R v McKegg

[2007] NSWDC 11

CITATION:	R v McKegg [2007] NSWDC 11
HEARING DATE(S):	20/11/06 - 22/11/06, 12/02/07, 13/02/07
JUDGMENT DATE:	14 February 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Murrell SC DCJ
DECISION:	Guilty of each count in the indictment
CATCHWORDS:	Judge alone trial - Deemed supply of prohibited drug - Accused's knowledge of drug
PARTIES:	Crown William John McKegg
FILE NUMBER(S):	06/11/0522
COUNSEL:	Mr W Barry (Accused)
SOLICITORS:	Mr D Stewart (Crown)

JUDGMENT

1 The accused elected to be tried by a judge alone and the DPP consented. I am satisfied that, before making the election, the accused sought and received advice from a barrister or solicitor in relation to the election.

2 The accused pleaded not guilty to two offences, namely that, on 19 August 2005 at Paddington, he supplied the prohibited drugs cocaine and ecstasy.

3 I set out the principles of law which I have applied and the findings of fact which I have made the purpose of arriving at verdicts.

General Principles of Law

4 I am aware that the two charges were heard together as a matter of convenience. It is my duty to consider each charge separately and return a separate verdict of guilty or not guilty on each charge.

5 I am aware that, in making findings of fact, I must rely upon the evidence, ie the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.

6 I am aware that the Crown has the task of proving the accused guilty beyond reasonable doubt. In other words, the accused is presumed to be innocent of each charge unless and until the Crown proves him guilty beyond reasonable doubt in relation to that charge. Suspicion must play no part in my deliberations. If I feel that the accused may be guilty and even if I feel that he probably is guilty, as long as I have a reasonable doubt about his guilt on a particular charge, I must return a verdict of not guilty on that charge.

7 In relation to each charge, the Crown case is one of "deemed supply". Consequently, in relation to each charge, the Crown has the task of proving the following matters beyond reasonable doubt.

1. The substance in question was the relevant prohibited drug.
2. The prohibited drug weighed not less than the trafficable quantity (.75 grams of ecstasy, 3
grams of cocaine)
3. The accused was in possession of the prohibited drug.

8 The accused's case was that, as he did not know of the drugs' existence, he was in possession of neither drug . He did not raise defences that he had the drugs in his possession other than for supply.

Findings of Fact

9 In August 2005, the accused was the lessee of premises at 1/412 Oxford Street, Paddington. Those premises were a two-bedroom unit located near the corner of Elizabeth and Oxford Streets, Paddington. There were three residential units in the block of units. The front entrance to the block was in Elizabeth Street, about 15 metres north of Oxford Street. The front door to unit 1 was up a flight of approximately 6 steps from street level. It was not directly visible from the street (see Exhibit C). The other two units were on the top floor. Unit 2 had three occupants. Unit 3 housed a freeflowing population of at least four young people.

10 During August 2005, the accused spent the week days living in Avoca with his 13-year-old daughter. She attended school on the Central Coast. According to the accused, on most weekends -- or, at least, every second weekend -- he stayed at the unit, occuping bedroom 2. Blair Cooper lived at the unit on a full-time basis, occupying bedroom1. According to the accused, during the period that he spent the week days in Avoca, Blair Cooper assumed full responsibility for looking after the Paddington unit, feeding the accused's 13 or 14 cats, and meeting the weekly rent commitment of $290. On a monthly basis, the accused collected the rent from Mr Cooper and paid it into the lessor's bank account.

11 At approximately 4:30 p.m. on Friday, 19 August, the accused and his daughter arrived at unit 1. The accused then engaged in a number of activities, including going to the toilet and putting on a load of washing.

12 Police observed that, between about 5.50pm and 7.55pm, there were nine episodes of a person or group of people entering the block of units and leaving very quickly (within a period of between one and 20 minutes, generally less than five minutes). With one exception, the police could not determine the particular unit or units that were the subject of a visit.

