R v McRostie - [2009] SADC 117

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MCROSTIE
[2009] SADC 117
Judgment of His Honour Judge Tilmouth
26 October 2009
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
Accused found not guilty of one count of trafficking, but guilty of another, as he fails to discharge reverse onus. Turns on own facts.
Controlled Substances Act 1984 ss 4(1), 32, 33L, referred to.

R v MCROSTIE
[2009] SADC 117
The charges

Matthew McRostie is before the court on trial by Judge alone, charged with two counts of trafficking in controlled drugs contrary to s 32(3) of the Controlled Substances Act 1984 (SA).[1] To these charges he pleaded not guilty on 14 October 2009. The prosecution entered a nolle prosequi in relation to a third count of trafficking in another drug, cannabinoid, and it should be noted that he pleaded guilty on 24 July 2009 to a fourth count of cultivating cannabis, contrary to s 33B(3) of the Act. These latter two facts are quite irrelevant to the current charges, except to the extent that they are simply historical facts.
[1] Hereafter “the Act”
The background facts
Mr McRostie, a 39 year old single landscape gardener from Mt Gambier, was driven to the Stateliner Bus Depot in Atlantic Street, Mt Gambier at about 2.30 pm on Friday 30 May 2008. Plain-clothes police were already there, at first observing and later arresting him on the subject charges. They were aware, based on information received as well as speaking to staff at the bus depot beforehand, that a parcel had arrived by a bus from Adelaide, addressed to Mr McRostie. They took up position in the meal room of the depot in order to maintain their observations. At about 3.00 pm that day, they heard Mr McRostie enter a front door and then saw him speaking with a counter attendant, asking for a parcel addressed to “McRostie”. The police officers approached, once he had taken possession of the parcel. They opened it in the staffroom in his presence. It was found to contain in a mobile phone box, an empty aftershave bottle, and two small plastic containers. These turned out to contain the drugs the subject of the two charges.
The first is trafficking in a drug commonly known as ecstasy.[2] Nineteen ecstasy tablets were found in a small plastic resealable container inside the phone box. These are shown in Exhibit P1, photographs 5, 9, 11 and 12. On the prosecution case these weighed 5.32 g and contained 1.05 g pure of the subject drug. This offence is constituted by proof of the knowing possession of more than a prescribed amount of a drug of dependence or a prohibited substance. Section s 32(5) of the Act provides:
[2] Formal name 3,4-methylenedioxymethylamphetamine
(5)If, in any proceedings for an offence against subsection (1), (2) or (3) it is proved that the defendant had possession of a traffickable quantity of a controlled drug, it is presumed, in the absence of proof to the contrary—
(a)in a case where it is alleged that the defendant was taking part in the process of sale of the drug, that the defendant—
(i)was acting for the purpose of sale of the drug; and
(ii)had the relevant belief concerning the sale of the drug necessary to constitute the offence; or
(b) in any other case—that the defendant had the relevant intention concerning the sale of the drug necessary to constitute the offence.
A “controlled drug” is defined by s 4(1) as either “a drug of dependence” or, “a substance declared by the regulations to be a controlled drug for the purposes of this Act”. A “commercial quantity” thereof is defined for purposes relevant to these charges as “a quantity of the mixture that equals or exceeds the amount (if any) prescribed as a commercial quantity for any mixture containing the drug”. By regulation 6(6) of the Controlled Substances (General) Regulations 2000 it is prescribed that:
For the purposes of the definition of traffickable quantity in s 4(1) of the Act, the quantity of a mixture containing a particular controlled drug prescribed as a traffickable quantity for any mixture containing the controlled drug is the amount (if any) listed in the column headed “Traffickable (Mixed)” of the Tables in Part 1 or 2 of Schedule 1S opposite the entry listing the controlled drug.
The mixed traffickable quantity of ecstasy contained in the schedule is 2 g. Accordingly as the mixed weight in respect of count 1 is 5.32 g, the combined effect of the Act and the Regulations is such that Mr McRostie is presumed to have that drug in his possession for the purposes of s 32(5)(b), namely that he “had the relevant intention concerning the sale of the drug necessary to constitute the offence.” This effectively means that an onus is cast on him to establish on the balance of probabilities, that he did not hold that relevant intention, namely to traffic in each drug. In this instance “traffic” means having “possession of the drug intending to sell it” (s 4(1)).
The process is precisely the same with respect of count 2, except only that this time the drug concerned is methylamphetamine, a drug also prescribed under the same statutory mechanism. The mixed traffickable quantity is precisely the same, that is 2 g. The methylamphetamine paste was found in the taped plastic container shown in photographs 5 and 11 of Exhibit P1. This weighed 6.76 g, 1.1 g pure. Once again for the same reasons, Mr McRostie bears a reversed onus to establish separately, that he did not intend to sell it.
