R v Miller - [2006] SASC 83

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MILLER
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice Nyland)
22 March 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
Appeal against conviction for possessing methadone for sale and for unlawful possession of monies - whether error of law by way of impermissible reasoning from established facts - consideration of permissible inferences from established facts - consideration of weight to be given to established facts - appeal dismissed.

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE
The appellant was charged with seven offences - one count of possessing acetyl morphine for sale contrary to s 32 (1)(e) of the Controlled Substances Act 1984 – three counts of possessing methadone for sale contrary to s 32 (1)(e) of the Controlled Substances Act 1984 – one count of selling methadone contrary to s 32 (1)(c) of the Controlled Substances Act 1984 - two counts of possessing money by unlawful means contrary to s 41 of the Summary Offences Act 1953 – the appellant pleaded guilty in the District Court to one count of selling methadone contrary to s 32 (1)(c) of the Controlled Substances Act 1984 and although pleading not guilty to the remaining counts the appellant admitted possessing the methadone tablets and the sums of money - the appellant was found not guilty on the first count - there being no dispute as to possession of methadone tablets or sums of money the trial Judge had regard to circumstantial evidence in determining whether the appellant intended to sell the methadone tablets - the trial Judge also had regard to circumstantial evidence in determining whether the appellant had come to the sums of money by unlawful means - the trial Judge found the only rational inference from a series of established facts was that the appellant intended to sell at least some of the methadone tablets - the trial Judge found the only rational inference from a series of established facts was that the appellant had come to the sums of money by unlawful means - appellant convicted in the District Court - the Court of Criminal Appeal found the trial Judge did not reason impermissibly - the trial Judge was not required to record in written reasons the directions he gave himself as to the uses to which evidence can be put or the weight to be given to evidence before him - in this case those directions would be no more than a routine form of guidance - no error of law - appeal dismissed.
R v Keyte (2000) 78 SASR 68, discussed.

R v MILLER
[2006] SASC 83
Court of Criminal Appeal: Doyle CJ, Perry and Nyland JJ

DOYLE CJ: Ms Miller appeals against convictions recorded by the District Court after a trial by a judge sitting without a jury.
The submissions by Mr Niarchos for the appellant are based on suggested errors in the process of reasoning that led the Judge to conclude that the charges were proved. He also submitted that the Judge’s reasons are, in some respects, insufficient in law and so erroneous. However, as argued that ground was also, in substance, a criticism of the soundness of the reasoning.
The Notice of Appeal contains 13 grounds of appeal. A number of them are no more than arguments, no doubt put to the Judge, why a not guilty verdict was appropriate. I will confine my reasons to the submissions by Mr Niarchos which were said to demonstrate error. Mr Niarchos, correctly, confined his submissions to those matters.
Facts
The first four counts arose from the police going to the appellant’s home on 7 February 2002, and searching it using a general search warrant. The appellant was present at the time.
Count 1 was a charge of possessing acetyl morphine for sale. Count 2 was a charge of possessing methadone for sale. The appellant admitted possession in each case, but pleaded not guilty to the charge. Count 3 was a charge of selling methadone between 1 and 7 February 2002. Ms Miller pleaded guilty to that count. Count 4 was a charge of possession of money in the sum of $20,993.05 which money it was alleged was reasonably suspected of having been stolen.
The other three counts arose from the police going once more to her premises, and once more searching them, this time on 23 February 2003. Ms Miller was present again.
Count 5 was a charge of possessing methadone for sale, as was count 6. Again Ms Miller admitted possession of the methadone, but denied an intention to sell. Count 7 was a charge of unlawful possession of money in the sum of $20,980, which amount it was alleged was reasonably suspected of having been obtained by unlawful means.
There was no dispute about what the police found on each occasion. The only issue was as to the explanation for the presence of some of the items, and as to the inference to be drawn from the evidence of what was found. Count 1 related to 50 packets found in the drawer of a cabinet in Ms Miller’s bedroom. The packets contained a white powder. Samples from some of the packets were analysed and were found to contain acetyl morphine. I gather that the case proceeded on the basis that all of the packets contained acetyl morphine. Acetyl morphine is a prohibited substance, and the evidence was that it is produced along the way to the production of heroin.
Count 2 related to 21 physeptone tablets found in Ms Miller’s bedroom. They contained methadone, a drug of dependence. Methadone is a prescription drug, provided to addicts who are trying to break their drug addiction. Physeptone is a trade name under which methadone is sold.
