R v Ostapuk
[2023] SADC 128
•25 September 2023
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v OSTAPUK
Criminal Trial by Judge Alone
[2023] SADC 128
Reasons for the Verdicts of his Honour Judge Allen
25 September 2023
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
The accused is charged with trafficking in a large commercial quantity of a controlled drug and trafficking in a controlled drug.
Question of whether accused in possession of drugs subject to charges.
Verdict: Guilty on both counts.
Controlled Substances Act 1984 (SA) ss 4, 32; Evidence Act 1929 (SA) s 34P, referred to.
R v Nikolic [2019] SASCFC 32; R v Baftiroski [2018] SASCFC 83; R v Soteriou [2013] SASCFC 1114; Shepherd v The Queen (1990) 170 CLR 573; R v Hillier (2007) 228 CLR 618; Catanzariti v The Queen [2021] SASCA 110, considered.
R v OSTAPUK
[2023] SADC 128Introduction
On an Information dated 9 October 2022, Mr Ostapuk is charged with the following offences:
Second Count
Statement of Offence
Trafficking in a Large Commercial Quantity of a Controlled Drug. (Section 32(1) of the Controlled Substances Act, 1984).
Particulars of Offence
Yuri Anatoliyovich Ostapuk on the 21st day of November 2019 at Dry Creek, trafficked in a large commercial quantity of a controlled drug, namely 1,4-butanediol, knowing or being reckless as to the fact the substance was a controlled drug.
Third Count
Statement of Offence
Trafficking in a Controlled Drug. (Section 32(3) of the Controlled Substances Act, 1984).
Particulars of Offence
Yuri Anatoliyovich Ostapuk on the 21st day of November 2019 at Dry Creek, trafficked in a controlled drug, namely buphrenorphine, knowing or being reckless as to the fact the substance was a controlled drug.
The accused was additionally charged with an offence of trafficking in a controlled drug, alleged to have been committed on 30 June 2019. That count (count 1 on the Information) was the subject of a nolle prosequi at the commencement of the trial, following my ruling on the voir dire. I have not taken that additional charge into account in any way in considering my reasons for verdict.
Mr Ostapuk elected for trial by Judge alone. These are my reasons for finding him guilty of the two offences.
Overview
The charges arise from a search conducted at Dry Creek at about 11pm on 21 November 2019, at a house in which the accused was residing. There were other adults present at the time.
In a small bedroom at the rear of the premises, police located several vessels containing a total quantity of 18.4kg of 1,4 Butanediol (also known as fantasy) and 12 strips of buprenorphine.
Other items located in the room included a set of digital scales, documents containing handwriting, which it was submitted were tick lists, and a wallet containing the accused’s driver’s licence and a bank card in the accused’s name.
General Directions
It is not necessary for a court having conducted a trial by judge alone to set out the standard and obvious directions of which a judge is bound to be aware. However, I remind myself of the following matters.
Mr Ostapuk is presumed innocent unless and until his guilt has been proven beyond a reasonable doubt. This requirement extends to proof beyond a reasonable doubt of every element of an offence. It is not sufficient for the prosecution to show a suspicion of guilt or to demonstrate that Mr Ostapuk is probably guilty. In making findings of fact, I must rely upon the evidence given by the witnesses and contained in the exhibits. I must apply my common sense. Each count must be considered separately.
In this case, two witnesses were called to give expert evidence. I note that persons who are qualified in a particular area may express an opinion. That opinion must be within their particular areas of expertise and that opinion must be based on their knowledge, training or experience. I am entitled to accept or reject any opinion evidence however before doing so I must consider the person’s qualifications, whether their opinion is based upon a fact I accept, whether the opinion is in dispute and whether it fits with any other evidence that I have heard and accepted on that topic.
Election not to give evidence
Mr Ostapuk elected not to give evidence in this Court. He was not bound to give evidence. He has the right to decline to give evidence. Because that is his legal right, I must not draw any inference adverse to him or the case he puts forward from the exercise of that right. There may be many reasons why he did not give evidence and I must not speculate on those reasons. I bear in mind that it is at all times, for the prosecution to prove its case beyond reasonable doubt.
Circumstantial evidence
In this case the prosecution relies upon circumstantial evidence. A guilty verdict cannot be returned unless the proven facts are such as to be inconsistent with any reasonable hypothesis other than guilt. Guilt must be the only rational inference the proven facts enable me to draw.
Background – matters not in dispute
There are a number of matters not in dispute which I find proven unless otherwise indicated. These matters were set out in a statement of Agreed Facts, tendered as Exhibit P1.
Statement of Agreed Facts
Property at 2/22 Flame Avenue Dry Creek
As at 21 November 2019, the accused resided at 2/22 Flame Avenue Dry Creek with others.
Drugs found by Leedham at Dry Creek in the rear bedroom
The drugs found at Dry Creek were analysed by a chemist at Forensic Science SA. That analysis determined:
The 12 strips located (item 15) in the silver container in the rear bedroom contained buprenorphine.
The strips contained a total of 96 milligrams of buprenorphine. That is a trafficable quantity of buprenorphine.
Various containers located in the rear bedroom contained a total of 18.397 kilograms of 1,4-butanediol as follows:
·Item 23 – glass bear shaped jar – 31 grams
·Item 24 – OTR water bottle – 166 grams
·Item 25 – squashed OTR bottle – 60 grams
·Item 26 – gold coloured container – 4.9 kilograms
·Item 27 – blue coloured container – 3.13 kilograms
·Item 28 – two containers in the Coles cooler bag – 10.11 kilograms
18.397 kilograms of 1,4-butanediol is a large commercial quantity of 1,4-butanediol.
