R v Ralph

[2021] SADC 68

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v RALPH

[2021] SADC 68

Reasons of his Honour Judge Heffernan 

1 June 2021

CRIMINAL LAW - EVIDENCE

SUFFICIENCY OF EVIDENCE TO CONVICT

The accused was charged with having trafficked in cocaine on 12 February 2019.  Following a tip off from the Australian Border Force, police seized a package containing a novel which had been hollowed out.  A plastic bag containing cocaine had been placed inside it and the package posted to an address in Adelaide.  Police substituted icing-sugar for the cocaine and made a controlled delivery of the package to an address occupied by the accused's father.  The accused collected the package from his father and was arrested later that day.  The only actions alleged against the accused were with respect to the package containing the substituted substance.

Held: No case to answer found. Verdict of acquittal.

Controlled Substances Act 1984 (SA) ss 4(5) and 32(3), referred to.
Ribbon v The Queen (2019) 134 SASR 328; R v Tranter (2013) 116 SASR 452; R v Tennant (2010) 107 SASR 504, considered.

R v RALPH
[2021] SADC 68

1. Nathan John Ralph was charged with one count of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984. The controlled drug was alleged to be cocaine.  It was alleged that he had done so by taking part in the process of sale.  The trial proceeded before me sitting as a judge alone. At the conclusion of the prosecution case defence counsel made a submission that there was no case to answer. I accepted that submission, found no case to answer against the accused and acquitted him. These are my brief reasons for having found that there was no case to answer.

2. On 30 January 2019, Australian Border Force officers detected an anomaly in a parcel posted to this country from the United Kingdom. The parcel contained a novel and was addressed to Tony Dunn of Unit [  ] Esplanade Seacliff 5049.  Upon inspection, the novel had been hollowed out and inside the cavity was a plastic bag containing a white powder. A presumptive test, later confirmed by forensic analysis, suggested that the powder was cocaine. South Australia police were notified and the parcel was released to them for further investigation. The police arranged for the cocaine, which weighed about 99 g, to be substituted with an inert substance, icing sugar. Police established that the package was addressed to a unit owned by the accused but which he had leased to his father. The parcel was reconstructed containing the inert substance and arrangements were made for it to be delivered covertly by an undercover police officer to the address. This occurred on the morning of 12 February 2019. Shortly thereafter the accused, driving a truck, attended outside the unit but remained in his vehicle. Officers conducting covert surveillance saw the accused’s father exit the unit and hand the package to the accused. Surveillance was conducted on the movements of the accused throughout the day and he was arrested at the Glen Osmond Market on Glen Osmond Road at approximately 1.28 pm. Immediately prior to his arrest he had stopped in the car park of the market and was observed to run from the vehicle and hide a package in bushes at the rear of the premises. The package hidden was the plastic bag containing the icing sugar which had been substituted for the cocaine. On the seat of his truck police located the envelope and the hollowed out novel. All of the actions alleged against the accused occurred after the substitution of icing sugar for the cocaine. As I have noted, the accused was charged with having trafficked on 12 February 2019.

3. Counsel for the accused Mr Handshin QC submitted that as his client had been charged with a completed offence and as the only actions which could be proven against him occurred after the substitution of icing sugar for the cocaine, he could not be found guilty of having trafficked in cocaine. There was simply no evidence that he had performed any act involving that drug. The charge had been particularised by the prosecution in its opening address as having been trafficking on the basis of having taken a step in the process of sale namely storing, transporting or carrying a controlled drug.  All the accused had done was to store, transport or carry icing sugar, which was self-evidently not an offence. For a completed offence, it was necessary for the prosecution to prove beyond reasonable doubt that the accused had taken a step as alleged with respect to the controlled substance, not an inert substitute posing as the controlled substance. 

4. The prosecution submitted that under s 4(5) of the Controlled Substances Act 1984, the definition of ‘a step in the process of sale’ is broad. Section 4(5) provides as follows:

   (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.

5. The prosecution emphasised the words ‘without limitation’ in the above definition.  The only requirement was that the steps taken be taken for the purposes of the sale of the controlled drug.  It was submitted that it was not necessary for the prosecution to prove that the substance in fact dealt with by the accused was a controlled drug.  Ms Park submitted that the prosecution case had been presented on the basis of taking the steps alleged and not on the basis of possession of the controlled drug.  What the prosecution was required to prove was that the steps were taken for the purposes of the drug alleged, notwithstanding Mr Ralph had not at any stage had physical possession of it.  The difficulty with that submission is the nature of the steps alleged.  It was alleged that the accused had stored the drug or transported the drug, which is in conformity with the above definition of taking a step in the process of sale.  The definition requires those steps to be taken with respect to the drug itself.  To my mind, the words ‘without limitation’ do not alter that position.

6. Mr Handshin referred me to a number of authorities relating to a similar scenario in the context of the Commonwealth offence of importing a controlled drug. In Ribbon v The Queen,[1] Peek J, with whom Parker and Doyle JJ agreed, found that before the accused could be found guilty of an offence of importing on the basis of dealing with the relevant controlled substance in connection with importation he would have to have performed an act with respect to the actual substance with respect to which he had been charged.[2]  This was not satisfied by his having dealt with the substituted substance. His Honour made a similar finding, with which Kourakis CJ agreed, in R v Tranter[3] in which the effect of a covert substitution was explained:

   The first requirement is that the accused must “deal with the substance”. It is quite plain that the substance being referred to here is the original illicit substance the subject of the importation (and not the fully substituted substance). That being so, the effect of a full substitution of a different substance by police is very clear: after such a substitution, it is not possible for the person to “deal with the substance” at all. Accordingly, if his criminal liability is solely referable to acts performed after the substitution, an accused may be guilty of an attempt to import but he cannot be guilty of a full offence of import.[4]

   [1] (2019) 134 SASR 328.

   [2] Ibid [153], [176].

   [3] (2013) 116 SASR 452.

   [4] Ibid [88].

7. It was submitted, and I accept, that the above analysis is consistent with the observations of Doyle CJ in R v Tennant.[5]

   [5] (2010) 107 SASR 504 [56].

8. It seems clear enough that had the accused been charged with an attempt to traffic in the above circumstances, there would have been a case to answer on the facts. The prosecutor, quite properly, did not attempt to alter the basis on which the Crown presented its case and maintained the argument, which I rejected, that the accused could be found guilty of the completed offence as charged. I was not asked to consider whether to leave the offence of attempted trafficking open as an uncharged alternative in the event that I found no case to answer on the offence charged and, on the authorities, it is not at all clear to me that such a course would have been open to me. 

9. I accept that the reasoning in Ribbon and Tranter applies equally to an offence under s 32(3) of the Controlled Substances Act 1984. Accordingly, there was no case to answer and I acquitted the accused.