R v Nguyen (No 2) - [2018] SADC 11

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v NGUYEN (No 2)
Criminal Trial by Judge Alone
[2018] SADC 11
Reasons for the Verdict of Her Honour Judge Chapman
26 February 2018
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
Accused charged with three counts of Trafficking in a Controlled Drug and two counts of Unlawful Possession - heroin located in a vehicle observed to leave the premises of the accused - cash located at those premises - primary issue was possession - insufficient evidence to prove the accused was in possession of the heroin - evidence proves beyond reasonable doubt the accused was in possession of the cash.
Verdicts: Not guilty of counts 1, 2 and 3. Guilty of counts 4 and 5.
Controlled Substances Act, 1984 s 32; Summary Offences Act, 1953 s 41, referred to.
Tepper v Kelly (1998) 47 SASR 271; R v Nguyen (2013) 117 SASR 432; Baldwin v Samuels (1973) 6 SASR 144; R v Cook (2006) 95 SASR 201, applied.

R v NGUYEN (No 2)
[2018] SADC 11

The accused is charged with five offences on Information dated 3 February 2017. She filed an election for trial by judge alone on 3 February 2017. She made applications pursuant to Rule 49 of the District Court Criminal Rules for the exclusion of evidence and severance of counts. I have provided separate reasons for those rulings[1].
[1] [2018] SADC 10
The charges
The accused pleaded not guilty to all counts on the Information.
The first three counts charge her with Trafficking in A Controlled Drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The particulars of those offences are that the accused and Thiep Long Tri on 3 April 2016 at Ottoway, trafficked in a controlled drug, namely, heroin, knowing or being reckless as to the fact the substance was a controlled drug. The heroin was located in a Toyota Camry sedan driven by Mr Tri (‘the vehicle’) shortly after the vehicle had been observed by the police to leave the accused’s premises at 20 Rosewater Terrace, Ottoway (‘the Rosewater premises’).
The fourth and fifth counts each charge the accused with the offence of Unlawful Possession contrary to s 41(1) of the Summary Offences Act, 1953 (SA). The particulars of those offences are that the accused and Thiep Long Tri on 3 April 2016 at Ottoway, were in possession of personal property, namely money in the sum of $8,455 (count 4) and $3,540 (count 5), which either at the time of such possession or at a subsequent time before the making of this complaint in respect of such possession, was reasonably suspected of having been obtained by unlawful means. The cash was found at the Rosewater premises following a search by police.
The charges against Mr Tri were resolved prior to the trial of the accused.
The prosecution case
Counsel for the prosecution, Mr Allen, called five witnesses. Three of those witnesses were police officers whose evidence was not disputed by the defence. The facts of the prosecution case were not contested. Rather, the focus was upon what inferences could be drawn from those facts.
The prosecution called two expert witnesses.
Ms Sheree Brozyna is a forensic scientist employed as a reporting officer at Forensic Science SA. She expressed opinions regarding results of DNA testing conducted on certain items seized by the police as well as the depositing of DNA on items by direct contact and by secondary/tertiary transfer. Her opinions were not challenged. I find she was well qualified to express the opinions that she did and I accept those opinions.
Detective Toan Tri Nguyen is a member of the South Australian Police Force with considerable experience over a 23 year period in the investigation of the illicit drug trade. He expressed opinions regarding the trafficking of heroin and indicia of sale which were not challenged. He was well qualified by his experience to express the opinions that he did and I accept those opinions.
A Certificate of Analysis was tendered by the prosecution setting out the results of tests on the seized controlled substances.
Having heard the evidence of the three police officers and the two expert witnesses and considered the Certificate of Analysis, I find the following matters proved.
During the afternoon of 3 April 2016, Detective Winterfield and Detective McCoy were on duty in the vicinity of the Rosewater premises. Detective Winterfield saw the garage roller door at the Rosewater premises raise and the vehicle reverse from the garage on to the street. The roller door went back down. The two detectives followed the vehicle for a short distance before activating their emergency lights and causing the vehicle to stop. The driver, Mr Thiep Long Tri, was the sole occupant. Detective McCoy searched the vehicle and located three items secreted under the centre console between the driver’s seat and the front passenger seat. One of those items was a black duct tape package consisting of an outer layer of black duct tape, three inner layers of parts of plastic freezer bags and finally 13.9g of rock material that contained 2.61g of heroin. The other two items were a glass pipe and a resealable plastic bag inside which was 0.85g of crystals containing methylamphetamine.
