R v Sarlija (No 2)
[2015] ACTSC 295
•22 September 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Sarlija (No 2) |
Citation: | [2015] ACTSC 295 |
Hearing Date: | 21 September 2015 |
DecisionDate: | 22 September 2015 |
Before: | Murrell CJ |
Decision: | Guilty of the offence of trafficking in a controlled drug other than cannabis, namely heroin. Not guilty of the offence of possessing a prohibited weapon without authority to do so. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Judge alone trial – particular offences – trafficking in a controlled drug other than cannabis – possessing a prohibited weapon without authority |
Legislation Cited: | Criminal Code 2002 (ACT) ss 600, 601, 602(e), 603(7), 604, 632 Prohibited Weapons Act 1996 (ACT) ss 3A(1), 3A(3), 3B, 4A(1), 5, 17(1), sch 1, Dictionary Criminal Code Regulation 2005 (ACT) reg 5, sch 1 |
Parties: | The Queen (Crown) Benjamin Mark Sarlija (Accused) |
Representation: | Counsel Mr G Mansfield (Crown) Mr J Robertson (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Lynch Solicitors (Accused) | |
File Number: | SCC 257 of 2014 |
MURRELL CJ:
In accordance with s 68B of the Supreme Court Act1933 (ACT), the accused elected to be tried by a judge alone and his legal practitioner certified that he had received advice and made the election freely.
The accused pleaded not guilty to the charges that on 20 June 2014 at Canberra he:
(a)trafficked in a controlled drug other than cannabis, namely heroin, contrary to s 603(7) of the Criminal Code 2002 (ACT). The maximum penalty is 10 years’ imprisonment and/or a substantial fine.
(b)possessed a prohibited weapon, namely a knuckle-duster, when he was not authorised to do so, contrary to s 5 of the Prohibited Weapons Act 1996 (ACT). The maximum penalty is five years’ imprisonment and/or a substantial fine.
The prosecution relies upon s 604 of the Criminal Code, which creates the presumption that, unless the contrary is proved, a person who possesses the trafficable quantity of a controlled drug has an intention to sell the drug.
The trafficable quantity for heroin is 5g and the commercial quantity is 2.5kg.
Separate Charges
I am aware that the two charges are being tried together as a matter of convenience. I must consider each charge separately and return a separate verdict of guilty or not guilty on each charge.
Right to Silence
When questioned by police, the accused answered some questions but declined to answer others. When questioned by police, an accused person is entitled to remain silent. Consequently, I draw no adverse inference against the accused on the basis that he exercised the right to silence and declined to answer some questions.
Onus and Standard of Proof
I am aware that the prosecution has the task of proving the guilt of the accused beyond reasonable doubt. The accused is presumed to be not guilty of each charge unless the prosecution proves him guilty beyond reasonable doubt in relation to that charge. As long as I have a reasonable doubt about his guilt on a charge, I must return a verdict of not guilty on that charge.
The prosecution does not have to prove the truth of each fact asserted in the prosecution case. What the prosecution must prove beyond reasonable doubt is each legal element of a charge and the essential facts necessary to establish each legal element or legal ingredient.
I am aware that in making findings of fact I must rely upon the evidence, i.e. the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.
As a matter of practical reality, in relation to the drug trafficking charge, I must be satisfied beyond reasonable doubt that the accused knew or believed that he had a controlled drug of some description in the McDonald’s bag that was on the passenger seat of the vehicle that he was driving on the night of 20 June 2014. In relation to the prohibited weapon charge, I must be satisfied beyond reasonable doubt that the accused knew that there was a knuckle-duster in the driver’s side compartment of the vehicle that he was driving.
Overview of the Facts
At 10.45pm on 20 June 2014, police drove past the Lyneham address that was occupied by the accused and his de facto partner, Ms Carpenter. They observed that a vehicle that was owned by Ms Carpenter was parked in the driveway. Ms Carpenter was unlicensed.
At 11pm, police drove past the address for a second time. The vehicle was no longer in the driveway.
At 11.15pm, police saw the vehicle being driven by the accused on Ginninderra Drive, Lyneham, about 1 – 1.5 km from the Lyneham address. There was no other occupant in the vehicle.
Police stopped the vehicle. Constable Stapleton asked to see the accused’s driver licence, which was provided. The accused was asked to step from the vehicle. Constable Stapleton formed the opinion that he was behaving in a nervous fashion because his hands were shaking and he looked down. When Constable Stapleton spoke to the accused, he stuttered.
The accused consented to police conducting a search of his person and the vehicle.
