R v Kapac - [2005] SADC 22

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v KAPAC
Reasons for Decision of His Honour Judge Muecke
17 March 2005
CRIMINAL LAW
Disputed facts on sentence - whether the accused possessed methylamphetamine for sale and supply and own use or just for supply and own use

R v KAPAC
[2005] SADC 22

At about 3.47 pm on Friday 3 September 2004 police attended at 297 Jenkins Avenue Whyalla. Standing by some vehicles in the driveway to that address in front of a large metal shed was Mark Eden. As police approached Mr Eden, Sean Warren and Stephen Kapac (“the accused”) walked out of the shed.
Upon being told by police that they had information that drugs were on the premises the accused took police into the house and from an overhead cupboard in the kitchen he took a Benson and Hedges cigarettes packet and handed it to police. Inside the packet were 17 small press sealed bags each of which contained a white powder. There was also a larger press sealed bag which contained a small press sealed bag containing remnants of a white powder. Also in the kitchen police found a press sealed bag containing white powder (on a bench top), a packet of Glucodin and a piece of paper with amounts on it. The latter two items were found in an esky under the kitchen breakfast bar. Police also found a small bag of white powder marked “Glucodin” underneath a kitchen bench. Under the mattress of a bed in the main bedroom of the house police found empty plastic bags and $1,600 in cash. They found $300 in cash on the accused. In a rubbish bin at the front of the premises police found four empty plastic bags with powder remnants, a piece of paper, and a piece of paper with amounts written on it. Later police found a piece of paper with names and amounts written on it in the accused’s wallet. Detective Gray described this as a type of documentation commonly known as a credit list and indicative to the trade in illicit drugs.
Each of the 17 powders in the press sealed bags in the cigarettes packet contained methylamphetamine. The powders weighed 4.83 grams in total and contained a total of 0.52 grams of methylamphetamine. That is a concentration of nearly 11%. Methylamphetamine was found in two of the other plastic bags found at the house.
The accused was interviewed by police at the Whyalla Police Station. A video of that interview is Exhibit P2B and a transcript of it is Exhibit P2C. After an appropriate caution the accused was asked about the plastic bags found in the cigarettes packet he had produced for police. He was asked what the substance was that was in the bags and he replied: “Amphetamine I think it’s called.” He said that all the bags were his and he had put them in the cigarettes packet the day before police had visited his house. He said that he had the amphetamine for himself because he was a shift worker, he got burnt out sometimes, and the drug helped him a little bit. He denied selling any of it but when asked if he supplied any of it to anyone he said: “Well I do give some to my mates …”. He said he would do that probably once a fortnight.
The accused said that he had obtained the drug in one big bag the day before. He would ask someone to ring someone else and then go out to somewhere near Mount Laura to pick it up. He said that he had paid $500 for what he described as an “8 ball”. (The evidence of Detective Brain was that an 8 ball was 3.5 grams and that in September 2004 amphetamine prices for an 8 ball was between $150 and $300 depending on quality and availability. A “street” gram of the drug cost $50.)
The accused told police that, using a knife, he had separated the 8 ball of amphetamine into the 18 bags. He had bought the bags from a newsagent at Whyalla a couple of weeks before.
He said that he had purchased an 8 ball from the same supplier on four occasions over the previous three months. He said that he had maybe used amphetamine himself for a couple of years, but that he had only used it regularly for the previous three months. He said that he had used a little bit of the amphetamine on the day the police had arrived. He had given some to his friend Mark Eden. That was from the 18^th bag that he produced from the 8 ball bag.
Apart from giving some to Mark Eden he had previously given some amphetamine to two friends. He said that he had probably done that about 10 times for each friend over the previous three months. Those friends were Sean Warren, and Solly. Solly was a man named Suleman Dervisevic.
When he informed police that he had given some amphetamine to these two friends he was asked: “Have they ever given you anything in return?” The accused replied: “Um not really”. He was asked what that meant. He replied that in one instance Sean Warren gave him a couple of records and Solly had also given him some small possessions, like records as well, and a record player that the accused had bought off him. The accused then told police that he actually gave those two friends money for the items to which he had referred and then they would give him the money back. He said that they would not give him much money back. When pressed, he referred to 50 or 100 dollars “here and there”. He was asked whether the reason they gave him money back was because he was giving them free amphetamine. He answered : “Well no not all the time, once or twice yes but not all the time.” The accused was then asked:
“Q I appreciate that you’ve said that on at least ten occasions each you’ve supplied them amphetamine over the last three months and that they’ve provided you on a few occasions some property
AMm.
