R v Piening - [2013] SADC 172

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PIENING
Criminal Trial by Judge Alone
[2013] SADC 172
Reasons for the Verdict of Her Honour Judge Davison
19 December 2013
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
Accused charged with one count of trafficking in a controlled drug (methylamphetamine)
Verdict: Guilty
Controlled Substances Act 1984 (SA) s4, s4(1), s32(3), s32(5), s33P; Evidence Act (1929) SA s34P, s34P(2)(a), s34P(2)(b), s34P(4), referred to.
R v Soteriou [2013] SASCFC 114; Barton v The Queen (1980) 147 CLR 75; Azzopardi v R (2001) 205 CLR 50; R v Weetra [2010] SASCFC 52; R v R, R & R, LJ [2008] SASC 35; R v Frangos (1979) 21 SASR 331; He Kaw The v R (1985) 157 CLR 523; Tabe v R (2005) 225 CLR 418; R v Power (1996) 87 ACR 407; R v Ciantar (2006) 167 ACR 504; DPP v Brooks [1974] AC 862, considered.

R v PIENING
[2013] SADC 172
Introduction

Mr Piening is charged with trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). Particulars of the charge are as follows:
David Piening on the 2^nd day of May 2012 at Adelaide, knowingly trafficked in a controlled drug, namely methylamphetamine.
The charge relates to the discovery by police of a bumbag being worn by the accused at about 4am on 2 May 2012. That bumbag contained a small amount of a white powder and a container that had a crystalline substance. These substances were analysed. There was 5.52g of powder containing 2.66 grams of methylamphetamine in the container and 0.019g of methylamphetamine in the bag. The substance in the container was therefore 48.1% pure.[1] The issue in this trial is whether Mr Piening was in possession of the substances and if so has he displaced the presumption.
[1] P1 Agreed Facts
In this matter there was a pilot program utilising the Samsung tablet. The exhibits including the photographs, P7, a map of the central part of Adelaide, P2, videotape of the search and at the scene and the property being searched at the Watch House, P5, and CCTV footage from Hindley Street were uploaded onto the tablet, P6. This was done with the consent of both parties. The defence and prosecution were provided with a tablet with the same material uploaded. During the course of the trial this material was accessed via the Samsung tablet and when necessary was transmitted to the television over the witness box so that it would be viewed by anyone in court. It was therefore possible to zoom in and out of the photographs that had been taken and uploaded onto the tablet and to manoeuvre easily through the CCTV footage and video footage that had been tendered.
Stay of proceedings
The accused applied for a stay of these proceedings on the following grounds:
PARTICULARS of the grounds relied upon are as follows:
Discreditable Conduct Notice – Prosecution
1.   The prosecution seek to use evidence of cash as activating the provisions of discreditable conduct pursuant to s.34P Evidence Act 1929 (SA), in essence to show the defendant’s engagement in previous illicit drug transactions.
2.   It is submitted by the prosecution that the suggested uses invoke a permissible line of propensity reasoning under s.34P(2)(b) Evidence Act 1929 (SA).
3.   An exact line of reasoning was sought to be led with such evidence in R v Soteriou No. 2004 of 2011.
4.   The matter was the subject of an appeal against conviction which was ultimately dismissed by the Court of Appeal on 21 October 2013.
HCA Special Leave Application
5.   Solicitors for Mr Soteriou have filed an application for Special Leave on questions of law which will impact on the present trial.
6.   Attached to this application is a copy of the Application for Special Leave to Appeal in the matter of Soteriou v The Queen No. A31 of 2013.
Interests of Justice
7.   It is in the interests of justice that the above matter be stayed pending the determination of the special leave application.
8.   There is a public interest aspect to the finality of proceedings.
9.   The determination of the special leave application will impact on the approach to be taken by Court in determining the admissibility of discreditable conduct evidence and the application of s.34P, s.34R Evidence Act 1929 (SA)
A submission was made that there had been an application for special leave in relation to a matter R v Soteriou[2] and that that would be heard in the High Court before Christmas 2013.
[2] [2013] SASCFC 114
In this matter the Crown relied upon two items of evidence as coming within the provisions of section 34P of the Evidence Act 1929 (SA). These items, it was contended, were a large sum of money being $6,200.30 found in the bumbag on the person of the accused. The same bumbag contained the controlled drugs referred to above the subject of the charge. The second item that the Crown relied upon was the flight of the accused after he had been stopped by the police.
In a notice filed pursuant to section 34P(4) the Crown contended that the permissible uses of the money were:
a.   the accused’s possession of money was relevant to prove the accused’s intention to sell the drugs the subject of the charge; and
b.   to put the charged offence into its proper context so that the evidence of the offending is not viewed in a vacuum and so that common sense inferences can be drawn; specifically:
i.to prove knowledge of the nature of the substance;
ii.to prove an interest in the substance; and
iii.to rebut any suggestion of coincidence.
As to the flight:
c.   to show the post-offending consciousness of guilt of the accused.
The notice appears to contemplate that both pieces of evidence are admissible pursuant to section 34P(2)(b) and are essential to the process of reasoning leading to a finding of guilt, in which case the evidence cannot be used unless on the whole of the evidence the facts and proof of which the evidence was admitted are themselves established beyond reasonable doubt.
This matter needs to be considered on the basis of the factual scenario that is before the court. When Mr Piening was stopped by the police he was found to have a bumbag tied around his waist that contained the cash and the drugs. The finding of cash in this situation is a factual matter from which there may be an inference drawn that he had a tendency to deal in drugs. This may come from one of two sources. It may be that he had dealt in drugs in the past and this was evidence of those dealings or alternatively it may be that he intended dealing in drugs in the future and had the money as a float. Alternatively he may have had the money quite lawfully.
