R v Stott (No 2)
[2017] ACTSC 145
•21 June 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Stott (No 2) |
Citation: | [2017] ACTSC 145 |
Hearing Dates: | 19 June 2017 – 21 June 2017 |
DecisionDate: | 21 June 2017 |
Before: | Elkaim J |
Decision: | See paragraph [84] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Verdict – Judge alone trial – trafficking in a controlled drug other than cannabis – circumstantial evidence. |
Legislation Cited: | Crimes Act 1900 (ACT) ss 114C Criminal Code 2002 (ACT) ss 324(1) and 603 (7) |
Cases Cited: | R v Filippetti (1978) 13 A Crim R 335 R v Hillier [2007] HCA 13; 228 CLR 618 R v Prasad (1979) 2 A Crim R 45 |
Parties: | The Queen (Crown) Sharon Ann Stott (Accused) |
Representation: | Counsel Mr D Sahu Khan (Crown) Mr S Whybrow (Accused) |
| Solicitors Office of the ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyers (Accused) | |
File Number: | SCC 107 of 2015 and SCC 113 of 2015 |
ELKAIM J:
Introduction
The accused pleaded not guilty to a single count on an indictment filed on 21 February 2017.
It is alleged that, on 18 January 2015 at Canberra, the accused trafficked in a controlled drug other than cannabis, namely methylamphetamine, contrary to s 603 of the Criminal Code 2002 (ACT).
The accused also faces five charges transferred from the Magistrates Court pursuant to s 90B of the Magistrates Court Act 1930 (ACT). These charges are:
(a)Possession of property suspected of being proceeds of crime, contrary to s 114C of the Crimes Act 1900 (ACT);
(b)Possessing ammunition generally, contrary to s 249(1) of the Firearms Act 1996 (ACT);
(c)Unlawful possession of stolen property, contrary to s 324(1) of the Criminal Code 2002 (ACT);
(d)Possessing prohibited substance, contrary to s 171(1)(a) of the Drugs of Dependence Act 1989 (ACT); and
(e)Cultivation of one cannabis plant, contrary to s 162(1) of the Drugs of Dependence Act 1989 (ACT).
During his opening address, counsel for the accused stated that charges (b) and (e) would not be disputed. During his closing address he said that charge (c) was also not disputed. Charges (a) and (d) were therefore left for decision.
In accordance with s 68B of the Supreme Court Act 1933 (ACT), the accused elected to be tried by a judge alone.
Before looking at the evidence, it is necessary to state the legal principles that I must apply before arriving at a verdict. These are essentially standard directions.
The prosecution must prove its case beyond reasonable doubt. The accused is presumed to be innocent. Suspicion and probability must play no part. As long as there is a reasonable doubt, the accused must be found not guilty.
The prosecution does not have to prove the truth of each fact that is asserted in its case. However, it must prove each legal element of the charge beyond reasonable doubt.
The facts that I find must be based on the evidence; that is, the evidence given by the witnesses and that contained in any exhibits. In addition, in assessing the evidence, I must apply my common sense. I must do so with an open and unbiased mind, hearing the evidence clinically and dispassionately and not letting emotion enter into the decision-making process.
The Crown’s case is circumstantial. This raises the importance of reminding myself of the steps that are involved in coming to a decision on a circumstantial case.
Circumstantial evidence can be contrasted with direct evidence. Direct evidence is what a witness says that he or she saw or heard or did.
In a circumstantial case, the Crown lacks direct evidence of that kind. This does not mean that a circumstantial case is, for that reason, weaker than a case based upon direct evidence. Some direct evidence can be of very dubious quality.
In a circumstantial case, no individual fact can prove the guilt of the accused. Where the Crown’s case depends either wholly or in part on circumstantial evidence, I must reason in a staged approach.
The Crown asks me, first, to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves, they cannot prove the guilt of the accused.
