R v Koo & Bae (No 2)
[2019] SADC 49
•3 May 2019
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KOO & BAE (No 2)
[2019] SADC 49
Judgment of His Honour Judge Stretton
3 May 2019
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
The accused were located west of Yalata in outback South Australia, driving a car containing nearly 10 kilograms of methylamphetamine. Both said they were driving from Perth to Victoria. The accused were jointly charged with trafficking a large commercial quantity of a controlled drug. Both pled not guilty. The issue was whether the accused were knowingly in possession of the methylamphetamine.
Held:
VERDICT (KOO) - GUILTY
VERDICT (BAE) - GUILTY
Controlled Substances Act 1984 (SA) ss 4(5), 32, 33P, referred to.
Barca v The Queen (1975) 133 CLR 82,; R v Gebert [2019] SAFCFC 37; R v Trimboli (1979) 21 SASR 577; Melbourne v The Queen (1999) 198 CLR 1, applied.
R v KOO & BAE (No 2)
[2019] SADC 49Introduction[1]
[1] This judgment is drafted in accordance with the National Judicial College judgment writing principles, in particular that it be concise, clear, avoid repetition, and avoid unnecessary repetition of evidence or the recitation of, or citation of, or quotation of authority for, uncontroversial principles of law and procedure. It seeks wherever possible to avoid legal technicality and use plain language understandable by the parties and the general public.
On 2 September 2017 police patrolling the Eyre Highway west of Yalata were looking out for a Toyota Kluger SUV with a particular registration number. They had intelligence that two men in possession of large quantities of illicit drugs and/or cash were likely to be travelling eastwards in that vehicle. They located the vehicle and the accused at the Nundroo Roadhouse, searched the vehicle and located nearly 10 kilograms of methylamphetamine.
Both accused had flown from Sydney to Perth, stayed a week, then hired the Kluger at Perth Airport and were driving to Victoria.
The primary issue in the case
Whilst each element of the offence must be proven beyond reasonable doubt to convict either of the accused, it was not disputed at trial that a large commercial quantity of the drug was located in the vehicle hired and driven by the accused.
All agree that the primary issue in each case is whether the respective accused was knowingly in possession of the methylamphetamine.
The offence – trafficking in a large commercial quantity of a controlled drug
Each accused is charged with trafficking in a large commercial quantity of methylamphetamine. The elements which must be proven by the prosecution against each beyond reasonable doubt are:
1That the accused knowingly possessed a substance.[2]
2That the substance was a controlled drug, in this case allegedly “ice” methylamphetamine. Methylamphetamine is a controlled drug.
3That at the time of such possession, the accused knew or was reckless as to the fact it was a controlled drug.[3]
4That there was a large commercial quantity of the drug.[4]
5That the accused trafficked the drug. Trafficking is defined to include taking part in any step in the process of sale of the drug including carrying, transporting, loading or unloading the drug, for the purposes of the eventual sale of the drug by someone.[5]
6That at the time of such possession, the accused knew that at least 1 kilogram of the drug was for the purpose of eventual sale by someone.
[2] Possession requires knowledge, custody and control to the exclusion of all others. Possession includes joint possession.
[3] Section 33P of the Controlled Substances Act1984 (SA).
[4] A Large Commercial Quantity of methylamphetamine is defined in the Controlled Substances regulations as 1 kg of mixed or .75 kg of pure methylamphetamine.
[5] Section 4(5) of the Controlled Substances Act1984.
Where however it is proven that an accused knowingly possessed more than a 2 gram ‘trafficable quantity’, the accused is deemed to be trafficking the drug unless the accused proves to the contrary on the balance of probabilities.[6]
[6] See section 32 of the Controlled Substances Act1984 for the exact wording and legal effect of the deeming provision.
The prosecution case is that both accused took part in a step in the process of sale of the drug by acting as couriers transporting it from Western Australia to the eastern States.
Legal principles
The court strictly applies all the standard directions and principles that apply in a criminal trial and in a trial of jointly charged accused. I do not set them all out.
Of particular importance however, are the following; the case against each accused must be considered separately, based only on the evidence admissible against each accused, and must be proven beyond reasonable doubt by the prosecution. No onus whatsoever lies on the accused. No evidence was led of any formal interview with either accused, and no adverse inference whatsoever may lie against an accused for exercising their legal right to silence. Neither accused gave evidence. Similarly, no adverse inference whatsoever lies against an accused for adopting their legal right to take such a course.
