R v Levy
[2014] SADC 101
•6 June 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v LEVY
Criminal Trial by Judge Alone
[2014] SADC 101
Reasons for the Verdict of His Honour Judge Stretton
6 June 2014
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
The accused was located in her Alberton unit with 15 bags of methylamphetamine weighing a total of 10.64 grams, together with cash and other indicia of trafficking. She denied knowledge of the drugs, indicating that they must be left over from an earlier time when she had been a drug dealer. She was charged with two counts of trafficking methylamphetamine and pled not guilty.
Verdict: guilty of both offences.
Controlled Substances Act 1984 ss 4, 32(5); Controlled Substances Regulations 2000 reg 6(6) and pt 2 of sch 1, referred to.
Barca v The Queen (1975) 133 CLR 82, applied.
R v LEVY
[2014] SADC 101Introduction
The accused Michelle Levy is charged with trafficking methylamphetamine.
On 5 July 2012 police raided the accused’s home unit at Alberton. It is alleged that unit was rented to and occupied by the accused alone. Police allege they located bags of methylamphetamine and other evidence which, taken together, proves that the accused was trafficking that drug.
The accused was interviewed by police, denying that she knew the drugs were there.
The charges
There are two charges against the accused.
Each is worded identically, alleging that on the 5th day of July 2012, at Alberton, the accused knowingly trafficked in a controlled drug, namely methylamphetamine.
The first charge relates to six press seal bags allegedly containing 6.1 grams of powder. It is alleged that powder contained 2.66 grams of pure methylamphetamine. The bags were allegedly located in the accused’s unit, in a cigarette tin wrapped in green and red tape. Prosecuting counsel opened the case suggesting that that those bags were found in a three drawer ornament box situated in the accused’s lounge.
The second charge relates to nine further press seal bags allegedly containing 4.49 grams of powder. It is alleged that powder contained 2.63 grams of pure methylamphetamine. The bags were also allegedly located in the accused’s unit. Prosecuting counsel opened the case suggesting that those bags were hidden in a clock also situated in the accused’s lounge.
Elements of the offences charged
The elements of the offence of trafficking in a controlled drug are;
1.That the substance that the accused had or dealt with was a controlled drug. Methylamphetamine is a controlled drug.
2.That the accused “trafficked” methylamphetamine. A person traffics in methylamphetamine if she sells it, knowingly has possession of it intending to sell it or takes part in the process of its sale. In this case it is alleged that the accused knowingly possessed methylamphetamine intending to sell at least some of it.
3.That the accused possessed the methylamphetamine knowing that it was methylamphetamine or at least that it was a controlled substance.
Each offence must be separately considered, and to convict the accused of either offence the prosecution must prove every element of that offence beyond reasonable doubt.
However, if the prosecution proves beyond reasonable doubt that the accused possessed more than a “trafficable quantity” of the drug, the law presumes that she had possession of it for the purpose of selling it unless she proves on the balance of probabilities that she had it for some other purpose.[1] The trafficable quantity of mixed substance containing methylamphetamine is two grams.[2]
[1] Controlled Substances Act 1984 ss 4, 32(5), Controlled Substances Regulations 2000, reg 6(6) and pt 2 of sch 1 of the regs.
[2] Controlled Substances Regulations 2000 reg 6(6) and pt 2 of sch 1.
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:[3]
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.[4]
[3] (1975) 133 CLR 82 at 104
[4] References, quotation marks and footnotes omitted.
Trial by Judge alone
While the accused is entitled to a trial by jury, she has exercised her right to be tried by judge alone.
In approaching the case I apply all the basic evidential and procedural principles of the criminal law that would be outlined in detail to a jury by way of both trial introduction and summing up. For simplicity and brevity I do not repeat them here.
The prosecution evidence
As indicated, the prosecution case is a circumstantial one.
The police initially attended the vicinity of the accused’s unit at Buller Terrace, Alberton shortly after 5.30 on 5 July 2012. They observed a vehicle leaving those premises and it was followed and pulled over several streets away. The occupant of that vehicle was found to possess a small amount of methylamphetamine, equivalent to two ‘point’ deals, in a single press seal bag in his wallet. He also had keys to the accused’s house. He was given a drug diversion notice in relation to the methylamphetamine.[5]
[5] T109
At around 6.05pm police used the keys located on the driver to enter the accused’s premises unannounced. It was a small two bedroom unit. As they entered, the accused was walking out of her bedroom. She then sat on the lounge for most of the time until her arrest.