I am then asked to infer or conclude from a combination of those established facts that a further fact or facts existed. The ultimate fact the Crown asks me to find, based upon the basic facts, is that the accused is guilty of the offences based on circumstantial evidence.
A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown, considered as a whole. It will also depend upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused.
If I find that such a conclusion is a reasonable one to draw based upon a combination of those established facts then, before I can convict the accused, I must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused, the circumstantial case fails because I would not be satisfied of the accused’s guilt beyond reasonable doubt.
I understand that drawing a conclusion from one set of established facts to find that another fact is proved involves a logical and rational process of reasoning. I must not base my conclusion upon mere speculation, conjecture or supposition.
In reaching my conclusions about the circumstantial case, I have taken considerable guidance from the decision of the High Court in R v Hillier [2007] HCA 13; 228 CLR 618, in particular paragraphs [46], [47] and [48].
It is also necessary to remind myself about the appropriate manner of drawing inferences. I can only draw inferences from the direct evidence. Inferences are conclusions of fact rationally drawn from a combination of proved facts. Inferences may be valid or invalid, justified or unjustified, correct or incorrect.
I need to be extremely careful about drawing inferences. I must examine any possible inference to ensure that it is a justifiable inference and not draw an inference from the direct evidence unless it is a rational inference in the circumstances.
The legal elements of the trafficking offence are:
(a)The accused trafficked in a substance by:
(i)Selling the substance; or
(ii)Preparing the substance for supply with the intention of selling any of it or believing that someone else intended to sell any of it; or
(iii)Transporting the substance with the intention of selling any of it or believing that someone else intended to sell any of it; or
(iv)Guarding or concealing the substance with the intention of selling any of it or helping someone else to sell any of it; or
(v)Possessing the substance with the intention of selling any of it.
(b)The accused intended to traffic in the substance.
(c)The substance was a controlled drug other than cannabis.
(d)The accused knew or was reckless as to whether the substance was a controlled drug.
Ultimately, the major issues in dispute were whether or not the accused was in possession of the methylamphetamine found at her premises and whether or not she was aware of the cash found in the console.
The following matters were not in dispute:
(a)A search warrant was lawfully executed at a residence in Kambah in the Australian Capital Territory on 18 January 2015. These premises were occupied by the accused and her two sons, Harley Boardman and Shogun Stott. The latter were then aged 21 and 15 respectively.
(b)Mr Boardman was known to the police and was a subject of their investigations around the time of the execution of the search warrant.
(c)In the course of the execution of the search warrant, methylamphetamine was found in the premises. 139.00 grams of methylamphetamine was found in a washing machine, 27.909 grams was found in a Snap Lock bag in a portable air conditioning unit in a bedroom and 0.766 grams was located on the top of a refrigerator in the kitchen.
(d)The air conditioning unit was located in a bedroom that was normally used by Harley Boardman.
(e)The methylamphetamine located at the premises amounted to a trafficable quantity for the purposes of s 603 of the Criminal Code 2002 (ACT). A trafficable quantity is six grams.
(f)$14,405 in cash was found in the accused’s bedroom. It belonged to the accused. In the course of the trial, the Crown said that it did not rely on this amount as evidence in the trial.
(g)$31,800 in cash was located in a storage compartment of a lounge chair located in the lounge room. It was separated into six bundles. Each bundle was held together by a rubber band.
(h)The accused’s DNA was found on five of the rubber bands.
(i)A stolen iPad was found in the accused’s bedroom. The accused knew that it was stolen.
Notwithstanding the above concessions, the accused denied both possession and knowledge of the methylamphetamine. She also denied any knowledge of the $31,800 located in the lounge. It was submitted that transfer of her DNA to the rubber bands binding the cash could not reasonably be excluded.
It is important to note, at this stage, that I was informed that this matter came before me as a retrial, following the setting aside of a verdict against the accused by the ACT Court of Appeal. The first trial had been before a judge and jury.
