R v Magro - [2021] SADC 93

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MAGRO
Criminal Trial by Judge Alone
[2021] SADC 93
Reasons for the Verdicts of his Honour Judge Kimber
13 August 2021
CRIMINAL LAW
The defendant charged with: Trafficking in a Controlled Drug; Aggravated Possessing a Firearm Without a Licence; Possessing an Unregistered Firearm; Money Laundering. All alleged offences at the defendant's home.
Verdicts: Guilty.
Controlled Substances Act, 1984 (SA) s 32(3); Firearms Act, 2015 ss 6(2), 9(1) & 27(1); Criminal Law Consolidation Act, 1935 (SA) s 138; Evidence Act, 1929 (SA) s 34P, referred to.
R v Nikolic [2019] SASCFC 32; R Baftiroski [2018] SASCFC 83, applied.

R v MAGRO
[2021] SADC 93

Introduction
1On an Information dated 8 May 2020, Mr Magro is charged with the following offences:

First Count
Statement of Offence

Trafficking in a Controlled Drug. (Section 32(3) of the Controlled Substances Act, 1984).
Particulars of Offence

Daniel Robert Magro on the 20th day of September 2018 at Modbury Heights, trafficked in a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact the substance was a controlled drug.
Second Count
Statement of Offence

Aggravated Possessing a Firearm Without a Licence. (Section 9(1) of the Firearms Act, 2015).
Particulars of Offence

Daniel Robert Magro on the 20th day of September 2018 at Modbury Heights, possessed a category D firearm, namely a Ruger Model Mini‑14 self‑loading rifle, without holding a firearms licence authorising possession of that firearm.
It is further alleged that Daniel Robert Magro committed the offence in connection with, or at the same time as, an act or omission that would, if proved, constitute a prescribed offence against the Controlled Substances Act 1984.
Third Count
Statement of Offence

Possessing an Unregistered Firearm. (Section 27(1) of the Firearms Act, 2015).
Particulars of Offence

Daniel Robert Magro on the 20th day of September 2018 at Modbury Heights, possessed an unregistered category D firearm, namely a Ruger Model Mini-14 self-loading rifle.
Fourth Count
Statement of Offence

Money Laundering. (Section 138(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence

Daniel Robert Magro on the 20th day of September 2018 at Modbury Heights, directly or indirectly engaged in a transaction involving property, namely $17,060 cash, knowing that the property was tainted.

