R v Tomas - [2015] NSWDC 204

District Court

New South Wales

Medium Neutral Citation: R v Tomas [2015] NSWDC 204
Hearing dates: 9-10/02/2015
Decision date: 10 February 2015
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Count 2 - Not guilty

Catchwords: Criminal – trial by judge, supply prohibited drug
Legislation Cited: Criminal Procedure Act 1986
Drug Misuse and Trafficking Act 1985
Cases Cited: Fleming v The Queen (1998) 197 CLR 250
Zoneff v R [2000] HCA 28
Category: Sentence
Parties: Director of Public Prosecutions
Jeremy Tomas - Offender
Representation: Solicitors:
Director of Public Prosecutions
Legal Aid - Offender

File Number(s): 2013/270132

judgmENT

HIS HONOUR: Stand up Mr Tomas thanks very much. In respect of count 2 on the indictment, the charge alleging that you on 5 September 2013 at Darlinghurst in the State of New South Wales did supply a prohibited drug namely 5.36 grams of 3,4 - methylenedioxyamphetamine I find you not guilty. Take a seat you will remain in the dock because you pleaded guilty to count 1.
The accused yesterday was arraigned on two counts in respect of the current indictment. Count 1 alleged on 5 September 2013 at Darlinghurst in the State of New South Wales the accused did supply a prohibited drug namely, 1.46 grams of 3,4 - methylenedioxymethylamphetamine, to that charge he pleaded guilty. In respect of count 2, which alleged that he on 5 September 2013 at Darlinghurst in the State of New South Wales did supply a prohibited drug namely 5.36 grams of 3,4 - methylenedioxyamphetamine he pleaded not guilty.
The trial was a trial by Judge alone, the accused having made an application last week for the trial to be conducted by a Judge without a jury in accordance with the relevant provisions of the Criminal Procedure Act 1986. A trial by a Judge, as it is described in the relevant provisions, requires a trial Judge in giving judgment and delivering verdict, not just to state the principles of law which apply in the findings of facts that were made but also to expose what could be described as “the reasoning process,” justifying relevant findings of fact and ultimately the verdict or verdicts returned. All principles of law which are relevant are required to be applied and considered 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 the appropriate warnings or consequences of them and why a particular verdict has been reached, so it was held by the High Court in Fleming v The Queen (1998) 197 CLR 250.
In this matter, a criminal trial, the onus of proof rests with the prosecution in proving the guilt of the accused. The burden or onus rests upon the prosecution throughout the trial in respect of all matters requiring proof by the prosecution. The accused bears no onus of proof unless it is specifically required in the relevant legislation. 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 prosecution proving his guilt.
In relation to establishing guilt the Crown must prove the accused’s guilt beyond reasonable doubt. The words ‘beyond reasonable doubt’, are to given their ordinary everyday English meaning. The accused bears no onus in relation to matters requiring proof by the prosecution. Thus, if a reasonable doubt exists in relation matters requiring proof by the prosecution beyond reasonable doubt, then I must acquit the accused in respect of the count.
In relation to this matter of supplying a prohibited drug the Crown case is one brought pursuant to the combined operation of ss 25 and 29 Drug Misuse and Trafficking Act 1985. In this regard the Crown must prove firstly that the substance in question was a prohibited drug. Secondly, the Crown must prove that the accused possessed the relevant substance and thirdly, that the accused possessed that substance for the purposes of supply. I just pause for a moment to point out that in relation to the operation of the Drug Misuse and Trafficking Act 1985, 3,4 - methylenedioxyamphetamine is a relevant prohibited drug.
There is no issue in this case in relation to the heart of the Crown case, that is the alleged possession by the accused of a total 18 tablets or pills found in the glove box of the accused’s car after a police search, that the substance located was relevantly a prohibited drug. In that regard I have a certificate from the Division of Analytical Laboratories setting out the analyst’s findings in respect of various items that were found, not just the 18 tablets or pills at the heart of the Crown case, but also in respect of three identical as it is conceded tablets or pills in the possession of the accused at the time of his arrest. There is no need for me to dwell upon the meaning of “prohibited drug” for the purposes of this matter.
In relation to the issue of possession, there is no issue arising from any of the submissions about any legal issues in this trial. The prosecution must prove that the accused intentionally had the substance that is prohibited drug in his physical custody or control to the exclusion of any other person.