Circumstantial case
The case against the accused is a circumstantial one.
This court must accordingly apply the important principles set out by the High Court in the case of Barca v The Queen:[7]
When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable them to draw. However, an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence. These principles are well settled in Australia.[8]
[7] (1975) 133 CLR 82 at 104. See also a recent discussion by the Chief Justice in R v Gebert [2019] SASCFC 37 at paras 48-54.
[8] References, quotation marks and footnotes omitted.
The course of trial
The case was run efficiently by counsel.
The prosecution evidence was largely undisputed, and comprised the evidence of Brevet Sergeant Reddaway who apprehended the accused with their vehicle, Brevet Sergeant O’Driscoll as to the search of the vehicle and location of exhibits, Detective Brevet Sergeant Lee as to drugs and drug trafficking, the investigating officer Detective Brevet Sergeant Anderson as to photographs, exhibits and further investigations, and agreed facts.
Neither accused gave evidence, however Mr Koo called two character witnesses and tendered a bank statement.
What are the undisputed facts?
The accused’s background
Both accused are of Korean origin.
Mr Koo first arrived in Australia on a tourist visa in 1994. He visited Australia again in 2000 and 2004. He travelled to Australia again in June 2014, this time on a working holiday visa, and held bridging visas from October 2014 to 7 October 2016. He travelled to Australia again on 11 November 2016 by way of a bridging visa granted on 7 October 2016.
Mr Bae arrived in Australia in August 2015 and has held either a student visa or a bridging visa from that time until his arrest in 2017. He enrolled in a certificate 4 in Marketing and Communication at the Apex Institute. The course ran from April 2017 to 7 January 2018. There was a term break from 18 September to 8 October 2017. His last recorded day of study was 12 August 2017.
23 August 2017
On 23 August 2017 each of the accused was separately booked a ticket on Qantas flight QF0565 from Sydney to Perth scheduled to depart the following day. For each internet booking, a different phone number and email address was given, however both tickets were paid per the same credit card in the accused Mr Bae’s name. Each accused either chose or was allocated a seat in row 50 of the plane, but for some reason not next to each other. The cost of each ticket was $335.
24 August 2017
On 24 August both accused flew from Sydney to Perth on Qantas flight QF0565. That must have been an early morning flight, as later that morning, at around 9.52am, the accused Mr Bae hired a Toyota Camry sedan from Hertz at Perth Airport, using the same credit card and the same email address used for the air ticket purchases. The cost was $1,028.
1 September 2017
A week later, on 1 September, the Toyota Camry rented by Mr Bae was returned to Hertz at Perth Airport at 9.32am.
At 9.45am, in other words about 13 minutes later, the other accused Mr Koo rented a Toyota Kluger GX Wagon from that same Hertz Perth Airport outlet in Mr Koo’s name, using a different credit card, for the espoused purpose[9] of driving from Perth Airport to drop off at Melbourne Airport. The total estimated cost for the 8-day hire was $3,096, including a one way rental fee of $1,300.
[9] Per the rental agreement.
At 10.17am both accused attended the counter at Supercheap Auto, Cannington, Western Australia, and at 10.19am they purchased a Pioneer subwoofer speaker of a type commonly used in a vehicle, using Mr Koo’s credit card. Mr Koo had brought the speaker to the counter, and after the purchase Mr Bae carried it out of the shop. It was wrapped and sealed in marked retail commercial packaging. It cost $171. It was not disputed that there are at least 25 Supercheap Auto retail outlets in and around Sydney where inferentially that same item could be purchased or ordered.
At 10.48am Mr Koo attended the Big W shop in Riverton, WA, and purchased two new fishing rods for $38.
Both accused then drove the Kluger 1,110 kilometres from Perth to Caiguna, arriving shortly after midnight.
2 September 2017
At about 1am on 2 September the accused checked in to the John Eyre Motel Caiguna, registering under the name “Tok Chae”.
At some stage in the morning, the accused departed Caiguna. They drove east along the Eyre Highway, crossing the border into South Australia, travelling a total of 732 kilometres to the Nundroo Roadhouse where they stopped adjacent a petrol pump.
The accused had a booking at the Oasis Apartments Port Augusta that evening, indicating that they were intending to continue east the further 613 kilometres from Nundroo to Port Augusta at some stage after refuelling.