Count 3 related to four physeptone tablets that Ms Miller admitted selling to a friend whose prescription for methadone tablets had run out. Ms Miller sold her the tablets to help her out. She said that she had never done this before or since.
Count 4 related to cash found in several different locations in Ms Miller’s bedroom. The evidence was that the notes were not new. The notes were a mix of denominations, including $5 notes and $10 notes. Most of them were $50 notes, amounting to just over $20,650.
Count 5 related to ten physeptone tablets found, on the occasion of the second police visit, in a bedside table in Ms Miller’s bedroom.
Count 6 related to 16 physeptone tablets found in a kitchen cupboard on the same occasion.
Count 7 related to cash amounting to $21,380, found in Ms Miller’s bedroom, in her handbag and in the kitchen of the house. Once again the notes were not new notes, and all denominations were included, including $5 notes and $10 notes.
As I have indicated, Ms Miller admitted that she was in possession of the drugs and of the money. She was prepared to plead guilty to simple possession in relation to count 1, count 2, count 5 and count 6. The issue on these counts was whether the prosecution had established that she intended to sell the drug in question.
As to the money, Detective Ford gave evidence explaining, in relation to each bundle of cash, why he suspected that the money had been obtained by unlawful means. If the Judge accepted that evidence, then the onus was on Ms Miller to show, on the balance of probabilities, that she came by the money lawfully.
As to counts 1, 2, 5 and 6, the prosecution case was a circumstantial one. The prosecutor relied on a combination of circumstances that I will summarise. What follows draws on the Judge’s summary of the evidence.
The prosecutor relied on the substantial amount of money found at the house, the quantity of notes of differing denominations, and on the fact that the notes included a substantial number of notes of the smaller denominations. Evidence was also put before the Judge that the notes were not new notes, and were not packaged or tied in a manner that one would expect had they been obtained from a bank.
As to counts 1 and 2, the prosecutor relied also on a packet of water balloons found in Ms Miller’s bedroom. There was evidence that water balloons were commonly used to package heroin. The prosecutor relied on some clear sealable plastic bags found in the house. There was evidence that such plastic bags are commonly used to store drugs. The prosecutor relied on notebooks containing notations that Ms Miller admitted were made by her. Detective Ford gave evidence, drawing on his experience in cases involving the sale of drugs, that the notations indicated that they were a record of drug sales. He also gave evidence, based on his experience, that they were not of a kind used to record the business of an escort service. He explained in some detail the basis for that conclusion. I will return to the significance of this in a moment.
As to count 5 and count 6 the prosecutor again relied on the finding of the money; on the finding of notebooks as to which similar evidence was given; the finding of two balls of white powder containing sucrose, which is often used as a cutting agent; the finding of some pieces of freezer bags, which pieces according to the evidence are often used to package heroin; on the fact that there was a woman at the house on 23 February who had in her possession two methadone tablets wrapped in a wrapping identical to that found on the tablets found in the house, and on the fact that just before the police entered the house they saw a man leave the house and inject himself as he did so.
Ms Miller gave evidence. She had used heroin for a long time. At the time of the alleged offences she was taking methadone on prescription. She obtained it from a chemist daily. She obtained it as a syrup, and was required to consume it at the chemist’s premises. She had worked in the past as a prostitute, to obtain money to enable her to buy heroin.
She said that at the time of the alleged offences she was organising a telephone “escort service”. The notes in the notebook, by and large, recorded the names of the “escorts” who worked in the service, the kind of sexual service that they provided and the amount paid. Other notes simply recorded every day transactions of an innocent nature. As to the tablets, she said that there were times when she could not get to a chemist to obtain her daily prescription. For example, she regularly visited her father who was in prison at a place some distance from Adelaide, and when she went to visit him of a weekend she could not get her regular prescription. She said that she kept the methadone tablets to use when she could not get her regular prescription, and that she kept a supply of them on hand. The effect of her evidence was that the tablets were obtained by buying them from friends who had a prescription for methadone tablets in quantities, rather than for a single dose of methadone in the syrup form. As I have already mentioned, she admitted selling four of these tablets to a friend to help the friend out. She had not sold methadone tablets on any other occasion.