Detective Winterfield arrested Mr Tri, who was taken to the Port Adelaide police station. Senior Constable Sergeant supervised the tow of the vehicle to the Ottoway police compound.
Detective Winterfield took keys and one or more remote controls from the vehicle and gave them to other police officers tasked with searching the Rosewater premises. Senior Constable Howard, with three other police officers, attended at the Rosewater premises that afternoon. They gained access by using a remote control taken from the vehicle to operate the garage roller door. They then entered through a glass sliding door to find three people inside, being the accused and her two daughters.
A number of items were located at the house as follows:
(1)Five pieces of lined paper in a bin in the lounge/dining area. It was initially part of the prosecution case that these were ‘tick’ lists. However, in his closing address, Mr Allen submitted the prosecution no longer placed reliance upon those pieces of paper.
(2)    Two empty plastic resealable bags in the bin in the lounge/dining area.
(3)Multiple empty clear plastic resealable bags inside a cabinet drawer in the lounge/dining area.
(4)Cash inside another drawer of that same cabinet. In one bundle was $2,000 made up of $50 notes. Another bundle comprised $3,600 in $100 notes. A purse contained cash in the sum of $545 made up of a $100 note, six $50 notes, five $20 notes, four $10 notes and one $5 note. Inside a black box were three $20 notes.
(5)    A glass pipe inside another drawer of that same cabinet.
(6)Digital scales on a chair at the dining table. The scales were swabbed for the presence of controlled substances, but none were detected.   The scales were also swabbed for DNA. A mixed DNA profile from three contributors was detected. There was strong support for Mr Tri not being a contributor. The mixed DNA profile was greater than 100 billion times more likely if the accused was a contributor with two unknown persons rather than three unknown persons being the contributors. In other words, there was extremely strong support for the accused being a contributor to the mixed DNA profile.
(7)    A laptop and documents on the dining room table.
(8)Cash in the sum of $2,250 inside the front right jeans pocket of a pair of men’s jeans hanging in the walk-in robe of the main bedroom. That cash comprised two $100 notes, 34 $50 notes, 14 $20 notes and seven $10 notes.
(9)Cash in the sum of $3,540 in a bedroom which appeared to belong to a teenager. The cash was inside a Ferrero Rocher box and comprised 14 $100 notes, 18 $50 notes, 41 $20 notes, 17 $10 notes and 50 $5 notes. The money was wrapped and tied in alfoil and placed inside plastic resealable bags inside the box.
The cash, as set out in (4) and (8) above, is the subject of count 4. The cash, as set out in (9) above, is the subject of count 5.
On 4 April 2016, the vehicle was searched by Detective Winterfield and other police officers at the Ottoway police compound. Inside the vehicle there were documents bearing Mr Tri’s name with an address different from the address of the Rosewater premises.
On the outer rear passenger side of the vehicle, Detective Winterfield saw a piece of wire that appeared to be holding the tyre mud flap in place in the wheel arch. When he removed the wire, two containers fell from behind the mud flap. Brevet Sergeant Goodwin, a crime scene officer, swabbed each of the containers for DNA. Each container could be opened by twisting the lid. A covering of duct tape on each did not seal the container.
Inside one container (AW8) there were two packages containing heroin. The container (AW8) was swabbed for DNA. A mixed DNA profile of two contributors was obtained. The mixed DNA profile is greater than 100 billion times more likely if Mr Tri is one of those two contributors rather than two unknown persons. In other words, there is extremely strong support that Mr Tri’s DNA has contributed to the mixture. The result is also greater than 38 000 times more likely if the accused is not one of those two contributors. In other words, there is very strong support she is excluded as a contributor.
Each package was individually wrapped in duct tape and had three inner layers of plastic freezer bags. Inside one package was 27.9g of rock material containing 5.13g of heroin. The duct tape (AW9) was swabbed and a mixed DNA profile of three contributors were obtained. There was extremely strong support that Mr Tri’s DNA contributed to the mixture and extremely strong support that the accused was excluded as a contributor. Inside the other package was 14g of rock material containing 2.55g of heroin. The swab of the duct tape revealed an inconclusive number of contributors and could not be analysed.
