R v Middlin-Hannah
[2020] SADC 31
•26 March 2020
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MIDDLIN-HANNAH
Criminal Trial by Judge Alone
[2020] SADC 31
Reasons for the Verdicts of His Honour Judge Press
26 March 2020
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - MENS REA - STATUTORY OFFENCES - EFFECT OF PARTICULAR WORDS - SELL
Accused charged with two counts of Trafficking in a Controlled Drug –No seizure of the MDMA the subject of the two counts – The prosecution rely on text message exchanges to prove the elements of the counts – Whether the accused offered or agreed to sell MDMA or took part in the process of sale of MDMA – Whether proof of actual possession of MDMA at the time of an offer or agreement to sell is required to satisfy the element
Verdict: Guilty - Counts 1 and 2.
Controlled Substances Act 1984 (SA) s 32(3); Evidence Act 1929 (SA) s 34P(2)(a); s 34P(2)(b); s 34P(3); s 54 ; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 r 5, referred to.
R v Tennant [2010] SASCFC 2; Abrahamson v The Queen (1994) 63 SASR 139; Harriman v The Queen (1989) 167 CLR 590; R v C,CA [2013] SASCFC 137; BNM v The Queen [2020] SASCFC 10; R v Pfennig (1995) 182 CLR 461; R v Peirce (1994) 90 A Crim R 134; Dendic & Mazzeo v R (1987) 34 A Crim R 40; R v Swan [2003] NSWCCA 318; Aoun v R [2011] NSWCCA 284; R v Randylle (2006) 95 SASR 574; R v Falzon (2018) 264 CLR 361; Questions of Law Reserved on Acquittal (No1 of 1996) (1997) 68 SASR; R v Addison (1993) 70 A Crim R 213, considered.
R v MIDDLIN-HANNAH
[2020] SADC 31Introduction
The accused elected to be tried by a judge sitting without a jury.
Mr Middlin-Hannah (hereinafter referred to as the accused) is charged with two counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (‘CSA’).
Prior to the accused’s arraignment the particulars as to count 1 were amended without objection to broaden the dates between which the offence was said to have been committed. The particulars of the first count are that Bradley John Middlin-Hannah between the 18th day of July 2017 and 21st day of July 2017 at Edwardstown, trafficked in a controlled drug, namely MDMA, knowing or being reckless as to the fact the substance was a controlled drug. The particulars of the second count are that Bradley John Middlin-Hannah between the 31 (sic) day of July 2017 and the 3rd day of August 2017 at Richmond, trafficked in a controlled drug, namely MDMA, knowing or being reckless as to the fact the substance was a controlled drug.
The prosecution called two witnesses: Detective Brevet Sergeant Napper (‘DBS Napper’) and Detective Brevet Sergeant Wall (‘DBS Wall’). DBS Napper attended at the premises of the accused on 8 August 2017 and located $6470 cash and cocaine. He located the accused shortly thereafter at another location and seized his phone and conducted a record of interview. The phone was examined. Details of the content of messages sent to and from the phone between 30 December 2016 and 6 August 2017 were recorded in Exhibit P5. It was an agreed fact that Exhibit P5 accurately recorded the details and that the phone belonged to the accused and that the text messages outlined in Exhibit P5 were sent by the accused.
DBS Wall gave evidence in relation to the sale and packaging of MDMA and cocaine and the common terminology used by those buying and selling such controlled drugs. Neither police officer was cross-examined.
Count 1 and 2 both relate to messages between the accused and a person to be referred to as JS. In count 1 the substance allegedly being sold is referred to as ‘md’ and in count 2 the substance allegedly being sold is referred to as ‘Mdna’.
The prosecution rely on specific messages between the accused and JS on particular days to prove the elements of counts 1 and 2. Messages not the subject of any count are also relied on to contextualise and explain the meaning of terms used in the messages relating to counts 1 and 2 and as evidence that the accused had an interest in and knowledge of MDMA and other drugs and that he genuinely believed he had access to those controlled drugs. Further it is alleged that he was engaged in the business of selling drugs and, in particular, MDMA, at the time of the offending. The prosecution also relied on $6470 in cash located at his house on 8 August 2017 as evidence which bespeaks the probability of the accused being in a continuing business of trafficking at the time of counts 1 and 2.
The offences allegedly committed by the accused occurred prior to his arrest on 8 August 2017. As regards the transactions the subject of counts 1 and 2 the police did not seize any controlled drug. Cocaine was located in the house of the accused but there was no evidence that MDMA was located in the house, on his person or in his car. The absence of such evidence is one of the primary issues and requires consideration of both the elements of the offence and the terminology used in the messages by the accused and his alleged customer.
The pathways to guilt relied upon by the prosecution
As regards each count, the prosecution allege that the accused offered or agreed to sell MDMA,[1] or alternatively, that the accused took part in the process of sale of MDMA. It is alleged he took part by offering MDMA for sale, by entering into an agreement for the sale of MDMA, by negotiating an amount to be sold and a price to be paid and by arranging a location at which MDMA would be exchanged. It was further submitted that the transportation of MDMA to that location would also satisfy this element.[2] There is considerable overlap between these pathways. The prosecution further contend that the elements of the offence may be proved by acts which occurred prior to any exchange of a controlled drug, and in circumstances in which the accused may not have been in possession of a controlled drug at the time of the offer or agreement to sell and in circumstances in which it cannot proved any substance he did acquire, was in fact a controlled drug.
[1] Prosecution Address, T49; Submissions received from the prosecution at my invitation after the addresses.
[2] Prosecution Address, T51; Subsequent written submissions provided by the prosecution at my invitation.
I note at this point that a factual basis which relies on offering or agreeing to sell a controlled drug, negotiating an amount to be sold, negotiating the price to be paid, negotiating the location where the transaction is to occur and negotiating the manner of transportation raises different considerations to a factual basis which relies on an act of transporting a controlled drug for the purpose of sale. Whilst I consider the latter basis would require proof beyond reasonable doubt that a controlled drug was in fact transported, the former type of factual basis directs attention to a different type of act which requires the focus of the offer, agreement and negotiations to be a controlled drug but which may not require possession of or even immediate access to a controlled drug at the time of those acts. I will return to this issue when discussing the elements of the offence.
The prosecution has particularised the controlled drug as MDMA and has proceeded on the basis the evidence proves that this is the controlled drug which the accused offered for sale. In the circumstances of this case I consider that the drug particularised is a material particular. The case was prosecuted on the specific basis the drug being offered in counts 1 and 2 was MDMA and that is the basis upon which the accused conducted the trial. If ‘md’ and ‘Mdna’ are not references to MDMA it has not been suggested I should nonetheless be satisfied those messages related to some other controlled drug. I therefore proceed on the basis the prosecution must prove beyond reasonable doubt that the controlled drug was MDMA.
The defence submissions
Whilst the accused initially submitted to the contrary, the accused accepts that a completed transaction is not required,[3] that proof that the accused possessed MDMA at the time of the offer is not required and that a ‘genuine offer to sell made with an intention that it be regarded as a genuine offer’ is sufficient to satisfy the element of trafficking. This concession was made on the basis interstate authority could not be distinguished and on the basis of comments of the Court of Appeal in this State in R v Tennant.[4] On those bases I consider the concession was properly made. I have considered those authorities below.
[3] By completed transaction I am referring to a controlled drug being physically provided to another person and payment being received for that controlled drug.
[4] [2010] SASCFC 2.
The accused submits however that the terminology in the messages is too vague and ambiguous to prove beyond reasonable doubt that it relates to a controlled drug, or even if that can be proved, that the subject of the messages is MDMA. The accused submits the descriptor of the substance the subject of the message in count 1 (md) and in count 2 (Mdna) cannot be proved to be a reference to MDMA beyond reasonable doubt. The defence submits that the fact neither ‘md’ nor ‘Mdna’ are listed in the regulations as controlled drugs does not mean that no such drug in fact exists.
Further it is submitted, at least insofar as count 2 is concerned, that the messages sent by the accused do not amount to an offer or agreement to sell the substance because JS’s request for a substance was ‘rebuked’ when the accused replied he was ‘getting it later’. The accused acknowledges that the prosecution allege the conversation in fact continues the following day but submits that this intervening period, the absence of any reference to a substance in the later messages and the possibility the subsequent conversation was solely directed to a sexual liaison are such that I should not be satisfied beyond reasonable doubt that the messaging on the subsequent day is in fact a continuation of the same ‘conversation’.
Additionally, the defence submit the entirety of the evidence is not consistent with the accused being in the business of selling drugs and in particular MDMA. Firstly, it submitted any evidence of his willingness to sell cocaine is not relevant to whether he is also in the business of selling MDMA. Secondly it is submitted the number of messages from which other transactions in controlled drugs may be inferred are simply too few to infer a ‘business’ and thirdly, any messages or evidence of transactions in late 2016 and early 2017 are too far removed from the timing of the charged counts in July 2017 to be relevant to the existence of a business at that later time. The accused further submits that the money located in his house was located some time after counts 1 and 2, the accused gave an explanation for half of it and the police provided no evidence to contradict his account and that notwithstanding there was expert evidence that the sale of drugs often involves $50 notes, less than half of the money located was in $50 denominations. The money it is said, does not therefore support the prosecution case of the existence of a business at that time.
