R v Levy - [2007] SADC 94

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v LEVY
Criminal Trial by Judge Alone
[2007] SADC 94
Reasons for the Verdict of His Honour Judge Lovell
3 September 2007
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - FOR SALE OR SUPPLY
Trial by judge alone – accused charged with one count of possessing methylamphetamine for sale.
Verdict: Guilty.
Controlled Substances Act s 32(3), referred to.

R v LEVY
[2007] SADC 94
Background

Just before midnight on the 13^th August 2005 the accused was driving a vehicle (a Holden Calais, registration number WXX-057) on Prospect Road at Kilburn. She was stopped by the police for allegedly speeding. During discussion with her about the owner of the car and proof of her identity, a police officer noticed a hypodermic syringe in her handbag that was located on the front passenger seat of the car. When questioned the accused denied having a syringe in her possession. The police then searched her handbag and located syringes and a jar of paste, which they believed to be methylamphetamine.
The accused was taken to the Holden Hill Police Station where she was charged with Possessing Methylamphetamine for Sale.
A subsequent search of the car revealed a large amount of cash namely $32,185 and more paste also believed to be methylamphetamine.
Before me, on the 13^th August 2007, the accused pleaded not guilty to the charge of possession of methylamphetamine for sale but guilty to simple possession of the drug.
The matter proceeded before me as a trial by judge alone.
Law
The offence of possessing methylamphetamine for sale contains a number of ingredients.
1.    The first ingredient requires me to be satisfied beyond reasonable doubt that the material in question was knowingly in the possession of the accused.
2.    The second ingredient requires me to be satisfied beyond reasonable doubt that the material was methylamphetamine
3.    The third ingredient requires me to be satisfied beyond reasonable doubt that methylamphetamine is a drug of dependence/prohibited substance.
4.    The fourth ingredient requires me to be satisfied beyond reasonable doubt that the accused knew that the material in his possession was methylamphetamine.
5.    The fifth and final ingredient of the offence requires me to be satisfied that the accused possessed the methylamphetamine for the purpose of sale.
In this matter the DPP bears the onus of proof on the first four elements beyond a reasonable doubt. However in relation to the fifth element, if the prosecution proves beyond reasonable doubt that the accused was in possession of more than two grams of the substance, then the law presumes that the accused possessed it for the purposes of sale, unless she can satisfy me that she possessed the substance for some purpose other than sale. The accused does not have to satisfy me beyond reasonable doubt; she only has to satisfy me that it is more probable than not that she possessed the drug for some other purpose. That would be sufficient to rebut the presumption.
I remind myself that the accused is presumed innocent unless and until her guilt has been proved. The burden of proving each of the elements of the charges lies on the prosecution and the onus of proof is beyond reasonable doubt. Nothing short of proof beyond reasonable doubt will do.
Given that the first four elements are admitted, I remind myself that what I am required to do is to look at the evidence as a whole, including not only the direct testimony of the witnesses but also the inferences that I am prepared to draw from the surrounding facts, and having done that and looked at the whole of the evidence, I must then determine whether it is more likely than not that the accused possessed the drug for some other purpose.
I note the alternative verdict open to me. Indeed the accused pleaded guilty to the alternative verdict of simple possession. The elements of simple possession are the first four elements mentioned above.
The accused in this case gave evidence on oath. The accused was not obliged to give evidence. Even with the statutory presumption operating she 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 her evidence and the weight to be given to it, I approach the task in exactly the same way as with any other witness.
The accused in this case, as mentioned, pleaded not guilty to possession for sale of the methylamphetamine but guilty to simple possession. That is she admitted the first four elements of the charge including the element of “possession”. However the question of whether the accused “possessed” other items located by the police during their search was raised during the case. I therefore remind myself of the law relating to possession.
Possession does not mean ownership. Something can be possessed without the person necessarily being the owner of it. Nor does possession necessarily mean in the eyes of the law actual physical custody of something.
Possession, in the context of this case, means the power and the intention to exercise control over something to the exclusion of all others. The power and intention to exercise control over something necessarily implies an awareness of the existence of that something. If material is placed into someone’s purse unbeknown to that person, the material could not be said to be in that person’s possession in any relevant sense.
In relation to the items found during the police search, the onus always remains on the DPP to prove possession beyond reasonable doubt. If the DPP cannot satisfy me beyond a reasonable doubt that the accused possessed any particular item then that item cannot be used by me against the accused when assessing her explanation of her possession of the drugs.
