R v Leonard - [2007] SADC 65

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v LEONARD
Criminal Trial by Judge Alone
[2007] SADC 65
Reasons for the Verdict of His Honour Judge Lovell
6 June 2007
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENCES AND RELATED MATTERS
Trial by judge alone - accused charged with one count of possessing methylamphetamine for sale and one count of possessing a firearm without holding a firearms licence - whether prosecution proved case beyond reasonable doubt.
Verdict: accused not guilty of both counts.
Firearms Act 1977 s 36; Evidence Act 1929 s 34, referred to.

R v LEONARD
[2007] SADC 65
Preliminary Matters

The accused pleaded not guilty to one count of possessing methylamphetamine for sale and one count of possessing a firearm without holding a firearms licence. The trial was heard by me sitting as Judge alone commencing on 29 May 2007 and concluding on 1 June 2007.
I was much assisted by the excellent submissions made by both Mr Powell for the DPP and Mr Griffin QC for the accused. I do not intend, in these reasons, to deal with all the arguments they put forward due to the requirement to hand down my verdict expeditiously. I have taken into account all the matters they raised even though in these reasons I have dealt only with the major points.
Background
On 23 December 2003 members of the SA Police Force raided the premises of the accused at 20 Snows Road, Stirling. Located in a chest of drawers alongside the bed of the accused was a plastic bag containing methylamphetamine and a revolver. Five rounds of ammunition were also located in the drawer. The only issue at the trial was the question of whether the accused was in possession of the items. The accused stated that he had no knowledge of the presence of either the methylamphetamine or the revolver (or ammunition). The defence suggested that, unknown to the accused, it was likely to have been left at the premises by Khan Leonard, the accused’s son.
Law
I remind myself of a number of general matters. The accused is presumed innocent unless and until his guilt has been proved. The burden of proving each of the charges lies wholly on the prosecution and the onus of proof is beyond reasonable doubt. The accused is not obliged to prove anything. He has put forward a defence, but he does not have to prove it. The Crown must disprove it beyond reasonable doubt.
Nothing short of proof beyond reasonable doubt will do. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. I must be satisfied before I could convict the accused of either count on the information that the prosecution has proved beyond reasonable doubt each element of the charges.
The accused in this case gave evidence on oath. The accused was not obliged to give evidence. He had the right to remain silent in answer to the charge, leaving it to the prosecution to satisfy me of all the ingredients of both charges. In this case, however, the accused elected to give evidence on oath.
In assessing his evidence and the weight to be given to it, I approach the task in exactly the same way as with any other witness.
Further I remind myself that as there are two charges here I must consider the evidence in relation to each offence separately.
Elements of the offences
Count 1- Possessing Methylamphetamine for Sale
The first ingredient requires me to be satisfied beyond reasonable doubt that the material in question was knowingly in the possession of the accused. This is really the only issue in the case in relation to this charge.
Possession means the power and the intention to exercise control over something to the exclusion of all others. The DPP must prove that he was knowingly in possession.
The second ingredient requires me to be satisfied beyond reasonable doubt that the material was methylamphetamine. The certificate of the analyst, tendered by consent, proves this element.
The third ingredient requires me to be satisfied beyond reasonable doubt that methylamphetamine is a drug of dependence. This was conceded by the accused.
The fourth ingredient requires me to be satisfied beyond reasonable doubt that the accused knew that the material in his possession was methylamphetamine. Mr Griffin QC conceded that if I found possession proved beyond reasonable doubt then I could infer that he knew it was methylamphetamine.
The fifth and final element which the prosecution must prove is that the accused had the substance in his possession for the purpose of selling it. The quantity of methylamphetamine found meant there was a reversal of the onus of proof in relation to this element. Once again this element was conceded if possession was proved.
Count 2 - Possessing a Firearm without holding a Firearms Licence
The first element requires the DPP to prove beyond a reasonable doubt that the accused possessed the firearm in question. The element of possession for this count is the same as the element of possession in the first count.
The second element requires the DPP to prove that the accused was not the holder of a firearms licence authorising possession of that firearm. The prosecution tendered a certificate pursuant to s 36 of the Firearms Act outlining that the accused was not the holder of a firearms licence at the relevant period. This was conceded by the defence.