Post arrest events
Mr McRostie was detained for a time at the bus station, where his exchanges with the police were video and audio recorded. He provided his correct name and address and although he said initially there was meant to be a “Nokia” in the package, he soon admitted a glass pipe found in the car was used for the purposes of “smoking meth through”. When questioned on the contents of the box he said there was 7 g of “meth” and some 20 ecstasy pills. He said those pills would last him “maybe two or three weeks” and he claimed several times that both drugs were for his personal use and he pointed to the pipe in support. For the most part he sat passively, almost stunned at the bus station while the police pursued their enquiries. He remained co-operative with them throughout.
A formal interview was conducted later that day, commencing at about 3.45 pm. That too was audio and video recorded. During the course of this he again confessed to knowledge of the “7 g of meth and 20 ecstasy tablets”. He told the police the methylamphetamine was in the form of a “smokeable paste” and admitted both drugs were his and that they were for his own use. Mr McRostie went on to tell the Detectives that he had been using methylamphetamine for about six months “just about every day”, using the glass pipe. He also volunteered that he had three small cannabis plants at home, which proved to be the case. These relate to the count to which he pleaded guilty earlier. Towards the conclusion of the interview he was confronted with the allegation of selling the drugs, to which he responded “no I don’t sell any drugs at all it is all for personal use”, adding “well look at the quantities there … it is not as if there’s 5000 pills and 10 kilos there”.
The admissions of knowing possession were sufficient proof of themselves, to trigger the reverse onus provision that applies in each instance. These facts were proved by the tender of various prosecution witness statements and associated exhibits or attachments. No witnesses were required for cross-examination by defence counsel, Ms Annells. The onus is then on the accused to establish on the probabilities, namely that is it is more likely than not, that he had no intention of selling the drugs: Abbott v Western Australia,[3] R v Carr-Briant.[4]
[3] [2005] WASC 42 at [52]
[4] [1943] KB 607 at 611
The case for the defence
This meant the only practical option open to the accused was to take the witness stand, which he did. Of course in the first place his evidence is to be judged in just the same way as the evidence of any other witness: R v Brown.[5]In the second his evidence is not to be discounted simply because he is an accused person: R v Copeland,[6] R v Jenner.[7]
[5] (1913) 17 CLR 570 at 589
[6] (1997) 194 LSJS 1 at [7]
[7] (2000) 110 A Crim R 512 at [31]
He frankly admitted at the very beginning of his evidence to having ordered the drugs in question in the quantities described and to arranging delivery to Mount Gambier from Adelaide, by bus. He repeated the claim that they were for his personal use. He told the court he would take ecstasy “usually just on weekends, but it was increasing, the amount I was using” … “maybe once or twice a week”. The accused described consuming ecstasy when he went out drinking, taking “maybe two or three a night”, progressively during the course of an evening. He said he started using ecstasy “off and on” for probably a few years, and “since March that’s when I split up with my girlfriend…I started to get back into the pub scene and stuff like that”.
Mr McRostie told the court he smoked methylamphetamine at a rate of roughly half a gram a day, since March 2008, once again for the same reasons. He said he became addicted to the drug, it “got worse as I went along”. Some 39 plastic bags were located in a bedroom in the house which he said was used so that “the meth would not dry up because if it did it was no good to smoke as it lost its potency”. He expected this drug would have lasted him two or three weeks. He paid $1,200 for it and $360 for the ecstasy tablets. He explained that glucose found in jeans at the house in the lounge room, was used to mix with the methylamphetamine, so he could “snort it”. It was not proved what quantity of glucose there was. So far as can be judged from the photographs there was not that much. As this is commonly used to dilute methylamphetamine for self use and for selling, the glucose is intractably neutral in the circumstances.
Under cross-examination Mr McRostie described the reasons for arranging the drugs to be sent from Adelaide as being:[8]
Because I didn’t want to waste my money on the prices and the quality of the stuff down here, and I didn’t have a driver’s licence to go up there and pick them up.
He went on to say that the local product was more expensive “and not the quality and it was a waste of money”.[9] He said the local price was about $400 per gram and conceded that having paid $1,200 for almost 7 g was a good price. Purchasing ecstasy locally would cost him around $25-30 per tablet.[10] He disclosed payment for these drugs was made by transferring money through a TAB account. He also admitted being out of work as of May 2009, although he had consistently held employment for years beforehand. He resigned 12 days earlier from a management position, but he obtained other employment on 24 or 25 June 2008. No immediate need of money was established by the prosecution.
[8] T27.4
[9] T27.13
[10] T28.6-.18
Under cross-examination he accepted that spending in the order of $1,500 was “quite a lot of money” and the price he paid was “quite a bargain compared to what it would have been worth locally”.[11] He was neither challenged nor contradicted on his assertion of having split with his girlfriend as he described, that he entered the party scene thereafter, or as to the prices and quality of drugs of this kind available locally.