Inside the other container (AW15) were four packages of heroin. The container was swabbed and a mixed DNA profile of three contributors was obtained. There was extremely strong support for Mr Tri being a contributor to that mixed DNA profile. In relation to the accused, the result was 16 times more likely if she was one of the three contributors than not. In other words, there was moderate support for her inclusion in the DNA result. However, ‘moderate’ support covers a statistical weighting of 10 – 100. ‘Slight’ support covers a statistical weighting of 1 – 10. Ms Brozyna gave evidence that there was one major contributor (about 97%) who was a male and two minor contributors to the profile. She was unable to express an opinion as to the gender of either of the two minor contributors because there was ‘such little information’ in regard to them. She could not say whether the presence of DNA from the minor contributors was a result of a direct deposit by those persons or via secondary or tertiary transfer. In other words, she could not exclude the possibility that Mr Tri may have deposited the DNA of one or both of the minor contributors on the container after he had earlier come into direct or indirect contact with one or both of them.
Three of the packages inside the container (AW15) were wrapped in duct tape as well as several inner layers of plastic freezer bags. The quantities of rock material in two of them were 14g, each containing 2.55g and 2.56g of heroin respectively. In a third package was 13.9g of rock material containing 2.56g of heroin. The fourth package had just a wrapping of a plastic freezer bag inside which was rock material weighing 0.94g and contained heroin.
Detective Toan Tri Nguyen gave evidence that there are essentially three different levels of dealers in heroin. There are the street level dealers who deal in a small quantity; the mid‑level dealers who typically deal in ounce amounts; and the higher level dealers who deal in commercial amounts of multiple ounces and often kilos of heroin. He expressed the opinion that sometimes mid‑level dealers operate in partnership with others, whether that is between two or more people. Any person in that partnership can perform the task of a runner, which is essentially a courier who delivers the drugs or collects the money.
Heroin is packaged in various different ways for the purpose of sale. In his opinion, the packaging of the heroin in this case, namely an outer layer of duct tape and inner layers of plastic bags or part plastic bags, is a common method of packaging by traffickers operating at the mid‑level. He gave evidence that heroin can be sold as an ounce, namely 28g, or further cut to be sold as half an ounce, namely 14g. In 2016, the market value on the street for half an ounce was between $4,000‑$6,000. The market value for one ounce was between $8,000‑$12,000.
In Detective Nguyen’s opinion, people operating above street level will be prepared to provide samples to the customers in order to test the produce to ensure they are happy with it on the proviso that they will purchase a significant amount if so satisfied. In relation to the 0.94g package containing heroin, he expressed the opinion that this was most likely meant to be a sale of one gram of heroin, however, fell slightly short either because of an error in weighing on digital scales or he said it was not uncommon for dealers to short change.
He gave evidence about indicia of sale. Small, portable digital scales are the preferred device for dealers in heroin, not users. In his opinion, a set of digital scales on its own was certainly not going to be sufficient to suspect someone of dealing in drugs.
He expressed the opinion that cash is another indicator of trading in drugs. In his experience, cash may be well hidden in premises or it may be out in plain view. Cash is often found in denominations of $50 bills, with $100 bills found in relation to persons operating in the mid to high level. In relation to the wrapping of cash in alfoil and plastic bags as found in the Ferrero Rocher box at the Rosewater premises, he said people who engage in trafficking in drugs have a mistaken belief that the police and sniffer dogs are not going to be able to detect it if so concealed.
He gave evidence that other indications of trafficking include what is called a tick list which is a debt list maintained by the dealer. Such lists used to be always on paper, but with the digital age, police are increasingly finding that mobile phones will often yield that information.
Other indicia include unexplained wealth such as jewellery and expensive vehicles or houses, closed circuit television monitoring of premises and/or the presence of plastic resealable bags. In relation to the plastic resealable bags located at the Rosewater premises, Detective Nguyen expressed the opinion that they are not commonly used for dealing in heroin, but are commonly used in the packaging of methylamphetamine.
In cross-examination, Detective Nguyen was asked about his university degree in Asian Studies. He then expressed the opinion that culturally, it is traditional for and preferred by Vietnamese people to keep their wealth at home. This is due to a mistrust for banking institutions and arises from the past where community banking in regional areas relied upon a method of trust. He said that was still true for some sections of the Vietnamese Australian community, but is a declining trend with younger generations.