Mr Magro elected for trial by Judge alone. These are my reasons for finding him guilty of the four offences.
General Directions
It is not necessary for a court having conducted a trial by judge alone to set out the standard and obvious directions of which a judge is bound to be aware. However, I remind myself of the following matters.
Mr Magro is presumed innocent unless and until his guilt has been proven beyond a reasonable doubt. This requirement extends to proof beyond a reasonable doubt of every element of an offence. To the extent that Mr Magro has put forward a defence or innocent explanations, he does not have to prove them. It is not sufficient for the prosecution to show a suspicion of guilt or to demonstrate that Mr Magro is probably guilty. In making findings of fact, I must rely upon the evidence given by the witnesses and contained in the exhibits. I must apply my common sense. Each count must be considered separately.
Circumstantial evidence
In this case the prosecution relies upon circumstantial evidence. A guilty verdict cannot be returned unless the proven facts are such as to be inconsistent with any reasonable hypothesis other than guilt. Guilt must be the only rational inference the proven facts enable me to draw.
Evidence in Mr Magro’s case.
Mr Magro gave evidence and called one other witness, Mr Cowie. By doing so he did not assume any burden of proof. I must assess the evidence of Mr Magro and Mr Cowie in the same way as I assess all other witnesses who gave oral evidence.
Background – matters not in dispute
There are a number of matters not in dispute which I find proven unless otherwise indicated.
At about 2.20pm on 20 September 2018, police attended a property in Modbury Heights. At that time Mr Magro was the owner of the property, albeit subject to a mortgage. The property was fenced on all sides. Within the fence line was a house, a carport and a front and back yard. At the time police arrived, the front gate was locked. The front gate gave entry into the front yard. There was an intercom at the front gate. Police forced the front gate. There was a security camera which showed the area outside of the gate. That security camera was capable of transmitting both notifications and images to Mr Magro’s mobile phone and images to a television in the loungeroom of the house.
Having forced entry through the front gate, police went to the front door. There was a security camera on the front of the house. That camera was also capable of transmitting notifications and images to Mr Magro’s mobile phone and images to a television in the loungeroom.[1]
[1] T364.1; T372.17.
Police forced entry through the front door.
At the time police forced entry, there were five persons at the premises. All were adults. Those persons were Mr Magro, Mr Joseph Daly, Mr Daniel Dobrucki, Mr Dominic Wojniak and Ms Tracey Halling.
Mr Magro is the only one of the above who lived at the house. His young daughter and girlfriend, Ms Kate Nykiel, both sometimes stayed at the house. They were not present when the police arrived.
At the time police entered through the front door, Mr Magro was inside. There is a dispute about whether he was in the kitchen or adjacent loungeroom. Ms Halling was located by the police inside the house, but not in the kitchen or loungeroom. At about the time police entered the front door (on the prosecution case before) Mr Daly, Mr Dobrucki and Mr Wojniak exited the house through a door from the kitchen or dining area towards the rear yard. They did not go far. They were seen by police positioned with a view of the rear of the house and directed to lie on the ground. They did so.
After a time, Mr Magro and the four other persons were taken into the front yard.
As at 20 September 2018, Mr Magro was a user of methylamphetamine. He told me he had used shortly before the arrival of the police.
In a handbag belonging to Ms Halling, police found a pipe suitable for smoking methylamphetamine.
While Mr Wojniak was in the front yard, police saw a plastic resealable bag on the ground next to him. It contained a white crystalline substance. Mr Wojniak was convicted on 19 July 2016 of trafficking in a controlled drug. That offence occurred on 2 March 2015. He was also convicted on 9 September 2019 of possessing a controlled drug (not cannabis). That offence occurred on 22 August 2018.
Outside the house was a Holden sedan. Within the console was a wallet containing identification in the name of Mr Dobrucki. Also within the console were two resealable bags, two pipes suitable for smoking methylamphetamine and a small amount of liquid which might have been GHB.
Mr Daly has a number of convictions in relation to drugs and firearms. He was convicted on 7 May 2015 of possessing equipment to use with a controlled drug (not cannabis) and driving a motor vehicle with methamphetamine in his fluid or blood. Those offences occurred on 16 September 2014 and 28 March 2015 respectively. He was convicted on 17 December 2015 of two offences of possessing a firearm without a licence, two offences of possessing an unregistered firearm, two offences of failing to properly secure a firearm, possession of a prohibited weapon, possession of prescription drugs (not being drugs of dependence) and dishonestly taking property. The offences occurred between 8 May 2014 and 31 March 2015. He was convicted on 8 November 2019 of possession of a prohibited weapon. That offence was committed on 9 January 2019. On 14 November 2019, he was convicted of possessing a controlled drug (not cannabis). The offence occurred on 27 November 2018. He was convicted on 14 May 2020 of possessing a controlled drug (not cannabis). The offence occurred on 16 December 2018.
Putting aside Mr Magro, I pause to observe I am satisfied that it is at least a reasonable possibility the others present at the house when police arrived had an interest in methylamphetamine. I am also satisfied that it is at least a reasonable possibility that Mr Daly had an interest in firearms as at 20 September 2018.
After being removed from the house and while seated in the front yard, a photograph was taken of the left leg of the tracksuit pants of Mr Magro. It shows that part of the left leg of those pants were damp.
Police searched the house and at least the rear yard.
In the rear yard was a raised garden bed. It contained soil, but no plants. Buried about 10 centimetres below the surface was the firearm the subject of counts 2 and 3. The firearm was a Ruger model‑14 self‑loading rifle. It is a category D firearm as defined in the Firearms Act, 2015 (‘FA’). It was unregistered. Mr Magro was not the holder of a firearms licence on 20 September 2018.
The trigger, trigger guard, bolt strike, a portion of the hand guard and the magazine were swabbed for the presence of DNA. That single DNA swab was later found to contain very low amounts of, or no, DNA. The firearm was 667 millimetres long. It was in poor condition. It could take a magazine. No magazine, nor suitable ammunition, was found during the police search.
The firearm was wrapped. The outermost layer was a white “Glad” brand bin liner. Within that outer layer, the firearm was wrapped in Glad Wrap. Within that layer was an “Aldi” brand shopping bag and then the firearm itself. In a drawer within the kitchen was a roll of Glad Wrap. There was also a box of “Glad” brand bin liners in the same drawer. In the kitchen, there was a bin. That bin was lined with a white “Glad” brand bin liner.
In a games room or office (“room 4”), was a locked safe. The safe was opened by a key belonging to Mr Magro found on the kitchen bench. Within the safe was $17,060 in three separate bundles. There was a bundle of one hundred $50 notes. There was a bundle of two hundred and ten $50 notes. The final bundle contained nine $100 notes, five $50 notes, twenty $20 notes and one $10 note. In a filing cabinet (either in room 4 or the loungeroom), was a spiral bound notebook (P13). On various pages within the notebook were fingerprints. Six were unidentified. One matched Ms Nykiel. One matched Travis Lynton Bewick. One matched Jarred Brenton Clarke. No fingerprint matched Mr Magro.
A “walk through” video was made of areas of the home after the five people had been placed in the front yard. At the time of the video, a television in the loungeroom was showing CCTV images from at least one security camera.
Immediately before the entry of police into the house, an effort had been made to discard methylamphetamine down the kitchen sink. A tap was open and running into at least one of the two kitchen sinks when police entered. Two samples of water taken from the ‘P‑trap’ under the sink contained methylamphetamine.