The Crown must prove that the accused intentionally had the substance in some place to which he had access and to which he could go to obtain physical custody or control to the exclusion of any other person. In this case the accused is said to have had custody of the item and control and thus had possession in the legal sense of the item because the item was found in the glove box of a car to which he had exclusive use. The motor vehicle was registered in the name of his mother but it is common ground in the case that the accused drove the motor vehicle on the night in question and obviously had access to that motor vehicle over a period of time before he was arrested.
It is of course the accused’s knowledge or belief which must be established, not what some person in the accused’s position may have known or believed however knowledge or belief maybe inferred or concluded from considering all of the surrounding circumstances providing any such inference or conclusion is a rational one and is not based on speculation or suspicion.
Because of the requirement that the prosecution must prove this matter beyond reasonable doubt, any inference or conclusion that the jury deciding a matter such as this or I sitting as a Judge alone can draw from the accused’s knowledge or belief must be the only rational, inference or conclusion open in the evidence. In this matter the Crown has referred to, in the context of establishing the issue of possession and possession for the purposes of supply, the third aspect of what the Crown must prove. The Court is required to consider the Crown case as the Crown has identified in its closing submission as being one depended upon circumstantial evidence.
I point out of course, as everyone knows, circumstantial evidence is not necessarily any less reliable than direct evidence such as the evidence of an eyewitness. In fact there are many categories of circumstantial evidence that are far more powerful than eyewitness versions, particularly with modern scientific methods of investigation.
Before an accused person can be found guilty of a charge or count on the basis of circumstantial evidence the Court must be satisfied that such a finding is not only reasonable but the only reasonable finding that could be made. If there is another finding which is reasonably open that there is another reasonable explanation which is inconsistent with guilt, it is the duty of the tribunal of fact to find the accused not guilty.
A reasonable explanation or possibility inconsistent with guilt is in fact a reasonable doubt. Of course when a Court considers or jury considers the circumstantial evidence the Court or jury must do so in the light of all the material in the case, including of course material placed before the Court by the accused. Bearing of course the accused bears no burden of proof in relation to the issue of guilt.
In considering any explanations, hypotheses or possibilities inconsistent with guilt they must be reasonable. A Court does not have to be satisfied or infer that a particular hypothesis or possibility that is reasonable inconsistent with guilt in fact occurred or existed before relying upon it, or before making allowance for the possibility of such an event. Such a possibility or a hypothesis where it arises in relation to a particular case need not be a proven hypothesis, it may simply be a reasonably possible hypothesis or possibility having regard to all the evidence, although this of course is not a case that turns upon hypotheses.
In relation to the issue of purposes of supply, the Crown does not have to prove that the accused actually supplied this particular drug to any particular person. The ordinary meaning of the word ‘supply’ is to “give or provide something to somebody,” in relation to the prohibited drug, the subject of count 2. There is no evidence of the accused having given or provided anything to anybody. Although there is evidence which I will refer to shortly of the accused shortly before his arrest of supplying a prohibited drug identical in appearance to the drug the subject of count 2 to a young woman under the careful gaze of the police whose conduct in this matter has been exemplary.
The law gives an extended meaning to the word ‘supply’ beyond the everyday meaning of the word. For the purposes of determining the offence the word ‘supply’ includes having a substance which is a prohibited drug for the purpose of giving it or providing it to another person. It means having a prohibited drug in a person’s possession for the purposes of supply.
The combination of s 25 and 29 of the Act provides that in relation to a particular prohibited drug if the quantity is greater than what is described as the minimum trafficable quantity the person is regarded if having possession of that drug having it for the purpose of supply by reason of possession. In that regard the relevant weight I am informed by the Crown, I have not undertaken any private research, but I accept it to be so because it is not the subject of dispute to establish a relevant trafficable quantity of the prohibited drug 3,4 methylenedioxyamphetamine is 0.75 grams. And as I have said earlier the particulars of the charge and the evidence reveals that the 18 tablets or pills amounted to 5.36 grams.
Thus, if established that the accused was in possession of those pills that particular prohibited drug, a conclusion can be reached that he was in possession for the purposes of supply. Unless he discharges the onus upon him that he had it in his possession for purposes other than supply and he has not sought to do so because the critical issue in the case is whether the accused possessed the prohibited drugs.
Turning now to the way in which the case has been conducted although I have referred to some aspects of that. The Crown called evidence from Senior Constable Wilkinson who was a very impressive witness. He read from his statement primarily and there was really no dispute with the evidence he gave and through him a number of items or exhibits were produced in furtherance of the Crown case. Those items that were produced included statements of other police officers who were involved in the arrest of the accused. Their statements largely, if I may say this kindly, duplicate most of what Senior Constable Macmillan observed and gave evidence about. Although there is some additional material in one of the statements about conversations with a young lady by the name of Hulme to which I will refer later.