Preliminary issue as regards some evidence
In the course of the trial some evidence was led without objection although it was later the subject of some discussion. I consider some of that evidence was inadmissible and therefore irrelevant to the determination of the issues in this trial. I make clear that for the purposes of considering the issues in this trial and whether the prosecution has proved beyond reasonable doubt the guilt of the accused that I have had no regard to the following evidence and in particular have drawn no inference adverse to the accused as a result of the evidence:
·that the police attended at the house of the accused as a result of information they had received and the implication therein that someone believed the accused was engaging in criminal activity and informed police of that fact;
·that police were considering reporting the accused for unlawful possession of the cash located in his bedroom and the implication therein that police had formed a reasonable suspicion that the money was unlawfully obtained;
·that after the accused provided an explanation in relation to $3,900 of the money located in his bedroom he was asked ‘and what about the rest of it?’ and he stated, ‘no comment on it’. I draw no adverse inference against the accused from the fact he exercised his right to silence and declined to answer questions in relation to the balance of the money seized; and
·that the accused declined to answer questions about the text messages that police had seen on his phone when he was spoken to on 8 August 2017. I have no regard to that fact or any questions and answers to that effect.
Further issues also arose as to the admissibility of some of the discreditable conduct. I will deal with those issues below when considering that evidence.
Onus of proof
I remind myself that the onus of proof is on the prosecution to prove beyond reasonable doubt each element of each offence. The accused is entitled to the presumption of innocence. He is regarded as innocent unless and until his guilt has been proved by the prosecution beyond reasonable doubt. Any uncertainties or gaps in the prosecution case must be resolved in favour of the accused. If I indicate I am satisfied then I mean I am satisfied beyond reasonable doubt.
The prosecution relies primarily on inferences to be drawn from text messages sent by the accused to JS however messages sent and received by the accused to other people are also of significance as regards the inferences which can be drawn as to his communications with JS. I am particularly mindful that one of the issues raised by the accused is that the messages are ambiguous and that it is not therefore possible to be satisfied beyond reasonable doubt that the messages are concerned with controlled drugs or that even if they are, that the drug being discussed is MDMA. I therefore remind myself that I may not find the accused guilty of any charge unless I am satisfied that taking into account all the facts I find proved, that his guilt is not only a rational inference, but that it is the only rational inference that is open on those facts. That is, if there remains a rational explanation consistent with innocence the prosecution will not have proven its case.
In this case the accused elected not to give evidence. He was under no obligation to do so. I draw no adverse inference from the fact the accused exercised that right. I further remind myself that the silence of the accused does not constitute any form of admission, it may not be used to fill gaps in the prosecution case and it may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt.
Evidence led at the trial
DBS Napper confirmed that he and Sergeant Brent Wilson attended at the accused’s home on 8 August 2017.[5]
[5] T9.28.
Police located $6470 in the top drawer of the wardrobe in the accused’s bedroom and three press seal bags each containing cocaine in the second drawer of the same wardrobe. It is agreed that the money and the cocaine located by police belonged to the accused. [6]
[6] Agreed Facts, Exhibit P14.
DBS Napper then attended at a Football Club and spoke to the accused. The accused did not have any items on him.[7] DBS Napper seized the accused’s phone.[8] The accused was cautioned and spoken to. He admitted possession of the cocaine and the money seized by police earlier that day. He stated the cocaine was for his own use and that $3900 of the money seized had been received by him about four or five weeks before as a tax return. He stated a friend had done his tax return for him and he named that person. He further indicated he had withdrawn the money from Bank SA. There was no evidence led by the prosecution to contradict this account.
[7] T13.28.
[8] T13.31-.33.
Using an extraction program DBS Napper extracted data from the phone.[9] That data included details of text messages, MMS messages, calls, contacts, location data, web history and times of calls and messages contained on the phone.[10] DBS Napper identified the information he considered to be potentially relevant and transferred that information into Exhibit P5.[11] Exhibit P5 detailed the content of messages downloaded from the phone with details of where the message was located in the phone, whether the message was sent or received, the time and date it was sent or received and the details of the phone number the accused was sending messages to or receiving messages from and the name associated with that number as it was listed in the accused’s contact list. DBS Napper added the columns to show the time and date in Adelaide when the message was sent or received because the spreadsheet only displayed the time and date in Universal Time Code.[12]
[9] T17.4.
[10] T17.37.
[11] T18.12.
[12] T20.27-.38.
The accused did not suggest that the information extracted from the accused’s phone and detailed in P5 did other than accurately reflect the content and timing of messages sent and received by that phone. To the contrary, it was an agreed fact that ‘the SMS sent as outlined in the table tendered were sent by him’ (my emphasis). No distinction was sought to be made between SMS sent and SMS received and although no reference was made to the received messages in that agreed fact, I am satisfied beyond reasonable doubt that the accused also received and read any message to which he then replied. His response simply would not have occurred unless he had seen the previous message.
As for the messages to which he did not respond I note that P5 records each message sent to the phone as being ‘read’ and it was agreed all the details in P5 accurately reflected ‘what was contained on the mobile’. I am also satisfied beyond reasonable doubt that any message to which he did not respond was nonetheless received by his phone from another person. Whilst it does not appear to be in dispute that he also read those messages I need not determine that for the purpose of resolving the issues in this trial. I will not consider s 54 of the Evidence Act 1929 (SA) (‘Evidence Act’) and its potential application to this evidence.
Neither the credibility nor the reliability of DBS Napper was in issue. He was not cross-examined and most of the significant aspects of his evidence were confirmed by the agreed facts. It was not suggested he had omitted important or relevant messages from P5. He was unable to explain an apparent anomaly in P5 as to whether the MMS messages (messages 16, 17, 28 and 66) had been sent by the accused or received by the accused but subsequent uncontested evidence clarified this issue. I accept his evidence as truthful and reliable beyond reasonable doubt.
DBS Wall gave evidence as to the prices at which MDMA and cocaine are sold, the weights at which they are sold and the terminology used by those who engage in buying and selling those drugs when describing the drug itself and the amount to be sold. He had substantial experience investigating such offences and had trained others in this area.[13] There was no challenge to his expertise to give this evidence or to the evidence itself. There is no evidence which casts any doubt on its accuracy. Whilst I am not obliged to accept his evidence I am satisfied beyond reasonable doubt that his evidence is credible and reliable.
[13] T33 - 37.
DBS Wall described MDMA as a stimulant psychedelic drug related to amphetamine.[14] MDMA is a shortened version of Methylenedioxymethamphetamine, which is commonly known as ecstasy.[15] It is readily available in the community and is typically in tablet, pill, crystalline or powder form.[16] The crystalline form can also be put into capsules and then sold as a capsule. In the evidence the terms ‘granular’ and ‘crystalline’ were used interchangeably. In his experience there has been a trend away from tablets towards capsules in the last 2-3 years, likely because a capsule will contain a purer product.[17]
[14] T37.18.
[15] T37.21.
[16] T37.25.
[17] T38.28.
He stated that in August 2017 the price ranges for MDMA in tablet form were approximately: [18]
·up to 10 tablets $10 to $20 per tablet;
·up to 100 tablets $9 to $15 per tablet;
·up to 1,000 tablets $6 to $6.50 per tablet; and
·over 1,000 $4.50 to $5.50 per tablet.
·In a powder/crystalline/granular form the price range for MDMA was: [19]
·one gram was between $150 and $250;
·an eight ball of MDMA (3.75g) would likely have sold for approximately $500 in 2017.
·an ounce (28g) would be closer to $1500 to $2500.
[18] T39.7.
[19] T39.14 -.29
He further stated cocaine is more expensive than MDMA. This was not challenged by the accused. His evidence as to the price for a gram of cocaine was not however specific and was to a degree vague in its parameters. His evidence appeared to be influenced more by the price of MDMA than a specific knowledge of the precise price of cocaine at that time. The pricing was also qualified. He stated “north of maybe $300 and beyond, 3 or $400 maybe for a gram of cocaine, maybe more if it was a particularly pure product.’ Whilst I accept his evidence that cocaine is more expensive than MDMA, the degree to which that is so is not clear and I therefore place little weight on the specific prices to which he referred.
As to terminology, he gave the following evidence:
·Eccies, love drug, E, googs and browns: common terms for MDMA.
·Caps or molly: common terms for MDMA in capsule form.[20]
[20] T37.33.
·Lolls / Lollies: a term to describe MDMA tablets.[21]
[21] T42.31.
·MD; a shortened version of MDMA – ‘especially if surrounded by other communications that was(sic) consistent with that.[22]
[22] T45.20.
·Cut: means a drug has had an adulterant added to increase the bulk and therefore the amount of saleable commodity.[23]
·Rack: refers to cocaine – people preparing to snort cocaine will line it up or “rack it up”.[24]
·Rock: can be used to describe ice methylamphetamine or cocaine.[25] Rock is not a term he has commonly encountered to describe MDMA.[26]
·Coke: Common term for cocaine.[27]
·Mother of Pearl: refers to cocaine – the term is derived from the iridescent hue or pearl appearance of cocaine when it is in a compressed block.[28]
·Smoke: usually refers to cannabis, but is anything that can be smoked.[29]
·O / Oz / Ozzie: refers to one ounce or 28 grams.[30]
·8B: reference to an eight ball, or 3.5 grams (1/8th of an ounce).[31]
·HB or Half B: is a half ball or 1.75 gram.[32]
·G/g: refers to one gram.[33]
[23] T43.2.
[24] T43.22.
[25] T43.29.
[26] T44.14.
[27] T45.36.
[28] T44.23.
[29] T44.19.
[30] T44.1.
