R v Michael James Blackwell No. SCCRM 95/509 Judgment No. 5609 Number of Pages 6 Criminal Law

[1996] SASC 5609

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL PRIOR(2), DUGGAN(1) AND DEBELLE(3) JJ

CWDS
Criminal law - jurisdiction, practice and procedure - proof of special intent - appellant convicted of possessing heroin for the purpose of sale - held that a can of mace found on his person and a pen pistol located in his house were admissible as tending to prove drug dealing. R v McGhee (1993) 61 SASR 208; R v Sultana (1994) 74 A Crim R 27, discussed. Held further that evidence from a drug squad officer as to the habits of drug users was also admissible, the evidence being more properly categorised as observations from experience rather than expert evidence. R v Barker (1988) 34 A Crim R 141 at 143, discussed.

HRNG ADELAIDE, 15 April 1996 #DATE 29:5:1996 #ADD 4:7:1996

Counsel for appellant:     Mr B J Powell QC

Solicitors for appellant:    Caldicott and Co

Counsel for respondent:     Mr S K McEwen

Solicitors for respondent: DPP (SA)

ORDER
Appeal dismissed.

JUDGE1 DUGGAN J The appellant was convicted by verdict of a jury of possessing heroin for the purpose of sale. His appeal against conviction is based upon complaints which allege wrongful admission of evidence and misdirection on questions of fact.

2. According to the prosecution case the appellant was apprehended by police on the footpath outside his house at about 8.45 am on 22nd December 1994. The appellant was asked by the police officers if he was in possession of drugs and he replied "Not on me. I have personal (sic) only in the house". The appellant was then searched and it was found that in his jeans pocket he was carrying a ball of white powder and ten plastic bags, each of which contained white powder. The white powder was later analysed and found to contain heroin. The ball of powder weighed .89 grams of which .16 grams were pure heroin. The appellant also had a can of tear gas or mace in one of his pockets. The police then searched the appellant's home and found a set of scales in one room and, in another room, a pen pistol which was capable of firing .22 calibre ammunition. A quantity of ammunition capable of being fired in the pen pistol was also located in the house.

3. The appellant gave evidence. He said that at the time of his apprehension he was living in the house with his girlfriend, Gail Fuller. He said he was a regular user of heroin and that in December 1994 he was in the habit of ingesting the drug orally. The appellant claimed that he purchased the heroin which was found in his possession on the evening before his apprehension. He denied that he intended to sell the heroin. He said he purchased that quantity because it was cheaper to purchase it in bulk and he wished to "binge over Christmas". According to the appellant he had purchased the can of mace for protection after a spate of housebreakings in the district. The scales, he said, were for weighing a sick frog which he kept as a pet. The weighing of the animal had taken place on the advice of a veterinary surgeon and it was agreed as a fact at the trial that the veterinary surgeon had recommended the weighing procedure. The appellant stated that he had inherited the pen pistol from his father and that he kept it as a curiosity. He said the bullets had been purchased in order to shoot rabbits.

4. Appeal grounds 1 and 2 complain of the admission into evidence of the pen pistol and the can of mace. At the trial the prosecution argued that the mace and the pen pistol, along with other items such as the scales and a quantity of plastic freezer bags, were items of a kind appropriate for use in drug dealing. Accordingly, so it was argued, they were relevant to the principal issue in the case, namely, whether the drugs which were admittedly in the appellant's possession were for personal use or for the purpose of trade.

5. It is well known that drug dealers may become involved in situations which place their personal safety at risk. Accordingly it is not unknown for dealers to arm themselves or carry some sort of protective device, particularly when in possession of large quantities of drugs. Reference has been made to this fact in some of the authorities (see e.g. R v McGhee (1993) 61 SASR 208; R v Sultana (1994) 74 A Crim R 27 and the cases referred to therein.) Furthermore, in the present case a drug squad detective gave evidence to this effect.

6. 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, then 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 not a 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 purpose of sale. As Cox J said in R v McGhee (supra at p210):
    "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."

