R v Morter-Grant - [2008] SADC 85

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MORTER-GRANT
Criminal Trial by Judge Alone
[2008] SADC 85
Reasons for the Verdicts of Her Honour Judge Shaw
3 July 2008
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
Trial by judge alone - accused charged with offences pursuant to the Controlled Substances Act 1984
Verdicts - not guilty of possession for sale - guilty of simple posession.
Controlled Substances Act 1984 s 32(1)(e), referred to.

R v MORTER-GRANT
[2008] SADC 85
Introduction

Zheon Morter-Grant is charged with the following offences.
First Count
Statement of Offence
Possessing 3,4 – Methylenedioxymethamphetamine and N-ethyl-alpha-methyl-3,4-(methylenedioxy) phenethylamine for Sale. (Section 32 (1) (e) of the Controlled Substances Act, 1984).
Particulars of Offence
Zheon Morter-Grant on the 27^th day of April 2007 at Cape Jervis, knowingly had a substance containing 3,4 – Methylenedioxymethamphetamine and N-ethyl-alpha-methyl-3,4- (methylenedioxy) phenethylamine (known as Ecstasy), a prohibited substance, in his possession for the purpose of selling it to another person.
Second Count
Statement of Offence
Possessing N-formyl-3,4-methylenedioxyamphetamine for Sale. (Section 32 (1) (e) of the Controlled Substances Act, 1984).
Particulars of Offence
Zheon Morter-Grant on the 27^th day of April 2007 at Cape Jervis, knowingly had a prohibited substance, namely N-formyl-3,4-methylenedioxyamphetamine, a chemical derivative of Ecstasy, in his possession for the purpose of selling it to another person.
The accused pleaded not guilty to each offence and elected for trial by judge alone pursuant to s7 of the Juries Act 1927.
Elements of the Offences
The elements of the offences are as follows:
firstly, the prosecution must prove that the material in question was knowingly in the possession of the accused;
secondly, the prosecution must prove that the material in the accused’s possession is that which is identified in the offence charged;
thirdly, it must be proved that the material in question is a prohibited substance;
fourthly, it must be proved that the accused knew that the material in his possession was prohibited under the laws relating to illegal drugs; and
fifthly, it must be proved that the accused possessed the drug in question for the purpose of selling it.
The prosecution are required to prove each charge and each element of each charge beyond a reasonable doubt.
Each of the charges must be considered separately.
If I find the accused not guilty of possession for sale, I am obliged to consider whether the accused is guilty or not guilty of the alternative offence of simple possession.
The elements of the alternative offence of simple possession of the drug in question, are the first four elements which I have identified above.
Both the offences relate to 100 tablets found in a packet in the accused’s possession. Count two relates to 27 brown tablets in the packet, which were subsequently analysed and found to be a chemical derivative of a type of ecstasy. Count 1 relates to the remaining 73 tablets in the packet, namely 62 yellow tablets and 11 pink tablets which were analysed and found to contain the chemical constituent of the drug known as ecstasy.
In relation to count 1, if the prosecution proves beyond reasonable doubt that the accused was in possession of more than 0.5 grams of the substance, the law presumes that the accused possessed it for the purposes of sale, unless the accused can satisfy the court on the balance of probabilities, that he possessed the substance for some purpose other than sale. That is, the accused is required to satisfy the court that it is more likely than not that he possessed the drug for some other purpose.
This presumption does not apply in relation to count 2.
As at 27 April 2007, 3,4-Methylenedioxymethamphetamine (“MDMA”), N-ethyl-alpha-methyl-3,4-(methylenedioxy)phenethylamine (“MDEA”) and N-formyl-3,4-methylenedioxyamphetamine (“MDA”) were all listed as Prohibited Substances in Schedule 1 of the Controlled Substances (Prohibited Substances) Regulations 2000 (“the Regulations”).
Pursuant to subsection 32(3) of the Controlled Substances Act 1984, (“the Act”), the prescribed amount of MDMA and MDEA is listed in Schedule 2 of the Regulations as 0.5 grams.
Pursuant to subsection 12(4) of the Act, and subregulation 5(b), any substance that is a chemical derivative of a substance listed in Schedule 1 will itself be declared as a prohibited substance. The drug which is the subject of count two is a chemical derivative of a Schedule 1 substance.