Buprenorphine and 1,4-butanediol are controlled drugs.
Swabs taken from scales seized by Police at 2/22 Flame Avenue Dry Creek on 21 November 2019
A set of scales was seized at the premises one from the rear room (item 10).
A SAPOL Crime Scene investigator swabbed the scales with two swabs. One swab was to be submitted for the presence of DNA and the other for chemical analysis for the presence of drug residue.
The drug residue swab analysis from the rear room scales (item 10) found the presence of 1,4-butanediol.
The DNA swab from the rear room scales (item 10) became item 67.
DNA analysis
A reference DNA sample was obtained from the accused (item 43).
A swab of black tape (item 29) located around the cap of the gold container (Item 26) had a DNA profile too complex for analysis (the number of individuals in the profile is beyond the ability to interpret and analyse).
A swab of black tape (item 56) located around the top of a garbage bag inside the Coles cooler bag referred to above contained a mixed DNA profile which appears to originate from three people. This DNA profile obtained from the swab of the black tape is greater than 100 billion times more likely to have been obtained if the accused and two unknown individuals are the sources of the DNA rather than three unknown individuals.
A swab of black tape (item 59) located around the top of a garbage bag inside the Coles cooler bag had a DNA profile too complex for analysis (the number of individuals in the profile is beyond the ability to interpret and analyse).
A swab (item 67) of scales (item 10) located in the rear room obtained a mixed DNA profile which appears to originate from four individuals. This DNA profile obtained from the swab of the scales is greater than 100 billion times more likely to have been obtained if the accused and three unknown individuals are the sources of the DNA rather than four unknown individuals.
DNA transfer
The amount of DNA which might be deposited on an item will vary depending on many factors involved with transfer and persistence of DNA.
Primary transfer is when a particular person leaves their DNA on a surface by direct contact.
Secondary transfer occurs when DNA is transferred from one object, surface or person to another, via an intermediate object or person. For example, if two individuals shake hands, then the second person handles a door knob, DNA from the first person may transfer to the second during the handshake, and then be deposited on the doorknob when the second person touches it, without the first person ever having touched the doorknob.
Tertiary transfer is when a person’s DNA is indirectly transferred through two intermediaries. For example, the first person touches a doorknob, and then a second person touches the doorknob. The second person then handles a knife. DNA may be transferred from the first person to the doorknob, to the second person who deposits the first person’s DNA on the knife.
Quaternary transfer of DNA is when a person’s DNA is indirectly transferred through three intermediaries.
The likelihood of DNA being transferred via secondary, tertiary and quaternary will depend on a variety of factors including the amount of DNA initially deposited on an object, surface or person, the length of time objects make contact, the types of surfaces making contact such as porous or non-porous, the nature of the contact such as pressure or friction, and the surface areas of the items subsequently touched. Generally, additional intermediaries will result in less DNA being deposited on a further item, as not all of the DNA is transferred from one object to another during a contact.
Exercise book found on bed
The exercise book (Item 36, images 86 and 89 in P6), was located during the search by Officer Nate An on the bed in the rear room amongst paperwork.
Elements of the offences
Count 2
The elements the prosecution must prove beyond a reasonable doubt are:
1. The liquid found in the rear bedroom was 1,4 Butanediol;
2. 1,4 Butanediol is a controlled drug;
3. Mr Ostapuk trafficked in the 1,4 Butanediol on 21 November 2019 (i.e. he was in possession of at least part of the 1,4 Butanediol on that day, intending to sell at least 2kg he possessed);
4. Mr Ostapuk knew, or was reckless, that it was a controlled drug.
It is an agreed fact the six separate amounts of liquid found in the rear bedroom contained 1,4 Butanediol. 1,4 Butanediol is a controlled drug. I find those matters proved beyond a reasonable doubt.
The real issue is the third element. More particularly; whether Mr Ostapuk was in possession of any of the fantasy in the rear bedroom on 21 November 2019.
Count 3
In respect of this count, the prosecution must prove the following elements beyond a reasonable doubt:
1. The 12 strips in the silver container in the rear bedroom contained buprenorphine;
2. Buprenorphine is a controlled drug;
3. Mr Ostapuk trafficked in the burprenorphine on 21 November 2019 (i.e. he was in possession of at least part of the buprenorphine on that day, intending to sell at least 60mg of that drug);
4. Mr Ostapuk knew, or was reckless, that it was a controlled drug.
It is an agreed fact that the strips located in the rear bedroom contained buprenorphine. Buprenorphine is a controlled drug. I find those matters proved beyond a reasonable doubt.
Trafficking
It was agreed that the quantity in relation to each count was a trafficable quantity. Section 32(5) of the Controlled Substances Act (CSA) contains a reverse onus provision in relation to proof of the intention to sell. The section states:
If, in any proceedings for an offence against subsection (1), (2), (2a) or (3) it is proved that the defendant had possession of a trafficable quantity of a controlled drug, it is presumed, in the absence of proof to the contrary— (a) in a case where it is alleged that the defendant was taking part in the process of sale of the drug, that the defendant— (i) was acting for the purpose of sale of the drug; and (ii) had the relevant belief concerning the sale of the drug necessary to constitute the offence; or (b) in any other case—that the defendant had the relevant intention concerning the sale of the drug necessary to constitute the offence.