[31] T39.19; T45.30.
[32] T44.10; T45.34.
[33] T44.7.
DBS Wall was not asked any questions about the existence of a drug named Mdna. Nor was he cross-examined on this topic.
In DBS Wall’s experience, indicia of trafficking include scales, plastic press-seal bags, tick lists, large numbers of mobile phones or mobile phones with encrypted communication apps[34] and large amounts of cash, typically in $50 notes.[35]
[34] T40.37.
[35] T41.13.
DBS Wall was shown two photographs extracted from the accused’s phone: P8 and P10. Each photo showed a person holding a substance. In each case the prosecution alleged the person was the accused. DBS Wall could not identify the substance pictured in Exhibit P8 though when asked what it was similar to in appearance he said ‘could be amphetamine or probably be MDMA’.[36] In his experience cocaine has a different appearance to amphetamine and MDMA. He was not cross-examined on this evidence.
[36] T40.17.
DBS Wall considered the substance pictured in Exhibit P10 was similar in appearance to controlled substances he had seen but he also ‘couldn’t say that's not a piece of quartz or a rock or something like that’.[37]
[37] T46.11.
Counts 1 and 2
For the purposes of these reasons, the names are recorded as initials and I have edited the details of the addresses given.
As to count 1 the prosecution allege that the accused offered and agreed to sell an 8 ball (3.75g) of MDMA for $500 to JS, knowing JS had indicated her friend needed it.[38] It is also alleged he agreed to meet her about 50 metres from his residence between 11.56am on 19 July 2017 and 12.47am on 20 July 2017. The prosecution allege that in light of the accused’s interest in and knowledge of MDMA, a previous message in which he specifically offers ‘MDMA’ to JS and agrees to sell a ‘hb’ to JS knowing that JS has said her friend wants some, the ongoing nature of his contact with JS, the nature of his business selling MDMA and the nature of his business with JS, the reference in the message to ‘md’ by JS was and was understood by the accused to be, a reference to MDMA and that the accused’s offer to sell was a genuine offer in that he believed he was selling and he intended to sell MDMA. The details of messages 68-97 are as follows:
[38] The assertion by JS that ‘my friend need md’ cannot be used as evidence of the truth of that assertion. The statement is however relevant to explain why the accused responds as he does, why he makes the offer to sell, why the accused believes JS has a friend who wants it and to contextualise and explain references in other calls by JS to her ‘friend’.
68
Hey babe my friend need md
Read
19/07/2017
11:56 PM
69
Can you drop some off tomorrow early in the morning my friend need
Read
19/07/2017
12:04 AM
70
I start work at 7 ! Unless ur friend meets me at work
Sent
19/07/2017
12:05 AM
71
Can I come to u now
Read
19/07/2017
12:06 AM
72
What if u come to you now OK or not
Read
19/07/2017
12:11 AM
73
So u don't have to come herr
Read
19/07/2017
12:11 AM
74
How much u need
Sent
19/07/2017
12:11 AM
75
8b
Read
19/07/2017
12:12 AM
76
How much
Read
19/07/2017
12:12 AM
77
5
Sent
19/07/2017
12:13 AM
78
5 what
Read
19/07/2017
12:13 AM
79
500
Sent
19/07/2017
12:13 AM
80
OK
Read
19/07/2017
12:15 AM
81
Cool
Read
19/07/2017
12:15 AM
82
Want it?
Sent
19/07/2017
12:15 AM
83
Well u still be up at 1
Read
19/07/2017
12:16 AM
84
Nah
Sent
19/07/2017
12:16 AM
85
No I mean 12:40
Read
19/07/2017
12:16 AM
86
Yeah ok dont be late!
Sent
19/07/2017
12:17 AM
87
I waiting for car now it on the way back
Read
19/07/2017
12:17 AM
88
Is it just u coming?
Sent
19/07/2017
12:17 AM
89
OK I got the car in 10
Read
19/07/2017
12:17 AM
90
Yes
Read
19/07/2017
12:17 AM
91
My friend want to come too
Read
19/07/2017
12:21 AM
92
Address
Read
19/07/2017
12:23 AM
93
Coming now
Read
19/07/2017
12:23 AM
94
Guy or girl? Can u give me a blowjob hehe? [address provided which is 50 m from accused’s address]
Sent
19/07/2017
12:23 AM
95
I'm here
Read
19/07/2017
12:45 AM
96
Ok
Sent
19/07/2017
12:46 AM
97
In white car
Read
19/07/2017
12:47 AM
As to count 2 the prosecution allege that JS requested $550 worth of MDMA from the accused on 1 August 2017 however he indicated he was obtaining it the next day. On 2 August 2017 at 11.16am the accused asked whether it was ‘all good for later yea?’ and at 8.33pm the accused asked for details of her address and at 8.43pm indicated he would be there in ‘5’. It is alleged that the messages over the two day period are evidence of an offer or agreement to sell $550 worth of MDMA, an agreement to transport it to her and evidence that he did transport the controlled drug to her. For ostensibly the same reasons outlined for count 1 the prosecution allege that the reference in the message to ‘Mdna’ by JS was and was understood by the accused to be, a reference to MDMA and that the accused’s offer to sell was a genuine offer and that further he did in fact transport MDMA to her. The details of messages 120-147 are as follows:
120
Hey baby
Read
2:22 PM
1/08/2017
121
Hey what's up
Sent
2:45 PM
1/08/2017
122
What time u finish work baby
Read
2:46 PM
1/08/2017
123
4:30, whys that
Sent
2:46 PM
1/08/2017
124
OK I need 550
Read
4:48 PM
1/08/2017
125
What u mean u need 550
Sent
4:49 PM
1/08/2017
126
Mdna
Read
4:49 PM
1/08/2017
127
Call me
Read
4:50 PM
1/08/2017
128
I'm getting it later! I have footy training
Sent
4:50 PM
1/08/2017
129
Tomorrow?
Sent
5:20 PM
1/08/2017
130
Tonight
Read
7:58 PM
1/08/2017
131
I'm getting it tomorrow!
Sent
7:59 PM
1/08/2017
132
What time
Read
8:41 PM
1/08/2017
133
Tomorrow after work ! 6:30 ish
Sent
8:42 PM
1/08/2017
134
All good for later yea?
Sent
11:16 AM
2/08/2017
135
Will u Be by urself ? Would love a blowjob ;) hehe
Sent
6:14 PM
2/08/2017
136
Send me your address
Sent
8:33 PM
2/08/2017
137
near 22 ……(address provided in text)
Read
8:38 PM
2/08/2017
138
Sorry there my address meet me at the front off, 22
Read
8:39 PM
2/08/2017
139
Ok that's a diff address than last time
Sent
8:39 PM
2/08/2017
140
Stay in u car and I come to u call me text. Me when u here
Read
8:40 PM
2/08/2017
141
And yes
Read
8:40 PM
2/08/2017
142
I'm with a mate
Sent
8:41 PM
2/08/2017
143
Oh ok
Sent
8:41 PM
2/08/2017
144
OK come meet me on the said(sic) off(sic) the house between
22 and 22 a is the black gate betweenRead
8:42 PM
2/08/2017
145
Ok
Sent
8:42 PM
2/08/2017
146
How long u u(sic) gonna be here
Read
8:42 PM
2/08/2017
147
5
Sent
8:43 PM
2/08/2017
Discreditable conduct
A discreditable conduct notice was filed by the prosecution. The prosecution indicated it relied on the evidence of texts sent and received by the accused as detailed in P5, the evidence of the cash and cocaine located in his bedroom and evidence of photos of the accused holding substances consistent in appearance with being a controlled drug. This evidence was said to demonstrate that the accused was in the business of dealing drugs and that he had a tendency to sell drugs as part of that business, including MDMA. It was further submitted it was also admissible to demonstrate he was in the business of selling MDMA in particular and not simply drugs in general and that fact also made it more likely he was selling MDMA as alleged in count 1 and 2. This was also said to form a basis for the cross-admissibility of counts 1 and 2.
Evidence demonstrating the accused’s interest in MDMA may also be relevant to whether the controlled drug the subject of the two counts was MDMA and whether any offer on his part was genuine in that he intended to sell MDMA irrespective of whether the substance was in fact MDMA or a controlled drug.
The messages were also said to be admissible for a purpose which did not rely on any propensity on the part of the accused. The evidence of the texts was also relevant to show he had knowledge of the difference between MDMA and cocaine, he genuinely believed he had access to MDMA, to contextualise the messages the subject of counts 1 and 2 and more particularly to explain the terminology used or understood by the accused in the messages relied on to prove counts 1 and 2.[39]
[39] T55.
The evidence of the cocaine in his possession was also relevant to show he had knowledge of the difference between MDMA and cocaine and it is also I consider relevant to whether he genuinely believed he had access to MDMA.
Any reliance on message 58 was expressly abandoned by the prosecution in the course of the trial and messages 66-67 related solely to identifying the accused as the user of the phone. In light of the agreed facts this is not an issue. I make no further reference to those messages.
There was no objection to the admissibility of this evidence however in the course of the trial the use of some of the earlier messages as evidence of a business was questioned by the accused.[40] I will therefore deal with the admissibility of that evidence for that use.
[40] T76.