Evidence
The proceedings before me were conducted by way of the tender of a number of statements and transcripts of evidence that were before the Court in the first trial. These documents form part of Exhibit A.
In addition to Exhibit A, CCTV footage obtained from cameras at the accused’s premises was tendered (Exhibit B). Two witnesses were also called to give oral evidence.
No attack was made on the credit of these witnesses. I accept their evidence.
The first witness was Detective Senior Constable Katz. He became the informant in the matter after the original informant, Officer Clancy, left the police force. The officer gave me a brief description of the documents making up Exhibit A.
The officer said that the methylamphetamine located at the accused’s premises had a street value of somewhere between $30,000 and $60,000. He said that the price of the drug fluctuated.
During the officer’s evidence, I watched CCTV footage taken from the security system installed at the accused’s premises (Exhibit B). I note here that the time stamp on the footage is approximately one and a half hours behind the actual time.
It is plain that there were various comings and goings during the early hours of 18 January 2015. The various persons seen in the footage cannot be identified. It was put to the officer that one of them might have been a Mr T, a person known to police to be involved with illegal drugs. The officer could not say that it was Mr T but accepted that the person in the footage had a similar body shape and long hair, like Mr T.
The footage shows the accused moving a pot plant, which is the subject of the cultivation charge.
The footage also shows the arrival of Mr Vo at the premises. He initially entered the house but then went back to his car and returned with a black bag. In the subsequent search of the premises, digital scales were located in the black bag. The scales were of a type associated with the weighing of illegal drugs.
The footage later shows the police arriving to execute the search warrant.
The informant said that Mr Vo was found seated on the lounge. He was sitting next to a storage unit, which was referred to as a console. The console can be seen in photograph 2 of Exhibit 1. $31,800 in cash was later found in the console (Photograph 3 of Exhibit 1). The cash was in six bundles.
Shogun Stott was also seated on the lounge. Mr Stott was available to give evidence but was not called by the Crown. The defence suggested that he would have at least been able to give evidence about what occurred immediately before the police entered the room. It was submitted that I should draw an inference that his evidence would not have assisted the Crown’s case. I can understand the perception of the possible importance of his evidence but I decline to draw any inference. I also do not think that the failure to call him demonstrated any impropriety on the Crown’s part.
Mr Vo initially told the officer that he had placed cash in the console, but in smaller amounts. He later retracted this version, accepting responsibility for only one of the bundles. The officer said that he did not believe Mr Vo. He thought that the money was associated with drug dealing. The officer’s assessment of Mr Vo as a liar was obviously well-placed.
During the course of the search, Mr Vo was arrested for possession of proceeds of crime (the cash). He was taken to a police station for the purposes of a DNA swab being taken. He was then returned to the accused’s house.
The informant said the investigation of Harley Boardman was concerned with drugs and stolen property.
The officer accepted that analysis of Mr Vo’s telephone (Exhibit 3) was consistent with him arriving to purchase a motor vehicle from the accused and not being content with his rental car. I note that Mr Vo arrived in a rented Ford and there were a number of messages from Hertz on his phone.
There was a motor vehicle at the accused’s premises which belonged to a dealer. The papers relating to the vehicle (Exhibit 2) suggest that the car had a value of $6,850, which was somewhat less than the $31,800 found in the console.
The messages found on Mr Vo’s phone might also have suggested the supply of methylamphetamine to the accused, perhaps for her personal use. She was known to be a user of the drug.
The informant confirmed that Mr Vo was not the target of the search. He was not previously known to the ACT police. However, subsequent enquiries revealed that he was believed to be involved in the delivery of methylamphetamine to the Australian Capital Territory from New South Wales. The officer also confirmed that, after the execution of the search warrant, Mr Vo and Mr Boardman spent time in custody together.
The officer was taken to enlarged photographs of the interior of the house (Exhibit 5). He identified the front door in photograph 3 and its proximity to the washing machine. He also accepted that a person seated alongside the console on the lounge would have had sufficient time, following the arrival of the police and before they entered the house, to place the bag containing the methylamphetamine in the washing machine and return to the lounge.