There were photographs produced of the area of Darlinghurst where the accused was arrested, he being arrested near the intersection of Riley Street and Oxford Street. In an area that is described as “Oxford Square,” bearing in mind of course that the major square in Darlinghurst is referred to as Taylors Square.
This area of Darlinghurst is, as I understand it, known as “The Gaf”, (variously spelt as G-A-F or G-A-F-F) because this little area which is like a very small pedestrian mall revealed in the photographs available to me was close to a nightclub that existed at some point called, as I understand the evidence, “The Gaff”.
Photographs were also produced of the messages that were found on the phone of the accused and the phone of the young lady after the accused’s arrest for supplying her with five pills which the accused described as “ecstasy” in his interview with police and the photograph of the phone of the accused with those messages establishing a link between him and the young woman by means of a telecommunication by text message.
There is a photograph of the accused’s car. There was also produced to the Court a certificate of analysis to which I have earlier referred indicating that the 18 tablets found in the accused’s car in the glove box inside a silver jewellery bag weighed the quantity particularised in the indictment. The period is not of great moment but they were 15% pure. These tablets were described I hasten to say by Senior Constable Wilkinson as being light brown, speckled in appearance with a “Mitsubishi” logo and in relation to the three tablets that were found in the possession of the accused, they likewise as the photographic evidence demonstrates were light brown, speckled in an identical manner to the extent that tablets of this type speckled with some other substance can be identical also with a Mitsubishi logo.
The tablets found or pills found in the possession of Ms Hulme which the accused has supplied to her, the five tablets to which I earlier referred were identical in appearance and in that regard I point out I have photographs of the five tablets in the possession of the young woman when she was arrested, the three tablets found in the possession of the accused at the time of his arrest and the 18 tablets later found by the police search in the accused’s car.
There is also photographic evidence of the cash that was found in the accused’s pocket. This cash clearly was from the transaction he had negotiated with Ms Hulme under the eye of the police or the eyes of the police. It amounted to $125, two $50 notes, two $10 notes and one $5 note. Ms Hulme told the police that she paid $125 for five tablets. The accused himself told the police that that was the case and as I said, that cash was found separate and apart from the cash in the accused’s wallet.
I also have a photograph of the grey jewellery pouch but having mentioned that fact, a critical piece of evidence both from the defence and Crown cases was the electronic interview conducted with the accused, exhibit E which contains the detail of the interview of the accused and in the course of that interview video recorded as it was, one can see if not clearly the tablets, certainly the silver pouch in which the tablets were found by police.
There is some other evidence establishing the connection of the accused with the Vodafone service that was in the accused’s possession but I point out that to all intents and purposes so far as the Crown case was concerned, the bare detail of the Crown case such as to implicate the accused just putting aside some representations made by the accused in the electronic interview were not in dispute.
To turn now back to the facts as I find them to be, not necessarily having to refer to every factual detail, but hoping to cover the field for the purposes of this judgment. The police were conducting an operation in Oxford Square and the accused was observed while sitting with a young woman at a planter box nearby to the Exchange Hotel that the accused had been to some short time earlier, he was observed to drop into the possession of the woman some tablets which immediately aroused a suspicion of the police. She and he were arrested and separately spoken to. As I have earlier pointed out, she was in possession of the five pills or tablets to which I earlier referred. They were never tested I hasten to say and the evidence to link them to the three tablets later found in the accused’s possession plus the 18 tablets found in the accused’s car is entirely circumstantial but the circumstantial evidence indicating that these tablets were all from the same “batch” is completely overwhelming.
The accused when arrested admitted that he sold the young lady five tablets for $125. He was in possession of that sum of cash. He was also in possession of the three pills to which I earlier referred. They were found in a mint container amongst some mints and as I said earlier, there was no issue as to the identical character of the eight tablets then located. The accused had told the police that he had earlier consumed one tablet.
The accused co-operated with the police, of that there is no dispute. He provided the police with his mobile phone. He told the police that he had arrived at the location by himself and gave an indication that he had been as I said to a nearby nightclub or venue in the Exchange Hotel which is further down Oxford Street from Oxford Square. The Exchange Hotel under another name was once owned by a very famous Eastern Suburbs rugby league international called Andy Norville back in the 1960s but its character has changed over the last 40 years from a knockabout pub to a place of some celebrity and fame if that is the correct expression amongst a younger generation that now populate the Darlinghurst area.
