R v Suwannagate

[2010] NSWDC 201

CITATION:	R v Suwannagate [2010] NSWDC 201
HEARING DATE(S):	17/08/10, 18/08/10, 19/08/10, 20/08/10
JUDGMENT DATE:	15 September 2010
JURISDICTION:	Crime
JUDGMENT OF:	Norrish QC DCJ
DECISION:	Count 1 - Guilty Count 2 - Not Guilty Count 3 - Guilty Count 4 - Not Guilty
CATCHWORDS:	CRIME - supply of prohibited drugs
LEGISLATION CITED:	Evidence Act 1995 Drug Misuse and Trafficking Act 1985 Criminal Procedure Act 1986
CASES CITED:	R v Carey (1990) 20 NSWLR 292 He Kaw The The Queen (1985) 157 CLR 423 R v Dib (1991) 52 A Crim R 64 R v Filippette (1984) 13 A Crim R 335 R v Amanatidis [2001] NSWCCA 400
PARTIES:	Regina Busrakum Suwannagate
FILE NUMBER(S):	2009/00055403
COUNSEL:	Mr B Rowe (Crown) Mr P Lowe (Accused)

Judgment

Introduction

1 Busrakum Suwannagate was arraigned on 17 August 2010 on four counts alleging various offences committed by her on 30 May 2009 at Marrickville.

Count 1 alleged that she did supply a prohibited drug, namely 56.52 grams of 3-4 methylenedioxymethamphetamine.

Count 2 alleged she did supply a prohibited drug, namely 8.16 grams of cocaine.

Count 3 alleged that she supplied a prohibited drug, namely 9.8 grams of amphetamine.

Count 4 alleged that she did knowingly have in her possession for an unlawful purpose a paper resembling, or apparently intended to resemble, a $100 Australian banknote.

2 The accused pleaded ‘not guilty’ to each count and the trial proceeded as a trial by judge alone in accordance with the relevant provisions of the Criminal Procedure Act, the election for a trial by judge alone having been made before the date of trial.

3 Certain facts were agreed between the parties to which I will refer shortly, some evidence was given by police officers involved in the arrest of the accused and in the accused’s case she gave evidence and called evidence from Blair Athol Murphy and Jay McDermott.

4 At the conclusion of submissions the Court reserved to deliberate upon the appropriate verdicts. This occurred on Friday 20 August 2010, when the Court had other part heard matters to deal with at the time. The verdicts of the Court delivered on that day were ‘guilty’, in relation to Count 1 and Count 3, and ‘not guilty’ in relation to Count 2 and 4. As I was to go on leave that day the judgment upon verdict had to be reserved.

5 These reasons constitute the judgment upon the verdicts that were returned on 20 August 2010. Full reasons would have been given on the delivery of the verdicts had adequate time been available. At this time I do not have a transcript of the evidence at trial.

6 In the context of the issues that arose in this trial, bearing in mind the Crown case was one of “deemed supply”, pursuant to ss.25/29 Drug Misuse and Trafficking Act 1985, (“the Act”). There was no issue that the particularised prohibited drugs in each count were found by the police in the accused’s car, in the quantities pleaded.

7 If possession of a relevant prohibited drug was proven in respect of a particular count, the accused bore the burden of establishing that the relevant drug was in her possession for purpose(s) other than for supply (s.29(a)). In respect of Count 4, the Crown was required to establish possession, for ‘an unlawful purpose’ of the ‘counterfeit’ banknote particularised. No serious argument was eventually put by the prosecution that it could prove that the accused had a relevant “unlawful” purpose to prove that count, although possession was not denied.

8 I summarise the main legal principles applicable below, but little controversy emerged in submission regarding legal issues relevant to proof of guilt.

Onus and Standard of Proof for proof of guilt

9 The prosecution bears the burden of proving the guilt of the accused. That burden or onus rests with the prosecution throughout the trial in respect of matters regarding proof by the prosecution.

10 The prosecution must prove each and all essential ingredients of a relevant charge for consideration ‘beyond reasonable doubt’. Those words are to be given their ordinary, everyday meaning. The accused bears no onus in relation to such matters requiring proof by the prosecution and is presume ‘innocent’ until such time as the prosecution is able to prove guilt on a particular count.