13 One of the visitors was Mr Cardamatis. At 6 pm, there was a call from his mobile telephone to the accused's mobile telephone. The call lasted for 9 - 10 seconds. Mr Cardimatis entered the building at 6.23pm and left at 6.29pm. He was observed to take something from a person at the door of unit 1. At 6:45 pm, police spoke to Mr Cardimatis. At that time, he was in possession of .7 g of cocaine.

14 Another male arrived at 6:42 pm and left at 6:44 pm. Police conducting surveillance on the unit communicated with other police, who, at 6.50 - 6.55 pm, stopped a man whom I infer was the same male. The male stated that he was the accused's flatmate. He was in possession of .27 g of cocaine. I infer that the male was Blair Cooper. It follows that Mr Cooper was absent from the accused's unit when Mr Cardimatis and the other visitors attended the block of units. If those visitors attended the block of units for the purpose of acquiring prohibited drugs, they did not acquire any such drugs directly from Mr Cooper.

15 At about 8:30 pm, police executed a search warrant on the accused's unit. At that time, the accused was present in the unit with his daughter, a Mr Welch and a Mr Markert. Initially, the occupants of the unit did not realise that the persons seeking entry were police. They thought that they were being subjected to a home invasion. They retreated to the accused's bedroom. After they were satisfied that the persons seeking entry to the bedroom were police, they permitted the police to enter.

16 The accused was searched. In the right rear pocket of the shorts which he was wearing, police located four resealable plastic bags. Within each of two of those bags was a smaller resealable plastic bag containing cocaine (7.5g in one bag and 7.8g in the other). The third bag contained 15 green ecstasy tablets (weighing 3.6g) and the fourth contained 13 blue ecstasy tablets (weighing 4.2g).

17 There was no dispute that the substances found in the shorts were the prohibited drugs cocaine and ecstasy and that, in relation to each drug, the quantity exceeded the relevant trafficable quantity. In relation to each charge, I am satisfied that the Crown has proved those matters beyond reasonable doubt.

18 The accused denied knowledge of the drugs. In relation to the shorts, the accused conceded that, at the time of the search, he said to police "I got them from St Vinnies", specifying the charity shop location as "on Oxford Street, down towards Darlinghurst".

19 In a coffee table drawer in the lounge room, police located electronic scales containing traces of cocaine, and resealable plastic bags. On the electronic scales was the DNA of two individuals. One set of DNA was too weak to enable identification. The other set of DNA was not that of the accused.

20 In Mr Markert's jacket pocket, police located a broken white ecstasy tablet and a small amount of powder.

21 In Mr Cooper's bedroom, police located a resealable plastic bag containing a few green ecstasy tablets, two bags of cocaine and a glass pipe of the type used to smoke prohibited drugs such as cocaine. The ecstasy tablets had a different appearance from the green ecstasy tablets found in the shorts worn by the accused.

22 In the accused's bedroom, police found no prohibited drugs or drug paraphernalia. In the accused's briefcase, they found $1,000 in $50 notes, bundled with an elastic band. The accused gave evidence that the money was rent money which had been given to him by Mr Cooper, and which he had not yet banked.

23 There was no fingerprint evidence linking the accused to the drugs or drug paraphernalia found in the shorts or at the premises.

24 In evidence, the accused maintained that, when he arrived in Paddington from Avoca, he put all his clothes in the washing machine, including the shorts which he had been wearing. He asked Mr Cooper whether he could borrow some pants. Mr Cooper told him to "help himself". From a black plastic bag in Mr Cooper's bedroom, he removed some shorts and put them on. Mr Cooper told him that the black plastic bag came from Vinnies. Mr at one time, Mr Cooper also said "if you've got any spare clothes, put them in the bag". The shorts which the accused removed from the plastic bag fitted him very loosely. Prior to the police search, he did not know that the shorts contained drugs.

