R v Panetta - [2013] SADC 67

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PANETTA
Criminal Trial by Judge Alone
[2013] SADC 67
Reasons for the Verdict of His Honour Judge Chivell
24 May 2013
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
Charge of trafficking in a controlled drug.
Verdict: Guilty
Controlled Substances Act 1984 s 4, s 32(3), s 32(5), s 33P; Juries Act 1927 s 7(1); Evidence Act 1929 s 34, s 34P(4), s 34R; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 Schedule 1, referred to.
R v Sultana (1994) 74 A Crim R 27; R v McGhee (1993) 61 SASR 208; R v GNN (2000) 78 SASR 293; R v R, R & R, LJ [2008] SASC 35; Azzopardi v R (2001) 205 CLR 50; R v Weetra [2010] SASCFC 52; R v Frangos (1979) 21 SASR 331; He Kaw Teh v R (1985) 157 CLR 523; Tabe v R (2005) 225 CLR 418, considered.

R v PANETTA
[2013] SADC 67
Introduction

Mr Panetta is charged with trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (‘CSA’). Particulars of the charge are as follows:
Daniel Lee Panetta on the 19^th day of August 2011 at Woodville South, knowingly trafficked in a controlled drug.
Mr Panetta elected to be tried by a judge sitting without a jury pursuant to s 7(1) of the Juries Act 1927. He was represented by Mr P Morrison. Ms N Zuckerman appeared for the Director of Public Prosecutions.
The charge relates to the discovery by police of a plastic drink bottle containing 69 grams of 1,4-Butanediol, known as ‘fantasy’, under the bed in Mr Panetta’s bedroom, and two small plastic tubs containing 2.15 grams of fantasy in a car parked at the property, during a search of the premises occupied by Mr Panetta and his parents, on 19 August 2011.
Discreditable Conduct
The prosecution gave notices, pursuant to s 34P(4) of the Evidence Act 1929, of its intention to lead evidence which it considered came within that section. The defence objected to the admission of certain items in the notices. I ruled on the objections on 7 August 2013.[1]
[1] at T23
I am obliged by s 34R of the Evidence Act to identify and explain the purpose(s) for which the evidence may, and may not, be used.
As I explained in the reasons I gave for the ruling, the evidence of the debt, or ‘tick’, lists, in both handwritten form and as appeared on a telephone screen, can be used for the purpose of establishing that Mr Panetta was in the business of a drug dealer, in the sense outlined by Gleeson CJ in R v Sultana[2] and by Cox J in R v McGhee,[3] that is, as circumstantial evidence of a fact in issue, namely, the purpose for which Mr Panetta had possession of the bottle, if possession be proved beyond reasonable doubt.
[2] (1994) 74 A Crim R 27
[3] (1993) 61 SASR 208
At trial, Ms Zuckerman also argued that the evidence is relevant as circumstantial evidence of Mr Panetta’s possession of the bottle (see R v GNN[4]). I accept that that is also a ‘permissible use’ of the evidence within the meaning of s 34P as well. I must remind myself, having regard to the remarks of Doyle CJ in GNN at [35], that this evidence establishes no more than that Mr Panetta was familiar with drugs and involved in dealing with them, and is no more than a piece of evidence which might help me conclude that the fantasy in the bottle was his.
[4] (2000) 78 SASR 293 at [35]
I agree with Mr Morrison that it is necessary that I warn myself specifically about impermissible propensity reasoning. In particular, it does not follow that because Mr Panetta may have been involved in commercial dealing in illegal drugs in the past, he is more likely to have committed this offence. I accept that it does not follow, as a matter of logic, or fairness, that such reasoning is appropriate in this case.
General Directions
The Court of Criminal Appeal has said that it is not necessary, in a trial heard by a judge sitting without a jury, that the court detail every obvious and basic direction of law which might be given to a jury.[5]
[5] R v R, R & R, LJ [2008] SASC 35 at [42]
I remind myself of the following fundamental principles:
·The accused is entitled to the presumption of innocence - he is to be regarded as innocent unless and until his guilt has been proved by the prosecution beyond reasonable doubt.