The test of admissibility for the earlier messages
Notwithstanding issues raised by Abrahamson v The Queen[41] I proceed on the basis that the test to be satisfied is the same irrespective of whether the trial is before a jury or a judge sitting alone. If the use to be made of the discreditable conduct evidence does not rely on propensity or disposition of the accused then I must be satisfied that the probative value of the evidence admitted for the permissible use substantially outweighs any prejudicial effect it may have on the accused. If the permissible use does rely on a particular propensity or disposition of the accused I must also be satisfied that the evidence has strong probative value having regard to the particular issue or issues arising at trial. I will also have regard to the consideration referred to in s 34P(3) prior to determining whether the evidence will be admitted for a particular purpose.
[41] (1994) 63 SASR 139 King CJ in the context of determining whether admissible evidence ought to be excluded on the basis the prejudice outweighed its probative value considered the fact the trial was before a judge and not a jury was relevant to the exercise of the discretion. King CJ was not, however, considering a test of admissibility.
I further proceed on the basis any evidence said to be relevant for the purpose of demonstrating that the accused has an interest in drugs or is in the business of selling drugs and in particular MDMA must satisfy the test in s 34P(2)(b).
Exhibit P5- the earlier messages
Exhibit P5 provides the details of 156 messages on the accused’s phone and each message is given a number. Most are SMS but four are MMS. I will refer to the messages by their message number. The messages spanned a time frame between 30 December 2016 and 6 August 2017. Within the 156 messages there are approximately 21 ‘conversations’ although some are spread over several hours.[42] Even if more than two people are involved in a collection of messages I have, for the purposes of considering admissibility and use, considered the text messages as one conversation if there is a possible connection or interrelationship between the messages. The names attributed to the other party to the message by the accused’s phone have been changed in these reasons but will still identify when the same person is conversing by message with the accused.
[42] See Annexure A for a list of the conversations and the calls within that conversation.
Whilst an isolated previous act may, depending on the nature of the propensity it discloses and the issues at the trial, have strong probative value (e.g. see reasoning in R v Pfennig),[43] a delay between a previous act and the current offending may impact upon its probative value.
[43] (1995) 182 CLR 461.
In Harriman v The Queen Brennan J observed:[44]
In determining whether or not evidence of participation can support such an inference, regard must be had to the extent and duration of past participation, the proximity in time between the past participation and the offence charged and the whole of the circumstances of the case.
[44] (1989) 167 CLR 590, 595 at [9].
In R v C, CA Kourakis CJ observed (Anderson J agreeing):[45]
Of course, even in conduct of that kind the temporal and other circumstantial connections between the discreditable conduct and the offence charged may show that they are both aspects of an ongoing single criminal enterprise.
[45] [2013] SASCFC 137 at [79], see also BNM v The Queen [2020] SASCFC 10.
I do not consider the ‘earlier messages’ between 30 December 2016 and 16 April 2017 (messages 1 – 14) can be used to demonstrate that the accused was in the business of selling drugs in general or MDMA at the time of counts 1 and 2. The interval of approximately two months between message 14 (16 April 2017) and message 15 (9 June 2017) is of itself significant. There is no evidence of any transaction or other relevant message during that time. Whilst not itself determinative, that interval does not suggest, in the circumstances of this case, a continuous business on his part which then included the acts in counts 1 and 2.
Secondly, the content of the earlier messages is not strongly probative evidence of an ongoing business selling MDMA or even a relevant relationship between the accused and JS as to MDMA. Message 1 is the only message which refers directly to ‘Mdma’. On 30 December 2016 the accused states ‘can get some Mdma lolls from Natho, Mossy still want?’. This message is equally consistent with supply. The accused in message 12 on 26 January 2017 states ‘4 grams for 1100’. Whilst it is open to infer this is the price for 4 g of a controlled drug the type of drug is unknown and whether the accused is offering a drug at that price is unknown. Message 14 on 16 April 2017- ‘If you need rack come see me’ appears to be an offer of cocaine but it is a single message with no responses and no prices. It is not inconsistent with supply. None of the messages involve JS.
The evidence demonstrates offers to distribute controlled substances but not with sufficient frequency or proximity to the charged counts and not with sufficient relevance to the charged counts to be used as evidence of a continuous tendency or disposition to sell MDMA. This evidence does not therefore have the strong probative value required to be admissible for the use advocated by the prosecution. Messages 1-14 will not therefore be admitted for the purpose of demonstrating the accused was in the business of distributing MDMA or cocaine prior to June 2017 as evidence of an ongoing business in the distribution of either MDMA or cocaine or both which of itself makes it more likely the accused was also in the business of distributing MDMA in and at the time of, counts 1 and 2.
I consider messages 2-4 could relate to anything and message 13 is a single message to the accused indicating the sender has some ‘ills’(sic). I do not consider they have any relevance to the issues in this trial and I disregard them, as I do message 12.
Messages 1, 5-11 and 14 are however admissible for a different purpose. The time interval between those messages and the charged offences does not diminish the relevance of those messages to the state of his knowledge about such drugs, his belief he has access to MDMA and his use of terminology in June-July 2017. The accused made no suggestion to the contrary however I indicate I would have found those messages admissible for those uses.
As to the remainder of the discreditable conduct evidence its admissibility was not challenged and I indicate I would nonetheless have been satisfied it was admissible. The uses will be considered below.
Elements of the offence
The first element which must be proved is that MDMA (3,4-methylenedioxymethylamphetamine) is a controlled drug. This was not in dispute. I am satisfied beyond reasonable doubt that it is a controlled drug.
The second element, in the context of this trial is that it was the accused who sent and received the messages referred to in P5.
In relation to count 1 I must be satisfied that it was the accused sending and receiving the messages between message numbers 68 and 97 (conversation 17).
In relation to count 2 I must be satisfied that it was the accused sending and receiving the messages between message numbers 120 and 147(conversation 19).
This element was not in dispute. In light of the agreed fact that the phone from which these messages were extracted was the accused’s phone, that it was used by the accused and that the messages outlined in the table tendered (P5) were sent by the accused I am satisfied beyond reasonable doubt that the accused sent the relevant messages the subject of counts 1 and 2.
The third element is that the accused trafficked in a controlled drug. This element raises a number of evidentiary issues however it is first necessary to determine whether this element can be satisfied in circumstances in which the accused offers or agrees to sell MDMA or takes part in the sale of MDMA by negotiating the price, the amount and where and when the transaction will occur when he;
i)believes he has possession or access to a controlled drug or intends to conduct the transaction with a controlled drug but it is not proved beyond reasonable doubt that he does in fact possess or have immediate access to a substance which is a controlled drug, or
ii)believes he does not have a controlled drug and has no intention of selling a substance which is a controlled drug.
I consider the answer to the first question is yes.
Notwithstanding interstate authority dealing with comparable legislation has determined that an accused can be guilty of the offence even if there is no intention to sell a controlled drug and the only intention is to ‘rip-off’ the intended buyer [46] I do not consider it is necessary for me to answer the second question in light of the evidentiary findings I make below.
[46] R v Peirce (1994) 90 A Crim R 134; Dendic& Mazzeo v R (1987) 34 A Crim R 40; R v Swan [2003] NSWCCA 318; Aoun v R [2011] NSWCCA 284, [44-[46].
Whilst the accused initially submitted that it was necessary for the prosecution to prove that a completed sale of a controlled drug had occurred, in subsequent submissions to the court the submission was abandoned. Both counsel accepted that the offence of trafficking in a controlled drug could be committed by an offer to sell a controlled drug even if the person making the offer was not in possession of a controlled drug and even if the person making the offer did not have access to a controlled drug at the time of the making of the offer or agreement. I consider the concession is rightly made and I outline my reasons for that below.
I consider that ‘offer or agree to sell a controlled drug’ could be interpreted in one of two ways. Either it requires the offer to relate to a controlled drug which is physically present in the same sense in which a completed transaction involving a controlled drug would require a controlled drug physically changing hands or it simply requires an offer which has as its subject a controlled drug. The latter interpretation directs the focus to the act of offering (or agreeing) and provided the subject of the offer is a controlled drug the element is satisfied.
Firstly, the evident purpose of the legislation is to ensure liability for a wide range of conduct. As was acknowledged by the Court of Appeal in 1997, the wide ambit of the statutory concept of process of sale ‘may not leave much room in practice for an intending drug dealer to develop his or her plans without infringing the statute.’[47]
[47] Questions of Law Reserved on Acquittal (No 1 of 1996) (1997) 68 SASR 117 at 122.
While it may be accepted that reliance by the prosecution on a pathway which involves possession with an intention to sell or a completed transaction (as distinct from an offer or agreement to sell) will require proof of the existence of a controlled drug, the same will not apply if a different factual basis is relied on. In some instances it will not be necessary to prove the existence or physical presence of a controlled drug. It will depend on the legal pathway relied on and the factual basis alleged by the prosecution. The need to consider the particular pathway to guilt was implicitly acknowledged by Doyle CJ in R v Tennant:[48]
Subject to the operation of ss 4(5)(e) and 4(5)(f) (not relied on in this case), my tentative opinion is that a person takes part in the process of sale for the purposes of s 4(5) only if, in the situations referred to in s 4(5), the controlled drug exists. That is not to say that there might not be situations in which one could be said to take part in the process of sale of a controlled drug, despite the fact that the drug does not yet exist. A person might enter into a contract for the sale of a specified quantity of a controlled drug, yet to be acquired by the seller, or yet to be produced by the seller. That is not the present situation. (my emphasis)
[48] (2010) 107 SASR 504 at [56].
It must also be borne in mind that the prosecution in R v Tennant alleged the accused possessed the substance for sale. There was no consideration of how reliance on ‘an offer or agreement to sell’ to prove the charge may further extend the reach of the section.