Prosecution Evidence
The prosecution case was largely undisputed.
At approximately 7am on 23 December 2003, a briefing of a number of police officers was held at the Thebarton Police Barracks. The briefing was part of an on going operation called “Avatar”; this was an ongoing operation relating to outlaw motorcycle gangs. The Hells Angels was such a group and the accused Kim Leonard was known by police to be a member of the Hells Angels.
As a result of the briefing a number of police were then dispatched to both KDL Transport at Dry Creek, Mr Leonard’s place of work and Snows Road, Stirling his residence.
The five police officers assigned to Snows Road arrived near the intersection of Snows Road and Mt Barker Road at Stirling somewhere between 8.00am and 8.15am. They had travelled in two unmarked police vehicles. They stopped in a car park near that intersection and awaited further instructions. There was meant to be a coordinated raid on the business and residential addresses and Detective Scutchings, who was at Dry Creek, was in charge.
At around 8.30am, the accused was seen driving his utility at the junction of Snows Road and Mt Barker Road turning his vehicle to the left and driving towards Aldgate. It is likely that there was an attempt by at least one police vehicle to follow Mr Leonard, an attempt that was very quickly abandoned. The police evidence was inconsistent on this issue but nothing turns on the point.
The police then attended at 20 Snows Road and as the house was secure they were unable to obtain access. They attempted to telephone the accused without success. They also attempted to contact Beau Leonard, the accused’s younger son. The Star Force was contacted and members attended the premises at about 9.35am. Acting pursuant to a General Search Warrant they then gained entry to the premises by force.
Police then conducted a search of the premises and a number of items were located. In the bedroom of the accused (located on the upper floor) in a chest of drawers a bag of powder was located. This was later analysed and found to contain 10.4 grams of powder of which 8.15 grams was methylamphetamine (Exhibit P21). In the same drawer the passport of the accused was located in addition to various pieces of jewellery identifying the Hells Angels group. The accused admitted in evidence that the bedroom was his and that the passport and various items of jewellery were his. He denied knowledge of the bag of methylamphetamine (Count 1).
In the second drawer of the same chest a pearl handled revolver (Exhibit P3 and Count 2) and five rounds of ammunition (Exhibit P4) were located. This drawer contained items of clothing of the accused. The accused admitted the items of clothing were his but he denied possession or knowledge of the revolver and ammunition.
Within the drawer where the bag of methylamphetamine was located a piece of paper itemising gun models and prices (Exhibit P6) was also found. The accused denied any knowledge of this document. Also located in the bedroom in a storage cupboard was a plastic bag containing some glass laboratory equipment. The accused denied knowledge of this equipment. It was not seized by the police.
A number of gun holsters (Exhibits P16, P17, P18, and P19) were located in a downstairs storage room. The accused denied knowledge of them.
Detective Brevet Sergeant Anthony Bain gave expert evidence of the manufacturing process for methylamphetamine including ingredients and equipment. He gave evidence that the drug is often cut or ‘stepped on’ so that the average purity at street level was only 10%. He noted the methylamphetamine in this case was of roughly 77% purity. Using average calculations he formed the opinion that the methylamphetamine seized was capable of producing about 800 street deals of between $30 to $50 each and totalling between $24,000 to $40,000. His evidence was not disputed.
In cross-examination Mr Bain accepted that the methylamphetamine seized was of such purity that it was probably only the first step in the chain of sale. Further he noted this product would have to be cut approximately four times to reach the average purity for street level.
The bag containing the methylamphetamine, as well as the revolver and ammunition were all sent to the Forensic Science Centre for testing. Ms Karen Lee, a scientist from the Forensic Science Centre, gave evidence on DNA testing. She noted no DNA profile was obtained from the gun. A mixed DNA profile of at least one male was obtained from the bag and a mixed DNA profile probably from two females was obtained from the ammunition.
Pursuant to s 34 of the Evidence Act, the parties agreed that after his arrest on 23 December 2003, a buccal swab was taken from the accused for the purpose of later DNA analysis.