The interior of the vehicle was unkempt. There was rubbish in the front passenger footwell area and children’s toys were scattered in the rear passenger area. The police located a knuckle-duster in the side compartment of the driver’s door. In the centre console, was a takeaway drink container with a straw. On the front passenger seat, adjacent to the centre console, was a brown McDonald’s bag. Constable Stapleton emptied out the contents and found several empty burger wrappers, one wrapped burger and among the wrappings were two golf ball sized balls of grey coloured electrical tape. He cut through two layers of electrical tape and a layer of plastic, revealing white powder. Later, the powder was analysed and found to be approximately 14g of heroin.
The police photographed the vehicle: Exhibit 4. Photograph 2 depicts the front passenger seat area of the vehicle after the two balls had been seized by police.
The accused was cautioned, arrested and taken to the City Police Station. At about 1:18am on 21 June 2014 police commenced a digital record of interview with the accused. In the interview, the accused answered some police questions but did not admit to knowledge of the heroin.
Police then conducted a forensic procedure and obtained a DNA sample from the accused. However, police did not succeed in lifting any DNA sample from the tape wrapping around the heroin.
Elements of the offence of trafficking in a controlled drug
Section 603(7) of the Criminal Code provides that a person commits an offence if the person traffics in a controlled drug other than cannabis. Section 602(e) of the Criminal Code defines “traffic” to include possession of a controlled drug “with the intention of selling any of it.” Relevantly, s 604 of the Criminal Code provides that possession of a trafficable quantity of a controlled drug gives rise to a presumption that the accused had the intention to sell the drug, as required to establish an offence against s 603(7) of the Criminal Code.
Section 632 of the Criminal Code provides that the prosecution must establish that the accused knew or was reckless about whether the substance was a controlled drug but need not establish that he knew or was reckless about the identity of the controlled drug.
In order to prove the offence of trafficking in a controlled drug other than cannabis, namely heroin, utilising the presumption provided for in s 604 of the Criminal Code, the prosecution must prove each of the following elements beyond reasonable doubt:
(a)The accused voluntarily possessed the substance, in that he believed that he had it and he was aware that he could exercise control over it (element 1).
(b)The substance was the controlled drug heroin (element 2).
(c)The quantity of the substance was greater than the trafficable quantity of 5g (element 3).
(d)The accused knew (that is, was aware) that the substance was a controlled drug of some description or the accused was reckless in the sense that he was aware of substantial risk that it was a controlled drug of some description and, having regard to the circumstances known to the accused, it was unjustifiable to take the risk that it was a controlled drug (element 4).
With respect to element 2, s 600 of the Criminal Code provides that a controlled drug is a substance prescribed by regulation as a controlled drug, but does not include a growing plant. Pursuant to the Criminal Code Regulation 2005 (ACT), clause 5 and sch 1, heroin is a controlled drug. In this case, Exhibit 5 establishes beyond reasonable doubt that the substance was heroin.
As to element 3, s 601 of the Criminal Code defines the trafficable quantity of a controlled drug as a quantity that is not less than the quantity prescribed by regulation as a trafficable quantity for the drug. Schedule 1 (by operation of reg 5) to the Criminal Code Regulation prescribes the trafficable quantity for heroin as 5g. In this case, Exhibit 5 establishes beyond reasonable doubt that the weight of the drug was approximately 14g.
Elements 1 and 4 are contentious. In relation to element 1, the prosecution must prove beyond reasonable doubt that the accused believed that he had the taped balls in the McDonald’s bag (element 1) and he knew or was reckless about whether the taped balls contained a controlled drug of some description (element 4).
Where it is necessary to prove an accused’s state of mind by reference to established circumstances, it is not common to describe the case as a “circumstantial evidence” case, although a similar approach is taken. Consequently, proof of the contentious elements, elements 1 and 4 could be said to depend upon circumstantial evidence.
Elements of the offence of unauthorised possession of a prohibited weapon
In order to prove this offence, the prosecution must prove each of the following elements beyond reasonable doubt:
(a)The accused voluntarily possessed the knuckle-duster in that he believed that he had it and he was capable of exercising control over it (element 1).
(b)The knuckle-duster was a prohibited weapon (element 2).
(c)The accused was reckless about whether the knuckle-duster was a prohibited weapon (element 3).
(d)The accused was not authorised by permit or otherwise by the Prohibited Weapon Act to possess the knuckle-duster (element 4).
(e)The accused was reckless as to whether he was authorised by permit or otherwise to possess the knuckle-duster (element 5).
As to element 2, s 4A(1)(a)(i) of the Prohibited Weapons Act defines “prohibited weapon” to include a weapon or thing described in schedule 1. Schedule 1 refers to a knuckle-duster or similar device made to be fitted over the knuckles of the hand to protect them and increase the effect of a punch or blow. Photograph 6 in Exhibit 4 shows that the item in question fits the description of a knuckle-duster in sch 1 to the Prohibited Weapons Act, and throughout their evidence the police officers referred to the item as a “knuckle-duster” without contradiction. I am satisfied beyond reasonable doubt that the item was a knuckle-duster within the meaning of the Prohibited Weapons Act.