25 The accused's evidence raised two possible scenarios. The first scenario was that the plastic bag contained clothing which Mr Cooper proposed to donate to the St Vincent de Paul Society (possibly because Mr Cooper had recently lost weight and the clothes no longer fitted him) and Mr Cooper had forgotten to remove the drugs before placing the shorts in the bag. The second scenario was that Mr Cooper had purchased the shorts from the St Vincent de Paul Society and, through a stroke of good - or ill - fortune, the previous owner had left the drugs in the shorts, and the drugs remained undetected while the shorts were in the keeping of the Society. Alternatively, Mr Cooper had placed the drugs in the shorts while the shorts were in the bag and forgotten about the drugs when he invited the accused to "help himself".

The Critical Issue of Possession

26 In this trial, in relation to each charge, the critical issue is whether the Crown has proved beyond reasonable doubt that the accused was in possession of the relevant drug.

27 A person is in possession of a drug if, at the relevant time, he intentionally has exclusive dominion or control over the drug, or has the ability to control it to the exclusion of others (except a joint possessor).

28 There was no dispute that the accused had exclusive control over each of the prohibited drugs in the sense that each of the drugs was located in shorts that the accused was wearing. The issue was whether the accused had intentional control. In order to establish intentional control, the Crown must prove beyond reasonable doubt that, in relation to each charge, the accused knew of the presence or likely presence of a prohibited drug. It is the accused's actual knowledge or belief which must be proved.

29 In this case, the Crown called no direct evidence that the accused had the relevant state of mind. The Crown submitted that there was an inescapable inference that the accused had the relevant state of mind. In other words, no rational inference was available other than the inference that the accused knew that there were prohibited drugs in the shorts pocket.

30 In my view, there is no available rational inference other than that the accused knew that there were prohibited drugs in the shorts pocket.

31 On his own account, the accused wore the shorts for several hours before the search warrant was executed. The quantity of prohibited drugs was considerable. It is highly improbable that a person would wear shorts -- even loose shorts -- for several hours, would go to the toilet and sit and stand, without appreciating the presence of such a quantity of drugs.

32 The scenarios raised by the accused in his evidence defy common sense. Mr Cooper would not have left valuable drugs in shorts which he proposed to give away to a charity. The presence of valuable drugs is not something which an owner would forget. Mr Cooper would not have invited the accused to "help himself" to the shorts and, inferentially, to the drugs. Similarly, no other individual would have given his shorts to a charity forgetting that they contained valuable drugs. If an individual did make that improbable mistake, then there is every chance that the charity workers would have located the drugs before the shorts were sold.

33 The explanation provided to police at the time of the search warrant was a lie told in consciousness of guilt, which, subsequently, the accused felt obliged to perpetuate. I note that the accused said "I got them from Vinnies". It was only later that he suggested that it was Mr Cooper who had purchased or proposed to sell the shorts to the St Vincent de Paul Society. The explanation provided to the police on 19 August satisfies the requirements relating to a lie told in consciousness of guilt. For the reasons given in the preceding paragraph, the assertion was false. It related to a material issue (how the drugs came to be in shorts worn by the accused). It revealed knowledge of an aspect of the offence (the presence of the drugs). I am satisfied that it was told because the accused realised that he was guilty. It was the first thing that entered the accused's head.

34 I have no hesitation in rejecting the accused's evidence of how he came to be wearing shorts which contained prohibited drugs. Apart from the fantastic content of the account, his evidence was delivered unconvincingly.

35 The Crown case is supported by the circumstantial evidence of the actual supply of cocaine on 19 August. There was the evidence that Mr Cardimatis made a short telephone call to the accused, then briefly entered the block of units, was seen to take something from someone at the door of the accused's unit at a time when Mr Cooper was not present, and was found to be in possession of cocaine soon thereafter. There was the evidence that others made suspiciously brief visits to the unit block on the evening of 19 August. There was the evidence that electronic scales were located in the lounge room, and the scales contained traces of cocaine. The circumstantial evidence falls short of establishing that the accused actually supplied cocaine but, to my mind, it establishes that it is very likely that he did so. However, regardless of the circumstantial evidence of actual supply, I am satisfied beyond reasonable doubt that the accused knew that there were prohibited drugs in the shorts that he was wearing.

36 I find the accused guilty of each count in the indictment.

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