Separate amounts of methylamphetamine were found within the kitchen. There was 7.51 grams of crystals containing 5.12 grams of methylamphetamine in a small plastic tub on the kitchen bench. There were five other amounts of crystals weighing 0.05 grams, 0.06 grams, 0.03 grams, 0.92 grams and 1.15 grams respectively. Each contained methylamphetamine. Those items were within two small plastic tubs, a larger plastic tub, the kitchen sink and on a plastic lid on top of the microwave opposite the kitchen bench. The larger plastic tub had a fingerprint matching Ms Nykiel and a fingerprint with insufficient ridge detail to enable a comparison to be made. No fingerprint matching Mr Magro was found on that item. There is no evidence the plastic lid or two small tubs were examined for fingerprints. There was a plastic National Pharmacies brand bag adjacent to the bin in the kitchen. Within that bag were plastic resealable bags containing crystals. Those crystals weighed 0.71 grams and 0.08 grams respectively and both contained methylamphetamine.
On the kitchen bench was a set of digital scales. On the surface of those scales were crystals. There was another set of digital scales in room 4. Mr Magro told me both sets of scales were his.
Mr Magro was interviewed by police on 20 September 2018.[2] He denied possessing the methylamphetamine for the purpose of sale; said he knew nothing about methylamphetamine being in his sink and did not know about a firearm being in his backyard.
[2] P18.
After his arrest, Mr Magro gave a handwriting sample (P21). That sample was later used to compare to certain writing within the notebook P13.
Discreditable Conduct
Mr Magro told me he was a user of methylamphetamine.[3] I accept that evidence. There were pipes in the house suitable for smoking that drug.[4] I am satisfied that at least one such pipe was his. Mr Magro being a user of that drug is only to be used with respect to count 1. I have not used that evidence in relation to any other count. It is evidence of an interest in possessing methylamphetamine and only relevant to the issue of whether Mr Magro was in possession of any of the methylamphetamine the subject of count 1. The use of that evidence for that limited purpose substantially outweighs any prejudicial effect[5] it may have upon Mr Magro. It also has strong probative value having regard to the issue of possession.[6] I am satisfied that use can be kept separate and distinct from any other use.[7] It is not evidence of a propensity to traffic in that drug. It is not to be used to reason Mr Magro is a bad person and for that reason more likely to be guilty of any count.
[3] T284.16; 411.21.
[4] T324.21; 370.26.
[5] Section 34P(2)(a) of the Evidence Act, 1929.
[6] Section 34P(2)(b) of the Evidence Act, 1929.
[7] Section 34P(3) of the Evidence Act, 1929.
There was also evidence of Mr Magro being a user of cannabis. That was his evidence and cannabis was found inside the house. The presence and use of cannabis is only relevant to my evaluation of the entries in a notebook found in the house (P13) and whether relevant entries are of methylamphetamine trading or not. It is not to be used to reason Mr Magro is a bad person and for that reason more likely to be guilty of any count.
The prosecution sought to prove Mr Magro had sold drugs before, specifically methylamphetamine. It also sought to prove that in the early hours of 20 September 2018 he expressed an interest in coming into possession of a different firearm than the subject of counts 2 and 3. This evidence will be discussed below.
Expert evidence
Evidence was given by three experts. There was no dispute about their expertise. The issue is what inferences should be drawn from the evidence given by each in the context of all other evidence in the case.
Detective Brevet Sergeant Anderson is an expert in the methylamphetamine trade. Among other things, she gave evidence about the value of methylamphetamine in September 2018, how it was sometimes packaged and sold, whether firearms were ever possessed by those trading in drugs and whether certain entries within P13 might be records of sales of drugs.[8]
[8] T144-158.
Mr Sanders is an expert in firearms. He gave evidence about the firearm the subject of counts 2 and 3.[9] He also gave evidence that a company called Harrington and Richardson manufactured a handgun known as a “Young American Double Shot”. That company did so in the United States from the mid-1880s until about 1941.[10] Mr Sanders told me that handgun was imported into Australia.[11] That evidence was led because the prosecution says that during phone calls at about 3.03am and 3.08am on 20 September 2018, Mr Magro expressed an interest in purchasing a firearm and that the person to whom he spoke referred to it as a “Young American Double Shot”.[12]
[9] T238.
[10] T242.25.
[11] T243.3.
[12] T64.16; 295.24.
Ms Ockleshaw is an expert in handwriting comparison. She compared the handwriting samples of Mr Magro to the writing on four pages within P13. Ms Ockleshaw’s evidence was there was strong support for Mr Magro having written two pages within P13. Those pages were referred to as “10.01.D” and headed ‘Maggot’ and 10.01.A and headed ‘Kate $18,000’.[13] On 10.01.A some writing had a different appearance and was excluded from comparison to the known writing of Mr Magro.[14] Ms Ockleshaw also said that there was a moderate support for Mr Magro having written the entries on a page referred to as 10.01.C and headed ‘Michael’.[15] On the prosecution case, each of the three pages just mentioned was consistent with a list of past sales of drugs. On the prosecution case, past sales of methylamphetamine.
[13] T390.3.
[14] T269.15.
[15] T261.29.
A brief summary of the evidence of Mr Magro and Mr Cowie
Mr Magro told me that as at 20 September 2018, he was a smoker of both methylamphetamine and cannabis.[16] He smoked methylamphetamine using glass pipes.[17] He was unemployed in September 2018 but before that he had earned about $700 - $1,500 per week.[18] Mr Magro told me he was unaware police were outside his house until entry was forced through the front door.[19] He said the CCTV cameras outside his home were connected to his mobile phone. If working properly, the cameras sent notifications to his phone. If he opened a notification and then selected a camera, he could see what was in front of the camera.[20] He said that if notifications were sent to his phone while police were outside, he did not see or hear them.[21]
[16] T285.5.
[17] T324.18.
[18] T410.1.
[19] T307.23; 415.
[20] T372.30.
[21] T307.
He told me the CCTV cameras were capable of transmitting live images to a television in the lounge.[22] There were two televisions in that lounge. He said the television which received CCTV images was not switched on when the police were outside.[23]
[22] T373.4.
[23] T373.36.
Mr Magro said that his daughter and Ms Nykiel had been at the house until about 10.30am that morning.[24]
[24] T300.24.
He said Ms Halling had attended to assist him with housework, something she had been doing from time to time. Mr Magro said that Ms Halling arrived at about 9.00 ‑ 10.30am[25] and Mr Dobrucki at about 1.00 ‑ 2.00pm.[26] His evidence was unclear about the time the other two men arrived.
[25] T301, 304.
[26] T305.
Mr Magro said he had smoked methylamphetamine before the police arrived.[27] He said at the time entry was forced through the front door, he was on the lounge in his loungeroom.[28] He was therefore not in the kitchen. Very shortly thereafter, he lay on the floor having been directed to do so. He told me that Mr Dobrucki and Mr Daly were seated at the kitchen bench and had smoked methylamphetamine.[29]
[27] T306.12.
[28] T309.1.
[29] T308.
Mr Magro denied that any writing in P13 was his.[30] He could not recall having seen that notebook previously.[31]
[30] T386.
[31] T338; 386.
He admitted the two sets of scales belonged to him.[32] He said he had been a cook in the past and that they were for weighing items for cooking.[33] However, he also said that he had used one set to weigh methylamphetamine in the past as he was a user of that drug.[34]
[32] T333.8; 367.10.
[33] T333.23.
[34] T333.36-334.
Mr Magro denied he had any involvement in discarding methylamphetamine down the kitchen sink.[35] He did not dispute his tracksuit pants might have had some areas of dampness, but said it was not something that he noticed on the day.[36] He told me that once taken outside he had been asked to kneel on the ground for a time before a chair was brought to sit on in that front yard. He suggested that any dampness could have been from having knelt on the grass.[37]
[35] T337.2.
[36] T320.16.
[37] T320.18.

