R v Tamara Linda Terrens
[2013] NSWDC 162
•28 August 2013
District Court
New South Wales
Medium Neutral Citation: R v Tamara Linda TERRENS [2013] NSWDC 162 Hearing dates: 26, 27 August 2013 Decision date: 28 August 2013 Before: Judge A Haesler SC DCJ Decision: On Count 1 in the Indictment, that:on 31 July 2012, at Jannali, in the state of New South Wales, the accused supplied a prohibited drug, namely 4-Bromo-2,5-dimethoxyphenethylamine which was not less than the large commercial quantity applicable to that drug. I find the accused Tamara Linda Terrens - Guilty.
Catchwords: 4-Bromo-2,5-dimethoxyphenethylamine, supply, large commercial quantity, not less than the commercial quantity, Judge Alone trial Legislation Cited: Criminal Procedure Act 1986
Drug Misuse and Trafficking Act 1985
Evidence Act 1995 (NSW)Cases Cited: AK v Western Australia [2008] HCA 8; 232 CLR 438
Alliston v R [2011] NSWCCA 281
R v Carey (1990) 20 NSWLR 292
CTM v The Queen (2008) 236 CLR 440
Fleming v The Queen (1998) 197 CLR 250
R v Greatorex (1994) 74 A Crim R 496
He Kaw The v The Queen (1985) 157 CLR 523
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Zoneff V The Queen (2000) 200 CLR 234Category: Principal judgment Parties: Regina (Crown)
Tamara Linda TERRENS (Accused)Representation: Ms C Dodds (DPP)
Mr K Averre (for the Accused)
Ms G Rowe (DPP)
Ms M Lim (LegalAid NSW) (for the accused)
File Number(s): 2012/238777
Judgment
A Judge Alone Trial
On 26 August 2013 Tamara Terrens, the accused, pleaded not guilty to a charge that on 31 August 2012 she supplied not less than the large commercial quantity of 4-Bromo-2,5-dimethoxyphenethylamine. She also said she was not guilty of an alternative charge that she supplied not less than the commercial quantity of 4-Bromo-2,5-dimethoxyphenethylamine.
A proper election was made for a trial by judge alone. The Crown agreed to that course. The matter then proceeded before me on the 26 and 27 August 2013: s 133 Criminal Procedure Act 1986.
A judge sitting alone to try a serious matter must include in his or her judgment the principles of law applied and the findings of fact on which they relied. The crucial arguments of the parties must be summarised. The judge must formulate the issues for decision and resolve any issues of law and fact that need to be determined: AK v Western Australia [2008] HCA 8; 232 CLR 438, at [85], Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259.
A judge may make any finding that could have been made by a jury. If any warnings are required the judge is to take the warnings into account. In doing so, a judge must properly formulate the warnings and principles applied but also expose his or her reasoning process, linking the relevant legal principles with findings of fact so as to justify those findings and the ultimate verdict reached: see ss 132, 132A and 133 Criminal Procedure Act 1986 and Fleming v The Queen (1998) 197 CLR 250.
Supply of prohibited drugs
Supply of more than of the large commercial quantity of an illicit drug is a very serious crime. The large commercial quantity of 4-Bromo-2,5-dimethoxyphenethylamine is 100 grams. Supply of more than the commercial quantity of that drug is also a serious crime. The commercial quantity is 25 grams.
There are four essential facts that the Crown must prove beyond reasonable doubt:
(1) That the accused supplied a substance,
(2) That the substance was a prohibited drug,
(3) That the accused knew that what was supplied was a prohibited drug, and
(4) That the accused knew the quantity supplied was, for count 1, more than the large commercial quantity or alternatively, for count 2, more than the commercial quantity of the drug.
The Crown does not have to prove that the accused knew that the drug was the particular one specified in the charge, but it does have to prove that the accused knew or believed that the substance was a prohibited drug. It is the accused's actual knowledge or belief which must be proved by the Crown, and not simply what some person in the accused's position may have known or believed. The Crown may do so by showing the accused actually knew or believed that what was being supplied was a prohibited drug, or was aware that there was a significant or real chance that it was. I may infer or conclude what a person knew or believed from considering all the surrounding circumstances, provided any such inference or conclusion is a rational one and is not based on mere speculation or suspicion. Because of the requirement that the Crown proves this essential fact beyond reasonable doubt, any inference or conclusion that I draw about the accused's knowledge or belief must be the only rational inference or conclusion open on the evidence.