The issue of flight it is contended by the defence does not constitute discreditable conduct in any event; I agree with that. The flight of the accused after he was stopped by the police is a piece of circumstantial evidence from which an inference can be drawn that it evinces a consciousness of guilt. This must be looked at in the circumstances of all of the evidence that is admissible in respect of his state of mind at that particular point in time. It does not of itself constitute discreditable conduct within the meaning of section 34P of the Evidence Act. In any event I would need to be satisfied beyond reasonable doubt that the only inference that could be properly drawn from the evidence is that the flight resulted from a consciousness of guilt. The argument in Soteriou has no application in relation to that aspect.
A stay of proceedings is not an order that is made lightly. Such a grant of stay of proceedings can be used to prevent an abuse of process or to halt a prosecution of criminal proceeding, which would otherwise be unfair when judged by reference to the accepted standard of justice.[3] The power to order a stay is an extraordinary one. This is because the grant of a stay amounts to a refusal to exercise jurisdiction. The court which grants a stay without sufficient reason abuses itself by declining to exercise its constitutional function of determining disputes.
[3] Barton v The Queen (1980) 147 CLR 75
In this case it is trial by judge alone. I will have the opportunity to consider all matters that are put before me, both at this stage and as the trial progresses, to consider whether or not to accept the evidence that has been proffered by the Crown and to determine if and how I would utilise such evidence in the future.
In the circumstances, I declined to stay these proceedings.
Section 34P of the Evidence Act Discreditable Conduct
As I referred to earlier the Crown filed a notice pursuant to section 34P of the Evidence Act outlining that it sought leave to introduce evidence in relation to two areas that were said to give rise to discreditable conduct. The first is in relation to the money and the second the flight of the accused.
In relation to the money the Crown submission was that section 34P(2)(a) and (b) were invoked as the evidence could give rise to his disposition to sell drugs in the past. That being so I need to be satisfied that the probative value of the evidence substantially outweighed any prejudicial effect it may have upon the defendant and that the evidence has strong probative value in regard to the issue of possession and proof of intention to sell or take part in the sale of controlled drugs. I remind myself that as this is circumstantial evidence of a fact in issue it must be proven beyond reasonable doubt before it can be used by me in the process of reasoning leading to a finding of guilt. If I were to find that it was proven beyond reasonable doubt in these circumstances it would not be necessary for me to give myself the usual propensity warning in respect of this evidence. There is of course no impermissible use in relation to it.
The second area or discreditable conduct was that of flight. In this case the accused was stopped by the police. They told him that he had a Parole Board warrant and they were arresting him in relation to that. With that he fled down Hindley Street and was stopped by the police after they placed a police car into his path and he ran into it.
It is not suggested by the defence that this evidence is inadmissible. The argument proffered pre-trial was that I would not be able to find beyond reasonable doubt that the only inference to be drawn from the flight was a consciousness of guilt given the circumstances as they unfolded. I would need to be satisfied beyond reasonable doubt that the flight emanated from his consciousness of guilt in relation to the charged offence rather than any other issue. However, I am not convinced that the flight as it occurred in this case is evidence of discreditable conduct such that it invokes section 34P of the Evidence Act. This is evidence that stands alone as post conduct behaviour from which the inference can be drawn in relation to state of mind of the accused at a point in time when he was said to be in possession. On the Crown case he remains in possession even whilst he is fleeing from the police and until the drugs are removed from him and placed into the custody of the police.
If, however, this is discreditable conduct within the meaning of the section I would admit the evidence. I find that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect and that the evidence has strong probative value having regard to the issue of possession and intention to sell. I will return to these matters later in these reasons.
I must direct myself in relation to permissible uses and where necessary the impermissible uses.
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 details every obvious and basic direction of law which might be given to a jury.[4]
[4] 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;[5] R v Weetra[6]).
[5] (2001) 205 CLR 50 at [51]
[6] [2010] SASCFC 52 at [67]
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’.
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. It is an agreed fact that the substance seized is methylamphetamine. Methylamphetamine is 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 methylamphetamine, or at least that it was a       controlled         substance, or was reckless about that (s33P of the Controlled               Substances Act).
4.     In the event the prosecution prove possession beyond reasonable                 doubt then the presumption comes into effect.
s32(5) Controlled Substances Act
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.
Possession
Section 4(1) of the Controlled Substances Act 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,[7] 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.
[7] (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[8] and Tabe v R.[9]
[8] (1985) 157 CLR 523
[9] (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.
The Prosecution Case
The prosecution case was that the accused had a small tub of methylamphetamine being 5.52g that was 48.18% pure and a plastic bag with 0.16 of powder containing 0.09g of methylamphetamine being 56.25% pure in a bumbag on his person. On the Crown case the purity of the methylamphetamine meant that it could be cut further to achieve a higher price by selling at a lower purity.
At about 4am on 2 May 2012 police officers were on duty in Hindley Street. They saw the accused outside the Crazy Horse nightclub. They spoke to him briefly and he fled from police. He was subsequently stopped on a corner of Morphett Street and Hindley Street by the police. When he was stopped he was subdued with capsicum spray. A bumbag that he was wearing around his waist was removed from him. Inside that bumbag the drugs, money and other personal items were located. A number of police officers gave evidence.
Police witnesses
Senior Constable Stacey
Senior Constable Stacey was on uniform patrol with Senior Constable Ausserlechner. At about 4am they were conducting general patrols around the city.[10] He saw the accused at the front of the Crazy Horse nightclub in Hindley Street. The police were travelling in a cage car in an easterly direction on Hindley Street when Senior Constable Stacey first saw Mr Piening. Constable Ausserlechner pulled the cage car over on to the Southern side of the road so that it was now on the wrong side of the road but still facing east. He had a conversation with Mr Piening and then advised Mr Piening that he was under arrest in relation to an outstanding Parole Board warrant. Senior Constable Ausserlechner then attempted to get out of the car and as he did so Mr Piening slammed the cage car door on him and immediately sprinted in a westerly direction on Hindley Street. Senior Constable Stacey got out of the passenger side of the car and started pursuing Mr Piening. When he was about three metres behind Mr Piening, Mr Piening turned around in a “dynamic motion” and was fumbling around with the bumbag around his waist.[11] He went on to explain by demonstrating that Mr Piening was running so that his right hand side was closest to Senior Constable Stacey and that he had both hands to the front in the area of his bumbag. At that point Senior Constable Stacey thought that the accused was going to pull out some sort of weapon from his bumbag. As a consequence he deployed his OC spray (capsicum spray) to the accused’s face. Mr Piening continued to run and then the police cage car pulled up just in front of Mr Piening who stumbled and collided with the passenger side of the cage door. He fell to the ground. Senior Constable Stacey then called for a assistance from other police officers whilst Mr Piening was restrained on the ground. Mr Piening was handcuffed and searched.