Matters requiring proof

11 The prosecution case in relation to the allegations of supplying prohibited drugs was brought pursuant to s.25 and 29 Drug Misuse and Trafficking Act. Thus in summary the prosecution was required to establish that the accused had possession of the prohibited drug, relevant to each count, in quantities in excess of a traffickable quantity in each charge. If so, the onus (on the balance of probabilities) fell to the accused to establish that she had a particular prohibited drug in her possession other than for the purposes ‘supply’ (R v Carey (1990) 20 NSWLR 292).

12 The extended definition of supply is set out in s.3 of the Act and includes:

“sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things.”

13 A traffickable quantity of cocaine and methylamphetamine is 3.0 grams of a substance (including an admixture of the prohibited drug and other material) or more, a traffickable quantity of MDMA is 0.75 grams or more of a ‘substance’ containing MDMA. Here the analysts’ certificates and the evidence as to the chain of possession established the relevant quantities alleged to be in the possession of the accused were traffickable quantities, as particularised in each of the counts. The prosecution does not need to establish that the accused had knowledge that she possessed the relevant traffickable quantities of each prohibited drug particularised in each count.

14 In order to establish possession of the drugs the prosecution is required to prove, in respect of each count, that the accused had physical control or custody of the relevant prohibited drug to that count, and knowledge, by her, that she had it under her control or custody. Physical control or custody may be shared, but the control or custody must be to the exclusion of other persons, other than those with whom it is shared (He Kaw The v The Queen (1985) 157 CLR 423: R v Dib (1991) 52 A Crim R 64 at 667).

15 It is not enough to prove guilt for the prosecution to prove that the accused was one of a number persons with access to the relevant prohibited drug to each count with the exclusion of other persons, that does not necessarily constitute physical control or custody of the relevant prohibited drug, or physical control or custody shared with others of the number of persons (R v Filippetti (1984) 13 A Crim R 335: see also R v Amanatidis [2001] NSWCCA 400 at [9]).

16 In this matter the critical issue for proof was the intent to have custody of, and knowledge by the accused that she had custody of, a particular prohibited drug, as it was relevantly required to be established in relation to each count.

17 The prosecution sought to establish the relevant intent and knowledge, required to be established, on the basis of inferences of such matters, established from direct evidence (including the evidence of the search of her motor vehicle in her presence and the location of the relevant drugs) and various circumstances to which reference would be made later. In the context of a consideration of a Crown case based upon a combination of direct and ‘circumstantial’ evidence in order to prove guilt, or specifically to prove a particular element of the offence(s), one must bear in mind that I am entitled to draw relevant inferences from facts that I decide are established by the evidence.

18 I must not draw an inference unless it is a reasonable inference that can be rationally drawn from the evidence that I accept. In a criminal trial one must be careful about drawing inferences. Especially where the inference is about guilt, or the existence of an element of the offence. When drawing inferences about guilt, or the existence of an element in a particular charge, that is an inference or conclusion adverse to the accused, I must not draw that inference unless it is the only reasonable inference that can be drawn, beyond reasonable doubt.

19 In this regard, there may be a number of inferences that can be reasonably drawn, some adverse to the accused and some not adverse to the accused (ie: inconsistent with guilt or the existence of an element). In such a situation I must not draw the inference adverse to establish the relevant elements of the count unless I am satisfied of two things:

· that all inferences favourable to the accused can be excluded; and

· the only inference that can be drawn, beyond a reasonable doubt, is the one or one’s adverse to the accused in proof of guilt.

20 Unless I reach that point I would find the element is not made out and that the accused is ‘not guilty’ of the particular charge under consideration.

21 So long as there remains an inference reasonably open that is favourable to the accused (that cannot be excluded beyond a reasonable doubt) I must find that element in that count not made out.

22 Each count must be considered separately by reference to evidence only relevant to the count under consideration. No issue of ‘tendency’ arises in relation to consideration of one or other of Counts 1 to 3, nor in relation to other evidence in the trial.

23 Evidence of the accused’s personal use of drugs and knowledge of drug culture arose, mainly in her case, as ‘context evidence’ as to the circumstances in which she was stopped by police (driving under the influence of a prohibited drug) and as to how the container, within which were found the prohibited drugs, came to be in her car at the time of arrest. No issue of ‘bad character’ arises, however, the accused has raised her “good character” to a limited extent as relevant to whether the prosecution has proved her guilt and the credibility of her denials of guilt.