4-Bromo-2,5-dimethoxyphenethylamine is a prohibited drug.
"Supply" 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: s 3 Drug Misuse and Trafficking Act 1985.
Before supply can be established the Crown must prove that the accused was in possession of the material. This includes proof of her knowledge of the existence of the drugs or of the significant or real chance that a container held by her did contain illicit drugs: He Kaw The v The Queen (1985) 157 CLR 523; R v Greatorex (1994) 74 A Crim R 496. At the relevant time a person must intentionally have control over the object in question. This can be control alone or jointly with some other person or persons. The right to exclude other people from the item is integral to possession.
A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall be deemed to have the prohibited drug in his or her possession for supply, unless they prove that he or she had the prohibited drug in his or her possession otherwise than for supply: s 29 Drug Misuse and Trafficking Act. The traffickable quantity of 4-Bromo-2,5-dimethoxyphenethylamine is 0.3 grams.
The quantity of drugs is critical. The Crown must prove the accused knew the quantity of the drugs, or, that if she had a belief falling short of such actual knowledge she was aware that there was a real or significant chance that the drug being supplied was in an amount not less than the large commercial quantity, in respect of count 1 and not less than the commercial quantity in respect of count 2. If not a further alterative count of supply simpliciter is available.
It is of crucial importance when considering proof there was an aggravated offence of supply and to the application of s 29 that I determine what amount of drug the accused had in her possession. This is especially so where the drug is found in different packages and places. I must direct myself to carefully review the available evidence and first determine what drugs the accused had in her possession and then to carefully consider the consequences of my particular findings. For example, here I may not be satisfied that the accused was in possession of over the large commercial quantity and, therefore, even were s 29 to apply, the accused could only be guilty of the second count: Alliston v R [2011] NSWCCA 281.
Another possible example comes from R v Carey (1990) 20 NSWLR 292. There the Court of Criminal Appeal held that possession of drugs for the purpose of returning them to the owner was not "possession for supply" and, therefore, evidence of possession for that purpose could rebut the deeming provision in s 29. Before such a submission could be effective it would have to have some evidentiary basis: CTM v The Queen (2008) 236 CLR 440; Alliston v R at [135].
Introduction
Most of the facts were either agreed or admitted pursuant to section 191 Evidence Act 1995 (NSW) or were not in serious dispute.
After executing a lawful search warrant on her home in Jannali police found in the accused's bedroom a quantity of pills that were on later analysis found to be 4-Bromo-2,5-dimethoxyphenethylamine. The pills were found in a number of discrete locations in the room:
(a) A small re-sealable bag containing 3 tablets with no insignia and a broken tablet fragment in the black handbag of the accused situated on her bed.
(b) A small re-sealable bag containing a broken fragment of tablet in the black handbag of the accused situated on her bed.
(c) A yellow and pink lined re-sealable bag containing 92 tablets, the majority bearing a "question mark" insignia and a number of tablet fragments in the black handbag of the accused situated on her bed.
(d) A yellow and blue lined "Glad" re-sealable bag containing 92 tablets, the majority bearing a "question mark" insignia and a tablet fragment in the black handbag of the accused situated on her bed. The words "300 lollies" were written on it.
(e) A medium sized re-sealable "coin" bag containing 96 tablets, the majority bearing a "question mark" insignia on the accused's bed.
(f) An imitation book titled "Encyclopaedia of Venomous Snakes," (the "snake book") situated on top of the accused's bed. This book contained a lockable compartment with a key inside the lock.
(g) A re-sealable bag containing 185 tablets, the majority bearing a "circle" insignia in the lockable compartment in the "snake book" situated on top of the accused's bed.
(h) A re-sealable bag containing 87 tablets, the majority bearing a "circle" insignia, in the lockable compartment in the "snake book" situated on top of the accused's bed.
Also found were a sum of money $1165, three sets of scales and two black Samsung mobile telephones one containing a Vodafone SIM.