·The burden of proving guilt rests on the prosecution. There is no onus on the accused to prove or explain anything. Any uncertainties or gaps in the prosecution case must be resolved in favour of the accused.
·In this case the accused elected not to give evidence. He was under no obligation to do so. No adverse inference may be drawn from the fact that he has exercised that right. In particular, the silence of the accused does not constitute any form of admission, may not be used to fill gaps (if any) in the prosecution case, and may not be used as a ‘makeweight’ in assessing whether the prosecution has proved its case beyond reasonable doubt (Azzopardi v R;[6] R v Weetra[7]).
·Proof beyond reasonable doubt means what it says and needs no further elaboration. A mere suspicion of guilt, or even that there is a probability of guilt, is not sufficient. Nothing short of proof beyond reasonable doubt is sufficient.
·Each element of the offence must be proved beyond reasonable doubt, and if any one element is not so proved, the appropriate verdict is ‘not guilty’.
[6] (2001) 205 CLR 50 at [51]
[7] [2010] SASCFC 52 at [67]
Elements of Offence
The prosecution must prove each of the following three elements beyond reasonable doubt:
1.The substance in question was a controlled drug.
2.The accused ‘trafficked’ in the drug.
‘Traffic’, by virtue of s 4 of the CSA, is a verb which means to:
(a)sell the drug; or
(b)have possession of the drug intending to sell it; or
(c)take part in the process of sale of the drug.
3.When the accused trafficked in the drug, he did so knowing that the substance was fantasy, or at least that it was a controlled substance, or was reckless about that (s 33P of the CSA).
The Prosecution Case
The following facts were agreed between counsel (Exhibit P6). I have regard to these facts as having been proved, without the need for further evidence, pursuant to s 34 of the Evidence Act:
Residency/Vehicle registration
1.As at 19 August 2011, the owners of 31 Tunbridge Street Woodville South were the accused’s parents Cosimo Panetta and Charmaine Panetta.
2.As at 19 August 2011, the accused resided at 31 Tunbridge Street Woodville South.
3.As at 19 August 2011, the Ford VVI 331 was registered to a Kharley Sandell.
4.As at 19 August 2011, the blue 1992 Toyota Surf WNN 779 was registered to a Michelle Jayde Dedrick and to the accused.
5.On 19 August 2011 Police searched the vehicle referred to in paragraph 4. Nothing of value in regard to the investigation was located.
Drug Analysis
6.The following items were analysed at the Forensic Science Centre of South Australia:
a.     The liquid contained in DP1. The liquid weighed 69g and contained 1,4-butanediol.
b.     The liquid contained in containers DP5. The liquid weighed 2.15g and contained 1,4-butanediol.
Phone analysis
7.The phones DP21 and DP12 were submitted to the Electronic Crime Section of SA Police for the purpose of having their content extracted.
8.The phone DP21 contained the following SMS messages in the inbox:
a.     “hey mann its jackies friend jess. U got any??” received on 19/08/2011 at 06:38:09 ACST -930.
b.     ‘call mee its jackies friend” received on 19/08/2011 at 18:26:25 ACST - 9.30.
9.No response to the text messages set out in the preceding paragraph were located on phone DP21.
Other mobile phones
10.The phones DP2, DP7 (which consisted of 2 phones), DP11, DP24 and DP25 (which consisted of 3 phones) were not able to be operated at the time they were seized on 19 August 2011.
11.The phones listed in paragraph 10 were not submitted to the Electronic Crime Section of SA Police for the purpose of having their content extracted.
DNA Analysis
12.The Lipton Ice Tea bottle DP1 was submitted to the Forensic Science Centre of South Australia on 9 September 2011.
13.Upon arrest on 19 August 2011 a buccal swab was taken from the accused by Constable Nathan Schollar. The Police Property Management System item number of this swab was 12/A70042-28. This was submitted to the Forensic Science Centre on 9 September 2011 and used by Damian Abarno as the reference sample from which a DNA profile was obtained for the accused.
