R v Tebbutt aka Karkoe

District Court

New South Wales

Case Name:	R v TEBBUTT aka KARKOE
Medium Neutral Citation:	[2015] NSWDC 322
Hearing Date(s):	18, 19, 20, 21 and 22/05/2015
Decision Date:	22 May 2015
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Guilty of the charge.
Catchwords:	Criminal – Trial judge alone, supply prohibited drug – amphetamine, traffickable quantity, defence of ‘personal use’.
Legislation Cited:	Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985 Law Enforcement (Powers and Responsibilities) Act 2002
Cases Cited:	Fleming v R (1998) 197 CLR 250
Category:	Principal judgment
Parties:	Director of Public Prosecutions - Crown Benjamin James Karkoe aks Tebbutt - accused
Representation:	Counsel: Mr Fox – Crown Benjamin James Karkoe aks Tebbutt – Accused Solicitor Director of Public Prosecutions - Crown Benjamin James Karkoe aks Tebbutt – Accused
File Number(s):	2013/235914

JUDGMENT

HIS HONOUR: Benjamin James Karkoe has been tried this week in the District Court at Broken Hill. He was arraigned under the name “Benjamin James Tebbutt, also known as Benjamin James Karkoe”, however the name “Tebbutt” would appear to arise out of some misunderstanding. It is clear from viewing the evidence of what occurred on the day of the search of the accused’s home, and the arrest of the accused the following day, that he made it clear that his name was “Karkoe” not “Tebbutt” and I have referred to him by that name throughout the proceedings.
Last Tuesday he was arraigned, having made an application for a trial by Judge pursuant to s 132 Criminal Procedure Act 1986, in respect of charges alleging that he, on the 1 August 2013, at Broken Hill in the State of New South Wales, did supply a prohibited drug, namely amphetamine, in an amount of 97.4 grams, being an amount more than the traffickable quantity. He entered a plea of not guilty, obviously, to that charge and the trial proceeded.
The circumstances of the trial proceeding and the arrangements made for the accused, opportunities given to him; amongst other things to get further legal advice, to prepare for examination of witnesses, and address, are all matters of record and I need not reflect upon that aspect of the proceedings.
In the trial a number of witnesses gave evidence all in the Crown case. Those witnesses were primarily concerned with the circumstances of the search of the accused’s home where he lived with his partner and five children, being Senior Constable Ashley Tucker, Constable Ali Chambers and Sergeant David Gallagher, who was ostensibly the officer in charge of the investigation.
I have seen the recordings made by video recording of the circumstances of the search in the DVD or other disks which comprise Exhibits E1, E2 and E3 in the proceedings. I have available to me photographs in Exhibit D of items said to be relevant, arising from the search. Some of those items, I must say, were produced as particular exhibits. Included in those items particularly are 2 electronic scales which are Exhibit H and J. I make comment about the character of the search later on.
Senior Constable Petersen gave evidence. He was the Custody Manager the day after the search when the accused voluntarily attended upon the Broken Hill station and was interviewed by Detective Gallagher and another Constable, I believe Senior Constable Hawkins.
I point out from the outset, although appreciating the difficulties of a person unrepresented, that apart from some very minor matters, even in the view of the accused himself, the accused had no complaint about the way in which the police conducted themselves. Both in relation to the search and the conduct of the subsequent investigation, particularly the interview of the accused that occurred sometime after 5pm on 2 August.
The video of the search of the accused’s premises shows suitable arrangements being made for the accused to get clothed at various times. In fact, one of the features of the matter that struck me in tribute to Sergeant Gallagher, if I may be so bold to say, was that throughout the course of the search as it is video recorded, every time some item was found that might be thought to be relevant to the investigation being undertaken, Sergeant Gallagher reiterated the caution initially given to the accused, that he need not say anything unless he wished.
I noted, and I am not criticising Sergeant Gallagher, that in fact this was a feature of the electronic interview having evidence of the fact that the accused had been given his ‘Part 9 rights’ and appropriately processed by the custody manager and the fact that the accused at the commencement of the electronic interview was cautioned properly by Sergeant Gallagher and every time some fresh issue, or matter for comment by the accused, was raised a fresh caution was given.
Again, as I said, I appreciate that I must be careful in assessing the accused from his conduct at the bar table in circumstances that might be strange to him. But he gave every indication to me in his spoken words and his attitude to various matters that he accepted the accuracy of the evidence of the police and accepted the propriety of the conduct and the courtesy with which he was treated by the police. This is a matter for which the police should be commended.
I return however to the legal principles to be applied. I will refer to some core principles and then I will deal with some collateral principles, as the case unfolds, in my summation of it.
This is a trial by Judge alone in accordance with the relevant provisions of the Criminal Procedure Act 1986. A ‘trial by Judge’, as it is described in the relevant provisions, requires the Judge not just to state the principles of law which are to be applied, and the findings of fact that are made (see s 133(2) of the Act), but also requires the Judge to expose what is described as the “reasoning process,” justifying findings of fact and ultimately the verdict to be returned.
All principles of law which are relevant and required to be applied should be identified in the judgment, including any necessary warnings that the trial Judge is required to apply in the assessment of the evidence. Where particular warnings are applied a Judge must state, where appropriate, what those warnings are, the consequences of them, and ultimately why a particular verdict has been reached. This was so held by the High Court in Fleming v R (1998) 197 CLR 250.
In a criminal trial the onus of proof rests with the prosecution from the beginning of the trial to the end of the trial in respect of matters requiring proof by the prosecution. In respect of those matters the accused bears no onus whatsoever. The onus of proof does not shift to the accused in respect of matters requiring proof by the Crown. An accused person is presumed to be innocent of any charge or charges brought against him or her until such time as that presumption is displaced by the Crown proving the essential elements or ingredients of the particular charge brought against the accused.
