R v Mason
[2006] SADC 68
•21 June 2006
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MASON
[2006] SADC 68
Reasons for Ruling of His Honour Judge Beazley
21 June 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - OF COUNTS
Accused charged with three counts of possession of methylamphetamine for sale - Insufficient nexus or connection between count 1 which allegedly occurred on 21 April 2003 and the remaining counts which allegedly occurred 17 months later in November 2004.
EVIDENCE
Admissibility and relevance of evidence of quantities of pseudoephedrine based medicines to a charge of possessing methylamphetamine for sale.
Criminal Law Consolidation Act s 278(1); Controlled Substances Act s 32(3), referred to.
R v Mayfield (1995) 63 SASR 576 at 578; Harriman v The Queen (1989) 167 CLR 590 at 594; R v McGhee (1993) 61 SASR 208 at 210; R v Blackwell (1996) 186 LSJS 336; R v Armstrong (1990) 54 SASR 207; R v Conley (1982) 30 SASR 226, considered.
R v MASON
[2006] SADC 68
Richard Edward Mason (“the accused”) was initially charged on information for the October 2003 sessions of this Court with (count 1), the offence of possessing methylamphetamine for sale. The particulars of that offence are that the accused had on the 21st day of April 2003 at Glen Osmond knowingly had methylamphetamine a drug of dependence in his possession for the purpose of selling it to another.
Subsequently by Information for the December 2005 sessions of this Court, inter alia, two other charges of possession of methylamphetamine for sale were joined with count 1. Count 4 on that Information alleges that the accused on the 4th day of November 2004 at Payneham knowingly had methylamphetamine a drug of dependence in his possession for the purpose of selling it to another. Count 5 on that Information similarly alleges that the accused on the 4th day of November 2004 at Payneham knowingly had methylamphetamine a drug of dependence in his possession for the purpose of selling it to another person.
Rule 9 Applications
Pursuant to Rule 9 of the District Court Rules the accused sought orders:
1)That counts 4 and 5 be severed from count 1, and be the subject of a separate trial.
2)That evidence of the seizure of pseudoephedrine, and such expert evidence proposed to be called by the prosecution with respect to such pseudoephedrine be ruled inadmissible.
Joinder of counts
Section 278 of the Criminal Law Consolidation Act provides:
278(1)Subject to the provisions of this Act charges for two or more offences may be joined in the same information, if those charges are founded on the same facts, or form, or are a part of, a series of offences of the same or a similar character.
(2)Where before trial, or at any stage of a trial the court is of the opinion that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same information or that, for any other reason, it is desirable to direct that an accused person should be tried separately for any one or more offences charged in an information, the court may order a separate trial of any count or counts on the information.
The prosecution case
The prosecution case in respect of count 1 is that the accused was residing at a motel at 373 Glen Osmond Road, Glen Osmond from 24 March 2003 to 21 April 2003. Upon entry to the accused’s motel room the police located with the sum of $4,519.3 in what was described as a bum bag. The accused was subsequently searched and a small yellow tin was located which contained 5 press sealed bags of white coloured powder. A quantity of pseudoephedrine tablets was located in the boot of a motor vehicle parked outside the motel room. The five press sealed bags contained powder of a total weight of 7.85 grams, in respect of which 1.81 grams was allegedly methylamphetamine. The prosecution case is that the police also found some press sealed bags and a set of electronic scales with traces of methylamphetamine.
In respect of count 4 the prosecution case is that the accused was stopped for a traffic offence. In the car the police allegedly found $5,744.20 in cash; a plastic container with a press sealed bag containing white powder of which .26 grams was methylamphetamine; and a container with 2.5 grams of pseudoephedrine and medications containing pseudoephedrine.
In relation to count 5 the evidence relied upon by the prosecution is that allegedly obtained in consequence of the search of premises at Portrush Road Payneham, including a press sealed bag containing white powder of which 0.02 grams was methylamphetamine, scales, a metal spoon, a card, a knife blade and a chopping block containing traces or residue of methylamphetamine and a large number of packets of assorted medication containing pseudoephedrine.