[10] TT34
[11] TT34:30
Senior Constable Blenkiron and Constable Edwards arrived at the scene. Senior Constable Blenkiron removed the bumbag from around Mr Piening’s waist and Senior Constable Stacey removed his belt and two gold chains from his neck. Senior Constable Blenkiron opened the bumbag and said “Tim, I think you better get a camera here”. Senior Constable Stacey walked over and looked in the bumbag. He observed a substantial amount of money and two items suspected to be controlled substances. One of these was a small resealable plastic bag that contained a quantity of white powder and the other was a small plastic tub which contained an amount of yellowish paste. After Senior Constable Blenkiron had searched the bag he stayed with the bag and Senior Constable Stacey began using his police radio to organise a video camera to attend the scene so that any conversations with the accused could be videotaped. He also placed the items that he had removed from Mr Piening next to the bumbag, those items being the belt and the gold chains. He then filmed the conversation between himself and Mr Piening. He advised Mr Piening that he was under arrest and gave him his arrest rights. Once Mr Piening was placed into the rear of the cage car a brown paper bag was obtained from the rear of the cage car and the bumbag and other items were placed into the brown paper bag.

The accused was then driven to the watch house by Senior Constable Stacey and Senior Constable Ausserlechner. At the watch house Sergeant Thalborne removed the bumbag and the other items from the paper bag. Sergeant Thalborne then counted the money. This process was videotaped.[12]
[12] P5
CCTV footage that was obtained from Hindley Street was tendered and played.
Senior Constable Stacey was cross-examined. It was suggested to him that there was no note made by him in relation to the accused fumbling with the bumbag. He agreed with that. He was asked whether he took any money from the front pockets of the accused during the search – he replied “no”. He was asked whether he saw any other police officer taking money from the front pockets of Mr Piening – he replied “no”. He was asked whether he saw any cash being taken from Mr Piening himself and he said “no”.[13]
[13] TT56
It was put to Senior Constable Stacey that items including key chains and remote control were taken out of the bag on the side of the road by Senior Constable Blenkiron. Senior Constable Stacey said that he did not think anything had been taken out of the bumbag on the side of the road.[14] Senior Constable Stacey was then shown a portion of the video and asked about items that appeared on the footpath. He did not have a clear recollection in relation to them.
[14] TT58
Senior Constable Stacey confirmed that no items had been sent for fingerprint testing nor had any DNA testing been completed in relation to any items that were seized from Mr Piening on this night.
Senior Constable Stacey was cross-examined further as to where items had been removed from that were later recorded on the property receipt. Other than relying upon the videotape that was taken at the City Watch House that showed Sergeant Thalborne unloading the contents of the brown paper bag that contained loose items and also the contents of the bumbag he was unable to say specifically where individual items had come from. Senior Constable Stacey was, however, adamant that he had wanted to keep the contents of the bumbag “in situ” and that if items had been found separate from the bumbag they would have remained separate.[15]
[15] TT76
Senior Constable Ausserlechner
Senior Constable Ausserlechner gave evidence. He was on patrol with Senior Constable Stacey on 2 May 2012. He gave evidence that he had seen the accused about three times throughout the night. He had seen him upstairs at the Crazy Horse and a second time he was near the Berkeley Hotel walking west on Hindley Street; these occasions were between midnight and 4am. Shortly before 4am he saw him outside the Crazy Horse nightclub on Hindley Street. He had a conversation with him and told him that he was subject to a Parole Board warrant and that he intended to arrest him. He said “OK mate you have an active warrant you are under arrest”.[16] With that Mr Piening slammed the door onto his wrist and his leg and then ran away. As Senior Constable Stacey gave chase on foot, Senior Constable Ausserlechner turned the car around doing a three point turn and drove after him. At the intersection of Hindley Street and Morphett Street he drove the car in front of Mr Piening to cut him off, slammed the brakes on and stopped the car. At that stage Mr Piening lost his footing. Senior Constable Ausserlechner then got out of the car and assisted Senior Constable Stacey to handcuff him. He did a safety search that involved a pat down of his pockets and the inner part of his belt. After Senior Constable Blenkiron arrived he removed the bumbag, he searched the bumbag at the rear of the cage car on the ground and commented that a video camera was needed. During this time Senior Constable Ausserlechner was restraining Mr Piening.
[16] TT83
Senior Constable Ausserlechner was cross-examined. He was asked whether he had any recollection of Senior Constable Blenkiron taking items from the pockets of Mr Piening. He said he could not recall that and he could not recall Senior Constable Blenkiron searching pockets. In relation to other items Senior Constable Ausserlechner was asked the following questions:[17]
[17] TT94:2-27
QWhen Mr Piening was being searched did you see whether anybody took any pack of cigarettes off of him at any time or not.
ANo, I can’t recall that.
QOr a lighter.
ANo.
QOr a set of keys.
AYes, I can remember someone talking about a set of keys.
QNot talking about but just in relation to your observations, did you see anybody grabbing a set of keys off of Mr Piening.
AI do recall seeing a set of keys, yes, but I can’t recall who it was that had them.
QSimilarly, a remote control for a garage or a car, did you see anything like that being taken off of Mr Piening.
ANo, I can’t remember that.
QI want to turn to mobile telephones now. Did you see any mobile telephone being taken off of Mr Piening, off of his body.
ANo, I can’t recall mobile telephones.