The primary case of the prosecution with respect to possession for both counts 2 and 3, is that Mr Ostapuk was in sole possession of the fantasy and the buprenorphine. The prosecution does not submit it is open to me to consider joint possession.
Section 4 of the CSA states:
possession of a substance or thing includes—
(a) having control over the disposition of the substance or thing; and
(b) having joint possession of the substance or thing;
At common law, possession refers to the power and intention to exercise control over something to the exclusion of all others, except those in joint possession. Whether the ‘included’ meaning in paragraph (a) above restates the common law or provides a wider definition has not been decided.[1] I proceed on the basis the common law definition applies. When I refer to possession below, I have applied the common law definition.
[1] R v Nikolic [2019] SASCFC 32 [16]; referring to R v Baftiroski [2018] SASCFC 83 [31].
Discreditable Conduct
The prosecution sought to prove Mr Ostapuk had sold drugs before, specifically fantasy. I will return to this evidence later in these reasons.
Expert evidence
Evidence was given by two experts. There was no dispute about their expertise. The issue is what inferences should be drawn from the evidence given by each in the context of all other evidence in the case.
Toan Tri Nguyen
Detective Brevet Sergeant Nguyen is an expert in the fantasy and buprenorphine trade. The evidence of Detective Nguyen took the form of:
1. Affidavit sworn 6 August 2021 (Exhibit P17)
2. Affidavit sworn 7 September 2021 (Exhibit P18)
3. Transcript of evidence from previous trial (Exhibit P19)
Detective Nguyen gave evidence generally about fantasy, and how it was ingested. He also gave evidence about how fantasy was sometimes packaged and sold. Smaller quantities of fantasy are often ingested or sold in smaller containers, such as syringes without needles attached, or small soy sauce containers. Larger quantities are usually packaged in various sized plastic bottles. Larger vessels such as litre/multi-litre containers are used to supply larger quantities and seen at commercial level. The use of plastic spring water bottles is a technique commonly used to disguise the drugs, due to their clear and colourless appearance, similar to water.[2]
[2] Exhibit P17, paragraph 98.
Between October and December 2019, 1 millilitre of 1,4 Butanediol (marketed as fantasy) was worth between $2-5. One litre was worth between $1,000-$1,500.
Buprenorphine is a prescription drug marketed under different names such as Suboxone. It is used in the treatment of opioid addiction and as pain relief. Buprenorphine is a drug often trafficked and used inside correctional institutions by prisoners. There was limited evidence available about its pricing, but as at October to December 2018, one 8mg strip was worth approximately $30.[3]
[3] Exhibit P17, paragraph 81.
The Detective also gave evidence about indicia of involvement in drug trafficking. These include unexplained wealth, cash, electronic scales, new/unused plastic containers of various sizes, quantities of new/unused plastic resealable bags, handwritten notes or ‘tick lists’, multiple new/used mobile telephones and SIM cards, mobile text messages, increased internal and external security including CCTV cameras, stolen goods and weapons. The Detective gave evidence about what might be referred to as a ‘personal equipment kit’, often used by drug users and dealers carrying the items useful to the trade of illicit substances.[4]
[4] Exhibit P19, page 91.
Detective Nguyen was asked to comment on the entries in the notebook and those photographed in Exhibit P5. He advised that the entries with HB/B are common abbreviations/codes used within the illicit drug trade in reference to powder drugs. There were some entries with numbers/sums in several photographs depicted that could be tick lists, however without further clarifying features he was unable to state whether the entries were consistent with a tick list.[5] The reference to ‘60ml’, for example on photograph 39, could be references to fantasy, which is predominantly a liquid drug.[6] The reference in photograph 45 to ‘drink, 20 ml’ could be a reference to fantasy, as ‘drink’ is a commonly used descriptor for fantasy.[7]
[5] Exhibit P18, paragraph 3.
[6] Exhibit P19, page 67.
[7] Ibid, page 101.
Detective Nguyen was taken through various photographs depicted in Exhibit P5. He agreed that scales were seized, which can often be used to weighing drugs for sale upon purpose. In cross-examination he agreed that digital scales are rarely used to measure fantasy, due to it being in liquid form.[8]
[8] Ibid, page 117.
There was a CCTV system hard drive, which are often used so that the occupants can see who is coming.
Ian James Beckwith
Mr Beckwith gave evidence at trial. He stated that in analysing handwriting between a known and an unknown sample he makes an evaluation between two competing propositions, namely, whether the writing was written by the writer of the known material or whether the writing was written by someone other than the writer of the known material.[9] There are gradings under which a finding can be made of preference for one of the two propositions.
[9] T172.15.
Mr Beckwith is an expert in handwriting comparison. He compared the handwriting samples of Mr Ostapuk. The detailed analysis conducted by Mr Beckwith of the handwriting samples is set out in Annexure A to these Reasons.
In cross-examination, Mr Beckwith agreed that handwriting is a learned neuromuscular activity, which is developed over time. Handwriting becomes a subconscious activity as adults get older, as they think about the content of letters not how they are formed.[10] He agreed that handwriting can be affected by various factors including influence of drugs or alcohol, medication, illness, writing position, fatigue, emotional conditions, stress and writing instrument.[11] He accepted there is no way of dating the seized samples.[12]
[10] T183.
[11] T185-186.
[12] T186.31.
Nikola Sargent
Brevet Sergeant Nikola Sargent gave evidence at trial. She attended at the accused’s premises at Dry Creek on 21 November 2019 at about 11pm, with Senior Constable Cheetham to conduct a search under the Firearms Act 2015.
