R v Van Houten (No 2)
[2022] SADC 59
•11 May 2022
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v VAN HOUTEN (No 2)
Criminal Trial by Judge Alone
[2022] SADC 59
Reasons for the Verdicts of his Honour Judge Heffernan
11 May 2022
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
The accused was charged with one count of trafficking in methylamphetamine and one count of trafficking in 1,4-butanediol.
Verdict: Guilty of both counts.
Controlled Substances Act 1984 (SA) ss 4, 32(3) and 32(5)(b); Evidence Act 1929 (SA) s 34P(2)(b); R v Van Houten [2022] SADC 23, referred to.
R v VAN HOUTEN (No 2)
[2022] SADC 59
This matter proceeded before me by way of trial by judge alone on one count of trafficking in methylamphetamine and one count of trafficking in 1,4–butanediol, commonly referred to as Fantasy. The charges are particularised as follows:
First Count
Statement of Offence
Trafficking in a Controlled Drug. (Section 32(3) of the Controlled Substances Act, 1984).
Particulars of Offence
Ryan James Van Houten on the 21st day of November 2019 at McCracken, trafficked in a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact the substance was a controlled drug.
Second Count
Statement of Offence
Trafficking in a Controlled Drug. (Ibid).
Particulars of Offence
Ryan James Van Houten on the 21st day of November 2019 at McCracken, trafficked in a controlled drug, namely 1,4-butanediol, knowing or being reckless as to the fact the substance was a controlled drug.
I had earlier made rulings on an application to exclude the evidence of the search. I dismissed all grounds of that application.[1] The matter then proceeded as a ‘paper trial’, with the accused consenting to the tender of all relevant prosecution affidavits and exhibits without cross examination or making final submissions.
[1] [2022] SADC 23.
Having given close consideration to the evidence, I find the accused guilty of both counts. These are my reasons for doing so.
Elements of the offence and legal directions
The offence of Trafficking in a Controlled Drug contains three elements, each of which the prosecution must prove beyond reasonable doubt. They are as follows:
First, the substance is a controlled drug. In this case, there is no dispute that the substance the subject of Count 1 is methylamphetamine and the substance the subject of Count 2 is 1,4-butanediol.
Second, the accused knew that the substance in each Count was a controlled drug.
Third, the accused trafficked the drug. To ‘traffic’ in a controlled drug means to sell it or have possession of the drug intending to sell it or to take part in the process of the sale of the drug.[2] In this matter the prosecution alleged that the accused had possession of each of the substances intending to sell it.
[2] Controlled Substances Act 1984 s 4.
With respect to Count 2, if I find that the accused was in possession of the drug, there is a rebuttable presumption that he was in possession of it for the purpose of selling it,[3] a trafficable quantity of 1,4-butanediol being 50 grams. In this case the amount was 108 grams. That presumption does not apply in relation to Count 1, where the amount of methylamphetamine falls below a trafficable quantity.
[3] Controlled Substances Act 1984 s 32 (5)(b).
As this is a trial by judge alone, I am not required to direct myself on the law with as much particularity as I would in directing a jury. I have applied the following legal principles in reaching my verdicts.
The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The burden of proving the charge lies wholly upon the prosecution. The accused is not obliged to prove anything. Nothing short of proof beyond reasonable doubt is sufficient. It is not enough for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. Before the accused is convicted of the charged offence under consideration, I must be satisfied that the prosecution has proved beyond reasonable doubt each element of that offence. If I am satisfied that there is an explanation for the evidence consistent with the innocence of the accused, or if I am unsure where the truth lies, then I must find the accused not guilty. I am required to consider each Count separately upon the evidence relating to that Count. If at any stage in these reasons I use the terms 'proved' or 'established', or a similar expression relating to proof, then I shall always mean, proof beyond reasonable doubt. That is the standard to be applied.
In this trial, the accused elected not to give or call evidence. I have not used the accused’s silence against him, nor have I treated it as an admission of guilt. His silence cannot be used to fill any gaps in the prosecution evidence, nor does it make the prosecution evidence stronger or more persuasive. To use the accused's silence against him would deprive him of his right to remain silent. It is for the prosecution to prove beyond reasonable doubt its case on each charged offence.
Expert evidence from Detective Brevet Sergeant Matthew Hawgood was introduced by the prosecution as to the pricing, packaging, sale, use and other matters relating to both methylamphetamine and 1,4-butanediol. The usual rule is that a witness can only give evidence of facts and is not permitted to express any opinions or conclusions drawn from those facts. One exception to that rule is that a properly qualified expert can express an opinion on matters within his or her expertise. In assessing expert evidence, it is for me as the trier of fact to decide what evidence to accept and the weight to be placed upon the accepted evidence. As with any witness, the expert evidence can be accepted or rejected, and I am not to adopt that evidence simply because the witness is an expert in the relevant field. As with all other aspects of the evidence, the expertise of Detective Brevet Sergeant Hawgood was not challenged.
