R v MAZZOCCHETTI - [2011] SADC 96

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MAZZOCCHETTI
Criminal Trial by Judge Alone
[2011] SADC 96
Reasons for the Verdict of His Honour Judge Clayton
7 July 2011
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
Accused charged with one count of trafficking in a controlled drug, namely methylamphetamine. The quantity of methylamphetamine found in his possession was sufficient to give rise to the statutory presumption of an intention to sell. Accused failed to satisfy the onus of establishing on the balance of probabilities that he had no intention to sell the methylamphetamine found in his possession.
HELD: Guilty
Controlled Substances Act 1984 s 32; Controlled Substances (General) Regulations 2000 Schedule 1 Part 2, referred to.
He Kaw Teh v The Queen (1985) 157 CLR 523; Tabe v The Queen (2005) 225 CLR 418; Button v Cooper [1947] SASR 286; R v Frangos (1979) 21 SASR 331; DPP v Brooks [1974] AC 862; R v GNN (2000) 78 SASR 293, considered.

R v MAZZOCCHETTI
[2011] SADC 96

The accused is charged with the offence of Trafficking in a Controlled Drug contrary to s 32(3) of the Controlled Substances Act 1984. He elected for trial by judge alone.
“Traffic” is defined in s 4(1) of the Controlled Substances Act as to sell the drug, have possession of the drug intending to sell it; or take part in the process of sale of the drug.
In this case the Crown alleges that the accused had possession of a trafficable quantity of methylamphetamine. For the purposes of s 32 of the Controlled Substances Act a mixed quantity of 2 g is a trafficable quantity of methylamphetamine.[1]
[1] Controlled Substances (General) Regulations 2000 Schedule 1 Part 2.
On 14 December 2008 the accused was seriously injured when he was attacked by two persons in his home at Grange. Following the attack he called the police who attended at his home and discovered a plastic container in which there was 23.2 g of a gel of which 0.92 g was methamphetamine. The police officers also located two plastic J bags containing a total 0.28 kg of powder of which 0.02 g was methylamphetamine. The methylamphetamine was on a desk in close proximity to other empty J bags, hyperdermic syringes, an ice pipe and cotton buds all of which were consistent with use of methylamphetamine. The accused gave evidence, which is undisputed that he was a user of methylamphetamine.
There is agreement as to the following facts:
·    Police officers located one jar containing brown paste (Exhibit P3) and two bags containing brown paste (Exhibit P2) in the accused's house.
·    The accused lived alone at the house.
·    Exhibit P3 was a brown gel which weighed 23.2 g and contained 0.92 g of methylamphetamine.
·    Exhibit P2 contained methylamphetamine.
·    Methylamphetamine is a controlled drug.
In opening the Crown case the prosecutor said "I don't think it gives my friend any difficulty to say it is not in dispute that the substance located was a controlled drug, that the accused had possession of the drug and that the accused knew the substance was a controlled drug; which leaves only the intention of the accused in possessing that drug". Defence counsel did not challenge the prosecutor's statement and the case proceeded on that basis.
Subsection 32(5) of the Controlled Substances Act provides that if in proceedings for an offence against subs (3) it is proved that the defendant had possession of a trafficable quantity of a controlled drug, it is presumed, in the absence of proof to the contrary, that the defendant was acting for the purpose of sale of the drug and had the relevant belief concerning the sale of drug necessary to constitute the offence.
At the close of the Crown case the accused elected to give evidence and said that all of the methylamphetamine which was found by the police officers was for personal use. He described the container of methylamphetamine (Exhibit P3) as his "rubbish tin", a receptacle into which he scraped small quantities of methylamphetamine leftover from his preparation of hypodermic syringes, which he had saved for use on a later occasion. He described it as "a poor man's saviour tin". He was specifically asked where the contents had come from and responded:
That there, what I did was I actually threw a bit of stuff in there and when you are on the drugs, you always want to see that you got some quantity put away so that I can go to sleep the next day knowing that I had something there or else I start panicking when I go to bed. So this was called my "safety rubbish tin" and I always had this so that I knew I could know that I would open the cupboard and I always had it there to know that I was-even though it was full of rubbish, it was my reassurance for my sanity.[2]
[2] T64 l8.