In this matter, however, once the relevant elements of the charge brought against the accused are established, there is a statutory defence provided for in the Drug Misuse and Trafficking Act, the legislation under which the accused has been charged. The Court is required to have regard to the combined operation of s 25 and s 29 of that Act and I will deal with the details of that matter later.
The defence required to be established by the accused is one to be established on the balance of probabilities, that is, it is for the accused to establish that it is more probable than not that what he has to establish has been so established. In this regard I note the accused did not give evidence in the trial although he did voluntarily, and in some detail, participate in an electronic interview. He also, in the course of the search the day before, made a number of statements about matters that were brought to his attention by the investigating police.
In assessing what was said on 1 August I appreciate, for want of a better description, that the accused was caught by surprise; in fact at one point early in the search before the warrant was shown to the accused and he was handed the occupier’s notice the accused was seen running, it would seem, from the house to the shed where subsequent searches were conducted, and/or back again, in his underpants.
I must say, and I make very clear, that I draw no inference adverse to the appellant from his conduct in that respect when the police announced their office and their presence. His conduct was entirely consistent with a person who was in possession of a substantial quantity of prohibited drugs, which he admits, and was not necessarily consistent with a person having in his possession a quantity of prohibited drugs in his possession for the purposes of supply. So his conduct at relevant times is a neutral matter, particularly in that respect.
In respect of the accused not giving evidence I bear in mind that in respect of matters required to be proven by the Crown he bears no onus of proof. There is no obligation upon him even in respect of matters where he bears some burden of proof for him to give evidence in Court. No inference can be drawn adverse to him by his failure to give evidence and I bear in mind as I said earlier that he gave an interview openly and frankly to police shortly after the search of his premises.
Everyone facing trial by judge or by judge and jury is entitled to remain silent in Court and put the Crown to proof, and I cannot draw any adverse inference against the accused because he has exercised his right to silence in Court. On the other hand, in relation to matters where he bears the burden of proof in determining whether matters are established, it means apart from any other evidence or material produced by the accused, and the accused did produce exhibit 1, I am required to consider the matters raised by the accused in the context of the evidence in the Crown case as well as, of course, as I said, the exhibit he produced, considering rational or reasonable or possible inferences arising from that evidence.
I cannot interpret the silence of the accused in Court as an acknowledgment by him as to the accuracy, veracity or strength of the Crown case. I certainly cannot be tempted to reason that the accused has remained silent because he believes he is guilty. Such reasoning is prohibited and I am not allowed to engage in it and I will not. It is entirely inconsistent with the burden of proof resting upon the prosecution. It is not for me to speculate as to why the accused did not give evidence and I cannot treat the accused’s election not to give evidence as being capable of filling any gaps in the Crown case that may be perceived to exist.
In order to establish the guilt of an accused person in relation to the count, the prosecution must prove each and all of the essential ingredients or elements of the charge for consideration beyond reasonable doubt. The words “beyond reasonable doubt” are to be given their ordinary, everyday English meaning and as I said earlier the accused bears no onus in relation to those matters requiring proof by the prosecution in that regard.
The words “beyond reasonable doubt” are a very high standard of proof. If a reasonable doubt exists in relation to matters requiring proof by the prosecution I must find the accused ‘not guilty’. Likewise if the Crown establishes all the relevant elements of the charge but I am satisfied on the balance of probabilities the accused has discharged the onus upon him to establish the defence, I must find him ‘not guilty’.
I now turn to the elements of the charge and the character of the defence. The accused is charged, as I said earlier, with the offence of supplying the prohibited drug, amphetamine. The Crown does not have to prove, however, that the accused actually supplied that drug in accordance with the operation of s 25 and 29 of the Act. What the Crown must prove beyond reasonable doubt are, firstly, that there was a substance that was a prohibited drug; secondly, that the accused possessed that substance, and thirdly, that the accused possessed that substance for the purposes of supply.
The Crown must prove beyond reasonable doubt that the substance the accused supplied was a prohibited drug and here the Crown alleges that the prohibited drug was amphetamine. The law is that under the Drug Misuse and Trafficking Act and the Schedules to it the drug ‘amphetamine’ is a prohibited drug and as it turned out, getting somewhat ahead of myself, as the case was conducted and as the evidence established, there is no dispute as to the fact that the relevant substance the subject of the charge is amphetamine. The accused believed it to be or has certainly believed it to be an amphetamine-type substance.
I am very mindful of the fact that there are different types of amphetamine substance, including methylamphetamine and methamphetamine as well as amphetamine itself but I must be satisfied that the relevant substance the subject of the charge contained the prohibited drug particularised in the indictment.
It is not necessary that the prosecution prove that the whole of the substance consisted of that prohibited drug. The law is that anything that contains a prohibited drug in any proportion is sufficient, as it turned out, by reference to the analyst’s certificate in this matter which is part of the Crown case, the first exhibit tendered by the Crown and one which the accused agreed to be tendered at the outset to save the analyst having to travel to Broken Hill. The certificate establishes that the purity of the relevant substance, or at least 77.6 grams of it, was 38%.
Secondly, the Crown must prove the accused possessed the prohibited drug. The Crown must prove that the accused intentionally had the substance in his physical custody or control to the exclusion of any other person. If there be a suggestion of joint possession, which does not arise in this trial as I understand the matter, the Crown must prove that the accused intentionally had the substance in some place to which he had access and might go to obtain physical custody or control of it to the exclusion of any other person.
In respect of this matter, for reasons I will explain later by reference to the evidence, it is clear, based upon the physical evidence of the searching of the premises and the voluntary admissions made by the accused at various times, that the accused possessed the relevant prohibited drug.
I direct myself in accordance with the ‘Bench Book’ as to the matters of knowledge and belief required for the purposes of being in possession of a particular item. I appreciate, of course, the fact that the relevant matters discussed in the Bench Book directions, for example, are obviously matters that must be proven beyond reasonable doubt.