A thorough search of the premises was undertaken by the eight police officers who attended.[6]
[6] Detective Sergeant Ralph was Exhibits officer. He positioned himself centrally in the lounge/dining area of accused’s unit and was responsible for receiving, collating and listing all items that he and other officers located at the accused’s premises. He also photographed the items seized. He drew a plan of the unit.
Evidence was given that unfortunately one of the officers who searched and located items, a Detective Fielden, is unwell and on long term sick leave. His situation is such that it is not known when he may return to work. He was thereby unable to attend the trial to give evidence. This meant that direct evidence could not be given of the exact location of some of the items found by police within the accused’s unit, including the drugs.
The following items were located within the accused’s unit.[7]
[7] Most items were photographed, collated and entered into the exhibits log by Officer Ralph.
·A cigarette style tin containing two bundles. One bundle was wrapped in green tape and contained four press seal bags each containing a substance later analysed to be powder containing methylamphetamine. The other bundle was wrapped in red tape and contained two press seal bags each also containing a substance later analysed to be powder containing methylamphetamine.[8] This item was located by Detective Fielden and shown to Detective Sergeant Ralph. Officer Ralph indicated in evidence that it had been concealed under the lid of an ornamental three drawer cabinet located in the lounge room, however on a close examination of his evidence on the topic it is not completely clear whether that was his direct observation or whether he was told that by Detective Fielden and noted by Ralph in the exhibits log.[9] These are the six bags particularised by the DPP in their opening as the subject of count 1. The other nine bags of methylamphetamine as described below are the subject of count 2.
[8] Located by officer Fielden and handed to Officer Ralph. Tin is police number ML7, tendered as P9. The red tape is police number ML 7.1t, the green tape ML 7.2t, the four press seal bags containing substance 7.1, the two press seal bags containing substance 7.2, all tendered as P10 in the trial.
[9] T134-137.
·A large new press seal bag containing seventeen small new unused press seal plastic bags were located. These were located under the lid of the three drawer ornamental cabinet in the lounge room.[10]
[10] Located by Officer Fielden and handed to Officer Ralph, designated ML12. Officer Ralph saw and photographed these in situ. Tendered as P17.
·A matchbox[11] containing a press seal bag in turn containing three press seal bags that each contained a brown paste later analysed to contain methylamphetamine. The matchbox also contained a further press seal bag which contained another press seal bag containing a cream paste later analysed to contain methylamphetamine.[12]
·A white cylindrical plastic tube with a screw-on cap that looked like an inhaler, containing three plastic bags, one within another, with one containing a cream paste later analysed to contain methylamphetamine, and three further bags each containing a cream paste also later analysed to contain methylamphetamine.[13]
·A gold coloured paper envelope containing a press seal plastic bag containing a cream paste later analysed to contain methylamphetamine.[14]
·Further bundle of two press seal bags, one containing 57 small new unused press seal bags and the other 71 small new unused press seal bags. These were located in a black shoe box on the floor of the accused’s lounge room.[15]
·A calculator, a mortar and pestle, and a marble chopping board were observed by police on the coffee table in the lounge.
·A small tin containing a small set of working electronic scales, located under the coffee table in the lounge.[16] It was capable of measuring to .00 of a gram. The scales were later analysed and found to contain traces of methylamphetamine. The press button and screen of the scales were swabbed for DNA. A sole DNA profile was detected on the scales. It matched the accused with a likelihood ratio of 50 billion to one.[17]
·Four new unused syringes were located in a blue cooler bag on the floor of the accused’s bedroom underneath a bedside table.[18]
·Four mobile phones, three of which were charged and operational when tested by Detective Sergeant Ralph. Two of these phones were located in the accused’s bedroom.[19]
·A blue pencil case located on the floor of the lounge containing $4,675.[20]
·A white Guess brand wallet located near the mattress in the lounge containing $545. It also contained the accused’s driver’s licence.[21]
[11] Located by Officer Fielden and handed to Officer Ralph.
[12] Located by Officer Fielden and handed to Officer Ralph. The matchbox was tendered as P11. Bags designated ML8.1 containing substance, and ML8.1p were tendered as P12.
[13] Located by Officer Fielden and handed to Officer Ralph. The white container was designated ML9, plastic bag containing paste designated ML 9.1, and outer plastic bag marked ML 9.1p. Three further plastic bags containing cream paste was designated ML10. The white cylindrical plastic tube was tendered as P13. The plastic bags containing paste were tendered as P14 and P15.