Mr Magro denied being in possession of the methylamphetamine the subject of count 1.[38] Mr Magro also denied having any knowledge of the firearm the subject of counts 2 and 3.[39] As for the Glad Wrap and bin liners in the kitchen drawer, he told me that they were his.[40]
[38] T335.
[39] T346.8.
[40] T357.
Mr Magro’s evidence was that the $17,060 within the locked safe was his.[41] He told me that $15,000 had been received for a gearbox, steering wheel and mirrors. Those items came from a car his father had owned and which had raced at Bathurst in New South Wales. He said that he had sold the three items to Mr Cowie in 2018 and had been paid in cash. The balance of the money in the safe was his savings.[42]
[41] T355-356.
[42] T356.
Mr Cowie gave evidence. He told me he was a mechanic and had been interested in cars since he was a boy. He has owned race cars. He told me that before September 2018 he was introduced to Mr Magro by a friend.[43] He heard through the friend that Mr Magro might have car parts in which he might be interested. He spoke with Mr Magro on the phone and subsequently attended his home on more than one occasion to inspect the items.[44]
[43] T423.33.
[44] T424.
He said that having seen the items, he conducted some research and that he subsequently purchased at least a gearbox, a steering wheel, two mirrors, some car badges and some paperwork. He said that he paid a little less than $15,000 in denominations of $100 notes, $50 notes and $20 notes.[45] He told me the money had come from a Torana which he had sold.[46]
[45] T427.2.
[46] T427.5.
Counts 2 and 3
I will deal with these counts first. If count 2 is established beyond a reasonable doubt, there is no dispute Mr Magro is guilty of count 3.
In this case, the elements of count 2 can be stated in the following way:
1.The item the subject of the charge is a firearm;
2.Mr Magro was in possession of the firearm;
3.Mr Magro did not hold a firearms licence authorizing possession of the firearm;
4.At the time Mr Magro possessed the firearm, he did so in connection with committing count 1, or at the same time as committing count 1.
The real issue in this count is whether the second and fourth elements have been proven beyond a reasonable doubt. There is no dispute about the first and third elements. I find those elements proven beyond a reasonable doubt.
As to the element of possession, s 6(2) of the FA provides:
(2)For the purposes of this Act (other than section 25), a person has possession of an item to which this section applies if—
(a)the person has physical possession or control of the item or has the item in the physical possession or control of another; or
(b)the person has and exercises access to the item; or
(c)the person controls access to the item; or
(d)the person occupies, or has care, control or management of, premises, or is in charge of a vehicle, vessel or aircraft, where the item is found.
As Mr Magro owned the house and was the only adult living there permanently, it is convenient to consider limb (d) of the above.
I find that ‘premises’ includes the backyard of Mr Magro’s home and the area in which the firearm was found. However, s 6(2)(d) of the FA does not apply if Mr Magro proves on the balance of probabilities:
· That he did not know, and could not reasonably be expected to have known, that the firearm was on the premises; or
· The firearm was in the lawful possession of another, or he believed on reasonable grounds that the firearm was in the lawful possession of another.
The real issue with respect to possession is whether Mr Magro has proven that section 6(2)(d) of the Firearms Act does not apply. More specifically, he did not know, and could not reasonably be expected to have known, the firearm was on his premises. While there was evidence giving rise to a possible inference the item was in the possession of another; for example: Mr Magro said that he was unaware of the presence of the firearm and others were present, one of whom was Mr Daly who has a history of involvement with firearms. Even if the firearm was in possession of another, there is no basis upon which to find any such possession was lawful. Further, Mr Magro did not give evidence, nor otherwise seek to establish, he believed on reasonable grounds the firearm was in the lawful possession of another. He denied any knowledge of the firearm.[47]
[47] T346.8.
Mr Magro relied upon his evidence, along with other matters, to establish he did not know, and could not reasonably be expected to have known, the firearm was on his premises. In addition to his own evidence, he particularly relied upon the presence of four others at the house, all of whom it is at least reasonably possible had some connection to methylamphetamine; firearms sometimes being used in connection with that drug;[48] that Mr Daly had an interest in firearms; and the shallow nature of the burial of the item (i.e. – possibly consistent with it being placed there relatively recently).[49]
[48] T416.
[49] T190.4.
Mr Magro has not satisfied me on the balance of probabilities he did not know the firearm was on his premises. I reject his evidence about that. Although I do not have to go this far, on the whole of the evidence, including Mr Magro’s evidence, I am satisfied beyond a reasonable doubt both that he knew the firearm was there and he had the power and intention to exercise control over it to the exclusion of any other person. My reasons follow.
The firearm was buried in the backyard of Mr Magro’s home. I reject that if Mr Magro was in possession of the firearm, he was unlikely to bury it in his backyard. Such a location limited the risk of it being found by anyone who might visit, or stay at, the house. The possibility that another might have placed it there earlier on 20 September 2018, or at some earlier time, must be evaluated in light of the following matters.
Mr Magro was the only adult who lived at the house permanently.[50]
[50] T283.30.
I am satisfied the item was valuable. Not only had it been hidden, it had been carefully wrapped to protect it against the elements.
It is unlikely another person would have hidden it there without telling Mr Magro. I reject that might have happened. It was Mr Magro’s backyard. Hiding it there without telling Mr Magro gave rise to a risk of it being found and then lost by the person who left it there. If another person did that, they must have chosen to bury it at a depth of only about 10 cm[51] in a garden bed which common sense would have told them might have been accessed by Mr Magro at any time. I am satisfied Mr Magro knew of the presence of the firearm. That knowledge does not prove possession, but it is relevant to whether possession has been proven beyond a reasonable doubt.
[51] T190.6.
The firearm was wrapped in Glad Wrap and a “Glad” bin liner.[52] Mr Magro had both items in his kitchen.[53] Both are common items, easily available to anyone. However, not just one of those items was used, but both. Further, as with all items of circumstantial evidence, the significance of the wrapping must be considered in light of all of the circumstantial evidence.
[52] T86.10.
[53] T91.5.
An aspect of the prosecution case with respect to possession of the firearm was that I was asked to conclude that in the early hours of the morning on 20 September 2018, Mr Magro communicated with another person about a different firearm. On the prosecution case, Mr Magro expressed an interest in coming into possession of a ‘Young American Double Shot’ (i.e. ‑ a handgun of the type described by Mr Sanders). The prosecution says that if, on the same day the police attended, Mr Magro was interested in a different firearm to the one the subject of counts 2 and 3, that interest is a piece of circumstantial evidence which can, along with other evidence, show that Mr Magro had possession of the firearm the subject of count those two counts.
I am satisfied that during the two calls within P7 in the early hours of 20 September 2018, Mr Magro expressed an interest in coming into possession of a firearm and that it was an interest in a different firearm to that the subject of counts 2 and 3. I reject Mr Magro’s evidence he was expressing interest in an item associated with drag racing. I do not reject that a ‘double shot’ might be a term used in drag racing. Nonetheless, it is of some relevance that Mr Cowie, who had some experience of car racing and of what a ‘double shot’ was in that context, did not claim any knowledge of that term being used in conjunction with the words ‘Young American’.
However, I am satisfied Mr Magro was not offered just a ‘double shot’, but a ‘Young American Double Shot’. The words ‘double shot’ are not to be considered isolated from the words ‘Young American’ used by the person to whom Mr Magro was speaking in the phone call at 3.08 am on 20 September 2018.[54] I am satisfied the person to whom Mr Magro spoke in the call at 3:03 am offered him a firearm. It is not the state of mind of the person to whom Mr Magro spoke which is important. It is the state of mind of Mr Magro. I am satisfied that during the call at 3:03 am, Mr Magro knew he was being offered a firearm of some sort, presumably as a result of some earlier communication/s. In the call at 3:03 am, Mr Magro then expressed an interest in coming into possession of that firearm, subject to seeing it (either in a photo, or in person). I am satisfied that in the call at 3:08 am on that day, Mr Magro was told the firearm was a ‘Young American Double Shot’.
[54] T395.17.
That Mr Magro had an interest in possessing a different firearm to the one the subject of counts 2 and 3 on the same day the firearm the subject of those counts was found in his backyard, has a probative value which substantially outweighs any prejudicial effect it may have upon Mr Magro.[55] It also has strong probative value[56] having regard to the particular issue arising with respect to both counts 2 and 3 (i.e. ‑ as a piece of circumstantial evidence bearing upon whether Mr Magro was in possession of the firearm the subject of those counts). That permissible use[57] can be kept sufficiently separate and distinct from the impermissible use of reasoning that Mr Magro was a bad person because he expressed an interest in possessing a firearm early on 20 September 2018.