The defence case
The accused did not give evidence or call evidence. I have not drawn any inference adverse to the accused on account of her exercise of her right not to give evidence or call evidence. She is presumed innocent unless and until her guilt has been proved beyond reasonable doubt by the prosecution.
The elements of the offences
In order to prove the offence of Trafficking in a Controlled Drug, the prosecution must prove three elements beyond reasonable doubt as follows:
1. That the substance the subject of the charge was a controlled drug.
2. That the accused trafficked in a controlled drug.
‘Traffic’ in a controlled drug means (a) sell the drug; (b) have possession of the drug intending to sell it; or (c) take part in the process of sale of the drug[2]. Here, the prosecution alleges for each count that the accused trafficked in the heroin because she was in possession of the heroin intending to sell it. If the prosecution proves beyond reasonable doubt that the accused was in possession of the controlled drug, and that the amount of the controlled drug was at least 2g of a mixed substance containing heroin, then the prosecution is assisted by a statutory presumption that the accused had the intention to sell it[3]. That presumption may be rebutted by the accused if she establishes on the balance of probabilities that she was in possession of the drug for a purpose other than sale.
3.That at the time the accused trafficked in the controlled drug, she knew or was reckless that the substance being trafficked was heroin or at least a controlled drug.
[2] Section 4(1) of the Controlled Substances Act 1984 (SA)
[3] Section 32(5)(b) of the Controlled Substances Act 1984 (SA)
In relation to the offence of Unlawful Possession, the prosecution must prove two elements beyond reasonable doubt.
1.That the accused was in possession of property, in this case, the cash the subject of each charge.
2.That at the time the property was in the possession of the accused or at any subsequent time before the making of the complaint, the cash was suspected of being stolen or obtained by unlawful means. If such a suspicion is proved beyond reasonable doubt, I must find that it was reasonably based[4].
[4] Tepper v Kelly (1988) 47 SASR 271
The offence of Unlawful Possession is then established, unless the accused proves on the balance of probabilities that she obtained possession of the cash honestly.
Both counsel submitted that the issue in relation to all five counts was proof by the prosecution that the accused was in possession of the controlled drug or cash.
Prosecution submission
Mr Allen submitted that the prosecution case in regard to possession on all five counts was based on circumstantial evidence. In regard to counts 1, 2 and 3, the circumstances relied upon by the prosecution were as follows.
First, Mr Tri was at the Rosewater premises on 3 April 2016. Second, he left from within the premises, namely, behind the garage roller door. Third, Mr Tri was in possession of a remote control that operated the roller door. Mr Allen also made the submission that Mr Tri was in possession of the key to the premises. However, there was no evidence led at trial on that topic. The evidence from Senior Constable Howard was that after the police used the remote to operate the garage roller door, they entered the Rosewater premises through the glass sliding door which he thought was unlocked.
Fourth, a short time after Mr Tri left the premises he was stopped by the police and a large amount of heroin was found in the vehicle. Fifth, the heroin was found hidden inside the vehicle in two different locations.
Sixth, the items at the Rosewater premises (ice pipe, plastic resealable bags, scales and cash) were indicative of the accused having an interest and being involved in the sale of drugs. Mr Allen conceded the plastic resealable bags were not consistent with the packaging of heroin.
Seventh, the presence of the accused’s DNA on one of the containers (AW15) found hidden in the vehicle. It was conceded that although the accused could not be excluded as a contributor to the DNA on the container, the evidence including her as a contributor was weak.

Mr Allen submitted that a close connection between Mr Tri and the Rosewater premises could be inferred from the first three circumstances. It would have been different if the vehicle had been parked out the front of the house and the roller door remote found in the vehicle had not operated the garage roller door at the Rosewater premises. He said the presence of the vehicle at the Rosewater premises and the finding of the drugs in the vehicle was so proximate in time that it could be inferred that the heroin originated from the Rosewater premises. It could be inferred that Mr Tri and the accused were operating together as part of a partnership, that they were mid-level dealers, that the heroin was packaged at the Rosewater premises and as part of the partnership, Mr Tri was taking the heroin to buyers for the purpose of sale. An inference from the absence of drugs located at the Rosewater premises was said to be that all of the drugs had been packaged and placed in the car. He submitted that a scenario that Mr Tri purchased the heroin from the accused so that the accused is no longer in possession of heroin can be excluded because the value of the cash at the house ($11,995) did not reflect the sale value of the heroin found in the car which was between $28,000 and $42,000.