Her evidence as to the money was somewhat complicated, but not incredible. She said that her father faced possible legal claims, arising from circumstances that are not material. Ms Miller was selling assets, including a parcel of land, that he owned, and was handling the proceeds to conceal them from the potential claimants. She produced a receipt for a sale of a motor bike in August 2001 for $14,700. She said that she sold a piece of land that belonged to her father in June 2002, for which she received a net amount of about $76,000. Her bank statements did record a receipt of that amount. But apart from the motor bike sale, and the production of her bank statements, she did not produce documents of the kind one would have expected her to produce to back up this evidence. She said that the water balloons belonged to her son, from whom she had taken them because he was throwing them around in the street. She said that the plastic bags were not hers. She said that the pieces of plastic freezer bags were possibly left over from occasions in the past when she had bought heroin in them. She denied selling the two tablets found in the possession of the woman who was at her house on the second occasion.
On count 1 the Judge found her not guilty. He accepted evidence that she had bought the powder about a year ago, but when she tried to use it it caused a “burning sensation” and that she put it aside and forgot about it. She said she had no intention to sell it because it was not “saleable or usable”. Her evidence got some support from a forensic chemist who was called to give evidence.
As to count 2 the Judge accepted the evidence of Detective Ford about the notebooks. He found that the entries in the notebooks indicated “quite strongly that the accused was involved with one or more other persons in the trading of drugs”. This was a significant finding. Apart from that he relied on the amount of money found on the premises, and to the large number of notes of various denominations. He relied on the water balloons and the sealable plastic bags. He relied on the admission by Ms Miller that she had sold some tablets recently.
He said that the only rational inference was that the accused was guilty. He was satisfied beyond reasonable doubt “that some at least of the 21 tablets were intended for sale”.
As to count 5 and count 6 he took a similar approach. He again relied on the evidence as to the money, as to the notations in the notebooks, as to the finding of sucrose, as to the finding of pieces of plastic freezer bag, as to the woman found in possession of two tablets in identical wrapping, and as to the person who injected himself as he left the house.
As to each of these counts the finding was, again, that some at least of the tablets in question were intended for sale.
It is implicit in the Judge’s approach that he accepted that Ms Miller might have intended to use some of the tablets herself.
As to count 4 and count 7, he was satisfied, on the basis of evidence given by Detective Ford, that Detective Ford had a reasonable suspicion that the money in question had been obtained by unlawful means. It appears that he did not wholly reject Ms Miller’s evidence. As to each of these counts the Judge said that although some of the money might have been derived from the sale of property belonging to Ms Miller’s father, she had not satisfied him on the balance of probabilities “that she came into possession of all of the money honestly”.
Submissions on appeal
Mr Niarchos submitted that the Judge erred because he failed to record in his reasons a direction to himself as to the correct approach to the evidence of Ms Miller. He submitted that the Judge should have directed himself that Ms Miller was entitled to remain silent, that she was not obliged to give evidence on oath (as she did), and that her evidence was to be assessed in the same manner as the evidence of any other witness.
These are directions that are commonly given to a jury. In R v Keyte [2000] SASC 382; (2000) 78 SASR 68 I considered the question of the extent and the detail of the reasons required of a judge who tries a charge without a jury. I did not attempt to determine that question in a comprehensive manner: at [54]. I emphasised that I did not proceed on the basis that it was the duty of judge in such a case to replicate the instructions that would be given to a jury: at [54] and at [58]. This is an issue which is best approached with some caution, and in the light of experience.
For present purposes it suffices to hold, as I would hold, that it was not necessary for the Judge to record a direction to himself on these two matters. Directions along these lines are given to a jury because of a concern that a jury might be unfamiliar with these basic principles which are directed towards ensuring a fair trial. My view is that this is not the kind of matter on which one would expect the judge to record the directions that the judge gives to himself or herself. In a particular case the circumstances might be such that the issue to which the instructions relate is a crucial issue in the case. In that event it might be necessary for the judge to record such a direction to himself or herself. That is something to be decided when the issue arises. It suffices to say that in this case the suggested direction is a routine piece of guidance that it was not necessary for the judge to record.
Linked to the submission with which I have just dealt was a submission that the Judge proceeded on the basis that he would not accept the evidence of Ms Miller unless it was supported by some credible evidence. This submission was advanced on the most slender of bases. In acquitting Ms Miller on count 1, the Judge referred to the fact that her explanation in relation to the 50 packets of powder was plausible, and that was preceded by a reference to the evidence of the chemist whose evidence supported her. The submission appeared to be that it was only because of the evidence of the chemist that the Judge acquitted Ms Miller, and that one should further infer that his overall approach was that he would not accept her evidence unless it found support elsewhere. There is nothing at all in the Judge’s reasons to support that submission. I reject it.