[55] Section 34P(2)(a) of the Evidence Act, 1929.
[56] Section 34P(2)(b) of the Evidence Act, 1929.
[57] Section 34P(3) of the Evidence Act, 1929.
For the above reasons, I am satisfied beyond a reasonable doubt that Mr Magro was in possession of the firearm.
As a matter of completeness, I will refer to one further aspect of the prosecution case with respect to possession of the firearm. It is an aspect of the circumstantial case I am satisfied is consistent with the prosecution case, but I did not rely upon it in finding possession established beyond a reasonable doubt.
An aspect of the prosecution case with respect to Mr Magro being in possession of the firearm in count 2 is a phone call with his ex‑wife on 29 September 2018 (P7 and P8). There is no dispute Mr Magro said to his ex‑wife ‑ ‘Glad there’s not a machine gun out the backyard now…’ and ‘I’m glad there’s not a machine gun out my backyard’. I was asked to infer Mr Magro was admitting he had previously had such an item in that location. I was then asked to infer the machine gun to which he was referring was the firearm found by the police. Mr Magro told me he was not referring to that firearm, but to a ‘gell blaster’ purchased before 20 September 2018.
This was an emotional phone call. Mr Magro was discussing the passing of his mother and how he felt about her. In such circumstances, people may say things which are not in fact true and care must be taken in drawing inferences from what is said. It is necessary to consider carefully whether Mr Magro was admitting having possession of the firearm the subject of count 2. I must exclude he was merely ‘sounding off’ or said what he did because he learned the firearm was there only after it was found. I reject Mr Magro’s evidence that he was referring to a ‘gell blaster’. This, and any other rejection of his evidence, are only relevant to the credibility of the balance of what he told me. Mr Magro being glad a toy firearm was not in his backyard is not consistent with what I am satisfied was a clearly emotional phone call. I am satisfied he was referring to the firearm found by police, but as Mr Magro might have learned of the finding of the firearm before this call, I have not used this evidence in finding Mr Magro was in possession of the firearm in count 2 and 3.
As to the fourth element of count 2, I am not satisfied beyond a reasonable doubt that Mr Magro possessed the firearm in connection with a prescribed offence against the Controlled Substances Act 1984 (“CSA”). The firearm was outside, wrapped and in poor condition. Mr Magro did not have any suitable ammunition. However, for reasons I will give, I am satisfied beyond a reasonable doubt that Mr Magro is guilty of count 1. I am therefore satisfied beyond a reasonable doubt he possessed the firearm the subject of count 2 at the same time as a prescribed offence against the CSA.
I find Mr Magro guilty of count 2, including the circumstance of aggravation.
I am satisfied beyond a reasonable doubt the firearm the subject of count 2 was a firearm within the meaning of the FA, that Mr Magro was in possession of it on 20 September 2018 and it was unregistered.
I find Mr Magro guilty of count 3.
I will not use Mr Magro’s interest in possessing a firearm in the early hours of 20 September 2018, nor the commission of count 2 and 3, in evaluating the other two counts in the trial.
Count 1
The methylamphetamine the subject of this charge is the 10.51 grams of crystals containing methylamphetamine located in the kitchen. Those amounts are the 7.51 grams in a small plastic tub on the kitchen bench; 0.05 grams and 0.06 grams in two small plastic tubs on the kitchen bench; 0.03 grams in a larger plastic tub on the kitchen bench; 0.92 grams in the kitchen sink; 1.15 grams on a plastic lid on top of the microwave and two amounts of 0.71 grams and 0.08 grams in a National Pharmacies bag adjacent to the bin in the kitchen.
Given the way the prosecution put its case at trial, the elements the prosecution must prove beyond a reasonable doubt are:
1.     The crystals found in the kitchen were methylamphetamine;
2.     Methylamphetamine is a controlled drug;
3.Mr Magro trafficked in the methylamphetamine on 20 September 2018 (i.e. ‑ he was in possession of at least part of the methylamphetamine on that day, intending to sell at least part of what he possessed);
4.     Mr Magro knew, or was reckless, that it was a controlled drug.
It is an agreed fact the eight separate amounts of crystals found in the kitchen contained methylamphetamine. Methylamphetamine is a controlled drug. Given Mr Magro’s evidence, there is no doubt Mr Magro knew, or was at least reckless, that methylamphetamine was a controlled drug. I find those matters proven beyond a reasonable doubt.
The real issue is the third element. More particularly: First, whether Mr Magro was in possession of any of the methylamphetamine in the kitchen on 20 September 2018. Second, if he was, did he intend to sell at least part of what he possessed. Possession and the intention must coincide.
Given what was found by the police in the kitchen (e.g. ‑ scales suitable for weighing methylamphetamine, methylamphetamine on the surface of those scales, more than one container on the bench containing that drug) and, for reasons I will give, as Mr Magro was selling methylamphetamine before 20 September 2018, I am satisfied immediately before the police entered a transaction involving methylamphetamine was underway. However, given the way the prosecution put its case, it is not enough to prove Mr Magro was participating in a purchase of methylamphetamine intending to sell at least some of the methylamphetamine, but without having come into possession. Given the way the prosecution put its case, Mr Magro being in possession is essential. The prosecution must prove beyond a reasonable doubt that Mr Magro was in possession when the police entered and intended to sell at least some of what he possessed, or that he had been in possession before police entered, but had sold before they entered (i.e. ‑ in possession earlier on 20 September 2018, intending to sell).
The primary case of the prosecution with respect to possession is that Mr Magro was in sole possession of the methylamphetamine. The prosecution also submits it is open to me to consider joint possession.
Section 4 of the CSA states:
possession of a substance or thing includes—
(a) having control over the disposition of the substance or thing; and
(b) having joint possession of the substance or thing;
At common law, possession refers to the power and intention to exercise control over something to the exclusion of all others, except those in joint possession. Whether the ‘included’ meaning in paragraph (a) above restates the common law or provides a wider definition has not been decided.[58] I proceed on the basis the common law definition applies. When I refer to possession below, I have applied the common law definition.
[58] R v Nikolic [2019] SASCFC 32 at [16]; referring to R v Baftiroski [2018] SASCFC 83 at [31].
Traffic is defined in section 4 of the CSA as follows:
traffic in a controlled drug means—
(a)     sell the drug; or
(b)     have possession of the drug intending to sell it; or
(c)     take part in the process of sale of the drug;
As the prosecution disavowed any reliance upon Mr Magro having trafficked on the basis he had taken part in the sale of the drug but without coming into possession, the definition of ‘traffic’ in s 4 of the CSA which is relevant is ‘have possession of the drug intending to sell it’, provided the possession was on 20 September 2018 (i.e. ‑ either at the time of the police entry, or before).
Did Mr Magro dispose of the methylamphetamine?
It is convenient to begin with whether Mr Magro disposed of methylamphetamine into the kitchen sink. He denies doing that. He told me he was in the loungeroom when police entered through the front door.
A STAR Officer (PH1) was one of the first two officers to enter through the front door.[59] It is a short distance from the front door to the kitchen. PH1 would have had a view of the kitchen soon after entering through the front door and progressing into the house. PH1 told me a male was in the kitchen standing adjacent to the kitchen sink when he first had a view into the kitchen. He said that he pushed past that male and turned the tap in the sink off.[60] PH1 also said he recognised that male as Mr Magro. PH1 had viewed a photograph of him before entering the premises.[61] I put that identification, or recognition, aside.
[59] T50.27.
[60] T34.3.
[61] T34.11.
Notwithstanding Mr Magro’s evidence he was not in the kitchen when police entered,[62] I accept PH1’s evidence that there was a male in the position he described. I reject that PH1 might have been dishonest, or mistaken, about that. PH1 was entering a house without complete knowledge of what he might encounter inside. I am satisfied he would have been paying close attention to what he saw, and where. That there was a person in that position is consistent with there being methylamphetamine in the ‘P-trap’ of the sink.[63] While the evidence of LS was he first saw Mr Magro seated in the loungeroom and he was one of the first officers to enter the house, I am satisfied that PH1 went past LS after LS had forced the door. [64] I am satisfied there was either time for PH1 to see Mr Magro in the kitchen and for Mr Magro to move to the lounge before LS saw him, or that LS is mistaken as to where he first saw Mr Magro, despite the attention LS would have been paying immediately that he looked into the loungeroom (i.e. ‑ perhaps mistaken because Mr Magro was later in the loungeroom before being removed from the house).
[62] T419.14.
[63] T27.36.
[64] LS T44-46; 48; 50-51.