Police approached and asked Mr Koo whether they had anything they shouldn’t have in the car, such as drugs or weapons, and Mr Koo laughed, shook his head and replied “no”. Police then informed Mr Koo that the vehicle would be searched pursuant to the Controlled Substances Act 1984 (SA) for drugs, and he replied “yes, it’s ok you can look”.
Police observed that the rear seat row of the SUV was folded flat, similar to a station wagon, and there was a speaker box there. It was the Pioneer subwoofer later established to have been purchased by the accused the day before. It was however not wrapped, nor in a bag nor accompanied by any packaging. When the officer lifted it up it was not plugged in. When lifted it appeared much heavier than the officer expected it to be, and when shaken it made an unusual sound described by the officer as a ‘muted maraca’. He also observed that some of the screws holding the speaker cone and its cover were damaged indicating it had been opened. He therefore unscrewed the speaker cone and cover and searched the speaker box.
The speaker contained 6 plastic bags, each comprising an outer and an inner bag, containing a total of nearly 10 kilograms of crystalline or “ice” methylamphetamine of approximately 80% purity, as follows:
1.99 kilograms of white crystal material containing 1.59 kilograms of methyl amphetamine 1.26 kilograms of white crystal material containing 1.01 kilograms of methyl amphetamine 1.99 kilograms of white crystal material containing 1.60 kilograms of methyl amphetamine 1.99 kilograms of white crystal material containing 1.60 kilograms of methyl amphetamine 1.99 kilograms of white crystal material containing 1.60 kilograms of methyl amphetamine 0.73 kilograms of white crystal material containing 0.58 kilograms of methyl amphetamine
The speaker box also contained a blue towel, and a pink and white patterned pillowcase, which became visible when the plastic bags of drugs had been removed, indicating that the blue towel and pillowcase had been put into the speaker box first, and the drugs placed on top of them. An identical pink and white patterned pillowcase was loose in the rear area of the vehicle in the same area the speaker box had been.
Other items were located, including a number of receipts relating to the trip and car hire, variously in the middle row of seats and in the vehicle’s centre console. Four mobile phones were located. The phones were later analysed and nothing relating to drug trafficking was located on them. Mr Koo was in possession of $2,102.50 in cash. A single Crown Casino chip was in the rear of the vehicle.
Expert evidence as to methylamphetamine and drug trafficking[10]
[10] The court applies the principles and limitations applicable to the reception of expert evidence. Detective Brevet Sergeant Lee was qualified to give expert evidence on the topic and did so without objection. His evidence was not challenged or disputed.
Methylamphetamine trafficking is commonly undertaken by people working together in a syndicate, each performing a different role. One such role is that of courier of the drugs. They commonly do it for payment either in the form of cash or commodity.
Methylamphetamine is most commonly trafficked in “ice” crystalline form.[11] Its highest purity is in the vicinity of 80%,[12] although it can be “cut” or converted into larger quantities nearer street level for larger profit by the addition of other substances such as ketamine or glucose.
[11] As in this case.
[12] As in this case.
At the time of the events in question in 2017, the most commonly sold quantity at street level was by .1 gram, or “point” deal contained in a small press seal plastic bag, referred to as a “J Bag”. That was, and indeed still is, consistently priced at between $50 and $100 on the street.
The larger the quantity of drug sold in a single transaction, the cheaper the per-weight price, as follows:
.1 gram “point” deal $50-$100 1 gram $270-$375 3.5 grams, referred to as an “8-ball” $700-$1400 1 ounce $3500-$6000 1 kilogram $75,000-$140,000
Accordingly, if sold in kilograms as located, uncut, the approximately 10 kilograms of ice methylamphetamine located was worth between approximately $750,000 and $1.4 million.
On the street, were that quantity ultimately sold as is most commonly the case in .1 gram “point” deals to users and addicts for up to $100, the total value of approximately 10 kilograms would be up to approximately $10 million. If the drug were “cut” from the pure form located here to create a greater volume, the ultimate maximum value was potentially more.
Forensic evidence
A swab was taken from the speaker box and tested for DNA. There was an inconclusive number of contributors such that the sample could not be analysed.
Each of the outer and inner plastic bags containing the drugs was swabbed and tested for DNA. Each swab contained either very low amounts of DNA or no DNA such that it could not be analysed.