14.A swab taken from the opening of the bottle DP1 contained a complete DNA profile. The DNA profile originated from an unknown female (Unknown A).
Kate Craig
15.The female who was observed to leave the premises at 31 Tunbridge Street, Woodville South on 19 August 2011 after police were in attendance identified herself as Kate Craig.
16.Constable Nathan Schollar has made numerous attempts to locate Kate Craig to ascertain whether she would provide a statement in relation to this matter. Attempts to locate her have been unsuccessful.
Other
17.The photographs labelled GS1 were taken by Senior Constable Smith on 23 August 2011 at Port Adelaide Police Station.
18.All items seized from 31 Tunbridge Street Woodville South on 19 August 2011 were conveyed to Port Adelaide Police Station and were entered onto Police Property Management System 12/A70042 refers.
The following further agreed facts are as follows:
1.On 23 August 2011 a decant process was conducted by Constable Smith and Constable Schollar with items DP1 and DP5.
2.The contents of item DP1 were placed into two sterile containers which are depicted in photograph 28.
3.Two out of the three containers that make up DP5 contained small amounts of liquid. The contents of those two containers were decanted into a sterile container. Exhibit P1 does not contain a photograph of the decanted contents of DP5.
The witnesses who gave oral evidence were as follows:
·Senior Sergeant Clarke, who attended the premises at about 2 p.m. She noted that after the police arrived, Mr Panetta’s father emerged from the house first, then a woman who was probably Katie Denise Craig, and then Mr Panetta;
·Detective Sergeant Ralph, who searched a bedroom which he concluded was Mr Panetta’s because Mr Panetta came in and told them not to turn off a computer game because he was still playing it, because of the presence of male clothing on the floor, and its untidiness compared with the rest of the house, which Mr Panetta shared with his parents. Ralph found the Lipton Ice Tea bottle (Exhibit P1, photo 1) under the double bed in the middle of the room. The bottle was not visible to anyone standing up.[8] Ralph did not note the presence of the Ford motor vehicle VVI 331 when he drove past the house earlier in the day at about 12:15 p.m.;
[8]    T31
·Detective Brevet Sergeant Winterfield, who also searched the bedroom, which he said was indicated by Mr Panetta as his.
(Both Ralph and Winterfield said, without objection, that Mr Panetta’s father gave the same indication. I ignore that evidence as hearsay. At no stage, however, was either witness cross-examined to suggest that this was not Mr Panetta’s bedroom.)
Winterfield also noted that the clothing in the room was male, that it was cluttered and untidy, and that Mr Panetta entered and played the video game while they were in there. Winterfield saw Ralph locate the Lipton Ice Tea bottle under the bed (he drew a diagram of the room, Exhibit P2). Winterfield also seized a mobile phone from a ‘tallboy’ in front of the bed (Exhibit P1, photo 2); a handwritten list (photo 23), which was one of the debt or ‘tick’ lists on the prosecution case, in an unlocked safe in the bedside table to the left of the bed when standing at the foot of it; another mobile phone in the other bedside table (photo 24); three mobile phones in a bag near the latter bedside table (photo 25); two small plastic containers in the same bag; and a syringe with no needle, also in the same bag (photo 27).
Winterfield also searched the Ford motor vehicle VVI 331, which was parked in the driveway under a carport to the left of the house. In the centre console he found two syringes without needles (photo 4); three small plastic containers identical to the ones found in the bag (photo 5); and two mobile phones (photo 7).
In a ‘bumbag’ between the driver’s seat and centre console, Winterfield found a mobile phone (photo 11); another mobile phone in the same bumbag (photo 12); three further syringes without needles (photo 13); two more containers of the same type as the other (photo 15); and a learner’s driver’s licence in Mr Panetta’s name (photo 18). On the back seat he found a ‘Taser’ disguised as a mobile phone (photo 3). Another mobile phone was found in Mr Panetta’s personal possession (photo 21);
·Constable Schollar, who arrested Mr Panetta at the house. Later, at Port Adelaide Police Station, he took photographs of the screen of the mobile phone in photo 21. On the ‘Notes’ screen, the following entries appeared -
Exhibit P3:
400 200 450 100 200 50 100 300 150 100 100 50 300 100
George owed 2 grabbed another 2 payed 2 current balanced 2
Exhibit P4:
Y za 694 a a 4701                 3 Aug >
1905, 1925, 1923, 233…         23 Jul >
George owed 2 grabbed an…    7 Jul >
400 200 450 100 20…              7 Jul >
It is the prosecution case that these are also debt or ‘tick’ lists.
