “use”.
Messages 20, 21, 22, 23, 24, 25 & 32
Message 20 (incoming from Rat Lisa) – “Ay you awake” (3.01 pm)
Message 21 (outgoing to Rat Lisa) – “I’m up” (3.01 pm)
Message 22 (incoming from Rat Lisa) – “Get ready to look up, up up in the sky lol” (3.03 pm)
Message 23 (incoming from Rat Lisa) – “Fuck the bag caught alight an the pigs went past just as I put it out will do another” (3.10 pm)
Message 24 (incoming from Rat Lisa) – “Fuck it I got the wrong bags haven’t done one for awhile need the real cheap and very thin an light ones the biggest ya can get and hey what a night for it still as, it would go straight up into space” (3.39 pm)
Message 25 (incoming from Rat Lisa) – “Hey I going to go see the bloke this weekend so ya reckon you could round that 3 hund up and wouldn’t mind another piece of licorish and keep one aside for me neighbour as he will swap for paper ok cheers tomoro night will be safe ok” (6.06 pm)These messages are from a sender saved in the mobile phone as “Rat Lisa”. The Prosecutor submitted that this is significant as the accused admitted during his record of interview that he sometimes resides with his girlfriend “Lisa”. In addition, Lisa was the lessee of Montrose Street. It discloses, on this argument, that Lisa is making contact with this phone, from another mobile phone.
It is informative to read these messages together. I refer to message number 25. It refers to money (3 hund and paper) and what appears to be a euphemism for drugs (“licorish”) and that “tomorrow night will be safe”.
It requests a piece of “licorish” [sic] to be kept aside “for me neighbour as he will swap for paper ok…” The importance of this phrase is the inclusion of the reference to “paper”, which is to be understood as a reference to money according to the evidence of Tiss. There is an obvious reference here to a transaction involving the neighbour of “Rat Lisa”.
Messages 26 & 32
Message 26 (incoming from Johnmormon) – “Hey can u hurry up with car cause steves got to pick up corey cheers brett” (2.14 am)
Message 32 (incoming from Rat Lisa) – “Brett come round the back way ok watch out for mad dog lol” (11.09 pm)Both of these incoming messages contain the first name of the defendant, “Brett”.
This evidence is indicative of the accused’s use and control of this phone.
Message 29
Message 29 (incoming from Darren Steve) – “Jst spoke wth dad & i can go get it, but im rooted if u can get me somthn .got $, ill go soon as see u & sister drop me to u let me know have ph him & say yes r no” (5.18 am)
The Prosecutor identified this message as an indication that the sender is enquiring about whether the user of the phone has something to sell.
This message is responded to at message 33 which reads:
Message 33 (outgoing to Darren Steve) “Are U far bro I mean to go out idle time costs me” (4.14 am)
The expression “ idle time” is quite obviously a reference to time that is wasted. At 4.14 am the sender of the message is suggesting that idle time costs (money). It is hard to think of what trade the recipient could be involved in at 4.14 am that would lose money due to delay apart from, for example, taxi driving but there is no evidence on the topic. Thus the message is to be assessed at face value.
Messages 34, 35, 36 and 37
Message 34 (outgoing to Tamara Mitchell) – “Watya up to its Crashy” (4.48.40 am)
Message 35 (incoming from Tamara Mitchell) – “I’m trying to get some sleep i been out all night im fucked but i should be right after sleep can catch up tonite if u like” (4.48.40 am)
Message 36 (outgoing to Tamara Mitchell) – “I got sum killer ice” (4.45 am)
Message 36 (incoming from Tamara Mitchell) – “oh well just give me a bit of time get away at home with my man here for a bit” (4.52 am)
The name of the phone user describes himself as “Crashy”, not for example as Lisa. It is a message to Tamara Mitchell asking what she is up to. I make particular reference to the expression “Crashy”. Elsewhere within the bank of messages is a reference to a “C” (see messages 17, 18 and 19). It is pertinent that these are all outgoing messages and therefore in those instances “C” is the user of the phone. She responds in message 35 (at 4.48 am) and suggests a meeting that night. Two minutes later at 4.50 am the phone records an outgoing message to Tamara Mitchell as follows: “I got sum killer ice…” Two minutes later at 4.52 am Tamara Mitchell responds expressing her interest and needing some time to get free. This is to be compared with the earlier message that Tamara Mitchell would not meet with “Crashy” until that evening.
