R v Kroni - [2019] SADC 46

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KRONI
Criminal Trial by Judge Alone
[2019] SADC 46
Reasons for the Verdict of Her Honour Judge Schammer
9 May 2019
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
The accused is charged with trafficking in cocaine. On 26 August 2017 the accused was searched after disembarking a bus at the Adelaide Bus Station and found in possession of a mixed substance weighing 27.1 grams, containing 17.4 grams of pure cocaine. He was carrying two mobile phones and $1330 which he claimed to have won at the Crown Casino. In a subsequent search of his home, police found three further mobile phones, two Samsung tablets, an Apple Mac computer, two rolls of plastic wrapping, a piece of plastic wrapping and a heat sealer. Analysis of the electronic devices did not reveal any material consistent with drug trafficking. The heat sealer was not forensically analysed to test for the presence of illicit drugs.
The accused claimed the cocaine was in his possession for personal use. The accused gave evidence and called evidence from his partner.
Verdict: Guilty
Controlled Substances Act 1984 s 4, s 32, referred to.

R v KRONI
[2019] SADC 46
Introduction

The accused, Ndue Kroni, is charged with one count of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (the Act).
It is alleged the accused committed the offence at Adelaide on 26 August 2017, by having in his possession 27.1 grams of a mixed substance containing 17.4 grams of cocaine.
The accused elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act 1927.
The accused admitted he was in possession of a trafficable quantity of cocaine on the relevant date, but denied he intended to sell any of it. The accused maintained that the cocaine was for his own personal use, albeit he acknowledged that in hindsight he may have shared the cocaine with friends if requested by them to do so.
As such the sole issue in dispute and for my determination is whether the accused intended to sell the cocaine.
General Directions
The prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. The accused is presumed by law to be innocent of the charge unless and until the evidence that I accept satisfies me that each and every element of the offence as charged has been proven beyond reasonable doubt.
It is not sufficient for the prosecution to show a suspicion of guilt or even to demonstrate probable guilt. Before I can convict the accused of the offence, I must be satisfied that the prosecution has proved each of the elements of the offence beyond reasonable doubt.
I must assess each witness, including the accused, as to their truthfulness and their reliability and I must determine whether I can rely upon the evidence a witness gives. I can reject or accept all or part of a witness’s evidence.
The accused elected to give evidence. He was under no obligation to do so. I must assess his evidence in the same way as I assess that of any other witness. In presenting a case, the accused has not assumed any burden of proof, that burden always remains with the prosecution.[1] I remind myself that even if I reject the evidence presented by the defence in its entirety, that fact does not bolster, nor strengthen the prosecution case. It remains for the prosecution to prove each element of the offence charged beyond reasonable doubt.
[1] Save and except that as required by virtue of the operation of s 32(5) of the Act.
The accused was not obliged to answer the questions directed to him by police in a record of interview, but he chose to do so. The statements or expressions of opinion made by a police officer to the accused during the record of interview are not evidence. Only the answers given by the accused are to be used as evidence in this case, although of course the questions that were asked of the accused may provide a context or assist to explain his answers.
In this case, an expert, Detective Brevet Sergeant Pedder, gave evidence.[2] He explained that he had been a police officer since 1976 and since 2000 had been involved in the investigation of serious drug offences. He said that in that role he communicated regularly with drug offenders, illicit drug users and forensic chemists, undertook courses related to the illicit drug trade, lectured on illicit drugs and read literature and publications on illicit drugs. As such he said he had developed an understanding of the distribution and use of cocaine in this State.
[2] Noting his expertise was not challenged by the accused.
Detective Brevet Sergeant Pedder gave evidence as to the method of use of cocaine, its packaging and pricing and what investigators regularly saw at scenes of drug crime.
The ordinary rule is that a witness may speak only to the facts and not express opinions. An exception to that rule is that persons who are qualified in a particular area may express an opinion. That opinion must be relevant to their particular areas of expertise and that opinion must be based wholly or substantially on their knowledge, training or experience. As I am the sole judge of the facts, I am entitled to accept or reject any opinion evidence as I see fit. Before rejecting that evidence, I must give it consideration, and consider how it fits with any other evidence that I have heard and accepted on that topic.
The accused gave evidence that he met with Mr Fazzito and a friend, Mark, while he was in Melbourne. Neither Mr Fazzito, nor ‘Mark’ were called to give evidence.[3] I must not speculate about any evidence I have not heard and I must not presume that because potential witnesses were not called to give evidence that their evidence would have, or would not have, assisted either the defence or prosecution case.
[3] Neither were other potential witnesses, Ardi, Dario and Angelo.
There was discreditable conduct evidence admitted in this trial.
The accused gave evidence that he was a user of cocaine and admitted he was in possession of cocaine. That evidence was admitted by way of the accused’s explanation as to why he came to be in possession of the cocaine and what his intention was with respect to that cocaine. I can use the evidence for this purpose.
A sum of $1330 in cash was seized by police following a personal search of the accused on 26 August 2017. The prosecution contends that it can be inferred from this evidence that the cash was a tool of the accused’s trade as a drug trafficker, as cash is frequently used in drug transactions. The accused gave evidence to explain why he had the cash in his possession.
If I am satisfied the accused had possession of cash from the proceeds of previous drug dealing or to serve as a ‘float’ for ongoing drug dealing, then I may regard it as relevant as to why he had possession of the cocaine on 26 August 2017. The prosecution relies upon the evidence as a piece of circumstantial evidence from which it submits I should make inferences such that I reject the accused’s explanation as to why he had the cocaine in his possession. The evidence can be used for this purpose.
However, I must not use the discreditable conduct evidence to reason that the accused is more likely to have committed the offence because he has engaged in discreditable conduct.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice, or fear and not influenced by public opinion in relation to this matter.
The Evidence
The prosecution called evidence from Detective Brevet Sergeant Shepherdson and Detective Brevet Sergeant Pedder.
The accused gave evidence and called evidence from his partner, Johannah Schultz.
The accused spoke with a strong accent and English is not his native language.
I am mindful of the difficulties that can be encountered by a witness giving evidence in such circumstances. Apparent inconsistencies or unusual responses to certain questions may, in part, be explained by language and communication difficulties. I take the same into account when assessing the accused’s evidence.
Much of the prosecution case was the subject of agreement, as set forth in Agreed Facts, tendered as Exhibit P1. Various exhibits were tendered by the prosecution and defence.
Elements of the Offence
The prosecution must prove each element of the offence beyond reasonable doubt, namely:
1. The substance in question is a controlled drug.
2. The accused trafficked in the controlled drug.
3.When trafficking in the substance the accused did so knowing that the substance was a controlled drug, or he was reckless about that fact.
As to the first and third elements, the prosecutor opened the case on the basis that it was an agreed fact that cocaine was a controlled drug and that the accused knew the substance was a controlled drug.[4]
[4] T 6.18-22, however there is no mention of this in the Agreed Facts.
Cocaine is a ‘controlled drug’ pursuant to the Regulations under the Act.[5]
[5] Regulation 5(1) of the Controlled Substances (C D, P and R) Regulations 2014 (the Regulations), Schedule 1, Part 2.
I am satisfied beyond reasonable doubt from the accused’s evidence that he knew cocaine was a controlled drug or was reckless about that fact.