In relation to count 4, Mr Allen submitted there may be some doubt about the cash found in the purse in light of the amount and the denominations. He said the remaining amount of cash at the house, the subject of counts 4 and 5, was substantial. It was hidden in different parts of the premises. It could be inferred that in the time between the police operating the roller door and entering the premises, the accused took the opportunity to hide some of the money in the jeans. Based on the evidence of Detective Nguyen, the denominations and the packaging of the cash in the box were consistent with the accused being a person operating as a mid-level drug dealer.
Defence submission
For the accused, Mr Redmond accepted the evidence establishes that Mr Tri had some form of connection with the Rosewater premises and some form of relationship with the accused which, at its highest, might be a romantic relationship. He pointed to the documents in the vehicle in Mr Tri’s name, but with an address other than the Rosewater premises.
He submitted that I would need to be satisfied that the heroin found secreted in the wheel arch on 4 April 2016 was actually there when the vehicle was pulled over on 3 April 2016. He referred to the police compound as being ‘less than fully secured’.
He made the point that the accused is excluded from being a contributor to the mixed DNA profile on one of the containers (AW8) hidden in the wheel arch of the vehicle and on one of the duct tape packages inside that container. He said the evidence that her DNA was on the other container (AW15) was weak and even if it was her DNA, then secondary or tertiary transfer via Mr Tri could not be excluded as a possible explanation of how it came to be there. There was very little support for the prosecution case. He said the resealable bags were inconsistent with the packaging of heroin and the scales were ordinary kitchen scales which the swab result showed had no connection with controlled drugs. There was no duct tape or freezer bags located at the premises.
He submitted there was a reasonable hypothesis that the accused was in some form of relationship with Mr Tri who may well be a drug dealer, but that does not mean the accused is. Even if she did have some connection or involvement in drug dealing, it does not follow that she was in possession of the heroin in the car. He said that it cannot be inferred that the drugs were placed in the car at the Rosewater premises before Mr Tri left that day. It is possible the drugs were there for a longer period.
In regard to counts 4 and 5, he submitted it is not unusual for Vietnamese people to deal in cash rather than with banks. He said the cash found in the daughter’s bedroom confirms there is a reluctance on the part of the family to use traditional banking methods and so the daughter is more likely to save in cash. It would not be unreasonable to infer the jeans belonged to Mr Tri and it was his cash. He made the submission that unless the prosecution proved the accused was in possession of all the cash which was the subject of count 4, then the prosecution must fail.
Consideration of counts 1, 2 and 3
I am satisfied beyond reasonable doubt that the prosecution has proved the first element of each of the first three counts. The substance, the subject of each count, was heroin, which is a controlled drug.
I turn then to consideration of the first part of the second element of the offence, which is the primary issue for each of these three counts.
The prosecution did not make submissions distinguishing between evidence proving the accused’s possession of the heroin, the subject of count 1, and evidence proving the accused’s possession of the heroin, the subject of count 2 or 3. The case was conducted on the basis that the evidence proved the accused was in possession of all the heroin in the vehicle. Nevertheless, I have considered each count separately in the sense that I have considered each element of each count and paid particular regard to the evidence going to prove those elements when considering each count. The accused may be found guilty of one, two or all three counts or may be found not guilty of all three counts.
The prosecution relies entirely upon circumstantial evidence in order to prove that the accused was in possession of the heroin the subject of the first three counts. Because this is a criminal trial, I can only draw inferences which are reasonably open. If an intermediate fact is an indispensable link in the chain of reasoning, that must be proved beyond reasonable doubt.
I cannot return a verdict of guilty on any of the three counts unless the reasonable inferences to be drawn from the circumstances exclude any reasonable explanation consistent with the innocence of the accused. In other words, I must be satisfied not only that her guilt is a rational inference, but that it is the only rational inference that the circumstances I find proved enable me to draw.