In the second bedroom of the house occupied by the accused's sons was a carpet python in a glass enclosure.
The tablets in the re-sealable plastic bags in the black handbag of the accused and the tablets in the re-sealable plastic "coin" bag on the accused's bed and were analysed and found to contain 4-Bromo-2,5-dimethoxyphenethylamine with a combined weight of 82.21 grams and a purity of 2.0%.
The tablets contained within the re-sealable bags in the "snake book" were analysed and found to contain 4-Bromo-2,5-dimethoxyphenethylamine with a combined weight of 75.6.grams and a purity of 1.5%.
There were 555 tablets in total: 283 tablets located in the handbag of the accused and in the "coin" bag on the accused's bed and 272 tablets in the imitation book. The combined weight of all the 4-Bromo-2,5-dimethoxyphenethylamine in the accused's bedroom was 157.81 grams.
The Crown case is that all the 4-Bromo-2,5-dimethoxyphenethylamine tablets were possessed for the purpose of supply. They rely on all the circumstances relating to where they were found, what was found with them and the nature, quantity and packaging of the drugs themselves. In addition they rely on the deeming provisions in s 29 Drug Misuse and Trafficking Act. The alternative charge is put forward against the possibility that I may not find the accused was in possession of the contents of the imitation book at all, in the sense she did not have the requisite knowledge or even if she did she did not have possession for the purpose of supply: see Carey v R. They further submit that in respect of both counts on the indictment, the accused knew the quantity of the drugs but even if she had a belief falling short of such actual knowledge she was aware that there was a real or significant chance, that the drug being supplied was in an amount not less than the large commercial quantity in respect of count 1 and, alternatively, not less than the commercial quantity in respect of count 2.
The accused gave evidence. She does not dispute that the 283 tablets found in the plastic bags in her handbag or on her bed were hers but says she had them solely for her own use. While she acknowledges the "snake book" was in her bedroom, she says it was left there by a friend "Charlie", who was to collect it. She said she was unaware of its contents and did not know or suspect that it may have contained illicit drugs.
Key Directions
Onus: The most important direction in any criminal trial is this: the prosecution must prove each critical element of a charge beyond reasonable doubt. Subject to s 29 Drug Misuse and Trafficking Act, the accused has no onus of proving anything. I do not act on suspicion. I do not act on what I believe might probably be the case. I can only return a guilty verdict if I have no reasonable doubt the Crown has proved its case. If the Crown fails to meet that high onus or if I have doubts about their case the accused must have the benefit of any reasonable doubt and I must return verdicts of not guilty.
Here the accused is required to prove a significant part of her case, in this regard, only on the balance of probabilities. That is to say, the accused needs to show that what she asserts is so, is more likely than not.
Accused's evidence: The accused agreed to speak to police after her arrest. Her recorded interview was before me as Exhibit E. She has also given and called evidence in support of her case.
If, having considered that evidence and the submissions of both counsel in relation to it, I accept it, then of course I must acquit her and bring in a verdict of "not guilty", because it would follow that the Crown has not established beyond reasonable doubt its case in relation to an essential matter which it must prove and the accused has meet the onus s 29 places on her.
If, after having given consideration to the evidence of the accused and evidence on the accused's behalf and any evidence which the Crown asks I take into consideration, I either do not positively accept the accused's case, but that evidence (taking into account the shifting onus) leaves me nevertheless with a reasonable doubt as to whether the Crown has made out its case in respect of any essential matter which it must prove, or, I find that it is more likely than not that what she asserts is so, then I am bound, in law, to bring in a verdict of "not guilty".
It remains the position that the Crown must establish beyond reasonable doubt the charge that it brings against the accused. It is never for the accused to prove that she is not guilty; the onus placed on her by s 29 Drug Misuse and Trafficking Act does not go so far.
Even if I prefer the evidence for the prosecution I cannot convict unless I am satisfied beyond reasonable doubt that evidence establishes the elements of the count to the high standard required. Even if I do not positively believe the evidence for the defence, I cannot find an issue against the accused contrary to that evidence if she meets the onus placed on her or if having considered all the evidence it gives rise to a reasonable doubt on a critical issue for which the Crown retain the onus of proof. It would be wrong if guilt or innocence turned upon a simple choice between two inconsistent versions of events.