Qwhich you’ve purchased from them
AAh hum
Qand they’ve given you money back, the money, your money back
AAh hum
Qin payment for the amphetamine that they’ve had previously. Does that sum it up?
Ayeah”
The accused was then asked about certain messages that were on his mobile phone. He agreed that he considered that a message like the ones to which his attention was drawn would be asking him for amphetamine. He said that sometimes a couple of his mates would ask for it but he didn’t do it. They would text him asking him if he would “sell me one, you want to sell me one.” He would say no. The accused was asked why they would ring him. He answered: “Because they know. Word gets around. I don’t know how but it does you know”.
The accused was asked what he did with the Glucodin they found at the accused’s house. He said that he drank it. It gave him energy. He did not know why it was in the esky. He said that he was aware that Glucodin was a product commonly used to mix with amphetamine. He said the other small plastic bag with Glucodin in it had been there for ages. He had probably just misplaced it – put it in the place that it was.
The accused was then asked about what police had found under the mattress in his bedroom. As to the plastic bag that contained other empty plastic bags similar in size to those in which his amphetamine was found he said they must have been there for ages and he must have forgotten about them. He was asked about the cash of $1600 that police had also found under the mattress. He said it was money he had been saving to build a carport. He had been saving that for about six months or a bit more. He said that he saved by taking a bit of money out of each pay and putting it there. Leaving it there made him feel secure.
The accused said that his wages were transferred electronically into his bank account. He would take a bit out every fortnight from his bank account and put it under his mattress. He said he found it easier to save like that because if his money is in his bank he would just spend it. Putting it under his mattress made him not want to spend it. He said it was harder to spend if it was under his mattress than if it was able to be drawn from his bank using a cash card in a rediteller.
The accused said that Mark Eden and Sean Warren who were at his house when police arrived had used amphetamine at his house that day. He said they had swallowed it, as he had. That was the method by which the accused said he took amphetamine. He then said that he thought Sean Warren uses a needle but he didn’t do it in front of him. He said maybe he went to the toilet or something to inject himself. He said that neither man paid for the drugs that he supplied to them that day.
The accused was asked to explain what he previously described about being given records by Sean Warren and Solly. He was asked:
"QSo they would, how much would you give them for the property that they give you?
ALet’s just say if brings around five or ten records I’d give them fifty bucks
QOkay and then he gives you that fifty dollars back?
ANo not all well three quarters of the time no
QNo
ABut he never gives it back to me straight away we just go and come back later or whatever I don’t know
QSo when he comes back later he gives you the fifty dollars is that right?
AYep
QHow many times has that happened?
ANot many just a couple
QJust a couple?
AAh hum”
The accused said that this happened with both Solly and Sean Warren. The accused was asked:
"QThe time that they gave you the fifty dollars back did you give them amphetamine at those, on those occasions?
ANo I didn’t
QBut you’d given them free amphetamine before?
AYes
QAnd you took it that the reason they were giving you the money was to pay for the amphetamine that they bought from you or used from you previously?
AYeah
QSo technically they are paying you for that amphetamine?
AYeah I suppose
QYes
AYes
QNow the fifty dollars that they give you off those off the cuff times
AAh hum
Qthat they’ve done it how many times did you say?
AI’d say five times
QWhat between them?
AYep
QOr five times inaudible
AI’d say seven times between them, eight times
QEight times between them? Do you put that money with your savings?
ANo
QWhat do you do with that money?
AOh I just spend it”
The accused agreed that in the three months before police came he had purchased two thousand dollars’ worth of amphetamine over three months and that on approximately ten occasions in respect of both Sean Warren and Solly he had given them amphetamine in that same period.
The accused was interviewed again by police on 4 September 2004. He was questioned after an appropriate caution. He was asked about a piece of paper police had found in his wallet in the Whyalla police cells after he had been searched and charged there. The piece of paper is Exhibit P2D. There is writing on both sides. The accused agreed that the writing on the piece of paper was his handwriting. He said the names and the figures on the paper represented the people who owed him some money. He was asked whether any of the names and amounts relate to the sale of amphetamine. He replied: “A little bit yes”. He indicated that was the case for “WHITY” for $200; “WENDL” for $300; and “RODNEY” for $120. He denied that the other names and amounts on the piece of paper related to the sale by him of amphetamine. Police also asked the accused about the other side of that piece of paper. The accused said that “CHEECH” and “CHEE” were other words for ‘WHITY” and “CROAT” was himself. He did not know what “KIT” meant. He thought it might be a total. The accused was also asked about other papers and an exercise book containing figures. He explained that certain of those figures related to the playing of darts which were played for fifty dollars a game. He said that sometimes he and his friends played for money here and there.