The Prosecutor submitted that the above messages, when viewed together and with the rest of the circumstantial evidence, lead to the conclusion that the accused was the user of the mobile telephone and that he was in the business of selling drugs, including methylamphetamine. In my opinion, there is no doubt that the user of the phone is engaged in the trafficking of drugs. It is also my opinion that the person using the phone and sending and receiving the messages is a male person. The appellations are all male. The involvement of females is limited to senders of messages to the phone, or receiver of messages from the phone with only one (to “B n L”) involving the person Lisa (by deduction). There is also the reference to “Rat Lisa” in some of the incoming messages from another mobile phone. Added to all of those matters are the scattered references to Brett, the accused’s Christian name within the messages.
The videos extracted from the mobile phone
It is an agreed fact set out in exhibit P16 that the two videos extracted from the mobile telephone both depict the accused engaged in sexually explicit acts with a female person. In my view, there is an obvious significance in the storing of this material on the phone. The videos identify the plaintiff and they are explicit.
Location of the mobile telephone not on the accused’s person
The mobile telephone (exhibit P3) was found at Montrose Street during a police search. Therefore, the accused did not have the mobile telephone on his person when he was apprehended by Boyd and Schar. Ms Stephens submitted that the inference that can be drawn from this is that he did not take the mobile telephone with him because it wasn’t his or that even if he did use the mobile telephone at Montrose Street, it does not mean that he was the sender or receiver of the text messages found on the telephone. She submitted further that if the accused was leaving the house to sell drugs, how would he have been contactable if he did not have a mobile telephone? Ms Stephens put the proposition that it is reasonably open on the evidence in relation to the mobile telephone that after November 2012, it was no longer used by the accused or that he was no longer the sole user of the mobile telephone. Ms Stephens also identified that there was no DNA evidence or finger prints found on the mobile telephone.
Mr Wilson submitted a number of reasons why the accused may not have had the mobile telephone on his person, including that he may have forgotten it and he may have pre-arranged for the sale of the drugs. He outlined that these reasons are not fatal to me finding that the accused was the owner and user of the mobile telephone and that what is important is that the accused had access to the mobile telephone to organise drug deals.
Exhibits P6, P7 and P10 are important here. I have viewed closely the record of interview (exhibit P10). That audio shows clearly that the accused was then under the influence of some form of drug or alcohol or both. His words were slurred. He did not sit erect. He was dishevelled. He was to an extent, difficult to understand in his speech that could be heard. This interview took place some time after he was apprehended soon after he left Montrose Street on a bike. There is no evidence upon which any finding could be made about why the accused left those premises when or in the way that he did. I will put that to one side on this issue.
One quite obvious answer to Ms Stephens’ submission is that from all appearances at least, the accused may not have had the presence of mind to take the phone with him. He may not have needed to and he was also carrying a dog. In my opinion, the only inference that arises from the agglomeration of that material is that wherever the accused was going on his bike whilst carrying a dog, the presence or absence of the phone on his person was then not significant.
$310 in cash
There was some ambiguity between the evidence given by Boyd and the evidence given by Schar about whether the $310 cash was found on the accused’s person at the time of his arrest or at the police station. Despite that, I am satisfied that the evidence that the sum of $310 was found on the person of the accused was reliable and I am also satisfied beyond reasonable doubt that this money was found on the accused’s person at the time of his arrest. Tiss informed me that large quantities of cash in the same denominations as made up the sum of $310 are commonly found in relation to drug trafficking. It was submitted by the Prosecutor that the cash found on the accused could have constituted profits of prior dealing, or could have been in the accused’s possession in order to provide change to purchasers of the methylamphetamine.