Other evidence
The Pioneer subwoofer speaker box including the speaker weighed 7.35 kilograms. Accordingly as located by police with the addition of nearly 10 kilograms of drugs and a towel and a pillowcase, it likely weighed around approximately 17.5 kilograms.
Information was provided to police that there was no record of the accused having won monies at the Perth Crown Casino, but that the Casino does not record all winning transactions, nor do certain games provide substantiating documentation.
Facts in dispute
None of the prosecution evidence as to the events, nor indeed the expert or forensic evidence was materially disputed. What remains in dispute is the sole issue of whether on the totality of the evidence, the prosecution has proved that either of the accused were knowingly in possession of the drugs located in their vehicle.
The defence case
The defence cases,[13] as represented by their pleas of not guilty, character evidence called for Mr Koo and the matters put, tendered, pointed out and argued by their counsel at trial is that the accused are not guilty and that the prosecution has not proven their guilt.
[13] The court applies the standard directions as to onus and burden of proof, in particular that there is no onus whatsoever on the accused to prove anything and it is always for the prosecution to prove each element of any offence beyond reasonable doubt. Nothing in this judgment, and in particular no discussion of the defence case should be taken to infer the contrary.
In particular, the defence case is that while the drugs may well have been hidden in the car as located by police, the evidence does not prove that either accused was aware of the drug’s presence and accordingly it is not proven that either accused was in knowing possession of a controlled drug. Both counsel submitted that the accused may have just thought they were couriering money rather than drugs.
Neither accused gave evidence at trial, which, as earlier emphasised, was entirely their right and no adverse inference whatsoever may arise from undertaking that course.[14]
[14] The court applies the directions that would be set out in full to a jury.
The accused Mr Koo did call character evidence from two witnesses. The court has regard to all that they said. Both witnesses were Korean nationals.
In brief, Mr Ji Woong Park said that he had met Mr Koo initially when they were at university playing in the same soccer team, and had known him for the last 13-14 years. He is a friend and sees Mr Koo regularly. Mr Park gave evidence that amongst those who know him, and in Mr Park’s opinion, he is regarded as honest and truthful. He said he was aware of the charges and was shocked when he was told.
In brief, Ms Francesca Lee told the court that she is a pastor at a church, and is involved with the Korean community in various ways. She said she had known Mr Koo over the last 5-6 years as Mr Koo’s family attend the church she is involved with. Ms Lee gave evidence that amongst those who know him, and in Ms Lee’s opinion, he is regarded as very honest. She said she was shocked at the charges against him.
The court applies the long recognised principle that evidence of good character is relevant to both Mr Koo’s propensity to commit the crime charged and his credibility in this particular case.[15] Whilst he did not give evidence, when police initially approached Mr Koo he denied that there were any drugs in the vehicle. The court takes that out of court denial into account, in accordance with the law.
[15] R v Trimboli (1979) 21 SASR 577, Melbourne v The Queen (1999) 198 CLR 1.
Whilst Mr Bae did not call character evidence, it was an agreed fact that he, as well as Mr Koo, had no prior criminal convictions. The court takes that into account.
Mr Koo’s counsel also tendered a one page bank statement for the period 15/7/17 to 4/9/17, indicating that Mr Koo had withdrawn $1200 from the Crown casino in the early hours of 31 August 2017. Mr Koo’s counsel argues that this both explains some of the cash located by police on Mr Koo and supports the suggestion that such cash may have been gambling winnings.[16]
[16] See Mr Morrison’s written closing address at paragraph 60.
Counsel for Mr Bae and Mr Koo ultimately submitted that there was no evidence as to who placed the drugs in the speaker box and no evidence that either accused necessarily knew about the drugs, and argue that, particularly as to the crucial issue of whether either accused was in knowing possession of the drugs sufficient for a conviction, the prosecution case does not rise above conjecture, speculation and possibility. Counsel for Mr Koo emphasises Mr Koo’s initial statement to police and his co-operation with police when police asked him to convert the language on one of the phones to English. Counsel for Mr Bae suggested that a number of matters, for example the obvious purchase of the flights and speaker box suggested that the accused were not attempting to disguise their identity.
The real issue - was either accused in knowing possession[17] of the methylamphetamine located in their vehicle?
[17] The court applies the legal definition of possession as outlined by the authorities.