Mr Niarchos pointed to what he submitted were some errors in the Judge’s reasoning.
One of them related to the money the subjects of count 4 and count 7. On those counts the Judge found that Detective Ford reasonably suspected, based on the evidence he gave, that the money had been obtained by unlawful means. It then fell to Ms Miller to satisfy the Judge, on the balance of probabilities, that she came into possession of the money honestly. The Judge accepted that some of the money might have been derived from the sale of Ms Miller’s father’s property, but that did not explain her possession of all of the money. That conclusion was open to him.
On the remaining counts Ms Miller’s possession of the money was an item of circumstantial evidence. So was the fact that the notes were not new notes, included numerous notes of relatively low denominations, and was not packaged or bundled in the manner in which one might expect had it come from a bank. But on the other counts the Judge was not entitled to use the evidence relating to the money on the basis that it had been established that the money was obtained by unlawful means. His conclusion on that point on count 4 and count 7 was the result of Ms Miller’s inability to discharge the onus that rested on her. In relation to the other counts there was no such onus. The money was no more than an item of circumstantial evidence to be considered with the other circumstantial evidence.
I have considered with care the Judge’s reasons in relation to count 4 and count 7 on the one hand, and in relation to the other counts. I can find no hint in his reasons that he made the suggested error. Indeed, there are indications to the contrary. I reject this submission.
Mr Niarchos submitted that the Judge erred in taking into account, in relation to counts 5 and 6, the finding of two tablets in identical wrapping in the possession of a woman who was at the house when the police searched the house. He referred to a passage in the cross-examination of Detective Ford in which counsel at trial for Ms Miller secured Detective Ford’s agreement to the proposition that “methadone is presented in blister packs and half the addicts in South Australia would be on methadone and would receive similar blister packs”. But that cross-examination missed the point. The detective made it clear that he was referring to wrapping around the blister packs, and not to the blister packs. It is true, as Mr Niarchos submitted, that the nature of the wrapping and the significance of it being identical was not explored in evidence. That might have weakened or strengthened the inference to be drawn from the fact that the wrapping was identical. That was something for the Judge to consider. But this was relevant evidence and it tended to support the prosecution case.

Mr Niarchos submitted that the Judge’s reasons were deficient because he did not explain why he did not accept, or at least treat as a reasonable possibility, Ms Miller’s explanation for the possession of the methadone tablets. It was not disputed, as I understand the evidence, that she was using methadone on a regular basis to try to break her own addiction. Mr Niarchos argued that the explanation that she gave was a credible one. To some extent I agree. And so did the Judge. The fact that on each of these counts he expressed his finding as a finding that “some at least” of the tablets were intended for sale indicates that. But it was open to the Judge to find, as he clearly did, that when all of the evidence was considered, a conclusion of guilt was “the only rational inference that the established facts enable me to draw”: at [41]. The Judge summarised the position as follows at [44]:
Before concluding, I go back to my findings in relation to the possession for sale counts that some at least of the tablets were for sale. I do not mean to imply that the accused had in her mind the number of tablets which she intended to sell and the number of tablets which she intended to consume. I am satisfied, however, that her state of mind at the relevant time was that she would sell some at least of the tablets, with the actual number to be determined as and when the opportunity or opportunities arose.
In the circumstances that conclusion was open to him.
I agree with the Judge that the items of circumstantial evidence upon which the prosecutor relied pointed strongly, indeed compellingly, to the conclusion that Ms Miller was engaged in the sale of methadone, and was intending to sell methadone when the opportunity arose and when it suited her.
The Judge provided the only explanation for his conclusions that he was obliged to provide. The combination of circumstances was the explanation for his conclusion.
Considered as a whole, the Judge’s reasons were adequate. No error of law has been demonstrated in the Judge’s reasons. Nor has any error in his process of reasoning been pointed to. I emphasise that I am not proceeding on the assumption that it was necessary for him to explain each and all of his findings of fact.
Conclusion
For those reasons no error in the verdict has been demonstrated.
I would dismiss the appeal.
PERRY J: In my view, the appeal should be dismissed. I agree with the reasons of the Chief Justice.
NYLAND J: I agree that the appeal should be dismissed for the reasons expressed by the Chief Justice.