Schollar identified a police apprehension report in the name of Katie Denise Craig, dated 3 February 2012, which referred to her arrest for a drug offence (Exhibit D5);
·Detective Brevet Sergeant Bridge gave expert evidence about her experience in detecting drug-related crime, and fantasy in particular. She said:
·although fantasy is not yet a ‘mainstream’ drug, its detection rate is increasing;
·the usual single dose is 1 to 6 mls;
·it is stored in a variety of liquid containers;
·it is often measured using medicine glasses, syringes (without the needle), eye droppers and bottle lids;
·it is often taken with other liquids to mask the unpleasant flavour;
·it is regarded as an alternative to ‘ecstasy’ and is popular on the ‘nightclub scene’;
·like other illicit drugs, indicia of commercial dealing include cash, multiple small containers, measuring equipment, debt or ‘tick’ lists, multiple mobile phones, weapons, and ‘bumbags’ as a safe and convenient way to transport material;
·the usual price for fantasy is $6 to $8 per ml, so a standard ‘street deal’ of about 2.5 ml would be worth $12 to $15;
·the containers depicted in photos 5, 15, 26 and 28 in Exhibit P1 were typical of the type used to store ‘street deals’ of fantasy;[9]
·the syringes in photos 4 and 13 are also typical of the type used to measure fantasy;[10]
·the debt or ‘tick’ lists on the telephone and in photo 22 are consistent with drug dealing and, in combination with other factors, indicative of it.[11]
[9]    T61
[10] T61-2
[11] T62
Possession
Section 4(1) of the CSA defines ‘possession’ as including:
(a) having control over the disposition of the substance or thing; and
(b) having joint possession of the substance or thing.
The use of the word ‘includes’ indicates that the above criteria are not exhaustive.
In R v Frangos,[12] King CJ said:
In general, there is possession for this purpose where there is physical custody or control of the thing, together with knowledge on the part of the accused that the thing is in his physical custody or control.
[12] (1979) 21 SASR 331 at 336
The requirement that the accused must be knowingly in possession was confirmed by the High Court in He Kaw The v R[13] and Tabe v R.[14]
[13] (1985) 157 CLR 523
[14] (2005) 225 CLR 418
Mere knowledge of the presence of the thing is not enough by itself. Control over the thing must also be proved. In R v GNN (supra), Doyle CJ said, at [25]:
As well, in the circumstances of this case I consider that the emphasis on knowledge might have caused that to assume undue importance in the jury's mind. Of course, knowledge was a critical issue, but in the circumstances of this case so was control, and so was the issue of whether the jury were satisfied that Ms GNN, and not some other person, was exercising the relevant control or had an intention to assert control. In particular, the judge did not tell the jury that to convict Ms GNN they would have to exclude the possibility that she had merely acquiesced in one of the men hiding the heroin in the kitchen, in the sense of merely permitting him to conceal his heroin in her house.
In that case, Ms GNN was in a relationship with one of three Vietnamese men, all of whom had been in Sydney the previous day. The man with whom she was in a relationship had arrived at her house the previous day, and the two others had driven from Sydney in a hired car, arriving not long before the police arrived. There was evidence that the two men had brought the heroin from Sydney. Ms GNN denied all knowledge of the heroin.
The situation is very different here. There is evidence that there was another person in the house (Ms Craig), but no evidence of how long she had been there, for what purpose she was there, whether her presence there was temporary or otherwise, whether she had access to Mr Panetta’s bedroom, and no evidence that she had any connection with Mr Panetta. Certainly, there is no evidence that Ms Craig brought the fantasy into the house.