Pursuant to s 4 of the Act, sell means sell, barter or exchange, offer or agree to sell, barter or exchange or expose for sale, barter or exchange.
Pursuant to s 4 of the Act, traffic in a controlled drug means—
(a)     sell the drug;
(b)     have possession of the drug intending to sell it; or
(c)     take part in the process of sale of the drug.
Pursuant to s 32(5) of the Act:-
If in any proceedings for an offence against subsection (1), (2), (2a) or (3) it is proved that the defendant had possession of a trafficable quantity of a controlled drug, it is presumed, in the absence of proof to the contrary—
(a)in a case where it is alleged that the defendant was taking part in the process of sale of the drug, that the defendant—
(i)was acting for the purpose of sale of the drug; and
(ii)had the relevant belief concerning the sale of the drug necessary to constitute the offence; or
(b)in any other case – that the defendant had the relevant intention concerning the sale of the drug necessary to constitute the offence.
It is an agreed fact that on 26 August 2017 the accused had in his possession rock material and powder weighing 27.1 grams, containing 17.4 grams of pure cocaine.[6]
[6] Exhibit P1[25].
A trafficable quantity of cocaine contained in a mixture is a quantity of the mixture equal to or in excess of 2 grams.[7]
[7] Section 4 of the Act; Reg 6(7) of the Regulations, Schedule 1, Part 2.
As such, the accused had in his possession a trafficable quantity of cocaine and it is presumed he had the cocaine in his possession for the purpose of selling it, unless he proves that he had it for some other purpose.
The accused does not have to satisfy me beyond reasonable doubt that his purpose was not to sell the cocaine, rather it is sufficient if he persuades me of this on the balance of probabilities. In other words, to rebut the presumption in s 32(5) of the Act, the accused must persuade me that it is more likely than not that his intention was not to sell any of the drug.
If I am not so satisfied, the prosecution will have proved the second element of the offence, beyond reasonable doubt.
Undisputed Facts
On 24 August 2017, the accused travelled overnight by bus from Adelaide to Melbourne. Upon his arrival, he stayed in Victoria for one night only and on 26 August 2017, returned by bus to Adelaide.
At approximately 6.40 pm on 26 August 2017 the accused disembarked from a bus at the Adelaide Central Bus Station in Franklin Street, Adelaide, carrying a blue duffel bag.[8] After collecting a small suitcase from the under-cargo area of the bus, the accused walked towards the terminal exit. As he did so he was approached by a member of the South Australian police force and told he was to be subjected to a personal search under the Act.
[8] Exhibit P2 photographs 1 and 2.
The accused was searched by Officers Whyatt and Russet. Nothing of interest was found in the accused’s small suitcase. In the blue duffel bag police found a blue jacket and a light-coloured denim jacket. Two mobile phones were found in an Armani bag carried by the accused. These were an Apple iPhone 7 A1778, containing a SIM card (the iPhone) and a Samsung SM-A510FD containing a SIM card (the Samsung phone).
Inside the denim jacket police found a folded up white paper towel, smeared with toothpaste.[9] Inside the white paper towel was a vacuum sealed plastic bag.[10] Inside the vacuum sealed plastic bag was another plastic wrap. Inside that plastic wrap was a second sealed bag containing a further plastic bag.[11] In that plastic bag there was a crystalline substance in rock form with a total weight of 27.1 grams, containing a pure amount of cocaine totalling 17.4 grams.[12]
[9] Exhibit P2 photographs 4 and 5.
[10] Exhibit P2 photograph 6.
[11] Exhibit P2 photographs 7-10.
[12] Exhibit P1 [25].
A plastic bag and two paper towels found inside the duffel bag were examined for the presence of DNA but no comparative results could be obtained. No fingerprint profiles suitable for analysis were found on those items.[13]
[13] Exhibit P1 [26]-[30].
The accused was arrested and interviewed by Officers Gould and Whyatt on 26 August 2017.
During the record of interview Officer Gould informed the accused that a sum of cash was found in his wallet during the search, and asked the accused if he knew how much cash was in the wallet. The accused responded, ‘about thirteen hundred I reckon’. The accused was told the cash would be seized by police as they believed it was involved with proceeds from drugs. The accused’s immediate response to being told this was that he had won the cash at the casino ‘last night’, being the Melbourne Casino. He explained he did not have a receipt for this, but he had won ‘seven grand something’ in two jackpots.
The police also seized from the accused a number of Commonwealth Bank receipts found in his possession and a document relating to the ‘Pensione Hotel Melbourne’.
At about 8.50 pm on 26 August 2017 the police searched the accused’s unit in West Lakes Shore under the authority of a general search warrant.
During the search of the unit they found various items in the accused’s name, including a debit card and a passport.[14] They also located and seized the following items:[15]
[14] Exhibit P2 photograph 14.
[15] Exhibit P1 [41].
1.Two rolls of plastic wrapper, located in bedroom 1.[16]
2.An Apple iPhone (the second iPhone), located in bedroom 1.[17]
3.A plastic wrapper approximately 40 cm in length located inside a vanity cupboard in the bathroom.[18]
4.A Telstra ZTE 126 smart phone containing a SIM card (the Telstra phone) found inside a wardrobe in bedroom 1.[19]
5.An Alcatel One Touch 5017A smart phone containing a SIM card (the Alcatel phone) found inside a wardrobe in bedroom 1.[20]
6.A Blackberry smart phone (the Blackberry), found inside a wardrobe in bedroom 1.[21]
7.A Samsung Tablet GT-P5110, not containing any SIM or memory card (the Samsung GT tablet) found on a lounge room coffee table.[22]
8.A Samsung Tablet SM-T8057, containing a SIM card but no memory card (the Samsung SM tablet) found on a lounge room coffee table.[23]
9.An Apple Mac computer (the Apple Mac) found on a lounge room coffee table.[24]
10.A Foodsaver Heat sealer machine (the heat sealer), found in a cardboard box on the floor in the garage.[25]
[16] Exhibit P2 photograph 18 (noting this depicts only one roll of plastic wrapping, and the Agreed Facts refer only to one such roll); Exhibit P7.
[17] Exhibit P2 photograph 19.
[18] Exhibit P2 photograph 20; Exhibit P8.
[19] Exhibit P2 photograph 21.
[20] Exhibit P2 photograph 22.
[21] Exhibit P2 photograph 23.
[22] Exhibit P2 photographs 33, 35 and 36.
[23] Exhibit P2 photographs 33 and 35.
[24] Exhibit P2 photographs 33, 34 and 37.
[25] Exhibit P2 photographs 40-43; Exhibit P10.
The iPhone and Samsung phone found on the accused, the Telstra phone, the Alcatel phone and the two Samsung tablets were submitted to the Electronic Crimes Section of the South Australian Police Department for analysis. Nothing of relevance was recovered on any of these devices.
Prosecution Case
The prosecution case relied on a combination of circumstantial evidence from which it was submitted the court should infer that the accused intended to sell at least some of the cocaine in his possession and reject the accused’s claim to the contrary.
Officer Shepherdson’s evidence was largely uncontroversial and it was through him that much of the evidence was tendered by the prosecution.
He was the Investigating Officer and took the photographs contained in Exhibit P9.[26]
[26] T 10.16-18; T 16.9-23.