[14] Located by Officer Fielden and handed to Officer Ralph. Press seal bag containing substance designated ML 11, outer gold coloured envelope designated ML11p. Tendered as P16.
[15] Located by Officer Wilkinson and handed to Officer Ralph, designated ML14 and tendered as P18.
[16] Located by Officer Rigano and handed to Officer Ralph, designated ML15 and tendered as P19.
[17] Agreed fact 1.1, in a statement of agreed facts tendered as P26.
[18] Located by Officer Gardener and handed to Officer Ralph.
[19] Located by Officers Fielden and Gardner and handed to Officer Ralph. The two Samsung phones were located by Officer Gardner in the accused’s bedroom.
[20] Located by Officers Ralph and Winterbottom.
[21] Located by Officers Ralph and Winterbottom.
Detective Sergeant Ralph said that when he and Detective Winterfield located the pencil case and the wallet in the lounge containing the money, the accused volunteered that the cash was from the sale of lingerie and other items.[22] Accordingly Detective Sergeant Ralph asked other police to look out during the search for any lingerie or sex toys or any documentation concerning the purchase or sale of such items, however they gave evidence that none was located.
[22] T62.
A number of seized items were sent for fingerprint analysis. They included some of the press seal plastic bags, the white cylindrical plastic tube, the cigarette style tin, the green and red tape, the matchbox and the gold coloured paper envelope. No prints of sufficient quality for comparison were located on any item.
The four phones were analysed by police. One was not in use, and the other three had been variously used up to shortly prior to the accused’s apprehension. No incriminating texts or saved messages were located. In cross examination defence counsel emphasised that there was evidence on the phones of calls to and from “Soula”, as support for something the accused said in her interview.
As emphasised in cross examination by defence counsel, no ‘tick lists’ of drug sales or drug debts, or cutting agents whereby the drug may have been further diluted were located in the unit. No illicit substances were found on the accused’s person. The unit was not neat and tidy but was messy, as if items may have been unpacked.
The accused was arrested and taken to the Port Adelaide Police Station where she was interviewed by the police. She told police that she lived alone in the unit which she had been renting since February that year, although sometimes someone would stay as she had been having trouble with an ex-boyfriend. She told police that the cash they had located was from selling lingerie from shops that had closed down and adult toys, through word of mouth and a stripper and ‘working girl’ that she had approached, although she was not sure if she had any receipts for any of it.
When police asked the accused about the methylamphetamine they had located, the accused appeared to initially say that she had found the scales and bags since recently picking up furniture and property that she had had in storage for about eight years with a woman who had just died. Then she appeared to be saying that she had not had a chance to go through everything, which had been sealed in a shed. A little later in the interview police return to the topic of the bags and the accused talks more about going through things, sorting things out and putting things together, in the end saying that, in effect, that she was a drug dealer in the past, and that they must have been left over from that, although she did not know they were there nor did she knowingly possess them.
She ultimately said;
QAnd we’re asking you to account for why they’re in your possession.
AOh they’re from when I was, as far as I know they’re, they were in the storage, that’s what I’m saying to you, like I had to go through everything to start getting rid of it all.
QSo you, you are basically saying they’re nothing to do with you.
AWell they would have been something to do with me, I was a drug dealer in my past.
QSo were you aware that you still had drugs in storage that hadn’t been seized.
ANo, not at all, not at all.
QOk so what, so you, you’re pretty much saying they’re yours.
AMm.
QBut from a past life, is that what you’re saying.
AI’m saying yeah I didn’t know I had possession of them, so.
QRight.
AMm.
The accused then told police that she was still using methylampetamine at a rate of “little bits enough to … keep me up to date”, having last used the drug a couple of days earlier. The accused also told police that other items such as the calculator, scales, mortar and pestle and chopping board all of which had been found in the location of the coffee table were not there as a drug cutting area but rather she was sorting the things out and putting everything together, to put into boxes and get rid of.
Each of the 15 bags located containing a substance was sent to the Forensic Science Centre where the contents were weighed and analysed. Each contained methylamphetamine of a relatively high degree of purity.[23]
[23] The certificate of analysis was tendered as P23.