The DNA analysis conducted by Ms Lee established that the accused was positively excluded as being a source of DNA on any of the items tested.
Ms Lee gave evidence of how DNA is deposited on an item and commented that an individual’s shedder status is a variable factor when considering quantities deposited. Given some people are more readily to shed DNA than others, it is possible for an individual to handle a particular item and not deposit detectable quantities of DNA. Evidence was also given that all DNA degrades at the same rate and if an item has been exposed to environmental conditions then the chance of obtaining a DNA profile is decreased. Ms Lee thought that the simple act of picking up the bag and placing it in the drawer would have meant the person who performed that action would leave DNA on the surface of the bag.
It was further agreed by the parties that at the relevant time the property at 20 Snows Road, Stirling was owned by Northern Territory Logistics, of which the accused was a director.
The prosecution tendered a certificate pursuant to s 36 of the Firearms Act outlining that the accused was not the holder of a firearms licence at the relevant period. Two statements from Ballistics Expert Peter Lawrence were likewise tendered.
Defence Case
The accused gave evidence on oath. As mentioned he admitted the house at 20 Snows Road was his principal place of residence. However he stated that, depending on his work commitments, he sometimes stayed at his workplace at Dry Creek; this had facilities for sleeping. Sometimes he stayed at his girlfriend’s place.
The accused was separated from his wife. He lived at Stirling with his son Beau who worked at a restaurant in Stirling. Beau had his own bedroom also on the upper level of the house; he also had a key to the premises. The accused’s older son Khan did not live on a permanent basis with him but would come and stay from time to time. He had access as a key was left outside the premises. He would on occasions use the house when his father was not there. On occasions when he stayed there in company with his father he would use a third bedroom. On other occasions he would use his father’s bedroom.
Around the time of the raid, the accused was having work done on the flooring of the house. Mr Kozno, the proprietor of the Adelaide Timber Flooring Company, gave evidence confirming that his company performed work on the house at 20 Snows Road between 18 and 20 December 2003. The job was for installation and polishing of floorboards. This would have involved sanding the boards followed by the application of three coats of polyurethane. He confirmed that it was standard company policy to advise the occupants of the house to, if possible, stay away from the premises whilst the job is in progress because of the fumes and also because the polish needed time to “cure”.
The accused stated that at around the time of the raid he had not stayed at Snows Road for some days due to the work that was being done and also the fact that he was very busy with his work at Dry Creek. He was “almost certain” that he had not stayed the night of 22 December 2003 at Snows Road. He may have stayed at work or at his girlfriend’s house. He went to his house early on 23 December to change his clothes.
Whilst at home he received a phone call from Detective Scutchings. Detective Scutchings told him that the police were at Dry Creek and an employee at the place would not grant them access. The accused was rude and hung up after saying he wasn’t coming down to the yard. The accused then rang another employee named Jenny Woodroffe and asked her to go to the yard. She agreed to do so. The accused then received another call from Detective Scutchings and he told him that Jenny Woodroffe would be coming to the yard.
Having terminated the call the accused then walked from his house to the corner of Snows Road and Mt Barker Road. He thought the police may be going to raid his house. From a distance he could see the two cars and also some men outside the cars. He recognised Detective Ford. This confirmed his suspicion and he returned to his house, retrieved his car keys and left in his utility. He drove south along Snows Road and turned left at the intersection of Mt Barker Road. As discussed earlier the police attempted to follow him without success. The police then raided his house. The accused was subsequently arrested at Dry Creek when he attended his business premises.
He gave evidence that he initially thought he had been set up by the police and that they had planted the drug and the gun. He held that belief for a short time until he spoke to his son Khan.
Beau Leonard gave evidence that he lived with his father at Stirling. He had his own bedroom. He confirmed that work was being done on the floors at the relevant time. He went to stay with his mother for a short time because of the work being done and he had met the flooring workman on Saturday 20 December 2003 at the premises as his father was not at home. He denied any knowledge of the drugs or gun and ammunition.
Khan Leonard also gave evidence. In 2003 he was a student at the City West campus studying Commerce. He also worked part time for his father. At the time he was living in a house at Woodville North.