In cross-examination he confirmed that no forensic analysis was undertaken of the heat sealer to determine the presence of any drugs on that machine.[27] He also confirmed:
[27] T 19.17-38.
1.that he did not make any enquiries to confirm who owned the motorcycle also found in the accused’s garage as depicted in photograph 40 of Exhibit P2;[28]
2.the document seized from the accused by the police during the record of interview from the Pensione Hotel, Melbourne was dated 25 August 2017;[29]
3.he had made enquiries with the Crown Casino in Melbourne to ascertain whether the accused’s claim that he had won approximately $7,000 at that casino on 25/26 August 2017 was correct, and that ‘they weren’t very forthcoming’;[30]
4.various mobile phones found in the accused’s possession were analysed by E-Crime and nothing consistent with drug trafficking was found on those phones;[31]
5.he had made no enquiries to ascertain the owner of the various mobile phones found in the accused’s possession and there was no evidence therefore as to their ownership;[32]
6.other than the $1,330 cash found on the accused, police found no other cash in his possession or any evidence of unexplained wealth;[33]
7.no tick lists were found during the search of the accused or of his unit;[34] and
8.no cutting agents were found during the search of the accused or of his unit.[35]
[28] T 20.1-10.
[29] T 20.16-26.
[30] T 20.33-21.7.
[31] T 21.19-25.
[32] T 21.26-32.
[33] T 21.8-9; T 21.35-38.
[34] T 21.11-12.
[35] T 22.1-11.
The mixture containing cocaine found in the accused’s possession weighed 27.1 grams and contained 17.4 grams of pure cocaine. As such, 64 per cent of the mixed substance comprised cocaine.
Officer Pedder gave evidence that cocaine was usually sold in powder form; in gram lots, or in ‘eight-balls’ (being 3.5 grams or an eighth of an ounce) or in ounces (28 grams).[36] Normally it was consumed either by injecting it or snorting it, although it could be smoked.[37]
[36] T 25.6-26.
[37] T 25.27-26.7; T 24.34-25.5.
He explained that cocaine was not sold pure and in his experience was always mixed with other substances so as to bulk up the amount to be sold, decrease purity and increase profit. Such substances included baking soda, anaesthetics and sugars.[38] He said that in his experience, in South Australia in 2017, average levels of purity in cocaine mixtures encountered during drug investigations ‘was around 50, 54 per cent something like that’. As such the mixture containing cocaine found in the accused’s possession was in the higher range as to purity.[39] He agreed in cross-examination that average levels of purity of cocaine in the eastern states may be different, and that this could be because it was being purchased in a location closer to where it was coming in to the country.[40]
[38] T 27.1-12.
[39] T 27.13-23.
[40] T 35.9-12

Officer Pedder said that depending on the purity, as at August 2017 cocaine sold in South Australia within the following price ranges:[41]
(a)if sold in one gram amounts – between $300 – $400.
(b) if sold in 3.5 gram lots (8-balls) – between $900 – $1400.
(c)if sold in ounces (28 grams) – between $7000 – $9000.
[41] T 30.6-24.
He said that normally lower prices would be paid for a drug of less purity[42] and that prices could fluctuate due to market forces, including the availability of the drug.[43] He agreed with a proposition put to him in cross-examination that a dealer may be prepared to sell for a lesser sum if he wanted to offload some of the drug quickly and that the greater quantity of the drug a dealer had to sell, then the greater was the ability for there to be movement in the price.[44]
[42] T 27.24-26.
[43] T 33.31-34.6.
[44] T 34.7-35.3.
He said that cash was one of many methods used in drug transactions and that the reason large amounts of cash were seen at drug scenes was relevant to the actual purchase of drugs.[45]
[45] T 31.14-19; T 31.25-27.
Officer Pedder gave evidence that cocaine was usually seen in press-seal plastic bags. It was not common to see it heat-sealed, although if sold in larger lots, for example kilograms, it may be wrapped in blocks in either plastic or paper.[46] He was not aware of cocaine having any distinct odour, but agreed that if it was sealed, or packaged in multiple packages or if the packaging used was smeared in a minty substance, its odour would be decreased so as to mask its smell to police dogs.[47]
[46] T 27.27-28.5.
[47] T 28.18-29.6.
Officer Pedder was asked about the potential use of plastic wrapping of the type depicted in photograph 18 in Exhibit P2 in the drug trade.[48] He said that normally this item was found with cannabis being ‘usually packaged one pound lots of cannabis with vacuum heat-seal bags’.[49] The plastic wrapping could also be used generally in a drug enterprise to keep the smell out or to enable packaging in weighed out amounts for sale.[50] He agreed in cross-examination that plastic wrapping of this type could be purchased in supermarkets and was not an unusual commodity to be found in a home.[51]
[48] Found inside bedroom 1 of the accused’s unit.
[49] T 29.8-18.
[50] T 29.19-28.
[51] T 35.13-19.
He explained that he had seen heat-sealing machines similar to the type found in the accused’s garage at the scene of drug crimes and that they were used to package illicit drugs, using plastic wrapping.[52]
[52] T 29.29-30.5.
Officer Pedder said that other items regularly seen at drug scenes varied depending on the type of drug involved but included press-seal plastic bags, weights, implements for use, cash normally in denominations of $50 or $100 notes, large amounts of cash and mobile phones.[53] Often multiple mobile phones would be found, with one phone used for overt or legitimate purposes and another or other phones used for covert purposes in the sale of drugs.[54]
[53] T 30.32-36; T 31.21-24.
[54] T 31.2-13.
In cross-examination Officer Pedder agreed that scales were often found as a tool used to weigh drugs for sale, as were ‘tick lists’ indicating drug transactions and debts. He agreed that often material would be found by police on mobile phones or electronic devices using terminology consistent with drug trafficking. He also agreed that often police would find signs of unexplained wealth associated with the investigation of drug offences.[55]
[55] T 32.25-33.12.
Officer Pedder said that cocaine was not made in Australia and usually entered the country from overseas via the eastern seaboard.[56] It was often transported into South Australia from interstate, either concealed on a person or persons or in bags, with all modes of transport used (that is, car, bus, train, plane). He commented that bus transport may be cheaper than other forms of public transport and that bus terminals did not usually have security screening as occurred in airports.[57] He agreed with a proposition that hire cars were also used as a means of travel by drug traffickers importing drugs from interstate.[58]
[56] T 33.23-30.
[57] T 31.28-32.23.
[58] T 33.13-16.
I accept the evidence of Officers Shepherdson and Pedder, which was not, in any event, controversial.
Defence Case
The accused gave evidence that he was 34 and came to Australia in 2009, having been born in Albania. He said he was presently working as a disability carer for his girlfriend’s family,[59] although at the time of the offending he was employed by La Trattoria, an Italian restaurant.[60]
[59] T 39.36-40.6.
[60] T 58.8-16.
The accused said he had been in a relationship with his girlfriend, Ms Schultz, for about six years. They were now living together and had been so since just prior to his arrest – he said it was ‘about June, August she moved with me’ (2017). She had previously been living in Melbourne.[61]
[61] T 40.23-41.3.