Lies: Madam Crown submitted the accused lied to police and to me. I must make up my own mind about whether she was telling lies and if she was, whether she was doing so deliberately and what significance, if any, those suggested lies have in relation to the issues in the case. I give myself this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt: Zoneff V The Queen (2000) 200 CLR 234 at [23].
Inferring knowledge: Where there is no direct evidence of an accused's knowledge or state of mind the Crown can rely on my drawing inferences from all the circumstances of the case. 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 must be extremely careful about drawing any inference. I need to carefully examine all the evidence in relation to all the relevant circumstances and examine any possible inference to ensure that it is a justifiable inference. Where, as here, proof is required beyond reasonable doubt, I should not draw any inferences against the accused from the direct evidence unless it is the only rational evidence in the circumstances. In part the prosecution case is based on circumstantial evidence.
Circumstantial evidence: Circumstantial evidence is a number of different pieces of evidence from which I am invited to reach a conclusion. The law permits this legitimate mode of proof. As with the drawing of inferences I may not, as a matter of law, find the accused guilty on the count unless I am satisfied beyond reasonable doubt that there is no reasonable explanation available from the evidence, other than her guilt. That is, when I look at the evidence as a whole, I must ask myself: "Has the prosecution proved beyond reasonable doubt that there is no reasonable explanation or theory of the evidence consistent with the innocence of the accused?" If it has done so, the proper verdict is guilty. However, if there remains some other reasonably possible explanation of the evidence I must give the accused the benefit of the doubt and find her not guilty.
An open mind: The evidence in the trial necessarily revealed aspects of Ms Terrens' background that might dispose some in the community to take a dim view of her. She was regular user of a number of illicit drugs. She kept and used those drugs in the home she shared with her young sons. She kept a snake in contravention of the rules relating to having native animals as pets. She has had her bail refused and is serving a sentence for another matter.
She is not to be judged for anything revealed by this background. I will judge this case impartially only by reference to evidence which could rationally effect the probability of facts in issue in the trial. I will set aside any prejudices I may have. The accused must receive an unbiased evaluation of the evidence.
The evidence
Constable Dredge attended the accused's house on 31 July with a search warrant, other police and a police drug detection dog. That search was recorded; an extract of the recording is exhibit A. It shows the critical items noted above as they were found. Prior to the search the accused was given the opportunity of disclosing whether drugs were in the premises. She did not do so but appeared otherwise cooperative. After proper caution she participated in an electronically recorded record of interview ("ERISP") -exhibit E.
In her ERISP she said the pills in her bag were for her own use. She said she there were about 10 pills in each bag and she had bought them a week before for $20 each. She said the "snake book" (exhibit C) had been left with her and that she did not know what was in it. She said it was left by "Charlie" because he was suspicious he was being followed. She had not opened it, but left it under her bed. She said got it out just before the police arrived but had not yet looked in it.
The pills including contents of the "snake book" were analysed by the FASS. The results are noted above. Constable Dredge said he participated in a further informal and unrecorded conversation with the accused while she was in custody. This was an intelligence gathering exercise primarily by other officers connected with Hurstville Detectives. He accepted the accused in that conversation might have spoken about the "snake book" and her drug dealer who she knew as "Charlie".
Ms Terrens gave evidence in her defence. She reiterated her version of events. She accepted that she had not accurately described the number of pills in the three plastic bags. She put this down to her being drug affected at the time. She denied an allegation she was trying to minimise the amounts held. She said she used ecstasy twice a month on weekends but added to what she said in the interview by saying she could use 5 to 10 pills at a time and up to 20 a weekend. She spoke of her heavy use of a number of drugs at the time. She gave details of her income and expenditure. She said the money in her wallet came from the poker machine wins attributed to her in the Club payout ledger (exhibit G) and that those wins resulted from an initial pool of about $20 per day. She gave more details about "Charlie" and how she came to have the "snake book'. She said initially she thought it was in fact a book and she had only just realised it was a container before the police arrived. She reiterated what she told the police in her ERISP; she had not opened it and was unaware of its contents.