The accused’s case is that he was in possession of all of the drugs for personal use.
Prosecution case
The prosecution called Constable Mark Hann who gave evidence that on 27 April 2007, the police attended at the Cape Jervis Ferry Terminal acting on information received.
The police located the accused on a bus which had travelled from Adelaide. The accused produced a Dunhill cigarette packet from his laptop case.
He passed the packet to the police officer. Inside the packet, the police officer saw tablets which looked like ecstasy tablets.
The accused participated in a record of interview during the course of which he said that there were 100 tablets in the packet. He did not say from where he obtained the tablets. He said he did not buy them, but he did not say how he acquired them.
The accused said that he had a large number of tablets because it was cheaper to buy them in bulk. He was intending to take them to Kangaroo Island where he lived.
He said 100 tablets would normally cost between $2,000.00 and $3,000.00. He said that that amount would last him about six months.
The accused said that he did not give ecstasy tablets to anyone. He used them all himself. He would take them “to get up and party a bit more”. He said he might use one every day.
The accused said he was on unemployment benefits but that he also had part-time work in Kingscote on Kangaroo Island.
I also received a declaration of Justin Francis Thompson, a police officer who is familiar with the distribution and use of ecstasy in this State. He described the nature and use of ecstasy type drugs in the community.
Detective Brevet Sergeant Thompson also provided information about the prices for ecstasy and similar designer drugs. He said that 100 tablets in this category of drug, could fetch about $2,000.00 if sold for $20.00 per tablet, or $5,000.00 if sold for $50.00 per tablet.
Further, there were a number of agreed facts as follows:
1.The 100 tablets seized by police on 27/04/07 were sent to the Forensic Science Centre for analysis.
2. The tablets were analysed and were constituted as follows:-
3.The 62 yellow tablets contained 3.00g of 3,4-methylenedioxymethamphetamine (“MDMA”) and approximately 1.11 of N-ethyl-alpha-methyl-3,4-(methylenedioxy)phenethylamine (“MDEA”).
4.The 11 pink tablets contained 0.67g of MDMA and a total of approximately 0.13g of MDEA.
5.The 27 brown tablets contained approximately 1.9g of N-Formyl-3,4-methylenedioxyamphetamine (“N-Formyl MDA”).
6. N-Formyl MDA is a chemical derivative of 3,4-methylenedioxyamphetamine (“MDA”).
Count 1 on the information relates to the drugs in items 3 & 4 above. The total weight of MDMA is 3.67g, and the total weight of MDEA is 1.24g.
Count 2 on the information relates to the drugs in item 5 above.
Defence case
The accused gave evidence on oath. He was not obliged to do so. He could have elected to say nothing. I have therefore had the opportunity to assess his evidence in the witness box like any other witness.
The accused said that he was 24 years of age. He lived in a caravan at the back of his mother’s place.
The accused had no prior convictions other than for traffic related offences.
He said he tried cannabis as a young person but ceased using that drug before he turned 20 years of age
Since he was 13 years of age, he had been working at various jobs. In the lead up to these offences, he had been under emotional stress. His grandfather had a brain tumour, his mother had liver cancer and her condition had deteriorated, and he was in conflict with his ex-partner. He had seen his general practitioner who prescribed Zoloft for his clinical depression and sleeping tablets.
The accused said that he was experiencing thoughts of suicide. He was self-medicating with ecstasy, speed, crystal methylamphetamine and, as he said, anything he could get his hands on.
The accused said that he found a supplier of drugs in Adelaide and he went to Adelaide to purchase the drugs. He had made previous trips to Adelaide. He paid $1,500.00 to $2,000.00 for 100 tablets. He had not sold or supplied any of those tablets to anyone else.
Since his arrest, he had lived in Adelaide for a period of 6 months. He began working for his younger brother who ran a courier business. Then he moved back to Kangaroo Island to care for his mother. He said that he has continued to take Zoloft to treat his depression. He has remained free of illicit drugs.
During cross-examination, the accused said that he would come back to Adelaide to get ecstasy tablets and to see family. He said he had made about three previous trips.