The officer was asked about the items seized and photographed. He said that not all drug-related items located in a search will be seized; they will, however, generally be photographed. This was the case with the kitchen scales, as seen in Exhibit A, Tab 24, photographs 83 and 84. He said that, other than the scales and the items associated with Mr Vo, no other items consistent with trafficking had been seized or photographed.
The officer said that the methylamphetamine found on top of the bar fridge was of a quantity that might be consumed in an ice smoking pipe, as shown in Exhibit 4, photograph 2.
Ms Seymour gave oral evidence. She is a senior forensic biologist for the Australian Federal Police. She also gave evidence at the earlier trial. Exhibit A contains Ms Seymour’s Report and a transcript of her evidence. The bulk of the cross-examination of Ms Seymour focused on the possibility of the DNA located on the rubber bands having been transferred from another source; in particular, from the items in the console (Exhibit 1, photograph 3).
In her evidence in the previous trial, Ms Seymour agreed generally that transfer was possible. I think that she went a little further in her evidence before me. She agreed that the rubber bands had not necessarily been touched by the accused and she could not exclude the possibility of DNA transfer. She also told me that the categorisation of a person’s DNA as being the major contributor was not a product of any measurement of the amount of that person’s DNA. Rather, it is an assessment that the person’s DNA exceeded the amount of any other person’s DNA present on the objects tested.
At the conclusion of the Crown case, an application was made for me to give myself a ‘Prasad’ direction (derived from The Queen v Prasad [1979] 23 SASR 161). I pointed out to counsel for the accused that the application was not necessary because, in any event, I had the power envisaged by a Prasad direction. King CJ stated at page 163:
I have no doubt that a tribunal which is the judge of both law and fact may dismiss a charge at any time after the close of the case for the prosecution, notwithstanding that there is evidence upon which the defendant could be lawfully convicted.
I then informed the parties that I did not intend to exercise this power.
Besides the tender of some enlarged photographs already present in Exhibit A, the accused tendered the analysis of Mr Vo’s phone (Exhibit 3). The accused did not give oral evidence and she did not call any witnesses. This was in contrast to the statement, made in opening by her counsel, that Harley Boardman would be called.
I remind myself, however, that an accused person is entitled to a presumption of innocence. This means that she is under no obligation to give evidence or call evidence. She was entitled to re-assess her position at the end of the Crown’s case and make a fresh decision about the need to present oral evidence. The onus remains on the prosecution to establish its case beyond reasonable doubt.
Consideration
The accused submitted that her case is similar to that in Filipetti v The Queen (1978) 13 A Crim R 335, a decision of the New South Wales Court of Criminal Appeal. That case involved drugs being found in a house where a number of persons resided. One of the occupants of the house in that case was seated very close to where a quantity of cannabis was found. There were fewer inhabitants in the accused’s house. Nevertheless, the same principles are applicable.
As far as possession is concerned, the important question is whether, at the relevant time, the accused intentionally had control over the objects in question. It is possible to have control over an object alone or jointly with another or other persons. Control involves the right to exclude other people from the object.
It is not necessary for the object to be on or about the accused’s person. It is possible to possess something even though it is out of reach or some distance away. An often repeated example is a person away from home nevertheless possesses a television set that is in their home. Possession of an object can be temporary or for a limited purpose.
Intentionally having control includes having knowledge of the presence of the object. So, for example, if a person who has a suitcase into which an object has been surreptitiously inserted, the person would be in possession of the suitcase but not of the object. This is the important point in this case, because the accused’s position is that she was unaware of the methylamphetamine and the larger amount of cash. I must be satisfied beyond reasonable doubt that the accused knew about the methylamphetamine in order for her to be convicted of the trafficking offence.