I interpose in my remarks to point out that I gave the accused at the outset of the trial a somewhat edited extract from the Bench Book setting out relevant matters to the issues that the prosecution must prove as well as the ‘defence’. The Crown must further prove that the accused had the substance in his possession for the purpose of supply. To supply something under the Drug Misuse and Trafficking Act involves an extended definition of the word “supply”. The ordinary meaning of the word “supply” is to give or provide something to somebody. It may include, under the Act, selling and other acts but in this matter the Crown does not have to prove that the accused actually supplied the drug in accordance with the general understanding of that word or its statutory definition.
For the purposes of determining the offence, the word “supply” includes “having a substance which is a prohibited drug for the purposes of giving it to somebody”. A particular issue that arises under s 29, is that if an accused person has in his possession a specified quantity or more of a prohibited drug, that person is regarded as having possession of that drug for the purposes of supply, that is to give it or provide it to another person.
In relation to this particular drug of amphetamine, I am informed by the Crown that the traffickable quantity is three grams and the indictable quantity is five grams. The accused is alleged to have been in possession of 97.4 grams in total. If I am satisfied that the Crown has proved beyond reasonable doubt the elements of the offence, including that the drug was a prohibited drug as particularised in the indictment, and the amount of the drug was at least the traffickable quantity, then the prosecution has proved all the essential ingredients or facts to make out the offence of supply.
However, there is a defence to this charge, as I have said. What the accused needs to prove on the balance of probabilities is that the accused had the drug in his possession for some purpose other than to supply it. In other words, to give it or to provide it to someone else, and that has been the accused’s position from the outset.
In fairness to him, from the moment I first saw him - which was last week when I was endeavouring to have him come to Court to ascertain what the situation was in the trial (he was then, as I understood it, represented by a solicitor and a barrister who subsequently withdrew) - he indicated to me, after it had been made clear to me that he had quite voluntarily severed his relationship from his legal advisers, that he was claiming that the drugs the subject of the charge were for his “personal use,” to use his words.
While the onus of proving this fact rests on the accused, he does not have to prove it, as I said, to the high standard of proof of beyond reasonable doubt. He is required to prove it on the balance of probabilities, that is that it is more likely than not that he had the drug in his possession for purposes other than supply. Of course, personal use is a purpose other than supply.
There are other circumstances, some of which I explained to the accused at an early stage about this aspect of the law. Ultimately, if I am satisfied of that matter, I will acquit the accused.
There are some other legal directions I am required to give myself. In this matter an expert witness was called John Farrar, who was described as a clinical pharmacologist. His qualifications and his experience and the basis of some of his opinions were the subject of evidence by him. An expert witness is a person who has specialised knowledge based upon that person’s training study or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise.
Other witnesses may speak only as to facts, that is what they saw or heard, and are not permitted to express their opinion save for the exception of lay witnesses expressing opinions about matters that might be within common experience, such as the estimate of distances, the estimate of the speed of a motor vehicle or a motorcycle, and some such matters.
Of course, the value of an expert opinion is very much dependent upon the reliability and accuracy of the material which the expert used to reach his opinion. It is also dependent upon the degree to which the expert analysed the material upon which the opinion was based and the skill and experience brought to bear in formulating the opinion given.
Experts can differ in the level and degree of their experience, training and study. Yet each can still be an expert qualified to give an opinion where the opinion is based upon the witness’ specialised knowledge. In this matter expert evidence was admitted to provide the Court with evidence in relation to matters concerning the drug amphetamine, its qualities, its characteristics, its effects.
There was also evidence given about the uses that can be made of amphetamines by reference to the opinion expressed as to the different type of amphetamine or the different forms of amphetamine that are known. This opinion evidence and other material emerging from the witness’ evidence is evidence that is given to be likely to be outside the experience and knowledge of the average lay person.

One of the issues that arises in a criminal trial where the judge sits alone is that a judge of any experience would have had many occasions not only to hear ‘experts’ give evidence, but also to hear drug users and drug manufacturers, drug suppliers, as well as police officers, give evidence about matters relating to the characteristics of drugs, the value of drugs, in particular quantities, in particular locations, on particular dates and also have knowledge of some of the effects of prohibited drugs that are used from time to time.
To a large extent I am required to put those matters aside, of course, and I approach the matter by reference to the material produced by the accused and the opinion of the pharmacologist using my common sense.
I will come back to the evidence of the Mr Farrar. I make the point though that the law requires me that if I do not accept the evidence of the expert I do not have to act upon it. This is particularly so where the facts upon which the opinion is based do not accord with the facts as I find them to be, or alternatively that the opinion expressed stands at odds with reliable evidence from other sources even if it does not come from experts.
I bear in mind, of course, the difficulty for the accused. It must be fairly said, I believe of his own choosing, that no other expert evidence has been called. No application was made for such a person to be called by the accused. Of course, he would have had to make those arrangements himself. But I do understand, of course, that one of the essential opinions expressed by Mr Farrar, which I will come back to, is in some dispute by reference to the representations the accused made in the course of the interview when he made relevant admissions.
In any event, even without conflict between the opinion of the expert and any other evidence in the case that might contradict the expert, I am not obliged to accept the pharmacologist’s opinion or any expert’s opinion or, if I accept the opinion, I may choose in the circumstances of the matter to give the opinion little or no weight even if I believe the opinion is properly held.
In this matter, although the opinion evidence was not challenged largely, there was a challenge to the suggestion the witness made that amphetamine in the form as the witness described it, that is in “salt form” - that is amphetamine characterised as amphetamine sulphate - in his opinion cannot be smoked. When one analyses his evidence, however, (I do not have a transcript of his evidence but I have made very careful notes) that opinion is not as bald and as straight-forward as it might seem in the manner in which it was first expressed, although I do not criticise the witness for that. He was endeavouring to make a more subtle point which I will deal with shortly.
With regard to the evidence in the case I have dealt with it to this point in a global fashion by reference to some of the witnesses that were called. I should point out that there was an endeavour to produce a detective who was going to express opinions about the value of amphetamine drugs in Broken Hill. There were a couple of difficulties with that evidence it seemed to me.