The accused’s submissions
The accused submits that counts 4 and 5 ought not be joined with count 1 as they are not founded on the same facts or alternatively do not form or are not part of a series of offences of the same or similar character.
In R v Mayfield (1995) 63 SASR 576 at 578 Cox J said:
“Whether the counts may be joined in the same information and whether the counts, if properly joined, should be tried together are two distinct questions …The court .may sever a count or counts, so that they will be tried separately, where it is of the opinion that otherwise an accused may be prejudiced or embarrassed in his defence. Where the evidence on the different counts is cross admissible, so that the evidence relating to all counts would be admissible on a trial of any one of them, the accused will be not able to show any relevant prejudice or embarrassment. In any other case there will be a serious question for the trial Judge to consider. The proper approach was described by Brennan J in Sutton v The Queen 152 CLR 528 at 541 – 542 “When two or more counts constituting a series of offences of a similar character are joined the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jurys mind in deciding whether he is guilty of another of those offences where that evidence is not admissible towards proof of his guilty of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted.
In the present case the offences in count 4 and 5 occurred approximately 17 months after the offence in count 1. True it is that there are some similarities in the evidence namely the presence of a small quantity of methylamphetamine, a set of scales, large quantities of money and quantities of pseudoephedrine. In respect of count 5 the large quantity of tablets containing pseudoephedrine located in the accused’s house is to be contrasted with the relatively small number of packets of such medication located in a vehicle outside the motel room in respect of count 1. In this case one may ask whether all of the evidence implicating the accused that the prosecution proposed to lead at the trial of this information could have been led had the accused been tried on only count 1. In Harriman v The Queen (1989) 167 CLR 590 at 594-595 Brennan J said:
“Evidence of prior involvement by H & M in the sale of heroin…was not admissible unless something more than the commission of prior offences was thereby revealed…A person who is shown to have participated to a substantial degree in that trade – I am not speaking of mere use or of an isolated sale – is likely to have incentives to continue his participation in the trade and because the nature of the trade is more likely to have done so than one who has not been a substantial participant. Evidence of substantial participation in the heroin trade can support an inference of continued participation although, of course, each case depends on its own facts. In determining whether or not evidence of participation can support such an inference, regard must be had to the extent and duration of the past participation, the proximity and time between the past participation and the offence charged in the whole of the circumstances of the case”.
In R v Conley (1982) 30 SASR 226, it was held that four counts relating to drugs had been properly joined in one information as forming part of a series of offences of the same or similar character, notwithstanding that they covered a period of time was from November 1979 to March 1981. In that case the evidence was directed to showing a continuity of interest by the accused in the drug trade during the relevant period and to proving that he was heroin trader throughout that period. The evidence in that case that was of a number of conversations during 1980 between the accused and a witness disclosing the continuity and his involvement in the trade in drugs including heroin. In my opinion the facts of the present case are distinguishable from those in R v Conley. In the present case the prosecution does not propose to show the accused at all material times has engaged in the methylamphetamine trade. It seeks to prove two isolated instances of the accused being in possession of a small quantity of methylamphetamine, indeed less than the prescribed amount applicable to s 32(3) of the Controlled Substances Act together with the presence of money and pseudoephedrine tablets.
In R v Armstrong (1990) 54 SASR 207, the Court of Criminal Appeal considered a case involving the joinder of five housebreaking and larceny counts on one information. It is apparent that for two or more offences to constitute a series, there must be a nexus or connection between them. The Court referred to the judgment of Dawson J. in De Jesus v The Queen:
“It is clear enough that, by requiring a series of offences, the section does not countenance the joinder of counts charging offences which are legally the same or similar in character but which in their factual setting are disparate. What is required is a sufficient correlation to enable the offences to be described as a “series” without straining the word beyond the meaning which it is reasonably capable of bearing”.
I am not satisfied that the three counts do have a sufficient nexus, given the 17 month interval.