I also observe here that it is an integral part of the Crown’s case on the trafficking charge that the accused knew of the presence of the money in the console.
In the present case, Mr Vo was seated next to the console where most of the cash was located. He had easy and quick access to it.
In addition, Mr Vo was a drug dealer and ‘transporter’. It would be part of his ‘standard’ luggage to be carrying methylamphetamine and cash. The black bag he brought into the house was large enough to contain the methylamphetamine that was found in the washing machine. As earlier observed, the black bag also contained electronic scales.
Once Mr Vo was alerted to the arrival of the police, it was a journey of some few metres to the washing machine to hide the drugs. I note that the washing machine is very close to the front door and would have been visible on entry to the house.
The cash could also have then been put in the console or perhaps placed there closer to his arrival.
Although Harley Boardman was not present when the search occurred, he normally resided in the house, was well known for his involvement with drugs, and a quantity of the methylamphetamine was found, not only in his bedroom, but secreted in his bedroom. He could not be reasonably excluded as having hidden the drugs. While I take little from the sign on his wall (Exhibit 6, photograph 3), it is quite reasonable that his mother would not have been familiar with the contents of his room, let alone assorted ‘hiding places’ such as the drip tray in the air conditioning unit.
The Crown submitted that one of three scenarios should be considered. They were:
(a)Mr Vo was selling methylamphetamine to the accused.
(b)The accused was selling methylamphetamine to Mr Vo.
(c)Mr Vo had both the money and the methylamphetamine and the accused was unaware of both.
The Crown submitted that the scenario (c) should be immediately discounted. I do not see why that should be so. There is as much, or in fact as little, evidence of scenarios (a) and (b) as there is of (c). I could not reasonably exclude any one of them. However if I cannot specifically exclude (c), then there must be a reasonable doubt about the other two.
The Crown nominated the following factors as being the individual findings that, when taken together, would unite to form the circumstantial evidence leading to a conclusion, beyond reasonable doubt, of the guilt of the accused:
(a)The methylamphetamine was found in the accused’s residence. An inference can be drawn that all items within her house were possessed by her. The drugs in the washing machine were, certainly, an indication of her possession of them.
(b)The cash in the console could only be explained in part by Mr Vo wanting to buy a car. The car’s value was no more than about $7,000 (Exhibit 2, photograph 2). This left more than $25,000 to be explained.
(c)The amount of cash found was consistent with the informant’s evidence about the value of the methylamphetamine found on the premises.
(d)The accused’s DNA was found on the rubber bands.
(e)The accused and Mr Vo spent about two hours in the house before the police arrived. An inference was available that they had been discussing the trading of methylamphetamine.
(f)Even if the methylamphetamine found in Mr Boardman’s room was excluded, the balance of the drug was sufficient to establish the charge.
(g)Mr Vo was a drug dealer, a friend of the accused and plainly at the premises to see the accused.
(h)Mr Vo pleaded guilty to attempting to sell or supply methylamphetamine.
I have already dealt with most of the above points. The methylamphetamine in Harley Boardman’s bedroom cannot reasonably be excluded as having belonged to him and as being present without the knowledge of the accused.
It cannot be reasonably excluded that the methylamphetamine in the washing machine was placed there by Mr Vo; a man associated with illegal drugs and likely to have had them in his possession, but eager not to be found with them in his possession.
The enlarged photograph of the console (Exhibit 1, photograph 3) plainly shows that the rubber bands were probably in contact with other objects and that the closing of the console lid might have required a pressing upon each other of the various objects. The inescapable conclusion is that, without more, the presence of the DNA profiles on the rubber bands cannot establish, beyond reasonable doubt, that the money was ever handled by the accused.
When this fact is combined with Mr Vo having been seated next to the console, the possibility of Mr Vo having put the money in the console without the accused’s knowledge cannot be reasonably excluded. Once again, it is important to recall that Mr Vo was a drug dealer who was likely to have large sums of cash with him.
