R v Katsambas - [2008] SADC 9

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KATSAMBAS
Criminal Trial by Judge Alone
[2008] SADC 9
Reasons for the Verdicts of Her Honour Judge Shaw
15 February 2008
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
Trial by judge alone - accused charged with offences pursuant to the Controlled Substances Act 1984
Verdicts - not guilty
Controlled Substances Act 1984 ss 32(a)(b), 32(1)(e), referred to.
R v GNN 78 SASR 293, applied.

R v KATSAMBAS
[2008] SADC 9
Introduction

In this matter, George Katsambas is charged before me sitting as a judge alone, with the following three offences.
First Count
Statement of Offence
Taking Part in the Manufacture of Methylamphetamine. (Section 32(a)(b) of the Controlled substances Act, 1984).
Particulars of Offence
George Katsambas between the 1^st day of October 2003 and the 3^rd day of February 2004 at Prospect, knowingly took part in the manufacture of methylamphetamine, a drug of dependence.
Second Count
Statement of Offence
Possessing Methylamphetamine for Sale. (Section 32(1)(e) of the Controlled Substances Act, 1984.
Particulars of Offence
George Katsambas on the 2^nd day of February 2004 at Prospect, knowingly had methylamphetamine, a drug of dependence, in his possession for the purpose of selling it to another person.
Third Count
Statement of Offence
Possessing Cocaine for Sale (Ibid)
Particulars of Offence
George Katsambas on the 2^nd day of February 2004 at Prospect, knowingly had cocaine, a drug of dependence, in his possession for the purpose of selling it to another person.
Background Facts
The alleged offences arise out of a police search of premises at 35 Angwin Avenue, Prospect on 2 February 2004. In the kitchen cupboards, police located a total of 370,000 tablets in 37 individual plastic bags. The tablets contained an estimated total amount of 21.5 kilograms of pseudoephedrine hydrochloride.
I accept that pseudoephedrine is a common precursor in the manufacture of methylamphetamine. It is these tablets which are the subject of count one on the information. The prosecution case is that the pseudoephedrine located could be converted to between 8 and 13 kilograms of methylamphetamine.
In the freezer in the kitchen, police found three separate amounts of methylamphetamine. Firstly, in a green mixing bowl on the top shelf, secondly, in a stainless steel mixing bowl on the second shelf and thirdly, in a glad freezer bag on the third shelf. The total amount of methylamphetamine powder was 864.6 grams. This is the subject of the second count.
Traces of methylamphetamine were found on other items in the house including on 12 disposable gloves. Traces of pseudoephedrine were located on one glove.
The police also located 21.9 grams of cocaine on the bottom shelf of a cupboard in the kitchen. This is the subject of the third count.
The elements of the Offences
Each offence and each element of each offence must be proved by the prosecution beyond reasonable doubt.
The first count alleges that the accused knowingly took part in the manufacture of methylamphetamine.
The elements of the offence are as follows:
·firstly, that the drug methylamphetamine is a drug of dependence;
·secondly, that a step was taken in the process of the manufacture of methylamphetamine; and
·thirdly, that the accused, alone or as part of a joint enterprise, took part in that manufacture or production of methylamphetamine. Persons involved in a joint enterprise take part in the manufacture of a drug if those persons, together, as part of a joint enterprise, participate in any step or cause any step to be taken in the process of manufacturing the drug.
The prosecution must also prove that the accused took part in that manufacture knowingly. That is, he knew that he was taking part in the manufacture of methylamphetamine and that the step or steps were directed towards the drug in question.
I accept for the purposes of my findings, that an accused may be found liable for taking part in the manufacture of methylamphetamine if he provides the premises in which any step in the manufacturing process is undertaken, or if he permits the premises to be used for taking a step in the manufacturing process.
In this respect, it would be sufficient for an accused to arrange the storage of a necessary chemical, such as pseudoephedrine, knowing that it will be used for the production of methylamphetamine.