Firstly, as the witness was called to the witness box I discovered the witness was, in fact, a detective who had only been in Broken Hill since 2014.
I accept that he had some prior experience with the AFP and had experience as a detective elsewhere in the State. I respect the fact that in appropriate occasions appropriately experienced and qualified police officers may be called upon to express opinions about matters relevant to the dissemination and the sale of prohibited drugs. But it seemed to me, given the information helpfully provided by the Crown, that the evidence was evidence that I could not act upon with confidence. Not because I doubt the integrity of the detective - I never really got to know him beyond seeing him in Court - but because the matters about which he was going to give evidence concerned opinions based upon his experience in the past elsewhere, and in Broken Hill since 2014.
I was given some indication of what he might say. It seemed to me, with respect, to be at odds in some minor detail or perhaps some substantial detail with evidence in a sentence matter I heard here during these sittings where a man was convicted of supplying methylamphetamine, which I appreciate is a different drug, and his various transactions were recorded by telephone intercepts. Perhaps the best evidence you could have of value for particular quantities. Anyway, be that as it may, the Crown considered the matter and chose not to call the witness and I did not have to make a decision about the admissibility of that evidence or alternatively its weight. Even though I was put on notice of what was to be said it is a matter now of no moment.
With regard to the evidence of Senior Constable Tucker, Constable Chambers and Sergeant Gallagher, I note that out of the execution of the search warrant, which is an exhibit, and the service of the occupier’s notice, which is an exhibit in these proceedings, a number of items were recovered at various places.
Exhibit D constitutes 23 photographs of various items, a couple of them quite out of focus and not much help. There is an exhibits log that was produced by Constable Chambers which I have paid heed to. It is materially inconsistent in one respect with what I thought was asserted without the aid of transcript by one of the witnesses and I will come back to that matter in a moment. I have, of course, the copy of the search warrant, exhibit F, and the occupier’s notice.
Although I permitted the evidence of the search to proceed with no objection from the accused - although the accused might not be in a position to understand the legal ramifications and the complexities of search warrants - I took that evidence without comment until such time as I was in a position to seek further material to satisfy me that the relevant provisions of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) had been met.
Although the accused did not object to the evidence of the search either on grounds available under s 138 potentially, or some other section of the Evidence Act, it was my duty to ensure that all matters relating to the legality of the issue of a search warrant and the execution of a search warrant were before the Court.
I appreciate at various times the accused from the bar table said things like everything was “properly done”, everything is “right”, he had no dispute with the evidence and the like, but my obligation, as I have explained to the accused on a number of occasions, is to conduct the trial according to law and that requires me to take positive steps to ensure that has happened. I mean no disrespect to the Crown Prosecutor, but it is not my job to be content to accept the self-satisfaction of the Crown or anybody else about matters relating to the legality of actions of investigators. Having said that and having viewed the video I have satisfied myself as far as I can that the provisions of LEPRA have been complied with and that there was no impropriety in the execution of a search warrant.
I should point out, as the transcript would reveal, that there was an issue that I raised as to the basis upon which the warrant was issued. The law requires an application. An application was produced to the Court. A copy of that was shown to the accused as were two statements from police officers which were not tendered, nor shown to me, I hasten to say. Those statements remain in a sealed envelope not to be opened by anyone other than a judge of this Court or a judge of the Supreme Court of New South Wales. But I asked the accused, he having seen that material, whether he would wish me to see the application.
I was reluctant to see it and I expressed my reluctance to him. But he said I should see it. To satisfy myself of the legality of the matter, I read that application. It satisfies me of the ‘reasonable grounds’ in the context of what that legislation involves, although I ignore the information contained therein.
With regard to what was ultimately recovered from the property, the accused readily and voluntarily admitted, both during the course of the search and subsequently in the course of the interview, his awareness of items found said to be relevant to the investigation and his possession of them.
The video shows him to be co-operative and sometimes inquiring when he needed to obtain further information. As I said earlier, the police were polite and non forceful and everything occurred in a very “gentlemanly” fashion to the extent that, although the police had material in their possession that might reasonably have been believed to be amphetamine and a substantial quantity of it, rather than the accused being arrested on the spot and being taken to the police station, as one often sees, a ‘gentleman’s agreement’ was reached that the accused should make his way to the police station the following day, which he did.
During the course of the search, the accused did not appear to be affected by drugs or alcohol, and did not claim at any stage to be incapacitated. It is quite clear to me, although some of the conversations are hard to hear - some things said by the accused cannot be heard at all and that is no fault of anyone it is just the inadequacy of the recording equipment that created that situation – he appeared to fully understand what was being said and responded cogently and coherently to questions and, as far as I could hear, his comments were unequivocal statements.
I note, in relation to the objective evidence relating to the search, the premises in which he lived had security cameras attached to various parts of the house. I do not have a plan of where they were located but I understand from the evidence that in the bedroom there was a monitor or screen which showed at least four views of different parts of the property provided by those security cameras.
When the property was searched at various places various items were found and I will summarise those items now. Firstly, $2,370 was found in the drawer of a chest of drawers or a cupboard in the main bedroom or, as it was described, the accused’s bedroom. There was $280 in bank notes in what could be called the cashbox of what is seen in the video to be an electronic poker machine that was in a shed in the rear of the backyard of the premises which was when first approached by police locked and secured.
The police found a set of keys as I understand it in the main bedroom. I may have misunderstood the evidence but my note was behind a ‘bedhead’ in the bedroom. The location is of no significance. The keys included a key to the shed and a key to a safe which was found inside the shed and inside which the relevant prohibited drugs were found. As I understand the evidence, no prohibited drugs were found inside the house, only in the shed.
With regard to the prohibited drugs, there were a quantity of drugs found in two smaller resealable bags inside one larger plastic bag. These substances were described as orange/brown crystalline substances and as I understand it these items constitute item 4 of the items that are referred to in the analyst’s certificate which is the substance identified with the prohibited drug of amphetamine in a quantity of 77.6 grams with a purity of 38%.