The accused said his purpose for travel to Melbourne on 24 August 2017 was to see his immigration lawyer, Frank Fazzito. He had made those arrangements by telephone about a week before the journey. He said he had seen Mr Fazzito ‘more than a few times’ before and had been dealing with him since 2016.[62]
[62] T 41.8-36.
The bus left Adelaide at around 7 to 8 pm and arrived at the bus station in Melbourne the next morning at around 6 am.[63]
[63] T 40.17-20; T 41.37-42.7.
The accused said that upon his arrival in Melbourne he caught a taxi to a café in Albert Park to meet a friend Mark, so as to pass the time.[64] Mark knew Mr Fazzito, and drove him to Mr Fazzito’s house to collect Mr Fazzito.[65]
[64] T 42.8-19.
[65] T 42.24-33.
He said Mark then drove them all to Mr Fazzito’s office in North Melbourne, where the accused met with Mr Fazzito to discuss immigration issues for about half an hour.[66]
[66] T 42.28-43.13.
Exhibit D12 is a copy of an email purportedly sent by Mr Fazzito to the accused on 7 July 2017, enclosing a form for the accused to have completed and signed by a doctor and then returned to him. In the email Mr Fazzito describes himself as a Migration Consultant with an address at 103 Howard Street, North Melbourne, Victoria, 3051.
The accused said that after the meeting, he, Mr Fazzito and Mark went to the Croatian Club, where they stayed for around two to two and a half hours, had a few beers and lunch.[67]
[67] T 43.14-27.
In cross-examination the accused said he was seeing Mr Fazzito in relation to an application for citizenship, and that he did not know, beforehand, how long the meeting would take.[68] When asked why he needed to meet in person with Mr Fazzito, he said:[69]
AWell, I think because he was going to ask me questions of things, and sign a few papers, and I can’t remember, I can’t really remember, but I know it was important to be there, and before that he ask me before, long time, he went overseas in Italy because his mother was something sick and he didn’t come for a month, so things mess a bit - he went to Italy to see his mum because was dying or something and the things got bit longer, my application thing took longer until he came back.
…
QThe application got delayed because of things out of your control.
AYeah, delayed. I thought long story and I was bit confused, like not really explained very well from him, what been happening. That’s why I went to see him, to explain if he lodge application, when receive something from immigration or something - I didn’t understand things at that time properly.
[68] T 82.5-24.
[69] T 84.11-31.
The accused gave evidence that after leaving the Croatian Club he went to his hotel on Spencer Street, ‘Pensione’, where he stayed ‘for a bit’ and then in the late afternoon he went to the Crown Casino.[70]
[70] T 43.28-44.17.
While at the casino he played the pokies, at first having no success. He lost money and needed to make a number of withdrawals from his bank account to keep playing. He withdrew $450 (which he lost on the pokies) and then $250 (which he also lost on the pokies). He made a third withdrawal of $450 and continued to play the pokies, finally having success. He said he won $2500 once and then continued to play, ‘just playing small’ and won the ‘middle jackpot’, being about $4000.[71]
[71] T 44.24-45.27.
Exhibit D11 is pages 1 and 10 (only) of a 16-page statement for a Commonwealth Bank Smart Access Account in the name of the accused. The accused gave evidence that this was his ‘everyday account’ being the account into which his wages from La Trattoria were deposited and from which he made withdrawals for living and other expenses. Those expenses included monthly payments of $95 made by him to a charity, Red Cross and monthly loan repayments.[72]
[72] T 57.16-38.
The opening balance of this account as at 1 May 2017 was $4909.60. As at 23 August 2017 the balance of the account was $13,444.22 and as at 12 September 2017 the balance was $11,238.55. The accused was not questioned as to the sources of monies deposited into the account, save and except he confirmed that his wages from La Trattoria of around $905–$932 per week were deposited into the account. He said he also earned a small amount of income from painting at or about that time, the wages from which would ‘sometimes’ go into an account.[73]
[73] T 58.35-38.
The statement shows three separate withdrawals of $250, $450 and $450 from different ATMs at Crown Melbourne on 25 August 2017, consistent with the accused’s evidence. The statement shows no other withdrawals during the accused’s trip to Victoria, save for a $2 Video Ezy Express withdrawal at Shepparton on 24 August 2017.
In cross-examination the accused said that all of the money he withdrew from ATMs at the Crown Casino that night went on playing poker machines.[74]
[74] T 59.12-35.
The accused said that in total he won about $7500 at the Crown Casino that night.[75]
[75] T 46.25-26.
He said he met a friend, Ardi in the bar at the Casino. He had first met Ardi in Melbourne when he had gone to see his girlfriend there.[76] In cross-examination he confirmed he had already won over $7000 on the pokies that night before meeting Ardi in the bar.[77]
[76] T 46.29-47.1.
[77] T 62.3-7.
Ardi asked him if he wanted a line – and by this he meant; would he like to snort a line of cocaine, something they had done together on an earlier occasion. He agreed to that.[78]
[78] T 47.9-30.
The accused said he snorted the cocaine in his hotel room, which was not far.[79] Ardi was with him at that time. He said this took not even 10 minutes, during which time they did a few lines.[80]
[79] T 47.31-33.
[80] T 47.34-48.6.
The accused gave the following evidence-in-chief:[81]
[81] T 48.7-49.8.
QWhat did you do then.
AThen we went out and I asked him if he got a gram.
QYou asked him.
AIf he got a gram.
QSo you left the hotel.
AYep.
QWhere did you go.
AI went back to the casino.
QWith him.
ANo, he went somewhere else.
QSo do I understand your evidence to be that you asked him if you could score a gram.
AYep.
QWhat did he say.
AHe said he can’t do a gram, he can do an ounce.
QDid he explain why.
AHe said I can do a good price on ounce, I don’t sell grams.
QWas there discussion about how much he would sell an ounce to you for.
AYes.
QWhat did he say.
AHe said $6,000.
QHad he been aware that you had won some money earlier.
AYeah, I think, yeah, because - yeah, because when I went I was happy and excited and he knew all that.
QDid he know specifically the amount or just generally that you had a win.
ANo, he just knew that I won a lot, good money. Like, was a lot.
QSo was there agreement reached as to how much you would pay.
AYeah.
QHow much was that.
A$6,000.
He said he then made arrangements for Ardi to meet him outside of the front of his hotel with the ounce of cocaine. He said that Ardi gave him the cocaine wrapped in a plastic bag with ‘paper - kind of toilet paper around’. He identified this as the package depicted in photograph 5 of Exhibit P2.[82]
[82] T 49.18-38.
He then gave the following evidence:[83]
[83] T 50.5-23.
QWhat did you do then.
AI said ‘Wait here and I go in the room and get the money’. I went inside and get the money, $6,000.
QDid he give you the cocaine before you went and got the money.
AYes.
QOr after.
ABefore.
QSo you came back with 6,000.
AYes.
QWhat did he do.
AHe went in the car and counted the money and I wait until he says okay.
QThen what happened then.
AHe says okay and he left.
QDid you have any of that cocaine that night that he gave you.
ANo, I wanted but it was wrapped up and, like, I couldn’t.
The accused said he was not responsible for putting the toothpaste like substance on the bag of cocaine.[84]
[84] T 50.24-31.