The second and third counts allege that the accused had in his possession a prohibited drug, for the purpose of selling it to another person.
In relation to these two counts, the prosecution must prove the following elements:
·firstly, that the material in question is a prohibited drug, namely methylamphetamine, in relation to count 2 and cocaine in relation to count 3. There is no dispute in relation to this element;
·secondly, that the material is a prohibited substance under the Controlled Substances Act 1984 (“the Act”). As a matter of law, methylamphetamine and cocaine are both prohibited substances within the meaning of the Act; and
·thirdly, that the substance was in the possession of the accused at the time alleged.
An object is in a person’s sole possession if that person has possession of that object to the exclusion of all others. An object is in the joint possession of two or more persons if those persons have a joint ability to control the object and a joint intention to control it. In that event, those persons are jointly and severally in possession of the object.
The prosecution must prove also that the accused had the requisite knowledge. A person is not to be regarded as being in possession of an object unless he knows of its existence.
In other words, there must be both physical control and an intention to exercise control over the object.
If a person has knowledge of the existence of the drug and the capacity or ability to exercise physical control over the drug and an intention to do so, then that will constitute possession.
The prosecution must prove not only that the accused knew that the substance which is the subject of the charge was in his custody or control, but also that he knew that it was a drug to which the Act applies. If he is not aware of the nature of the substance, he must at least be aware that he has possession of a substance, the possession of which is prohibited under the laws relating to illegal drugs.
Finally, it must be proved that the accused had the substance, namely methylamphetamine and cocaine respectively, in his possession for the purpose of selling it to another person.
Circumstantial Evidence
The prosecution case in relation to each count depends upon circumstantial evidence.
In respect of each count, it is necessary to consider the weight which is to be given to the combination of circumstances relied upon by the prosecution. Guilt can be inferred from that combination of facts.
The prosecution must prove in relation to each count, that the inference or inferences to be drawn from the combination of circumstances relied upon, is the only rational inference open on the evidence. If there exists a reasonable or rational hypothesis consistent with innocence, in relation to the proof of a particular offence, the prosecution will not have proved its case. However, any reasonable hypothesis must be something more than mere conjecture and must be based on the evidence.
The Prosecution Case
The prosecution alleged that at some stage between 1 October 2003 and 2 February 2004, the accused, possibly in conjunction with others, was taking steps to manufacture methylamphetamine.
The prosecution alleged that the premises at 35 Angwin Avenue were being used as part of a commercial drug operation.
Firstly, the premises were used to store pseudoephedrine with a view to manufacturing methylamphetamine in the future. Secondly, the premises were used to store methylamphetamine, and possibly to purify it in the freezer, for the purposes of sale. Thirdly, the premises were used to store cocaine for the purposes of sale. Finally, the premises were used as a ‘safe house’ to store the proceeds of drug sales.
In order to prove that the accused knowingly took part in the manufacture of methylamphetamine, and that he was in possession of methylamphetamine and cocaine, the prosecution relied upon a number of items of circumstantial evidence which it is alleged, linked the accused to the premises and to the substances in question.
In relation to count one, the prosecution alleged that the accused knowingly possessed the pseudoephedrine tablets with the intention of using them in a future manufacture of methylamphetamine.
It was submitted that the storage of pseudoephedrine was an early stage of the production of methylamphetamine.
The prosecution relied upon a combination of items of circumstantial evidence including the quantity of pseudoephedrine tablets, the potential quantity of methylamphetamine which could have been produced, the presence of manufactured methylamphetamine in the freezer and the presence of disposable gloves containing traces of methylamphetamine and pseudoephedrine.
The prosecution alleged that there were persons going to and from the premises at 35 Angwin Avenue, Prospect, including the accused, who were in joint possession of the contents of the premises.
In relation to count two, the total weight of methylamphetamine located was 864.6 grams. The prescribed amount for the purpose of section 32(3) of the Act is 2.0 grams. Therefore, pursuant to section 32(3), a person who is proven to have that amount of the drug in his possession, will be presumed to have it in his possession for the purpose of sale.