Inside the safe, which had to be unlocked with the key, in the presence of the accused was found a sunglasses case with three smaller resealable bags. As I understand it this is item 5 on the analyst’s certificate, which substance is amphetamine of a quantity of 19.8 grams. In any event, whatever be the packaging, the combined total of the prohibited drugs located as I have earlier indicated was 97.4 grams.
There were also found eight glass pipes which had appearances consistent with their use to smoke some particular drug. Those pipes as I understand it were not analysed. I am not provided with any evidence as to what the residue was inside those pipes. A plate was found with a substance on it, a very small quantity of substance which as I understand it when analysed detected the prohibited drug methyl amphetamine in the weight of 0.47 grams. There were some items containing various liquids which were analysed but no drugs were detected.
Police found in various places in the shed eight sim cards for phones as I would understand it. There were other USB sticks and other equipment. Evidence was given of the finding of five mobile phones. I can only find four mobile phones in the log. This is the matter of distinction between the log and the oral evidence. If I have miscounted I apologise but, on my re-reading of the log last night, I could find reference to four mobile phones including one iPhone and one Blackberry phone, the other two phones are not described.
As I said earlier, there were two electronic scales found. They are exhibits. They are very small electronic scales which to my mind, and I will deal with this later when analysing the evidence, are not consistent with kitchen scales, which can be electronic as well. I will refer later to what the accused said about those scales. These various items the accused admitted were his after repeated cautioning, as I said, at the time of the search.
He also made admissions that the substance the subject of the charge was a prohibited drug. He is recorded as saying, although I have no transcript of the search video, he purchased three ounces of “meth” or amphetamine “a month ago” and he paid about $7,000 for it. He also said at the time he was explaining these matters that the drugs were for his “personal use” and he was going to “smoke it”. He also in the course of the searching of the shed gave reasons for his possession of the pipes to “smoke meth” or to “smoke out of them” and ultimately to destroy them.
There was some reference in the evidence to some money bags, a matter by itself that turns out to be not of any significance whatsoever. However, various items, the sim cards, the phones, the scales, the character of the packaging, the security system, the way in which the drugs were secured within the safe, the cash found, are all matters relied upon by the prosecution as supporting what is otherwise deemed by the quantity of the drugs, the Crown’s contention that the drugs were in his possession for the purposes of supply and in rebuttal of the defence available to the accused based upon his assertion that the drugs were for his personal use.
With regard to the expert witness, his evidence arose in the context of not only the accused’s assertion that he was going to smoke the drugs at the time of the search, but on the basis of representations the accused made when he was interviewed.
As I said, the accused went to the police station the next day and obviously voluntarily involved himself in the interview with the police. In the course of that interview he agreed as to the fact that the various items were found in his house, that he was in possession of them and he provided particulars in relation to these matters.
Of necessity, I am required to deal with some detail of the appellant’s answers in the interview, because as it turns out this is substantially his case in the absence of any evidence being given from him. He agreed in essence, although he could not remember the exact amount which I do not hold against him, that $2,665 was found as his property. When asked about the money, if he wished to say anything he said, “I don’t have any comment”, that was for “later”, but I cannot draw any inference adverse to him for that.
In relation to the search of the safe, he agreed that it was locked with a particular key and that out of the safe were found various items as well as the pipes. With regard to the pipes he thought eight had been found and he said that he used them to smoke drugs. He was going to eventually crush them up and throw them out. With regard to the item or the substance that was on the plate, he was asked what he thought it was and he said it was:
“Like a meth substance of some sort. You could smoke it but when I did it, it sort of turned that discoloured look and I realised well, yeah”.
With regard to the word “meth”, the accused said:
“Meth, I have the impression it’s like well, an illegal drug. It’s, well, I know it’s not crystal meth, I know it’s not but it’s some form of meth.”
He said about it being an illegal drug that he assumed it was. He said, “Well, because of the well, the low quality high that it gave me”. This in my view is a matter relevant to the assessment of his claim of smoking the drugs in light of the evidence of the expert. He understood that it was illegal in most States to smoke “meth”, and he said his intention in relation to the meth that he was going to smoke it. He said, “Definitely I’m a drug user” (question 129).
He was asked about his knowledge of the expression “points”, a point being 0.1 of a gram. He said as far as the terminology was concerned he was “quite happy with that” on the representation of the police officer, not that a great deal turns upon that, if anything. With regard to the SIM cards, he said that he owned the SIM cards. He said, “I know it’s not illegal to have those sorts of items”, referring to the SIM cards and the USB sticks. He said that he used to store photographs upon them.
I note in passing none of this material has been analysed and I have no idea what is contained in the SIM cards. The police officer asserted they located about five phones in the shed. The accused said, “I just like phones, I always have”. He said he used to extract gold from the phones.
He was taken to the character of the resealable bags. He described some of the substances as “a crystal looking wet substance” referring to substances within the bags that were described as “deal bags”. He said:
“I’d say that would be like a glucose or like a sugar something because obviously when I had a smoke of it, it just went straight to black and it tasted like brown sugar”.
He believed that the relevant drugs were “meth” type drugs.
Getting to the significant quantities of the substance, the very subject matter of the charge, it was described to him as a “browny” substance, “crystallised” substance. He called that “a meth based substance that I was smoking”. He said he purchased that drug to smoke. He understood that it was an illegal drug and he thought it was “a meth based substance of some sort”.
He said he solely purchased it to smoke himself. He was asked these questions from question 174 onwards:
“Q. Where did you purchase it?
A. In Broken Hill.
Q. Would you like to tell me who you purchased it from?
A. No.
Q. Okay.
A. But it was bought in, I bought it out of State but it came into Broken Hill.
Q. So you--
A. It wasn’t anyone from Broken Hill.
Q. So you purchased from someone who came to Broken Hill?
A. Yes.”
In answer to how much was there, he said:
“Well, I paid 7,000 for three, apparently three ounces or maybe a touch over with that other bag that came with it”.