Submissions
Madam Crown submits the Crown's onus has been met and the defence have not met theirs. In addition the Crown say both with and without the evidentiary provisions in s29 Drug Misuse and Trafficking Act they have established Ms Terrens had the drugs for the purpose of supply a case based on all the known circumstances.
Madam Crown points to:
(1) The similarity between the drugs the accused admitted she possessed and those in the "snake book".
(2) The "fanciful" nature of the explanation given for possession of the "snake book."
(3) Her answers in the ERISP where she introduces the topic of the "snake book" even though she says she did not know it was a container or what it contained.
(4) The fact the "snake book" "coincidentally" had a title about a subject of considerable interest to her.
(5) The change between her ERISP explanation about the number of pills in her bag and the explanations given in evidence where she had changed her position to try to account for the number of pills discovered.
(6) At the $20 per pill she said she had paid for them she would have paid over $5,600 for the pills she admitted to possessing.
(7) Her lack of capacity to fund her drug use, given her stated income and expenditure.
(8) The obvious quantities of drugs in her bag one of which was labelled "300 lollies." Lollies being a term the accused knew referred to ecstasy.
(9) Her changing story about the quantity of pills held and other lies that undermine her credibility as a witness of truth.
She submitted I would reject the defence case. And that if I did, only one rational explanation was open; the Crown had proved beyond reasonable doubt each element of the offence, including so far as count 1 was concerned the accused's knowledge, at the very least, at the level of real or significant chance, that the drug being supplied was in an amount not less than the large commercial quantity.
Mr Averre for the accused submits the accused has met the onus placed on her. And further that the Crown have not proved the pills in the imitation book were in her possession for the purpose of supply or even that she was aware of the "snake book" contents. He pointed to the following significant matters:
(10) The difference in purity of the drugs and symbols pressed on the pills found in the "snake book."
(11) That on close analysis the accused explanations for possession of the "snake book' was not fanciful.
(12) She did later tell police about "Charlie" and "Charlie's" numbers were in her phone contact records held by police (MFI 1).
(13) Her ERISP answers did down play her involvement with drugs but in context this was understandable and not fatal to her credibility. Care must be taken. She had been using drugs that evening and was a very heavy drug user at the time.
(14) Club records supported what she said about poker machine winnings.
(15) The pills in her bag or on the bed were not packaged for supply
(16) The police did not find many of the indicia of a drug supply business. There were:
(a) No security or cameras at her home.
(b) No ledger books
(c) No coded messages on her phone.
(d) No records of multiple calls to her phones.
(e) No large sums of unaccounted for cash. And,
(f) No small bags to decant pills into.
He closed by submitting the defence had meet the onus paced on them so far as the pills in her bag being for the accuseds own use. He drew my attention to the evidence the accused was a heavy drug user who had told me in evidence she was a "greedy guts" drug user who had a stockpile of the many drugs she used at the time, including the pills the subject of the trial. He said she had not been shaken in cross-examination. He submitted that if "Charlie" exists, and the evidence supports the fact he does, then "Charlie" could have left the "snake book" without her knowledge of its contents. There was nothing intrinsic to the "snake book" that could overcome the Crown's onus of establishing her knowledge both of its contents or that the quantity inside brought the total amount of pills possessed over the large commercial quantity.
Analysis
The Crown have established that Ms Terrens was in possession of a commercial quantity of the drug 4-Bromo-2,5-dimethoxyphenethylamine, an illicit drug for the purposes of the Drug Misuse and Trafficking Act. Unless she can meet the onus placed on her by s 29 of that Act. She is deemed to have that drug in that her possession for supply. The Crown must still establish beyond reasonable doubt her knowledge about the quantity of the drug possessed.
Does Ms Terrens evidence raise a reasonable doubt, which the Crown has not removed? Ms Terrens gave evidence in support of her case. That evidence was, to be frank, unconvincing. Ms Terrens did change her position about the number of pills between her ERISP and her evidence. Even in evidence yesterday she seemed reluctant to acknowledge, let alone explain how there came to be 283 pills in 3 bags in her handbag. I do not accept that the numbers simply built up because she bought more than she used. I find it hard to accept she used as many as she said she did, up to 20 per weekend, in any event. But even if her consumption was that high it does not explain the amount accumulated. For those reasons and those advanced by the Crown she has not met the onus the law places on her in relation to the pills found in her handbag and in the plastic coin bag on her bed.