In this matter the accused admitted possession of most, but not all, of the items.
The prosecution evidence
On the 13^th August 2005 Senior Constable Perkins and Constable Beaufort (a probationary constable at the time) were on mobile patrol when they stopped the vehicle (the Calais) driven by the accused on Prospect Road at Kilburn. Senior Constable Perkins approached the driver’s side door and asked the accused to step out of the vehicle. He requested her details and was given the name Michelle Levy of a Fullarton address. The allegation of speeding was put to her and she was also alco-tested. That returned a zero reading.
Checks performed by Constable Beaufort indicated that the vehicle was registered to a male person by the name of Christopoulos. The accused told the police that it belonged to a friend of hers called Leslie (a female). Senior Constable Perkins asked her if she could contact Leslie to confirm who should be driving the vehicle. At this stage the accused appeared to be nervous and agitated. She paced around and kept asking if she should call a lawyer. At this stage for the police it was a routine stop for a traffic offence.
The accused made a telephone call on her mobile phone. She passed the phone to Constable Perkins who spoke to a male person on the phone. This person would not identify himself on the phone. Constable Perkins handed the mobile phone back to her and asked her to produce some identification. She went to the vehicle and produced two cards, a Medicare card and a visa card; they both carried her name. The police were not totally satisfied about her identity.
The accused returned to the car and Constable Perkins followed her. He stood next to her when she reached into her handbag. When she stood back Constable Perkins noticed some hypodermic needles and a small jar in the handbag. He asked her if she had any “picks” and she said “no”. He leant down into the car and picked up the glass jar from the handbag and asked her “What’s this?” She did not respond. At that stage Senior Constable Perkins believed the jar to contain methylamphetamine. The accused tried to move past him towards the car and he told her to move back.
The accused moved back and then Senior Constable Perkins and Constable Beaufort performed a quick search of the car. Money, and paste believed to be methylamphetamine, was located in the vehicle. Other officers attended and the car was taken back to the Holden Hill Police Station and a thorough search conducted. A video of the car at Prospect Road was taken, showing where various items had been located; a further video was taken of the search at Holden Hill.
Generally speaking the evidence of Senior Constable Perkins and Constable Beaufort of what occurred at Prospect Road was consistent. In my opinion it was reliable evidence. It is true that Constable Beaufort’s description of the behaviour of the accused was more colourful than that of Senior Constable Perkins but that is explicable on the basis of their differing experience. Both police officers gave truthful and reliable evidence. At the trial there was little dispute about their evidence. The accused gave evidence which only differed in some respects. Where there is a conflict in the evidence between Senior Constable Perkins and Constable Beaufort and the evidence of the accused I prefer the evidence of the two police officers. There was one exception to that which I will refer to in due course.
Constables Richter and Karran were also called. They gave evidence of the search that was conducted of the vehicle and the compilation of the Exhibits log (Ex P2). Their evidence was not challenged and I accept their evidence.
It was common ground that the following items were located in the vehicle. Their location in the vehicle was also not in dispute.
The brown handbag of the accused was found on the front passenger seat of the car. It was found to contain:-
Front pocket (of main part of bag – see photo 5):
Glass Jar containing white paste
4 unopened Hypodermic needles
Middle Pocket (main part of bag – see photo 3):
White envelope containing $450
Silver cigarette case containing empty J bags and plastic spoon
Front pocket (overflap – see photo 38)
Right front pocket:
Cash $1550
Larger zipped up area:
Syringe with clear liquid (p337)
Rear pocket of main part of bag (see photo 39):
Two plastic bags containing small amount of paste
Cash $1750
Other than the handbag
Two mobile phones – located on front passenger seat when stopped by police, however put in centre console during trip back to HHPS – Exhibits log states location as centre console
Black address book – located on front passenger seat when stopped by police, however put in centre console during trip back to HHPS – Exhibits log states location as centre console
Silver scales – glove box
Black leather wallet – glove box (Note the black leather wallet contained three large bags containing smaller bags with brown paste and two further bags containing white paste)
Bag and spoon – centre console under tape deck
Blue lunchbox containing $19,800 cash – boot
Registration documentation – boot (in manual)
Black purse containing $8,635 and various cards (located by Senior Constable Karran at Prospect road on the front passenger floor area – was later placed in the brown handbag during trip back to the Holden Hill Police Station – Exhibits log states location as inside brown handbag)
Ms Dallas Slater gave evidence. She had been in business with the accused in early 2005 and they ran a shop together which sold second-hand clothes and also did “henna tattooing”. The relevance of her evidence is that she owned the car that the accused was driving on the 13^th August 2005. She had borrowed $5,000 for Abdul Khalil to assist in the purchase of the car. Mr Khalil was the partner of the accused. Ms Lester had purchased the car from Mr Christopoulos on the 4^th February 2005 for the sum of $15,000. She had purchased the car in the name of Leslie Slater. She had never submitted the transfer of ownership details to the relevant government department (for reasons that were never explained).