Crown case against the accused in summary

24 The accused was arrested in the early hours of 30 May 2009 (at about 3.50 am) in Marrickville after a motor vehicle, owned and driven by her, was stopped by Sergeant Carlisle because of her erratic driving. She was alone in the car at the time. A subsequent search by him, and other police, revealed the presence in the motor vehicle of a range of illegal or suspicious items, including the drugs particularised in Counts 1, 2 & 3, $7,500 in cash, a counterfeit $100 bill, at least seven mobile phones and drug supply and/or use paraphernalia. The prohibited drugs were found in a blue supermarket “chiller” carry bag.

25 The trial proceeded after I had ruled inadmissible evidence of events relating to the police treatment of the accused at the Marrickville Police Station after she had been arrested, but before she was taken to Newtown Police Station to be interviewed electronically. That interview was subsequently not pressed. An objection by the accused to the admissibility of evidence of the search of the accused’s motor vehicle was withdrawn.

26 When first spoken to the accused appeared to be under the influence of some substance. All the police who were involved in the stop and subsequent search gave evidence at the trial. As it transpired hardly any of their evidence was substantially in dispute, save for evidence as to the direction in which the accused was driving when first seen by Sergeant Carlisle. There is no reason to reject his account notwithstanding the contrary evidence of the accused on this matter. The significance of his evidence in this regard only emerged after the accused had given her account at the trial of her movements. There is no reason for him to be untruthful or mistaken on this issue. His evidence was generally and specifically more credible than the accused’s on this aspect.

27 The accused is a Thai national who has resided in Australia since approximately 2001. She had completed a Master’s degree at Sydney University. English was her second language. However, there was no doubt that she was capable of understanding what was said to her by investigating police and reply to them when required. She made no admissions upon which her guilt could be proven in relations to Counts 1 to 4.

28 The Crown case in proof of guilt generally turned upon the facts that the accused was driving her motor vehicle alone, the drugs particularised in Count 1 were in a container that could clearly be seen, the counterfeit note was within her own wallet, she was in possession of $7,500 in cash, as well as multiple mobile phones, and within the car there were items consistent with drug use and supply paraphernalia. Certain circumstances and facts emerged in her case that strengthened the prosecution case in relation to Counts 1 and 3.

Defence case in summary

29 The accused gave evidence that she had smoked amphetamines earlier on 29 May 2009 , or on 28 May 2009, and then had gone from her home at Hunters Hill to a flat at 3/5 Blackwood Avenue, Ashfield, occupied by a friend of hers, Blair Murphy, a former boyfriend. She and Murphy had planned to go to a “rave party” to be held at a private factory at Liverpool. She had expected that she would use recreational drugs, including ecstasy and amphetamines, at that party. She arrived at Mr Murphy’s residence just before midnight and in the early hours of 30 May a man called “Damian” arrived. Damian had been known to the accused through the ‘rave scene’ for two years and she had invited him to attend the same party. Damian was known to Mr Murphy. He was known to be a user of recreational drugs. Murphy was a user of recreational drugs and could tell the difference between the effects of MDMA (‘ecstasy’) and (methyl) amphetamines (‘speed’).

30 Damian arrived at Mr Murphy’s apartment within an hour of her arrival. After his arrived she saw a ‘blue chiller bag’. Damian must have brought it to the flat, but she did not see that, nor did she discuss its contents with anyone. This bag was later found to contain the drugs particularised in Counts 1 to 3 after it was found on the back seat of the accused’s vehicle by police after 3.50 am. She said she did not know that the bag contained those drugs nor that it was in her car at the time of her arrest. She and Damian left Mr Murphy’s apartment at approximately 3.30 am, planning to travel to a house in Petersham. Mr Murphy was to travel separately in his own motor vehicle, she and Damian in her car, and the three were then to travel to Liverpool after picking up some music playing equipment from Petersham.

31 She said she did not see Damian carry the blue bag to her motor vehicle. She did not touch the bag. She did not see him place the bag in the motor vehicle. She did not know it was there.

32 She drove Damian towards Petersham railway station from Ashfield, on the southern side of the railway line, but at a point just beyond Summer Hill, near the intersection of Carlton (or Railway) Crescent and Old Canterbury Road, he got out of the motor vehicle at a set of traffic lights and got into Mr Murphy’s motor vehicle expressing some frustration with her ability to follow his directions. She claimed that Damian had told her that they were going to a place near the Petersham RSL Club. Mr Murphy “took off” with Damian in his car and she tried to follow them but lost them, driving eventually into Livingstone Road and ultimately being stopped by the police near Marrickville Road. She denied turning into Livingstone Road (or its extension Gordon Street) from Trafalgar Street, as had been observed by Sergeant Carlisle.