[11] T31.36
The accused’s evidence taken alone and in isolation was not materially damaged under the cross-examination. The statements made by him at the bus depot and during the course of his interview, seemed as best one can judge, spontaneous enough. Those statements are available in his case either for and against him, depending upon what weight is properly attributable to them, bearing in mind that different weight might be attached to admissions as opposed to self-serving explanations and that they were not made on oath or subject to cross-examination: Mule v The Queen.[12] Likewise the accused’s evidence in court was both internally consistent with what he told the police earlier that afternoon. Considered alone and in light of the underlying reasons for acquiring what plainly became a drug habit, which were not challenged or discredited, his evidence can prima facie be accepted. This was neither intrinsically implausible nor objectively unlikely.
[12] (2005) 79 ALJR 1573 at [23]
Other objective evidence
However his evidence and the statements he made, must be judged in the context of all the objective circumstances, including the particular drugs in question, what likely use an individual may or may not have of them, the quantities involved, the price paid, the situation of the accused, and so on.
A number of agreed facts were relied upon by the prosecution as forming an appropriate base upon which to assess these kinds of considerations. Those facts included the following:[13]
[13] T14.19-15.36
·Ecstasy pills are commonly packaged in various sized press-sealed plastic bags, the price of which can vary according to quality, or a single tablet between $25-$50, 10 tablets a unit price being $20-$30 each, for 25 to 100 tablets $15-$25 each and for 100-1000 tablets $10-$20 each and 1000 $8-$15 each.
·Methylamphetamine is usually sold as a powder, paste or gel in crystallised form in quantities called “points” usually 0.1 of a gram.
·The purities of methylamphetamine sold at user level are generally low, less than 10 per cent, more recently some in gel or paste form have been significantly higher at 33 per cent.
·Methylamphetamine is commonly diluted by “cutting” or “stepping on the product”, in powdered form by being mixed with substances such as glucose Epsom salts and the like.
·Smoking amphetamine has become more popular in recent times by inhaling vapours in a glass pipe known as an “ice pipe”.
·Recently a crystalline form of amphetamine has become available in South Australia quite different in appearance to methylamphetamine in gel or paste form and often called “ice” or “glass”, the purity of which in crystalline form is generally greater than other forms, on average about 80 per cent.
·All forms of methylamphetamine are usually sold in small press-sealed bags.
·Depending on quality and availability, the price for 0.1 g of methylamphetamine is between $30-100, for 1 g $250-$500, 3.5 g (or 1/8 of an ounce sometimes known as “an 8 ball”) between $500-$1,500 and between 1 oz or for 28 g between $2,700-$9,500.
There was no evidence before the court of a physiological nature, indicating what the effect of the drugs in the quantities claimed to have been ingested by Mr McRostie, would or would not have been.
Analysis count 1
Mr McRostie paid $360 for 19 ecstasy tablets, or about $18 each. The agreed facts suggest this was at the lower end of prices, but not by much. At the rate of use claimed, it is feasible they may have lasted him for the period of the time suggested. As he was not contradicted or challenged on his capacity to consume those quantities in the time claimed, or that this rate of consumption was impossible or unrealistic, and given the impression he made in the witness box, the probabilities are that he did purchase the ecstasy for his own use for party purposes.
Analysis of count 2
In relation to count 2, we have 6.76 g of methylamphetamine in paste form. The evidence suggests this quantity would normally cost somewhere between about $1,000 and $3,000. This particular consignment was about 16.4% pure, so it was not of the more recently encountered variety and was more or less of “user level” purity. The $1,200 paid was within albeit at the lower end of the price range. The evidence is also that a minimum dose or “point” is .1 g, so there could be something in the order of 60 doses or slightly more, at ordinary street level trading.
Seen in this way the quantity of this drug is more than one might expect solely for personal use, especially over the relatively short period of time in which Mr McRostie said he was proposing to consume it. Even accepting that he may have fallen into a bad habit of using up to .5 g or well over $100 worth per day, generated by an adverse response to the break up of his relationship, the combined objective circumstances are such that in this instance, particularly because of the relatively greater quantity of the drug, together with the potential yield of several thousand dollars if sold in “points”, combine to the point that he has failed to demonstrate on balance, that the methylamphetamine was not possessed by him for the prescribed purpose of intending to sell.
Conclusion and verdicts
In consequence of the above findings, as to count 1 trafficking in a controlled drug namely ecstasy, the accused is found not guilty. As defence counsel conceded the alternative charge of simple possession was proved, he is found guilty of being in possession of ecstasy, contrary to s 33L(1)(a) of the Act. In relation to the second count of trafficking in the controlled drug methylamphetamine, as he has failed to discharge the burden of proof resting on him, he is found guilty. I direct that verdicts be entered accordingly. The court will proceed to hear submissions in light of these findings in relation to those two verdicts, as well as the guilty verdict already entered in relation to cultivating the three plants of cannabis, charged pursuant to s 33(B)(3) of the Act.