He did not know off the top of his head what three ounces in grams would be. He was told that an ounce is roughly 28.4 grams, which is approximately right, and he gave reasons for it being bagged the way it was because of a leaking of the bags. He was asked questions after a caution about the supply of amphetamines in Broken Hill. He denied supplying amphetamines to any other person. He said, “It’s solely for my own use”. He was asked if the quantity that the police had weighed was more than would be required for personal use, described as a “fair bit”.
He said, “No, considering the amount that I smoke”. He was asked how much he smoked and he said he would smoke 30 to 40 ‘smokes’ of amphetamine a day. I should point out the reference to 125 grams in the interview as the weight of the drug seized is not a scientific measure. The police were measuring the substance with plastic bags and the like.
He said that he bought it in ‘one go’, so to speak, or he bought so much
“because it would cut down my chances of being caught buying … off other people and yeah I mean I just bought it in bulk so I never have to go to do it, have to buy it again for a long time so it keep smoking for quite a while (sic).”

He confirmed it was for his personal use. He was asked about the safety of children and the like and he said he normally did not keep it in the house, the drugs would be in a “safe location” which he did not want to elaborate upon. He said “buried out bush, that’s all I can say.” He did not wish to tell the police where that was and he said that in the glass pipes was the residue of a meth based substance, as I earlier said, and he understood that it was illegal to possess the drugs.
As far as the safe was concerned he explained the circumstances of purchasing it. He was asked if the sole purpose for the safe was to store his meth or his drugs and he said, “Yeah, my drugs, yeah, yeah”. He was asked about what he did for a job. He said, “No comment at the moment”. He said that he was “self-employed in a way”, he was not receiving any “welfare”, he said that he made money out of making up cars as a hobby. He picked the “right cars and I do make good money from (them)” so a rough estimate throughout the year (of what he earned) “would be maybe 1,200 to 1,800 a week”. He was not a licensed car dealer.
He also had an interest in opals; he said he used to be an opal miner. He had sources of income from that, he said, apart from the money he obtained from making cars re saleable. I point out in the evidence that when police arrived at the house there were a number of cars, some in a distressed state so to speak, or in a state of repair or need of repair, on his premises.
He was asked about his use of drugs. He said he used to smoke cannabis but it took a toll upon him mentally and he once got a caution for possession of cannabis, he moved to amphetamines. Asked where he got the $7,000 from he said, “That was through cars and opal, yeah, a mixture”. He was asked how much opal he had. He said about “60 to 80,000”, which I take to be a dollar value. He did not have any leases but he had been involved in opal mining as a child since eight years of age and for over 13 years he had collected opal, which apparently he could sell for money. He said he was involved in some form of family business and he got a percentage out of finds made by other people.
He said, when asked if he had anything else to say about the matter, that apart from “getting a one hell of an earbashing off the missus”,
“I’ve made a mistake and there’s nothing that I can go back on, I can just man up and just face it and deal with it and whatever happens I just have to take it head on and get over it and yeah, hopefully never touch the shit again and just move on.”
It was in this context that Mr Farrar’s evidence is to be considered. He gave evidence about the effect of the use of amphetamines including a feeling of “euphoria”. He talked about the physical effects of amphetamines. The Crown sought to rely upon some aspects of that opinion to demonstrate matters that were said to be apparent from the appearance of the accused in the electronic interview, but I would not permit those opinions to be given. These are matters for experts not for lay people sitting some distance away trying to make detail out of an inadequate video image.
Mr Farrar commented upon the analyst’s certificate and he described two forms of amphetamine, one amphetamine sulphate which he described as being in a “salt” form, and he was shown photographs, albeit not entirely clear photographs, of the find and he indicated that that was a “salt” form of amphetamine.
There was another form of amphetamine that he described as “freebase”, which is a pure form of amphetamine which was an oily substance. He said in his evidence in salt form the amphetamine was “not able to be smoked” because when lit it “evaporated before it was inhaled as vapour”, as I understood his evidence. In other words he was saying that salt based amphetamine when ignited had the effect that the amphetamine element was destroyed before smoke could be produced.
The basis of his opinions in relation to these matters, apart from his scientific qualifications, he said was his experience through reading peer reviewed articles about such subject matter. I am aware of the fact that he prepared a statement and it was provided to the accused, but the Crown did not produce the detail of his curriculum vitae beyond the brief oral evidence that he gave on the topic. He said with regard to the ingestion of amphetamines the primary method of ingestion was either orally, that is mixed with water, or alternatively in salt form using it intravenously, that is mixing it with some sort of solution, saline based or water, and injecting it directly into the vein.
He said amphetamine can be converted to a freebase by adding a solvent but that would have the result of producing the “oily substance” to which I earlier referred and the adding of the solvent would mean the oily substance would sit on the top, as I understood it, and the oily substance could then be separated either by a centrifuge or the most basic method would be to use a scoop. He said the oily based substance can be heated and the vapour inhaled to get the intoxicating effect. He expressed opinions about the quantity of prohibited drug that would be used to inject to achieve the effect of the drug. He also expressed opinions about the comparative effects of intravenous use and inhaling through vapour but neither of those opinions were of any moment in this case.
Ultimately he concluded that there were two forms of amphetamine, the salt form and the oily substance. He was asked further questions either by myself or the Crown about the question of smoking it. He said ultimately that, of course, the salt form could be ignited and purportedly smoked, but the problem with burning it in that form and smoking it, say from a pipe, one could not get the “high” but there could always be a “placebo effect”. The vapour, as I understand it, produced by the burning would not contain a requisite amount of amphetamine to have the effect that amphetamine is expected to give.
