R v Tiver (No 1)
[2004] SADC 109
•3 August 2004
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TIVER (No 1)
Criminal Trial by Judge Alone
Reasons for the Verdicts of Her Honour Judge Kelly
3 August 2004
CRIMINAL LAW
Taking Part in the Sale of 3,4 Methylenedioxymethamphetamine (2); Taking Part in the Sale of Methylamphetamine; Possessing 3,4 Methylenedioxymethamphetamine for Sale; Possessing Methylamphetamine for Sale (2); Possessing Lysergide; Unlawful Possession.
R v TIVER (No 1)
[2004] SADC 109
The accused Dale Brenton Tiver is charged with 8 counts relating to unlawfully dealing in illicit drugs namely 3,4 methylenedioxymethamphetamine (hereinafter referred to as Ecstasy), methylamphetamine and LSD. One of the counts relates to unlawful possession of a sum of money allegedly connected with that drug dealing. By consent the amount referred to in that count of unlawful possession was amended on 8 June 2004 to the sum of $150.00.
Particulars of each count are as follows:-
“First Count:
Taking Part in the Sale of 3,4 methylenedioxymethamphetamine (Section 32 (1)(d) of the Controlled Substances Act, 1984.
Particulars of Offence
Dale Brenton Tiver on the 29th day of June 2002 at Adelaide knowingly took part in the sale of 3,4 methylenedioxymethamphetamine (known as Ecstasy), a prohibited substance, to another person.
Second Count:
Taking Part in the Sale of 3,4 methylenedioxymethamphetamine (Ibid)
Particulars of Offence
Dale Brenton Tiver on the 15th day of September 2002 at Adelaide knowingly took part in the sale of 3,4 methylenedioxymethamphetamine (known as Ecstasy), a prohibited substance, to another person.
Third Count:
Taking Part in the Sale of Methylamphetamine (Ibid)
Particulars of Offence
Dale Brenton Tiver on the 15th day of September 2002 at Adelaide knowingly took part in the sale of methylamphetamine, a prohibited substance, to another person.
Fourth Count:
Possessing 3,4 methylenedioxymethamphetamine for Sale (Section 32 (1)(e) of the Controlled Substances Act, 1984.
Particulars of Offence
Dale Brenton Tiver on the 29th day of December 2002 at Adelaide knowingly had of 3,4 methylenedioxymethamphetamine (known as Ecstasy), a prohibited substance, in his possession inside a videotape case on the top shelf of a wall unit, for the purpose of selling it to another person.
Fifth Count:
Possessing Methylamphetamine for Sale (Ibid).
Particulars of Offence
Dale Brenton Tiver on the 29th day of December 2002 at Adelaide knowingly had methylamphetamine, a drug of dependence in his possession inside a videotape case on the top shelf of a wall unit, for the purpose of selling it another person.
Sixth Count:
Possessing Lysergide (Ibid)
Particulars of Offence
Dale Brenton Tiver on the 29th day of December 2002 at Adelaide knowingly had lysergide (known as LSD), a prohibited substance, in his possession inside a videotape case on the top shelf of a wall unit, for the purpose of selling it to another person.
Seventh Count:
Possessing Methylamphetamine for Sale (Ibid)
Particulars of Offence
Dale Brenton Tiver on the 29th day of December 2002 at Adelaide knowingly had methylamphetamine, a drug of dependence, in his possession on the top shelf of a wall unit, for the purpose of selling it to another person.
Eighth Count:
Unlawful Possession (Section 41 (1) of the Summary Offences Act, 1984).
Particulars of Offence
Dale Brenton Tiver on the 29th day of December, 2002 at Adelaide, had in his possession money in the sum of $150.00 which was reasonably suspected of having been obtained by unlawful means.”
The accused pleaded not guilty and duly elected to be tried by a Judge without a Jury pursuant to Section 7 of the Juries Act 1927. The accused’s decision to elect was made after a voir dire hearing before me as a result of which I ruled certain evidence relevant to each charge was admissible. In the exercise of the court’s discretion, I allowed the trial to proceed in that way after receiving an indication from the Accused’s counsel, that whilst the accused did not admit the charges, it was not his intention to adduce any evidence to rebut the prosecution case on each count.
After entering pleas of not guilty to each of the 8 counts on the Information the trial then proceeded before me wholly on the basis of declarations tendered by the prosecution.
I turn now to that evidence.
Prosecution Evidence:
The prosecution evidence was uncontested. I received evidence in the form of the following declarations:-
BARRETT, Toni 20/02/2003; 19/11/2003; 03/06/2004 BORTUCH, Victor 14/11/2003; BURKE, Keryn Jane 04/06/2004; CROUCH, David William 18/02/2003; 12/03/2003; 22/04/2003, 14/11/2003. CUNNINGHAM, Colin James 22/04/2003 DEWAR, Peter John 12/07/2003; FINLAY, David 19/03/2003; FORD, Rodney Arthur 08/02/2003; 12/11/2003; GILES, Samuel 18/02/2003; NOACK, Robert Theodore 26/05/2003; NORMAN, Benjamin James 14/03/2003 OCKLESHAW, Elizabeth 11/09/2003; 20/02/2003 RICE, Michelle Ann 14/03/2003; THIELE, Jason Scott 19/02/2003; WALES, Owen George 20/02/2003; Certificates of Analysis CAMILLERI, Andrew Michael 16/04/2003; PIGOU, Paul Edwin 12/02/2002; WARD, Caroline Mary 15/11/2002;
In addition to those declarations the following items and/or documents were tendered:-
P1 CD of surveillance and extracts from surveillance tapes of 182 Gray Street Adelaide between 12/09/2002 and 10/10/2002. P2 CD containing experts from telephone conversations intercepted by Police between 03/12/2002 and 29/12/2002. P2A Transcripts of conversations referred to in exhibit P2. P3 One yellow envelope located in a video cabinet of the accused’s bedroom. P4 Two A4 sized pieces of paper with amounts and totals located on a coffee table in the lounge room of the accused’s home. P5 One page containing notations seized from a mobile phone cover taken from the accused personally. P6 10 photographs of 182 Gray Street Adelaide. P7 Plan of 182 Gray Street Adelaide
Apart from count 6 on the Information there was no attempt by the accused to contradict by evidence or submission any of the evidence produced in support of the eight counts with which he was charged. In relation to count 6, the accused, through his counsel, admitted possession of 2 LSD tabs but denied they were for the purpose of sale. Although the prosecution did not amend count 6 on the Information there was no submission by the prosecutor that in relation to count 6 the trier of fact should be satisfied beyond reasonable doubt that the purpose for possession of the 2 LSD tabs was for sale.