Secondly, the words of the extended definition of sell are unambiguous. Sell is defined in s 4 of the Controlled Substances Act 1984 (SA) as “sell, barter or exchange, offer or agree to sell, barter, exchange or expose for sale, barter or exchange”.
The inclusion of ‘expose for sale, barter or exchange’ is significant. This requires a controlled drug to be ‘exposed’. This therefore incorporates a physical element to the actus reus in the sense there must be a controlled drug to expose. To expose for sale and to offer for sale capture the same conduct if both require the controlled drug to be physically present or possessed. To give each aspect of the definition work to do, ‘offer to sell’ must necessarily be intended to capture different conduct.
The definition therefore provides that an alternative focus of the transaction can be the offer rather than the exchange of the controlled drug for payment or its physical exposure. The actus reus is the making of an offer in relation to a substance which is a controlled drug.
Whether there must be proof of the existence of a controlled drug will depend on which limb or element of the definition of ‘traffic’ is relied upon and the specific pathway to guilt relied upon by the prosecution. For example, if it is alleged that the accused had possession of a controlled drug with an intention to sell it, then plainly the controlled drug must exist. It cannot be possessed if it does not exist. If it is alleged the accused took part in the sale by ordering a drug intending to sell it, when that controlled drug is yet to exist at the time of his conduct, he is still guilty of taking part in the process of sale. There is thus no absolute requirement that the existence of a particular controlled drug be proved before the offence of trafficking can be committed.
Thirdly, New South Wales authority is of assistance on this point. The New South Wales legislation reflects, in material respects, the South Australian provision. Whilst the offence in New South Wales is one of supply a controlled drug, the definition of supply in the relevant Act ‘includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things…’. The word ‘sell’ is then relevantly defined in part as ‘includes sell whether by wholesale or retail and barter and exchange, and also includes dealing in, agreeing to sell, or offering or exposing for sale, or keeping or having in possession for sale…’. In New South Wales and Victoria when ‘traffic’ or ‘supply’ includes ‘offer for sale’, it is the making of the offer which is the criminal conduct and the necessary intention is therefore ‘bound up with the making of the offer itself.’ ‘It must be a genuine offer made with the intention that it be regarded as genuine by the offeree’.[49]
[49] Aoun v R [2011] NSWCCA 284, [44-[45] "The charge under Sequence 4 to which the Applicant pleaded guilty was based upon an offer to supply. The relevant intention that must be proved where there is a charge of supply involving an offer to supply is the intention inherent in the making of the offer. It must be a genuine offer made with the intention that it be regarded as genuine by the offeree. The intention required to bring conduct within this part of the definition does not involve any intention of ultimate supply – the intention is bound up with the making of the offer itself: R v Dendic; R v Mazzeo (1987) 34 A Crim R 40 at 45; R v Addison (1993) 70 A Crim R at 217; R v Swan [2003] NSWCCA 318; 140 A Crim R 243 at 246-247 [12]-[18]. A prosecution for supply based upon an offer for supply does not, of course, involve an actual supply. Nor does it involve an offender who has a prohibited drug in possession for supply, a different form of supply contained within the extended definition in s 3(1) DMT Act." See also R v Pierce (1994) 90 A Crim R 134.
For reasons outlined by the High Court in R v Falzon[50] I do not consider the differences in the legislation permit a different interpretation to the meaning of ‘sell’. I have therefore included as an element of the offence the requirement that I be satisfied that the accused has made a genuine offer or agreement with the intention that it be regarded as genuine by JS.
[50] Albeit in the context of referring to the obligation on appellate courts the High Court in R v Falzon (2018) 264 CLR 361, [49] emphasised again that Australian intermediate appellate courts are bound to follow the decisions of other Australian intermediate appellate courts in both matters of statutory interpretation and matters of common law unless persuaded those decisions are plainly wrong.
Lastly it may be said that the inclusion of a requirement that the accused believes he has possession or access to a controlled drug or that he intends to conduct the transaction with a controlled drug is inconsistent with interstate authority and requires an intention or belief to be inserted into the elements when the definitions do not provide for it. There would be force to such criticisms however I have made evidentiary findings as to this element as I consider there is also force to the argument that such a belief or intention better reflects the purpose of the legislation and the need for the actus reus to be accompanied by an intention or knowledge commensurate with the criminal sanction provided by the Act. Whilst deceiving would be buyers of drugs requires criminal sanction the issue is whether this Act is the vehicle by which that should occur. If I am wrong the accused has not been disadvantaged and the prosecution did not in any event suggest I should convict on the basis this was an intended ‘rip-off’.
I am mindful that this issue does not appear to have been considered by the Full Court so I have indicated the specific findings I have made on matters which may otherwise not have been necessary. In the discussion which follows I have made findings beyond reasonable doubt as to the following;
a)Whether the accused offered or agreed to sell a substance or take part in the process of sale of a substance by negotiating and agreeing the price, the amount and the place of the transaction;
b)Whether the substance the subject of the offer and negotiations was a controlled drug;
c)Whether the controlled drug was MDMA;
d)Whether the accused believed he had access or possession of MDMA or intended to conduct the transaction he was negotiating or offering or agreeing to make;
e)Whether the accused intended that JS regard the offer or agreement as genuine;
f)If the element does in fact require possession or access to a specific substance which is MDMA, whether the evidence proves beyond reasonable doubt that the accused had possession of or access to MDMA at the time of the offer or agreement to sell in counts 1 and 2;
g)Whether the accused transported a controlled drug, namely MDMA, for the purpose of it being sold to JS in count 2.
The fourth element of trafficking is that the accused knew or was reckless as to the fact the substance was a controlled drug. I consider this element therefore requires proof, in the circumstances of this case, that the accused knew or believed he was offering to sell a controlled drug or was reckless as to the fact, that is, that he knew MDMA was a controlled drug or an illegal drug.
I have considered whether the requirement of knowledge may inform the nature of the actus reus to be proved however I do not consider that to be the case. That is, this element does not itself assist to define the acts which may constitute the offence. The requirement of knowledge does not by implication require the existence of a specific controlled drug or its possession or accessibility by the accused. The actus reus must be defined first and then this mental element applied to those acts. I will consider whether this element is proved when considering each count.
Discussion and findings as to counts 1 and 2
The use to be made of the discreditable conduct
Evidence of an ongoing business selling drugs or a particular type of drug will frequently be relevant to whether an accused is in possession of drugs found by police and whether any drugs in his possession are intended to be sold. Those are not the issues in this trial. The topic of his conversation with JS, whether it relates to a controlled drug and in particular MDMA, whether he believes he has access to MDMA, whether he intends JS to regard his offer as genuine and whether he believes he is selling MDMA or intends to sell MDMA are the issues in this trial.
I do not accept in the circumstances of this case that a disposition to offer cocaine for sale or to sell cocaine makes it more likely, in and of itself, that the accused would also offer MDMA for sale in the sense that a person willing to sell cocaine is more likely to also be willing to sell MDMA. Whilst an offender who engages in a business in which he is in effect a mobile supermarket or in which he holds himself out as someone who can obtain whatever is requested, then evidence of a willingness to sell one drug may well be relevant to a willingness to sell another type of drug. That is not however this case. The evidence led by the prosecution does not suggest a ‘business’ in the sense that word is frequently used. In the eight weeks between 9 June and 6 August 2017 evidence of 14 ‘conversations’ was led. Of those; six are with JS, six are with JP, one is with his mother and one relates to the accused informing two people he has obtained what would be consistent with an ounce of cocaine. I bear in mind that the cost of an ounce of MDMA was between $1500-$2500 and cocaine is more expensive so such an outlay would not have been inexpensive but the messages only contain an ambiguous invitation for them to join him without reference to any prices or offers to sell.
JP is a person with whom he discusses drugs. On one occasion the accused appears to try to obtain drugs from JP, on another the accused informs JP that he (the accused) has ‘got a few balls sold’, on another JP informs the accused he needs ‘some more coke’ and on another JP asks how much the accused pays for an ounce. The evidence does not therefore support the type of business which may support the type of reasoning the prosecution has suggested is open. The message containing the words ‘got a few balls sold’ only three days after count 2 may be used as evidence directly relevant to whether that count involved such a sale but of itself it does not suggest the type of reasoning advocated by the prosecution is open. I will not reason in that way.
Whilst I do not accept the broadest use advocated by the prosecution I do accept that a more limited use can be made of the evidence which relies on his disposition. I consider that the evidence of his conversations with JS can be used and is relevant to show and explain the relationship between the accused and JS which involved transactions with controlled drugs or at the very least transactions involving substances which he believed to be controlled drugs. The evidence may be used to show an arrangement between the accused and JS in which she is able to ask to buy drugs from him and he is willing to sell them to her. There is sufficient habituality to their transactions at a time proximate to counts 1 and 2 to demonstrate a willingness or tendency on the accused’s part to offer and sell MDMA to her at the relevant time. That willingness and the arrangement or relationship as evidenced by conversations 11, 12, 15, 17 (count 1), 18 and 19 (count 2) make it more likely that the topic of their conversations in counts 1 and 2 are controlled drugs and in particular that it was one of the controlled drugs that the accused believed he had access to; cocaine or MDMA.[51]
[51] See Annexure A for details of conversations 11,12,15 and 18.