I am satisfied the heroin that was found in the vehicle on 4 April 2016 was there when the police stopped the vehicle on 3 April 2016. Senior Constable Sergeant was present when the tow truck arrived on 3 April 2016 to take the vehicle to the Ottoway police compound. He followed the tow truck to that location and saw it positioned in an undercover location. It is a compound which requires a pass to enter into the main entrance area. There is a gateway that is key coded and separate gates with padlocks. Crime scene investigators and police security persons have the means of access. During business hours, a person may also gain access to the compound with the permission of the relevant staff. I do not find it to be a reasonable possibility that the heroin could have been secreted in the wheel arch during the period the vehicle was at the Ottoway police compound prior to the further search on 4 April 2016. The likelihood of some unidentified person secreting it in that location during that period of time is fanciful, particularly in light of the fact that heroin packaged in an identical way was located in the vehicle on 3 April 2016 soon after the vehicle was stopped on the roadside.
The accused was not physically in possession of any of the heroin located in the vehicle. It was not in her immediate custody. She was not a passenger in the vehicle. However, the concept of ‘possession’ is not so limited. A person may be in possession of an item if the person knowingly has the item elsewhere under their physical control and intends to exercise control over it to the exclusion of others. Control includes the power to dispose of the item. A person may have possession of the item jointly with another. Here, the prosecution case is that the accused was in joint possession of the heroin with Mr Tri. The prosecution must prove beyond reasonable doubt that the accused knew the heroin, the subject of each charge, was in the vehicle and intended to exercise physical control over the drug to the exclusion of all others except Mr Tri.
The vehicle in which the heroin was located and the driver of that vehicle have a connection to the Rosewater premises and therefore the accused. The vehicle was observed leaving the premises that afternoon and Mr Tri was in possession of a remote control that operated the garage door. Jeans belonging to a male were located in the walk‑in robe to the main bedroom, but there was no other evidence led as to whether a male appeared to be living or staying at the Rosewater premises at the time. Documents in Mr Tri’s name were located in the vehicle, but bearing an address other than the Rosewater address. There was no evidence of any items found in the vehicle or any DNA evidence or fingerprint evidence to connect the accused to the vehicle as a passenger or driver at any time. Mr Tri was present at the house five months later in September when the accused answered the door in her pyjamas. I am able to infer a close relationship between the accused and Mr Tri in March 2016, but there is insufficient evidence to be able to infer the precise nature of that relationship, including its duration or the living arrangements.
The prosecution submits that an inference can be drawn from all the circumstances that the heroin located in the vehicle was packaged at the Rosewater premises and secreted in the vehicle before it left that afternoon. In my view, such a finding would be an intermediate fact which I would characterise as an indispensable link in the chain of reasoning which must be proved beyond reasonable doubt.
I do not consider the fact that the vehicle left the Rosewater premises shortly before the heroin was located in the vehicle and the close relationship between the driver of that vehicle (Mr Tri) and the accused provides a sufficient basis to infer that intermediate fact. There is no evidence about how long the vehicle was there on that day. Nor was anything located at the Rosewater premises later that afternoon by the searching police officers that supports an inference that heroin had been packaged there. No illicit substances were found at the Rosewater premises at all. No illicit substances were detected from the swab of the electronic scales found on a chair at the dining table. No evidence was led of any duct tape being located.
There were some items at the Rosewater premises which might be indicative of drug trafficking, namely, the scales, the large amounts of cash and the resealable plastic bags. However, the multiple resealable plastic bags are more consistent with the intended sale of methylamphetamine rather than heroin. Those types of bags were certainly not used for the packaging of the heroin found in the vehicle. I note that an ice pipe was found at the Rosewater premises and that a 0.85g mixture containing methylamphetamine was found in the centre console of the vehicle in a plastic resealable bag with an ice pipe. One of the packages of heroin (count 1) was also found secreted in the centre console. However, that fact does not take the inferential reasoning process much further. The presence of those items at the Rosewater premises falls short of establishing that the accused was trafficking in drugs, let alone that the accused was in the business of selling heroin.
The presence of those items as pieces of circumstantial evidence does not, when considered in conjunction with the existence of a close relationship between Mr Tri and the accused, and the proximate time between the vehicle leaving the Rosewater premises and the discovery of the heroin, enable me to draw the inferences sought by the prosecution so as to find the intermediate fact proved.