The prosecution also called expert evidence from Detective Brevet Sergeant Lea. He was an officer with a great deal of experience and training in the investigation and analysis of the traffic in illicit drugs. He gave evidence of the ways methylamphetamine is commonly used, traded, packaged and priced. He also gave evidence of the commonly observed practices of those who traffic the drug, and what are commonly found as indicia that a person is trafficking, i.e. selling, methylamphetamine.
He said that methylamphetamine is sold by weight, with the common weights and the terminology associated with them being .1 of a gram comprising a “point” deal, 1 gram being called just that, 3.5 grams being an eighth of a gram comprising an “eight ball”, 28 grams an “ounce”, and 454 grams a “pound”.
He said typically at street level the drug is sold in .1 gram “points”. 1.75 grams could be sold, for example, and referred to, as half an “eight ball”. It is typically sold at street level in quite a diluted state, typically at around 10% purity.
He said the price can vary with many factors, including supply and demand and purity. At the time the accused was apprehended he said prices for the various weights located were as follows:
Half a “point” deal $20-$50
A “point” deal $50-$100
A “half gram” $200-$500
A gram $400-$800
A “half eight ball” $600-$1200Detective Lea went through each of the analysed bags of powder containing methylamphetamine located at the accused’s unit, and gave an opinion as to what such a quantity would commonly be sold as, the amount it would commonly be sold for, and hence an estimate of price.
The evidence as to the total number of bags, the volume of powder containing methylamphetamine, it’s purity, its street-name quantity in each case, and the ‘street value’ of the material located may accordingly be collated and diagrammatically represented.
In relation to the six bags comprising count 1 in the information:
Forensic Science Numbers Volume of powder/pure methylamphetamine
Percentage purity Price 16.1 .94gms / .43 meth 46% $400 - $800 (close to a gram) 16.2 .49gms / .23 meth 46% $200 - $500 (close to ½ gram) 16.3 .95gms / .41 meth 43% $400 - $800 (close to 1 gram) 16.4 .43gms / .18 meth 41% $200 - $500 (close to ½ gram) 18.1 1.67gms / .71 meth 72% $600 - $1,200 (close to a ½ 8 Ball) 18.2 1.67gms / .70 meth 42% $600 – $1,200 (close to a ½ 8 Ball)
In relation to the nine bags comprising count 2 in the information:
20.1 .33gms / .19 meth 57% $200 - $500 (close to a ½ gram bag) 20.2 .05gms /.03 meth 60% $20 - $50 (½ point) 20.3 .08gms / .06 meth 75% $50 - $100 (close to a point) 20.4 1.02gms / .68 meth 66% $400 – $800 (close to a gram) 22 0.52gms / .34 meth 65% $200 - $500 (close to a ½ gram) 23.1 .52gms / .38 meth 73% $200 - $500 (close to a ½ gram) 23.2 .19gms / .11 meth
.34gms / .18 meth58%
53%$100 - $200 (close to 2 points)
$150 - $300 (close to 3 points)24 1.44gms / .66 meth 46% $600 - $1,200 (close to a ½ 8 Ball)
The total weight of powder containing methylamphetamine was accordingly 10.64 grams containing 5.2 grams of pure methylamphetamine. The overall average purity was accordingly an unusually high 49.97%, or about 50%.
The total estimated value of the drug, if sold in the format and packaging in which it was located, would accordingly have been between $4320 and $9150.
Detective Lea went on to say that the drug was in an unusually high level of purity, and if it were to have been ‘cut’ down from 50% purity level, twice, to a resulting average purity level of 12.5% that you might expect for a street level sale, that quantity could have been sold as 425 street level “point” deals. A point deal was selling for between $50 and $100 at the time, so the street value of the drug if ultimately broken down to 12.5% street level “point” deals, if sold at the higher end price, could have been up to $42,500.
Detective Lea went on to say that a number of items seized at the accused’s unit were amongst items commonly located in situations where a person was trafficking illicit drugs. He said that empty press seal bags like the ones located in the accused’s unit were typical of the bags commonly used to traffic methylamphetamine. He said multiple mobile phones are commonly found, as traffickers use multiple phones to thwart law enforcement agencies and detection by police. He said that small electronic scales are also commonly found, as they are used to measure the product into small marketable quantities. He said quantities of cash such as found here, particularly with a high predomination of $50 notes, are commonly carried by persons who traffic drugs. He said that this is because the products are usually rounded into $50 and $100 amounts. He said however that often not all of these items are found and in some cases none are found.