QWhen you saw the bumbag on the side of the road and you observed the cash, did you observe anything else in that bumbag or not.
AYes, I recall the tub with paste with the yellow and green tape around the rim of it.
He was asked whether he had taken anything from the accused and placed it into the bumbag, he replied “no” and that his role had been to secure the accused at the back of the cage car.
Senior Constable Blenkiron
Senior Constable Blenkiron was called. He said that at about 4am he had been called to the intersection of Morphett and Hindley Streets to assist two other police officers in relation to the arrest of the accused. When he arrived he assisted in handcuffing the accused and searching him. He said that he personally removed the bumbag that was attached to the waist of the accused whilst he had been on the ground. He searched that bumbag on the side of the road and located a large quantity of cash and a plastic resealable bag and a small plastic tub containing a paste substance.[18] He immediately notified Senior Constable Stacey that there may have been an indictable offence committed and they required a video camera. He said he instantly made notes and then proceeded to take photographs. These photographs were tendered, P7. He said, in reference to photograph number 2, that the cash that was visible to him when he opened the bumbag was as it is shown in the photograph. There is also a red lanyard that is visible and he identified the plastic bag and the tub.
[18] TT98
Senior Constable Blenkiron was cross-examined. He was asked whether he had taken any items out of the bumbag when it was in situ on the side of the road, other than the cash, in order to photograph it, he said “no he did not”. He had no recollection of seeing items in the bumbag other than the money, the bag and the tub. He had no recollection of seeing a packet of cigarettes or white lighter, nor did he have any recollection of how many lanyards with keys he observed in the bumbag.[19] He had no recollection of any mobile phones seized from Mr Piening. He was asked “did you do a thorough search” and he said there were items under the cash but “I didn’t wish to remove the cash on the side of the road and I made notes of items that I believed constituted an offence”.[20] He said he had no recollection of searching Mr Piening’s pockets at any time.
[19] TT104
[20] TT104:34
Constable Edwards
Constable Edwards was called. He was on patrol with Senior Constable Blenkiron when they were asked to assist. They left the Hindley Street police station and travelled to the intersection of Morphett and Hindley Streets. At that point they saw a male who was restrained on the ground. When they arrived he gave his handcuffs to Senior Constable Stacey who applied them to the accused. He then stood back because the other officers Stacey and Blenkiron conducted a search and removed property from Mr Piening. He saw the belt and the blue bumbag removed by Senior Constable Blenkiron and placed on the footpath. He did not see anyone put any items into the bumbag. He then saw Senior Constable Blenkiron open the bumbag. He made observations about a substantial amount of cash and a small plastic container containing an off white coloured paste type substance and a small bag containing white powder. He said that a video camera was requested. The bumbag was closed and there was no further search until the video camera arrived. There were some photographs that were taken on the phone of the items in situ. The video camera took about three to five minutes to arrive and after it arrived he used it to film Senior Constable Stacey giving Mr Piening his arrest rights and to film a search of the bumbag conducted by Senior Constables Blenkiron and Stacey.
Constable Edwards was cross-examined. He said that other than the belt and the blue bumbag he could not recall any other items being taken by Senior Constable Blenkiron from Mr Piening. He did not see Senior Constable Blenkiron search Mr Piening when he was standing up at the back of the vehicle, nor did he see Senior Constable Blenkiron remove any items or contents from the pockets of Mr Piening while he was standing up at the back of the police vehicle. He was asked whether he saw a packet of cigarettes and he said he could not recall. He was asked whether he saw a white lighter being seized from Mr Piening or in the blue bumbag. He said he did not make notes of any of the items that may have been on Mr Piening. He was asked questions in relation to the search by Senior Constable Blenkiron and said that when the initial search was conducted items were found inside the bag, photos were taken initially by Senior Constable Blenkiron and then the bag was left in situ awaiting the video camera.[21]
[21] TT114
Detective Sergeant Klingberg
Evidence was led from Detective Sergeant Klingberg as to the value of drugs and the purity of street drugs. A statement was also tendered from Brevet Sergeant Hudson, P8, in relation to a similar topic. In essence, the evidence of Detective Sergeant Klingberg was that the drugs that were in the container were of such a purity that they could be cut down further to the extent where the purity would be 12% and there would be 22 grams of powder to be sold. A street deal is 0.1g and is commonly referred to as a ‘point’ of methylamphetamine. This would equate to 220 street deals that could sell for anything between $50-$100 totalling between $11,000-$22,000. She gave evidence that dry crystalline methylamphetamine with a purity of 56.25% was consistent with being sold at street level as “Ice”. “Ice” could be up to 80% purity even at street level. She said that generally the street purity would be between 10% and 40%.[22] She also gave evidence in relation to the denominations of cash that might be present from the sale of methylamphetamine. Her evidence was that mostly $50 notes are found. She said they do see $100 notes on some occasions, however, $100 notes generally need to come from the bank as they cannot be drawn from an automatic teller machine.[23]
[22] TT119
[23] TT123
Detective Sergeant Klingberg was cross-examined about whether she had in her experience known of people to be supplied with a sample bag of a drug. She said it can happen but usually they buy it and try it, it is not common to test something that was so valuable.[24] She said she had never come across that in relation to methylamphetamine although she had experienced it with ecstasy pills but pills were significantly less in price. She was cross-examined about the indicia of drug dealing and the absence of them in this case. In particular she was cross-examined about the absence of an implement for cutting or weighing the drug or packaging the drug.
[24] TT126
In addition to this evidence there were some Supplementary Agreed Facts, which is P10. These documented that the amount of cash that had been located in the bumbag presented to Sergeant Thalborne on 2 May 2012 amounted to $6,200-30 and that a number of items had been returned to Mr Piening at the City Watch House on 2 May 2012. These included a T-shirt, a bumbag, a belt, a packet of cigarettes, two lanyards with keys, a remote control, a lighter, two gold chains and a pair of shoes.