Ms Stephens argued that the possibility is equally open that the accused had the cash on his person in order to purchase more drugs for his own consumption. She submitted further that the denominations found on him were not useful in providing change, and if he had that much cash on him, he would have no need to sell the drugs to make money.
It is not the case that I need to decide between these alternatives and I would not do so. I need to make an assessment of the importance of the existence of this sum of money upon the accused at the time that he said he had no fixed abode but also he had on his person the drugs, in the packages as they existed, and the weapon.
There is nothing available on the evidence to support the argument about the reasonable possibility that the accused was embarking upon the purchase of further drugs. He appeared to the police to be under the influence of drugs (exhibit D9). His record of interview shows that he was affected. He had drugs in his possession at apprehension. In my opinion the reasonable possibility as contended for by Ms Stephens does not arise. I accept the submission of the prosecution.
The knife
A knife (exhibit P1) was found on the person of the accused at the time of his apprehension by Boyd and Schar on 5 January 2013. In evidence, Tiss outlined that the drug trade is dangerous by nature. He told me that it is not uncommon for drug dealers to carry weapons for personal protection.
Ms Stephens argued that there are multiple reasons why people carry knives. She put to me the alternative hypothetical situation of a purchaser unknown to a dealer arriving at an unknown location, and the dealer perhaps ascertaining that the purchaser is under the influence of drugs, is weak, and may attempt to take the money from the purchaser. I obtained no assistance from the expression of this hypothetical situation. Ms Stephens submitted that if that was the case, and if that alternative hypothetical situation is reasonably open, a drug purchaser may also possess a weapon for that purchase so they can protect the money they have on them. I am unable to agree with or accept this submission as being reasonably open. The accused was apprehended in possession of drugs, cash and a weapon and I am satisfied that these were all immanent to the drug dealing of the accused.
Drugs
In relation to the 0.72 grams of methylamphetamine found on the accused’s person, the Prosecutor focussed on the weight, packaging and quantity of the drug. The methylamphetamine was contained in eight of nine resealable plastic bags in varying weights between 0.04 of a gram and 0.29 of a gram. Mr Wilson relied on the evidence given by Tiss that it is not uncommon for drug dealers to sell methylamphetamine in amounts less than “a point”, 0.1 of a gram. I accept this evidence; it was not seriously challenged.
During her closing address, Ms Stephens submitted that the methylamphetamine found on the accused was for his own use. She argued that this submission was supported by the evidence of Boyd who stated that he believed the accused was under the influence of drugs at the time he completed the Prisoner Screening Form (exhibit D9). Ms Stephens challenged the submission of Mr Wilson that the drugs found on the accused were in resealable plastic bags, and that the inference that can be drawn is that they were in these bags for the purpose of selling them. Ms Stephens conceded that drugs can be sold in this form, however, she put the alternative submission that drugs are also purchased in this form. I am unable to obtain any assistance from the fact that the accused appeared to be under the influence of drugs at the time of his arrest. That a person may be a trafficker of drugs is not mutually exclusive of the possibility that such a person may also use drugs (and vice versa). Similarly, as a matter of common sense, a person who uses drugs is not excluded from the ranks of those persons who traffic in drugs.
Digital scales
Gale informed me that she found a set of electronic scales and a face mask (also referred to as a bandana) on top of a dressing table in the bedroom she searched, which she believed to be the main bedroom. The scales were seized from the premises and taken back to the police station.
It was submitted by the Prosecution that the scales are indicative of someone in the drug trade. A photograph of the scales (exhibit 2, photograph 7) was shown to Tiss. He said that scales similar to the scales found by Gale are often found in association with drug dealers who use them to weigh the amounts of drugs they are packaging.
Ms Stephens emphasised the point that Forensic Science SA did not find any traces of illicit drugs on the scales (see exhibit P15). She submitted further that this is unusual for drug dealers who by nature are not careful, methodological people. I accept this submission however the significant thrust of the case for the prosecution is the existence of the scales within the house (at which the accused occasionally resided) together with the mobile phone. Ms Stephens did not, in terms, address this fact and I accept the submission of the prosecution.
