R v Phillipou - [2018] SADC 74

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v PHILLIPOU
[2018] SADC 74
Reasons for Ruling of His Honour Judge Tilmouth
12 July 2018
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE
Evidence of accused that drugs and cash were left on his premises rejected as a reasonable possibility.
Controlled Substances Act 1984 (SA) s 4(5), s 32(3); Douglass v The Queen (2012) 86 ALJR 1086, referred to.
Olbrich v The Queen (1999) 199 CLR 270, applied.

R v PHILLIPOU
[2018] SADC 74
Arraignment and plea

The defendant Jason Phillipou was remanded for trial to commence on Monday 18 June 2018 jointly with his partner, on charges of trafficking and unlawful possession. Upon Mr Phillipou entering a plea of guilty to the charge of trafficking in the controlled drug methylamphetamine, the charges against his partner were not proceeded with. She was discharged upon the entry of a nolle prosequi by the prosecution.
The matter proceeded as a disputed facts hearing of the trafficking offence. The prosecution did not proceed with the unlawful possession charge, although it maintained the facts were relevant to trafficking. The plea of guilty was entered on the basis that Mr Phillipou permitted his premises to be used for the process of trafficking, from which he did not traffic himself. This basis of the facts was not accepted by the prosecution.
Underlying facts
Mr Phillipou and his partner were in joint occupation of a two storey Unit in Fulham Gardens, leased from a family company related to him. Authorised intercepts of the telephones used by them were tendered during the course of these proceedings. These led to the police undertaking surveillance of the premises from just before 3.00 pm on Tuesday 19 January 2016. They observed a female arrive by Taxi at 4.35 pm. This waited outside for her before she returned at 4.38 pm. A short time later Mr Phillipou emerged from the Unit and left in the Taxi with her. It was followed to the Fulham Gardens Shopping Centre where he disembarked and entered a supermarket at about 5.02 pm. Some 11 minutes later he walked to a car park entrance on Grange Road, where he conversed with an unknown male. In the meantime the Taxi took the female to Godfreys at Sir Donald Bradman Drive, which she entered at 5.17 pm that day.
She was under surveillance again at 5.40 pm that night as she departed Godfreys in a black Subaru driven by an unknown male. She disembarked from this vehicle at an ‘On the Run’ service station on the corner of South and Henley Beach Roads, Mile End which she entered. She left at 5.47 pm and caught a bus which dropped her at a bus stop outside the Maid and Magpie Hotel on Magill Road, Stepney at 6.15 pm.
She was then detained by police. In her purse they found two plastic resealable bags containing 0.87 and 2.96 g of amphetamine. Her telephone was seized. The records extracted therefrom indicate she contacted Mr Phillipou on 29 December 2015 and that he contacted her on 5 January 2016.
Returning to Mr Phillipou, at 5.35 pm he entered the front passenger seat of a Van on Grange Road which took him as he recollected, back to the Fulham Gardens Unit. By 7.52 pm an unknown male exited the same Van, ran towards Mr Phillipou’s Unit, returned to the Van within a minute or two and drove away.
At 8.10 pm Detective Zetter approached the front of Mr Phillipou’s Unit when he heard a male voice yell out ‘Cops’. Zetter immediately went to the rear of the Unit, by proceeding along a path on the Eastern side and then taking a sharp right turn into a rear lane, fenced on either side by colorbond fencing. As he approached the back door he heard what appeared to be movement near a small window on the first floor. Soon after he heard an upstairs toilet flushing.
Zetter tried the handle of the rear security door but found it to be locked. In the meantime a number of police including Sergeant Howe had knocked on the front door whilst announcing their presence. He found the door was locked as well. Detective Nguyen then gained forced entry through the front door just after 8.11 pm, and saw Mr Phillipou walking from the area of the kitchen sink. He was said by Detectives Bone and Howe to be red faced, breathing heavily and out of breath at this time. In the meantime Detective Howe unlocked the rear security door from the inside to allow Zetter to enter.