Mr Morrison argued that the police apprehension report (Exhibit D5) relating to Ms Craig allegedly possessing ecstasy tablets on 3 February 2012, almost six months after the events under consideration, gives rise to an inference, which the prosecution must exclude beyond reasonable doubt, that she was there in connection with the fantasy, and that she, not Mr Panetta, was in custody or control of the drug.
In my view, the events of 19 August 2011 are far too remote to justify drawing any such inference. In any event, the document is merely an apprehension report. Ms Craig’s guilt of that offence has not been proved. For all I know, she may have been acquitted of the charge.
Equally, it might be suggested by the prosecution that Ms Craig was at the house in order that Mr Panetta might supply her with fantasy. Again, it is not appropriate to draw any such inference merely from her presence there, and the fact that she might have possessed eight ecstasy tablets six months later.
Counsel’s Addresses
Prosecution Submissions
Ms Zuckerman identified the following pieces of circumstantial evidence which establish beyond reasonable doubt, she submitted, that Mr Panetta was in possession of the bottle containing fantasy:
·Mr Panetta was currently using the bedroom in which the bottle was found. He admitted this to Winterfield, and told police he was part-way through a computer game he was playing in the room;
·Mr Panetta was actively involved in drug dealing at the relevant time. This is proved by evidence of:
·the contents of the mobile phone found on his person;
·the tick list found in the safe in his bedroom;
·the presence of 10 mobile phones – five in the bedroom, two in the bumbag, two in the console of the car and one on his person. Ms Zuckerman acknowledged that eight of these mobile phones were inoperable, but she submitted that their presence remains probative of drug dealing;
·the presence of the Taser, a weapon, in the car;
·the presence of Mr Panetta’s current learner’s permit in the bumbag in the car, from which it could be inferred that Mr Panetta was using the bumbag, and the car;
·the SMS message from ‘jackies friend’ asking him if he has ‘got any’.

As to whether there is evidence that Mr Panetta is interested in fantasy specifically, Ms Zuckerman pointed to:
·the syringe without a needle in the bedroom;
·the two empty plastic containers in the bedroom;
·the three syringes in the bumbag;
·the two plastic containers in the bumbag;
·the three plastic containers, two of which contained fantasy, in the centre console of the vehicle (see further agreed facts).
Ms Zuckerman argued that this evidence is relevant to both custody and control of the bottle containing fantasy in the bedroom, knowledge of the fantasy in the bottle, and ownership of the fantasy in the bottle. She submitted that Mr Panetta was decanting fantasy from the bottle to the two smaller containers ready for sale.
Ms Zuckerman also submitted:
·although there is no forensic evidence linking Mr Panetta with the safe, or the list, it was in his bedroom, and the evidence is that he was the only occupant of that room and exercised custody and control over what was inside;
·there is no evidence whatsoever connecting Ms Craig with the bag found in Mr Panetta’s bedroom;
·Mr Panetta was more likely to use a car registered to someone else when dealing drugs than using a car registered in his own name;
·the most probable explanation for the female DNA on the bottle was that a female had drunk its original contents, namely, ice tea.
Defence Submissions
Mr Morrison made the following points in his submissions:
·there are many explanations for the list of numbers found in the safe;
·the numbers on the list are not consistent with trading in fantasy, which sells for much lower prices;
·there is no evidence linking Mr Panetta with the safe;
·two of the mobile phones in the bedroom were ‘broken’ (as to that, the agreed fact in No. 10 is that the mobile phones were not ‘not able to be operated’, which I apprehend is different from ‘broken’);
·there was no cash found in the room;
·there was no security system operating;
·the items found in the bag suggest that the bag had been taken into the bedroom, and the bottle containing fantasy taken out and rolled under the bed in haste as the police arrived. This gives rise to an inference that Ms Craig may have done that, which the prosecution must exclude beyond reasonable doubt;
·there is no forensic evidence linking Mr Panetta to any of the contents of the bag, which again illustrates the possibility that Ms Craig brought the bag into the house;
·there is insufficient evidence to link Mr Panetta to the car, or that any of the items found therein were in his possession:-
·there is no forensic evidence about that;
·the car is registered to someone else;
·the car registered to Mr Panetta, the Toyota Surf, was searched and nothing of interest was found;
·the presence of the learner’s permit in the bumbag in the car lacks weight because Constable Schollar could not exclude that he may have seen another licence in Mr Panetta’s name later in the day.