The business she ran with the accused ceased trading in March/April 2005. After the shop closed she basically stopped driving the vehicle and gave the accused the keys. She still owed Mr Khalil money so she gave Ms Levy the keys to the car. Ms Slater stated that as far as she knew the car was “to go to Abdul’s garage”.
Her evidence was not challenged. I infer that the car was to remain with Abdul until she repaid the money. Ms Slater’s evidence explains why the accused told the police that Leslie owned the car but police checks showed the car was registered in the name of Christopoulos.
Detective Sergeant David Pedder gave evidence. He is currently a member of the Drug Investigation Branch. Due to his experience in the police force and courses that he has undertaken he was qualified by Mr Allen, counsel for the DPP, as an expert witness relating to packaging and pricing of illicit drugs. His expertise was not challenged and I accept his evidence as that of an expert.
Detective Sergeant Pedder told me that in August of 2005 methylamphetamine could be sold in either powder or paste form. In powder form one gram would have sold for about $150; one ounce for between $800-$1,200.
In paste form one “point” would sell for about $50. One gram in paste form would sell for about $200. Three and a half grams (known as an eight ball) would sell for about $450-$600. These prices were street prices.
Detective Pedder stated that methylamphetamine that had a purity of 62% would be near the “top end” of purity.
In relation to the drugs found in the vehicle Detective Pedder was shown Ex P1, photo 27. These were the items located in the wallet in the glove box. He stated that as far as photo 27 was concerned “the nature of packaging is probably the most common I have seen in my experience in relation to methylamphetamine and the way it is packaged”. Detective Pedder identified the smaller bags seen in photog 27 as “J bags”. He thought this size bag was the most common form of packaging.
Referring to photo 30, which was four smaller bags found inside a larger plastic press seal bag, he stated that methylamphetamine was commonly packaged for sale in that way. He conceded it could be packaged in that way by a user.
Items commonly found with a person who sold drugs were multiple mobile phones, scales, unused plastic bags and also cash. With users of methylamphetamine, not surprisingly, you could also find syringes.
When shown a photograph of the jar of paste located in the accused’s handbag he stated that he had seen methylamphetamine carried like that. He had seen that type of container at clandestine laboratories. It was a larger container than you would “find floating around the street”.
Under cross-examination Detective Sergeant Pedder agreed that the spoons found could be used by an addict to mix the methylamphetamine paste with fluid prior to injection. In other words they had a use consistent with administration of the drug. He also agreed that the plastic bags (in particular the J bags) could be used to mix the drug prior to administration. He further agreed that an addict could use two to three grams of methylamphetamine a day.
It is convenient to discuss here, the evidence of Ms Lawrie an expert witness called by the accused. Ms Lawrie is a social worker who has done extensive work with Drug and Alcohol Services Council and with the Department of Correctional Services. She is involved in therapeutic work for the Court Assessment Referral Scheme (CARDS). Her expertise was not challenged and I accept her expertise.
Ms Lawrie’s work has involved her in dealing with addicts who spend up to $500 a day on their habit; that amount was unusual. Ms Lawrie was unable to quantify the amount used in terms of grams of methylamphetamine. Her experience was in amounts spent on drugs. Ms Lawrie confirmed the use of the J bags as a method of ensuring a sterile mix before injecting. Ms Lawrie gave evidence that scales are used to measure the amount of methylamphetamine and that amount put into other bags as a safety measure to prevent overdose.
Her evidence and that of Detective Sergeant Pedder, evidence as far as they touched on the same topics, was consistent.
I accept the evidence of both Detective Sergeant Pedder and Ms Lawrie.