The next issue is whether the male PH1 saw in the kitchen was Mr Magro. I am satisfied it was.
First, I accept the evidence of both PH1 and LS that police did not enter until after three males had been seen to exit through the rear door.[65] There is no dispute those persons were the other three males at the house. This leaves Mr Magro as the only male inside.
[65] T43.20.
Second, I accept PH1’s evidence the person he saw was a male. This then excludes Ms Halling, the only other person at the house.
Third, I am satisfied that areas on the left side of Mr Magro’s tracksuit pants were damp after he was taken outside. That was the evidence of LS, albeit he was mistaken as to the position of the dampness.[66] It is consistent with what can be seen in photographs of Mr Magro taken while he was outside (P20). I reject Mr Magro’s evidence that if his tracksuit pants were damp, it might have been because he had knelt on the lawn before the photograph was taken.[67] If that were the cause, I would expect to see dampness in the area of the shin and/or knee (i.e. – the areas that would have taken weight on the ground) and more consistent over the surface of the pants. The dampness is more uneven than that. More importantly, the position of what can be seen in P20, and its appearance, is more consistent with water splashing onto the tracksuit pants of Mr Magro from the tap in the sink. I am satisfied that water did splash beyond the bowl of the sink. Water can be seen in the walk‑through video P10. I accept the evidence the tap was still running when police entered. I reject Mr Magro’s evidence that he was not responsible for disposing methylamphetamine down the sink immediately before police entered. My rejections of his evidence are only relevant to his credibility.
[66] T50.10.
[67] T318.18.
My finding Mr Magro was responsible for disposing of methylamphetamine down the sink satisfies me beyond a reasonable doubt he was in possession of the methylamphetamine which was in the ‘P‑trap’ and the bowl of the sink. It does not establish he was trafficking in that methylamphetamine (i.e. ‑ it does not establish that he was in possession of that methylamphetamine intending to sell it before police entered).
That Mr Magro was the person who attempted to dispose of the methylamphetamine is relevant to whether any of the balance of the methylamphetamine was in his possession. It is not, however, the only inference to be drawn from that conduct. Mr Magro might have taken that step without being in possession of any methylamphetamine before that step was taken. For example, in the knowledge police were outside, and in the knowledge that others were responsible for the methylamphetamine on the bench in his kitchen, he might have chosen to dispose of methylamphetamine without being in possession before that moment.
Discussion
Mr Magro gave evidence he was not in possession. I must exclude that evidence and the exculpatory aspects of his interview, as being reasonably possible. Even if I reject Mr Magro’s exculpatory evidence and statements to the police, the prosecution must still prove all elements beyond a reasonable doubt. The prosecution must prove the methylamphetamine was not in the possession of another, or others, to the exclusion of Mr Magro and that he intended to sell.
It was Mr Magro’s home. Mr Magro was present in the area of all of the methylamphetamine. On the bench was a set of scales suitable for weighing methylamphetamine. Methylamphetamine is a drug sold by weight.[68] The photos and walk‑through video are not consistent with the scales being used for any legitimate purpose immediately before police attended. Not only are no food items which might have needed weighing present, the scales are on the same bench as three plastic containers which contained methylamphetamine. There were crystals on the surface of the scales.[69] I am satisfied beyond a reasonable doubt those crystals were methylamphetamine. All those inside the house had an interest in methylamphetamine. Consistent with what is set out above, I am satisfied beyond a reasonable doubt that immediately before the police entered the scales were being used to weigh methylamphetamine and a transaction involving that drug was occurring.
[68] T139.
[69] T83.28.
Among the issues is whether Mr Magro was involved in that transaction.
An aspect of the prosecution case as to possession and intention is the notebook, P13. I reject Mr Magro’s evidence that he did not know of the notebook.[70] It was within a filing cabinet in his home.[71] He was the only adult who lived there permanently. On one page was a note to him written by Ms Halling. On another page was a note written about him by ‘Kate’. I am satisfied that was his partner, Kate Nykiel. On another page was the street address of Mr Magro’s house above which is a list of items consistent with building or construction (e.g. ‑ ‘brick mortar 4 pegs, ’20 steel pegs poly pipe pins’, ‘washed concrete sand ½ TN’). Mr Magro’s evidence was he had worked in construction.[72]
[70]T386.11.
[71] T162.3.
[72] T359.14.
That Mr Magro knew of the notebook does not mean he was aware of the entries said to be lists of sales of drugs, let alone responsible for those entries. Mr Magro’s fingerprints do not appear on the notebook, but the fingerprints of many others do. There is no evidence of when any entry in the notebook might have been written.
Before turning to whether Mr Magro had written anything in the notebook, there is a preliminary issue as to whether anything written was a list of sales of drugs. I am satisfied the pages subsequently marked as 10.01.C and 10.01.D were lists of past sales of drugs. I am satisfied that at least part of the page subsequently marked 10.01.A was also such a list. More specifically, the twelve (12) lines beginning ‘Karl’. I am satisfied of these things given the evidence of Detective Brevet Sergeant Anderson, the presence of methylamphetamine in the kitchen and that a set of scales was being used to weigh methylamphetamine. For the same reasons, I am also satisfied that the two (2) lines: ‘IO/Jason –> Ben -> Grand $$ total = 6g’ is a reference to drugs, but I am uncertain as to whether that entry is a record of a past sale made by the person who made the entry, or a record of a sale made to that person.
The next issue is whether Mr Magro wrote any of the entries immediately above. The evidence of Ms Ockleshaw is consistent with that conclusion, but her evidence does not prove that. I accept Ms Ockleshaw’s opinion there is strong support for Mr Magro having written the entries I have identified on 10.01.A and all entries on 10.01.D.[73] I also accept her opinion there is moderate support for Mr Magro having written the page 10.01.C.[74]
[73] T269.
[74] T261.29.
Other persons had access to the notebook before it was found. So much is obvious from the many fingerprints not matched to Mr Magro, the entries written by Ms Halling and Ms Nykiel and that not all writing on 10.01.A was consistent with that of Mr Magro. There has not been any comparison of the handwriting of either of Ms Halling or Ms Nykiel, nor that of any other person who might have touched, or written in, the notebook.
Given the notebook was found in Mr Magro’s home in a filing cabinet, he was the only person who lived there permanently, he had scales suitable for weighing methylamphetamine on his kitchen bench, there was methylamphetamine in the same kitchen, including on those scales, that his house was visited on 20 September 2018 by a number of people who had an interest in methylamphetamine and the evidence of Ms Ockleshaw, I am satisfied Mr Magro wrote the entries identified above on 10.01.A and all entries on 10.01.C and 10.01.D. There was cannabis at the house. Given the scales on the bench with methylamphetamine on the surface and the presence inside the house of a number of visitors who had an interest in methylamphetamine, I am nonetheless satisfied the entries in the notebook set out above were, at least in part, records of past sales of methylamphetamine. I am satisfied Mr Magro had sold methylamphetamine in the past. I am satisfied that use of that evidence has probative value which substantially outweighs any prejudicial effect it may have on Mr Magro and has strong probative value having regard to the issues in the trial.[75] Those issues being whether Mr Magro was in possession of any of the methylamphetamine the subject of count 1 on 20 September 2018, and whether he was in possession intending to sell. The uses of the evidence just identified can be kept separate from any impermissible use, namely that he is a bad person and for that reason more likely to be guilty.[76] I will not reason that solely because Mr Magro has sold in the past, he is in possession of any of the methylamphetamine in his home, nor that, if he is in possession, he must have intended to sell.
[75] S 34P(2)(a) and (b) of the Evidence Act, 1929.
[76] S 34P(1) of the Evidence Act, 1929.
I am satisfied beyond a reasonable doubt Mr Magro was participating in the transaction taking place. It was his home; he was involved in selling methylamphetamine before 20 September 2018; the scales were his and were being used; he attempted to dispose of methylamphetamine. Had the prosecution not made possession an essential aspect of count 1, this finding, coupled with my satisfaction beyond a reasonable doubt Mr Magro knew the transaction involved methylamphetamine that was to be sold (i.e. either during the very transaction taking place, or at some later time), would be enough. Mr Magro would be guilty of count 1 on the basis he knowingly ‘took part in the sale’.