As to element 3, cursory observation of the item would reveal that it fitted the definition of a prohibited weapon. Consequently, I am satisfied beyond reasonable doubt that, if element 1 is satisfied (if the accused voluntarily possessed the knuckle-duster in that he believed that he had it) then element 3 is also proved beyond reasonable doubt.
Exhibit 6 establishes element 4 beyond reasonable doubt. Exhibit 6 is a certificate pursuant to s 17(1)(a) of the Prohibited Weapons Act certifying that, on 20 June 2014, the accused was not the holder of a permit and was not authorised to possess the knuckle-duster. The fact of whether a permit or other authority had been issued to oneself, authorising the possession of a knuckle-duster is a matter that would be known. Consequently, I am also satisfied beyond reasonable doubt that element 5 is established.
The Prohibited Weapons Act contains confusing provisions in relation to the meaning of possession. Pursuant to the Dictionary to the Prohibited Weapons Act “possession” is defined by reference to s 3 of the Prohibited Weapons Act. Pursuant to s 3 of the Prohibited Weapons Act, a person has “possession” of a prohibited weapon if they “[have] the weapon ... at premises owned, leased or occupied by the person” or “otherwise [have] the care, control or management of the weapon”. The Dictionary to the Prohibited Weapons Act defines “premises” to include a vehicle. However, pursuant to s 3A(1)(a) of the Prohibited Weapons Act, a person does not have possession of a prohibited weapon only because it is at premises occupied by the person if the person does not know that the weapon is there. But s 3A(2) of the Prohibited Weapons Act (which is drafted in an unconventional way) seemingly places the evidential burden of proving lack of knowledge upon the person. Section 3B of the Prohibited Weapons Act places a gloss on the usual meaning of “care, control or management” that is associated with “possession”. I have decided that doubts concerning the content of element 1 should be resolved by adopting a narrow view of what is required to prove element 1, and that the content of element 1 should be as set out above.
Proof of the contentious element, element 1, could be said to depend upon circumstantial evidence.
Circumstantial Evidence
Evidence may be either direct evidence or circumstantial evidence, i.e. evidence of a fact that, by itself cannot establish the offence, but which may make it more likely that the offence occurred. In a circumstantial evidence case, the prosecution seeks to establish certain circumstances and then argues that the established circumstances show beyond reasonable doubt that the accused committed the crime in the sense that there is no rational explanation for the established circumstances other than that the accused is guilty of the crime.
Consciousness of Guilt
In the present case the prosecution seeks to rely upon is what the prosecution says are lies evidencing a consciousness of guilt in relation to the offence/s. The prosecution relies on statements made by the accused to police concerning his movements prior to arrest to argue that the accused had a guilty state of mind in relation to the offence/s.
A guilty state of mind is a circumstance that can be taken into account to strengthen a prosecution case. If an accused tells a deliberate lie about the offence charged, then, in some circumstances, the lie may also be used to establish that, when he told the lie, the accused felt guilty about the offence/s. In other words, the lie may provide some evidence that the accused is actually guilty of the offence/s. However, before any lie could be used as a circumstance supporting the prosecution case I would have to be satisfied of three matters:
(a)The accused’s statement about his movements was untrue.
(b)The statement was a deliberate lie, i.e. the accused deliberately made the statement knowing that it was untrue.
(c)The motive for the lie was to “cover up” the accused’s involvement in the offence.
In this case, as in most cases where the prosecution seeks to rely upon a lie as evidencing a consciousness of guilt, the critical issue is whether, when the accused lied, the accused was motivated by a desire to cover up his involvement in a particular offence or whether he may have had another reason to lie.
At the roadside, Constable Stapleton asked the accused where he had been that evening. The accused stated that he had been to visit his mother’s place in Weston Creek. In the record of interview (at Q67 and Q68), he stated that, when stopped by police, he had been driving home after having been out for an hour or so. While the forensic procedure was being conducted, the accused stated that he had been in the south-western area of Canberra visiting his mother for a couple of hours.
I am satisfied these statements were untrue and were deliberate lies. The vehicle that the accused was driving had left the Lyneham premises between 10.45pm and 11pm. The vehicle had not been absent from Lyneham for one or several hours. The accused could not have driven to Weston Creek, visited his mother, and returned to Lyneham in the time available.
I am satisfied that the lies concerned something important to the offence of trafficking in a controlled drug. It was the prosecution case that the heroin had been placed in the vehicle only recently and the lie suggested that, in the period of an hour or two prior to his arrest, the accused had been fully occupied with tasks other than the transportation of heroin.