The police asked the accused to take them to where his car was located and I have a Google map which shows the location of his car in Francis Lane. This is about 400 odd metres away from where the accused was arrested. There are several ways of walking there. One can walk down Riley Street into Francis Lane or cut back into Yurong Street and walk down there. The police to drive there, of course, if anyone is familiar with the area could not drive from Oxford Street down Riley Street because it is now blocked off by a set of stairs that form part of Oxford Square. They drove apparently down Oxford Street, turned right into College Street and eventually found themselves at Francis Lane. The accused identified the car that he was driving. As I said, there is a photograph of it. They searched the car. There is no evidence of any prevarication of the accused in the finding of the car or identifying it and as I have earlier said, in searching the car they found the silver jewellery pouch as it was described in the glove box which contained the 18 tablets to which I referred.
The count involving the supply to the young woman is based upon actual supply by the accused. The accused told the police initially that he was unaware of the presence of the 18 tablets in the glove box and he has never admitted that he was aware or had knowledge of the fact that the 18 tablets were in the glove box and then he was interviewed in the form of a record of interview to which I earlier referred. Some details of that have been referred to in the addresses and there is no need for me to go through that in chapter and verse although if I was directing a jury I would draw their attention to some details of it. Some aspects of it I will refer to in passing when I deal with the submissions and my consideration of the matter.
In that interview, it must be fairly said the accused readily admitted his ownership of the phone, his possession of the pills that were found on him, the fact that he supplied Ms Hulme with the five pills that he had been paid by her, $125, that he was the owner or the possessor of the car in which the prohibited drugs the subject of count 2 were found and that all the pills were in effect the “same”.
However, he denied knowledge of the presence of the tablets or pills found within the jewellery pouch in his motor vehicle. He talked about being a regular visitor to the locale at the Exchange Hotel called the “Hot Dam”. (As I understand it is spelt D-A-M). He said, however, that he had travelled to the hotel alone. He made no mention of any people with whom he was connected that may have been the source of the drugs. He claimed that he had purchased the pills that were actually found in his possession or had been sold to the young woman for $20 and that he was to make $5 profit from that. He, however, as I said, adamantly denied that he was aware that the pills were in his possession.

The answers he gave, not revealing his “true knowledge” of the matter as it emerged from his evidence relied upon by the prosecution as being untruths which reflect adversely upon his credibility. It has not been put to me that they are evidence of consciousness of guilt and I will deal with that matter shortly. An example of an untruth that he told was when asked to give an explanation as to how the pouch found its way into his car, he said and I am quoting from the transcript E1, “I’m still confused about that” and he put his hands up in the air to reflect his confusion.
I must confess the impression made to me of his interview was that he was ostensibly somewhat “coy” and it was the case that on occasions he was giving answers that in the context of his later evidence reflected some consideration by him of the need to be selective in providing information to the police which is most regrettable.
I pause for a moment to point out, of course, that Senior Constable Wilkinson and his colleague, or Senior Constable Aquino were not obliged to accept any version that he gave. If he had told “the whole truth” in accordance with the evidence he gave in this Court, they would have still charged him I would have imagined, left the matter for a Court or some prosecuting authority to make some better assessment. He gave some information about drug dealing as he understood it in the hotel from the perspective of a person who used drugs obviously from time to time.
The defence case involved the accused giving evidence. He revealed that the tablets in his possession and those obviously found in his car were from a friend called Jake Connor who had travelled to the eastern suburbs, in fact particularly to park the car in what is called East Sydney with another young man present. As I understood the spelling of the name was Zasch Laurie. The accused at this stage lived in the western suburbs of Sydney. He lived in a garage in the back of a house that his sister shared with two flatmates although Jake and Zasch, if I might call them by their first names, were not those flatmates.
He said that he had agreed to sell pills or tablets for Jake who had provided him with nine tablets, the nine tablets that he accounted for at the time of his initial arrest. He maintained in his evidence that he did not know that the pills that were found in the glove box were there but he understood that they would have been Jake’s. He said that Jake had not told him that he had placed the tablets in the glove box. His reason for not telling the police at the time of the interview the truth of the matter was that he was covering for his friend and he said he was also concerned about his safety because Jake associated with “bad people”.