7. I am satisfied that this is not a case in which the evidence gives rise to a prejudice consisting of something other than a tendency to show guilt of the crime charged. (R v Edelsten (1990) 21 NSWLR 542.)

8. The next ground of appeal complains of certain evidence given by Detective Williamson. The witness stated that he had been a police officer for 18 years and a member of the Drug Task Force for just over two years. After explaining that heroin dealers are often armed or carry protective devices he was asked what police officers looked for when searching the premises of persons suspected of using heroin as opposed to dealing in the substance. The witness then described paraphernalia often found on premises occupied by a user of the drug including needles, syringes and a spoon. He went on to say that no needles or syringes were found at the appellant's premises.

9. The appellant complained that this evidence had a tendency to place drug users and traders into two quite separate categories and it suggested that those in each category could be readily identified by reference to items found in their possession. In my opinion this is to read too much into the evidence. The appellant's answer to the prosecution case was that he was a user and not a dealer. The evidence went no further than to suggest common indicia of drug users and traders respectively. The prosecution was entitled to counter the appellant's assertion that he was a user and not a trader by establishing that he was in possession of items commonly associated with dealers and that there were no indications that he was a user. It was just as relevant for the prosecution to lead evidence of the absence of any signs of drug usage on the premises as it was for the appellant to give evidence (which he did) that there were syringes for drug use kept on the premises and that the police had failed to find them.

10. Next, objection was taken to evidence given by Detective Williamson concerning the habits of drug users. He said that in his experience if a drug user purchases more than was required for a particular day the excess would be concealed so that it would not be stolen by other drug users. He was then asked about the physical effects he had observed in heroin users. The witness stated that in the case of people he himself had observed he noticed that if they were going through a withdrawal period their temperature rose, they would sweat a lot, they appeared as though they had a fever and as though they were "hanging out" for more heroin. These symptoms seemed to cease after a further intake of heroin. The witness went on to say that when the appellant was apprehended he appeared to be normal, calm and rational and none of the withdrawal symptoms previously described were evident. There was no objection to the giving of the evidence which I have summarised. However it was argued on appeal that the statements by the witness were of a speculative nature and should not have been admitted into evidence by the trial judge.

11. Counsel for the appellant described the police officer's statements as opinion evidence, but in my view they are more properly categorised as observations from experience. This was the distinction made in R v Barker
(1988) 34 A Crim R 141 at 143 where a police officer gave evidence of her knowledge of the use of pipes and bongs as appliances for smoking Indian hemp. King CJ said:
    "The debate at the trial as to the admissibility of this
    evidence was conducted upon the basis that it was adduced as
    the opinion evidence of an expert and her Honour treated at
    least part of the witness's evidence as evidence of that
    kind. Appraisal of the evidence indicates to me, however,
    that it was not opinion evidence at all. Constable Raven
    was relating her observations and experiences over years of
    contact with Indian hemp and the users of Indian hemp and,
    in particular, with the appliances which are used for
    smoking it. She was well able to identify Indian hemp and
    its smell. She had seen bongs being used for the smoking of
    Indian hemp. She had on a great many occasions seen pipes,
    including the bong type pipe, and joint clips, of the kind
    found in this shop, at places where quantities of Indian
    hemp were found. She had also on many occasions detected
    remnants of Indian hemp in such appliances and had that
    confirmed on analysis. None of this evidence was opinion
    evidence. It merely recounted her actual observations and
    experience." (See also Anderson v The Queen (1992) 60 SASR
    90 at 101).

12. There may have been an element of opinion involved in the actual description of the appellant, but the emphasis throughout the evidence was on the witness's previous observations and experience. If the evidence had been objected to I think the learned trial judge would have been justified in excluding it because of its very slight probative value. No doubt the habits and appearance of drug users differ widely from person to person and generalisations of this sort should be approached with caution when advanced as proof of a criminal charge. However the recounted experience of the witness in the present case did not really extend beyond matters of common knowledge and I am of the view that the admission of the evidence could not have led to a miscarriage of justice.