The prosecution contended that the presumption had not been rebutted.
In relation to count three, the weight of cocaine powder located was 21.9 grams. The prescribed amount of cocaine for the purpose of the presumption, is 2.0 grams. The prosecution submitted that the presumption under section 32(3) of the Act had not been rebutted.
In relation to circumstantial evidence, the prosecution relied upon a DNA profile obtained from material located on the surface of a yellow disposable glove. The scientific evidence showed that the DNA originated from at least two individuals. The prosecution submitted that the major component in the DNA profile matched the DNA profile of the accused. Traces of methylamphetamine was also found on that glove. Eleven other gloves contained traces of methylamphetamine. One glove contained traces of pseudoephedrine.
The prosecution emphasised that the containers of methylamphetamine, the thirty-seven bags of pseudoephedrine and the bag of cocaine were all located in the same room of a relatively empty house.
On a small envelope found in a wheelie bin under the carport outside 35 Angwin Avenue, a fingerprint identical to the left thumb impression of the accused was located.
On a large envelope marked as having been sent on 16 November 2003, a fingerprint identical to the left index finger impression of the accused was located.
On the dining room floor, the police located a newspaper dated 13 January 2004, upon which there was a print identical with a portion of the right palm impression of the accused.
On the kitchen bench, the police located an SA Water envelope, upon which there was a print identical to the left thumb impression of the accused.
In the ceiling, police located two bags of money containing bundles of fifty dollar and one hundred dollar notes, totalling about $336,000.00.
There was evidence of the sighting by neighbours of certain vehicles coming and going from Angwin Avenue from about the month of October 2003.
In December 2003, a neighbour saw two males arrive at the house in a dark blue Holden Statesman, registration number WSS-433. One male cleared the mail and the other male entered the house.
The vehicle was registered in the name of Helen Papaioannou.
This vehicle was seen visiting the premises twice after that date.
Police observed the accused drive the Holden Statesman vehicle registered number WSS-433 on 30 October 2003, 28 December 2003 and 4 February 2004.
On 31 December 2003, the accused had two tyres fitted to that vehicle at Bob Jane T-Mart.
On an insurance document relating to the same vehicle, the accused and Victoria Anasis were listed as drivers.
A second neighbour saw a green ford sedan, registration number WIX-510, visit the house.
Registration number WIX-510 belonged to a four-wheel drive vehicle. However, the registration number WTX-510 belonged to a green sedan which had been lent to the accused by a Mark Salkanovic from 25 September 2002 for a term of two years. A vehicle WTX-510 was located outside the accused’s partner’s house.
Prosecution Submissions
The prosecution submitted that the observations of the Holden Statesman motor vehicle registered number WSS-433, visiting the address at 35 Angwin Avenue between October 2003 and February 2004, entitled the court to infer that the accused was in the vehicle or allowed others to use that vehicle, in order to attend at the Angwin Avenue premises.
The evidence that the accused had tyres fitted in December 2003, could be relied upon to infer that the accused had possession of that vehicle at the relevant time.
In relation to the evidence of observations of the green Ford sedan, registered number WIX-510, the prosecution submitted that if the court found that the neighbour had made an error in relation to one letter in that registration number, the court was entitled to infer that the vehicle, registered number WTX-510 which had been lent to the accused, also visited the premises.
It was submitted that the fingerprints on letters found in a bin outside the Angwin Avenue premises, supported the inference that the accused attended at the premises to collect the mail.
The prosecution submitted that the fingerprints found inside the premises, supported the inference that the accused had been in the house on or after 13 January 2004.
The prosecution submitted that it could be inferred from the evidence of the presence of DNA on the inside of a glove found on the dining room floor, that the accused wore the glove, or that there had been direct contact between the accused’s skin and the glove. Further, it provided a basis to infer that the accused had taken off the glove inside the house.
The prosecution submitted that the court could infer from the presence of methylamphetamine on the same glove, that this glove had been used to handle methylamphetamine.