He said he was aware that Jake had sold drugs, not only sold pills but sold other drugs. He said he had never sold pills for him before and he was very surprised to find the jewellery bag in his car when the police searched it. He could not recall initially how Ella Hulme may have got his phone number. It is clear on the evidence she sent him a text message that led to the sale of the five tablets. She obviously had his number but he gave an explanation for how it may have been that she had access to his mobile number.
I note, although not much point has been made of it by the parties but it is common ground as I understand the case that she did not know the accused before. He did not know her and there is some evidence to support the fact that they were unfamiliar with one another in that sense because on my observation of the photographs of the phones that were produced showing the relevant text messages, the phone of the accused had her number but not her name. Her mobile phone with the same messages on it had a name “Wog Ben Sen....” (sic) which may be consistent with the fact that the accused’s number had been given to her under a particular name but as I say, little turns upon that ultimately but certainly it would appear that neither person knew the other personally.
In cross-examination the accused agreed upon the fundamental of the Crown case. The Crown quite properly expertly put to him all the essential matters upon which the Crown relies to establish a circumstantial case including admitting the identical character of the various pills that were either in his possession or found in the car.
He denied, however, that he made up a story about Jake Connors but said that he was covering for Jake but now he realised it was not worth the trouble to use his words. He said that the time that he had agreed to sell the pills for profit at $5 each, his head was not in a “good space”. He agreed he had not told the police the whole truth. He was aware of the person Wog Ben referred to in the text message received from the young lady to whom he sold the tablets and he agreed that it would have been better for him to tell the truth but he could not do so.
He said that when he was released, in my notes he said this in cross examination, he went back to where he was living, Jake was there and immediately asked for the CD or the DVD of the interview the accused had in his possession. It seems to me from watching the interview the accused was picked up by his sister, presumably the custody manager granted him bail. I point out in passing and I will come back to this in a moment, the accused had no prior criminal convictions and he was 18 years and four or five months old so the grant of bail from a police officer would not be unexpected.
He said that Jake viewed the CD and said that the CD was “good stuff” and the accused “covered his back”. Whilst he again conceded he had been untruthful to the police in a number of respects, he said this was to cover up for Jake. He said ultimately that whilst he maintained some contact with Jake he was no longer in contact or friends with him although there is evidence that they have some sort of Facebook relationship. He said that he did not expect Jake to come along and give evidence and he had not told Jake that he was going to dob him in.
In re-examination he said again that his head space was not good, that he had been on anti-depressants for a number of years. He said that if he had known that the drugs were in the car, he would not have taken the police to search the car.
During the course of giving his evidence, the accused was distressed from time to time. He particularly at one stage required a break. His distress was genuine. Fact finders of course are required to assess matters objectively and not allow emotion or feelings of ill will, prejudice, advice or any other emotion to contaminate the fact finding.
I am aware of course of his limitations as a witness. He was barely articulate, sometimes he could not be heard. He is not a person who has given evidence before. I do not believe he has ever appeared in Court before as a party to proceedings. I could tell that he was under a lot of pressure but I particularly thought, for what it is worth although it is obviously not decisive because it may be accounted for for a range of reasons, his distress was genuine.
The learned Crown Prosecutor sought in cross-examination to suggest, as was her entitlement, that the accused had come up with a story and that it had elements of what could be called recent invention. I point out that in the cross examination of the mother, the matter not having been led by the defence, she gave evidence that she in fact knew the person or knew of the person Jake Connor although she had not met him. She certainly knew Zasch Lawrie personally and that was consistent with the accused’s evidence. And she said the day after he came home from the police station he told her “about Jake and Zasch”, she then “encouraged him” to go to the police but he went to see his solicitor and the solicitor said any matter to be raised should be taken through him.
His mother is a Department of Family and Community Services case worker and I take that by definition she has great responsibilities and is a person of otherwise good character. She gave evidence of the accused’s good character saying that he was an honest person and a compassionate person, but he was also a person who lacked confidence and he suffered a great deal of anxiety in his teenage years. He did not choose his friend well and she thought he went out with the wrong people.
It would appear that the accused’s mother and father separated in 2006 when the accused was about 11 years of age. Although he largely lived with his mother, from time to time stayed with his father, but clearly at the age of 18 years and four months living with his older sister, who was four years older, he was beyond the thrall, the immediate thrall of his mother and his father. She said the offending was out of character.