The defence case
The accused did not give evidence. He however called Adam Waights. Mr Waights said that he lives at Gawler West and smokes Dunhill Blue cigarettes. He said that on 1 May 2012 he saw Mr Piening at his home and that Mr Piening had come there for his daughter’s 5^th birthday party. He had arrived between 5 and 6 o’clock at night and he consumed alcohol. He and Mr Piening left the house at about 11.30pm with Mr Waights driving his VS Caprice car travelling to Adelaide. At that time he had a blue “Lonsdale” bumbag. At that time he had a drug problem and he was taking methylamphetamine. He smoked the drug. He had possession of drugs as at 2 May 2012. He had purchased those drugs from a person called Joe at the Gawler railway station on 30 April 2012. He had intended to purchase 6g, most of it was in a tub and he also got a little bit in a bag. He paid $4,000 for the drugs with money left over from a tax return and some of it was from his pay. At that time he was working for McMahon Services.
Mr Waights said that after he left home he dropped Mr Piening in the city at about midnight. He said he dropped him in Hindley Street close to “McDonalds” and when Mr Piening got out of the car he had taken the bumbag with him. Mr Waights’ bumbag had been on the back floor of the car. After Mr Piening got out of the car Mr Waights went down Churchill Road, stopped at the “On The Run” service station and then noticed that he had been left with Mr Piening’s bumbag and his was gone. A bumbag was produced to him and he identified it as being the bumbag that had been left in his car.[25] He said he returned it to the accused’s brother a week or two later.
[25] D3
Mr Waights gave evidence that when he realised the mistake he tried to ring Mr Piening’s partner Claire. She said she had not spoken to the accused at that time and she was going to get back to him. He thought if he went back to Hindley Street he might be able to spot the accused so he went back to Hindley Street but could not see the accused. He then drove around for a little bit and then headed home. He did not receive any phone calls from Mr Piening that night.
Mr Waights was then shown footage from the video of the search.[26] He identified various items on the search video as being his including the packet of cigarettes, red lanyards, remote control for his roller door and the drugs. He also gave an explanation in relation to the tape that appeared on the top of the container. He said that he had put the tape around it because he was worried that it was going to leak and he did that a couple of hours after he received the drugs. He then produced a roll of yellow and green tape, which is D6, and said that he had had it in his tool bag for about two years and that at the beginning of the week of the trial he had taken it to the lawyer.
[26] P5
In relation to the cash in the bag, Mr Waights said that that cash had come from a person by the name of Tracey Wear who is a family friend. He was doing a re-roofing job for her at a house in Smithfield Plains and he had been paid in about the middle of April the sum of $8,000. He said he had placed the money into the bumbag. He had used some of the money to buy materials for the job that he was doing.
Mr Waights was cross-examined. He said he had a methylamphetamine problem at the time and his usage varied from half a gram to one gram some days. He was using he said about $400-$800 a day and that he purchased it from different people but he had only bought if from Joe on one occasion. He refused to name the people that he purchased drugs from. He said that Joe had approached him at the train station and asked him if he wanted to buy it. This approach had been unsolicited. At the time Mr Waights had been waiting for a train. He said he had used a tax return and some money from his pay to buy the methylamphetamine. His tax return had been $10,000 and he received it in September last year. He had about half of it remaining after he bought his partner a car and that $500 of it was from his pay. He was cross-examined about his reaction to having lost the methylamphetamine and he said that he had rung the number that was in his phone thinking it was the accused’s number and when he could not contact the accused he went home. He did not speak to the accused then until October 2012 about five months later.
Mr Waights was further cross-examined about how there had been the apparent mix up in the bumbags. He said that when he got into the car he put his bumbag on the floor in the back.[27] The accused, he thought, put his bumbag on the centre console but it must have fallen onto the floor.In response to being asked why he had taken the bumbag off to drive he said he usually takes everything with him when he goes places.
[27] TT156
Mr Waights was cross-examined about why he had no paraphernalia for the use of the methylamphetamine that was in the bumbag. He said that he had left the paraphernalia in a cupboard at home but took the drugs with him.
Mr Waights was also cross-examined about the money in the bumbag. He said that he had been paid $8,000 in April and that there was only $500 more to be used for materials to fix the roof of Tracey Wear and then the balance was to be split between him and his offsider for labour. He said that he did not take the money to the bank because it was a cash job. He said he did not worry about people stealing the money at that time but he has since bought a safe and had the safe bolted in to keep money and stuff in. He explained that this was because his eldest daughter was bad for taking money and stuff going missing.
At the end of the cross-examination I asked Mr Waights some questions. I asked him whether he had anything that identified him in the bumbag such as his driver’s licence or his business card – he replied “no”. I asked whether he had anything that identified him on the keyring, he replied “no”. He said that at the time he had a cover for his phone and he would keep his cards and stuff in that so that would have been in his pocket. I take from this that his own phone was in his pocket at the time and not seized by the police at a subsequent time. This is of course contrary to the evidence that he had given earlier in relation to the police having his phone with Joe’s number in it. He also said that Mr Piening smoked cigarettes at that time. That was the case for the defence.
In addition to the evidence that was lead there were exhibits tendered that included CCTV footage from Hindley Street and from Morphett Street. There was also a video that showed the police questioning of the accused after his arrest and the unpacking of the brown paper bag at the Watch House. During that event there was some conversation with the accused. At the time when the drugs were produced from the bag he volunteered to the police that he had never seen that before. There was also two phones that were seized. One of them appears to have been the accused’s phone as his girlfriend had apparently telephoned him on it. The accused asked the police officer to retrieve his girlfriend’s number from the phone. It is no clear to whom the other phone belonged but it appears that it did not belong to Mr Waights.
Counsel Addresses
Prosecution submissions
Ms Litster addressed on behalf of the prosecution. She submitted that the accused had the drugs and the money in the bag and that at least a substantial part of the cash was from previous sales of drugs. She made submissions about the value of the drugs and the purity of the drug. She submitted it is possible it could be further cut before sale. Alternatively they could be sold as they were found in the bumbag for a lesser amount of money. It was submitted that the absence of evidence in relation to indicia of sale that relates to street level dealing does not preclude either of those findings.