In cross-examination the accused said that when he met Ardi outside his hotel room to get the cocaine, he did not have the cash on him, as he had left it in the room ‘because I was scared I’m going to start in the pokies and I didn’t want to lose it again.’[85]
[85] T 65.7-10.
He said he had purchased the cocaine for himself. He described having been a user of cocaine for about two years prior to his arrest. He said his cocaine use varied such that on a heavy week he may use as much as an 8-ball of cocaine, but at other times he used less. He said how often he used cocaine would depend on what time he went out and said ‘when I buy myself once a week, if someone offers me, could be like more.’ He said he had purchased an ounce of cocaine from Ardi in Melbourne because it was cheap.[86]
[86] T 55.27-28; T 55.29-56.26.
The accused said he expected the cocaine would last him for a month or so.[87]
[87] T 56.27-28.
He was asked during examination-in-chief if he ever intended to sell any of the cocaine and he said: ‘Never in my life’.[88]
[88] T 57.10-11.
He said after Ardi counted the cash and left, he went into his hotel room and tried to sleep. He said earlier that day he had bought a return ticket to Adelaide on a bus due to depart at 6 am the next morning.[89] He said that he missed that bus and as a result was assisted by the ticket office to catch a train to Ararat and then a bus from Ararat to Adelaide.[90]
[89] T 50.32-51.2.
[90] T 51.3-26.
The accused said the iPhone police found during the search of his person by police was his phone, but the Samsung phone was not. He said he found the Samsung phone while he was sitting at the train station, waiting for his train, and it was just lying there sitting on the side of the seat. Although it was not his, he picked it up.[91] When asked why he had not handed in that phone at the train station he stated: ‘I didn’t have time for that, even to think about it.’[92]
[91] T 52.2-19.
[92] T 52.20-21.
In cross-examination the accused said that he thought the Samsung phone was on, and that while he was on the bus he ‘probably’ tried to open it, but could not do so.[93]
He was asked what he was planning to do with the Samsung phone and he said he did not know, that he had not had much sleep that night and was tired.[94] He then said: ‘Probably give it back to the police or to someone like - whoever it is, the information thing, to drop or …’[95]
As to the three mobile phones found by police during the search of his unit he stated that:
(a)the Telstra phone found inside a wardrobe in bedroom 1 was not his phone, that he did not know whose phone this was and that it was in the unit when he had moved in;[96]
(b)the Alcatel phone was his;[97] and
(c) the Blackberry belonged to his friend Dario, from Italy.[98]
In cross-examination the accused said that he had replaced the Alcatel phone with a new phone, being the iPhone. He said it was broken and too expensive to fix.[99]
He also explained that he had met Dario playing soccer, that Dario was Italian and was new to Australia. He said Dario had been living with him for a few months but had left to go to Melbourne and had left a few things behind, including a suitcase containing some ‘hairdresser things’. He had also left some clothes. He said ‘he was expecting to come back and pick his clothes, the things he left behind there.’ He said he did not know where Dario lived and that he thought ‘he went back home because he had a problem with his mother.’[100]
[93] T 66.27-33.
[94] T 67.6-10.
[95] T 67.15-16.
[96] T 52.38-53.13.
[97] T 53.14-17.
[98] T 53.18-54.14.
[99] T 68.6-17.
[100] T 69.7-32.
He said the two Samsung tablets and the Apple Mac found by police during the search of his unit were his.[101]
[101] T 54.19-37.
During examination-in-chief the accused said the motorcycle in his garage belonged to Dario, as did the heat sealing machine found in the cardboard box in the garage. He denied ever using the heat sealer.[102]
[102] T 54.38-55.20.
In cross-examination a proposition was put to the accused that Dario was not the owner of or in possession of the motorcycle. The accused agreed that it was not Dario’s motorcycle and said that he had either made a mistake or there had been a misunderstanding when he gave his evidence-in-chief on this issue. He said that ‘Angelo’ was responsible for the motorcycle. He explained he used to work for Angelo ‘in the pizza bar delivery’, that Angelo used to live in a street next to Halifax Street and that he did not have enough garage space to keep the motorcycle at his place.[103]
[103] T 70.12-71.5.
He was asked why he had let both Angelo and Dario store things in his garage and said:[104]
Because I had the garage empty and I didn’t need it, so I didn’t have - and it was for a short time, so why not?
[104] T 71.9-12.
The following exchange occurred during cross-examination:[105]
[105] T 72.10-73.11.
QWhy was that item at your house.
AWhy was the sealer?
QYes.
ABecause it was left there and I didn’t know what to do with it, if he coming back to pick up his things or not.
QSo Dario has just left the heat sealer in the shed and he’s left a phone in the wardrobe in the bedroom.
ANo, the phone he left in the - I think he left in the suitcase because my girlfriend moved things around. I still have that plastic bag he left the clothes in my home, still yet I have them. So, it’s not - maybe my girlfriend moves things because she cleans. It’s not just - it’s hard to explain exactly why it was there or where it was there.
QTo clarify, you say the items have been moved since they were put there.
AYeah, anyone could move because have friends over and sometimes, I don’t know.
QWhat do you say about the roll of plastic wrap that’s been tendered in this trial, the plastic wrapper being found in the bedroom.
AYeah, I think the plastic wrap was left by him and that was - I think my girlfriend wanted that for his dad because he fish, he go fishing. I think she was going to get that for his dad.
HER HONOUR:
QDid you say he was going to get that for his dad.
AYeah.
QAs in Dario’s dad.
ASorry, her dad. Not his dad, her dad.
XXN
QSo your girlfriend’s name is Johannah.
AYeah.
QJohannah was planning on using Dario’s plastic wrap to give to her dad, is that correct.
AI’m not exactly sure but she wanted - she asked for that. I remember she asked me and I said ‘You could have it’. I didn’t see it’s importance even to not have it.
In cross-examination the accused confirmed he had previously had cocaine at his unit. He was asked what amounts and he said:[106]
I remember once I stayed two nights up, I had one - maximum I had one eight-ball.
[106] T 73.35-37.

He said that the maximum amount of cocaine he had in his residence at any one time was an eight-ball, he would store the cocaine in the plastic it came in and that he never separated an eight-ball into small amounts.[107]
[107] T 74.2-15; T 75.1-3.
The following exchange occurred in cross-examination:[108]
[108] T 74.27-76.8.
QSo hypothetically if you had that 3.5 g of cocaine at your house and you were to go out for the night.
ANo.
QYou wouldn’t take it with you.
AI wouldn’t take it with me.
QSo when you’re out and you’ve given some evidence about having higher amounts of cocaine when you’re out, where are you sourcing that cocaine from.
AFrom someone else.
QBut not in eight-ball amounts.
ANever, no, no. Unless I’m home and doing myself home. Even when I get that amount, I do home.
QThe largest amount you’ve had in your house when you’re consuming cocaine is 3.5 g, an eight-ball.
AYeah.
QHow do you explain that you were coming back on the bus to Adelaide with an ounce of cocaine.
AWhat do you mean how would I explain?
QIf you hadn’t been arrested what you were you going to do with that cocaine.
AJust smoke it and snort it.
QBut where would you have stored that cocaine, that 1 ounce.
AProbably just home.
QSo for the first time in your two years that you’ve been consuming cocaine you would taken to your home where your girlfriend lives an ounce of cocaine for the first time.