His father also gave evidence primarily as to character. He is an officer with the Westpac Bank. He gave evidence about the estrangement of himself from the boy’s mother and the fact that for various reasons obviously to do with custody arrangements he did not have as close a relationship with the accused as the mother. He said that the accused suffered from anxiety. He would take things personally and can be very defensive and kept to himself. He believed in his honesty. He thought he was an immature person and he expressed the view that his friends had taken advantage of his immaturity.
The evidence of the parents, in conjunction with the fact that the accused had no prior criminal convictions or charges, is available as evidence of good character. It would appear the prior good character of the accused before he was arrested is not disputed, although in fairness in the careful directions of counsel for the accused it was not a matter particular seized upon by the Crown but in fairness the evidence of good character is to be seen in the context of the admitted bad character by the accused which the Crown relies upon heavily as very significant contextual evidence and circumstantial evidence.
The accused had supplied prohibited drugs at the time of or about the time of the alleged commission of this offence and I bear that in mind. The law provides that the tribunal of fact is entitled to take evidence of an accused’s good character into account in his favour on the question of whether the prosecution has proved his guilt beyond reasonable doubt. The fact that the accused is a person of good character is relevant to the likelihood of him having committed the offence alleged. It can be taken into account in that respect. It also can be taken into account to support his credibility.
A court may reason in determining the facts of the case in a criminal trial that a person of good character is less likely to lie or give a false account either in giving evidence or in giving an account of the events in answer to questions asked by the police. Whether the court reasons in that way is a matter for the court that is the tribunal of fact to decide.
I pause to point out, of course, the accused admits either directly or indirectly that he in fact did not tell the truth or the whole truth at the time that he was interviewed by the police and I have factored that into my assessment of character evidence. Of course none of this means that good character provides the accused with some kind of defence. It is only one of the many factors I have to take into account in determining whether I am satisfied beyond reasonable doubt of the guilty of the accused. What weight I give to the fact that the accused is a person of good character, subject to the qualifications I have identified, is completely a matte for the tribunal of fact, that is me.
With regard to the addresses of the parties the Crown very helpfully went through the legal elements, and I have reiterated those matters and I accept what the Crown has put to me, and the Crown said that its case was “wholly circumstantial” and without going through all the detail of what the Crown has identified, because I will deal with that in my consideration, she referred to the very significant fact that the relevant prohibited drugs were found in the car that accused was in possession of, for which he had the keys, which he had driven to the place it was parked, to which he had taken the police and found in the glove box of the car, although this was not developed by the Crown. But, as a matter of common sense, I accept at least the inference to be drawn, or the conclusion that might be drawn, that items in the glove box may more readily be left there by the person who is responsible for the car than some casual visitor to the car.
The Crown relied upon heavily the identical character of the pills or tablets the subject of the charge to those found by admission of the accused in his possession or supplied to Ms Hulme, and of course it relied upon the context of the accused being caught cold, so to speak, supplying prohibited drugs to Mr Hulme and his possession of drugs or the tables containing drugs consistent with that that had been supplied to Ms Hulme in other circumstances.
The defence pointed to other circumstances, however, that it said were inconsistent with guilt, including the open and honest and cooperative way in which the accused admitted his guilt in relation to supply to Ms Hulme the drugs in his possession, his ownership of the car. He also pointed to the fact the accused’s denial of possession was consistent whatever be the change in some material aspects of his account so far as his knowledge of the presence of the drugs in his car he was consistent.
He voluntarily gave an interview. A young person, he might have been entitled with the information given to him by the Custody Manager to remain silent and he gave an exculpatory account albeit flawed by the lies that he told or the failure to provide relevant information.
Furthermore, whilst it is conceded that the drugs were identical, notwithstanding the character of the pleading, the evidence of the accused explains why the drugs may be identical but be in the glove box in one quantity, that is in the silver jewellery pouch and also in his custody, that is at least the three tablets found when he was arrested plus the five that he supplied to Ms Hulme, and identical to the tablets in the car why that would be inconsistent with guilt.
So far as his interview was concerned he pointed to the fact that he was very young, he was anxious, he was concerned, he was immature, he has reasons for not telling the truth as he explained in his evidence, he also explained the circumstances in which he may have received a text message out of the blue, so to speak, from someone he did not know.
It was essentially submitted that in the context of considering character evidence and his general personality there was no reason to outright reject his account. The matter turns it was submitted, or hinges, on the onus of proof and the need for the Crown to exclude rational explanations inconsistent with things.