Search and seizure
In the kitchen sink a plastic syringe and small plastic tub were wet and appeared to be recently washed. The laundry sink adjacent to the kitchen and very close to the back door, contained crystalline shards at the bottom of the sink and around the drain and plug area. The liquids decanted from the S-bend of the laundry sink each contained unknown quantities of methylamphetamine as well. The shards collected from around the plug area weighed 0.15 g and contained methylamphetamine as well. On a kitchen bench adjacent to a gas stove were:
a.      three bundles of cash of $15,000, $4,450 and $2,300 (totalling $21,750.00) predominantly in $50 notes as well as a few $100 bills;
b.      a set of electronic scales contain a trace of methylamphetamine;
c.a plastic resealable bag with crystals weighing 3.98 g, containing 3.11 g of methylamphetamine;
d.an iPhone in a plastic sandwich bag together with a Proof of Age card in the name of AV;
e.a black Nokia mobile phone subscribed to the name of a female having no connection with Mr Phillipou;
f.      two iPhones;
g.      a Blackberry mobile device without a SIM card;
h       two laptop computers; and
i.      an Ice pipe.
Zetter went to the first floor area and into a bathroom, towards the area where he earlier heard movement and a toilet flushing. In a bin next to the toilet in the bathroom was an empty sandwich bag, containing 0.14 g of methylamphetamine crystals. In the master bedroom the police found and seized these items:
a. a Samsung mobile phone subscribed to a woman from Salisbury;
b.a resealable plastic bag containing methylamphetamine crystals weighing a total of 0.34 g; and;
c. an Ice pipe.
Police noted two CCTV screens split into four segments on both the ground and first floors which showed live views, essentially around the front of the premises.
Statutory context
The charge of trafficking in amphetamine is brought pursuant to s 32(3) of the Controlled Substances Act 1984 (SA). This provides simply that ‘a person who traffics in a controlled drug is guilty of an offence’. Trafficking is however defined in s 4 thereof as either selling, having possession intending to sell, or taking part in the process of sale of a controlled drug.
Section 4(5) of the Controlled Substances Act expands upon the non-exhaustive steps included in ‘the process of sale’:
(5)For the purposes of this Act, a step in the process of sale of a controlled drug includes, without limitation, any of the following when done for the purpose of sale of the drug:
(a)     storing the drug;
(b)     carrying, transporting, loading or unloading the drug;
(c)     packaging the drug, separating the drug into discrete units or otherwise preparing the drug;
(d)     guarding or concealing the drug;
(e)     providing or arranging finance (including finance for the acquisition of the drug);
(f)    providing or allowing the use of premises or jointly occupying premises.
It is s 4(5)(f) that counsel for the defence identified as the basis upon which Mr Phillipou ought to be sentenced. The prosecution contend Mr Phillipou was in possession of the 3.11 g of methylamphetamine placed on the kitchen bench, intending to sell it. Circumstances of aggravation must be established beyond reasonable doubt, whereas the burden of establishing mitigatory factors lies on the defendant on the balance of probabilities: Olbrich v The Queen.[1]
[1] (1999) 199 CLR 270, 281.
The evidence in detail
Mr Phillipou elected to give evidence. He maintained that before police forced entry he had visits from three people, a friend or acquaintance, the woman later detained by police at Magill and his long-time friend of over 10 years ‘AV’.[2] He described AV as affected by drugs when he arrived at the Unit that day, ‘he was affected heavily by drugs’, so much so that Mr Phillipou didn’t want him to ‘go back out onto the street’.[3] He said AV brought out an Ice pipe from a backpack he had with him soon after arriving. He consumed amphetamine in the kitchen near a benchtop adjacent to the gas stove, whilst seated near a breakfast bar.[4] The $21,750 in predominantly $50 notes he said belonged to AV, as did the bag of amphetamine containing the 3.98 g of substance found in the same area,[5] as well as the small electronic scales.[6]
[2]    T34.17-.32.
[3]    T35.14-.20.
[4]    T36.24-37.16, T51.5-.52.1.
[5]    T38.4-.18, Exhibit P2, photographs 8 and 28.
[6]    T38.19-.30, Exhibit P2, photograph 8.