That Mr Magro was participating in the transaction taking place does not establish beyond a reasonable doubt that he was in possession of any of the methylamphetamine in the kitchen. The four others at the house had an interest in that drug. Mr Wojniak was convicted in trafficking on 19 July 2016, but the drug in which he trafficked is not part of the evidence. It is reasonably possible Mr Wojniak had a propensity to traffic in methylamphetamine. I will proceed on that basis. I am satisfied that Mr Magro was a user of that drug. As a user and someone with an interest in selling, Mr Magro had an interest in being supplied. As someone with an interest in selling, he had an interest in coming into possession of amounts greater than for personal use.
I must consider whether the prosecution has excluded the methylamphetamine the subject of the charge was in the possession of another, or others, to the exclusion of Mr Magro. The transaction underway was interrupted. Methylamphetamine was still on the scales. The prosecution must exclude as a reasonable possibility that someone other than Mr Magro had brought the methylamphetamine to the house, including for the purpose of providing it to Mr Magro and/or others, without Mr Magro being in possession on 20 September 2018.
I am satisfied the 7.51 grams was, in some way, part of the transaction that was underway. It is the largest amount of methylamphetamine on the bench. Also relevant is that the 7.51 grams was on the side of the bench closest to the door through which the three males exited. That is the opposite side of the bench to the kitchen and the area of the sink where I am satisfied Mr Magro was at the time police entered. The photos show the container holding the 7.51 grams had a lid and it was not full, giving rise to the possibility it had contained a larger amount at an earlier time. The evidence gives rise to an inference Mr Magro had sold the 7.51 grams to one of the persons present at the house and so had been in possession before that sale. The evidence also gives rise to an inference the 7.51 grams belonged to Mr Magro and was still in his possession when the police entered. The evidence also permits of an inference the 7.51 grams had been brought to the house by someone other than Mr Magro, perhaps for the purpose of at least some of it being provided to Mr Magro, but that it was not in his possession at any time on 20 September 2018.
As for the two amounts of 0.06 grams and 0.05 grams on the kitchen bench, both are small amounts. They are in containers of the same, or similar, appearance to that containing the 7.51 grams. The evidence gives rise to an inference Mr Magro was in possession of those amounts. For example, it may be that Mr Magro had sold those amounts to one or more of the person’s present, or was in the process of doing so. Given that someone might have brought the 7.51 grams to the house, and the similar appearance of the three containers, it also may be that someone other than Mr Magro had brought those amounts to the house to use, or as part of the transaction with Mr Magro, but neither was in Mr Magro’s possession at any time on 20 September 2018.
As for the 0.92 grams in the sink, I am satisfied beyond a reasonable doubt that was disposed of by Mr Magro. He was in possession at that point, at least for that purpose. I am satisfied beyond a reasonable doubt the 0.92 grams was part of the transaction taking place. That is an obvious reason for its disposal. Given the amount and the effort to dispose of it, it is very likely Mr Magro was in possession of the 0.92 grams before taking any step to dispose of it. However, I am not satisfied beyond a reasonable doubt Mr Magro was in possession before disposing of the 0.92 grams. I am satisfied it is likely Mr Magro was in the process of selling that amount, but it is possible it was being sold to him and he had not yet taken possession before taking the step of disposing of it in the knowledge of the presence of the police.
In evaluating the issues of possession and intention with respect to the other methylamphetamine in the kitchen, that it is reasonably possible one or more of the others present might have possessed the four amounts set out above is important. Also central is the interest in methylamphetamine of all others present, including the propensity of Mr Wojniak to traffic, and the behaviour of at least the three males other than Mr Magro in attempting to leave through the back door. Ms Halling was inside the house, but she might have been attempting to leave, or hide. I will take these matters into account in evaluating whether Mr Magro was in possession of the amounts of methylamphetamine set out below.
As for the 1.15 grams on the lid in the kitchen, Mr Magro admitted the lid was his, but denied the methylamphetamine was his.[77] I accept Mr Magro’s evidence the lid was his. Given its presence in Mr Magro’s kitchen; the transaction taking place in which Mr Magro was involved and Mr Magro’s interest in selling methylamphetamine, an inference is the 1.15 grams was part of the transaction. The other possibility is that, as Mr Magro suggested in evidence might have been the case, it was ‘wet’ and therefore drying.[78] It might have been ‘wet’ and drying, and also part of the transaction. I am unable to determine whether it was part of the transaction, was ‘wet’ and drying, or both. However, I am satisfied beyond a reasonable doubt it was at least one of those, if not both. If it was ‘wet’ and drying, I would be satisfied beyond a reasonable doubt Mr Magro was responsible and was in possession. I would reject his evidence to the effect that someone else might have been drying that methylamphetamine given where the item was (on the microwave away from the bench and the scales and other amounts of methylamphetamine on that bench); that the lid belonged to him and Mr Magro’s interest in selling. If it was part of the transaction, given it was laid out on an item which belonged to Mr Magro and Mr Magro’s involvement in the transaction, I would be satisfied beyond a reasonable doubt Mr Magro was in possession. It follows that I am satisfied beyond a reasonable doubt Mr Magro was in possession of the 1.15 grams.
[77] T335
[78] T335.
The next issue is whether Mr Magro was in possession of the 1.15 grams intending to sell. Despite Mr Magro being a user of methylamphetamine, I am satisfied beyond a reasonable doubt Mr Magro intended to sell at least some of the 1.15 grams. I am satisfied of that given his interest in selling that drug and the amount.
The largest container on the bench was a tub which contained 0.03 grams of crystals containing methylamphetamine. That container bore the fingerprint of Ms Nykiel.[79] Ms Nykiel was not at the house. She must have left that fingerprint on that item before the arrival of the police. Given the size of that container compared to any others on the bench; that it contained only a small amount of methylamphetamine; was adjacent to the scales being used to weigh that drug; as Mr Magro had an interest in selling methylamphetamine before 20 September 2018; as that container bore the fingerprint of Ms Nykiel and as Mr Magro was in the kitchen; I am satisfied beyond a reasonable it had contained a larger amount of methylamphetamine before the entry of police and Mr Magro was in possession of that container and its contents. I reject that container might have been used by one of the others present, despite their interest in methylamphetamine, the fingerprint with insufficient ridge detail and the possibility another, or others, might have been in possession of other amounts in the kitchen. It is possible the container was, at least, the source of the methylamphetamine on the scales and the amounts of 7.51 grams, 0.06 grams, 0.05 grams and 0.92 grams. However, I am not satisfied of that beyond a reasonable doubt. The amount of 0.03 grams is not a significant amount. It is consistent with use.
[79] Agreed Facts P1.
Given the size of that container, its proximity to scales being used to weigh methylamphetamine and Mr Magro’s interest in selling, I am satisfied beyond a reasonable doubt Mr Magro used that container to store methylamphetamine for sale. Given the limited weight and Mr Magro being a user, I am not satisfied beyond a reasonable doubt he intended to sell at least some of the 0.03 grams.
In another area of the kitchen, within a National Pharmacies bag, were two press seal bags containing 0.71 grams and 0.08 grams of crystals containing methylamphetamine. Whether those drugs might have been in the possession of another, or others, to the exclusion of Mr Magro falls to be evaluated bearing in mind the possibility of any handling of that bag by Mr Magro being limited to an effort to hide that bag, the possibility that someone other than Mr Magro might have been in possession of some of the other methylamphetamine in the kitchen and the interest others present had in that drug. Also relevant are Mr Magro’s possession of the 0.03 grams and the 1.15 grams; his interest in selling methylamphetamine before 20 September 2018; that he was involved in the transaction taking place; the effort he made to dispose of methylamphetamine into the sink; the position of the National Pharmacies bag (i.e. within the kitchen Mr Magro was in, adjacent to his bin) and that Mr Magro had small press seal bags in a drawer in that same kitchen.[80] Such bags are suitable for the packaging and sale of methylamphetamine.[81] However, they are not uncommon and are items which might be used by any of the other persons in the house.
[80] In a blue tub shown in photo37 of P12.
[81] T139.
I am satisfied beyond a reasonable doubt that Mr Magro was in possession of the two amounts of 0.71 grams and 0.08 grams within the National Pharmacies bag. I reject that either amount might have been in possession of another. Given where the items were (next to the bin, away from the other items); the way these amounts were packaged; Mr Magro having access to similar packaging; Mr Magro having an interest in selling methylamphetamine before 20 September 2018 and his participation in the transaction taking place (either as a seller or as a buyer), I am satisfied beyond a reasonable doubt Mr Magro was in possession of both amounts and intended to sell at least some that methylamphetamine.