AWhere I live.
QWhere you live.
AYeah.
…
QAnd where were you planning to store it in the house.
AI didn’t have any - like, I didn’t thought about where to put it yet but probably somewhere, anywhere in the house. I didn’t see - I didn’t see that problem to put in the house anywhere.
The accused denied in cross-examination that he had ever considered selling the cocaine, even though he could have sold half of it and still had enough to last him a long time.[109] He acknowledged that he may have shared the cocaine with a friend or friends who had in the past offered him cocaine, not as some form of ‘payback’, rather he said: ‘It’s about not being selfish with friends that I cared about.’[110]
[109] T 78.23-38.
[110] T 79.18-35.
He denied that had he not been arrested, he would have separated the cocaine into smaller amounts.[111]
[111] T 80.11-23.
Ms Schultz gave evidence that she had known the accused for just over six years and that he was her partner. At the time of his arrest for the alleged offending she had been living with him in his unit at West Lakes Shore for only a couple of months, noting she had previously lived both in Melbourne and with her parents in Goolwa.[112]
[112] T 88.10-31.
Ms Schultz said that on 24 August 2017 she drove the accused to the bus station so that he could travel to Melbourne for the purpose of seeing his immigration officer.[113]
[113] T 88.34-89.12.
Ms Schultz gave her occupation as an international model and denied being a user of cocaine at any time.[114]
[114] T 88.6-7; T 90.26-29.
She said she had only ever seen the accused use cocaine once. She described being at Robe to undertake a modelling assignment, when she made a decision to visit him unexpectedly, as he had been quite down. She said she caught him doing cocaine and that this came as a shock to her. She said he admitted to her that he had been using cocaine for two years.[115]
[115] T 90.13-25.
In cross-examination Ms Schultz described seeing the accused snorting cocaine on a table in the living room. She reiterated this was the only time she had ever see him using cocaine, although she said she knew something was not quite right with his behaviour during the two months she was living with him as he seemed down and depressed.[116] She said she was not aware that he had cocaine stored in the unit.[117]
[116] T 92.26-93.3.
[117] T 93.35-37.
She denied ever going out to socialise with the accused and his friends at any time, although she had met some of his friends and claimed she had only ever gone out just with the accused.[118]
[118] T 93.11-34.
Ms Schultz also gave evidence that her father was a fisherman. During her evidence-in chief she was asked about the roll of plastic that was seized from the house and if she had made any decision as to what was going to be done with it. She responded:[119]
AYes. My father used them to keep his fish fresh in the freezer and also he gives them to friends and family.
QSo what were you going to do with that roll of plastic.
ATo give it to my father.
[119] T 91.12-15.
The roll of plastic is that depicted in photograph 18 of Exhibit P2 and it is an agreed fact that it was found inside bedroom 1 of the unit.
In cross-examination the following exchange occurred:[120]
[120] T 94.11-36.
QYou’ve given some evidence today about some plastic wraps in the house.
AYes, that’s correct.
…
QYou were to give them to your father.
AYes, that’s correct, yes.
QIf you take your mind back, where did you leave them in the house to give them to your father.
AIn the bathroom.
QAre you aware that those plastic wraps, in fact belong to another person and not to Mr Kroni.
ANo.
QDid you have any conversation with Mr Kroni about the fact they were owned by a Dario.
ANo.
QDid you discuss that you were going to give them to your father.
AYes.
QWith him.
ANo.
QSo you just discussed your father that you’d found some plastic wraps in the house-
AI didn’t discuss it with him. I just took them because he’s a fisherman and that’s how he stores his fish, inside those bags.
(My emphasis)
She denied any knowledge of the heat sealer found in the garage of the unit, although she agreed her father had his own sealing machine that he would use to seal plastic wraps containing fish and chicken.[121]
[121] T 94.37-95.1; T 95.27-34.
She knew the motorcycle was in the garage of the unit. She was asked whose motorcycle it was and hesitated when giving her response, namely a guy, whose name she could not recall at that point in time.[122]
[122] T 95.2-7.
She said she owned an iPhone which she usually kept on her, and that the accused also used an iPhone. She claimed to have no knowledge of the Samsung phone or of any other mobile phones kept at the unit.[123]
[123] T 91.36-92.4; T 96.16-27.
Prosecutor’s Submissions
The prosecutor submitted that the only reasonable inference from all of the evidence including the circumstantial evidence, was that the accused must have intended to sell at least some of the cocaine in his possession.
He highlighted the following evidence as being consistent with a finding that the accused intended to sell the cocaine:
1.The sheer quantity of cocaine in the accused’s possession being more than 13 times that deemed to be a trafficable quantity under the Act and simply too much to be consistent with claimed personal use in the nature of that described by the accused;
2.The value of the cocaine in the accused’s possession; being in the order of $7000, and more if sold on the street in smaller quantities, and the claimed cost of the cocaine, being $6000. It was submitted that any purchaser of such a quantity of cocaine by necessity would need to defray the cost of purchase by selling at least some of the cocaine;
3.The purity of the cocaine, it being above average; being consistent with it being of commercial application;
4.The $1330 cash in the accused’s possession being consistent with a tool in the trade of drug trafficking;
5.The accused’s possession of multiple mobile phones, consistent with the presence of multiple mobile phones often being found during investigations involving drug trafficking;
6.The presence of the two rolls of plastic wrapping and the piece of plastic wrapping found in the accused’s unit, being items consistent with the packaging of the cocaine found in the accused’s possession and drug packaging generally;
7.The presence of the heat sealer in the accused’s garage;
8.The use of toothpaste on the packaging of the cocaine, consistent with an attempt having been made to conceal the smell of the cocaine;
9.The manner in which the cocaine was packaged – it being concealed within multiple layers of plastic, again consistent with an attempt having been made to conceal the smell of the cocaine; and
10.The nature of the accused’s bus trip to and from Melbourne prior to his arrest, being consistent with known methods of importation of drugs into this state and inconsistent with the accused’s evidence that the purpose of the trip was to meet with his migration agent/lawyer, noting his evidence that such meeting took only about half an hour.
The prosecutor submitted that the accused’s evidence, and that of Ms Schultz, should be rejected as being implausible and simply untrue.
He submitted that it was implausible that the accused made the effort to undergo a lengthy return bus journey only to meet so briefly with his immigration lawyer, and that the fact he made such a journey was consistent with him having another reason to travel to Melbourne, namely to source the cocaine, which he then intended to sell at a profit.
Having regard to the accused’s evidence as to the extent of his maximum prior use of cocaine, the prosecutor submitted that I should reject the accused’s claim that he intended to use such a large quantity of cocaine, which even on the accused’s evidence, would have taken him in the order of three months to consume, assuming he maintained a use consistent with his previous maximum reported usage level.
He noted that on the accused’s evidence, he had never previously purchased such a large quantity of cocaine, but he was prepared to take the risk of carrying it with him on the bus back to Adelaide and then storing it in his home for that period of time. He submitted that I should find the accused took those risks only because he was intending to sell at least some of the cocaine.
Defence Counsel’s Submissions
Conversely, counsel for the accused submitted that the accused had given an entirely plausible account of why he had travelled to Melbourne, how he came to be in possession of the cocaine and what he intended to do with it. He suggested the accused had been forthright and frank, even acknowledging that in hindsight he may have shared some of the cocaine with his friends, albeit he had it in his possession for his own personal use.