However, it is difficult to be confident about the motive for the lies. The accused may have had reasons to lie apart from a consciousness of guilt about one or both of the alleged offences. Constable Stapleton gave evidence that he had previous knowledge of the accused. If the accused was previously known to Constable Stapleton, the accused may well have reacted irrationally when he was stopped by Constable Stapleton, deciding to lie about his movements on the night in question.
I decline to treat the lies as a circumstance evidencing consciousness of guilt in relation to either offence.
Circumstances relating to the offence of trafficking in a controlled drug
In deciding whether the prosecution has proved elements 1 and 4 of the offence of trafficking in a controlled drug other than cannabis, namely heroin, beyond reasonable doubt, I take into account the following circumstances:
(a)The accused was the sole occupant and driver of the vehicle.
(b)The McDonald’s bag containing the taped balls was prominently located on the front passenger seat, immediately adjacent to the driver’s seat which had been occupied by the accused. The only other items on the front passenger seat were a few compact discs. The McDonald’s bag would have been obvious to the driver of the vehicle and its location vis-à-vis the driver suggested that the driver may well have placed the bag there to facilitate the consumption of its contents. It is true that the interior of the vehicle was in an unkempt state and there was rubbish in the front passenger footwell area of the vehicle and toys in the rear passenger area of the vehicle. But apart from the McDonald’s bag the only other items on the front passenger seat were the compact discs.
(c)The taped balls containing the heroin and the associated McDonald’s bag and food had an appearance of having been recently placed in the vehicle. The taped balls were covered with moist brown material that had the appearance of faecal matter. The moistness was consistent with recent placement in the McDonald’s bag. The location of the McDonald’s bag on the seat was also consistent with the bag and contents having been recently acquired. Similarly, some, but not all of the burgers within the bag had been consumed, and there was a takeaway beverage in the centre console of the car that had not been fully consumed (as suggested by the position of the straw). In the record of interview (Q 99), the accused stated that he had consumed dinner “a long time before” he was stopped by police. The consumption of a late-night McDonald’s snack is consistent with that scenario.
(d)The quantity of heroin was substantial. Although there was no evidence of the monetary value of the heroin, I infer that it had significant value such that the “owner” of the heroin would wish to know its whereabouts.
(e)The accused was nervous in his dealings with the police. Constable Stapleton was not cross-examined on his evidence that the accused was shaking and stuttering when first approached at the roadside. It is true that, when answering questions during the record of interview, the accused spoke in a soft voice. However, I infer that that was his natural manner of speaking. I did not detect any stuttering. The accused may have been nervous in relation to possession of the knuckle-duster rather than the drug offence, but I consider it more likely that he was nervous because of the drug offence; the knuckle- duster offence was a significantly less serious matter.
Taking these circumstances as a whole, I am satisfied beyond reasonable doubt that the accused voluntarily possessed the taped balls in that he believed that he had them in the McDonald’s bag and he was aware that he had the capacity to exercise control over them. Further, I am satisfied beyond reasonable doubt that the accused knew (that is, was aware) that the taped balls contained a controlled drug of some description (or, at the very least, he was aware that there was a substantial risk that the taped balls contained a controlled drug and, having regard to the circumstances known to the accused, it was unjustifiable for him to take that risk).
Circumstances relating to offence of unauthorised possession of a prohibited weapon
In deciding whether the prosecution has proved element 1 of the offence of possess a prohibited weapon, namely a knuckle-duster, without authority to do so, beyond reasonable doubt, I take into account the following circumstances:
(a)The accused was the sole occupant and driver of the vehicle.
(b)The knuckle-duster was found in the driver’s side compartment. The accused’s partner was unlicensed. Consequently, it was relatively unlikely that she had placed the knuckle-duster in the driver’s side compartment at an earlier time.
(c)The knuckle-duster was clearly visible to a person who looked at the driver’s side compartment
However, there was no evidence suggesting that the knuckle-duster had recently been placed in the vehicle. It was black in colour. While readily visible to someone who was focused on the contents of the driver’s side compartment, the item would not have attracted the attention of a person who was not focused on the contents of the compartment. Apart from visibility and proximity to the driver’s seat, there is little to link the knuckle-duster to the accused. I am not satisfied beyond reasonable doubt that the accused voluntarily possessed the knuckle-duster in that he believed that he had it and he knew that the was capable of exercising control over it.
Verdicts
I find the accused guilty of the offence of trafficking in a controlled drug other than cannabis, namely heroin and not guilty of the offence of possessing a prohibited weapon without authority to do so.
| I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 22 September 2015 |
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