A further piece of circumstantial evidence is the DNA evidence. I am satisfied that on one of the containers secreted in the wheel arch there was a mixture of DNA from two people (one being Mr Tri) and on the duct tape of a package inside that container there was a mixture of DNA from three people (one being Mr Tri), but that the accused is excluded as being a contributor to either of those two mixtures. The forensic science establishes a strong connection between those items and Mr Tri, however, it does not provide any evidence of a link between the accused and those items.
I am satisfied that on the other container secreted in the wheel arch there was a mixture of DNA from three people (one being Mr Tri). I find that 97% of the DNA in that mixture was from Mr Tri. There is some support for the inclusion of the accused’s DNA in that mixture, however, the evidence is weak because of a lack of available information in relation to the two minor contributors. Even if the accused was one of the two minor contributors to the DNA mixture, it is not possible to exclude the presence of her DNA being the result of secondary or tertiary transfer by Mr Tri rather than direct contact with the container. That is particularly the case given the close relationship between Mr Tri and the accused, which provides opportunity for secondary DNA transfer to occur.
I have considered the combined strength of all of the circumstances. Having drawn all the inferences reasonably open arising from all the circumstances I have found proved, I am unable to find the intermediate fact proved beyond reasonable doubt. Whilst I have a strong suspicion about the guilt of the accused, based on the evidence, I cannot exclude as a reasonable explanation consistent with the innocence of the accused that Mr Tri either on his own, or with others not being the accused, packaged that heroin at another location and secreted it in his vehicle at some time before his vehicle was observed that afternoon. The prosecution has not established beyond reasonable doubt that the heroin located in the vehicle, the subject of counts 1, 2 or 3, was in the possession of the accused. Accordingly, I find the accused not guilty of those three counts.
Consideration of counts 4 and 5
The cash, the subject of counts 4 and 5, was located at the Rosewater premises. I am satisfied the accused was living there with her two teenage daughters. Given the presence of men’s jeans in the walk‑in robe of the main bedroom, there may have been a male living there at the time or staying there from time to time who was in a relationship with the accused, but there is a paucity of evidence about that. It is possible that male was Mr Tri in light of the fact that in April 2016 he had a remote control to the garage roller door and in September 2016 he was present at the Rosewater premises when the police attended to arrest the accused who was in her pyjamas at the time.
Most of the cash, the subject of count 4 ($5,600 and $60 in a black box), was located in a drawer with a purse which I am satisfied belonged to the accused. I am satisfied the accused knew the cash was in the drawer and intended to exercise control over it to the exclusion of others or jointly with the owner of the jeans which were hanging in the walk‑in robe. I am satisfied the accused was in exclusive possession of the cash in her purse which was an additional amount of $545.
In regard to the remaining cash, the subject of count 4, there was little evidence about the contents of the walk‑in robe of the main bedroom and the location of the jeans. A photograph shows the front right pocket of the jeans which appear to be hanging up. The cash is tied with a rubber band in a bundle in the front pocket. Even though the cash was located in a pair of men’s jeans, those jeans are in an area which I can infer the accused used regularly to access her own clothes. It is a significant amount of cash ($2,250), and an unusual location to store such an amount. The amount is also consistent with the other amounts of cash found in other locations at the Rosewater premises. In all the circumstances, I am satisfied the accused knew the cash was in that location, had control of the cash and intended to exercise control over it exclusively or jointly with the owner of the jeans to the exclusion of others.
I turn to consider whether the prosecution has proved beyond reasonable doubt the existence of the relevant suspicion. In R v Nguyen[5] the Court said:
A suspicion that a fact exists is less certain than a belief in the existence of that fact. A belief is held on information which is accepted as reliable and implies a reasonable satisfaction that the fact is at least more likely to be true than any other alternative fact or facts. On the other hand, a suspicion that a fact exists, in the context of an investigation of the truth of that fact, is a working hypothesis for which there is some supporting material. There must be a rational connection between the supporting material and the suspicion. Mere curiosity, speculation or “idle wondering” about the existence of the fact is not the same as a suspicion that it exists.
[5] (2013) 117 SASR 432 at [21]
Senior Constable Howard gave evidence that based on information received from Detective Winterfield about what had been located in the vehicle together with the items located at the Rosewater premises (scales, the plastic resealable bags and the pieces of paper which he thought were tick lists), he formed the suspicion the cash was obtained through the sale of illicit drugs. He was not challenged in cross-examination regarding the formation of that suspicion. I find he had more than mere curiosity, speculation or ‘idle wondering’ about that fact and that the prosecution has proved beyond reasonable doubt he had the necessary suspicion at the time.