The prosecution case relies on both direct and circumstantial evidence. There are two steps in approaching a circumstantial evidence case: first, to consider the facts upon which the prosecution relied and decide what facts are established by the evidence; and second, to consider what inference or inferences can be drawn from the established facts. The latter step requires a consideration of the combined strength of the facts established by the evidence. There can only be a guilty verdict on a charge if the circumstances, viewed in their entirety, exclude any reasonable explanation consistent with the accused’s innocence. In other words, before an accused person can be found guilty of any offence based upon circumstantial evidence, the accused's guilt must be the only rational inference to be drawn from the facts or circumstances I accept are established on the evidence.
I have considered each charge separately. It is impermissible to reason that because the accused is guilty of one Count, he is necessarily guilty of the other. The evidence relevant to each Count must be considered separately. The charges do not rise and fall together although some of the evidence is relevant on both Counts.
Discreditable conduct evidence
The prosecution introduced evidence of discreditable conduct without objection. There were two categories to that evidence. Both categories were said to be admissible under s 34P(2)(b).
Firstly, it sought to rely on the conduct giving rise to Count 1 and Count 2 with respect to each other count. This was relied on to demonstrate that the accused was in the business of selling drugs and had a tendency or propensity to sell drugs as a part of that business. That fact, if accepted, was said to make it more likely that the defendant was involved in each separate charged offence and that his intention was to sell the drugs and that any innocent explanation for the evidence relating to the conduct in each count could be rejected.
The second category of discreditable conduct evidence was the alleged possession by the accused of:
1.Two plastic resealable bags each containing a small amount of cannabis;
2.Two press seal bags containing methylamphetamine weighing respectively .97 and .55 grams;[4]
3.An eye dropper with a white lid, containing liquid found in a compartment in the driver’s side door, and a plastic syringe;
4.A tick list located in the centre console of the vehicle;
5.Messages located on the accused’s mobile phone and both phone and Facebook records, which were said to be indicative of trafficking in illicit drugs and which had some correlation to the names written on the tick list.
[4] I have ignored these items as a part of category 2 as it seems to me that they are subsumed by category 1.
This evidence was said to be admissible as demonstrating that the defendant was in the business of dealing in drugs and that he had the tendency or propensity to sell drugs as part of that business. On the prosecution case, this makes it more likely that the defendant was involved in possession of the drugs charged in Counts 1 and 2, intending to sell them.
With respect to the first category, I have used the evidence of the accused’s possession of the 1,4-butanediol as an item of discreditable conduct evidence demonstrating that the accused was in the business of selling drugs and establishing that he had a propensity to sell drugs as part of that business, thus making it more likely that he was in possession of the drugs the subject of Count 1 and more likely that his intention was to sell the drugs rather than having an ‘innocent’ explanation for that possession, for example, possession for his own use.
With respect to the second category, I am satisfied that the items listed above, with the exception of items one and two, are admissible to demonstrate tendency or propensity on the part of the accused for the reasons asserted by the prosecution. I am satisfied that those items have a strong probative value with respect to the issues at trial.[5] With respect to item 1 listed at paragraph 17 above, I was satisfied that the evidence of the resealable bags containing a small amount of cannabis and located in the sunglasses case were admissible as demonstrating an interest in illicit drugs, making it less likely that the accused was not in possession of the 1,4-butanediol. I was satisfied that for this limited use, the probative value of the evidence substantially outweighed its’ prejudicial effect.
[5] Evidence Act 1929 s 34P(2)(b).
I have ignored item 2 of the second category in paragraph 17 above for the purposes of the second category as it was part of the first category.
The evidence
The uncontested facts of this matter can be simply stated. On 21 November 2019 the accused was driving a grey Holden Epicure sedan with the South Australian registration number S----BOC on Hindmarsh Road, McCracken on the way into Victor Harbor. He was the only person in the car. It was the day before the Schoolies festivities were to commence in Victor Harbor. Police had established a ‘drug transit route’ on Hindmarsh Road for the purpose of stopping cars at random to enable drug detection dogs to check drivers and vehicles for the presence of illicit substances. The accused was directed to stop and he did so. He got out of his car as directed by police and a drug detection dog placed in his vicinity indicated positively for the scent of illicit substances on the accused. The accused was searched and found not to have any drugs on his person. His car was searched and police located quantities of cannabis, methylamphetamine and 1,4-butanediol.