She was on a rear cordon upon arrival, in the backyard of a neighbouring property. She prepared a mud map of the property on the day, tendered as Exhibit P2.
While in the cordoned position, Brevet Sergeant Sargent observed two males walking towards the back door, down the hallway towards the laundry. One of the males was the accused. There were a number of people present in the property, including a few males, another female and a number of children. All civilians were moved to the living area while police searched the premises.[13]
[13] T107.4.
Brevet Sergeant Sargent then assisted with the search of the property. She was advised that quantities of a liquid substance were located at the rear bedroom of the property. She then became the exhibits officer, and conducted a video walkthrough of the premises.
The recording of the walkthrough was tendered as Exhibit P3. The exhibits log was tendered as Exhibit P4. Photographs were taken of the exhibits in situ, tendered as Exhibits P5 and P6.
In cross-examination, the witness could not recall if the walkthrough was recorded prior to photographs being taken, as other officers provided her photographs at the conclusion of the search.
Within the rear bedroom, a Coles cooler bag was located on the floor at the end of the bed. There was a blue plastic container in front of the TV cabinet. The same TV cabinet had a wallet on the shelf, which contained the accused’s driver’s licence and bank card. A gold-coloured container was located on a table next to the bed, alongside a phone and other items. The substance in that container returned a positive TruNarc test result for 1,4 Butanediol. Other bottles containing liquid were seized from the rear bedroom.[14]
[14] T113-115.
The documents and pieces of paper depicted in the photographs were also seized from the rear bedroom.
Officer Sargent was provided documents, Suboxone strips, a small vial containing clear fluid, syringes, that were within a silver box that had been emptied out, by Officer Leedham that had been located in the rear room. There was a screen depicting CCTV footage in the front detached room.
Once the search was completed, Officer Sargent was responsible for returning the seized items to the Elizabeth Police Station. She was involved in the decant of the liquid from the seized bottles. The decant commenced on 25 November 2019 at 2.20pm and continued on 1 December 2019.[15] The witness gave evidence about the safeguards put in place during a decant procedure to prevent contamination. The video of the decant process was tendered as Exhibit P8.
[15] T116.
In cross-examination, Officer Sargent was taken through the walkthrough video. She agreed she wore the same black gloves throughout the search and opened doors in the premises. It was put to the witness that she touched the black plastic inside the Coles bag with her left hand, while holding the camera with her right hand. She denied this and said she believed she had just leant forward. The witness did not believe she touched the black plastic inside the bag. She would assume it was her waist or upper thigh but could not be certain. She did not recall moving the plastic bag or touching the bag. She said she was holding a torch throughout the walk-through.[16] She agreed it could be possible that she touched the plastic with her left hand but did not recall doing so.[17]
[16] T128-129.
[17] T129.33.
Richard John Leedham
Brevet Sergeant Leedham was the investigating officer. He attended at the premises in Dry Creek at about 11pm on 21 November 2019. Upon arrival there were four adults and two children present at the house.
Brevet Sergeant Leedham was responsible for searching the rear bedroom of the house. It was about three by three and a half metres. He located a silver knife container in the rear corner under a table which contained some drug paraphernalia, some plastic containers, a mobile phone, a wallet, a 20 litre blue container with clear liquid, a gold-coloured five litre container with black electrical tape around the lid.[18] He removed the tape to test the liquid using a TruNarc device.
[18] T135.3.
The wallet was located on a wooden unit underneath the television in the room. The phone was on the bedside table.
The drug paraphernalia within the silver knife container consisted of scales, some cardboard with writing on it, further written materials, 12 Suboxone strips, a vial with clear fluid, and syringes without needles.[19]
[19] T138.
The Detective gave evidence about the various locations in which the containers were seized from the rear bedroom.
Mr Ostapuk was arrested at about 11.59pm that evening. An interview was conducted at about 1.08am at Elizabeth Police Station. That interview was tendered as Exhibit P10 and played.
In cross-examination, Brevet Sergeant Leedham was asked questions about the other people residing at the premises. He agreed there were various people in the house at the time, several of whom had criminal histories of possessing controlled drugs and equipment to use with controlled drugs, suggesting they were drug users at the relevant times.[20] He agreed it was determined not to take handwriting samples or DNA samples of the people present at the premises.[21]
[20] T151-152.
[21] T153.
Brevet Sergeant Leedham could not recall if the accused had any items in the living room of the house.
He agreed that some of the items were moved to determine what they were, or to obtain a better look. He said that he would change gloves after handling an item of interest. He did not have a specific recollection of doing so on this occasion, and agreed it was possible that he kept the same pair of gloves on throughout this process.[22]
[22] T157.
Brevet Sergeant Leedham agreed that the photographs of the bedroom depicted a chest of drawers containing children’s clothing and toys and a box containing children’s toys. He agreed there was a pair of shoes next to the blue container under the TV unit that looked like small shoes. He said they could be toys. Where the wallet was found on the shelf, there was a number of toiletries including cleaning liquid.[23]
[23] T158-159.
Brevet Sergeant Leedham agreed that in relation to the scales found in the silver box, the DNA notification told him that the DNA of a known person other than Mr Ostapuk had been located. That DNA was of a Brooke Teagan Sweeney, who has various convictions for drug offending. The tape around the black plastic in the cooler bag also had DNA attributable to a Michael Andrew Cutting. Mr Cutting also has a number of convictions for drug offences.[24]
[24] T164.
Record of Interview
In his interview, the accused said he was sleeping in the living room of the premises at the time police arrived.
