R v Mealey No. DCCRM-98-850 Judgment No. D98

[1999] SADC 98

R v Christopher John MEALEY
[1999] SADC 98

Judge Sulan
Criminal

1. HIS HONOUR:         The accused Christopher John Mealey is charged with two offences.  The first count is taking part in the sale of cannabis.  Particulars of that offence are that on 6 May 1998 at Rostrevor and other places he knowingly took part in the sale of cannabis, a prohibited substance, to another person.  It is further alleged that the amount of cannabis exceeded 2 kilograms.  When he was arraigned on 19 July the accused pleaded guilty to that count. 

2. The second count alleges that he was in possession of 4 Hydroxi-butanoic acid for sale, Hydroxi-butanoic acid is otherwise known as Fantasy.  Particulars of that offence are that on 6 May 1998 at Rostrevor he knowingly had Fantasy, a prohibited substance, in his possession for the purpose of selling it to another person.  It is further alleged that the amount of Fantasy exceeded 5 grams. 

3. As to the second count, his counsel Mr Stanton counsel for the accused informed me that there will be no issue as to possession of the substance, but that the accused denies that he had possession of it for the purpose of sale.  The quantity of Fantasy the subject of count 2 is above the prescribed amount and therefore the deeming provision in s.32(3) of the Controlled Substance Act 1984 applies and the accused is deemed to have that Fantasy in his possession for the purpose of sale or supply to another person. 

4. In summary, the relevant witness statements for the prosecution reveal the following.  On 6 May 1998 Constable Kelly of the New South Wales Police Force attended at the Qantas domestic terminal in Sydney where he spoke to the accused.  The accused told Constable Kelly that he was travelling to Adelaide to look at some property.  He gave his name as Newman.  When the police searched his case at the airport he had in his possession $10,000 cash and it transpired that his correct name was not Newman.  He told the police that the cash was in order to put a deposit on a property for his mother, who was overseas, and that he had given the police a false name for tax purposes.  Also in his bag was a block of what appeared to be wax.  He told the police that it was wax that he used for a back injury.  It later transpired that this substance contained the Fantasy the subject of count 2.  Later in the day at about 12.40 pm.  South Australian Police observed the accused at the Adelaide Airport.  He was carrying the case.   He was followed to Finemores Transport Company at Regency Park where he took possession of a Ford utility with New South Wales number plates.  He drove to the Holden Hill Magistrates Court where he picked up a person with whom he drove around for some time and then dropped that person off again at the court. 

5. He was seen to go to the Bi-Lo Supermarket carpark at Rostrevor.  The car was observed there.  It was later driven from that area and it was observed at some stage at 10 Savas Street, Rostrevor.  Later in the day police again observed the car at the Bi-Lo carpark but the accused was not seen.  The accused was observed with the suitcase near the Rostrevor address. 

6. At about 4.20 pm on 6 May police observed the accused at the utility in the Bi-Lo carpark, with another man, later identified as Anthony Richard Spain.  They observed the accused and Spain transfer a box to the rear of the utility.  The police approached and in the back of the utility they found a large amount of money in notes totalling $9,500.  In a box in the back of the utility was a large quantity of cannabis which was the subject of count 1.  When first approached Mealey denied any involvement in any offence.  Also found in the utility was a note which had written on it various sums of money, some names and telephone numbers.  Also located in Mealey's possession was money totalling $1,680.15 in cash and other papers, including two butts, one which appeared to be a deposit slip butt in the sum of $9,600 and one which appeared to be a withdrawal slip butt for $19,000, both dated 5 May 1998, and it appears relating to deposits and withdrawals from a financial institution in Penrith, New South Wales. 

7. At Savas Street the police located the suitcase with the wax.  Mealey told the police that the wax was for his backache.  That block of wax was later analysed and contained Fantasy, the subject of count 2.  The prosecution seeks to support its case in respect of count 2 by establishing that Mealey was involved in a drug purchase of cannabis on 6 May 1998, that he had come to Adelaide and that at the time he had in his possession a deposit and withdrawal slip butt, suggesting a large deposit and withdrawal of moneys in New South Wales on the day before he came to Adelaide.  Further, the prosecution relies on the note found in the utility.

8. Mr Henchliffe for the prosecution argued that those items are evidence which point to the accused being a dealer.  Mr Stanton for the accused objected to the admissibility of the evidence.  He submitted that it has little or no probative value and demonstrates mere propensity.  He argued that the prejudicial effect of the jury receiving the evidence of the cannabis dealing and the surrounding evidence outweigh the probative value, if any, of that evidence. 

9. The evidence of the note found in the utility and the deposit and withdrawal slip butts, he argued, is not sufficiently related to the possession of the Fantasy and should therefore be excluded.  He submitted that there may be various explanations for the forms and the note found in the utility but there was not sufficient connection with the accused or with the possession of the Fantasy for the evidence to be admissible. 

10. Mr Henchliffe relied on the decisions of R v McGhee (1993) 61 SASR 203 and R v Bilick and Starke (1984) 36 SASR 321. The first question is whether the evidence relating to the cannabis transaction, the evidence of the withdrawal and deposit slip butts, the money found in the utility and the note found in the utility is relevant and probative in respect of the charge relating to Fantasy. If it is relevant to establish the crime charged beyond merely establishing criminal conduct in the past or criminal disposition, and subject to any exercise of my discretion, it is my view that the evidence is admissible. The dealing in large amounts of cash in or about the time of the alleged offence is evidence which is capable of supporting the prosecution case. The fact that large amounts of cash were found in the utility can go to establishing that the accused is a dealer and running a drug business. The fact that the explanation may lie in the accused dealing in cannabis does not make the evidence less relevant, in my view. (See McGhee's case at p.220). Cox J observed in McGhee's case, at p.210 at the foot of the page :

    “I must say, with respect, that I find the reasoning and conclusion of Rice J generally persuasive.  If in a prosecution under s.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 the 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 in question merely because it proves that 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 possessing drugs for the purpose of sale under s.32.  Of course, this reasoning will not ordinarily be open if the evidence simply proves the defendant was engaged in the past in an illegal business that is now over and done with.  That would bring the propensity rules clearly into play.  Furthermore, the court will always have to consider the question of discretionary exclusion where evidence of this sort is tendered and be on guard against admitting prejudicial evidence on continuity grounds that is quite fanciful or speculative.”

11. I accept that the mere fact that the accused might at some time have been involved in the business of drug dealing cannot be evidence that he is presently involved in the business.  However, here the accused came to South Australia from New South Wales on 6 May 1998, and at that time was involved in a large deal involving cannabis.  At the same time, he was carrying another drug in a relatively large quantity.  There is a proximity between his dealing in cannabis and the possession of the Fantasy.   Furthermore, the evidence of large amounts of cash and dealing in cash the day before, is also probative of the prosecution allegation that he was involved in drug dealing.  In my view if the evidence were not admitted the jury would be presented with a misleading picture of the accused's presence in South Australia.  The evidence of the deposit and withdrawal slip butts and the note which was found in the utility in the carpark are all capable of pointing to the accused being involved in an on-going business and in dealing with drugs.  In my view the evidence relating to what occurred in the carpark and what was taken from the accused, that is, the evidence of the deposit and withdrawal slips and the evidence of the note found in the utility and the evidence of cash found, is relevant and probative.