Was the suspicion a reasonable one? In R v Nguyen[6] the Court said:
The additional element of reasonableness means that the information or material from which the suspicion arises must not only rationally produce a suspicion in the mind of the police officer, but it must also engender that suspicion in the mind of a person thinking reasonably about that information.
[6] (2013) 117 SASR 432 at [22]
Even though during the course of the trial the prosecution abandoned reliance upon the pieces of paper being tick lists, I find it was not unreasonable for Senior Constable Howard to think they were tick lists at the time of the search. A suspicion held on reasonable grounds at the time of possession remains a reasonable suspicion for the purpose of this offence even if fresh facts come to light at the time of the hearing which show that it is no longer reasonable to hold that suspicion on those grounds.[7] Further, even though I am not satisfied beyond reasonable doubt the accused was in possession of the heroin in the vehicle, it was reasonable for that fact to have been one of the grounds upon which Senior Constable Howard formed the suspicion regarding the cash.
[7] aldwin v Samuels (1973) 6 SASR 144; Tepper v Kelly (1988) 47 SASR 271
In combination with the unusual location of the scales at the Rosewater premises (on a chair at the dining room table) and the large amounts of cash, I find that, with one exception, Senior Constable Howard’s suspicion that the cash, now the subject of count 4, had been obtained by unlawful means was a reasonable one to have had at the time.
I do not consider the suspicion was reasonable in regard to the cash in the accused’s purse. That is because of the relatively small amount of cash, the presence of a mix of all denominations of notes and the fact the cash was located in the purse rather than in a bundle in the drawer or in a box in the drawer.
The offence has been established in regard to the cash, the subject of count 4 (apart from the $545 in the purse) unless the accused proves, on the balance of probabilities, that she obtained possession of the cash honestly. The accused did not give evidence or call evidence. Detective Nguyen was briefly cross‑examined about the Vietnamese culture and tradition regarding retaining cash at home because of a suspicion of banks. I have considered that evidence, but it does not persuade me on the balance of probabilities that the cash was obtained honestly.

I therefore find the accused guilty of count 4 in regard to cash in the sum of $7,910.
I do not agree with the submission made by Mr Redmond that where the prosecution particularises multiple items of property in one count of unlawful possession on the Information, the charge must fail unless the prosecution proves the charge in relation to all the items. In R v Cook[8], it was held that the offence of Unlawful Possession is committed if the accused is in possession of one or more of those items of property which is reasonably suspected of being stolen or unlawfully obtained, subject to the defence being established on the balance of probabilities.
[8] R v Cook (2006) 95 SASR 201
Count 5 related to the cash in the sum of $3,540 in the spare bedroom which was, in all likelihood, the bedroom of one of the daughters of the accused. Even though the cash was in that bedroom, I am satisfied the accused was in the possession of that cash. Although the cash was in multiple denominations, it was not packaged in the box in a way that was at all consistent with it being the private savings of a teenage daughter. Being the main adult living at the Rosewater premises, I am satisfied the accused knew the cash was hidden in that location and intended to exercise control of it to the exclusion of others.
In light of the multiple locations of the cash in the house, the amount of cash and the fact the daughters of the accused were teenagers, I can exclude the possibility the cash, the subject of counts 4 and 5, was solely in the possession of one or both of the teenage daughters.
For the same reasons as set out in count 4, I am satisfied beyond reasonable doubt there was a suspicion held by Senior Constable Howard at the time that the cash was obtained by unlawful means, namely, the sale of drugs. I find that it was a reasonable suspicion held at the time. The offence is proved unless the accused proves on the balance of probabilities that she obtained possession of the cash honestly. She did not give evidence or call evidence. I have considered the evidence of Detective Nguyen, as set out above, regarding Vietnamese culture and tradition. I have also taken into account the fact the money was wrapped and tied in alfoil and placed inside plastic resealable bags inside the box. To my mind, that is inconsistent with the cash having been obtained honestly. I accept Detective Nguyen’s opinion based on his experience that people involved in the trafficking of drugs conceal cash in that way based on a belief it will prevent police being able to detect it in the event that sniffer dogs are called in for assistance.
I find the accused guilty of count 5.