In cross examination of the investigating police, defence counsel highlighted a number of matters. In particular Mr Aitken established that no ‘tick lists’ of drug sales were located at the premises, nor were any recognised ‘cutting agents’, and that none of the seized mobile phones contained any saved messages or texts indicating drug trafficking or drug involvement. He elicited that sometimes scales can be used by drug consumers and that syringes can also be found with those who are users of the drug. He also emphasised that despite being aware of her right to remain silent the accused voluntarily answered all the police’s questions.
The prosecution tendered a residential tenancy agreement showing that on the 26th of March 2012 the accused rented the unit as sole lessee, for a term of 12 months.[24]
[24] P25
“Discreditable conduct”
Some of the evidence that was led fell within the category of what the Evidence Act (SA) 1929 (“the Act”) prescribes as “discreditable conduct”. That concept is not defined in the legislation but is essentially evidence that while potentially relevant to the accused’s guilt or innocence of the charged offence or offences, reveals discreditable behaviour in terms of other offending or other discrediting conduct. I ruled on the admissibility of this evidence prior to trial, and I do not repeat that ruling here.
In relation to the evidence that was admitted, the law requires that the court treat the evidence strictly in accordance with section 34P of the Act. As provided in that section, the evidence cannot be used to suggest that the accused is more likely to have committed the offence because they have engaged in discreditable conduct. In essence, it can only be used to establish the charged offence.
As also required by the section, the Court must identify at trial the purposes for which the evidence may or may not be used. The discreditable conduct evidence in this case is particularised in the notice given by the DPP prior to trial and as outlined in pre-trial submissions. Essentially it may be summarised as that portion of the evidence located by police that might indicate that the accused had previously been trafficking in drugs. It was not led for the purpose of establishing other discreditable behaviour or prior offences, or for that reason concluding that the accused may be or is guilty of the charged offences; it may not be used for that purpose and I do not use it for that purpose.
I have regard to the evidence only insofar as it is directly relevant to the two separate charged allegations that on the 5th of June 2012 the accused trafficked methylamphetamine by way of knowingly possessing the drug located in her unit for the purpose of selling at least some of it. I use it as relevant only to the allegation that the methylamphetamine allegedly located by police was knowingly in the accused’s possession, and the allegation that she intended to sell at least some of it.
Further, I may not and accordingly I do not reason that because the evidence may indicate discreditable conduct the accused is more likely to have committed the charged offences because of it. Nor may I or do I reason that because the evidence may indicate that the accused is of bad character and has committed offences previously, she is guilty of the current offending or more likely to be guilty of the current offending.
Evidence of prior offending and bad character
In the course of the trial other evidence was led without objection, indeed with the consent of the defence and by way of agreed facts that might tend to indicate that the accused had previously committed offences, and perhaps in other ways been of bad character.
The accused told police in her interview that she had previously been a drug dealer and gone to prison for several years for it and, in effect, that the located drugs may have been left over from then, secreted in items that she had just got out of storage, that she did not realise were there, and accordingly did not knowingly possess, even though they were located by police in her unit.
It was an agreed fact that the accused commenced a prison sentence on 3 September 2007 and was released on home detention on 27 October 2011. It was agreed she completed home detention on 13 March 2013. On 17 April 2012 she was imprisoned for breaching parole resulting from a urine test that was positive for the presence of methylamphetamine. It was agreed she was released on 16 May 2012.
The accused told police in her interview that jars of frozen liquid located in her freezer were her own urine, designed to allow her to pass urine testing although she was continuing to use methylamphetamine.
This evidence was not objected to by the defence, indeed much of it was agreed by and relied on by the defence, in support of the defence case that the defendant was indeed a user but not a trafficker of methylamphetamine, and that the accused was not in knowing possession of the drugs at the time alleged in the information.
The prosecution relies on the evidence only insofar as it indicates that the accused knew how to go about such activity, and was a user of the drug and hence may have been motivated to traffic to obtain drugs and thereby afford to support her habit.
It is important that the evidence not be used, and I do not use it, in any other way.
It would for example be wrong to reason that because she may have previously been a drug dealer that therefore she was or may have been a drug dealer on this occasion, or to reason that because she may have committed any prior crime she may have committed the crimes she is currently charged with. Nor would it be right to reason that by virtue of any suggestion of prior offending she might be of bad character or the sort of person who might or did commit the current offending. Similarly it would be wrong to regard any suggestion that she had or may have been planning to dishonestly pass urine tests as in any way relevant to whether she committed the charged offending.