33 At that point she did not know the blue chiller bag was on the back seat. She gave evidence that the cash ($7,500) in her possession was given to her by a man named Rodney, from whom, on behalf of Jay McDermott, she had purchased a motor vehicle for about that amount, but which cash was returned to her by Rodney on 29 May for her to give back to Mr McDermott. This was because Rodney could not deliver the vehicle that Mr McDermott had agreed to purchase.

34 Mr McDermott gave evidence in the trial of this transaction, confirming the accused’s account. I need not summarise his evidence as, ultimately, I am satisfied that her possession of the cash had nothing to do with drug supply, or any drugs found in her car. He was a very convincing witness. She was also in possession of two working mobile phones. There were (about) six other mobile phones found in her possession by police that had been bought by her from a shop in the Haymarket to be sent back to Thailand for sale. She produced some equivocal evidence of her presence in the Haymarket area within a few days of her arrest (at about 5.30 pm on 28 May 2009). I generally accept her account on this matter, bearing in mind that the evidence establishes her possession of only two working SIM cards. I concluded that her possession of multiple mobile phones had nothing to do with the issue of her possession of the drugs particularised in the indictment. I need not refer to that evidence any further in detail.

35 Mr Murphy gave evidence of his relationship with the accused, her arrival at his flat at Ashfield and then Damian’s arrival, apparently having travelled from the Newtown area by train to Ashfield railway station and walking to his flat with the chiller bag. He confirmed that they were going to a rave party at Liverpool and that he may have ingested recreational drugs at that party. He gave evidence of the departure to Petersham, although a somewhat different version of the circumstances of the accused’s departure from his flat with Damian, Damian changing motor vehicles in the Lewisham area and then of the arrival of himself and Damian at the home of ‘Bruno’. He gave evidence that he and Damian went inside to await the arrival of the accused. They waited for up to an hour, but the accused did not arrive. He left by himself in his vehicle with a view to try and find her but after a short time gave up and went home. His evidence was that during the period of time he waited Damian did not express any direct concern about his blue cooler bag or its contents.

36 The defence case essentially was, in respect of Counts 1 to 3, that the possession of cash and mobile phones was irrelevant and that in all the circumstances the Court would accept that she did not know that the blue chiller bag was in the motor vehicle, or that it was reasonably possible she did not know. Thus, the prohibited drugs could not be in her possession. The accused relied on the fact that she had no prior criminal convictions and that her credibility was generally enhanced by the evidence from Mr Murphy and Mr McDermott that supported aspects of her account. Whilst she admitted she was in possession of the counterfeit note relevant to Count 4, there was no evidence of unlawful purpose on her behalf. She said she had found it and kept it out of interest.

37 She was not an impressive witness, even allowing for language difficulties (she had access at all times in the trial to an interpreter). Neither was Mr Murphy. They contradicted each other on some minor details. They both gave unacceptable, unbelievable accounts of a number of matters including their knowledge of Damian and his personal particulars, his reputation as a drug supplier, his reasons for changing cars (if indeed he did) the circumstances of the accused getting lost and their efforts to find Damian. There were some common threads in their evidence that make parts of their evidence worthy of acceptance. One is entitled to accept part of a witness’ evidence but reject other parts.

38 The accused’s credibility in specific and general terms was enhanced by the evidence from Mr McDermott and the absence of prior convictions.

Facts as established from the Evidence and Consideration

39 In determining the facts I have taken into account all submissions put by the parties, some of which I have referred to above or are dealt with below, either expressly or implicitly.

40 The trial proceeded on the presentation of a “Agreement as to Facts” pursuant to s.191 Evidence Act 1995 to the effect that the accused agreed that she had been stopped by police at 3.50 am on Saturday 30 May 2009, she was driving a black Holden Astra registration number YKN 449, which was searched by police and that she was the registered owner of the motor vehicle.

41 During the search of the car the police found on the rear back seat a blue ‘Coles chiller bag’ inside which was:

i) 56.52 grams of 3-4 methylenedioxymethamphetamine (Count 1),

ii) 8.16 grams of cocaine (Count 2),

iii) 9.8 grams of methylamphetamine (Count 3) and further,

iv) in a wallet that belonged to the accused was a document that resembled a $100 note (the subject of Count 4).