The methylamphetamine was found in two small press sealed bags inside a black sunglasses case which was located in the centre console of the vehicle. The bags contained .55 g and .97 g respectively of a crystalline substance which contained methylamphetamine (Count 1). The total weight of the substance in the bags was 1.52 g. A sandwich bag and a small plastic resealable bag both containing cannabis with a combined weight of less than 100 g were also found in the sunglasses case. The cannabis was not the subject of any charges. A 200 ml Avon Naturals Bodycare Shower Gel bottle stored in a compartment in the driver’s side door of the car was seized.[6] It contained 108 g of 1,4-butanediol (Count 2). A measuring syringe was also found in that compartment. In addition to the drugs, police seized a tick list from the centre console of the vehicle. It recorded nine names against which figures were indicated, ranging from $15-$2,100. The total of all amounts indicated on the tick list was $4,215.
[6] Affidavit of Aaron Doyle dated 28 January 2021, Annexure B, photograph 4.
A mobile phone was also seized from the car and the accused told police how to unlock it. Text messages were retrieved from the phone. The messages contained content consistent with drug trafficking. Some of the names of the recipients and senders of text messages were the same as the names on the tick list.
On his arrest, the accused declined to say anything about the drugs, tick list or text messages. He told police that he had borrowed the car for the day from ‘Todd’ who owned it. The vehicle was in fact registered to Helen Colligan, Todd’s mother. When interviewed by police at about 7 pm on the evening of his arrest, he was confronted with the allegation that the white crystalline substance and the shower gel bottle had been found in the car. His response was to tell police the car was not his and that he had borrowed it for the day.[7]
[7] Exhibit P5, Annexure A, p 9.
During the course of the record of interview it became apparent that the accused was on bail at the time of his arrest and that he had previously spent time in custody. I have ignored those matters and drawn no adverse inference with respect to the accused.
Mr Van Houten gave a somewhat rambling explanation as to his use of the car on the day of his arrest.[8] The effect of his evidence was that the car belonged to his mate ‘Todd’, whose surname he could not recall. He had used the car with Todd’s permission, picking it up that morning possibly at sometime between 8-10 am.[9] He told police he had the use of the car from that time until the point of his arrest however during that period both Todd and other people had used it. He did not identify the names of the other people who he claimed had used the vehicle. He said that he had driven to Elizabeth East where he had visited friends and then on to Salisbury Downs where he went to a sports store at the Hollywood Plaza. From that explanation, it can be distilled that he claimed to have had the vehicle from the morning of 21 November until his arrest but his possession and use of it were interrupted at some points by both Todd and the other undisclosed people.
[8] Ibid, pp 10-15.
[9] Ibid, p 12.
The accused was the subscriber to mobile phone number [---- --- 454] between 12 November 2019 and 21 November 2019. That phone number was attached to the Sim card within the phone seized from the vehicle driven by the accused. That phone is the phone to which the accused gave police access instructions. I am satisfied that phone belonged to the accused and was used by him. A search of the contents extracted from the phone revealed a series of text messages and Facebook messages. A selection of those messages has been summarised in the two tables prepared by Constable Courtney Gray.[10] It is not necessary for me to reproduce the contents of those tables. Based on the content of the messages and the evidence of Detective Hawgood I am satisfied that all of the messages referred to in the tables, both to and from the accused, are referring to the sale and or sourcing of illicit drugs.
[10] Exhibit P4, Annexure A ‘Texts’ and Annexure B ‘Facebook’.
I accept the evidence of Detective Brevet Sergeant Hawgood as to the pricing and packaging of methylamphetamine and 1,4-butanediol, the significance of tick lists, the physical nature and administration of those drugs and the slang terms commonly used for them by those involved with illicit substances. When the tables of text messages and Facebook messages are considered in light of that evidence, it is abundantly clear and I am satisfied, that the messages all refer to the sale and/or sourcing of illicit drugs including cannabis, methylamphetamine and 1,4-butanediol in the days leading up to the arrest of the accused. The messages demonstrate that the accused was primarily communicating with respect to selling drugs, not purchasing or otherwise sourcing drugs for himself.
I am also satisfied that the document depicted in photograph 13[11] is a tick list. I draw the inference and am satisfied that it records amounts owed by the persons named in the tick list for drugs purchased from the accused. I am satisfied that the tick list was in the possession of the accused at the time of his arrest and that it was his list. Those inferences are supported by the evidence of Detective Brevet Sergeant Hawgood but also the information extracted into annexures A, B, C and D of Exhibit P4. I am satisfied that with one exception, the names on the tick list correspond with names and details found in the contacts information on the accused’s phone and that the extracted call details also show phone call and Facebook call contact with various people with respect to whom the text and/or Facebook messages had been sent to and/or received from the accused’s phone.
[11] Exhibit P9, Annexure AD-03.