Mr Phillipou volunteered that he smoked some of the amphetamine brought to his Unit that day and in fact that he had a long term problem with amphetamine over ‘many years’.[7] He confirmed leaving the house that afternoon with his friend in a Taxi expecting to walk from the local shops to the home of another friend. She had paid him the visit to deliver a Godfrey’s appliance receipt for warranty purposes.[8] He denied supplying her drugs.[9] Due to a leg injury he ‘ended up ringing a friend of mine to pick me up’.[10] He wore a ‘moon boot’ at this time, which he can be seen wearing when speaking with the unknown male next to Grange Road.[11]
[7]    T39.9-.24.
[8]    T40.25-.34, T67.2-.6, T67.35-.38.
[9]    T44.9-.15.
[10] T43.26-.44.4.
[11] Photographs annexed to the statement of Detective Klecko dated 30/3/16.
The surveillance materials demonstrate the person collecting him was a friend who dropped him at another place where he spent 45 minutes before being collected again and driven back to his Unit in the same Van by about 6.30 pm.[12] When he arrived AV was still there ‘mucking around with everything, my computer, with his pipe’ in the downstairs kitchen area.[13] It was soon after and when he was upstairs near his partner in the bedroom, that he heard AV call out words similar to ‘cops are here’.[14]
[12] T44.21-45.25.
[13] T45.34-.37.
[14] T46.6-.9.
Mr Phillipou described AV then promptly leaving the Unit:[15]
A.He's the one who spotted them from my kitchen downstairs on the camera, the TV screen which had the cameras on it, and he's yelled out something, the exact terminology I can't remember, but I heard the back door go flying open and then slam, you know.
Q.Let's pause there for a minute, we will come back to that in a moment. This is around the time that the police are attending at your house.
A.Yeah, they were all bunched up together from my grandma's house next door.
He saw for himself on the CCTV monitor upstairs:[16]
… a group of people huddled up at the front of my premises on the driveway, which was 25 m from the front door … there was one with a thin dark blue vest thing which said “police” on it.
[15] T35.36-36.7.
[16] T46.10-.15.
He claimed that as soon as he observed this:[17]
In the same motion of him saying that, I heard the back door open and close. I got downstairs as quick as I could. I had a funny feeling everything was left the way I last seen when I went upstairs and it wasn't good. First thing I did was lock the door.
[17] T46.23-.27
Mr Phillipou described panicking by grabbing ‘what I could see of his remnants and tried to dispose of it’,[18] ‘… I grabbed a bag off the counter, which I thought was it, and I tried to sprinkle it down the sink with the water in it’.[19] It was at this time he heard ‘the door getting smashed in at the front’, turned towards the kitchen and noticed the door was then opened.[20]
[18] T46.31-.33.
[19] T47.10-.16.
[20] T50.1-.4.
The position of the defence is that on the whole of the evidence in conjunction with the objective or proven circumstances, there is a reasonable possibility the cash and the drugs found about the kitchen bench area, were left there by AV as he bolted on becoming aware police were in the close proximity. There is some support for this view in as much as adjacent to the items found in a cluster on the kitchen bench was an iPhone and a ‘proof of age’ card belonging to him. These are most clearly seen in the top left hand corner of photograph 9 of Exhibit P2 and in a close-up once removed from the bench, in photograph 30.
Analysis of defence evidence
Mr Phillipou’s initial evidence was that he was not taking drugs, but rather was ‘doing my best to stay away from them … not smoking’.[21] He in fact confessed to indulging one day in the week beforehand,[22] and he claimed there were no drugs on the premises prior to the arrival of AV.[23] As his evidence progressed, especially under cross-examination, it became perfectly clear that his initial evidence was incorrect. First he acknowledged the amphetamine consumed with AV was smoked in a pipe he purchased some weeks beforehand.[24] A second pipe used for smoking also belonged to him and came from underneath the kitchen bench.[25] He next admitted that two butane torches on the bench were used for smoking amphetamines, were his and that he ‘had them for a long time’.[26] Next he further admitted two ‘dosing syringes’ placed near two butane torches were his and were used for ‘administering fantasy’,[27] that a plastic cup in the kitchen sink drain ‘would have been fantasy’,[28] and that the ‘gear’ in a tub within a glass in the kitchen cupboard was his, intended for personal use’.[29]
[21] T50.31-.38.