13. Finally the appellant complained of two instances during his cross-examination when it is claimed that the learned trial judge incorrectly summarised evidence which he had given. In the course of the appellant's examination-in-chief the following evidence was given:
    "Q. Why on the morning of Thursday, 22 December, that is the
    day that the police arrived, did you have all of that heroin
    in your pocket?
    A. I prefer to carry it on me. I know where it is. It is
    occasionally when I have left it in the house I am scared
    she will dispose of it.
    Q. Who would dispose of it?
    A. Gail."

14. The appellant was cross-examined on the topic as follows:
    "Q. What was the reason that you had all of the heroin in
    your pocket rather than hidden somewhere or put somewhere?
    A. The same reason that it would have been as if I had
    hidden it. If I have hidden it, I don't know where it is.
    If it is on me, it is on me.
    Q. Could you just repeat that answer?
    A. If it is hidden, I don't know what is happening to it.
    If it is on me, I know where it is.
    Q. What do you mean by something 'happening' to it?
    A. Depends where one may hide it.
    Q. Can you give an example?
    A. Friends have had heroin stolen.
    Q. Yes.
    A. I don't understand?
    Q. Can you give another example of why you didn't want to
    leave it somewhere?
    A. I prefer keeping it on me.
    Q. I thought you said earlier in your evidence the reason
    you didn't have it at the house was that you were concerned
    that Gail Fuller might dispose of it?
    A. Yes.
    Q. Did you forget to say that just then, did you?
    A. No.
    Mr Boylan: I don't think that is quite fair. I think my
    learned friend is honing in on one aspect of the evidence
    about Ms Fuller, leaving aside the initial explanation about
    the heroin generally. I don't have a copy of the evidence
    in front of me.
    His Honour: 'Gail didn't approve. Tried not to use it in
    front of her. Had it all in pockets. Scared Gail would
    dispose of it. Suspect she had in the past. I intended to
    use it over a week to ten days.'
    Mr Boylan: I thought that earlier in his evidence there had
    been more general discussion of the topic. I was on my
    feet, of course. I didn't take any notes. I am relying
    solely on memory.
    His Honour: 'They were in the house, needles and syringes.
    Didn't intend to sell. Binge at Christmas.' I can't see
    anything else.
    Mr Boylan: As your Honour pleases. I don't have a note."

15. Counsel for the appellant claimed that in examination-in-chief the appellant was explaining his usual practice of carrying heroin as well as commenting on the fact that his girlfriend would dispose of it, whereas the learned trial judge referred only to the fear relating to the appellant's girlfriend when summarising the evidence. The jury, so it was said, was left with the impression that the appellant had referred to his general practice for the first time in cross-examination.

16. According to my reading of the examination-in-chief the appellant gave as the reason for his practice of carrying the drug the fact that his girlfriend would dispose of it if she found it in the house. If this is a correct summary of the evidence-in-chief then there was nothing in the learned trial judge's comments which could have misled the jury.

17. The second alleged misdescription by the learned trial judge arises out of the evidence of Gail Fuller who was called by the defence. During cross-examination she was asked if she had seen the appellant weigh heroin on the scales found in the premises. She replied that she had, but that she could not say when this occurred. In the course of re-examination which followed almost immediately upon this evidence the witness was asked again when she saw the accused weighing the heroin and the learned trial judge interrupted and said: "The note I have got is 'not long before Michael (the appellant) was arrested'."

18. The learned trial judge misquoted the evidence which had been given a matter of seconds before, but I am not persuaded that this error worsened the appellant's position. The appellant denied using the scales to weigh heroin on any occasion. His own witness gave evidence to the contrary. The detrimental effect which the evidence had on the appellant's case consisted of the assertion by his girlfriend of the fact that the scales had been used on some occasion for a drug related purpose, not when they were used for that purpose.

19. In my view none of the grounds of appeal have merit and I would dismiss the appeal against conviction.

JUDGE2 PRIOR J I agree that this appeal should be dismissed for the reasons published by Justice Duggan.

JUDGE3 DEBELLE J I agree with the reasons of Justice Duggan. I would dismiss the appeal.