Each of the prosecution witnesses gave evidence clearly, rationally, consistently and credibly. None were challenged nor was their evidence materially disputed. The court accepts their evidence beyond reasonable doubt.
The court accepts the two character witnesses called by Mr Koo as honest in the views they expressed and conveyed.
The court has regard to Mr Koo’s recorded out of court denial, and his character evidence.
The case against both accused is circumstantial. In particular, the court finds the following circumstances proven beyond reasonable doubt:
1That both air tickets were one-way tickets purchased the day prior to the accuseds’ flights from Sydney to Perth, but separately, with both accused sitting in the same row of the flight but not next to each other. The total cost was $670. While there might be an innocent explanation for this, it is also consistent with a clumsy attempt to not appear to be travelling together.
2That upon returning their hire car to Perth airport a week later, both accused chose to hire another but different vehicle, this time in the other person’s name, to spend at least three days and over $3,000 (including a $1,300 one-way surcharge), to drive back to the eastern States.
3It is reasonable to suppose that return flights might have been purchased at broadly the same cost as the outwards flights (a total for two of $670 rather than $3,000 car hire) to effect the trip in a matter of hours rather than at least three days, so there is no immediately apparent rational reason for hiring the car rather than flying. The itinerary as revealed by the evidence indicates that there were no plans to stop, fish or holiday along the way at least for the majority of the journey as far as Port Augusta. Incurring the significant extra expense and time is however consistent with not wishing to risk putting a speaker box containing between $1.4 million and $10 million worth of methylamphetamine through airport security and in particular the inevitable baggage security screening.
4The accused purchased new unused fishing rods as they departed Perth on the last of 7 days there. Therefore there had been no intention to fish in Perth. If, as the purchase of fishing rods on the last morning in Perth may convey, the accused were proposing to go fishing in Victoria, it would have been cheaper and easier to purchase rods in Victoria rather than transport them unused across Australia as the accused were in the course of doing. It is clear from the times and distances, that they were to travel at least to Port Augusta with the rods without there being any realistically available time to fish. The purchase of new fishing rods on departure from Perth after a week there is consistent with appearing to provide a cover and an ostensible reason for driving rather than flying such long distances, if subjected to any scrutiny, surveillance or being stopped by police in the course of the journey.
5If a hire car were required in Victoria for fishing, a hire car could have been picked up at Melbourne airport, and for the cost of flights ($670) both the one way surcharge of $1,300 and at least three days driving (and the cost of the hire car for those three days spent driving), could have been avoided.
6Both accused attended and purchased the Pioneer sub-woofer speaker box together, shortly before departing by hire car for the eastern States.
7There is no immediately apparent rational reason for the Pioneer speaker box to have been purchased by the accused immediately prior to their departure by vehicle to then drive thousands of kilometres from Perth back to the eastern States, in circumstances where it was not connected for use over the drive home. Particularly so, as there were numerous outlets of the same shopping chain where it could have been purchased upon the accuseds return to NSW.
8There is no immediately apparent rational reason to unwrap the Pioneer speaker box from its protective commercial wrapping, if it was not to be used but rather transported loose in the rear of a vehicle over thousands of kilometres.
9The purchase of the Pioneer speaker box is consistent with a considered plan to conceal illicit drugs in a vehicle travelling across Australia such that they would not be visible from outside or indeed inside the vehicle, not easily searchable or detectable, and would in fact require for discovery the disassembly of what without close inspection may have appeared to be an apparently legitimate part of the vehicle’s sound system.
10The accused were in sole possession of that speaker box when they purchased it at 10.19am on 1 September, and that speaker box was in the sole possession of the accused when apprehended the following afternoon at the Nundroo Roadhouse, containing methylamphetamine of a potential street value of up to $10,000,000.
11Between when the accused purchased the speaker box at 10.19am on 1 September 2017 and when they were apprehended mid-afternoon the next day at the Nundroo Roadhouse someone had unwrapped the box, discarded the protective packaging, unscrewed the speaker cone cover and removed the cover and the speaker cone, placed a blue towel and a pillowcase in the bottom of the speaker then packed 6 double wrapped plastic bags containing methylamphetamine of high purity worth up to $10 million or more on the street, into that speaker box. Then they had re-screwed the speaker cone and cover back onto the box, concealing the drugs contained within. Then the speaker was placed back into the accuseds’ hire vehicle. There was very limited time for this to occur, as between those two times the accused had driven the speaker box 1,110 kilometres from Perth to Caiguna, stayed overnight, and then driven the speaker box a further 738 kilometres to Nundroo Roadhouse. There was accordingly limited time and limited opportunity for anyone else to be involved, particularly without both accused’s knowledge and consent.