I remind myself that I do not necessarily have to accept the evidence of any expert witness. However in this case their evidence was largely unchallenged and I accept the evidence.
Finally the prosecution tendered a number of exhibits. In particular the certificate of analysis of Rodney Norris, an analyst appointed pursuant to the Controlled Substances Act was tendered by consent (Ex P8). His certificate proved that the substance found in the bags and jar was methylamphetamine. The total amount of paste, powder and liquid containing methylamphetamine was 25.67 grams of which 8.17 grams was pure methylamphetamine.
It was conceded that the amount of methylamphetamine found was greater than two grams which is the amount prescribed by the legislation for the purpose of s 32(3) of the Controlled Substances Act.
The case for the accused
The accused gave evidence. She also called evidence on her behalf. Evidence was given by Ms Challenor, her partner Mr Khalil and Ms Lawrie (discussed above).
Before analysing the evidence I point out that generally I do not accept the evidence of the accused. I found her evidence generally unreliable and lacking credibility. At times her evidence was inconsistent. She was, on occasions, clearly evasive when giving answers. Where her evidence, with one exception, is in conflict with the evidence of the police I prefer the evidence of the police.
The accused gave evidence that her car (the Calais) was stopped on Prospect Road and eventually searched. The accused said that she had been assisting a doctor, who had recently retired, shift items from his surgery to his home. She had assisted him on the previous Thursday. That evidence was corroborated by the witness called by the accused Ms Challenor. I accept the evidence of Ms Challenor. I accept the police evidence that the accused was asking or talking about contacting a lawyer almost as soon as the police stopped her vehicle. I accept that she was acting in a manner which was unusual when stopped. I accept the evidence of Senior Constable Perkins and Constable Beaufort generally about what occurred once the car was stopped.
The accused admitted possession of the drugs in her bag and the drugs in the glove box. She admitted possession of the two mobile phones, the scales, the cash in her handbag, the silver case containing a small amount of methylamphetamine and also the J bags.
The accused denied knowledge of the blue container that contained the large amount of cash located in the boot. Whilst she admitted that the purse located on the floor of the car adjacent to the front passenger seat was hers she denied possession of it that evening. She hadn’t put it in the car nor was she aware of its presence during the evening.
Items located during the search
The drugs
I have summarised her evidence in relation to the items found in the car. I will return to it more detail in due course. However initially I will concentrate on the drugs that were found in the car and in her handbag. Possession of these items, as mentioned, was conceded. Possession of the scales located in the glove box was also admitted.
Found in the handbag of the accused was a jar of methylamphetamine paste (Ex P1 photo 4). It was found to contain 5.88 grams of paste of 62% purity. In other words it contained 3.65 grams of pure methylamphetamine (Ex P8). The accused said she was aware that it was stronger and that she had already used some.

Located in the handbag was a syringe which contained fluid. It was analysed described as containing 0.29 grams of methylamphetamine of 18% purity (Ex P8). The syringe and the amount in the syringe is generally consistent with the evidence of the accused as to her use of the drug.
In the silver case located in the handbag (Ex P1 photos 47, 48, 49 and 50) two bags of methylamphetamine were located. One contained pink powder weighing 0.04 grams, the other bag containing moist off-white powder weighing 0.53 grams (Ex P8).
Also located in the handbag were two plastic bags containing a small amount of paste (Ex P1 photos 45 and 46). The amount of methylamphetamine was 0.07 grams (Ex P8).
In the glove box of the car a wallet containing various bags of methylamphetamine was also located adjacent to the scales (Ex P1 photos 6, 7, 8 and 9).
The contents of the wallet can be seen in Ex P1 photos 27, 28, 29, 30 and 31. Ex P8 describes the weight of methylamphetamine found in the various bags shown in photo 27 and also the purity. The individual bags as shown for example in photos 30 and 31 were not weighed – just the sum total of the bigger bag.
The total amount of paste found in the wallet in the glove box was 18.86 grams.
The total amount of paste and powder admittedly in the possession of the accused is 25.67 grams.
The accused gave evidence that she was addicted to methylamphetamine and had been for a number of years. She had purchased all of the drugs located. Most of the drugs were purchased in the week before her arrest. She told me that she would use the J bags to mix her “hit” as it was a sterile container. She said she would use about ½ (0.5) a gram per hit and she was injecting herself five to six times a day (T 417). I note the syringe located only contained 0.29 gram of methylamphetamine. The scales were used to measure the amount to put into the J bag. The spoons located were used to mix the paste. She denied having the drugs for sale. She told me they were all for her own use (T 416).