[22] T51.5-.9.
[23] T51.12-.16.
[24] T54.2-.21
[25] T55.13-.31.
[26] T56.24-.34.
[27] T60.20-.29.
[28] T61.25-.32.
[29] T66.12-.31.
The cross-examination proceeded as follows:[30]
[30] T61.31-.62.14
Q.What did you normally keep in that cup.
A.It would have been fantasy.
Q.Did you tip the fantasy down the sink.
A.No, that was already there, it was finished I think the night before, I'm not sure, but it wasn't from -
Q.I thought you said you hadn't taken any drugs the night before.
A.Well, we are talking about smoking pipes.
Q.So you were taking drugs the day before, weren't you.
A.I'm not - I'm just saying that's probably where it was from, because that's where I used to keep it in, and the plunger is next to it, it was obviously finished.
Q.So the reality is that around the time of this offence you were regularly using drugs, weren't you.
A.I was trying, it wasn't easy, it's not easy, but yeah, I was using drugs.
Q.You were using fantasy regularly, weren't you.
A.Yeah, regularly enough.
Q.You were smoking methylamphetamine regularly, weren't you.
A.Regularly enough. Trying to, trying to, it's been a long battle.
Later he further confessed ‘I was picking a day or two each week and I would smoke’.[31] He accepted the 0.14 g of crystals containing methyl-amphetamine found in the upstairs bathroom was ‘most likely his’,[32] and eventually owned up to possessing the small quantity of methylamphetamine found in the bin in the upstairs bathroom:[33]
… it must be mine, or ours, or something, I don't remember how it got there, I don't remember when I left it there, or anything like that, I didn't see it as anything real significant, I mean, the amounts or whatever. It looks like empty bags to me, does it not to you?
[31] T62.33-.34.
[32] T63.2-.22, Exhibit P2, photograph 24.
[33] T64.33-65.2.
When asked whether there was any other methyl-amphetamine in the kitchen, his first response was ‘nothing of significance that I can even directly just remember’, and then:[34]
A.… there might be some bags like the ones that you've already shown me with little small bits in there and stuff like that. Is that what you're talking about?
Q.I'm asking you whether you had any other quantities of methylamphetamine in that kitchen that belonged to you.
A.Maybe some scraps around the place, like, yeah.
Q.What is 'scraps'.
A.Maybe a point in a bag here, a point in a bag there.
Taxed with the presence of crystalline substance in a plastic tub within a glass found in a cupboard under the bench, he owned up to admitting that it was his ‘gear’ as well.[35]
[34] T65.31-66.5.
[35] T66.6-.21, Exhibit P2, photographs 22 and 23.
He explained that upon hearing police banging on the downstairs door, he ran down the steps as he heard AV yell out ‘police’ were there, locked the back door by ‘instinct’, locking both a rear screen and inner wooden door, before taking a plastic bag from the benchtop and attempting to dispose of it down the laundry sink.[36]
[36] T73.23-74.32.
Analysis of evidence
It can be seen that Mr Phillipou’s evidence about the presence of drugs and his own drug taking changed appreciably over the course of his evidence from virtual abstinence through to regular drug taking, in the period of time leading up to these events and earlier on the day in question for that matter. His evidence was therefore unreliable at best and misleading at worst. On any view it was such that his credibility and reliability are called into question. His claim that his woman friend took the trouble to visit him that afternoon to drop in the Godfrey’s receipt is an unconvincing one when one considers it could simply be electronically forwarded to him.
The evidence of Mr Phillipou was that he used to sit in the kitchen area in a large chair. It is clear a number of his own items were in that vicinity including telephones and the small amounts of drugs referred to earlier connected to him. For instance he acknowledged the black Nokia phone subscribed to the woman from St Marys was ‘a girlfriend of a guy that I used to know’ and was ‘an old handset from a long time ago’.[37] He all but admitted the other mobile telephones in the area of the kitchen bench were his.[38] All the mobile telephones were password protected and encrypted.[39] Except for AV’s own phone, none of the others seized are connected to him.