He confirmed that he had been at the Snows Road residence on the weekend of 20 December 2003. Prior to giving evidence he had received legal advice.
On questioning from Mr Griffin QC for Mr Leonard he agreed he knew something about the bag of methylamphetamine found in the chest of drawers located in his father’s bedroom. He said that his father would not have known it was there before the raid on 23 December 2003. He gave the same answers in relation to the revolver and ammunition. He would not answer any further questions about the matter on the grounds that any answers may tend to incriminate him.
He further stated that he spoke to his father about it a few months after the raid.
In cross-examination by Mr Powell for the DPP he denied that he had concocted the story to help his father.
Discussion
Clearly the only issue in the case is whether the accused knowingly possessed the bag of methylamphetamine, the gun and the ammunition. It is an element of both offences as charged that the DPP prove beyond reasonable doubt that the accused knowingly possessed the items.
As mentioned the bag of methylamphetamine was found in a drawer in his bedroom and in that drawer his passport was also located. When he gave evidence the accused admitted that the drugs and other items were located in drawers that he used. He denied knowledge of the methylamphetamine and the gun.
It was an important part of the defence case that the accused received a phone call from Detective Scutchings before he left the premises at about 8.30am. Why, Mr Griffin asked rhetorically, would the accused, a member of the Hells Angels, who knew that his motorcycle club was under surveillance pursuant to operation “Avatar” and further that the police were at the end of Snows Road, leave his house with a bag of methylamphetamine and a gun and ammunition in a location where on a search they would inevitably be found? It was, he submitted, consistent with a man who did not know the items were in the bedroom.
There is much merit in the submission.
The DPP was on notice of the allegation of the phone call. No evidence was called by the DPP to refute the suggestion of the two calls. Detective Scutchings did not give evidence. The accused’s evidence on the topic remains uncontradicted. I infer that the evidence of Detective Scutchings would not have assisted the prosecution case. I can more readily accept the accused’s evidence on that point. I find that he did receive such a call. I accept the accused’s evidence that he was aware that the police were at the intersection of Snows Road and Mt Barker Road. He must have known a search was inevitable. He had time, if he knew the drugs and gun were there, to have hidden or disposed of the items. The fact that the items were located in such an obvious spot lends much weight to the suggestion that the accused did not know the items were there.
I have had regard to the submission of Mr Powell as to whether the accused really did know the police were at Stirling. Whilst not disputing that the phone call may have been made to the accused, Mr Powell pointed to the strange behaviour of the accused in driving past the police at the end of Snows Road as opposed to leaving his house and driving in the opposite direction. Despite the force of that submission I find that the accused did know the police were at Snows Road and that a raid was likely.
Further I have the evidence of Mr Kozno and Mr Beau Leonard. I accept both witnesses gave truthful evidence and Mr Powell did not suggest otherwise. Their evidence, in combination, establishes that it is likely that the accused did not stay at the premises on the weekend of 20 December 2003.
In relation to Mr Khan Leonard it is likely that he did attend the premises on 20 December 2003. I accept that he did have knowledge of the bag of methylamphetamine, the revolver and the ammunition. I accept his evidence that as far as he was aware his father had no knowledge of the items. I am unable to make any further findings as Khan refused to answer further questions on the ground that the answers may tend to incriminate him.
Findings
I find that whilst there was DNA found on the bag of methylamphetamine and on the ammunition the accused was positively excluded as a donor of the DNA. I generally accept the evidence of the accused and his witnesses that the accused had not resided at 20 Snows Road for at least a few days before the raid. I find that Khan Leonard, unknown to his father, attended the house on the night of 20 December 2003 and has some knowledge of the drugs and gun and ammunition. Further, as discussed earlier, I find that the accused was aware of the likelihood of a raid by the police on the Snows Road premises, and had sufficient time to have hidden or disposed of the incriminating items if indeed they were his.

In all of those circumstances the prosecution have not proved beyond a reasonable doubt that the accused was knowingly in possession of the methylamphetamine (Count 1) or knowingly in possession of the revolver and ammunition (Count 2).
Accordingly I find the accused not guilty of both charges.