The submitted consistency between the amount of methylamphetamine and the sum of money involved depends on the Crown abandoning the 27.909 grams found in the air conditioning unit. Further, the informant said that prices fluctuated. The so-called consistency is only valid in the very broadest terms.
In relation to the two hours in which the accused and Mr Vo were apparently present in the house, one might be extremely suspicious of what they were discussing. Suspicion, however, is not enough and there is equally a reasonable possibility, noting that the Crown says they were friends and noting the text messages about the purchase of a motor vehicle, that they were not discussing the dealing of drugs.
The fact that Mr Vo had the drugs and the cash with him inside the house is consistent with him not wishing to leave these items in his motor vehicle. It is also consistent with him wanting to deal with Harley Boardman. It would be an unjustifiable inference for me to draw that the accused and Mr Vo were necessarily discussing the dealing of drugs.
Further, the fact that Mr Vo was a drug dealer does not mean that he did not engage in social discourse unrelated to drug dealing. If, as the Crown submitted, he and the accused were friends, their friendship would not preclude interaction on any number of topics.
Mr Vo’s plea does not take the matter much further. Firstly, the plea was to an attempt. Secondly, it was the product of an agreement made with the Crown.
Following the abandonment of the cash found in the accused’s bedroom as part of the proceeds of crime charge, it follows that this charge must fail. This failure also has an effect on the trafficking charge, it being one of the planks of the circumstantial case that the accused knew about the cash and its presence was indicative of her involvement in trafficking.
Applying the principles I have set out above in respect of circumstantial evidence, not only are the individual circumstances subject to doubt but, more importantly, when combined do not lead to a conclusion, in respect of the proceeds of crime and trafficking charges, of guilt beyond reasonable doubt.
Having excluded the relevance of the methylamphetamine found in the washing machine and in the air-conditioning unit, the remaining methylamphetamine (0.766 grams) is not of a sufficient quantity to establish a trafficking charge.
I wish to make it clear that the circumstances that existed in the house do make me very suspicious about the activities of the accused. It may even be said that she is probably guilty. However, for the reasons I have set out above, I cannot exclude a reasonable doubt of her guilt.
I will therefore give verdicts of Not Guilty on the proceeds of crime and trafficking charges.
This leaves one of the transfer charges to be dealt with, namely the possession of a prohibited substance. The cannabis was found in three locations: 5.6 grams was found in Mr Boardman’s bedroom, 0.5 grams was found in the console and 2 grams was found in a kitchen cupboard. The cannabis found in Mr Boardman’s bedroom can be immediately excluded. The possibility of another person possessing the 0.5 grams in the console is apparent, especially considering the proximity to the console of both Mr Vo and Shogun Stott, as is the absence of any positive evidence suggesting was aware of its presence.
The charge of possessing a prohibited substance relates to an amount of cannabis found in a clip seal bag in Harley Boardman’s bedroom. Once again, I could not reasonably exclude the possibility that the accused was not aware of it and that it belonged to her son or one of the visitors to the house. I note, in this regard, that the CCTV footage revealed a number of persons coming in and out of the house during the early hours of the morning. A verdict of Not Guilty will be given for this offence.
The verdicts are as follows:
(a)In respect of Count 1, trafficking in a controlled drug other than cannabis, the accused is found Not Guilty.
(b)In respect of the charge of possession of property suspected of being proceeds of crime, the accused is found Not Guilty.
(c)In respect of the charge of possessing ammunition, the accused is found Guilty.
(d)In respect of the charge of unlawful possession of stolen property, the accused is found Guilty
(e)In respect of the charge of possessing a prohibited substance, the accused is found Not Guilty.
(f)In respect of the charge of cultivation of one cannabis plant, the accused is found Guilty.
| I certify that the preceding eight-four [84] numbered paragraphs are a true copy of the Reasons for Judgment of His Honour Justice Elkaim. Associate: Date: 21 June 2017 |