There were another four or five people living at the address at the time. He had been living at the house for almost two months. He said that he slept in the living room, but sometimes he slept in the front bedroom, backroom and garage. His belongings were in the backroom and living room. He sometimes slept in different rooms depending on where the kids fell asleep. He paid $300 per week rent at the address. He did not have a job and was on Centrelink.
Mr Ostapuk was asked about the rear bedroom next to the laundry. He said he might have some personal belongings in there such as clothes, wallet and some paperwork. He had last slept in there the day prior. He denied knowledge of the containers which had the suspected fantasy. He denied knowledge of the Suboxone strips and said he didn’t really take Suboxone. He said he slept in the rear bedroom three or four times a week.
Addresses of Counsel
Prosecution submissions
The prosecution commenced submissions by identifying what was really in dispute, that is, the question of whether the accused was possessed of the drugs subject to the charges.
The prosecution then turned its focus to the record of interview participated in by the accused, Exhibit P10. It was submitted that I should reject the statement of the accused when he said he was sleeping in the living room as this was implausible given that he had been living at the address for two months. My attention was drawn to the statement of the accused that his personal belongings were in the backroom where the drugs were located, although he also stated that some of his property was in the front room and the living room. The accused stated in his interview that he had slept in the room where the drugs were located the day before. The prosecution submitted that I should reject any suggestion that he was staying anywhere other than in the backroom, given the possessions of the accused were there.
The prosecution then turned onto the circumstantial evidence which, it was submitted, placed the drugs in the possession of the accused. The first of those was the handwriting which the prosecution submitted was on numerous pages from several documents, and that most of the handwriting was found on documents within the silver knife box in the rear room, apart from an exercise book found on the bed. It was submitted that on those documents there was moderate support that it was Mr Ostapuk’s handwriting on pages which include refences to liquid items.
On the prosecution case, it was submitted that the references to 60mls, 50mls and 7 litres were references to a liquid drug and that the lists were tick lists for the sale of fantasy. It was submitted that the list was consistent with a list of past sales of drugs, namely fantasy.
The prosecution submitted a further piece of circumstantial evidence placing the drugs in the possession of the accused was the presence of a DNA profile matching that of the accused on a set of scales that were also inside the knife box. Those scales also were swabbed and returned a positive result for 1,4 Butanediol.
Reference was also then made to the evidence of Detective Nguyen regarding 1,4 Butanediol being sold in syringes or vials and that there were three syringes and a vial located in the same knife box.
The prosecutor then turned to the evidence of the investigating officer with reference to the video walkthrough of the property, Exhibit P3. On the topic of the possibility of secondary transfer of DNA as a consequence of the walkthrough, the prosecutor highlighted that the concession of the investigating officer touching the Coles bag occurred after a period of cross-examination and that this concession may have arisen out of fairness in her approach.
The prosecutor then drew together the primary pieces of evidence relied upon to prove that the accused possessed the drugs subject to the charges as follows:
1.The accused resided at the house;
2.The DNA located on the scales in the rear room inside the knife box;
3.The presence of Butanediol on the scales;
4.The DNA profile on the tape from the garbage bag inside the Coles bag containing the Butanediol;
5.The presence of the accused’s identification and bank card in the rear room on the shelves in proximity to the location of the drugs in the knife box; and
6.The documentation located in the knife box, the exercise book located on the bed and the dual purpose for those materials, namely:
i.The analysis of the handwriting in those documents with moderate support that some of the writing was consistent with Mr Ostapuk’s handwriting and strong support that some of the writing was consistent with Mr Ostapuk’s handwriting; and
ii.The Soteriou[25] use in that some of the writing amounts to a tick list, evidencing previous sales of fantasy.
[25] R v Soteriou [2013] SASCFC 1114.
The final position submitted by the prosecution was that the items of circumstantial evidence combined were sufficient to prove that the accused was in possession of the drugs subject to the charged offences and in those circumstances, the offences have been proved beyond reasonable doubt.
Defence submissions
At the outset, defence counsel confirmed that the only issue in contest at trial is that of whether the prosecution can prove beyond reasonable doubt that the accused was possessed of the drug subject to the charges. Defence counsel quite correctly conceded that if I were to find possession proved beyond reasonable doubt, then the charges would also be made out.
Defence counsel accepted forensic contest was an all or nothing approach on the issue of possession.
Defence counsel emphasised that the prosecution case was one of sole possession, that is that the prosecution did not at any time suggest that a path to guilt was through the accused being jointly possessed of the drugs subject to the charge with another person.
Defence counsel submitted that there were five broad categories of evidence that lead to the conclusion that possession, on the part of the accused, had not been proved beyond reasonable doubt.
The first category is the location of the drugs. It was submitted that the rear room, in which the drugs were located, was cluttered and that the containers in which the liquid, fantasy was found would not seem out of ordinary in those circumstances. This submission applied equally to the knife container, and it was suggested that the knife container would not have looked out of place at all in the rear room.
It was submitted that the water bottles containing fantasy behind the television would not necessarily have been seen and even if they were, the appearance of those exhibits was innocuous. It was also submitted that the blue cooler bag within which the larger containers were found would not have looked out of place as it was zipped up and the contents were not visible.
Defence counsel also submitted that it is hardly surprising that the accused’s wallet was located in the room, given his comments to police regarding sleeping in that room the morning before the police search. Defence counsel also suggested that whilst the accused made admissions to having an Adidas bag containing property in that backroom, the presence of that particular item was not obvious from the evidence. It was submitted by defence counsel that this was a household where people would sleep in different rooms at different times.