Under cross-examination the accused said that she had purchased the jar of paste during the week before she was arrested (T 443). The drugs found in the wallet in the glove box were purchased on two or three different occasions. She paid $500 for the jar of paste and $500 each for two lots of brown paste (T 444); see photos 29 and 30 of Ex P1. She couldn’t remember where she had bought the drugs found in the silver case.
In relation to the brown paste shown in photos 29 and 30 of Ex P1 the accused purchased the drugs in one bag and then she divided the paste up (T 459). She said that she did that to keep control of it. She said she would have put one gram in each.
When shown by Mr Allen photo 31 of Ex P1 where there is more than one gram in each bag she was not able to say how much was in each bag. She said that she kept it separated to keep control of it (T 459).
I reject her evidence about that. The objective evidence of the packaging shows that her explanation is inconsistent with being apportioned to “keep control of it”. Further the fact that she had so many bags with her and that they had differing weights is inconsistent with her evidence. I reject her explanation that she had brought all of the drugs with her as her partner was on home detention and she didn’t want to leave them in the house. Somewhat inconsistently she said she left the drugs hidden in the house during the day.
The three bags shown in photo 31 of Ex P1 had paste (combined weight) of 9.89 grams (Ex P8). It is likely that each bag contained around three grams. In addition the jar contained nearly six grams of relatively high purity methylamphetamine. I reject her evidence that the drugs were packaged like they were to help her control her addiction. It is inconsistent with the differing weights found.
In my view the accused had the paste in the jar and also the powder in the silver case for personal use. The material in the glove box has the appearance of being packaged for sale. It was found adjacent to the scales. I reject the accused’s explanations. I do not accept that the accused would have weighed the methylamphetamine before each administration. I find that the accused possessed it for sale.
Cash
The cash was found in three distinct locations. I will deal with them separately.
A blue container was located in the boot of the car. In the blue container was located the sum of $19,800. The boot of the vehicle also contained material that was from the doctor’s surgery that the accused was helping to shift.
By agreement, the evidence from the voir dire hearing given by Mr Lovrinov was tendered. It established that the partner of the accused, Mr Khalil, had borrowed large sums of money from Mr Lovrinov. I accept the evidence of Mr Lovrinov that he lent Mr Khalil the sum of $18,000 on the 20^th July 2005 and a further sum of $23,000 on the 9^th August 2005. Documents supported the lending of the money (Ex D1 and D2). Mr Khalil gave evidence about it. Whilst I do not necessarily accept the reasons Mr Khalil gave for why he borrowed the money and what he intended to do with it, the fact remains that $43,000 was borrowed in the three weeks leading up to the arrest of the accused. Mr Khalil gave evidence that he put some of the money in the blue container and hid the container in the boot of the Calais. It was hidden in a recess where the car jack should have been. He hid it in the vehicle as he didn’t want to leave it in the house as he was on home detention bail and also he didn’t want to run the risk of it being stolen from the house. He retained possession of some of the money. How much he retained and how much he hid was unclear.
The accused denied any knowledge of the blue container that was found. She said she knew that Mr Khalil had access to money but she didn’t know how and didn’t discuss the issue with him. Thus it was argued, on her behalf, that she did not possess the blue container in the boot or the contents of it.
When the boot was searched the blue container was found in the main trunk area of the boot – it was not in the hiding place suggested by Mr Khalil. He gave evidence that when he had last accessed the blue container he had subsequently returned it to its hiding place. There was no explanation on the defence case as to how it came to be in the main part of the boot.
I am unable to say how the blue container came to be in the main part of the boot. However I do accept that it is likely that the money inside the blue container was part of the money borrowed from Mr Lovrinov. I could not be satisfied beyond reasonable doubt that the accused knew of the presence of the blue container found in the boot on the night in question. I could not be satisfied beyond reasonable doubt that she was aware of the contents of the blue container. I therefore cannot be satisfied beyond reasonable doubt that she possessed either the blue container or the money it contained. I will therefore draw no inference adverse to the accused about the money. The money borrowed by Mr Khalil is of course is still relevant in the case as it may, in part, explain other sums of money in the case.