42 In relation to Count 4, the fake banknote in question was a tattered damaged piece of paper that was facsimile of a $100 note. It was alone in the wallet and was an obvious “fake”. There was absolutely no evidence that the accused has sought to use it in any way as a genuine item of currency and she gave an account of having found it and kept it out of, in effect, curiosity. As earlier indicated, in discussion, the Crown conceded it could not establish any ‘unlawful purpose’. Furthermore, her possession of the note is completely irrelevant to the issue of whether the accused is guilty or not guilty of Counts 1 to 3. I do not propose to refer to Count 4 any further beyond noting that possession was proved but unlawful purpose was not. There is nothing sinister about her possession of it.

43 As earlier noted, the accused was stopped by police, Sergeant Carlisle, when driving her own motor vehicle approximately 100 metres before the intersection of Livingstone Road and Marrickville Road. The Sergeant had seen her motor vehicle travel from Trafalgar Street Petersham, that is, from the direction of Petersham railway station and turn left into Gordon Street before driving into Livingstone Road where the vehicle was stopped. I would estimate this distance from general knowledge as to be approximately a mile to 1 kilometre.

44 When spoken to by police the accused told Sergeant Carlisle that she was going to “her boyfriend’s house” at “Petersham” and that she had come from “Ashfield”. She was told she was going in the wrong direction and she said, “I am following my boyfriend and I got lost”.

45 The Sergeant had not seen any other cars in the area and the explanation the accused gave to the Sergeant of being ‘lost’ is at odds with his observation of her movements. Where her evidence in this regard is in conflict with the account given by her to the Sergeant and/or his observations, I accept the version given by the Sergeant.

46 A search of the motor vehicle was conducted and on the front passenger seat there was a black bag in which was located $7,500 in $50 notes. Evidence at trial established that this cash was in the possession of the accused for innocent purposes, as earlier discussed, and has nothing at all to do with matters relevant to the establishment of the accused’s guilt.

47 Other police arrived and a search of the motor vehicle revealed that in the back seat was located a number of bags and items including:

i) The blue supermarket ‘chiller bag’ in which were located a number of smaller bags and pouches including a Victorinox Travel style wallet. The wallet and/or the blue chiller bag in which it was found contained the drugs identified in the respective counts. Some pills were found in a plastic Tupperware box in the chiller bag, some marihuana was found in plastic resealable bags, two glass pipes commonly used to smoke methamphetamine and other drugs were found with a residue of ash, a butane lighter consistent with the use of smoking implements and two small digital scales, consistent with use for weighing drugs for sale or supply.

ii) In the back seat was a collapsible shopping bag which had on the top of it a black and silver butane lighter which is typically used by a smoker who desires an exceptionally hot flame and is commonly used in smoking crystalline substances such as methylamphetamine. A further search of this bag revealed another butane lighter.

48 Subsequent analysis of the contents of the blue chiller bag revealed the presence of methylamphetamine, 3.4 methylenedioxymethamphetamine and cocaine as particularised in respect of the counts. The presentation of the drugs, their purity, the presence of weighing equipment and smoking equipment, were all consistent with the drugs within the chiller bag being there for the purposes of ‘supply’, in the sense of ‘sale’ or giving to others. I bear in mind that the evidence establishes that they were being taken to a ‘rave party’ at a private property where prohibited drugs would be ingested.

49 The other lighters, not found in the chiller bag, were consistent with use of methylamphetamine. The accused denied knowledge of their presence. The accused herself was a user of methylamphetamine and ecstasy from time to time. In fact, because her presentation to police was consistent with being affected by, or under the influence of, a prohibited drug, blood analysis was undertaken which showed the presence of amphetamine and methylamphetamine in her blood. These lighters were found on, or in a collapsible shopping bag belonging to her. Her denial of knowledge of the presence of the lighters I reject. No alternative person as a source for them was reasonably available from the evidence.

50 I bear in mind that the accused made no admission of knowledge of the presence of the prohibited drugs relevant to Counts 1 to 3 in her motor vehicle. In fact, no admission as to her knowledge of the presence of the blue chiller bag in the car prior to arrest. However, the chiller bag that was found in her motor vehicle when she was alone in the motor vehicle. It had been in the vehicle with her at least for some minutes before she was stopped by police, perhaps longer depending upon when she left Ashfield and who she travelled with, if anybody else at all. On her own admission the blue chiller bag must have been in her motor vehicle from the time she left Ashfield although she denied seeing it placed in the car.