Ms Litster addressed in relation to possession. She accepted that proof of possession required knowledge, custody and control. She submitted that if I was satisfied beyond reasonable doubt of possession then the statutory presumption was enlivened and that the trafficable quantity is 2g.
In respect of the evidence relied upon to prove possession, she said that the drugs were located in a bumbag that was tied around the accused’s waist when he was arrested. She said that it was implausible that someone would have been out and about for a number of hours and not look within the bumbag. She said that he had been sighted first the Crazy Horse and secondly walking down the street outside the Berkeley Hotel and then again at about 4am. These sightings had occurred over a number of hours. She submitted that it was implausible that over that period of time someone would not have looked within the receptacle even if it is the case that they accidentally acquired it as has been suggested. She submitted that the way that the cash was distributed throughout the bag with some loose coins supports the argument that the accused had dipped into the supply of cash in the bumbag.
Ms Litster suggested it was implausible that a person with an addiction to methylamphetamine would have left it on the back seat of his car when it was worth thousands of dollars and left thousands of dollars in cash in the same place and not kept it safe and secure. She suggested that I should reject the evidence of Mr Waights. Ms Litster suggested that he was a poor witness who could not give answers to a number of questions and that he had refused to answer questions about persons from whom he had acquired drugs in the past and that there was a paucity of detail in relation to his evidence.
Ms Litster accepted that the inference could be drawn that even if Mr Piening had picked up the wrong bumbag it appeared that he had done nothing of his own volition to return the bumbag that contained thousands of dollars and drugs to Mr Waights on this particular evening.
Ms Litster addressed in relation to flight. She said that I could find that flight was on account of both the Parole Board warrant and a consciousness of guilt for the possession of the drugs in a bumbag. However, she conceded that I would have to find beyond reasonable doubt that he fled because of his knowledge of the drugs being upon him. She made submissions that the accused’s behaviour as observed by Senior Constable Stacey that his fumbling with the bumbag when decamping supported the submission that he was aware of the drugs in the bag and had knowledge of them at the time when he fled from the police.
Ms Litster submitted that the cash located within the bumbag could be used to prove he had been involved in prior offences of trafficking.
Ms Litster further submitted that this case boils down to what was in the bumbag when it was seized from the accused and what his knowledge was in relation to that. She submitted that the police officers had been vigilant to maintain the integrity of the bumbag even though some of their evidence may not be clear. She suggested that I could get some assistance from the CCTV footage as to what was in the bumbag. She suggested there is no evidence that anyone had placed any items into the bumbag. She submitted that the search video records what the bumbag looked like in situ and the video that had been taken at the Watch House enabled a close inspection of the distribution of items in the bumbag as opposed to those that had been removed from the person of the accused.
Ms Litster submitted that her case was put on the basis of possession for sale or the alternative basis of taking part in the sale but pressed for the first of those alternatives.
Defence submissions
Mr Moen addressed on behalf of the defence. He submitted that a close inspection of the video taken at the Watch House would disclose that the items that had not been identified by Mr Waights as his own had come from the front zipper of the bag. The remainder of the items he submitted that Mr Waights said were his came from the centre portion of the bag and the drugs themselves were in the rear section.
In relation to the issue of flight Mr Moen submitted that the obvious inference to be drawn from the flight of the accused was that he had been told he was to be arrested in relation to the Parole Board warrant. He suggested that there was no evidence on which it could be properly inferred that Mr Moen was at any time trying to dispose of any property and that at its highest the prosecution case was that there was a fumbling with the bumbag and nothing more. He submitted that there was no independent corroboration of Senior Constable Stacey’s evidence in relation to the fumbling that could be observed from the CCTV footage. He submitted that the issue of flight is intractably neutral and could not be used by me in the way suggested by the Crown.
In relation to the cash, Mr Moen submits that as the Crown relies upon it as an indicia of previous drug dealing, it is evidence of a propensity or disposition by the accused. If it is to be used as an essential link in the chain of reasoning it must be proven beyond reasonable doubt before I can use it in the way suggested. His submission was that the presence of the money does not amount to discreditable conduct in any event. He submitted that the evidence of Mr Waights should be accepted as to the fact that it is his cash and has been legitimately obtained by him. Of course if that is the case and I accept that Mr Waight’s evidence is reasonably possibly true then I could not be satisfied beyond reasonable doubt that this had been cash obtained by previous drug dealing.
On a factual matter Mr Moen suggested that there was a reasonable possibility that the accused had taken Mr Waights’ bumbag by mistake and no direct evidence that he had looked in it or used it during the course of the evening. He submitted that there were no fingerprints and no DNA evidence and that was a factor that I could consider. He said that there was no evidence of any telephone text messages or other indicia of sale. As to the question of the two telephones, Mr Moen said, that there was no evidence as to where the phones came from - there was no evidence that the phone that the accused identified as his own at the charge counter had come out of his pocket. Mr Moen suggested the question was whether the prosecution had satisfied me at the end of the day that either of the phones belonged to Mr Piening and where they were. He submitted that as there was no evidence that the accused had any cash in his pockets a commonsense inference could be drawn that he had found the cash in the bag and potentially used some of the cash not knowing that the drugs were there. He conceded that I could draw the inference that the accused had found the cash and taken advantage of that.
Mr Moen suggested that the interchange between the accused and the police officers at the Watch House indicated that he had no knowledge of the drugs being in the bag because he said when asked “what’s this mate?” he replied “I don’t know I’ve never seen it before in my life”.[28] He submitted, and I accept, this statement was part of a mixed statement that had been admitted by the Crown and the accused was entitled to the benefit of his denial in this regard.