On the front passenger floor of the car was found a purse that belonged to the accused (Ex P13). It was found on the floor but close to the seat itself. It contained amongst other things cash in the sum of $8,365. The accused gave evidence that the purse was hers but that she was unaware that it was in the car that night. She said she was unaware of the money located in the purse.
To support that position Mr Khalil gave evidence. He said that it was he who had put the purse in that position earlier in the day. I find the evidence of Mr Khalil to have been unconvincing. He was evasive on occasions in particular relating to his explanations of what he had done with the money borrowed from Mr Lovrinov. His evidence was internally inconsistent and in parts illogical. I am unable to place reliance on it. I do not accept that he earned as much as he said. Had he been earning the amount of money he stated it would not have been necessary for him to borrow as much from Mr Lovrinov.
Mr Khalil told me that he was on home detention at the time the accused was arrested. He had a vehicle, a station wagon, which he apparently used to travel to work. He confirmed that the car was Ms Slaters and it was kept in the garage, at his house, at Prospect. He was able to use the car if he wanted. He did not drive it for work purposes. He did not want the accused to drive the Calais.
As mentioned before he kept some of the money he had borrowed from Mr Lovrinov in the blue container which he hid in the car. It was very unclear how much he had originally put in the blue container. He kept some of the original $18,000 borrowed from Mr Lovrinov in the house.
Mr Khalil told me that as it was the accused’s birthday on the 12^th August 2005, the day before she was stopped by the police, he was going to buy her a car. The car was being sold privately and he had rung his home detention officer on the Saturday to seek permission to travel to Modbury to buy the car. He told me that the car was selling for $7,200 but he was only going to offer $6,000.
The accused had left her purse on a table at home so he had put the $6,000 in the purse. He also put some other money for her in the purse to enable the accused to pay some bills and then put the purse on the front passenger floor of the vehicle. The Calais was in the shed. He did that on the Saturday morning. He went to work; at work he was waiting for the call from his home detention officer. He did not expect the accused to take the Calais out on the Saturday night.
Mr Khalil told me that the home detention officer did not ring him back. He was unaware that the accused had taken the Calais out on the Saturday night. She did so without his permission. He found out that she had taken the car only after the accused was arrested. He told me that he was not aware that she had taken the car on the Thursday. This evidence was contradicted by the accused. Her evidence was that Mr Khalil knew she had taken the car on the Thursday and spoke about it with him the following day. He was upset about the fact she had taken the car.
I reject his evidence about the purse. I am unable to say whether he ever had any intention of purchasing a motor vehicle. However I reject totally his evidence about putting the money in the purse and then putting the purse on the floor of the Calais. That evidence was simply fanciful and unbelievable. He could offer no sensible explanation for doing such an act. He told me that as he was going to buy the car later he just put the purse there and left it there. I reject that explanation. It is contrary to the evidence of the accused who said, as I mentioned earlier, that Mr Khalil was aware that she had taken the car on the Thursday without telling him (T 478). He could not have been confident that she would not take the car again without telling him. He could have of course taken his station wagon to Modbury.
The accused as I have mentioned acknowledged that the purse was hers. It contained personal items. She often carried it with her. She says she didn’t carry it with her on that night and that she wasn’t aware it was on the floor. She gave evidence that she did not produce her Medicare card and a card from her bank from that purse. Constable Beaufort said that he saw her produce those cards from the purse which she had in her hands. On that point I could not be satisfied beyond reasonable doubt that Constable Beaufort was correct about that. I do not mean to imply that in some way Constable Beaufort tried to mislead me about that. I have no doubt that he saw a black object in her hand. A black address book was located in the vehicle. I could not be satisfied that it was the purse rather than the black address book that he saw. It was dark, it was two years ago and Constable Beaufort did not make any notes about observing the purse.
Whilst the purse was not hidden it was in a position on the floor that was not obvious. However the accused had been using the car during the evening. She was transporting material to a doctor’s house. She had been to a hotel. I reject her evidence that she was unaware of the presence of the purse. I find that she was the one that took it with her on that night. I find that Mr Khalil and the accused gave false evidence about the purse in attempt to explain the large amount of cash found in the car (excluding the boot). I further find that the accused was aware of the amount of cash that was in her purse namely $8,635.