12It is practicably impossible that others could have had access to the speaker box during the limited window of time it was in the accuseds’ possession whilst they transported it across Australia without their knowledge, particularly given the time and complication it would have taken to remove the speaker box from the vehicle, take the speaker box to a concealed location suitable for the necessarily clandestine purpose, unwrap and discard its sealed commercial packaging, and then disassemble the speaker box and reassemble it containing the drugs, a towel and a pillowcase otherwise from the rear of the accuseds’ vehicle, dispose of the packaging, and convey the loaded and now very heavy unwrapped speaker box back to, and load it into, the car.
13The pillowcase in the speaker box with the drugs matched a pillowcase loose in the accuseds’ car.
14The reason for using the towel and pillowcase was plainly to protect the bags of drugs from damage, or reduce the noise of the bags tumbling around if the box were to be lifted or shaken by anyone. That process over doubled the weight of the speaker box from 7.35 kilograms to approximately 17.5 kilograms, which such weight would be immediately and obviously apparent to anyone such as the accused who had, as they had both done in the shop upon purchase, carried the empty speaker box.
15It is highly unlikely that such a large quantity of drugs of such high value would be entrusted to two people without their knowledge to drive that distance across Australia unsupervised over the course of several days, without them being informed of what they were carrying so as to ensure that the couriers knew the importance of doing everything possible to avoid detection, everything possible to prevent loss or even theft of such extremely valuable cargo. Further, so that they might be aware of the potentially serious consequences to them of any such loss.
At the end of the day, the overwhelming inference is that both accused were well aware of the large amount of very valuable methylamphetamine they were carrying. In particular are the following factors:
·The logically unnecessary hiring of the Kluger by the accused to drive back to the eastern States.
·The incurring of substantially more cost and at least three days delay by the accused in driving the Kluger back to the eastern States.
·The collaborative purchase by both accused of the item in which the drugs were discovered the next day, securely and carefully packed.
·The purchase of the Pioneer subwoofer speaker box by the accused and driving it across the country for no apparent logical reason, when it could have been easily purchased upon the accuseds return to Sydney.
·The unpackaging of the speaker box when were it simply to be transported back for eventual use as a speaker, factors of ease, logic and good sense would keep it in its protective packaging for a long journey loose in the boot of a vehicle.
·The unpackaging of the speaker box, but then not to use it in the vehicle as a speaker.
·The inherent unlikelihood of someone else entrusting drugs of such extremely high value to both accused, for such a long journey, over a number of days, in a potentially unsecure way,[18] without alerting them to it.
·The inherent unlikelihood of someone else hiding drugs of such extremely high value in a transportable speaker in the rear of the accuseds’ vehicle without the knowledge, consent and agreement of the accused, as:
·The third party would not necessarily know where the accused were going or how the third party would get the drugs back.
·The accused, if unaware of the nature and value, would not take any special care to protect the speaker box against loss, damage or theft.
·The practical difficulty in the short time frames available of someone else actually being able to secrete the drugs in a speaker box without the accused’s knowledge and consent.
·The location of a pillowcase in the speaker box that matched a loose pillowcase in the rear of the vehicle, indicating that a pillowcase had likely been put into the speaker box as padding or protection for the drugs, and consequently that whoever used the pillowcase to pad the speaker box had either sourced it from the vehicle driven by the accused or if sourced separately had decided to retain the second pillowcase and place it in the vehicle driven by the accused.
[18] I.e. in a speaker box loose and visible in the rear of a vehicle likely to be parked and unattended overnight on at least two occasions during the journey.
In accordance with the important principles set down by the High Court as applicable to a circumstantial case, the court must carefully consider not only whether the guilt of each accused is a rational inference arising from the proven circumstances, but whether it is the only rational inference that the circumstances would enable the court to draw.
The accused were caught in physical possession of a very large quantity of very valuable methylamphetamine while driving it across Australia, it being packed carefully hidden within a speaker box they had purchased the day before, after having taken steps to purchase still unused fishing rods which might give the appearance of an innocent purpose for driving across Australia.