The purpose of that evidence by the accused was to establish that he had possession of the methylamphetamine in Exhibit P3 for personal use and to rebut the presumption in subs 32(5) that he had possession of the drug for the purpose of sale. At the time the accused first gave evidence he did not challenge the allegation that he was in possession of the drug. In fact possession of the contents of the "safety rubbish tin" would have been a consequence of his use of the container.
Photographs of Exhibit P3 indicate that the contents were, at the time the photographs were taken, a gel. By the time of trial the appearance of contents had changed slightly and the contents now give the appearance of a more sandy substance. The accused attributed a reddish tinge in the contents to the presence of his blood in the "safety rubbish tin". However the substance shown in the photographs is not consistent with the evidence of the accused as to the use of the "safety rubbish tin". The photographs do not show an accumulation of scrapings. Nor are the present contents of Exhibit P3 consistent with the evidence of the accused.
The accused was requested to examine the photograph of the container (Exhibit P1). It was suggested that the contents did not conform with his description of the substance that he said that he had been collecting in the "safety rubbish tin". It was suggested that what was depicted in the photograph looked like a paste. The accused responded:
No, basically what I used to do was I used to put, like salt or anything, Epsom salts or any rubbish that I could find so that I could make it look more than what it was so that my mind could see the quantity there so I could use…[3]
[3] T67 l35.
When he was interviewed by the police officers the accused never suggested that the plastic container contained scrapings or leftover methylamphetamine. The accused explained that omission on the basis that he had been rushed from his home to hospital for surgery. It is true that the accused was conveyed from his home to the hospital so that his injuries could be attended to, but the interview by the police officers did not occur until several months later.
The accused denied the suggestion that he attempted to sell methylamphetamine. There is no evidence of sale or evidence of the usual indicia of sale. The Crown case as to the intention to sell depends upon the quantity of methylamphetamine and the reversed onus of proof in subs 32(5) of the Controlled Substances Act.
At the conclusion of the evidence of the accused the prosecutor was granted an adjournment to verify the fresh assertion of the accused that methylamphetamine in the container was mixed with his blood. An analysis established that there was no blood mixed with the methylamphetamine in the container.
When the court resumed two days later the accused returned to the witness box and claimed that the container of methylamphetamine (Exhibit P3) was not his. When asked again about the two plastic J bags he said "That isn't mine, no way, no way". He said that the methylamphetamine which he normally obtained was a yellowish or whitish colour.
The accused said "This was actually put on the table".[4] When asked to explain what he meant by that statement he claimed that the container (Exhibit P3) and the plastic deal bags (Exhibit P2) were placed on his desk by the persons who had attacked him. He later acknowledged that he did not know that but believed it was the attackers.[5]
[4] T77 l25.
[5] T78 l30.
The accused said that when he left the courtroom after giving evidence on the first day of the trial he started to remember that it was not his container, however there is no evidence that he disclosed that revelation to any other person prior to the result of the analysis being announced.[6]
[6] T85 l2.
At the end of the first day of trial defence counsel had not indicated that possession was an issue, but on the resumption of the trial after the contents of the plastic container had been analysed possession of the methylamphetamine became the primary issue.
Possession
The Crown must prove beyond reasonable doubt that the accused was in possession of the methylamphetamine.
In order to have possession of goods an accused person must have knowledge that the goods are in his possession.[7]
[7] He Kaw Teh v The Queen (1985) 157 CLR 523, Tabe v The Queen (2005) 225 CLR 418 per Gleeson CJ at 423 and Callinan and Heydon JJ. at 446.
If the container (Exhibit P3) and the two J bags (Exhibit P2) were placed on the desk in the home of the accused by some other person without his knowledge and the accused was unaware of the presence of those items then he could not have been in possession of those items.
In Button v Cooper [1947] SASR 286 Mayo J said:[8]
As to proof of possession, the relationship may be inferred from acts that are consistent therewith, and that are inconsistent with any more remote association. Such acts may be proved by direct or circumstantial evidence, or by admission, and may be disclosed by the person charged in the course of the conversation…
[8] At p 293.
In R v Frangos (1979) 21 SASR 331 at 336 King CJ referred to the requirement that "In general, there is possession for this purpose where there is physical custody or control of the thing together with knowledge on the part of the accused that the thing is in his physical custody or control".[9]
[9] DPP v Brooks [1974] AC 862.