The accused was charged on information in the Magistrates Court at Whyalla with five offences. Two counts alleged that he sold methylamphetamine or that he had that drug for the purpose of selling it. Two other counts charged him with supplying methylamphetamine to another. The fifth and final count charged him with unlawful possession of the total cash money in the amount of $1900. On 22 December 2004 the accused pleaded not guilty to the charges alleging that he sold methylamphetamine or possessed it for sale. He pleaded guilty to the two counts of supplying methylamphetamine and guilty to the one count of unlawful possession of $1900. He was committed to this court for trial on the matters upon which he pleaded not guilty and he was committed to this court for sentence on the remaining three charges.
Because of the guilty pleas the Director of Public Prosecutions had filed in this court an information charging the accused with only one offence, being possessing methylamphetamine for sale or supply.
At the callover on 21 January 2005 of cases for the February circuit of this court at Port Augusta I was told by the accused’s counsel that the accused had pleaded guilty at his committal out of nervousness and in error and that he would be pleading not guilty at his arraignment. I was informed that because of that intimation the Director of Public Prosecutions would need to file a fresh information incorporating other charges.
By Monday 31 January 2005 a fresh information had not been filed. Accordingly, the accused was arraigned on the only count on the only information filed, being possessing methylamphetamine for sale or supply. He pleaded not guilty.
The matter was listed for trial on Tuesday 15 February 2005 on that charge and the expected not guilty pleas to additional charges on a fresh information. A new information ultimately alleged the same charge to which the accused had earlier pleaded not guilty. That was the first count. The second count alleged the offence of supplying methylamphetamine and the third count alleged unlawful possession in respect of cash in the sum of $1900.
On the morning of Tuesday 15 February 2005, before the jury panel came into court, I was informed by the accused’s counsel that the accused would be pleading guilty to the first two counts on the new information. I was told that there were a number of reasons for that. I was told, however, that despite his anticipated plea of guilty to count 1, possessing methylamphetamine for sale or supply, the accused denied that he has sold or intended to sell any methylamphetamine. I was asked to remit the third count, unlawful possession of cash of $1900, to the Magistrates Court upon the accused pleading guilty to the first two counts relating to methylamphetamine.
Upon his arraignment the accused pleaded guilty to the first two counts.
I remitted the unlawful possession matter to the Whyalla Magistrates Court. That is the offence to which the accused had pleaded guilty on 22 December 2004 in that Court.
I then embarked upon a disputed facts hearing. The Crown contended that I should sentence the accused on the basis that the methylamphetamine found in the cigarette packet in the accused’s kitchen would partly be for the accused’s own use, would partly be supplied by him to friends and acquaintances, and would partly be sold by him. The accused contended that he should be sentenced on the basis that he is a user of methylamphetamine and a social supplier to three other people, and that the methylamphetamine police found would be used only in those ways.
The accused gave sworn evidence that he did not sell any amphetamine to anyone. He said that when police visited his home he had not slept for the previous two nights and earlier that day he had used amphetamine. When interviewed he felt numb and was really worried about his parents. He said that it was hard to think about things and listen at the same time. He said that he was affected by amphetamine a lot when interviewed. He said it “paralyses your mind”.
The accused said that not everything he said to the police in his interview was truthful and accurate.
The accused said that the list of names and numbers on the piece of paper police found in his wallet related to darts. He had previously told police that three of the names and numbers related to money that those persons owed him for the purchase of amphetamine from him. He was cross-examined about that. He said that at the time of the interview he was going through hell. He was asked why, if the entries related to darts, he didn’t tell police about that. The accused replied: “I actually thought it was illegal to play for money at the time.” He agreed that he thought it was illegal to trade in methylamphetamine. He was asked why he confessed to trading in methylamphetamine to cover up the fact that he was playing darts for money. The accused said he “was just pretty much saying anything to get out of there because I was in hell. That’s how I felt, and a lot of questions, I didn’t even listen to them because I was (INDICATES) – yes. It was a shock to the system.” The accused agreed that he saw on the video that he had admitted to police that three names and sums related to amphetamine sales but that he had denied that the others were for the sale of methylamphetamine.