He explained that there are extensive costs involved in travelling to and from Kangaroo Island and therefore, it was more economical to buy ecstasy in bulk.
He denied that he was buying the ecstasy to sell it. He explained that he had kept savings at his home since he was 13 years of age. He did not keep savings in a bank because of the fees that are charged.
The defence called Ms Newiss, the defacto partner of the accused’s brother, to give character evidence. She said that she had known the accused for two years and knew other people who knew him. She said that his reputation for honesty was good.
I direct myself that I should bear in mind the evidence of the accused’s previous good character when considering whether I am prepared to draw from the evidence the conclusion of the accused’s guilt. I bear it in mind as a factor affecting the likelihood of the accused having committed the crimes charged. I also bear it in mind in assessing the credibility of the explanations given by him and his credibility as a witness. However, I note that in relation to count one, the accused bears the onus of proving his defence that he was in possession of the drugs in question for personal use.
Prosecution submissions
In relation to count one, it is not disputed that the accused had in his possession the drug in question and that the amount was in excess of the quantity prescribed by the Regulations under the Act. Therefore, the accused was required to prove on the balance of probabilities, that the tablets containing the drug in question were in his possession for personal use only.
In relation to count two, because the drug in question is not listed in the Regulations relevant to the application of the deeming provision, the deeming provision does not apply. The prosecution submitted that a combination of circumstances proved that the accused was in possession of the tablets which were the subject of court 2, for the purpose of selling them.
The prosecution relied upon the evidence of Detective Brevet Sergeant Thompson as to the value of these tablets. That is, it was submitted that this is a large amount of the drug in question and the tablets are worth a large amount of money. The prosecution submitted that in his interview with the police, the accused was not entirely honest. The prosecution submitted that the accused’s evidence was not credible. The prosecution said that his evidence that he became addicted when he first used the drug ecstasy, defied common sense.
Further, it was submitted that the accused’s evidence that he was stocking up soon after he began taking these drugs, was inherently incredible. The prosecution submitted that the combination of circumstances proved beyond reasonable doubt that the accused was in possession of the tablets which are the subject of count 2, for the purpose of sale. It was submitted that in relation to count 1, the accused had failed to discharge the onus of persuading the court that those tablets were for personal use only.
Defence submissions
The defence submitted that the accused’s circumstances led him to become seriously depressed. He was prescribed Zoloft. He was offered ecstasy. He found this illicit drug was very effective in treating his depression. It made him feel happy.
It was submitted that it was to the accused’s credit that he volunteered to the police that he had the ecstasy in his possession and answered most of their questions, although he realised that he did not have to answer any questions.
It was submitted that the accused had no real criminal history and he called character evidence.
It was perfectly reasonable that someone who was depressed, addicted and living in a location isolated from his supplier, would buy in bulk.
Findings
There is no dispute that the accused was in possession of the illegal drugs which are the subject of counts one and two. The sole issue is whether the accused intended to sell some or all of the drugs in question or whether they were in his possession solely for personal use.
In relation to the first count, the accused is required to establish on the balance of probabilities that the tablets in question were in his possession for his personal use.
I am required to look at the evidence as a whole, including not only the direct evidence of Constable Hann, and the other evidence but also the inferences to be drawn from the surrounding facts. I must then determine whether it is more likely than not that the accused possessed the drug for some other purpose, namely for personal use.
Having heard the accused’s evidence on oath, having regard to the contents of his interview with the police, the evidence of good character and all of the evidence before me, I am satisfied on the balance of probabilities that the accused was telling the truth in his evidence.
I am satisfied on the balance of probabilities that the accused had the tablets which are the subject of count one, in his possession for personal use.
Therefore, I find the accused not guilty of count one.
In relation to count two, I am not satisfied beyond reasonable doubt that the accused was in possession of any of the tablets which are the subject of count two, for the purpose of selling them.
Accordingly, I find the accused not guilty of each of the counts on the information.
Pursuant to section 42, of the Controlled Substances Act 1984, I find that the accused is guilty of the alternative charge of simple possession in relation to each count on the information.
Verdicts
Count one – not guilty of possession for sale but guilty of the alternative offence of simple possession.
Count two – not guilty of possession for sale but guilty of the alternative offence of simple possession.