I also consider that the use of the evidence of his interest in cocaine, his knowledge of cocaine and his apparently genuine belief that he has access to cocaine can be described in an alternative manner.[52] These aspects are relevant to contextualising the messages the subject of counts 1 and 2, shedding light on the accused’s use of terminology in the messages which constitute the evidence as to counts 1 and 2, explaining why he understands the requests made by JS and the difference between cocaine and MDMA and why he genuinely believes he has access to controlled drugs.
[52] T72. It is accepted by the accused that his knowledge of cocaine is relevant.
It may be said this use of his interest in cocaine is to explain his terminology, his understanding of their conversation and his belief as to his ability to satisfy any order rather than to rely on his disposition or tendency to act in a particular way. If so it could be said the use does not directly rely on a propensity for its probative value however I indicate I am nonetheless satisfied this evidence is admissible for this purpose even if the higher test in s 34P(2)(b) must also be satisfied.
Lastly, the messages relating to MDMA, including the earlier messages, are relevant for the uses identified previously at [41]-[42] of these reasons.
Photos of a substance consistent with the appearance of a controlled substance in the hand of the accused
I accept that the photo in P8 was sent by the accused on 9 June 2017 as a MMS message to two people; JP and NS. (message numbers 16 and 17). P8 showed a brown crystalline substance in a press sealed bag. MDMA in crystalline or granular form can vary from a light brown to a brown powder or crystal type material.[53]
[53] T39.4.
DBS Wall could not identify the substance pictured in P8 although when asked what it was similar to in appearance he said ‘could be amphetamine or probably be MDMA’.[54] In his experience cocaine has a different appearance to amphetamine and MDMA. He was not cross-examined on this evidence.
[54] T40.17.
After the accused sent the photo in P8 to JP and NS they each responded with messages saying ‘Md?’ and ‘Md!’. The accused responded to those messages and whilst the accused’s responses did not involve recognisable words, I accept the nature of the responses did not indicate disagreement by the accused to their suggestions.
DBS Wall also gave unchallenged evidence that Md is a shortened version of MDMA ‘especially if surrounded by other communications that was(sic) consistent with that’. I accept that evidence. That evidence is relevant to the accused’s interest in MDMA, his belief that he had access to MDMA, the use of Md as terminology within his circles to describe MDMA and whether the accused did in fact have access to MDMA.
The photo in P10 had been sent as a MMS message to the accused on 5 July 2017 by JP (message number 28). P10 showed a crystal or rock like substance. The arm holding the substance in P10 has a tattoo on it. It is an agreed fact that P11 is a photo of the accused’s arm and that photo shows the tattoo on the accused’s arm. Whilst P10 and P11 are taken at different angles and that makes the comparison more difficult there are many significant similarities and no obvious difference that I can discern between the tattoos in each photo. It is a photo sent between the accused and JP-a person with whom the accused shares his interest in controlled drugs, it is found on the accused’s phone, the tattoo in each is not dissimilar and he has in other messages indicated he has access to and possession of a substance he refers to as a ‘rock’. I am satisfied it is a photo of the accused holding a crystal or rock like substance. This evidence is relevant to his belief that he has access to controlled drugs and to potentially explain his messages with JS. While it is unlikely to be MDMA, I consider that evidence of his belief that he has access to a controlled drug on 5 July 2017 is relevant to the genuineness of his belief that he has access to MDMA at the time of counts 1 and 2, some two weeks later. Whilst I acknowledge that access to one controlled drug does not guarantee access to another controlled drug, I am nonetheless satisfied that the ability to access one type of drug at least increases the likelihood of other types also being accessible- whether directly from the same source or indirectly through a connected source.
$6470 located in his bedroom on 8 August 2017
Its use as evidence of previous sales proximate to the commission of count 1 on 20 July and count 2 on 2 August 2017 was not in dispute.
About $2500 was in $50 denominations. The number of $50 notes is I consider of little moment and their presence is not incriminating. Some could have originated from the bank and some from other sources.
When interviewed by police the accused provide an explanation for $3900 of this money. He provided an explanation for its provenance. No evidence was led to contradict that explanation. I accept it is a reasonable explanation for the provenance of that money. As to the other $2570 I note in message 148 on 5 August 2017 he informs JP that he ‘Got a few balls sold’. This is consistent with the terminology for weights at which controlled drugs are sold and the accused sends that message to JP- a person the accused has previously conversed with on the topic of drugs. This message is also three days after count 2 in which the accused agrees to provide a substance to JS for $550. For the reasons that follow I am satisfied some, even if not all, of the remaining $2570 was derived from past sales of controlled drugs.
Possession of cocaine on 8 August 2017
I am satisfied the accused was in possession on the cocaine in his room. This was not disputed. Its use is as evidence of his interest in cocaine, his knowledge of cocaine and his ability to distinguish between it and other controlled drugs, whether the accused has access to cocaine and MDMA and as to whether he genuinely believed he had access to controlled drugs and in particular MDMA.
Warnings
I have already indicated I will not reason in particular ways. I further indicate I have only used the discreditable conduct evidence for the permissible purposes I have identified. In relation to evidence which demonstrates the accused’s interest in MDMA, his interest in cocaine, his possession of cocaine, a relationship in which he sells or offers to sell MDMA or cocaine to JS, his admission to having sold drugs to unknown people or any distribution of drugs, I have warned myself not to reason that the accused is therefore a person of bad character and likely or more likely to commit criminal acts including the offences for which he is charged. I have warned myself that the fact that person has broken the law in one instance does not mean that person is therefore likely or more likely to break the law on another occasion.
In relation to the discreditable conduct which does not rely on a tendency or propensity on the part of the accused I indicate I have only used the evidence for the uses I have identified and that I have not used that evidence to reason that the accused is a person who is therefore likely or more likely to commit offences of the kind with which he is charged.
Third and fourth elements-trafficking and knowledge
Prior to count 1 the accused uses the descriptor ‘MDMA’ on 2 occasions -in December 2016 (message 1) when he refers to his ability to get ‘Mdma lolls’ and on 7 July 2017 in the first recorded interchange with JS when he offers her ‘MDMA’. The accused’s use of the initials for the drug as distinct from some other slang pseudonym for this drug is significant. Even when referring to ‘lolls’ he does so by also referring to the initials ‘Mdma’.
This use of initials also occurred in conversation 7 in relation to the photo in P8 sent by the accused on 9 June 2017as a MMS message to two people; JP and NS. As I have previously indicated, the brown crystalline substance in P8 is not inconsistent with MDMA and after the accused sent the photo to JP and NS they each responded with messages saying ‘Md?’ and ‘Md!’. The accused’s responses do not indicate any disagreement as to their descriptions or a request for clarification of what they meant.
The evidence of DBS Wall that ‘Md’ is a shortened version of MDMA ‘especially if surrounded by other communications that was(sic) consistent with that’ was not challenged. Whilst his subsequent comment is I consider a matter of common-sense rather than expert evidence, his evidence that Md is, in his experience, a shortened version of MDMA is important. He did not give evidence that this is a name for a different substance. I accept his evidence on this issue.
I further note DBS Wall could not identify the substance pictured in Exhibit P8 but when asked what it was similar to in appearance he said ‘could be amphetamine or probably be MDMA’.[55] In his experience cocaine has a different appearance to amphetamine and MDMA.
[55] T40.17.
The accused also refers to cocaine or receives messages where cocaine is referred to by names by which it is commonly referred; rack (message 14), coke (message 26), mother of pearl (message 149). It appears that different terminology is used and understood by the accused to differentiate between cocaine and MDMA.
The photo in P8 is also consistent with the accused having an interest in MDMA and access to a substance he believes is MDMA at a time proximate to the messages with JS beginning.
I am satisfied that prior to the messages with JS beginning the accused’s messages suggest familiarity with and knowledge of MDMA and cocaine.
The messages with JS leading up to count 1.
In conversation 11 on 7 July 2017 the accused offers ‘MDMA’ to JS but she declines on the basis she does not ‘do MDMA’. JS appears to be asking for $100 and the accused replies she could sell it as he does not have 100 although he could give her 50. JS then messages the accused two hours later and says her ‘friend want some’. She asks about the ‘piece’ although this may be a request for the price. The accused asks if she has snapchat saying ‘I don’t talk on here’. I note that DBS Wall gave evidence that snapchat provides a level of encryption and security for its users.
JS says she does not and asks if he can ‘bring hb’. He clarifies this means a ‘Half’ and she clarifies that it is a half ‘B’ and then further clarifies she means 1.75. An 8 ball is also known as a ball and is 1/8th of an ounce or 3.75g and a half ball is 1.75g. The evidence of DBS Wall as to the use of the term ‘hb’ by those in the drug trade to describe 1.75g of a controlled drug was not challenged. The accused then says ‘ok’.
In conversation 12 on 8 July 2017 JS contacts the accused. There appears to be some confusion on the accused’s part and when JS asks finally ‘Do you have a good rock?’, there is no response from the accused. Later that day the accused in conversation 13 attempts to obtain a ‘g’ of an unknown substance from JP however it is not possible to determine whether this request is related to JS’s request. Most of the accused’s messages are unanswered and there is simply no evidence that he was successful.