[28] TT184
Mr Moen’s address was interrupted by the weekend break. Unfortunately when we resumed on Monday morning his client had been arrested on a Parole Board warrant and was not able to be brought to court. I therefore invited counsel to determine whether they wished to adjourn to the following day or make written submissions. Mr Moen chose to make written submissions and did so. In those written submissions he addressed the prosecution case. He was critical of the prosecution witnesses and suggested that the police officers had compromised the investigation by contaminating evidence. He suggested that Senior Constable Stacey had planted evidence in the form of money that had been taken from Mr Piening’s person and placed into the bumbag. He suggested that Senior Constable Stacey as the investigator had been remiss in not obtaining any DNA forensic material or additional E-crime material connecting Mr Piening to the drugs. In relation to the witnesses Senior Constable Ausserlechner he suggested that his evidence was inconsistent with that of Senior Constable Blenkiron and as a result this called into question the integrity of Senior Constable Blenkiron.
In respect of the witness Senior Constable Blenkiron Mr Moen suggested that he had initially handled the bumbag without gloves and thereby contaminated the contents. He suggested that Senior Constable Blenkiron had handled the cash, removed cash from Mr Piening and placed it into the bumbag in order to consolidate the cash within the bumbag with that taken from Mr Piening. Mr Moen suggested that Senior Constable Blenkiron gave no explanation as to what was in the bumbag, what was taken out and moreover that he never took anything out of the pockets of Mr Piening. It was submitted by Mr Moen that this was a positive lie. Mr Moen made the positive suggestion that the purpose of consolidating the cash may in the first instance have been innocent and innocuous but in the end “explained volumes” in that the investigators had nothing to attach Mr Piening to the bumbag other than the fact that he was wearing it. He suggested that Senior Constable Blenkiron was shifty, evasive and non-responsive.
Mr Moen made submissions that reiterated the submissions that he had made orally in relation to the flight and the cash. In relation to the evidence at the City Watch House Mr Moen submitted that exhibit P5 shows Sergeant Thalborne removing items from the brown bag and the various items from the bumbag. He said that one lanyard taken out from the bumbag, a remote control that was removed from the brown paper bag and a packet of Dunhill cigarettes removed from the brown paper bag were identified by Mr Waights as his. In relation to the lanyard that was removed from the bag that is similar to the lanyard from within the bumbag, Mr Moen submits that Mr Waights gave evidence that both of these were his and I should have no hesitation in finding that they were in the bumbag.
Mr Moen further submits that there was no further evidence including DNA, fingerprints or text messages. It was submitted that the items that could not be found to belong to Mr Piening were the bumbag, the cigarette pack, the lighter, the two red lanyards, the remote control, the cash, the tub and the small plastic bag.
In relation to the evidence of Mr Waights, Mr Moen suggests that there is no implausibility in his evidence in respect of keeping the drugs and cash in the bumbag and in the car. It was submitted that Mr Waights was a credible witness, reliable with no motive to lie and no benefit to gain. He submitted that the objective facts supported Mr Waights’ evidence and there was nothing to contradict his evidence. He suggested that his evidence created a reasonable doubt as to whether Mr Piening was in possession of the bag and that although he had physical custody of the bag he did not have control over the drugs as was necessary to prove possession in this case.
Mr Moen submitted that in the event the prosecution had proved beyond reasonable doubt that he was in possession of the drugs I should be satisfied on the balance of probability that he had no intention to deal with the drugs and that the presumption was therefore displaced.
Discussion
Flight
In this matter the Crown relies upon the fact that Mr Piening ran away from the police after he was told he was to be arrested on a Parole Board warrant as flight. That is to be understood in the context of this case as being that he fled out of a consciousness of guilt in respect of the charge of trafficking in a controlled drug namely methylamphetamine. In the circumstances, I cannot be satisfied beyond reasonable doubt that there is no explanation for this conduct other than consciousness of guilt. The other explanation is that Mr Piening was told that there was a Parole Board warrant and he was to be arrested in relation to it and he fled as a consequence of that. That explanation is equally, if not more, consistent with his behaviour at the time. In the circumstances, I do not rely upon this evidence as evincing a consciousness of guilt.[29]
[29] R v Power (1996) 87 ACR 407 and R v Ciantar (2006) 167 ACR 504.
Money
I admitted evidence of the cash being $6,200.30 that was found in the bumbag. I admitted this evidence pursuant to section 34P(2)(a) and section 34P(2)(b). In relation to the admission pursuant to section 34P(2)(a) the evidence is relevant and admissible to provide a context and a background to the offence. It also however goes to proof of possession of the drugs that were also located in the bumbag. These are permissible uses of the evidence. Pursuant to section 34P(2)(a) I am also required to direct myself in relation to the impermissible uses. In the usual course this would involve warning myself against a propensity type reasoning. However, in this case I have also admitted the evidence pursuant to section 34P(2)(b). That being so there is no need for such a warning. The evidence is admissible pursuant to section 34P(2)(b) in that it can go to proof in respect of prior dealings in drugs by the accused if I am satisfied of this evidence beyond reasonable doubt. I have addressed this issue further in my reasons when discussing what evidence I accept and what evidence I reject.
Possession
In order to prove the charge the prosecution must prove that the accused had possession in the sense that he had possession of the methylamphetamine that it was within his knowledge, physically within his custody or under his physical control.[30] This requires proof that he knew that the methylamphetamine was within the bumbag and that he had physical control over the drug at that time and intended to exercise that control.
[30] DPP v Brooks [1974] AC 862 at 866
I accept the evidence that was given by the police officers in this matter as to the events that occurred at about 4am on Hindley Street and thereafter at the intersection of Hindley and Morphett Streets. Much of the police activity in relation to Mr Piening was recorded by means of street cameras, both on Hindley Street and video cameras operated by the police after the discovery of the substances in the bumbag. It is unusual to have so much of the interaction recorded and available to be viewed. By inspecting all of the footage that has been tendered I conclude that the police acted appropriately at all stages in their dealings with Mr Piening. I reject the submission that they have deliberately lied and given false evidence in relation to where various items were taken from. The witnesses for the prosecution gave evidence in a straightforward manner supported to a large extent by the vision that was available to be viewed in this matter. I accept the evidence of the police witnesses.