As to that last point, there is no evidence that there was any such other licence. The fact that Schollar could not exclude it is not evidence that it existed.
Mr Morrison also submitted that:
·the vehicle VVI 331 was probably not there, on Ralph’s evidence, at 12.15 p.m., and it was the last car in the driveway when the police were there later, suggesting that it had recently arrived;
·the police evidence that the mobile phone DP21 was found on Mr Panetta’s person is doubtful. Winterfield said he handed it to Constable Smith, the exhibits officer, and Schollar said he handled the item at the house and looked through it. I do not see these as exclusive. Schollar could have got the phone from Constable Smith and looked through it, then returned it to her. In cross-examination, Schollar was uncertain who handed him the phone.[15] He did not think it was Winterfield. He thought it was one of the Elizabeth CIB detectives. In my view, this leaves open that it may have been Smith. I see no reason to doubt Winterfield’s evidence that he found the phone on Mr Panetta’s person;
·the SMS messages on the mobile phone were not responded to;
·there is no forensic evidence linking Mr Panetta to the bottle containing fantasy. The DNA around the rim of the bottle is from an unknown female. Brevet Sergeant Bridge said it is unlikely that someone would take a ‘swig’ from the bottle, because of the risk of overdose. We are dealing with risk‑takers, Mr Morrison pointed out.
[15] T52
Conclusions
Mr Morrison was in a position where he had no alternative than to seek to minimise the weight to be attached to the individual items of circumstantial evidence in the prosecution case. However, when looked at as a whole, those individual items of evidence combine to prove that:
·the bottle containing fantasy was in Mr Panetta’s bedroom;
·it contained a large amount of fantasy, much more than is required for personal use;
·Mr Panetta was dealing in illegal drugs generally;
·Mr Panetta was using the car VVI 331, and had custody and control of what was inside it, and in particular the bumbag and its contents;
·it follows that he had possession of syringes and containers used for measuring and storing street-size deals of fantasy for sale;
·this evidence is relevant to the issues of Mr Panetta’s knowledge, ownership and control of the fantasy in the bedroom.
Although there may be explanations for the individual items of evidence such as the lists and the mobile phones, when taken in combination this evidence is sufficient to prove beyond reasonable doubt that Mr Panetta was in possession of the fantasy in the bottle.
I am satisfied beyond reasonable doubt that Mr Panetta had exclusive possession of the fantasy, and that there is no evidence upon which to base an inference that Ms Craig had any form of possession of it. I cannot see that such an inference can arise merely from her presence at the house without more. Any such inference, if it did arise, has been excluded beyond reasonable doubt by the evidence implicating Mr Panetta, which I have already discussed.
As to the elements of the offence charged:
1.It is an agreed fact that the contents of the bottle and the two containers was 1,4-Butanediol, which is a controlled drug: Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 – 19.7.2012, Schedule 1).
2.Mr Panetta had possession of the drug, intending to sell it. It is an agreed fact that he had possession of a total of 71.15 grams of the drug. By virtue of the above regulations, a ‘trafficable quantity’ of the drug, as defined in s 4(1) of the CSA, as a mixed substance, is 50 grams. By virtue of s 32(5)(b), Mr Panetta’s possession of more than 50 grams gives rise to a presumption, in the absence of proof to the contrary, that Mr Panetta had ‘the relevant intention concerning the sale of the drug necessary to constitute the offence’. In this case, the ‘relevant intention’ is his intention to sell it.
3.On the evidence, particularly that the bottle was hidden under his bed and his possession of syringes and containers appropriate to measure and store fantasy in liquid form, I am satisfied beyond reasonable doubt that Mr Panetta knew that the substance was fantasy.
The three elements of the offence having been proved beyond reasonable doubt, my verdict is: ‘Guilty’.