He noted that Exhibit D12 established that as at July 2017 the accused was in communication with Mr Fazzito, who was holding himself out at that time to be a Migration Agent. As such he had a legitimate reason for travelling to Melbourne.
He submitted the accused had given an entirely credible account of how he came to have the $1330 cash in his possession. He had volunteered to police in the record of interview that he had won a large sum of money at the Crown Casino, in circumstances where he was not to know whether police could investigate such a claim to test its veracity. Further, his bank statements supported his claim that he had withdrawn money from the Crown Casino on 25 August 2017.
Although the accused had seemingly outlaid a large sum of money to buy such a quantity of cocaine, he submitted there was an explanation for this, consistent with Officer Pedder’s evidence, namely that cocaine costs less if purchased in larger quantities and that sometimes sellers want to sell in bulk to quickly offload what they have in their possession.
Mr Ey submitted there was no forensic evidence linking the accused with the heat sealer found in the garage, and he noted Officer Pedder’s evidence that heat-sealed plastic wrapping was ordinarily seen in the packaging of cannabis. He argued that there was a reasonable explanation to explain the presence of the plastic wraps and their intended use, and no forensic evidence linking any of the plastic wrapping found in the unit to cocaine.
He submitted that the accused had a plausible explanation for the number of mobile phones found on him and in his unit but more importantly that the police had not located any evidence on those phones consistent with the accused engaged in drug trafficking.
In addition, none of the items usually associated with drug trafficking, such as scales, tick lists, unexplained wealth or cutting agents had been found either on the accused or at his unit.
Mr Ey submitted that the accused’s explanation, namely that he had won the money at the casino where he had fortuitously met Ardi and been offered the opportunity to buy cocaine in bulk at a cheap price was ‘not so inherently implausible’ and that I should accept his evidence that he did not intend to sell any of the cocaine.
Findings
As the accused was found in possession of a trafficable quantity of cocaine, he bears the onus of proving, on the balance of probabilities, he did not intend to sell any of the cocaine. If he does not discharge that burden, the presumption in s 32(5) of the Act applies and he is deemed to be in possession of the cocaine with the intention to sell it.
Having carefully considered all of the evidence, I am not satisfied that the accused has established that it is more likely than not that he had the cocaine in his possession for a purpose other than selling any of it. I cannot be satisfied on the balance of probabilities that he did not intend to sell any of the cocaine found in his possession.
I am not satisfied that either the accused or Ms Schultz were being honest with the court when they gave their evidence. I find that they tailored their evidence, so as to attempt to provide an innocent explanation for the accused’s actions and the presence of items on the accused and at his unit. Having carefully considered all of the evidence, I simply do not believe the accused on the fundamental issue as to whether he intended to sell any of the cocaine.
I accept that at the time of the offending the accused was receiving assistance from Mr Frank Fazzito, a man holding himself out to be a Migration Agent. While it is possible the accused’s journey to Melbourne had, as one of its purposes, an intention to meet with Mr Fazzito, I am not satisfied that any such meeting was the primary purpose for the journey.
That meeting, on the accused’s evidence, took only approximately half an hour. The accused gave evidence that he did not know, prior to making the journey, how long the meeting would take, that his application for citizenship had been delayed, he was having difficulty understanding the process, and that there were documents to sign.
The accused has multiple electronic devices, through which he could have communicated with Mr Fazzito, to obtain answers to any questions he had about the process, without the necessity to undertake the long bus journey to Melbourne. Insofar as he was required to sign documents, any such documents could have been emailed to him by Mr Fazzito with appropriate instructions as to execution, as occurred in July 2017.[124]
[124] Exhibit D12.
The accused’s bank statements support his evidence that he did attend at the Crown Casino on 25 August 2017 and make three separate withdrawals of cash from automatic teller machines at the casino of $450, $250 and $450 respectively. Further, when he told the police he had won about $7000 at the casino as part of a Jackpot, it is possible he did not know that the police would be unable to verify this with the casino. As such it is possible that he was being truthful when he told the police about those winnings.
However, I find the balance of the accused’s evidence as to his fortuitous meeting with ‘Ardi’ in the casino bar, just after having come into such a large amount of money, and what allegedly transpired thereafter, was simply unbelievable and untrue.
The accused said he had met Ardi two to three times before, in Melbourne, through friends at a community soccer game.[125] He had used cocaine with Ardi before and made mention of Ardi when he described having seen Mr Fazzito help others before with migration matters.[126] He and Ardi snorted cocaine together in his hotel room after meeting at the casino but before Ardi sold him the cocaine.
[125] T 65.29-35.
[126] T 84.4-8.
Despite this degree of familiarity between them, the accused described the exchange of the cocaine with Ardi (and then the cash) as having occurred outside the hotel, which was in Spencer Street, thus in public where there must have been a risk of being seen, rather than in the seclusion of his hotel room.
The accused was asked in cross-examination why he and Ardi had not undertaken the transaction in his hotel room. He gave the following evidence:[127]
No. Only reason - I didn’t have any reason. I just - I said - let him - he want to wait in the car. He had the car in the corner and wait in the car and I went - we - just get the cash, I didn’t see anything or any thoughts at the moment. I didn’t have any thoughts to check or to like - didn’t have anything even to check anything, like.
[127] T 65.19-25.
Even allowing for any language difficulties, the accused’s explanation makes no sense. I simply do not believe the accused’s evidence as to the circumstances in which this claimed transaction occurred.
The accused said Ardi offered to sell him the ounce of cocaine for $6000 and that he said ‘Yes, without thinking’.[128] As such, there was no real negotiation as to price with respect to the transaction. On the accused’s version, even allowing for the fact that he had, apparently, just won the jackpot, and snorted some cocaine, he has moved from a claimed intention to purchase one gram of cocaine, which on his evidence represented a likely financial outlay of around $300 to $350 only, to a split-second decision to pay $6000, for more than 27 times the amount he had initially wanted.
[128] T 64.30-33.
Officer Pedder agreed with a proposition that a dealer may be prepared to sell a large amount of cocaine for a good price so as to offload it quickly in certain circumstances. However, the accused’s evidence was that it was he who approached Ardi to sell him cocaine (not vice versa), and in response to the accused asking Ardi if he could score him a gram, Ardi told him he could do a good price on an ounce, but that he didn’t sell grams. It was not the accused’s evidence that Ardi told him he needed to offload an ounce of cocaine quickly.
Save for Ms Schultz’s claim that she had seen the accused snorting cocaine once and that at that time he admitted to having used cocaine for two years, there was no other evidence which supported the accused’s claim that he was a heavy cocaine user at the time of his arrest.
Exhibit D11 demonstrates that the accused’s wages at the time of his arrest were around $932/week, albeit he said he was also doing some painting. He had obligations to pay rent, a loan and a regular charitable commitment to Red Cross.
The accused gave evidence that the most cocaine he would use over a week was an eight-ball, being 3.5 grams, and the maximum amount of cocaine he had had previously in his house at any one time was roughly an eight-ball. He agreed with a proposition that an eight-ball of cocaine would cost roughly around $800.