It was submitted that items of children’s clothing, a box of toys and a small pair of shoes could be used to found the inference that it was a child’s bedroom, although properly conceded that the room could equally be described as a spare room, given the contents in the room generally. It was submitted, in summary, that evidence of the accused’s wallet being present in the backroom does not amount to evidence that the accused was the person with exclusive access to the room, and the accused’s admissions to having slept in the room prior to police arrival did not mean that the drugs were in his exclusive possession.
It was submitted that the evidence was insufficient to make a finding that the room that the drugs were located in was able to be locked or secured.
On the topic of the handwriting analysis, defence submitted that some of the documents seized by police did not amount to a tick list and if it was, then the list was more consistent with past sales of a powdered drug, not a drug subject to these charges.
Defence highlighted the opinions from the handwriting expert, Mr Beckwith, who gave moderate support the accused not being the author of the handwriting on various documents seized and of the entirety of the Spirax notebook (FADC13) was written by someone other than the accused.
Defence also submitted that the handwriting analysis was incomplete in that not all of the writings seized was subjected to analysis. The Office Mac Notebook depicted in photographs 86 and 87 of Exhibit P6 with the subject of an opinion from Mr Beckwith that there was strong support that the accused was the author of those documents. Defence counsel highlighted what was said to be a ‘critical dissimilarity’ in the handwriting, that being the formation of the dollar signs present. The presence of two strike-through lines on the dollar sign, as opposed to a single strike-through line, reveal dissimilarity in the submission of defence counsel and was significant enough to call into question the opinion of the expert.
When challenged about that aspect of the matter, defence counsel conceded that the methodology of the expert incorporated the highlighted dissimilarities when settling on his opinion.
Other factors highlighted by defence counsel calling into question the opinion of Mr Beckwith included a submission that the accused appeared fatigue at the time of the writing sample and that the environment in which the handwriting sample was provided would have impacted upon the cogency of the sample.
Defence counsel also submitted that the writing depicted in photograph 69 of Exhibit P5, a two-sided piece of paper, has contributions from two different writers.
Defence counsel then moved on to the third category of evidence being ‘other indicia of trafficking’.
Defence counsel submitted that in reality, there was an absence of additional indicia of sale. Defence counsel urged me to discount the presence of CCTV as being indicative of drug trafficking. The absence of things such as multiple mobile telephones, unexplained wealth, cash, electronic evidence such as text messages indicative of previous trafficking, and weapons are absent in this case.
The fourth category of evidence identified by defence counsel is the DNA evidence. The focus of defence was on two items located in the backroom upon which a DNA profile consistent with that of the accused was located. The first of those was digital scales located within the silver knife box. From those scales, a mixed profile of four individuals was obtained. One of those individuals was the accused. One was a profile of Brooke Teagan Sweeney, together with two further unknown contributors. Defence counsel submitted that the evidence of Detective Leedham gave rise to the possibility that the presence of a DNA profile consistent with that of the accused was explicable by way of secondary or tertiary transfer as a consequence of the police officer admitting that he would have moved the scales to see what was under them whilst wearing the same gloves that he had put on when he started searching that particular room. In essence, it was submitted that there is a possibility that the accused never had any direct contact with the scales.
A more detailed submission was advanced in relation to the presence of the DNA profile of the accused being present on the black tape used to seal the containers within which the fantasy was located. From that tape, a profile with three contributors was extracted, one of those contributors being the accused. It was submitted that, again, secondary or tertiary transfer could have occurred as a consequence of Detective Leedham handing those containers, although the Detective was not necessarily prepared to accept this hypothesis. A further alternative hypothesis for secondary or tertiary transfer was the removal of the containers from the rear room to be logged by the exhibits officer on the kitchen table. A third suggested possibility for secondary or tertiary transfer was from Officer Sargent handling the exhibit having touched the bathroom and toilet door handles prior to touching the exhibits. Officer Sargent was reluctant to accept this as being something likely, although when pressed suggested that it could have been a possibility. It was also suggested by defence counsel that there is a possibility of contamination during the course of the decant of the drugs from the containers.
The final category of evidence referred to by defence counsel is a consideration of others present at the house. It was submitted that there were four other people present in addition to the accused, three of whom have an association with drugs. Defence counsel reiterated at this point that there were two other identifiable DNA profiles from the exhibits associated with the scales and containers of fantasy.
The ultimate submission advanced by defence counsel was that the evidence was insufficient to prove the accused was in possession of the drugs the subject of the charges.
Discussion
It is well established that where a case is premised entirely on circumstantial evidence, the trier of fact is required to consider the whole of the evidence in assessing whether the prosecution have proven the charges beyond reasonable doubt. As stated by Dawson J in Shepherd v The Queen:[26]
As I have said, the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact — every piece of evidence — relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.
[26] (1990) 170 CLR 573 at 579-580.
I remind myself of the remarks of Gummow, Hayne and Crennan JJ in R v Hillier:[27]
It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.
The force of that proposition is well illustrated by the decision in Plomp v The Queen. There, this Court held that the motive of the accused to murder his wife (he having proposed marriage to another woman on the representation of his being a widower) was one circumstance to be taken into account in deciding whether he had killed his wife while they were surfing alone together, at dusk, in apparently good conditions. His application for special leave to appeal against conviction was refused upon the basis that it was open to the jury to be satisfied beyond reasonable doubt that he had murdered his wife.
Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal.