The crown case in a nutshell was that the accused Mr Tiver was dealing in the sale of ecstasy and methylamphetamine from the premises at 182 Gray Street Adelaide over a period of several months.
After receiving anonymous information on the Crime Stoppers phone line, police went to the house at 182 Gray Street Adelaide on 29 June 2002. There was no one home and as the police were leaving the premises they peered inside the letterbox and saw a white envelope with markings on it. The location and nature of that envelope was consistent with the information they had received on the Crime Stoppers phone line. In fact there were two envelopes in the letterbox that day, one containing 15 tablets containing ecstasy and one containing 10 tablets containing ecstasy. The total quantity of ecstasy in those 25 tables was 2.05 grams. It is those tablets which are the subject of count 1 on the Information.
As a result of their investigations on 29 June 2002 the police placed the premises under surveillance for a period in September and then again for a period in October of 2002.
I have viewed the video tape P1. It depicts the comings and goings from 182 Gray Street Adelaide during both the day and night time for the period stated and shows a number of people putting things into the letterbox and a number of people removing things from the letterbox. At times the accused appears in the vicinity of that letterbox either looking in it or taking something out of it or smoking a cigarette.
One of the young people who went to the letterbox during the surveillance period is a young woman named Keryn Jane Burke whose statement was tendered along with the other declarations.
On the night of 15 September 2002 Ms Burke was seen going to the letterbox and removing something from that letterbox. Police later stopped her and a search of her handbag revealed 1 ½ ecstasy tablets and 2 press sealed bags containing methylamphetamine. Ms Burke admitted that she had purchased them via the letterbox at 182 Gray Street from a man whose name she only knew as “Dee”. Ms Burke had in her mobile phone the mobile phone number of her supplier who she later admitted was a man named “Dale”. The mobile phone number is the mobile phone number of the accused.
Counts 2 and 3 on the Information relate to the sale to Ms Burke of the methylamphetamine and ecstasy found in her handbag on the night of 15 September 2003.
The prosecution also adduced evidence of many phone calls both from and to the mobile phone being used by the accused. Evidence of 20 such phone calls were tendered (exhibits P2 and P2A). In those calls the prosecution contended that the accused was making arrangements with various purchasers for the placing of orders for either methylamphetamine or ecstasy.
On 29 December 2002 the police went to the property again at 182 Gray Street Adelaide with a search warrant. The property was searched and in the bedroom occupied by the accused in a quantity of video cases a number of different drugs were found. The finding of most of those drugs is the subject of counts 4, 5, 6,7 and 8 on the Information. Count 4 relates to the finding of some 160 tablets in a video tape in a shelf unit of the accused’s bedroom. Those tablets contained approximately 16 grams of MDMA.
Count 5 relates to the finding again in a video in the shelf unit of that bedroom, a quantity of methylamphetamine the pure amount of which came to 1.22 grams.
Count 6 as I have already mentioned refers to the finding of 2 LSD tabs found inside a video tape in the same area of the bedroom.
Count 7 relates to a further quantity of methylamphetamine found elsewhere in the bedroom in a shelving unit and relates to essentially the plastic containers described in the statements as DBT10-15 inclusive. The total amount of methylamphetamine found in those items appears to be something in the region of .19 grams.
Finally, count 8 relates to the sum of $150.00 which was taken from the accused at the time of his arrest.
All of this evidence and the circumstances in which the police located that evidence was not contested by the accused. In particular it was not contested that it was the accused in the phone calls, the subject of the exhibits, or that it was he who was placing the envelopes in the letter box which were later then retrieved by the purchasers.
The evidence tendered points overwhelmingly to the inference that the accused was dealing in both methylamphetamine and ecstasy and using the letter box at 182 Gray Street to conduct a number of those drug transactions. It is also plain from the evidence and also the evidence of the telephone intercepts that the accused was conducting his business at all hours of the day and night. According to the statement of Mr Norman, one of the accused’s flatmates, he also conducted some of his drug transactions within the bedroom of the house at 182 Gray Street Adelaide. Mr Norman himself had purchased amphetamine and ecstasy from the accused during the time he was living with him at 182 Gray Street Adelaide.
I must be satisfied beyond reasonable doubt as to each and every element of the charges. I am so satisfied in relation to counts 1, 2, 3, 4, 5, 7 and 8.
In relation to count 6 I accept the submission of Mr Retalic that although the evidence adduced by the prosecution points to the sale of methylamphetamine and ecstasy from the premises there is no evidence apart from the presence of 2 LSD tabs well under the deeming provision for the purpose of Section 32 (3) of the Controlled Substances Act that the accused was selling LSD. Accordingly I find the accused not guilty in relation to count 6 but guilty of simple possession.
In relation to each of the other counts 1 to 5 and counts 7 and 8 I find the accused guilty.
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