The accused called three witnesses at the disputed facts hearing. Daniel Woollatt said that the accused had never supplied or sold amphetamine to him. He said he was the first name on the list of names found in the accused’s wallet. He said that the number 200 on the list was what he owed the accused in dollars. Mr Woollatt’s attention was drawn to a statement of Barry Shedden (Exhibit P1). An appendix to that statement refers to a number of photographs which showed messages on the accused’s mobile phone. The following are said to be from Daniel: “He’s got 2 left”; “Can u save me 1 & I pay 4 it Tomoro rest wed”; “U still got it?”; and “where’s my home delivery? I got a light socket.” Mr Woollatt was asked whether he had sent any of those messages. He said the only one that really rang a bell was the home delivery one. He said that, assuming that they were from him, they did not refer to drugs.
Mr Woollatt was cross-examined about the list which he said indicated what he and others had lost to the accused at darts. He was asked whether he had paid the accused the two hundred dollars that he owed him. He said he didn’t. “We weren’t under an obligation to pay it straightaway or anything like that.” He had never paid him. Mr Woollatt said that he couldn’t recall exactly sending the accused a text message about saving him one and paying for it tomorrow. He said he could have. He later said that he did send it. He said that it referred to his borrowing one hundred dollars from the accused. He said: “If I remember rightly, he was going to do something, I said ‘Can you save me another hundred and I’d pay for it tomorrow and the rest Wednesday?’, because I already owed him from one of them previous messages”. Mr Woollatt said that he couldn’t remember about the message “Can you save me 1?”. He said further that he could not see why he would send to the accused a message like “He’s got 2 left”.
Sean Warren also gave evidence. He was “WENDL” on the list of names and numbers in the accused’s wallet. (The accused had told police that this related to the sale of amphetamine.) Mr Warren was asked if the accused had ever supplied him with amphetamine. He answered “No”. He was asked if the accused had ever exchanged any goods with him in return for the accused giving him amphetamine. He answered that he had. He said they were records and his time for working on his cars. That had happened five or six times. He said the accused had never sold him amphetamine. Mr Warren said that “WENDL” was on the list with the number “300” next to it because that was a darts list.

Under cross-examination Mr Warren said that he had a syringe on him when he went to the accused’s house on 3 September 2004 because he was a user of amphetamines. He was asked whether the accused supplied him with methylamphetamine on that day. He said “yes, because I was working on his cars”. Mr Warren said that sometimes the accused would give him some money for the records he gave him. He said he never gave any of that money back to the accused.
Finally, Suleman Dervisevic gave evidence. He was “Solly”. He said he had never purchased amphetamine from the accused. He had obtained amphetamine from the accused on a few occasions over 12 or 18 months. He had probably obtained it a dozen times. He had never given him anything in exchange for amphetamines, not even records. His nickname “Solly” appeared on the list with “150” written next to it. It could have related to their playing darts or cards, and gambling.
Not long before the disputed facts hearing the accused had requested from the Commonwealth Bank of Australia bank statements in relation to an account that he operated at that bank. Certain bank statements were tendered on 24 February 2005 as part of the hearing (Exhibit D13). Tendered at the same time were three winning betting slips from the TAB (Exhibit D14). The accused gave no oral evidence about his banking habits or about his TAB betting. He had, however, told police when first interviewed by them that his wages were transferred electronically into his bank account and that he would take a bit out every fortnight from his bank account and put it under his mattress. He had been saving in that way for about six months or a bit more before police came to his house. He had told them that putting cash under his mattress in that way made him not want to spend it. It was harder to spend if it was under his mattress than if he was able to draw it from his bank using a cash card in a rediteller.
On 24 February 2005 the accused’s counsel submitted that the bank statements generally confirmed what the accused had said about his practise in relation to his income and his use of his credit card. It was submitted that a consideration of the statements disclosed that all debits to the account, without exception, were credit card debits and that generally confirmed “the rather unusual practise that (the accused) said he had of saving by putting money under the mattress”. It was submitted that the winning betting slips were generally confirmatory of other sources of income, that is other than from the sale of drugs.