In respect of the video recordings, in particular from the street cameras, I have taken a great deal of care to look at the available footage on a number of occasions. Whilst it may have some limitations in that the view was from a distance on one of the cameras back towards the Crazy Horse nightclub, it is clear and supports the police evidence. As with all of this evidence a degree of caution needs to be adopted and I have done that in relation to the material on the film from the street cameras.
The evidence supports the fact that the accused was wearing the bumbag that contained the controlled drug namely methylamphetamine at the time he was spoken to by the police outside the Crazy Horse nightclub in Hindley Street and then ran from the police. That same bumbag was removed from his waist by a police officer after he had been restrained by the use of the OC spray and physical force. Within that bumbag there were a number of items located. These included a container with an amount of methylamphetamine, a bag with a smaller amount of methylamphetamine, $6,200.30, two sets of keys – one set on a red lanyard, a cigarette lighter and a phone. All of these items can be seen to be removed at the City Watch House by Sergeant Thalborne in the presence of the accused.
Also located but not within the bumbag when the accused was detained were a packet of cigarettes, some keys on a red lanyard, a belt, a couple of gold chains, a telephone and a remote control. In all two telephones were seized. One was the accused’s telephone. It was from this telephone that Sergeant Thalborne obtained the accused’s girlfriend’s mobile phone number at his direction and gave him the number. There is no evidence from Mr Waights that he had any telephone in this bag or that he lost any telephone. I therefore conclude that the accused had two telephones, one on his person and one within the bumbag when he was stopped by the police. I also find that the fact that the accused had a red lanyard with keys that was very similar to the red lanyard within the bumbag is such that it excludes as a reasonable possibility that Mr Waights was the owner of either of the red lanyards.
I also conclude that the accused had on his person a packet of cigarettes and he had in the bumbag a lighter to be used for those cigarettes.
I reject the evidence of Mr Waights as a reasonable possibility. I do not find that it is reasonably possibly true that the accused took Mr Waights’ bumbag by mistake and had been in the city with it for a number of hours seemingly without making any effort to return Mr Waights’ drugs and a substantial amount of cash to him. I am fortified in this view by the fact that Mr Waights identified some keys that he said were his work keys and his house keys. These keys when inspected closely appear to include a car key and a remote control for a car. I found Mr Waights’ evidence totally unconvincing. I do not accept that he had the exhibit D4, a roll of yellow and green tape, in his possession for a number of years as he suggested. I reject the fact that that tape has been within a tool bag for that period of time as he suggested. I have inspected the tape, it is in pristine condition.
I drew to counsel’s attention in this matter the fact that I had inspected the exhibit P6 that shows the video footage from Hindley Street. At 3.50:52am a taxi becomes visible on the screen and from within this taxi a person emerges. I find that that person is the accused David Piening. I have compared the image of the person who alights from the taxi and walks in a northerly direction. That person matches the size and height of Mr Piening. He is wearing the same clothes as Mr Piening is wearing when he is detained by the police. I have compared the image of Mr Piening as depicted in the video taken by the police at the road scene and in the Watch House to the image of the person emerging from the taxi. I conclude that they all show Mr Piening. Mr Piening at this time has a very distinctive hairstyle. He has a bald head with what is known as a ‘mohawk’ down the centre of his head and a ‘rat’s tail’. All of these features are clearly visible on the footage from Hindley Street of the person emerging from the taxi. In addition to this, the person who emerges from the taxi walks then in an easterly direction on the northern footpath. The view from the other CCTV camera then shows a person to cross Hindley Street, going from north to south and it is at that point that the police cage car containing Senior Constable Ausserlechner and Senior Constable Stacey arrives at the point identified as the Crazy Horse. I am satisfied that it is one and the same person.
The footage also shows, commencing at 3.51:13, the taxi stopped at the intersection before Mr Piening alights. Utilizing the zoom function that is available on the Samsung tablet it is possible to see through the front windscreen and see what appears to be a transaction between the taxi driver and the front passenger. In all likelihood this transaction involves payment for the taxi ride that has just concluded.

The significance of this is that Mr Piening has been observed by the police earlier in the night upstairs in the Crazy Horse nightclub and walking along the footpath at Hindley Street. He has also been somewhere other than Hindley Street and is returning in a taxi at the time he is observed to alight at about 3.50:52am very shortly before he is detained. He has the bumbag around his waist at the time he alights from the taxi. He has had that bumbag in his possession, I conclude, for a significant portion of time. In addition to this, I am satisfied beyond reasonable doubt that the cash, or a significant portion of the cash located within the bumbag, has been used or is to be used in the trafficking of controlled drugs. It is no coincidence that this large amount of cash is found in the vicinity of a large amount of methylamphetamine. I reject the evidence of Mr Waights that it is his cash and that it was obtained during a cash job for a Mrs Wear on a house at Smithfield. Within this bumbag there was loose change, there was also loose notes. It is plain that the cash was being used and has been used on this night by Mr Piening. I am satisfied that he has no other cash on his person other than that found within the bumbag.
Conclusion
I am satisfied beyond reasonable doubt that Mr Piening was in possession of the controlled substance namely methylamphetamine and that he knew the substance was a controlled drug. I am further satisfied beyond reasonable doubt that there was in excess of 2g of methylamphetamine.
Having found beyond reasonable doubt that Mr Piening was in possession of a trafficable quantity of a controlled drug it is presumed in the absence of proof to the contrary in a case where it is alleged that Mr Piening was taking part in the process of the sale of a controlled drug that he was acting for purposes for the sale of a controlled drug and had the relevant belief concerning the sale of a controlled drug necessary to constitute the offence or in any other case that he had the relevant intention concerning the sale of the controlled drug necessary to constitute the offence. This presumption can be displaced on the balance of probabilities. Mr Piening did not give evidence. He did however call Mr Waights. I have rejected the evidence of Mr Waights in relation to his possession of or involvement with the controlled drug located in the bumbag. I am not satisfied on the balance of probabilities that the accused has displaced the presumption. I therefore find the accused guilty of the offence as charged.