In relation to the Crown case the Crown says that it has proven the existence of prohibited drug under the Drug Misuse and Trafficking Act, the possession of the accused and a quantity in excess of a trafficable quantity. There is absolutely no doubt that that is true and that is not disputed by the accused.
With regard to the accused’s case, taking into account everything that happened in the course of the search, his account to the police in the interview and of course exhibit 1, the accused says the expert is wrong. He says that he did smoke the subject of the charge, pointing to the existence of the pipes. I must say, some of these matters the accused said are not just submissions but in part evidence from the bar table.
He was, I could see, somewhat inhibited by inexperience in making submissions. He also said that he had the means to purchase the drug and to use it himself, without needing to supply it to others, from the income from cars and savings that he referred to from the sale of opal.
He also relied in this regard upon exhibit 1. Exhibit 1 is a somewhat incomplete document. But it is a letter to the accused indicating the fact that there had been a sale of two properties apparently in which he had an interest. I am prepared to accept for the purposes of determining this matter he specifically owned them. This is a letter dated 22 October 2014 addressed to the accused at Chapple Street Broken Hill. It indicates that there was a settlement effected in relation to two properties in Broken Hill in December 2013 and that the accused owed still $684 in legal fees.
The letter is a business record. I am prepared to accept the representations contained in it that the accused had an interest in two properties in Broken Hill. They were conveyanced by a firm of solicitors and the settlement occurred in December 2013. Of course that settlement occurred after the accused was arrested in relation to the current matters, in fact it would seem three or four months after. But the accused said in court, and I am prepared to accept it even though it came from the bar table, that he received approximately $20,000 from that combined sale in either 2011 or 2012 and the settlement was in effect some formalisation of an informal arrangement between friends. I do not have any reason to doubt that and I have taken that matter into account.
In relation to the scales he said in his submission they could be used for other purposes. In a sense he gave evidence from the bar table but he made the point that they could be used, as he said in the interview, for weighing opals, measuring size by carat rather than grams, although the scales could also measure in grams.
The phones had no SIM cards as I noted from the evidence. He said that he collected them, he had an interest in them and he would extract gold from them for the purposes presumably of some resale. He said the SIM cards were unrelated to the phones, there was no evidence of their connection with the phone; they were separate. He asserted a purpose for them. There is no evidence, I hasten to say, produced to indicate some relationship between the number of SIM cards and drug dealership per se. There are inferences that can be drawn from multiple phones and multiple SIM cards. It is well known from the prosecution and resolution of cases involving the supply of prohibited drugs that multiple mobile phones may be used to supply drugs but the accused asserts that in the absence of any evidence to show telephone calls related to drug supply or a pattern of use of phones for that purpose his account should be accepted.
He asserted in his submissions that what he said about smoking 30 to 40 times a day was so and, as I would understand his submission, that even if Mr Farrar was essentially right he would smoke many times because of that “minimal effect”. He also said that he did not necessarily smoke a point a time and I do not see in the interview that he agreed that he smoked a point at a time; he could have smoked less. I note, as I say, in relation to the pipes nobody took the effort to analyse the residue in the pipes. But the essence of the submission is somewhat contradictory.
He said in his submissions he would ask the Court to take into account that he had cash from his personal circumstances, he had no need to sell drugs to recoup his expenditure, and he also would say, although he did not expressly address this, that the cash that was found was consistent with his, if I could call it, informal involvement in the trade of motor vehicles. Particularly “muscle cars”, as they are described, and that the security system in his home was just consistent with protecting his property particularly valuable things that he might have in his property such as opals.
I note of course that from the search undertaken of his house, whilst some costume jewellery of no moment was found, there were no opals found either. Where they were, if they exist, if they were at the premises or buried in the bush, I do not know.
To come back to the Crown’s submissions, essentially relating to the ‘defence’, the Crown says when one has regard to the quantity of the drug, the accused’s explanation of how he was proposing to use the drug, the amount he paid for it, the number of phones, the number of SIM cards, the cash partly hidden in the safe or the strongbox of the poker machine, the manner of the hiding of the drugs, the existence of the scales, the security arrangements and the packaging, the Court could not be satisfied the accused had discharged the onus upon him.
I note in the consideration of this matter a number of features of it, some of which I have already pointed out. There is no evidence of any particular activity by the accused, independently of what I have outlined, consistent with drug supply. There is no evidence of any ledgers or recordings of transactions. Although the Crown case is not one of actual supply, I appreciate that it concentrates on the possession of the quantity of the drugs, I have not been favoured with any phone records of any phone service related to the accused. There has been no examination of the SIM card content and of course I note the evidence that was given by, I believe Sergeant Gallagher, that the phones that were found did not have SIM cards in them. No examination of the scales was made to ascertain whether there is any residue of drugs in them, although of course if drugs were weighed in plastic bags and the like no residue may necessarily be found.
I note the evidence of the possession of pipes, clearly evidence consistent with smoking some form of drug. It is consistent with the account that the accused gave to the police. I am prepared to accept on balance that the accused was from time to time a smoker of drugs. What particular drugs is one of the issues in the case. Notwithstanding the opinion of the pharmacologist I accept that the accused on balance did endeavour to smoke amphetamine type substances and in fact speaks in the interview of matters that might reflect an absence of what might be called the therapeutic or other effect of the prohibited drugs. But it is not clear that he tried to smoke the drug the subject of the charge.
In fact in dealing with this matter ultimately, whilst the pharmacologist’s opinions as I have summarised them are of some assistance in providing a context, the opinion of the pharmacologist concerning the smoking of amphetamine ultimately is a neutral matter in the proceedings in the context of the representations by the accused. The concession ultimately that the drug itself could be smoked, but with almost no effect although the possibility of a placebo effect, underlines a matter that might be in support of the accused, but the case will not turn upon this aspect of the matter.
I must confess I was a little concerned, the witness having left the box, about some of the assumptions or bases for expressing his particular opinions about the smoking of drugs. I look back on the matter and perhaps it was a neglect on my part to ask the question that was not asked, and I do not expect the accused to ask this question, “tell us precisely, Mr Farrar, what is in your opinion the chemical explanation for that particular aspect of your opinion”, or some such question. Anyway, but the matter does not turn upon that aspect.