It was submitted on behalf of the accused that I should have no confidence in relying upon what the accused told police during the two records of interview that were exhibited in the hearing before me. I watched each video during the hearing. I have no doubt that the accused understood the warnings and cautions given to him and that the accused understood each of the questions police officers asked of him. I saw no evidence of any distress in the accused during the two interviews, either from lack of sleep or from the influence of drugs. It was submitted that one passage to which I was referred by counsel for the accused should raise a doubt as to the accused’s understanding of his rights to decline to answer questions. I consider the accused’s response to be a natural and understandable resistance by him to the naming of an associate involved in drugs, rather than demonstrating a misunderstanding of his rights.
I consider that the accused appeared at all times to be cooperative with police, and showed a willingness to answer many of their questions as best he could. I have no doubt that some of the more bizarre features of the interview resulted from an attempt by the accused, sometimes on the spur of the moment, to explain certain matters he was questioned about without giving a wholly truthful answer. One example is his account that sometimes he would give his friends money for records and other items which money they would later give back to him when he supplied them with amphetamine. I have no doubt that that was an attempt by the accused to explain in what he thought was some less damning way what I find beyond reasonable doubt to be the sale of methylamphetamine by the accused. Another example is his explanation for the cash money found under his mattress. I do not consider that the bank statements tendered on 24 February 2005 support the accused’s explanation. Whilst there are a number of cash card and ATM withdrawals in the period before 3 September 2004, some $500 appears to have been from the Adelaide Casino, $720 from the Bayview Hotel Whyalla on one day in seven separate withdrawals and $520 was withdrawn from the Eyre Hotel Whyalla in four separate withdrawals on the same day. Furthermore, the statements indicate the accused used his cash card for withdrawals on a regular basis after 3 September 2004. I am therefore not convinced that the statements support in any way the accused’s version to police. My view is the same in relation to the betting slips. Each winning slip relates to a win on 21 July 2004. I have no evidence as to the accused’s betting habits either at the TAB or at the Adelaide Casino.
I have no doubt that the accused well appreciated that wholly truthful answers to police questioning would implicate him in an offence related to dealing in amphetamine, and would constitute an admission that at least the cash money under his mattress constituted money obtained by dealing in drugs.
I am convinced that the accused was not confused, in shock or going through hell during either police interview such as to make certain answers to police questions that I conclude amount to admissions by him unreliable. For example, I conclude that he gave truthful answers to the questions regarding the three names and sums on the list which he said related to sale of amphetamines.
The evidence of the three witnesses called on behalf of the accused was unconvincing. I did not think any of them told me the truth. Mr Woollatt was particularly unconvincing in his evidence as to the text messages to the accused. Mr Warren’s evidence was inconsistent with the accused’s account to the police. Mr Warren said the accused had never supplied him with amphetamine but the accused told police that he did do so on the day the police attended at his house. Mr Dervisevic’s evidence about never giving the accused records in exchange for amphetamine was, likewise, inconsistent with the accused’s account to the police.
My conclusion is that the evidence of the accused and his three witnesses regarding the list in the accused’s wallet and as having something to do with darts was nonsense and that each of them knew it was nonsense.
I am satisfied beyond reasonable doubt that the accused possessed the methylamphetamine in the Benson and Hedges packet in his kitchen for the purpose of selling some of it to other people. I am satisfied beyond reasonable doubt that the cash money of $1600 found under his mattress represented proceeds from drug dealing by the accused. I cannot make a finding beyond reasonable doubt that the cash of $300 found on the accused was proceedings from drug dealing. I cannot find that that $300 was probably unrelated to the sale of drugs. It may well have been money given to the accused for drugs on the day police came to his house.
I am satisfied that it is probable that the accused would have used some of the methylamphetamine police found and that he would have supplied some of it to others.
I am unable to make findings as to how much of the methylamphetamine police found the accused would have sold, supplied or used.
I shall sentence the accused on the basis of these findings.
I have earlier referred to the fact that on 22 December 2004 the accused pleaded guilty in the Magistrates Court to unlawfully possessing $1900 in cash. I have not, in the findings I have made, taken any account of the admission that such a plea to such a charge entails. I have not done so because I was told at the callover that that plea was out of nervousness and done in error. The accused gave no evidence about that. It will now be for the Magistrates Court in Whyalla to determine whether the accused should be granted leave, if leave is required, to withdraw his plea to that charge.