I reject Mr Khalil’s evidence about giving the accused two months rent in advance. If he had, then there would have been no need to have put more money in the purse on the Saturday morning. His evidence about the rent was opportunistic and false.
Cash was also found in the handbag of the accused. The sum of $450 was found in one pocket in side a white envelope. Cash in the sum of $1,550 was located in the front pocket of the bag. Cash in the sum of $1,750 was located in the rear pocket of the bag.
The accused gave evidence that the money found in the white envelope came from her selling a couch to a friend and also from selling some of the stock left over from her second hand clothing business (that had closed earlier in the year). The other amounts of cash she claimed may well have come from winnings on the “pokies”. Evidence was produced that supported to an extent, that proposition. Documents tendered (by consent) from the Empire Hotel and the Maylands Hotel supported her evidence (Ex D4, D5 and D6). On the 12^th August 2005 at 9pm a payout of $530 is recorded. On the 13^th August 2005 at 4.35pm a payout of $1,474.50 is recorded (Empire Hotel). At 11.12pm on the 13^th August 2005 at the Maylands Hotel a payout of $1,148.50 is recorded.
Of course the evidence only supports how much was paid out not how much was put into the machine. The accused gave evidence that she only put $50 in the machines on the occasions in question. I reject that evidence. I am unable to say how much she did put into the machines. It undoubtedly was a lot more than she was prepared to admit.
Given the timing of the last win, namely only about 40 minutes before her car was pulled over by the police, I am satisfied that the payout of $1,148.50 formed part of the cash found in her handbag. I am prepared to accept that some of the other money she won on the “pokies” formed part of the cash in the handbag. I do not accept that all of the winnings on those three occasions simply remained unspent (to a large extent) in her bag.
I reject her explanation as to the source of the money found in the envelope. The accused was cross-examined about evidence she gave on the voir dire hearing (T 455). She admitted that when giving evidence on the voir dire hearing she had been unable to give any evidence about the source of any of the cash found in her handbag. That was only a few days before she gave evidence at the trial.
Her explanation for the change in evidence was that seeing the video of the search and the production of items from her handbag such as “pokie” vouchers had reminded her of her winnings. As a result of watching the video and having her memory refreshed she made enquiries at the hotels mentioned and had produced the documents Ex D4, D5 and D6. As mentioned those documents did support, to an extent, her evidence about some of the money.
However, accepting that her memory was refreshed about the “pokies”, it is hard to understand how seeing a white envelope would refresh her memory of selling some clothes and a couch. She did not explain why that money would be put in a white envelope. I reject her explanation about the source of that money.
The accused also gave evidence about Mr Khalil giving her money to pay the bills of the household including rent. I have already found that Mr Khalil did not tell me the truth about that. I do not intend to go through that evidence. Suffice it to say that whatever explanation the accused gave it could not account, in combination with “pokie” winnings and selling of furniture and clothes, for the amount of money found in the purse and in her handbag. I accept that some of the money may have been given to her by Mr Khalil.
With the money in the purse on the floor and the money in the handbag the accused had in her possession the sum of over $12,000.
I accept that the accused has accounted for some of the money, but there is still thousands of dollars left unaccounted.
Other items
In addition to the drugs, scales and money the police located two mobile phones. Detective Sergeant Pedder gave evidence that drug dealers often have more than one mobile phone. The accused admitted the two phones were hers. She gave evidence that she was in the process of changing phone numbers. No explanation was given for why she would need to do that.
Further the police located a number of J bags in her handbag. I accept that they are as likely to be for personal administration as for dealing. The presence of the J bags does not assist the case one way or the other.
Discussion
In considering the issue of sale I must look at all the evidence in total and not just at the items individually.
Taking all the above matters into account and in particular my findings about the quantity of the drugs, their packaging, the unexplained cash and the fact of and location of the scales the accused has not satisfied me on the balance of probabilities that she possessed the drugs for a purpose other than sale. Accordingly she has not displaced the presumption.
I find proved beyond reasonable doubt that:
1.    the accused possessed the drugs located in her handbag and the glove box of the car
2.    that the drugs so located were in fact methylamphetamine
3.    that the accused knew that the drugs located were in fact methylamphetamine
4.    that methylamphetamine is a drug of dependence
5.    the accused possessed some of the methylamphetamine for the purpose of sale.
I therefore find the accused guilty of the charge of possessing methylamphetamine for the purpose of sale.