[citations omitted]
[27] (2007) 228 CLR 618 at [46] per Gummow, Hayne and Crennan JJ.
Interview of the accused
There are aspects of the record of interview of the accused that are unsatisfactory and which must be rejected as not being reasonably possibly true. I find that the denials of the accused, of knowledge of the drugs in the record of interview, are not reasonably possibly true.
I reject the claim by the accused that he was sleeping in the living room and that he had no room of his own at the property. This is at odds with the length of time that he had resided at the property (almost two months) and the $300 per week he stated he was paying as rent.
Having made this finding, this does not add to the prosecution case. It is not makeweight for the Crown. I remind myself that at all times it is for the prosecution to prove its case beyond reasonable doubt.
I do accept the accused’s admissions to items of personal property in the rear bedroom, such as clothes, wallet and paperwork, as this is supported by other evidence.
DNA evidence – secondary and tertiary transfer
I am unable to exclude as a reasonable possibility that the DNA profile matching that of the accused was deposited on the black tape around the top of the garbage bag (item 56) and the digital scales via secondary or tertiary transfer. I exclude this evidence from my consideration in any way that is adverse to the accused as to whether the prosecution has proved beyond reasonable doubt that the accused was in possession of the drugs subject to the charges. However, I do take the DNA evidence into account when considering the defence hypothesis that the drugs were possessed by someone other than the accused.
Handwriting
Having regard to all of the evidence, and noting the criticisms of the handwriting evidence, I accept the opinions of Mr Beckwith. It follows that where Mr Beckwith has identified handwriting as moderately supporting or strongly supporting the hypothesis that the accused was the writer of the unknown sample, I accept the writing is that of the accused. Whilst it may be that, on occasion, the handwriting may have been authored by someone other than Mr Ostapuk, this does not detract from the fact that his handwriting is present elsewhere. Further, his handwriting predominates throughout the analysed samples.
Handwriting – permissible use
Following my ruling on the preliminary argument regarding the other handwritten documents, that is handwriting relating to weight as opposed to liquid amounts, the documentation nevertheless remains relevant and admissible as a body of circumstantial evidence on the topic of possession. The fact that documents containing the handwriting of the accused and are located in the same room as the drugs and wallet of the accused, and indeed, on the notepads found inside the knife box, together with the vials, syringes, scales with traces of 1,4 Butanediol and the buphrenorphine, the subject of count 3, is a piece of circumstantial evidence to be considered on the question of whether the prosecution has established possession of the drugs subject to the charges beyond reasonable doubt.
Evidence of discreditable conduct
Section 34P of the Evidence Act states:
34P—Evidence of discreditable conduct
(1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b) is inadmissible for that purpose (impermissible use); and
(c) subject to subsection (2), is inadmissible for any other purpose.
(2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a) the judge is satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant; and
(b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
…
(5) The court may, if it thinks fit, dispense with the requirement in subsection (4).
Having accepted the evidence of Mr Beckwith, I turn to consider the prosecution submission that some of the handwritten entries in FADC12 and FADC13 are references to past drug sales of fantasy.
The evidence of Detective Nguyen, Exhibit D19, was unchallenged in terms of reference to liquid measure, such as litres (L) and millilitres (ml), as being consistent with or referable to sales of fantasy. Detective Nguyen also confirmed his opinion that the documents were ‘tick lists’, referring to previous transactions involving fantasy.
Having regard to the evidence and submissions made by both the prosecution and defence, I am satisfied that the references to liquid measurements in FADC12 and FADC13 are references to previous transactions in fantasy. I am satisfied that Mr Ostapuk has sold fantasy in the past. I am satisfied that the use of that evidence has probative value which substantially outweighs any prejudicial effect it might have on Mr Ostapuk and has strong probative value having regard to the issues at trial.[28]
[28] Ibid.
The use of the evidence just identified can be kept separate from any impermissible use, namely that he is a bad person and for that reason more likely to be guilty.[29] I will not reason that solely because Mr Ostapuk has sold in the past, he is in possession of any of the fantasy in his home, nor that, if he is in possession, he must have intended to sell.
[29] Ibid at s 34P(1).
Noting that the documents and the relevant transactions in the documents are unable to be dated, I cannot find that the accused was engaged in the business of selling drugs.[30] Accordingly, I do not use the evidence in that way. I do, however, use the documents as evidence of previous involvement with fantasy, capable of rebutting any innocent explanation for the presence of the fantasy in the backroom, in my assessment as to whether it is proved beyond reasonable doubt that the accused possessed the fantasy.
[30] Catanzariti v The Queen [2021] SASCA 110.
I make it clear that because I have found that the accused has engaged in transactions involving fantasy in the past, which amounts to discreditable conduct, I must not reason he is the type of person who therefore would have committed the offences alleged. I specifically warn myself against this impermissible form of reasoning.
Location of the bottles containing 1,4 Butanediol
In addition to the larger containers within which 1,4 Butanediol was located (FADC26, FADC27 and FADC28), there were also three smaller containers in which 1,4 Butanediol was located (FADC23, FADC24 and FADC25). The location of the containers warrants some discussion.
One of the large blue ‘jerry can’ style containers (FADC27) was located on the floor in front of the television stand. The three smaller containers referred to above were located on the television stand, behind the television itself. The photographs (Exhibit P5) demonstrate the rather obvious presence of these objects. Whilst it is accepted that the smaller containers were behind the television, they could not be said to be well hidden.