I have taken all the submissions into account. I accept, of course, the analysis of the bare facts of the matter. The drugs in question were found in the accused’s car. He self-admittedly drove it to the place where it was parked and I have already dealt with the fact that he made various submissions against interest relevant to the charge although not admissions of themselves necessarily establishing his guilt, although the Crown would submit that they in fact do establish his guilty, particularly his admission that he drove there alone.
The Crown’s reliance upon his possession of the pills or tablets and his earlier possession of those that he supplied was a critical matter I have taken into account and I accept, as I have said earlier, that the pills and tablets are to all intents and purposes the same or identical.
I have given consideration, of course, to the context of this matter. He is a self-admitted supplier to Ms Hulme. I am mindful of the fact that he pleaded guilty to that count.
I have already dealt with in submissions the issue of the peculiarities of the pleadings so far as the identification of the relevant prohibited drug and I have already discussed that matter with counsel. It is not a real issue in the case, it is not an issue at all. The Crown would have been fully entitled to have particularised the prohibited drugs, the same in each count consistent with the analyst’s findings of the character of the prohibited drug in the three pills found in the possession of the accused and the 18 pills found in the glove box of the car being identical one with the other.
Also the Crown relies upon, although it was not the subject of specific detailed submission, the untruths told to the police concerning how he came to drive the car into town and his failure to identify who had supplied him with the drugs. At one point in the interview he said that he was not able to say they supplied him with the drugs whereas by his evidence in this Court we know him to know who that person was.
Of course there are some logical peculiarities about all of this, as I pointed out in the course of submissions. In the context of considering “lies” on the accused case the lies are to be found in his interview in a material sense although not relied upon as consciousness of guilt by the Crown but in the Crown’s case the Crown would say that his evidence in this Court was untruthful because when he had an opportunity to be interviewed he gave an account that, whilst it involved a denial of guilt, did not adequately explained the circumstances in which 18 pills with this prohibited drug could be found in his glove box.
This is a legitimate argument to raise for the Crown, putting aside the issues of logic that need to be addressed. On either version he has told untruths or failed to disclose full information and this is a matter relevant to the assessment of his credibility as a witness and a credibility of his denial of guilt in accordance with the High Court judgment of Zoneff. In any event it is not pressed as consciousness of guilt and I could not conclude it was evidence of consciousness of guilt.
It should be pointed out of course, whichever version one looks at, there is still the denial and consistent denial of knowledge of drugs in the glove box although it might be fairly said by reference to the strength of the Crown case that the denial of the accused in the interview is, at face value, far less convincing than the denial of guilt in his evidence because the interview does not offer any explanation as to how the drugs could mysteriously emerge in his glove box.
I have taken into account the significance of the exchange of text messages and the belief on the part of Ms Hulme that the accused whom she agreed to meet at the “Gaff” would supply her with drugs but the accused has given an explanation for that which is capable of explaining that meeting consistent with the accused doing a one off supply.
I note, however, as has already been pointed out and very strenuously stressed by his counsel, that the accused when arrested immediately admitted his guilt, immediately disclosed his possession of the other pills. He cooperated with the police and told the police where his car was. I mean I suppose the police could have wandered around Palmer Street and Riley Street and Yurong Street and Stanley Street and Oxford Street with the keys and tried to open up any Toyota or Kia or whatever it was. They came across with the use of the key but that might have taken them hours and hours and hours.
The accused did have in his possession a set of keys with a car key on it. That would not necessarily mean that he brought a car into town. If he told the police a lie about not having the car in town it would have been impenetrable. In my view it is at least highly probable that without his cooperation the police would never have found the car. The fence relies heavily on the accused’s “post offence conduct” and the way in which he within at least ten or 15 minutes of his arrest was directing the police straight to where the car was found.

The Crown relied upon the fact the accused was shaking when speaking to police but this is equally explained by the simple fact that he was under arrest for the first time and he knew that he was in a lot of trouble arising out of the admissions he had already made. If he was shaking from fear of disclosure one wonders why he would then go on to readily admit that his car was in town, if he in fact he had knowledge of the tablets in the car. A simple way to deal with that anxiety would be not to disclose that the car was parked where it was. As I say, it would not have been readily found.
Furthermore, he has given evidence of the circumstances in which he came to drive into town and which provides, if I may use the expression rather guardedly, “an innocent explanation” for how the tablets or pills may have come into his glove box without his knowledge.
I just pause for a moment, although it was never addressed by anybody to consider the fact, that if Jake is a drug supplier and he is going to a pub why he might leave the drugs in the glove box of the car and not take them with him if he was proposing to supply them during the night. It is not a matter that has been developed by either side and I suppose it is not for me to make up arguments for one or the other. I can see how it might be somewhat inconsistent with Jake’s possession of the drugs but he being a drug supplier that he would leave them behind in a car.