The accused plainly made the otherwise illogical decision to purchase the speaker box and the fishing rods in Western Australia, they plainly made the otherwise illogical decision to hire the Kluger and to drive the fishing rods, the speaker box and themselves across Australia, their itinerary indicating there were no unnecessary stops being made along the way for any other purpose that might legitimately explain the mode of travel.
Whilst there was a small hypothetical window of opportunity for someone else to put the drugs where they were, there was virtually no opportunity for someone to do that without the accuseds’ knowledge. How would that other person have accessed the hire car without the accuseds’ knowledge? How would that other person have taken the speaker box away and packed the drugs into it and replaced it, now unwrapped, now at double the weight, without the accuseds’ knowledge? In any event it was plain to the accused that the speaker box in their vehicle, which they had just purchased, had been unwrapped, packaging discarded, with damage to the screws indicating it had been disassembled, and was now over double the weight of the empty box, and was now somehow back in their vehicle.
It’s extremely unlikely that it would have been done by any third party without the full knowledge of the two couriers, for any number of reasons.
The quantity of the drugs was visually substantially more than 1 kilogram, and would have both on packaging them into the speaker box, or on any manhandling of the box, been obviously well in excess of 1 kilogram.
On the other hand, whilst it is always possible to argue, as defence counsel emphatically do, that if the accused were knowingly in possession of the drugs then the crime could have been done slightly better, or slightly more secretly, or slightly more securely, the factual matrix is entirely consistent with this being an exercise by the accused as at least couriers, to knowingly transport a large quantity of what they knew to be illicit drugs across Australia undetected.
The court carefully considers each defence case, everything put and tendered by each counsel, and each and every matter advanced for each accused. In particular the court has regard to the character evidence led on Mr Koo’s behalf and his out of court statement that he had no drugs in the vehicle.
In considering the case against each accused separately, while not specifically put by either counsel, the court has also considered the possibility that even if one of the accused was in knowing possession of the illicit drugs, the other one may not have been. The court has carefully and separately considered in each case whether there is a reasonable hypothesis consistent with innocence, and whether there is a reasonable doubt.
Conclusion – Mr Bae
In relation to Mr Bae, the only rational inference that the circumstances enable the court to draw is that on the day alleged, and the court finds proven beyond reasonable doubt that, Mr Bae knew and was actively and knowingly involved in transporting the substantial quantity of methylamphetamine located when apprehended by police at the Nundroo Roadhouse, and that he was in knowing possession of that drug which was hidden in the Pioneer subwoofer speaker box in the rear of the vehicle he and Mr Koo were driving from Perth to the eastern states, for the purpose of couriering that drug as part of a drug syndicate.
The court finds proven beyond reasonable doubt that in all the proven circumstances Mr Bae knew that it was methylamphetamine, and knew that there was a substantial weight of the drug of at least several kilograms. The court finds proven that Mr Bae knew that the drug was being transported for the purposes of ultimate sale by the syndicate of which he was a part.
In relation to Mr Bae, the court finds each of the elements of the offence of trafficking in a large commercial quantity of methylamphetamine articulated at the outset of these reasons proven beyond reasonable doubt.
Conclusion – Mr Koo
In relation to Mr Koo, after having also considered the additional factors in the case of Mr Koo which include character evidence together with his recorded out of court denial, nonetheless the only rational inference that the proven circumstances enable the court to draw is that on the day alleged, and the court finds proven beyond reasonable doubt that, Mr Koo knew and was actively and knowingly involved in transporting the substantial quantity of methylamphetamine located when apprehended by police at the Nundroo Roadhouse, and that he was in knowing possession of that drug which was hidden in the Pioneer subwoofer speaker box in the rear of the vehicle he and Mr Bae were driving from Perth to the eastern states, for the purpose of couriering that drug as part of a drug syndicate.
The court finds proven beyond reasonable doubt that in all the proven circumstances Mr Koo knew that it was Methylamphetamine, and knew that there was a substantial weight of the drug of at least several kilograms. The court finds proven that Mr Koo knew that the drug was being transported for the purposes of ultimate sale by the syndicate of which he was a part.
In relation to Mr Koo, the court finds each of the elements of the offence of trafficking in a large commercial quantity of methylamphetamine articulated at the outset of these reasons proven beyond reasonable doubt.
Verdicts
Mr Bae - Guilty
Mr Koo - Guilty
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