In conversation 15 on 12 July 2017 JS contacts the accused and says she ‘want to try u rock.’ He replies ‘the md rock?’ and she says ‘the rock’ and then clarifies by saying ‘Not m’. He responds ‘That’s the only rock I got’ and he then asks ‘Does your friend need anymore’. She replies ‘Not ATM’ and the conversation finishes. I note this conversation occurs seven days after the photo of the accused holding a rock like substance in P10 is sent to the accused by JP and rock is a common name for amphetamine or cocaine but not MDMA. In any event, the accused clearly does not have the rock she wants but refers to having ‘md’ rock in the context of asking whether her friend wants anymore. This is entirely consistent with the accused referring back to conversation 11 and his agreement to sell MDMA to JS for her friend. This further confirms he uses the shorthand descriptor Md when referencing MDMA and she also adopted the use of shorthand initials when referencing MDMA.
As to the nature of their conversations at this point I note that in messages 11 and 15 the item JS is interested in is obviously not readily available from shops and the accused would prefer to speak about it using an app which provides encryption and security. Both aspects are therefore consistent with the topic of conversation being an illicit substance. In light of this evidence and the evidence of his prior interest in MDMA, his belief he has access to MDMA, his reference to MDMA in message 11, the fact he does not want to talk about this subject by normal SMS text and the terminology used and understood by him as regards the amount of the item JS said her friend wanted, I am satisfied that in conversation 11 he agreed to sell 1.75 g of a substance he believed was a controlled drug, namely MDMA.
I am further satisfied, in light of the nature of their conversations, his interest in MDMA, the evidence of DBS Wall as to the use of the term Md, the other evidence of the use of initials by the accused and the evidence of the use of the term Md by the accused and people known by him in conversation 7 that his reference to ‘Md’ and her reference to ‘m’ in conversation 15 are references by them to MDMA.
Whilst I do not consider the above findings are indispensable intermediate steps in the chain of reasoning I have indicated I am nonetheless satisfied, beyond reasonable doubt, of those facts.
The accused’s question in conversation 15 wherein he asks if her friend wants ‘anymore’ is also consistent with him delivering a substance to her as a result of conversation 11.
Count 1 (conversation 17 on 19-20 July 2017)
The details of this conversation are provided in full earlier in the reasons. The reference to JS’s friend being the intended recipient, the reference to her friend needing something and that she wants it to be dropped off are only consistent with the accused understanding he was being asked to provide something. Similarly, the defendant asking ‘How much u need’ is only consistent with him knowing he is being asked to supply something. I am satisfied the accused knew that.
The item being requested was not readily available from the shops and the accused had to supply it. The quantity of the item requested, ‘8b’, is consistent with terminology used to purchase controlled drugs. The accused gives the meeting point as an address 50 metres from his house. This is consistent with the accused wanting to introduce some distance between his residence and the transaction. His reluctance to meet at his house is also consistent with the conversation being about controlled drugs.
DBS Wall gave evidence that $500 was the approximate price for an 8 ball (3.75g) of MDMA at that time. I am satisfied that when asked ‘How Much’ and the accused replies ‘5’ and when asked ‘5 what’ he replies ‘500’ the accused was quoting a price of $500 for the ‘8b’.
I am satisfied the combination of asking ‘how much you need’ and then later giving her a price amounts to an offer. I am further satisfied he also agreed to sell that item by further asking ‘want it’ and then indicating she should not be late and then providing her with an address near his house for the transaction to occur.
This offer was not made to a stranger. The accused’s communications with JS indicate there is some personal relationship between them. When considered as whole there is no suggestion the accused is anything but genuine in his communications with her. Further, whilst he does not agree to meet at his house he does agree to meet near his house. It is unlikely he would do so if he had no intention of conducting the transaction or he did not genuinely believe he had possession of or access to the substance he is offering and agreeing to sell. The other evidence that he believes he has access to MDMA includes offers made to friends in message 1, sending the photo in P8 and his subsequent conversation with those people and his direct offer to JS in conversation 11 to give her MDMA so she can sell it. I am satisfied he believed he had access to MDMA. In light of this belief, evidence of his willingness to offer her MDMA and the evidence consistent with a previous transaction having occurred I am satisfied he intended JS to regard his offer and agreement to sell as genuine and further that he believed he had access to or possession of the controlled drug he was offering and agreeing to sell.
The statement by JS to the effect she had arrived and was in a white car cannot be used for the truth of it. Whilst I would have expected other messages if she had not arrived I am not prepared to use the absence of other messages in P5 as an implied acceptance by the accused of the truth of those assertions, in the absence of evidence that there were no phone calls between them after that time and that they had no other means of communication. I am however able to use the accused’s question in conversation 18 with JS at message 106 on 21 July 2017; ‘The same stuff as the other night’ to infer beyond reasonable doubt that the accused did in fact exchange a substance for money as a result of the agreement he made in count 1.
I reject the possibility that this agreement to meet was solely for the purpose of a sexual liaison. Whilst this may have been an aspect of his motivation for the meeting, his invitation in this regard was I find ancillary to the primary purpose of agreeing to sell a controlled drug and arranging a meeting to conduct the transaction.
I also reject the defence submission that the terms of the messages are too ambiguous to determine the nature of their meaning. When considered as a whole I am satisfied of their meaning beyond reasonable doubt. I have previously indicated I am satisfied the use by the accused and JS of the term ‘md’ in conversation 15 was a reference to MDMA and was understood by each of them to be so. That finding is obviously relevant to the topic of this conversation in light of the use of that same term by JS and the fact the accused did not need to ask for any clarification of that term.
In light of the evidence previously discussed including evidence of his interest in MDMA and his belief he had access to MDMA, the reference by JS to ‘my friend’ in this conversation and the connection between her ‘friend’ and asking for ‘MDMA’ in conversation 11, the terms used in conversations 11 and 15, the nature of their arrangement as demonstrated in messages 11 and 15 and his willingness to offer her MDMA, the item being described as ‘md’ in this conversation and the evidence of his previous use of the descriptor Md and his friends use of that descriptor and her adoption of the use of initials in conversation 15 when speaking about MDMA, I am satisfied beyond reasonable doubt that;
1the accused’s acts satisfy both the definition of sell a controlled drug by offering or agreeing to sell a controlled drug and the definition of take part in the process of sale of a controlled drug. I am satisfied he did offer to sell and agree to sell a controlled drug and he did negotiate a price and a place for that transaction to occur;
2the controlled drug the subject of the offer, agreement and negotiations was MDMA and the accused knew that;
3the accused intended that JS would regard the offer or agreement as genuine;
4the accused believed he had possession of MDMA at the time of the offer and agreement and he intended to conduct the transaction he was negotiating or offering or agreeing to make.
5the accused knew he was offering and agreeing to sell and negotiate about an illicit substance and in particular a controlled drug;
6the accused did possess and provide a substance to JS that night.
In conversation 18 on 21 July 2017 JS messages the accused and indicates she is after ‘rock’. She appears to suggest she has money for herself to buy it when she says ‘I got thing for me’. She asks if the accused can do it for her which may suggest she is not certain he has access to what she wants. He then asks ‘the same stuff as the other night?’ which is consistent with being a reference to the previous transaction in count 1. JS responds ‘No not mdn’. I am satisfied her reference to mdn is a reference to the substance the subject of count 1. I have taken into account the reference to ‘the other night’, that he has offered her MDMA previously and there is a basis for her to believe he has access to MDMA, the use of initials to describe the drug consistent with previous messages and the understanding they appear to have. Finally I also note that the letter ‘n’ is next to the letter ‘m’ on the keyboard and could easily be pressed by mistake. The accused does not correct her but appears to understand her declining any ‘mdn’ by then replying that he can ‘only get it by the oz’. When JS asks for the price of an Aussie (slang for an ounce) of what she is asking for, the accused replies ‘$5100’.
This conversation is therefore consistent with JS not wanting MDMA but wanting a drug which is referred to as rock, which is sold in ounces and which costs $5100. There was no evidence as to the price for an ounce of cocaine however there was evidence an ounce of MDMA was up to $2500 and cocaine was more expensive. There was also evidence cocaine is referred to as rock and there is evidence the accused has access to cocaine and substances in rock form. In light of their other known conversations about drugs I consider it is likely JS was aware that the accused may also have access to cocaine.
Count 2 (conversation 19) on 1-2 August 2017
I will not repeat all that I have said previously as to particular findings I have made. Much of it applies equally to this count. I have had regard to the evidence of his interest in MDMA, the nature of his agreement with JS and his willingness to offer her MDMA, his belief he has access to MDMA and that they have had previous dealings with each other as regards drugs. This latter point in particular is relevant to whether the accused intended JS to regard any offer or agreement as genuine and whether he intended to complete the transaction he agreed to undertake.
I will however ensure I consider the evidence on this count separately and I remind myself that simply because I have found he offered MDMA for sale and agreed to sell MDMA previously does not mean he did so on this occasion.
At 4.48pm on 1 August 2017 JS indicates she needs ‘550’ and the accused asks ‘what you mean u need 550’. She replies ‘Mdna’ and asks him to call her. I am satisfied on the basis of findings I have referred to above that this is a typographical error and that she is referring to MDMA and that the accused understood that to be the case. She made the same mistake in conversation 18 after the accused’s reference to ‘the same stuff as the other night?’ and she replied ‘No not mdn’. I have already indicated I am satisfied this was a reference to the substance being discussed in count 1 and that was MDMA. I am therefore satisfied that Mdna is a reference to MDMA. I am satisfied this is the only reasonable inference available from a consideration of conversation 18 and their previous messages, his willingness to offer her MDMA and her knowledge of that fact, his access to a substance he believes to be MDMA and her knowledge of that fact, their use of initials to refer to MDMA, that he indicates he will be collecting the substance tomorrow in circumstances in which there is evidence he believes he has access to MDMA and that the letter ‘n’ is next to the letter ‘m’ on the keyboard and could easily be pressed in error.