Having found Mr Magro in possession of some of the methylamphetamine in his kitchen, I return to consider the amounts of 7.51 grams, 0.06 grams, 0.05 grams and 0.92 grams. The more likely conclusion from all of the evidence is that Mr Magro’s involvement in the transaction was one which involved him being in possession of those four amounts to the exclusion of others at some point on 20 September 2018. However, having considered the whole of the evidence, I am unable to exclude a reasonable possibility that someone else had brought those amounts to the house. If it was intended Mr Magro was to take possession, he might not have yet done so.
It follows from the above that I am satisfied beyond a reasonable doubt that on 20 September 2018, Mr Magro was in possession of some of the methylamphetamine found in his kitchen, with the intention of selling at least some of the methylamphetamine he possessed.
I find Mr Magro guilty of count 1.
Count 4
As set out above, the $17,060 the subject of this count was found in a locked safe in room 4 of Mr Magro’s home. The prosecution must prove beyond a reasonable doubt:
1.Mr Magro engaged directly or indirectly in a transaction involving the money;
2. The money was tainted;
3.Mr Magro knew the money was tainted at the time he engaged in the transaction.
‘Transaction’ includes being in possession of the money.[82] Mr Magro admits being in possession of the money. I accept that aspect of his evidence. The first element is established beyond a reasonable doubt.
[82] Section 138(3) of the Criminal Law Consolidation Act, 1935.
The issues with respect to this charge are the second and third elements. Tainted property is defined in s 130 of the Criminal Law Consolidation Act 1935 (‘CLCA’) as follows:
tainted property means stolen property or property obtained from any other unlawful act or activity (within or outside the State), or the proceeds of such property (but property ceases to be tainted when it passes into the hands of a person who acquires it in good faith, without knowledge of the illegality, and for value).
In this case, the prosecution allege the money was tainted as it was the proceeds of past sales of methylamphetamine.
Mr Magro’s evidence was the money was not tainted. On his case, $15,000, perhaps slightly less given the evidence of Mr Cowie, had been paid to him for at least a gear box, steering wheel and mirrors of a car his father had owned.[83] On his case, the balance was money which he had saved.[84]
[83] T353.
[84] T356.6.
Mr Cowie’s evidence was broadly consistent with that of Mr Magro. Mr Cowie said he had purchased the three items mentioned by Mr Magro. His evidence was he paid a little less than $15,000.[85] His evidence differed in a material respect. Mr Cowie said he had also purchased other items at the same time.
[85] T426.25.
By his own admission, Mr Cowie has been a user of methylamphetamine.[86] He also told me that he had admitted possession of methylamphetamine and an ice pipe in June 2020; had given a false name to police and had pleaded guilty to receiving and being in possession of glassware that could have been used to manufacture methylamphetamine.[87] The prosecution submitted Mr Cowie having misled the police and having committed an offence of dishonesty adversely impacted upon his credit. The prosecution also effectively submitted his history of being a user of methylamphetamine and admission to being in possession of the glassware may have given him a motive to lie.
[86] T429.22.
[87] T431.23-434.
To prove about $15,000 of the money was tainted, the prosecution must prove the relevant aspects of the evidence given by Mr Magro and Mr Cowie are not true beyond a reasonable doubt. More particularly, it must prove Mr Cowie did not pay a little less than $15,000 to Mr Magro for the purchase of items associated with a motor vehicle. Disproving their evidence to that standard is not enough to prove the second element. The prosecution must still prove beyond a reasonable doubt the money was tainted.
I have found Mr Magro had sold methylamphetamine before 20 September 2018. I am satisfied of that beyond a reasonable doubt. I have made that finding, to that standard, without reliance upon the money located in his safe. The amounts of money recorded in P13 in the entries I am satisfied Mr Magro wrote are significant. They suggest he sometimes received, or was owed, substantial sums of money and had the capacity to obtain sufficient methylamphetamine to make the sales recorded.
As set out above, I have rejected key aspects of Mr Magro’s evidence. My rejection of those aspects of his evidence is relevant to the credibility of his evidence about the sources of the money in the safe. Mr Cowie is a man who has misled the police in the past and has admitted a dishonesty offence. Those matters are relevant to his credibility.
I am suspicious about the honesty of the evidence of both Mr Magro and Mr Cowie about the exchange of about $15,000. As set out above, there are reasons to doubt their credibility. While substantial aspects of their evidence are the same, precisely what was sold differs. Such differences could be the result of dishonest accounts.
Despite my suspicions, I am unable to reject the evidence of Mr Cowie and Mr Magro about the transaction over car parts beyond a reasonable doubt. As about $15,000 might have been exchanged for a legitimate purpose, I am not satisfied beyond a reasonable doubt that amount was tainted. I think it unlikely that amount came from the sale of car parts, but that is not enough.
This leaves the balance of about $2,060. The prosecution must satisfy me beyond a reasonable doubt that money, or at least part of it, had come from past trading in methylamphetamine. No other illicit source was suggested by the prosecution.
I have found beyond a reasonable doubt Mr Magro had sold methylamphetamine before 20 September 2018. I have also found him guilty of count 1. In so doing I have found that he was involved in a transaction involving methylamphetamine on that day and was in possession of some of the methylamphetamine in his kitchen intending to sell at least some of it. I am satisfied those findings, and the evidence relevant to those findings, can be used with respect to whether any part of the cash in the safe was tainted and whether Mr Magro knew that. Those findings can be used in those ways as I am satisfied those uses substantially outweigh any prejudicial effect they may have on Mr Magro.[88] To the extent the uses I have mentioned rely upon a propensity or disposition as circumstantial evidence[89], as the evidence happens to show Mr Magro had a propensity or disposition to sell methylamphetamine and to possess money knowing it had been exchanged for a drug, I am satisfied the evidence has strong probative value having regard to the issues of whether the money was tainted and whether Mr Magro knew that. I am satisfied those uses can be kept separate and distinct from mere bad person reasoning. I will not reason in that way.
[88] Section 34P(2)(a) Evidence Act, 1929.
[89] Section 34P(2)(b) Evidence Act, 1929.
The amount of about $2,060 is not particularly significant. It is an amount which could be accumulated legitimately by Mr Magro. Mr Magro’s evidence was he had employment at times in the past and that he sometimes earned between about $700 to $1,500 per week.[90] Mr Magro told me the money was his savings. Notwithstanding undisputed mortgage payments of about $350 per week,[91] the usual outgoings involved in running a house, and the need to provide support to a child, such an amount might be saved by Mr Magro. Even more so when the funds could have been saved over an unknown period.
[90] T410.1.
[91] T286.36; 410.9.
As I have found, Mr Magro had sold methylamphetamine before 20 September 2018. I am satisfied beyond a reasonable doubt he received money for selling that drug before 20 September 2018. I am satisfied he was also recording amounts of sales within P13 before that day. The relevant aspects of the pages referred to earlier in these reasons include records of sales of many thousands of dollars. I am satisfied beyond a reasonable doubt he was accustomed to selling significant amounts of methylamphetamine and would be paid in cash. I cannot say over what period these things occurred before 20 September 2018.
I reject Mr Magro’s evidence that all of the money in the safe had been obtained legitimately. I am satisfied beyond a reasonable doubt at least some of the amount of about $2,060 was tainted on the basis it had come from past sales of methylamphetamine by Mr Magro.
It follows that I am satisfied beyond a reasonable doubt Mr Magro knew at least part of the $17,060 in the safe was tainted.
I find Mr Magro guilty of count 4 beyond a reasonable doubt.
Conclusion
I find Mr Magro guilty of counts 1 to 4 inclusive.