51 I do not accept her account that she did not see the blue chiller bag in the motor vehicle. I accept her account, in essence, that the person “Damian” had brought the chiller bag to the apartment of Mr Murphy and thus must have been the person who placed the chiller bag in her car, that she, Damian and Mr Murphy were planning to go to a “rave party” at Liverpool, that she was expecting at the rave party, which could go on over the entire weekend, that ecstasy and methylamphetamine would be available and that she would probably use those drugs. A reasonable inference is that she knew Damian was able to supply drugs on this night. It was conceded in submission that this was an inference that “could be drawn”, but it is not a critical inference essential to proof of guilt. I believe, in any event, that this inference may be clearly drawn on the evidence available. She had invited Damian to the party.

52 I have come to the conclusion that the accused was untruthful as to the fact that she did not know that the chiller bag was in the car. Her account of Damian getting in the car (obviously with the chiller bag and also carrying what Mr Murphy described as a ‘satchel’) in the context of Mr Murphy’s version of events, without seeing Damian carrying the chiller bag nor seeing him place it in her motor vehicle, is not believable.

53 In any event I do not accept that the accused would not have noticed the blue chiller bag in the back seat of the car when she got into it or, at the very least, when Damian got out of the motor vehicle. However, more importantly, her account, by implication, of Damian getting in the car (and placing the chiller bag in the back of the car without her seeing him do that) cannot be accepted given the area in which the car was parked, according to her evidence and the Google map showing the parking area facing onto the street, was well lit by artificial lighting. Mr Murphy’s version of the order in which people left his flat to go to their respective vehicles contradicted her account. She deliberately sought to distance herself from the opportunity to see Damian putting the chiller bag in the car to support her fundamental assertion that she did not know the bag was in her car.

54 If it be true that Damian travelled with her for a short period between Ashfield and Petersham and then got out of her car to transfer to Mr Murphy’s motor vehicle, it is highly unlikely that he would have left her motor vehicle, with the chiller bag still there containing the drugs, unless he was satisfied that it was in safe custody and that the accused could be trusted to care for it in his absence. He had the presence of mind to take his satchel with him.

55 Her untruthfulness as to the presence of the blue chiller bag on the back seat of her car is a matter of some significance. The assertion by her in her evidence that she was completely unaware the blue chiller bag was on the back seat was central to her denial of knowledge of the presence of the relevant prohibited drugs in her motor vehicle. In asserting that she did not know that the chiller bag was on the back seat, again the accused was deliberately seeking to distance herself from the contents of the bag. The Crown does not submit that I should regard this as evidence ‘of consciousness of guilt’. Even if it was not consciousness of guilt that prompted the claim, the evidence would be available as circumstantial evidence from which, in conjunction with a great deal of other evidence, one could draw the inference of some knowledge of prohibited drugs in the chiller bag and ‘custody’ of them.

56 The accused said she got ‘lost’. I find this claim dubious at best. She was not unfamiliar with the area. The trip to Bruno’s house was, on Mr Murphy’s account, pretty straightforward from the point Damian got into his car. From there all she had to do was drive straight up Railway Crescent, with a left turn into Trafalgar Street to get to Petersham Railway Station. The Petersham RSL Club, a landmark known to the accused and very near to Bruno’s home, is merely one turn to the right. Once the accused “went missing”, assuming Damian and Mr Murphy did go to an address at Petersham to await her arrival, Mr Murphy’s account of the man Damian waiting patiently for up to an hour before Murphy went home without expressing any concern regarding the missing accused and/or the contents of the chiller bag I cannot accept as truthful. Mr Murphy’s account of what happened after Damian got into the motor vehicle with him at the lights was not particularly convincing concerning his claimed frustration with the accused’s ability to follow directions. The truth was, given the place Mr Murphy said this occurred, that there were not many directions to give her. In effect it was a matter of saying, “drive straight ahead”. She was not that intoxicated that she could not follow that.

57 Murphy’s account suggests that although the accused was behind him up to the point of the ‘Lewisham lights’ (no more than 700 metres from Bruno’s home) no attempt was made by him to physically go and find her (if she was broken down or if she was “lost”) for approximately an hour. When he went looking for her he did not take the route that he himself had followed and the most direct route to Bruno’s house, a house apparently with which he was familiar. His efforts to find her by telephone and/or physical enquiry were desultory at best. He may have rung her mobile phone at some point, that does not establish she was lost, or that he was looking for her.