In my opinion count 1 ought not be joined with counts 4 and 5. Accordingly I order that there be a separate trial of counts 4 and 5 from that in count 1.
The admissibility of the evidence of pseudoephedrine
The accused further submits that the presence of both pseudoephedrine and medications containing pseudoephedrine are not relevant to the issue of whether the accused possessed methylamphetamine for sale.
The prosecution proposes to call Detective Senior Constable Darren Fielke. It is proposed that he give evidence as to a black market for pseudoephedrine-based preparations. His evidence is to the effect that pseudoephedrine medications and pseudoephedrine itself are tradable commodities within the drug community. The prosecution also proposes to call, as a witness a forensic scientist Andrew Camilleri to give evidence that pseudoephedrine is a precursor in the manufacture of methylamphetamine, and as to the quantity of methylamphetamine, which may be obtained from quantities of pseudoephedrine.
The accused in the alternative submits that the evidence as to pseudoephedrine ought to be excluded in the exercise of discretion in that its prejudicial effect outweighs any probative value which it may have. In the present case the accused does not object to the admissibility of the cash found on the premises. He does however submit that the quantity of pseudoephedrine could only be relevant to a charge of taking part in the manufacture of methylamphetamine, and that in this case the accused had not been so charged. Further in so far evidence of pseudoephodrine is relevant to the question of whether the accused was in possession of methylamphetamine for sale, the accused submits that the presence of large amounts of methylamphetamine would lead to a real risk that the jury would misuse that evidence by concluding that the pseudoephedrine was obtained unlawfully or was being used by the accused for the purpose of manufacture.
In R v McGhee (1993) 61SASR 208 at 210 Cox J said:
“If in a prosecution under section 32 of the South Australian Act the crown can prove that the accused is running a retail drug business, then this may be the clearest way of discerning purpose for which he is in possession of illegal drugs on a particular occasion. The possession of appropriate stock and plant and customer lists and so on including what appears to be working capital will itself be evidence tending to prove the existence of an ongoing business and its relevance cannot be called into question merely because it proves the defendant has committed offences in the past and thus has a criminal disposition. Proof of a criminal disposition to sell prohibited drugs – is essential to the proof of an offence of an offence of possessing drugs for the purposes of sale under Section 32”.
Subsequently in R v Blackwell (1996) 186 LSJS 336 at 337 Duggan J dealt the admissibility into evidence of a pen pistol and a can of mace. His Honour said:
“It is well accepted that if, in addition to being found in possession of drugs, a person is found also to have items commonly associated with drug dealing than the finding of such items usually will be relevant as part of the circumstantial material to establish the purpose for which the drug was in that person’s possession. In my view the mace and the pen pistol were relevant for this purpose. I am also of the opinion that the probative value of this evidence was not outweighed by any prejudicial effect. There was a not real risk in the present case that the jury would misuse the evidence by regarding the appellant as a person with a propensity towards violence and the fact that the evidence might have suggested an involvement in ongoing drug dealing is an inevitable consequence of the requirement to prove that the drug was in the appellant’s possession for the purposes of sale”.
In my opinion the evidence of the presence of pseudoephedrine is admissible. There will be evidence led to suggest that those in the drug trade, do trade pseudoephedrine as a marketable commodity. Its purpose is therefore not to show that the accused is taking part in the manufacture of methylamphetamine. Further in my opinion the probabative value of this evidence is not outweighed by any prejudicial effect. This evidence of course is led in conjunction with that of the presence of deal bag, scales and money as all being indicia of trading.
In permitting the prosecution to call evidence as to the presence of pseudoephedrine and to call evidence that such pseudoephedrine is a marketable commodity in the drug trade, I am of the opinion that that portion of the evidence of Mr Camilleri directed to the use of pseudoephedrine as a precursor in the manufacture of methylamphetamine and as to the quantity which may be extracted to produce methylamphetamine ought be excluded. Similarly evidence proposed to be called from Mr Halstead which could only be suggestive of the fact that the pseudoephedrine in this case was obtained irregularly or unlawfully by Mr Mason, ought be excluded.
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