That said the Crown must still prove each element of the offence beyond reasonable doubt. Section 29 as an evidentiary provision helps in this task.
Having reviewed all the evidence I am of the firm opinion that a simple viewing or handing of the 3 plastic bags in her handbag and on her bed would have enabled the accused to know how much of the drug she held and that it was a quantity well in excess of 25 grams. Her experience as a drug user and buyer would I am sure have given her a keen appreciation of weights and accompanying prices. An appreciation she displayed in evidence when discussing the other drugs found in her room and on her person.
Also in dispute is whether she was had sufficient knowledge of the contents of the "snake book" to be in possession of the drugs found in and whether she knew that the weight of those drugs would bring the total amount possessed by her into the large commercial range.
So far as those drugs are concerned I am prepared to accept there was a "Charlie". I am also prepared to accept that "Charlie" may have delivered drugs and possibly even the "snake book" to her home before 31 July 2012. I do not however believe her explanation that he came to deliver $50 of marijuana, given she already had a much larger quantity of that drug in her bedside drawer. Nor do I believe her story she thought the "snake book" was just a book. I have picked up the exhibited "snake book" it was immediately apparent it was not a book but a container. Even making all due allowance for the fact she was using a number of drugs her evidence that she thought otherwise must be rejected. She knew it was a container. She said her drug supplier left it with her for safekeeping as he was "being followed." This evidence does not give rise to an R v Carey scenario for as was noted by Hunt CJ at CL in that case at 297, "The acts of a drug storeman... would clearly fall within the meaning of the word supply."
I reject her evidence for similar reasons to those noted above. The Crown must still establish her knowledge of the "snake book's" contents. I do find beyond reasonable doubt that she knew or was aware of the substantial risk that the "snake book" contained illicit drugs. Her reference to the 'snake book' in her ERISP (exhibit E2) at page 26 Answer 264 is, as the Crown submits, telling. In any event given the similarity between the drugs I have found beyond reasonable doubt were held by her for the purpose of supply and the drugs in the "snake book" it is clear that despite they being different batches of the drugs (because of brand symbol and purity) they were being held by her in her room for the same purpose- supply. I also find given the weight of the "snake book" and the weight of the drugs contained in it that she was sufficiently aware of the contents weight to have the requisite knowledge of the nature and quantity of the drugs such that in combination, those drugs in her handbag and on her bed were over 100 grams in total weight. Her admitted experience as a drug user cannot be ignored.
I accept she may have intended to use some of the pills. That she had in her handbag two small bags of the pills or pill powder supports this. However, given the quantity in the 3 bigger plastic bags (283) and the words written on one of the bags "300 lollies" and the number of pills in the "snake book" the total weight of which was 1.5 times the large commercial quantity the suggestion that the drugs were for her own use is fanciful. In my opinion she knew what she possessed and the quantity and weight of all the pills. Accordingly the Crown have met their heavy onus and established that at the very least she was aware of the substantial risk the drugs were illicit drugs and in total exceeded the large commercial quantity.
I accept the pills were not packed for small individual supplies. I simply do not know in what manner she intended to supply them. She certainly did not intend to take them all or use any significant proportion of them herself. As there was no evidence she was running a street supply business the most likely explanation is she was holding the drugs for the purpose of supply. She may well have been holding some or most of them for her supplier. She may have intended they be sold in bulk. Those are not matters I need to or could determine. I have rejected her explanations and as a consequence the other evidence, which was not in significant contest, leaves only one reasonable and available explanation; the Crown have proved count 1 beyond reasonable doubt.
Orders
Accordingly so far as Count 1 in the Indictment is concerned that:
On 31 July 2012, at Jannali, in the state of New South Wales, the accused supplied a prohibited drug, namely 4-Bromo-2,5-dimethoxyphenethylamine which was not less than the large commercial quantity applicable to that drug.
I find the accused Tamara Linda Terrens - Guilty
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Decision last updated: 29 August 2013
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