The defence case
The accused pled not guilty and in so doing denied the charges against her.
In essence, her case is that as she said in her record of interview, she was not aware that the drugs police located at her unit were actually there, and hence she was not in knowing possession of them.
The accused did not give evidence at trial. It is important to observe that she was under no obligation whatsoever to do so and there can be no adverse inference whatsoever where a person exercises their legal right not to give evidence. It must always be for the prosecution to prove each and every element of its case beyond reasonable doubt.
The accused called a witness, Ms Sharyn Harvey. Ms Harvey gave evidence that in 2012 she owned an adult product shop “Mor-Amore” on Marion Road in Ascot Park. She said that the accused attended the shop in July 2012 with another woman and brought several boxes of lingerie, costumes, shoes and a few other things that they wanted to sell. She said that the shop bought those items from the accused for $3,300 and gave her a receipt for them. While she said she could not exactly remember whether she paid the accused with cash or by cheque, she had a strong feeling it was in cash. The business closed in December 2012. She said she had been approached shortly before the trial by the accused’s lawyers to give evidence and shown a document produced to her by the accused’s lawyers that appeared to be a receipt dated 2 July 2012, which she said would have been what she gave the accused.
The accused tendered a police email confirming the fingerprint analysis,[25] the criminal history record of the person pulled over after leaving the accused’s unit on 5 July 2012,[26] and the receipt dated 2 July 2012 that Ms Harvey had adopted when put to her in the witness box.[27]
[25] D1.
[26] D2.
[27] D3.
The criminal history record of the person pulled over having left the accused’s unit indicates he has a number of previous offences relating to the production and possession for sale of controlled substances.
Addresses of counsel
In approaching the evidence I have had close regard to the helpful arguments and submissions of both counsel made throughout the trial, and in particular their two comprehensive and helpful addresses. Whilst for the sake of brevity I do not set out all or even most of counsel’s arguments, I have had close regard and given careful consideration to everything they have said. The following is but the briefest overview.
The prosecution argued that there was a strong circumstantial case against the accused and that the proven circumstances were not consistent with anything but guilt. There was a substantial amount of valuable drugs packed into recognisably saleable quantities and worth a substantial amount of money, and indeed a substantial amount of cash was found. There was in effect a production area with mortar and pestle, cutting board, calculator, and scales, with the scales containing both methylamphetamine and the accused’s DNA. It was argued that the accused’s interview was unsatisfactory and unconvincing, and that it was completely implausible that the accused, who told police she was using methylamphetamine at the time and did not have much money, was oblivious to the significant quantity and value of drugs packaged up for sale that was located in her unit. Counsel for the prosecution argued that all the items located were, together, strong evidence that she was trafficking the drug, such that the prosecution had proven both charges beyond reasonable doubt.
The defence argued that the primary issue in the case was whether the accused knowingly and exclusively possessed the drugs the police located. Counsel correctly observed that simply finding drugs in someone’s house is insufficient to prove possession in a legal sense, as for possession the person needs to know the drugs are there and also have control over them. Counsel submitted that the evidence in this matter was insufficient to establish either of those things.
The defence argued that the investigation was shambolic and inadequate, and emphasised that due to the absence of Detective Fielden through illness there was no evidence of where the drugs were located within the accused’s unit. He argued that the accused’s police interview was credible and amounted to a clear and consistent denial that she knew the drugs were there. He argued that the accused saying she had found the scales and bags was likely a reference to the new bags and not any of the bags with methylamphetamine. He pointed out that she told police she got the lingerie and items she sold from “Sula”, and indeed there were calls to and from a “Soula” in her phone.
He emphasised the lack of fingerprints, and the absence of certain indicia of trafficking such as tick lists and cutting agents. He argued that whilst it was not for the defence to prove anything, that the person who was apprehended leaving the house not only had a set of house keys but a long history of drug involvement and that the prosecution had not excluded that the drugs may have been his. He submitted that the prosecution had not proven either knowledge or exclusive possession, and that accordingly the accused should be acquitted.
Analysis of the evidence
I have closely considered the evidence, both as it was given, in its totality, and in light of counsel’s submissions.
All the police witnesses gave evidence well and in a straightforward manner. They were consistent and had the ring of truth about them. It was not realistically suggested that they had fabricated anything nor that they were realistically mistaken. I accept the evidence of them all beyond reasonable doubt, and accordingly that all the items located were located as indicated, and that all the observations they made are true and accurate, beyond reasonable doubt.