58 He claims that Damian made no comment about the missing chiller bag, express concerns about the contents of the chiller bag or make any comment whatsoever to suggest that he was concerned that the accused, was missing with the chiller bag.

59 Even assuming that Murphy’s account of waiting an hour is true, which I do not necessarily accept, it is completely unbelievable that in the circumstances where the accused was missing for an hour with a large quantity of varying drugs and drug paraphernalia, that Damian, obviously planning to take the drugs to the party to sell to people such as the accused and Mr Murphy, did not raise his concerns. Clearly the prohibited drugs were intended for the rave party. The accused had invited Damian to attend the rave party. I am satisfied that she had done so to facilitate the supply of prohibited drugs such as she expected to be used (ecstasy and methylamphetamine) at the rave party.

60 I am prepared to accept that Damian did exist, although on one view the issue of his existence is one that one should approach with circumspection. I have already expressed some doubt that he changed his cars at all. On this matter I only have the accounts of the accused and Mr Murphy. His reasons for changing cars given in evidence did not make much sense given the fact that Bruno’s house was a fairly direct route from the place of the change over. Even if he did leave the car accused’s car, he took his satchel to Murphy’s car, according to him, but left behind the bag with the drugs. As I pointed out, if this happened, he would have only done that if he had confidence in the accused looking after his chiller bag.

61 In the end, I do not believe it matters whether he travelled with Murphy from Murphy’s home, or with the accused to a point where he changed into Murphy’s car. Whichever way events unfolded I am satisfied he entrusted the chiller bag to her. On either finding there are clear reasons he entrusted the accused with a very valuable cache of drugs to be disseminated at the party they were all to attend. These included the facts that the accused was a friend, she had invited him to the rave party, she was a drug user and he obviously knew how to find her.

62 I do not accept that earlier in the morning he brought the blue chiller bag all the way to the apartment, put it down on the floor, and did not explain to Mr Murphy, or the accused, over the period of time he was there (some two hours at least) given there were conversations about going to a ‘rave party’, that he in fact was carrying drugs, or had prohibited drugs to supply. Again I note that the accused was planning to use drugs at the party. I further note that at the time of arrest she had no other drugs of substance than those in the chiller bag, but had two butane lighters amongst her personal possessions.

63 At least one of those lighters must have belonged to her, notwithstanding her denial. The drugs the accused and Murphy expected to take were ecstasy and methylamphetamine. Someone would have to provide them with drugs at the party unless of course they had their own independent “stash”, of which there is no evidence.

64 I do not believe the accused was ‘lost’, in the conventional sense, when arrested. Whether she got to Bruno’s and then undertook to travel to Liverpool on her own and was simply taking the drugs to Liverpool and realised that the police were following her and then went further into Marrickville, or whether she missed the turn off to Liverpool because of her drug ingestion, I am unable to say. In any event she claimed to police that she was following her “boyfriend”. Neither she nor Murphy admit to the fact that Murphy was her “boyfriend” at this time and no other car was seen proximate to her car. The route she took is another way of getting across to Dulwich Hill and onto Canterbury Road.

65 On the evidence it may have been open to the Court to conclude that Damian was a fiction, that the accused and Mr Murphy have lied about his existence and that the accused, in the circumstances of her being arrested alone with the chiller bag, was at all relevant times on this night the sole possessor of the bag and was intending to take the drugs herself to Liverpool for sale and supply to other people. But the absence of any evidence to directly link the accused with handling the bag and its contents militates against this conclusion.

66 I have taken into account the completely inadequate attempts by the accused to locate the person Damian, to establish his identity or to produce any evidence of his existence. I cannot accept the accused’s account that when she told the police in June 2009 that she had Damian’s phone number available to her, she was then asked for his full name, and when she could not provide it, no further questions were asked of her about Damian’s phone number or how he could be contacted. In any event, police were not fully aware of Damian’s role as asserted at the trial.