I note the accused’s explanation of the usage of the drugs. However ultimately there are other aspects to take into account. Firstly, the quantity of the drugs is a significant quantity. I appreciate in the circumstances of this case what would be a regular usage by the accused in terms of quantity would be an entirely speculative matter, but even if the accused was to use as much as .5 of a gram a day theoretically that would involve something in the order of 194 days of usage, used on a regular basis.
I take into account the fact that the drugs were a valuable commodity and capable of a profitable return on distribution, although there is no evidence of distribution.
I have ultimately concluded that the accused, in the circumstances as he explained, was unlikely to have such a large quantity at the time of the detection by the police, solely for personal use. The impression the accused’s account gave to the police was that because of the problem with cannabis that I have referred to in the interview he had taken to the use of amphetamines relatively recently. He did not expressly say so, but one would wonder, in the absence of any admission or representation that he was an experienced meth smoker, why a person in these circumstances, having turned from cannabis, would obtain such a large quantity for smoking in circumstances where I am prepared to accept that the effect on each smoking occurrence would be minimal.
I appreciate that the circumstances identified by the Crown from the evidence, the surrounding circumstances, security systems, the use of safes, packaging, cash, multiple mobile phones, multiple SIM cards, are indicia of either past drug supply or potential future drug supply. I appreciate of course that there are possibly innocent explanations for each of these matters in the context of the representations by the accused to the police but there is no convincing evidence, in my view, in the matter that persuades me on balance that the only purpose of many of the indicia referred to by the Crown was for an innocent purpose, as is argued by the accused.
I appreciate, of course, when one is looking at surrounding circumstances to the primary issue of the possession of a particular quantity of prohibited drugs, no particular circumstances may be compelling. That certainly is the case in this matter. But ultimately the fact of the matter is these indicia, arising from the search, suggest connection with the prohibited drug for purposes other than personal use of drugs. There remains still from the accused’s version possibilities consistent with the account that he has given and these matters are all matters to be weighed up in the mix of considerations as to whether the accused has discharged the onus of proof to the standard required.
I believe that there is, in the account given by the accused about how he purchased the drug, a material inconsistency, perhaps explained by a use of loose language, between the account he gave on 1 August as to where he bought the drug and the account he gave in the interview. This at first seemed ambiguous, but was clarified to indicate the drugs were brought to Broken Hill from some other place that I am prepared to assume was Adelaide. It may be a matter of no moment but in my view the account given by the accused at the time of the execution of the search warrant does have that inconsistency with his later version.
Another matter that I take into account is the accused told the police, at least during the course of the search, that he purchased 3 ounces, or just over, “a month before”. But if it was true that he was smoking 30 or 40 times a day, even allowing for the fact that he smoked on each occasion less than a point, he still had in his possession at the time of his arrest 97 grams.
My calculation, bearing in mind I would calculate something in the order of 28.3 something grams per ounce, is that 3 ounces would be 89 grams. He had in his possession, it would seem to me, at least three and a quarter ounces of the prohibited drug amphetamine in circumstances where he had asserted, as I understood it, that he was a regular smoker of that particular drug, that he had in his possession at that particular time for that period beforehand. The quantity he possessed on arrest does not reconcile easily with his claimed smoking habits.
I appreciate of course the accused is entitled to his right to silence and I have taken on face value the various representations that he has made, but even considering exhibit 1, there is no evidence supportive of some of the assertions he made about the circumstances in which he financed his lifestyle, including the purchase of the drugs. I bear in mind, of course, the evidence he gives about his income and other matters is relevant to not only his capacity to buy the drug but the lack of need of course for him to supply the drug.
A person who is extremely wealthy, let us imagine some multimillionaire, might be able to afford a pound of cocaine that he or she could use for many months into the future without the need to sell it. I understand that. But in this particular case the accused gave an account of having some sort of bank or reservoir of income from the sale of opal that he had accumulated over a period of time. No opal was found by the police. No opals have been produced to the police in the course of the investigation. He gave an account of the repair of cars but no evidence other than his untested assertion exists about that matter. What he said about those matters could be true but there is no evidence to support him in that regard.
There is also the issue of hiding the items in the bush. If one hid the prohibited drug in the bush so as not to have it detected, perhaps by police, why would one bring it from the bush in total back into the house for a period of time if one was only using it for smoking. If the accused needed a quantity to smoke and he wished to hide it in the bush, as he asserted in the interview, one would have thought the reasonable thing to do was to bring it to the house in small quantities, not to bring it, in effect ‘holus bolus’, including the safe, back into the premises in the circumstances in which the police found it.

The circumstances in which the drug was found, having regard to the quantity, is inconsistent with personal use. That the drugs should be found by the police in the manner in which they were found given the explanation the accused gave for securing or keeping the drugs, bearing in mind I understand his explanation for buying such a large quantity in bulk, it is difficult to understand why he should purchase such a large quantity in bulk without a guarantee that it would serve the purpose for which he purchased it..
I take into account, as I have said earlier, there are a number of indicia consistent with supply. The character of the scales and the number of them, the multiple phones and SIM cards, security system, the hiding or the securing of the drugs in the safe, the securing of some of the cash in what appears to be a secure cashbox within a poker machine as a place where cash could be secreted.
I appreciate the possibility in each instance of an innocent explanation for all of these matters in light of the representations made by the accused. But those ‘innocent explanations’ have no greater weight, in combination, than the inference(s) favourable to purposes of supply.
When the matter is ultimately analysed, noting all matters, it is my view in the context of the very substantial quantity of the drug, that I could not be satisfied on the balance of probabilities that the defence required to be established by the accused has been made out. Thus, in these circumstances I find the accused guilty of the charge.
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[2015] NSWDC 322

22 May 2015