In the same case Walters J said at 339:
Although what does constitute possession may vary according to each set of circumstances, and according to the context in which the word "possession" is used, it seems to me that in order to prove possession, it must ordinarily be shown that the possessor had the thing in his physical custody or control under circumstances which demonstrated that he had a conscious mental recognition of the things presence, and that he was assenting to being in custody or control of it…
Walters J referred to the reasons of O’Brien J in R v Rawcliffe [1977] 1 NSWLR 219 where O’Brien J with whom Street CJ and Yeldham J said:
In order that a person should have exclusive physical control of an article, some knowledge or intention in him is necessary to associate with the article, but this mental element extends no further than that inherent in such control, namely, the intention to have exclusive physical control of the article itself, or some other article, or some place wherein it is in fact carried or contained or located…
If the accused had no knowledge of the container of methylamphetamine (Exhibit P3) or the two J bags containing methylamphetamine (Exhibit P2), he was not in possession of the items. If the items had been placed on his desk by the persons who assaulted him without his knowledge, the accused was not in possession of them.
Mr Moffa submitted that occupancy of a house was not of itself enough to establish possession. That was established in R v GNN (2000) 78 SASR 293. In that case the fact that heroin was found in a house occupied by an accused was not of itself enough to establish possession. Doyle CJ referred to the importance of identifying the basic legal concepts involved - possession, knowledge, custody and control. He said that the Crown had to establish that the accused intended to exercise or assert control over the item.
I reject the evidence of the accused that the methylamphetamine had been placed in his house by his assailants. The accused was not a credible witness. He changed his testimony after the Crown had analysed the contents of the container and established that his initial testimony was incorrect. The change in his testimony was opportunistic and lacked credibility. The prosecutor submitted that the account of the accused smacked of contrivance. More fundamentally his assertion that his assailants had placed a container of methylamphetamine valued at several thousand dollars on his desk is contrary to common sense.
Additionally, why would his assailants have also left the two J bags on the desk? If the evidence of the accused about the "safety rubbish tin" (Exhibit P3) was mistaken that does not explain his initial evidence about the methylamphetamine in the plastic bags (Exhibit P2).
As the prosecutor pointed out, on the first day the accused was prepared to admit possession of the jar, its contents and the two J bags, but only when his initial evidence was proved to be to be incorrect did he give the quite inconsistent evidence that the methylamphetamine had been planted by someone else.
I find that the methylamphetamine was in the house on the desk at the time of the police search. I find that all of the methylamphetamine was in the possession of the accused. It was in his home. He was the sole occupant. The methylamphetamine was on a table in an area where the accused dealt with methylamphetamine. By reason of its position on the desk alongside items which the accused used to administer methylamphetamine to himself it can be inferred that the accused had knowledge of the presence of the methylamphetamine which is the subject of the charge and it can be inferred that he had the intention to exercise exclusive physical control of the methylamphetamine.
Mr Moffa submitted that there was nothing such as fingerprints, DNA or an admission to connect the accused to the methylamphetamine. That is true, but in my opinion there is the other evidence which I have mentioned which establishes that the accused was in possession of the methylamphetamine.
There is no reliable evidence which indicates that any other person intended to exercise control over the methylamphetamine.
Because of the reversal of onus in s 32(5) it is not necessary for the Crown to prove that the accused had possession of the methylamphetamine for the purpose of sale.
By advancing the second version the accused has himself made a lie of the first version of his evidence. There is no explanation for the fact that nothing which satisfies the description of the "safety rubbish tin" was discovered during the police search. If Exhibits P2 and P3 had been deposited by the assailants, where was the "rubbish tin" which the accused carefully described when he first gave evidence. If the assailants had left Exhibit P3 that would not explain the absence of a "rubbish tin".
The Crown must prove possession beyond reasonable doubt. If there is some reasonable explanation for the presence of the methylamphetamine which is consistent with innocence the accused must be given the benefit of the doubt. However I reject completely the evidence of the accused. I reject the evidence of the accused both in his first version, that is that Exhibit P3 was a "safety rubbish tin" and the second version, that is the methylamphetamine had been left on the desk by other persons. On the evidence as a whole there is no reasonable possibility of either version of the evidence of the accused being correct. In my opinion there is no reasonable explanation consistent with innocence.
I find that the accused was in possession of at least 2 g of a substance mixed with amphetamine and that the accused has not proved on the balance of probabilities that he was in possession of the methylamphetamine for a purpose other than sale. It is therefore presumed that the accused had the methylamphetamine in his possession for the purpose of sale.
I find the accused guilty.