67 Given Mr Murphy’s evidence about “mad” Damian and his “reputation”, I do not accept that diligent efforts to at least uncover his surname or provide further details about his identity or whereabouts would not have been successful. I do not accept that the accused, or Mr Murphy, took any constructive or meaningful steps to locate Damian and further establish his identity. This is a matter I take into account in relation to their credibility generally, although it does not, of itself, or with other material, convince me that Damian does not actually exist. There may be very good reasons why they may not wish to reveal in court Damian’s identity. It is incredible that, having lost quite valuable drugs and drug supply paraphernalia, it is claimed he did not attempt to contact his friend (the accused) to at least find out what had happened to her and her drugs. He had no fears she would reveal his whereabouts, she has not done so yet. On the other hand, whilst I found parts of Mr Murphy’s evidence difficult to accept, he supports the accused’s account of Damian’s existence and presence at the flat and his possession of the chiller bag. He gave evidence of Damian’s ‘reputation’, not inconsistent with the profile of a drug supplier at ‘rave’ parties.

68 I am mindful of the fact there is no direct evidence, or any admission by the accused, that she had been told by Damian what was in the bag or had looked inside the chiller bag herself. As earlier noted, there is no independent evidence that the accused touched the outside of the containers, with no evidence of any fingerprints of the accused, or any matching DNA profile, found on the outside of the zipper bag or within the zipper bag on any item associated with the drugs.

69 I have taken into account that there are no photographs of the drugs ‘in situ’ at the time of arrest. Her evidence in relation to the mobile phones and her possession of the cash is not available as suggesting her involvement in drug supply. Her evidence, in material respects to that issue, is supported by Mr McDermott. Likewise the possession of the counterfeit note has absolutely nothing at all to do with her drug usage or the alleged supply.

70 I have taken into account in her favour the fact that she had no prior convictions, as evidence relevant to assessing the unlikelihood of her guilt for having had the drugs in her possession, or for the purposes other than supply. It is also relevant to the assessment of the credibility of her denial of guilt. However, on the other hand, she admitted being a drug user, having knowledge of the types of drugs used at rave parties and that she was going to a private rave party where she probably would have ingested amphetamines and/or ecstasy. She, on her version, was no stranger to the ‘rave party’ drug scene.

Conclusion

71 Having considered all relevant matters and submissions put by the parties I ultimately came to the conclusion that I was satisfied beyond reasonable doubt that at the time of her arrest the accused knew that the blue chiller bag contained particular prohibited drugs for supply at the rave party. I am satisfied that she was conveying the chiller bag eventually to the rave party and thus was in possession of it whilst she was in the vehicle with it. She intentionally exercised control over it, with the relevant knowledge of particular prohibited drugs to be ingested over the weekend, to the exclusion of all others, except Damian who was the ‘owner’ of the prohibited drugs.

72 This occurred in the context of the accused’s own history of drug use and anticipated drug use at the rave party. This case is very different from the factual circumstances in Armanatidis. The same considerations which arise in that matter to justify a doubt that the accused was in possession of the relevant prohibited drugs do not arise here.

73 It is probable that she was aware that cocaine could be within the chiller bag however, in the absence of any evidence to directly establish that the accused herself had looked inside the chiller bag and in the absence of any evidence that she anticipated the use of cocaine, I am not persuaded beyond reasonable doubt that she knew that cocaine was inside the chiller bag. Thus the accused was acquitted in relation to Count 2.

74 In respect of Counts 1 and 3, as the case has unfolded, there is no reasonable basis on the evidence for concluding that she had the relevant prohibited drugs for purposes other than for supply, that is, either for keeping or having in possession for supply or delivering for supply (which may include selling or giving to others). It was not argued at the trial that is was open to conclude that the accused was in the same position as the appellant in R v Carey (1990) 20 NSWLR 292, that is in possession of the relevant prohibited drug with intention of returning it to the real “owner”. This, as a factual consideration, requires the accused to establish the defence on the balance of probabilities pursuant to s.29 of the Act (see Carey at 294C – G). Although not argued, I have considered this issue, but I am not satisfied on the balance of probabilities in respect of Counts 1 and 3 that this is made out. Firstly, this aspect is not asserted by the accused in any form. Secondly, the reasonable conclusions to be drawn from the evidence of possession for the purpose of supply, in the extended definitional sense, are more dominant than a conclusion of “looking after” the relevant prohibited drugs for Damian, to be returned to him to do as he pleased.

75 As earlier indicated the Crown case in relation to Count 4 fails completely as the prosecution cannot prove that the accused had the counterfeit note in her possession for an “unlawful” purpose.

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