I remind myself of the important principles applicable to evidence and proof in a case based on circumstantial evidence. I find the following circumstances proven beyond reasonable doubt.
In relation to count 1 in the information, the evidence establishes that six bags of methylamphetamine comprising count 1, of a total 6.15 grams of powder containing 2.66 grams pure methylamphetamine were located in the accused’s small unit, of which she was the sole lessor and rental occupant.
In relation to count 2 in the information, the evidence establishes that the nine bags of methylamphetamine comprising count 2, of a total 4.49 grams of powder containing 2.63 grams pure methylamphetamine were located in the accused’s small unit, of which she was the sole lessor and rental occupant.
On the coffee table in the lounge of the accused’s unit were located a mortar and pestle, cutting board, and calculator, and under the coffee table was a set of small electronic scales containing both traces of methylamphetamine and only the accused’s DNA.
Several quantities of empty press seal bags, some of which appear identical to some of those containing methylamphetamine were also located in the unit, as described by police. Those new press seal bags were located under the lid of a small ornamental set of drawers in the lounge and in a black shoe box on the floor of the lounge.
Four mobile phones were located, three of which were operational and had been recently used.
A blue pencil case containing $4,675 was located on the floor of the lounge. A white Guess brand wallet containing $545 was located near the mattress in the lounge. The wallet contained the accused’s driver’s licence.
That, on the basis of Detective Lea’s evidence, cash, particularly with a high proportion of $50 notes, multiple mobile phones, small electronic scales, and quantities of small press seal plastic bags are often located associated with those who traffic in methylamphetamine and may be indicia of trafficking.
Four unused syringes were located in the accused’s bedroom. This, combined with the accused’s admissions in her record of interview indicate that she was at that time a user of methylamphetamine and may accordingly have had a motive to traffic in the drug, to give her access to the drug and the ability to afford it.
The combined effect of this evidence was a very strong circumstantial case against the accused.
I have carefully considered the accused’s statements to the police. She had sat through nearly two hours of the police locating, producing, photographing and logging all the items they had plainly found in her unit, including the drugs, the cash, the scales, the multiple mobile phones, the unused bags, all right in front of her as she sat on the couch in the lounge. She could scarcely deny they were there, or that she was not the sole lessee of the unit. She had quite a time for contemplation of the evidence police had located against her before her formal interview with police. Indeed she could have and was perfectly entitled not to answer questions, and I take into account defence counsel’s submission that she did answer questions and should be given credit for that. However, it was in that context that she ultimately told police that whilst she accepted the drugs were there, she did not know they were there, and in effect, the drugs must have been left over from when she had been a drug dealer many years before.
In the final analysis, I had the strong impression of a person trying to come up with something to explain away what was found, rather than a person honestly telling police that it was all a big mistake and that she really did not know the drugs were there. Further, her explanation that items such as the mortar and pestle and cutting board were all there only as she had been getting things out, sorting them out to sell or throw away was particularly unconvincing given that they were all together on the small coffee table adjacent to both a calculator, and near electronic scales with both methylamphetamine and the accused’s DNA on them.
Although it might at first glance appear improbable that an adult product shop would purchase a few boxes of mixed lingerie and other items from two women who simply ring up and walk in with it, and do so on the spot for the substantial sum of $3,300 in cash, Ms Harvey gave evidence in a straightforward manner. It is however potentially hard to understand that if on 2 July 2012 Ms Harvey indeed gave the accused a receipt indicating she had paid Ms Levy $3,300 on that day, that only three days later on 5 July 2012, having just been charged with trafficking a controlled drug and unlawful possession of the cash and when queried about the source of large amounts of cash that the police were plainly suspicious about, and specifically asked if she had any receipts for her claimed sales of lingerie, the accused told police;
QAnd do you have receipts or anything that the transaction proof of that, no and how much would be there when they counted it out.
AUm I’m not sure.
One might think it would have been a simple matter for the accused to have recalled that only three days earlier she had been given a receipt indicating that Ms Harvey had paid her $3,300, rather than appear to not be sure about it, nor volunteer it. On the other hand, it may be that it slipped her mind, she was distracted, stressed or did not think to do so. It must also be observed that despite a lengthy search by a number of police, the receipt was not located on the day by police at the unit or on the accused.