It was argued that the presence of methylamphetamine on other gloves showed handling by others in the house.
The prosecution submitted that when viewed in combination, these circumstances supported a conclusion that the accused and others visited and entered the premises at Angwin Avenue during the relevant period and that the premises were used solely to store methylamphetamine, cocaine and pseudoephedrine.
The prosecution argued that the close proximity of the bags of pseudoephedrine to the freezer, and the size and number of bags of pseudoephedrine tablets in the cupboard, supported the inference that the accused was knowingly involved in the storage of those tablets which could be used in future methylamphetamine manufacture.
The prosecution submitted that upon the basis of the combination of circumstantial evidence, the only rational inference was that the accused was inside the premises at 35 Angwin Avenue at the relevant time and was knowingly involved (with others) in the storage of pseudoephedrine for the purpose of the future manufacture of methylamphetamine. Further, it was submitted that the only rational inference was that the accused was in joint possession (with others) of methylamphetamine for the purposes of sale, (the second count).
The same evidence was relied on by the prosecution to prove the third count. The prosecution conceded, however, that the size of the bag of cocaine which was the subject of count three, was smaller than the quantities of the other two drugs and was separate from the other two drugs. Therefore, the inferences to be drawn in relation to proof of the third count were weaker.
Defence submissions
The defence did not call any evidence.
The defence submitted that the circumstantial evidence taken in combination did not prove any of the offences beyond reasonable doubt.
There was evidence of the involvement of others, in particular, a Mr Papaioannou and a Mr Lekatis.
The offending was alleged to relate to events which took place between 1 October 2003 and 2 February 2004.
Against this broad time frame, there was only limited evidence of any possible contact between the accused and the premises. The evidence did not establish either the time when or the circumstances in which items found at the premises were placed there.
There was no evidence about the circumstances of the rental of the premises.
The police did not find any keys to the premises which could be connected to the accused.
There were no admissions by the accused and no eyewitness evidence of the accused having attended at the house.
The Holden Statesman was not owned by the accused. It was registered in the name of Helen Papaioannou.
There was no evidence from the registered owner as to who was given permission to drive the vehicle.
The obvious alternative hypothesis is that it was driven by Mr Papaioannou, the son of the registered owner, when the vehicle attended at the house.
The defence submitted that the evidence of the accused’s use of the Holden Statesman in relation to the attendance at Bob Jane T-Mart, merely demonstrated the potential for the accused to have had contact with items which may have been taken in that vehicle to 35 Angwin Avenue by Mr Papaioannou.
The defence submitted that the prosecution contentions regarding the green Ford sedan registered number WIX-510 were particularly tenuous.
The evidence was that a dark green sedan was seen visiting once. The police were told that the registration number for the vehicle was WIX-510.
There was no evidence of any connection between that vehicle and the accused. Further, that registration number belonged to a four-wheel drive.
The prosecution asked the court to assume that an error had been made in recording the number, and that the correct registration number of the vehicle observed was WTX-510.
No inference in favour of the prosecution ought to be drawn based upon this evidence.
The defence submitted that the inferences said to be based upon sightings of the Holden Statesman, the fingerprint and DNA evidence, were not the only inferences available.
The forensic links relied upon related to transportable items.
There was no DNA or fingerprint evidence found upon any fixed object in the premises.
The presence of a DNA profile upon an object did not necessarily provide any information in relation to the time at which the item arrived at a particular place. There was expert evidence that DNA material had the potential to arrive on an object by secondary transfer.
The defence submitted that the DNA evidence and the presence of methylamphetamine on a glove, when viewed in the context of the presence of the newspaper, did not take the matter very far. Its presence could be the result of a secondary transfer from someone else or cross-contamination.
The defence submitted that an obvious source for cross-contamination was a newspaper handled by the accused. The newspaper could have been handled by the accused before it was brought to the premises by someone else.
The defence submitted that although the DNA expert, expressed the opinion that the DNA result came from the inside of the glove, this was not necessarily clear cut.