Whilst the schedules to the Regulations do not include any reference to Mdna I do not place any weight on that fact. The Regulations only list controlled drugs and that does not of itself preclude the existence of a drug which has not been declared to be a controlled drug or the term Mdna being a slang name for a controlled drug and not therefore being listed as Mdna.
When considering whether the only reasonable or rational inference is that the term ‘Mdna’ is a reference to MDMA I have also considered the absence of any expert evidence as to the existence of a drug named or known as Mdna. I note the accused has no obligation to cross-examine on that topic and that the onus of proving it is a reference to MDMA is on the prosecution. I note that when asked about the term ‘Md’ DBS Wall indicated it was shorthand for MDMA. He did not suggest it could also be shorthand for a drug known as ‘Mdna’ however I do not give this any significant weight. The absence of any direct evidence that there is no drug known as Mdna does not however undermine the combined force of the matters I have referred to above. I am satisfied it is a reference to MDMA.
At 4.50pm the accused replies he is getting it later and that he has ‘footy training’ and at 5.20pm he follows up by asking ‘Tomorrow?’. JS asks at 7.58pm if it can be tonight but he confirms at 8.42pm that he is getting it ‘Tomorrow after work! 6.30ish’. This is the last message of that day.
I am satisfied at this point that the accused has implicitly agreed to sell MDMA to her the following day contingent upon him ‘getting it’ the following day. Whether this is sufficient to satisfy the element of the offence need not be determined in light of what follows.
At 11.16am on 2 August 2017 the accused asks JS ‘All good for later yea?’. There is no response. At 6.14pm he asks if she will be by herself and refers to a sexual act. At 8.33pm he tells JS to ‘send me your address’ which she does. He then indicates at 8.41pm that he is with a mate and at 8.43pm after being asked ‘How long u u gonna be her’ he indicates ‘5’.
I reject the possibility that the subsequent messages on 2 August 2017 are divorced from the earlier messaging on 1 August 2017 and/or that the meeting on 2 August 2017 was solely for the purpose of a sexual liaison. Firstly, earlier in the day at 11.16am he asks, prior to any suggestion of a sexual act, whether it is ‘all good for later yea’. This is the first message sent by the accused after the messages from the previous day ended. There is therefore a continuity to this messaging. Secondly, the accused asks ‘Will u Be by urself?’ before then suggesting a sexual act. He therefore acknowledges there is to be a meeting prior to the reference to a sexual act. If the meeting had already been made for the purpose of a sexual liaison it is also unlikely the accused would need to ask whether she would be by herself. Thirdly, the accused sends a message indicating he is with a mate shortly before they are to meet. This is also unlikely if the sole purpose of the meeting is sexual in nature. I am satisfied any sexual suggestion was ancillary to the primary purpose of agreeing to sell a controlled drug and arranging a meeting to conduct the transaction.
I also reject the defence submission that the terms of the messages are too ambiguous to determine the nature of their meaning.
I am satisfied the accused’s later agreement to attend at her house and his indication he would be there in ‘5’ are a continuation of their discussion the day before. I am further satisfied that over those two days he agreed to sell $550 worth of MDMA to her by indicating she had to wait until he obtained the substance and then asking whether it was ‘all good for later’ and then agreeing to meet her at her house. In light of the manner in which the conversation unfolded with JS initiating the messaging and JS indicating what she wanted and how much she was willing to pay without prompting by the accused I have not made a finding as to whether that amounts to the accused making an offer. My preliminary view is that it may not be however in light of my other findings it is unnecessary to further consider this.
In light of the above and having considered the whole of the evidence I am therefore satisfied beyond reasonable doubt that;
1The accused’s acts satisfy both the definition of sell a controlled drug by agreeing to sell a controlled drug and the definition of take part in the process of sale of a controlled drug. I am satisfied he did agree to sell a controlled drug and he did negotiate a place for that transaction to occur;
2The controlled drug the subject of the agreement and negotiations was MDMA and the accused knew that;
3The accused intended that JS would regard the agreement as genuine;
4The accused believed he had access to and then possession of MDMA at the time of the agreement and he intended to conduct the transaction he was negotiating or agreeing to make;
5The accused knew he was agreeing to sell and negotiate about an illicit substance and in particular a controlled drug.
I note in message 148 on 5 August 2017 he informs JP that he ‘Got a few balls sold’. This message is three days after the discussion with JS in count 2. I further note the money located in the room of the accused on 8 August 2017. In light of this evidence, my findings above and the evidence of his intention to attend at her house and his indication he would be there in ‘5’, I am also satisfied that he did in fact possess and transport a substance he believed to be MDMA to her house and conduct a transaction with her.
My findings above in relation to counts 1 and 2 have incorporated the necessary findings to satisfy the fourth element of each count. So as to avoid any doubt I am satisfied the evidence of his attempts to keep his discussions secret and the evidence of his knowledge of MDMA and cocaine prove beyond reasonable doubt that the accused knew the substances in counts 1 and 2 that he was agreeing to sell, offering for sale or for which he was negotiating the price, the amount and the place of transaction were controlled drugs and that he knew the controlled drug was MDMA.
For the above reasons I am therefore satisfied beyond reasonable doubt of each element as to counts 1 and 2.
In case I am wrong as to the elements of the offence I indicate the factual findings I would have made in relation to other aspects.
If the element does in fact require possession or access to a specific substance which is MDMA, am I satisfied the evidence proves beyond reasonable doubt that the accused had possession of or access to MDMA at the time of the offer or agreement to sell in counts 1 and 2.
I am not satisfied that the substance he possessed when transacting counts 1 and 2 was MDMA. I consider it highly likely to have been MDMA but I am not satisfied of that fact beyond reasonable doubt. The absence of evidence that a substance to which he had access or possessed was forensically tested and shown to be MDMA is telling in the circumstances of this case. The evidence was that MDMA pills may have an odour but MDMA is not like cannabis. It does not have an appearance or a particular smell which allows it to be more easily identified and distinguished from other drugs. DBS Wall was unable for example to state whether the substance in photo 8 was MDMA or amphetamine. There is also no evidence that the accused had used the substance he possessed in counts 1 and 2 and described the effects of the drug he possessed. In fact no features of the substance or its effects are described in the relevant messages to allow it to be identified as MDMA beyond reasonable doubt.
I have taken into account the photo in P8 and its similarities to MDMA and his evident belief it was MDMA but in the absence of forensic testing of any substance I am not satisfied that the drug in question could not have been some other drug with similar qualities or even pharmacological effects to MDMA. And even if I was satisfied the substance in P8 was MDMA, his access on 9 June 2017 to MDMA while relevant to whether he had access to MDMA when transacting with JS on 20 July and 2 August 2017 would not alter my view in the absence of evidence that he obtained the substance the subject of counts 1 and 2 from the same source he obtained the drug in P8. I am also not willing to draw an inference beyond reasonable doubt from his proven ability to access cocaine that he would have accessed MDMA on the occasion of counts 1 and 2. The fact I consider access to cocaine may increase the likelihood he can source another type of drug is of itself insufficient to draw this inference beyond reasonable doubt.
I have considered the fact that after count 1 JS offers to buy more. This might suggest she, or whoever used the substance, had no complaints and believed it was MDMA. There are however too many unknowns in this assumption and in any event using her belief to prove the truth of what she believes is impermissible.
If necessary I would also find that I am not satisfied that the substance was a controlled drug. Once it is acknowledged it is possible the substance was in fact a drug other than MDMA, whether that drug is listed in the schedule is simply speculation. Whilst I again accept it is highly likely the substance was, even if not MDMA, a controlled drug, the absence of any evidence as to the number of drugs other than MDMA which have similar pharmacological effects or chemical structure and whether they would be sufficiently similar to satisfy the definition of analogue in section 4(2) of the Controlled Substances Act 1984 or whether such substances would be a derivative, isomer or homologue of a controlled drug is such that I cannot be satisfied of that fact.[56]
Did the accused transport a controlled drug, namely MDMA for the purpose of it being sold to JS in count 2.
[56] Regulation 5 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014.
For the reasons I have outlined above I am not satisfied beyond reasonable doubt that the substance he transported was in fact MDMA.
Conclusion
I am satisfied beyond reasonable doubt of each element of count1 and count 2 and I find the accused guilty of count 1 and count 2.
Annexure A
·Conversation 1: Message 1 JP
·Conversation 2: Messages 2 – 4 JP and M
·Conversation 3: Messages 5-11 JP
·Conversation 4: Message 12 L
·Conversation 5: Message 13 L
·Conversation 6: Message 14 B and A
·Conversation 7: Messages 15-25 JP
·Conversation 8: Message 26 JP
·Conversation 9: Message 27 JP
·Conversation 10: Message 28 JP
·Conversation 11: Messages 29 – 40 JS
·Conversation 12: Messages 41 – 44 JS
·Conversation 13: Messages 45 – 57 JP and RM
·Conversation 14: Message 58 MK
·Conversation 15: Messages 59 – 65 JS
·Conversation 16: Messages 66 – 67 KM
·Conversation 17: Messages 68 – 97 JS
·Conversation 18: Messages 98 – 119 JS
·Conversation 19: Messages 120 – 147 JS
·Conversation 20: Message 148 JP
·Conversation 21: Messages 149 – 156 B and S
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