On the other hand, he may well have decided to check out the venue so to speak, even having previously been there if he had, just to see that it was not being closely watched. I note in that regard on the accused’s version of very cleverly passed to the accused tablets that he got the accused to sell without drawing attention to himself.
Another matter to take into account in this assessment in the context of the legal directions is the DNA examination sought by the accused’s counsel on instruction as evidence by exhibit 1 emerged from the evidence reveals that no identifiable DNA profile consistent with the accused is found. I appreciate of course it is an equivocal finding but it certainly does not established any connection with the accused and I note in the interview, when specifically asked by the police and properly so and I think cleverly so, whether there would be any explanation for his fingerprints or DNA being found on the silver pouch the accused said, no.
I note also when arrested the accused did not have any lists with him or any seemingly any other record apart from the actual supply to which he admits consistent with drug supply. He had no large sums of cash and as I say only one phone message has been brought to my attention.
With regard to the issue of his version now in court being a recent invention I note, as I said earlier, the mother’s cross-examination revealed quite spontaneously and quite honestly an account that was consistent with the account the accused gave, volunteered by him to his mother with whom he had an open relationship, in what was really the first opportunity one might have thought for him to explain himself, and I have already noted her advice to him.
I also note in relation to that aspect of the matter the accused’s mother and father provide evidence not just of his character but of his personality, as I earlier said, which might explain his conduct in some ways, particularly his reticence to reveal the identity of Jake Connor.
The accused is a slight young man, looks younger than his stated years. I note also a matter that I need to take into account relevant to the accused’s account, the evidence of Detective Wilkinson, Senior Constable Wilkinson’s assistance in confirming the existence of this person, that he is a mutual Facebook friend of the accused and that there would appear to be some intelligence relating to his activities about which the police officer cannot give any further information for reasons of public interest immunity which I undoubtedly accept.
Ultimately, taking all matters into account and hopefully, generally dealing with, or hopefully dealing in general terms with, various matters that have been raised, I have concluded that the version the accused has given on oath before this Court in conjunction with all the matters identified by the Crown raises or were submitted by his counsel at least the reasonable possibility, consistent with his initial denials of knowledge, that the prohibited drugs the subject of count 2 were in the glove box of his car in circumstances where he was not aware that they were there, that the drugs were not his, nor did he have any knowledge of their presence in the car at the time he took police to where the car was and either gave, or did not give, permission for the police to search his car.
I am mindful of the strength of the Crown argument about the identical character of the pills, bearing in mind of course what might on face value be the overwhelming strength of the Crown case that the pills were in a place, as I earlier said, over the accused ordinarily would have had exclusive control, but the accused’s explanation of his contact with Jake Connor provides at least a reasonable possibility or explanation for the pills in the glove box being, as I said, identical with the pills found in the possession of the accused.
Ultimately, when it is all boiled down to a simple proposition, to go back to a final submission of when the counsel for the accused the matter really turns, as all criminal cases must, on the significance of the onus of proof and the standard or proof and I cannot conclude beyond reasonable doubt on the totality of the evidence that the Crown has established a possession for the purposes of supply by the accused either by reason of his knowledge or even by reckless conduct on his part.
No issue of joint possession has been raised by the parties. I gave that some thought and I appreciate, on one view of it, if it was true that Jake was in the car with the accused issues of joint possession might fall for consideration. But on the accused’s evidence I am satisfied beyond reasonable doubt that no issue of joint possession needs to be addressed.
I am very grateful I must say to the great professionalism of the learned Crown prosecutor and the helpful assistance of Mr Evendon in the conduct of this case. It has been conducted in the most sensible and economic fashion.

Decision last updated: 21 September 2015

Medium Neutral Citation:	R v Tomas [2015] NSWDC 204
Hearing dates:	9-10/02/2015
Decision date:	10 February 2015
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Count 2 - Not guilty
Catchwords:	Criminal – trial by judge, supply prohibited drug
Legislation Cited:	Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985
Cases Cited:	Fleming v The Queen (1998) 197 CLR 250 Zoneff v R [2000] HCA 28
Category:	Sentence
Parties:	Director of Public Prosecutions Jeremy Tomas - Offender
Representation:	Solicitors: Director of Public Prosecutions Legal Aid - Offender
File Number(s):	2013/270132