Whether the charge is proved beyond reasonable doubt
In my view, the charge brought against the accused has been proved beyond reasonable doubt. In forming my view, I am mindful of the matters that I have set out above in relation to the s34P material (as described in paragraphs [5] to [31] of this decision), the admissibility of evidence issue and the matters that arose on the accused’s Rule 15 application (as described in paragraph [32] to [48] of this decision). It is not necessary for me to repeat here the matters that I have set out earlier in these reasons explaining the decisions that I have made on those matters.
I also remind myself on the questions of burden of proof, the question of inferences and the elements of the offence, all of which are discussed in paragraph [50] to [57] hereof.
As I set out in paragraph [62] of these reasons, it is necessary for the prosecution to prove the following elements beyond reasonable doubt:-
1. The substance in question was a controlled drug;
2. The accused trafficked in the drug by having possession of the drug intending to sell it; and
3. That when the accused trafficked in the drug, he did so knowing that the substance was methylamphetamine or at least that it was a controlled substance.
In relation to the first matter, there is no contest between the parties that the methylamphetamine found in the possession of the accused at the time that he was apprehended was a controlled drug. The two issues upon which this matter turns are the question of trafficking and the knowledge of the accused. The aspect of trafficking is confined to the accused having possession of the controlled drug intending to sell it. There is no doubt that the accused had possession of the controlled drug. The question for my consideration is whether or not the accused possessed the controlled drug with an intention to sell it. In the absence of any evidence from the accused, it is necessary, in order for the prosecution to prove this aspect of the matter beyond reasonable doubt, to do so based upon inferences arising from the evidence. In the view that I have formed, it is necessary that the prosecution prove that the inference claimed by it in respect of the “intention” (as alleged) of the accused to sell the drug was the only inference that arises on the evidence. I have already discussed the question of the issues of other reasonable possibilities as put forward by the accused’s counsel Ms Stephens and I will not repeat those matters.
In the view that I have formed, I am satisfied beyond reasonable doubt that the accused had possession of the controlled drug intending to sell it. I am satisfied, beyond reasonable doubt, by a review of the whole of the evidence, including the agglomeration of the material in evidence before me that the mobile phone found in Montrose Street was the mobile telephone of the accused. The SIM card was in his name. He was the registered user of the phone. The messages on the phone used the male appellation in the communications. The messages on the phone include references to the Christian name of the accused. In my opinion, the messages upon the phone, in that background, relate to drug dealings. I am therefore satisfied that the first piece of circumstantial evidence and the inferences arising therefrom relied upon by the prosecution have been sufficiently proved beyond reasonable doubt.
I am also satisfied beyond reasonable doubt that the sum of $310 found on the person of the accused at the time of his apprehension was money associated with drug dealing. The accused informed the police that he had no fixed abode. He said that he stayed at Montrose Street with Lisa (his girlfriend or partner) on occasions. He was leaving that address at the time of his apprehension. The denominations of the notes comprising the $310 found on the person of the accused at the time generally comprised denominations that are usually found in the possession of drug dealers. In any event, in the circumstances of the accused’s own position, the sum of $310 is a large amount of money.
I am also satisfied beyond reasonable doubt that the knife (exhibit P1) found on the person of the accused is associated with the drug trade. I accept the evidence of Tiss that drug dealers and especially drug traffickers use knives and other such weapons to protect themselves in and about the process of their activities as drug dealers. I have viewed the knife.
Inside Montrose Street, digital scales were found. They were identified by Detective Brevet Sergeant Gale. They were found in the main bedroom of the home. There were no finger prints or traces of drugs found upon those scales. However, in my opinion, the absence of those matters does not detract from the fact that, on the whole of the evidence, digital scales of that nature are usually associated with drug trading. I am satisfied beyond reasonable doubt that these scales are connected with the drug dealing of the accused. They are small scales, in something of miniature form. They are used to weigh very small amounts of material. As Tiss informed me, they are often associated with trafficking in drugs. Ms Stephens did not strenuously contest that conclusion.