It was also significant that the DNA profile on the glove indicated that at least two persons were contributors to the DNA material. Therefore, at least one other person had direct or indirect contact with that glove.
The defence pointed to the evidence that within the bag of discarded gloves, a number of gloves recorded a positive result for the presence of methylamphetamine.
The defence submitted that the prosecution could not exclude the rational hypothesis that the presence of forensic material in question, resulted from a secondary transfer and/or cross-contamination.
Therefore, it did not support the inferences for which the prosecution contended.
The defence submitted that even if the evidence could support an inference that the accused was “involved” with the Angwin Avenue premises, that was insufficient to prove the prosecution case.
The prosecution was required to prove that the only rational inference from all of the evidence, was that the accused had the necessary knowledge and intention in relation to each separate offence.
The defence submitted that even if the court inferred that the accused had been inside the premises, that would not necessarily suffice to prove knowledge.
A person entering a house does not necessarily know of the presence of everything in the house, and certainly does not necessarily intend to exercise control or possession over any particular item either jointly or exclusively.
The pseudoephedrine was in a closed cupboard. The methylamphetamine was in a freezer. The cocaine was in a cupboard on a shelf. The money was in the ceiling.
In relation to proof of possession, the defence submitted that there are a number of alternative hypotheses, which the prosecution had not excluded.
Conclusion
I have regard to the submissions of counsel and to the authorities to which I was referred. I have regard to the statements of principle in R v GNN[1] in relation to proof of possession.
[1] (2000) 78 SASR 293
I have regard to the weight to be given to the combination of circumstances relied upon by the prosecution. I am not satisfied that the sightings of the accused driving the vehicle registered number WSS-433, together with the other evidence, support the inference that the accused must have travelled to the Angwin Avenue premises in that vehicle during the period alleged.
I am not satisfied that the accused attended at the premises in a vehicle registered number WTX-510 or WIX-510.
The prosecution case is that the premises were relatively empty. The finding of items in the wheelie bin with fingerprint impressions of the accused, does not necessarily establish, either on its own or when combined with the other circumstantial evidence, that the accused attended at the premises to collect mail or that he must have been inside the premises.
The evidence does not indicate the circumstances in which the fingerprint impressions came to be deposited on the newspaper and the SA Water envelope located inside the premises and whether it was before or after those items were left inside the premises.
Having regard to the combination of circumstances, I am not satisfied that the DNA material located on the disposable glove was deposited as a result of direct contact between the accused and the glove.
I have considered each count separately. Having regard to the combination of circumstances, I am not satisfied that the prosecution have excluded all other rational hypotheses consistent with innocence, in relation to each of the separate counts. In particular, I am not satisfied that the evidence proves that the only rational hypothesis is that the accused was inside the premises at 35 Angwin Avenue, Prospect at any time during the period alleged. Even if I was to assume that the accused had been inside the premises during that time, I would have found that the prosecution evidence failed to prove beyond reasonable doubt that the accused had the requisite knowledge and intention in relation to each separate count.
In relation to each separate count, I find that the prosecution have failed to exclude all rational hypotheses consistent with innocence. I am left with a reasonable doubt in relation to the proof of each separate count.
Having regard to all of the circumstances, I am not satisfied beyond reasonable doubt that the accused was involved in storing pseudoephedrine at the premises knowing that it was to be used in the future production of methylamphetamine.
Having regard to all of the circumstances, I am not satisfied beyond reasonable doubt that the accused was in sole or joint possession of the methylamphetamine in the freezer.
Having regard to all of the circumstances, I am not satisfied beyond reasonable doubt that the accused was in sole or joint possession of the cocaine.
Although the evidence of the prosecution raises a high level of suspicion in relation to the conduct of the accused in relation to each the offences, I am not satisfied that the prosecution have proved his guilt beyond reasonable doubt in relation to each separate count.
I therefore directed that verdicts of not guilty be entered in relation to each count.