[37] T57.7-.37.
[38] T52.29-.35, T56.35-57.6.
[39] T19.8-.14.
The account that AV made a hasty exit, viewed objectively is a reasonable possibility if one assumes the drugs and cash on the counter were his. The only independent support for this hypothesis is the presence on the kitchen bench of his Proof of Age card and mobile phone in a plastic resealable bag.[40] It is a matter of common human experience that people are prone to leave, lose or misplace mobile phones at times. As a regular visitor to the premises it is not surprising that AV may have inadvertently left those items in the area.
[40] T60.16-.19.
It is inherently unlikely that AV would be canny enough to depart in haste taking his backpack and Ice pipe whilst at the same time leaving behind significant quantities of cash and amphetamine.[41] There is no evidence that a backpack was found in the kitchen bench area.
[41] T83.4-.12.
Putting these observations to one side, most telling is the account of the manner in which AV is supposed to have decamped. Mr Phillipou was upstairs when he believed police were outside. He then claims to have rushed downstairs in his moon boot and manage to lock both rear doors before Detective Zetter could reach the external door. It is unlikely he could have achieved this feat in the short timespan available in these circumstances, bearing in mind the nature of the stairs to be negotiated.[42]
[42] The stairs can be seen in Exhibit P2, photograph 13.

This account is highly unlikely as a matter of common sense. His appearance as ‘red faced and breathing heavily’ is consistent with this conclusion.[43]
Mr Phillipou had experienced difficulty in climbing those stairs as he was ‘practically on one leg’ not long before the police attended, and earlier that day when dropped off at the Fulham Gardens shopping centre he didn’t ‘get far’ and that he was ‘cactus’ as he had only just commenced walking following an operation on a fractured left talus bone in his heel.[44] Furthermore it is unlikely the doors were left unlocked if they were smoking amphetamine in the kitchen beforehand, and if Mr Phillipou was anxious to avoid AV going ‘out into the street’.
[43] T73.26-.29.
[44] T38.35-39.5, T43.38-44.4.
Still further, on the premise that AV was there and left through the back door, his only means of escape was either over the back fence - very unlikely in pressured circumstances and given the height of the rear dividing fence - or along the laneway. Turning left brings him back to the front of the premises where there were a number of police. Turning right appears to take him to a carport and then once again to the front of the block of Units.[45]
[45] Exhibit D5, photographs 1, 4, 5-8.
It is simply inconceivable that in the short period of time available if AV did make such an escape that he would not have been seen, or at the very least heard by one or more of the police who were in the close vicinity at that time. As mentioned earlier, Detective Zetter quickly went to the rear door. There were at least five other Detectives towards the front of the premises.[46] This in itself is enough to conclude that there is no reasonable possibility AV departed the premises in the manner described.
[46] Detectives Golding, Bone, Odell, Howell and Nguyen.
The combination of circumstances overwhelmingly exclude that, as a reasonable possibility. It follows from the proven facts and the inferences to be drawn from them, there is no reasonable possibility that Mr Phillipou’s evidence was true: Douglass v The Queen.[47]
[47] (2012) 86 ALJR 1086, [13].
Conclusion
On the basis of these conclusions, the defendant stands to be sentenced on the footing that the 3.11 g of amphetamine found on the kitchen bench was in his possession for the purposes of sale. It was surrounded by a plethora of material commonly associated with drug trafficking. There is on the other hand the distinct probability that the small amounts of amphetamine found in the other areas, were for domestic consumption. The sale to the woman apprehended at Magill that day was a sale made by him. No such inference can be drawn however from the fleeting visit of the Van driver to the Unit in the early evening of 19 January. The cash of $21,750 was his and no doubt the proceeds of the sale of methylamphetamine.
Counsel should proceed with submissions on sentence consistent with these conclusions.