In the final analysis, despite the fact that there are many unanswered questions and improbabilities about the sale of lingerie issue, I am prepared to accept that it is possible that the accused and her associate were given $3,300 cash for items they sold to Ms Harvey three days before. Despite what the accused said in her interview about not really knowing where the items came from, who paid how much for them, and to whom what proportion of the money was ultimately to go, I am prepared to accept that possibly at least some of the $3,300 was among the money located in the accused’s unit when the police searched. Even so, that leaves a significant proportion of it unaccounted for.
Whilst there is no obligation on the accused to account for anything or in any way prove her innocence, in that it is always for the prosecution to prove each element of each offence, I have given close consideration to defence counsel’s submissions and suggestions as to other reasonable hypotheses consistent with innocence. In particular, notably the possibility of the drugs indeed being left over from an earlier time unbeknownst to the accused, or another possibility that the man who was apprehended leaving the premises may have been the one who possessed or was involved with the drug, or simply that even if the accused knew about the drugs she may not have had legal possession of them in the sense they were not hers to exclude others from.
In the final analysis, having considered the totality of the evidence, and given the fullest consideration to the defence case and all defence counsel’s submissions, in my view the proven circumstances are inconsistent with any other reasonable hypothesis than that the accused was knowingly in possession of the methylamphetamine for the purpose of selling at least some of it.
In particular, a significant quantity of drugs were present, all packaged in recognisably marketable quantities, worth between $4,320 and $9,150 in the format they were located, but worth up to $42,500 if further cut and sold in ‘point’ deals. The accused told police she was using methylamphetamine and had little other money, so she had a motive to traffic methylamphetamine to give herself access to the drug and to afford to keep or purchase some for herself by way of that. A cutting or packing area was set up on the coffee table, comprising a mortar and pestle, cutting board and calculator, and perhaps most damningly, under that table was a small set of electronic scales of the kind often found associated with methylamphetamine trafficking with both traces of methylamphetamine and the accused’s sole DNA. Cash totalling $5,220.00, comprising $50 notes was located, although I accept some proportion of that may have been from selling items to Ms Harvey. The accused was the sole lessee and occupant of the unit, although the man apprehended leaving had a set of house keys as well.
In my view there is no reasonable possibility that the accused did not knowingly possess these drugs. For example, there is no reasonable possibility that such a significant amount of packaged drugs might conceivably have been ‘left over’ from some drug dealing years before, hidden in or about items that the accused had had in storage but just received back, have been forgotten about by her, at the same time as she happened to have out the items she had on her coffee table, at the same time as she had electronic scales containing methylamphetamine and her own DNA in a tin under that same table, and at the same time that she had four mobile phones and at least a significant proportion of unexplained cash in her admitted possession, all in her own small unit, unoccupied by anyone else.
The electronic scales with methylamphetamine and her DNA, located in proximity to the cutting and packing area, in the context of all the other evidence, I find refutes the suggestion that she, the accused, did not possess the drugs located, and that it was all perhaps someone else’s enterprise.
Of course each item of evidence may have a possible explanation, as submitted by defence counsel, but it is the combined effect of all the circumstantial evidence that must be assessed. The combined effect is in my view unanswerable.
I have carefully considered all the matters pointed to by defence counsel throughout the case, and the defence case itself, and notwithstanding all such matters, I conclude beyond reasonable doubt that in relation to each count the only rational inference that can be drawn is that the accused was knowingly in possession of the methylamphetamine located by police, knew it was methylamphetamine, and intended to sell at least some of it.
In coming to these conclusions I have not needed to have regard to the presumption established by section 32(5) of the Controlled Substances Act 1984 that upon proof of possession of a trafficable quantity of at least two grams of mixed substance containing methylamphetamine, an intention to sell is presumed in the absence of proof to the contrary. For the sake of completeness I indicate that in relation to each count, for all the preceding reasons, I find proven beyond reasonable doubt in relation to each separate count that the accused was knowingly in possession of at least two grams of mixed substance containing methylamphetamine. For completeness I indicate that having closely considered all the evidence, I find it is not proved on the balance of probabilities in either case that the accused did not possess an intention to sell at least some of it.
Conclusions
In relation to count 1, I find proven beyond reasonable doubt that on the 5th day of July 2012 at Alberton, the accused knowingly trafficked in a controlled drug, namely methylamphetamine.
In relation to count 2, I find proven beyond reasonable doubt that on the 5th day of July 2012 at Alberton, the accused knowingly trafficked in a controlled drug, namely methylamphetamine.
Verdicts
Count 1: Guilty
Count 2: Guilty