I have also taken into account the amount of methylamphetamine found on the person of the accused. One important feature here is that at the time of his apprehension, the accused appeared to be suffering from the effects of the ingestion of drugs. However, on his person, was the plastic cylindrical container containing ten bags, eight of which (marked with the Ned Kelly insignia) contained methylamphetamine. There was 0.72g of methylamphetamine. The drug was divided into various weights, some of which may be described as “half a point” (accepting that often it is the case that such drugs are sold in “point” form (0.1 of a gram). There were some bags that contained more than a point and the reasonable inference arises that the different weights of the methylamphetamine in each bag varied according to requirements of others and not the use of the accused.
Finally, the method of packaging the methylamphetamine in J-bags in the plastic container found on the person of the accused at the time of his apprehension satisfies me beyond reasonable doubt that the accused plainly had an intention to traffic in the drug. The drug was not found in one plastic container or in one J-bag. It was divided into eight J-bags. There was a spare J-bag as well as a larger plastic bag into which all of the J-bags fitted which was then, in turn, fitted into the plastic cylindrical container. In my opinion, this is plainly indicative of a method of distribution of a drug in a trafficking form.
The third element is that it is required to be proved by the prosecution beyond reasonable doubt that when the accused trafficked in the drug he did so knowing that the substance was methylamphetamine.
Earlier in these reasons, I have set out in detail, the considerations relating to the evidence of the text messages. Those text messages include references to very well known euphemisms used by drug dealers relating to methylamphetamine. This includes a reference to “ice”. There are other references that the witness Tiss was of the opinion referred to ecstasy tablets. I leave that matter aside. In my opinion, when one views all of the messages together and particular note is taken of the euphemistic expressions used within those messages, this element of the charge has been proved beyond reasonable doubt. This is because I am satisfied beyond reasonable doubt that the accused was familiar with the drug methylamphetamine found in his possession. I am satisfied that he had dealt with the drug in his possession on 5 January 2013 on those prior occasions. In my opinion, this is the only inference that arises and in my opinion, it is proved beyond reasonable doubt on the whole of the evidence.
I reemphasise that the findings that I have made arise on the inferences which I have also described in these reasons. I have deliberately approached my task on the basis that the background facts in relation to those inferences that I am satisfied have been sufficiently proved. I have also approached my task on the basis that the inferences that I find arise are the only inferences that arise on the evidence. I have deliberately dealt with all of the arguments put by Ms Stephens on behalf of the accused. I am satisfied that the inferences that I have found arise on the evidence are the only inferences that so arise and that all of the intermediate facts as I have described them have been proved beyond reasonable doubt. I remind myself again that no burden falls upon the accused in this regard. I have not imposed any burden upon the accused. I have very closely scrutinised all of the evidence led by the prosecution due to the nature of the prosecution case brought against the accused. Notwithstanding, I am satisfied that the case of the prosecution has been proved beyond reasonable doubt.
In my view, when all of the strands of evidence are ‘joined’ (as I have set out above) then the only inference that arises from this evidence is that the guilt of the accused of the offence charged has been proved beyond reasonable doubt.
Conclusions
I make the following findings:
1. The mobile telephone seized from Montrose Street belonged to the accused;
2. The accused was the primary user of the mobile telephone and he used this telephone to facilitate his drug trafficking activities through SMS messages;
3. The knife found on the person of the accused by the police was to protect him against potential threats he may encounter when taking part in the selling of illicit drugs;
4. The cash found on the person of the accused by the police was in his possession to give change to potential drug purchasers and was cash he received for previous drug deals;
5. The eight resealable bags containing a total of 0.72 grams of methylamphetamine were on the accused’s person for the purpose of trafficking of that drug. I am satisfied that each of the three elements of the offence charged have been proved beyond reasonable doubt.
Verdict
Guilty.
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