As such, if his evidence is to be believed, it is likely that at times the accused’s cocaine use was costing him more than his disposable income.
I am mindful that the accused was not asked to explain how, it was, in the circumstances, the balance of his bank account grew from $4909.60 as at 1 May 2017 to $13,444.22 as at 23 August 2017. He was not asked if he held any other bank accounts or received income from other sources. Nevertheless, the accused’s own evidence fell short of explaining how it was that he was able to afford to sustain his claimed cocaine habit and simultaneously continue to grow his bank balance. Had such evidence been given, this may have assisted the accused in discharging his onus.

In cross-examination the accused agreed that one gram of cocaine could make up multiple lines of cocaine and said that the number would differ depending on how much cocaine was put in the line, the strength of the cocaine and the tolerance of the person using it.[129] He agreed with a proposition that the cocaine could have lasted him three months, based on his claimed rate of usage, although he said that it ‘depends’.[130]
[129] T 63.3-36.
[130] T 77.17-23.
Based on the accused’s evidence of his claimed cocaine usage at the time of his arrest, the cocaine is likely to have lasted him at least two months, possibly longer.
The accused claimed he both smoked and snorted cocaine and said he would use it both at home and if he went out. However, despite being in a long-term relationship with Ms Schultz, she claimed to have only seen him use cocaine once. She was not asked when that occasion was (in terms of whether this was before or after she started living with the accused), and in her description of this occasion she used terminology that she had ‘visited’ him (rather, than, for example, saying ‘I returned home before he expected me’), being consistent with this alleged incident occurring when she was not living with him.
Although she said she lived apart from the accused for some of the relationship prior to his arrest, it is extraordinary that she had never been in his presence at any other time when he had used cocaine, nor was she allegedly aware he was storing cocaine in the unit at any time, despite living there for two months prior to his arrest.
There was no evidence that any implements used to smoke cocaine were found on either the accused, or at his unit.
For all of the reasons outlined, I am extremely sceptical as to the extent of the accused’s alleged cocaine use at the time of his arrest and consider it likely he sought to exaggerate his usage to explain why he had purchased such a large quantity of cocaine.
On that note, the accused said he had not used any of the cocaine he purchased from Ardi. When asked why he had not, he said ‘No, I wanted but it was wrapped up and, like, I couldn’t’. He did not elaborate as to why he ‘couldn’t’.[131] This response was not further explored in cross-examination.
[131] T 50.22-23.
However, the accused was staying in a hotel room. He had time and privacy. He and Ardi had used cocaine in the hotel room earlier that night. He must have had in his possession a card to enable him to withdraw money from the automatic teller machines at the casino, noting Officer Pedder’s evidence that credit cards can be used to chop up the powder into lines.
In the circumstances, I do not accept the explanation proffered by the accused as to why he allegedly did not use any of the cocaine that night, despite his claim he purchased it with the intention to ultimately use all of it. My impression was, and I find, that in giving this evidence the accused was simply manufacturing a response to explain why it was that he was later found in possession of the equivalent of an ounce of cocaine, still packaged in multiple layers of plastic packaging and wrapped in paper smeared with toothpaste.
The accused’s explanation as to why he had two mobile phones in his possession when searched by police was similarly unconvincing. If the accused did not otherwise own a mobile phone, that could provide a possible explanation as to why he saw fit to take the Samsung phone he claimed to have found on the seat next to him at the train station. However, he had an iPhone already on him, together with the Alcatel phone in his bedroom wardrobe and access to the Telstra phone he said had been left in his wardrobe, albeit he denied ownership of that phone. The accused agreed with the proposition that without having the PIN code for the Samsung phone he could not use that phone.[132] His explanation that he kept the Samsung phone, as he did not have time to return it, was illogical.
[132] T 67.11-14.
I do not accept his evidence on this issue.
Further, I do not believe the accused’s evidence that the Blackberry, the heat sealer, the plastic wrapping and the rolls of plastic, found during the search of his unit, belonged to ‘Dario’.
Why Dario would leave a Blackberry with the accused in any event if travelling interstate, does not, of itself, make sense, it being an item of a type one would expect its owner to keep on them, albeit I accept that the other items are not such that one would expect their owner to take with them in such circumstances.
The accused’s explanation as to why the Blackberry was found in the bedroom wardrobe was also unconvincing – namely that his girlfriend may have taken it out of the suitcase of things left by Dario when she was cleaning. I simply do not believe this evidence, particularly given the accused’s evidence that he was only expecting to have these items left by Dario for a short time,[133] and for Dario to return to collect his belongings.[134] Ms Schultz was not questioned about this, but I consider it most unlikely that she would have taken it upon herself to search through a suitcase left by someone else, on a short-term basis, in the unit, and then moved the Blackberry from the suitcase into the wardrobe. That simply makes no sense and is preposterous.
[133] T 71.9-12.
[134] T 69.22-25.
The accused was not asked precisely when Dario had lived with him, when Dario had left to go to Melbourne and when it was that he had last spoken to Dario or heard in any way from him or about his whereabouts.
Further, the accused was not asked why, if, as he claimed, Dario was intending to return to collect his things, that he thought it appropriate to allow his girlfriend to simply take the roll of plastic wrapping, something he thought also belonged to Dario, for her father’s use. If, as the accused claimed, his girlfriend asked him if she could have the roll of plastic wrapping for her father, it was not his to offer to her.
On that issue, while Ms Schultz gave evidence-in-chief with respect to her intentions pertaining to the ‘roll of plastic wrapping’ – being that found in the bedroom of the unit – in cross-examination she was asked about the ‘plastic wraps’. Exhibit P8 is only one plastic bag being of a type that can be sealed using a heat sealer. It is a ‘Food Saver’ bag, being the same brand as the heat sealer.
Exhibit P7 is two rolls of plastic wrapping, which are, lengthy rolls of double sided, quilted wrapping.
Exhibit P8 was found in the bathroom. Exhibit P7 was found in the bedroom. If Ms Schultz was describing Exhibit P8 as being the item she intended to give to her father, the fisherman, she is talking about one plastic bag. She must have been talking about the two rolls of plastic wrapping. As such her evidence that she left these in the bathroom was inconsistent with the agreed facts.[135]
[135] T 94.18-20.
My impression was that Ms Schultz’s evidence on this topic was untrue and fabricated to assist the accused.
The quantity, purity and value of the cocaine found in the accused’s possession, its manner of packaging, the accused’s brief visit to Melbourne by bus immediately before his arrest and his possession of multiple mobile phones all tell against the accused.
I acknowledge that the police found nothing on those mobile phones or the Samsung tablets consistent with trafficking, no tick lists, no scales, no cutting agents, nor was there any forensic evidence linking cocaine to the plastic wrapping found in the unit, or the accused to the heat sealer. However, the absence of this evidence does not overcome the significant concerns I have as to the credibility and reliability of both the accused and Ms Schultz.
I am not satisfied on the balance of probabilities that the accused did not intend to sell any of the cocaine found in his possession.
Conclusion
The prosecution has proved beyond reasonable doubt that:
1.The substance in question is a controlled drug.
2.The accused trafficked in a controlled drug.
3.When trafficking in a controlled drug the accused did so knowing that the substance was a controlled drug, or he was reckless about that fact.
Verdict
The accused is guilty of the offence as charged.