It follows that the presence of those containers holding the 1,4 Butanediol would have been evident to the occupant of the room. I have already found that the occupant of the room was the accused. It follows that the accused knew these items containing 1,4 Butanediol were there.
Counts 2 and 3 inclusive
Having regard to all of the evidence, I exclude as a reasonable possibility that the 1,4 Butanediol and buprenorphine were possessed by someone else or were jointly possessed by the accused and another person or persons. Whilst there are multiple contributors to the DNA profiles and there were a number of persons present at the property with prior drug-related convictions, the combined strength of the evidence places the drugs subject to the charges in the sole possession of the accused. In making this finding, I have regard to the submissions of defence counsel which, self-evidently, I do not accept.
The accused was a resident of 2/22 Flame Avenue, Dry Creek. I do not accept that the accused was without his own room at the property. It is unbelievable that he was nomadic within the house, having been there for almost two months, whilst apparently paying rent of $300 per week.
The accused admitted sleeping from time to time in the room in which the drugs were located. There is also the presence of the wallet and contents of the accused, together with his admissions to having clothes in the room, and the presence of documentation with handwriting which, in the opinion of Mr Beckwith, provides moderate and strong support to the hypothesis that the writer of that handwriting is the accused, which leads me to find that the rear room was the bedroom of Mr Ostapuk.
Further, the relatively obvious presence of containers which contents were 1,4 Butanediol in the room, together with the lists in the handwriting of the accused in the rear room and, importantly, inside the knife box in which the buprenorphine, the subject of count 3, and the accoutrements associated with 1,4 Butanediol were found in provides cogent evidence linking the accused to the drugs.
In terms of the handwriting evidence, it is not only about what is written and by whom, it is about where it was located and what other items were located in that proximity.
Having analysed the circumstantial evidence relied upon by the defence to suggest that the drugs were in the possession of others, I reject this as a reasonable possibility.
Having made this finding, I am required to consider whether the prosecution has proven possession beyond reasonable doubt.
Having regard to all of the evidence and giving due diligence to the submissions made by defence counsel, I find each element of both offences proved beyond reasonable doubt.
Annexure A
Exhibit
Description
Results of comparison
Known writer
Conclusions
20/A00983-11: Torn cardboard, with handwriting commencing …
14.01
‘Wam - $50 …’
Similarities
Size, slope, general proportions, spacing, margin habits and formation of characters including a, B, c, D, E, g, h, n, y, 4, 5, and $.
Dissimilarities
Formation of L.
OSTAPUK
Moderately supports P1 over P2
20/A00983-12: Notepad, with handwriting examined on pages commencing …
15.01a
‘Sloper $350 …’
Similarities
Slope, general proportions and formation of characters including E, e, n, p, y, 5 and 0.
Dissimilarities
Size, spacing, margin habits and formation of 4 and $.
OSTAPUK
Moderately supports P1 over P2
15.01b
‘Michael $200 …’
Similarities
Slope, general proportions and formation of characters including a, c, e, G, h, M, n, and 0.
Dissimilarities
Size, spacing, margin habits and formation of $.
OSTAPUK
Moderately supports P1 over P2
15.01c
‘Glen ½B …’
Similarities
Slope, general proportions and formation of characters including a, B, c, D, e, G, h, k, m, n, p, y, 5 and 0.
Dissimilarities
Size, spacing, margin habits and formation of $.
OSTAPUK
Moderately supports P1 over P2
20/A00983-13: Spirax notepad, with handwriting examined on pages commencing …
16.01a
‘OZ = 3200B …’
Similarities
Size, slope, general proportions, margin habits and formation of characters including a, B, e, G, h, K, k, m, n, p, y, 2, 5, 8 and 0.
Dissimilarities
Formation of 4 and $.
OSTAPUK
Moderately supports P1 over P2
16.01b
‘Scotty ½B …’
Similarities
Size, slope, general proportions, margin habits and formation of characters including a, B, d, e, G, g, h, n, y, 4 and 0.
Dissimilarities
Formation of c and $.
OSTAPUK
Moderately supports P1 over P2
16.01c
‘Yiros …’
Dissimilarities
Size and formation of n, O, o (one form), P, Y, y, 0 (one form) and $.
OSTAPUK
Moderately supports P2 over P1
20/A00983-19: Torn page, with handwriting commencing …
17.01
‘6 cash …’
Similarities
Slope, general proportions, margin habits, spacing and formation of characters including a, B, c, e, g, h, Y, 8 and 0.
Dissimilarities
Size, amount of connectivity and formation of n, 4 and $.
OSTAPUK
Moderately supports P1 over P2
20/A00983-36: OfficeMax notebook and notepad page, with handwriting commencing …
18.01
‘James - $200 …’
[Notebook]Similarities
Size, slope, general proportions and formation of characters including A, a, B, d, E, e, G, h, m, n, o, y, 5, 9 and 0.
Dissimilarities
Margin habits and formation of $.
OSTAPUK
Strongly supports P1 over P2
18.03
‘Dean Wells …’
[Notebook page]Similarities
Size, slope, general proportions, margin habits and formation of characters including A, a, C, D, d, E, e, f, G, g, h, K, k, M, m, n, W, w, y, 4, 5, 8 and 0.
Dissimilarities
Formation of $.
OSTAPUK
Strongly supports P1 over P2
19/B68351-17: A4 page, with handwriting commencing …
28.014
‘2B - $900 …’
Similarities
Formation of characters including B, m, 5, 7, 8, 9 and 0.
Dissimilarities
Formation of $.
OSTAPUK
Moderately supports P1 over P2
0
5
0