As to the value of the drugs in each count, the evidence of Detective Brevet Sergeant Hawgood was that 1,4-butanediol was at the relevant time worth about $1,000 to $1,500 per litre and $2 to $5 per millilitre on the illicit market.[12] The certificate of analysis[13] records that the weight of the 1,4-butanediol was 108 grams. There is no evidence before me as to whether the weight of the 1,4-butanediol measured in grams corresponds precisely to the volume of the drug measured in millilitres. If it does, the value of the liquid in the shower gel bottle was in the vicinity of $216 to $540 if sold in millilitre amounts. I have reasoned along the lines that 1,4-butanediol was described by Detective Brevet Sergeant Hawgood as being similar in consistency to water but slightly more viscous[14] and for that reason the weight is likely to closely reflect the volume. I find that the value of the 1,4-butanediol in the bottle was within the range identified above. The evidence of Detective Brevet Sergeant Hawgood was that at the relevant time the value of methylamphetamine on the illicit market was between $300 to $400 per gram and $600 to $750 for an 8 Ball (3.5 grams). On that basis the value of the half gram bag was in the vicinity of $150 to $200 and of the approximately gram bag between $300 to $400.
[12] Exhibit P21, p 9.
[13] Exhibit P23.
[14] Exhibit P21, p 8.
The affidavit of Todd Colligan contained a significant amount of material prejudicial to the accused. None of it was objected to, but I have ignored those matters of no probative value and matters where the probative value was exceeded by prejudice to the accused. I have used the evidence of Mr Colligan to establish the following facts which I find proven. The accused and Todd Colligan first met many years prior to 2019. They did not know each other well and had not seen each other or kept in contact for many years. About a week or so prior to the arrest of the accused, Mr Colligan saw him at a pub at Victor Harbor. The accused was upset and told Mr Colligan it was because he had recently broken up with his girlfriend. He asked if he could stay with Mr Colligan for a few nights and Mr Colligan agreed. The accused ended up staying at Mr Colligan’s house for five to six nights. He told Mr Colligan that his car was out of order and asked if he could use Mr Colligan’s car, to which Colligan agreed. When he first borrowed the car, his stated purpose was so that he could see his girlfriend. He was gone for several hours.
On the second day the accused was staying with him, Mr Colligan noticed a white and purple ‘shampoo’ bottle in the refrigerator. When he asked what it was, the accused told him not to drink it. He overheard the accused on the telephone telling someone that they had better refill the shampoo bottle. The shampoo bottle was gone from the refrigerator on the day the accused was arrested.
I draw the inference that it was the accused who placed the ‘shampoo bottle’ in Mr Colligan’s refrigerator. I draw the inference that in telling Mr Colligan not to drink it, the accused knew what was in the bottle and that he did not want it consumed because it was valuable and he intended to sell the contents, which he knew to be Fantasy. I infer that at the time the accused told Mr Colligan not to drink from the bottle that he knew it contained Fantasy because it would hardly be necessary to either store shower gel in the refrigerator or tell someone not to drink it. I infer that the bottle seized from the car at the time of the accused’s arrest was the bottle seen by Mr Colligan in his refrigerator. Two matters require comment. Firstly, the bottle seized by police was a shower gel bottle and not a shampoo bottle. I am satisfied that the bottle depicted in photograph 4 could easily have been mistaken by Mr Colligan and was in fact mistaken by him for a shampoo bottle.[15]
[15] Exhibit P9, Annexure AD-03.
Secondly, whilst the description of the colour of the bottle seen by Mr Colligan may not exactly fit the colour of the bottle depicted in photograph 4, it is close enough that I am not left with any doubt as to his evidence or the inferences I have drawn with respect to the bottle.
I infer that the accused was borrowing Mr Colligan’s car so that he could travel with drugs in a vehicle which was not registered to him; hence the ready explanation he provided to police: ‘it’s not my car’.
Findings
Count 1, methylamphetamine
I am satisfied beyond reasonable doubt that the substance to which this count relates was methylamphetamine, a controlled drug.
I am satisfied beyond reasonable doubt that the accused was in possession of the methylamphetamine contained in the two small resealable bags. He was the sole occupant of the car in which they were found. The drugs were found in a sunglasses case in the centre console of the vehicle. The tick list was also found in the car. The tick list is linked to the accused not just because of where it was located but because of the correlation between the names on the list and numerous messages on his phone. The tick list and the messages located on the phone also suggest that the accused was in the business of dealing in methylamphetamine and this supports an inference that he was in possession of the methylamphetamine found in the car as part of his stock in trade.
I am satisfied beyond reasonable doubt that the accused knew that the drug was methylamphetamine. There is a correlation between a number of the messages on his phone and terms commonly used to describe that drug by users and dealers. That supports an inference not simply that he was in the business of dealing in methylamphetamine and knew in general terms what that drug was but also that he was aware of the nature of the substance found by police. He also tested positive to a presumptive test for methylamphetamine when it was conducted at about the time of his arrest which was confirmed by his toxicology results.[16]
[16] Exhibit P24.
I am satisfied beyond reasonable doubt that the accused had possession of the methylamphetamine intending to sell it. I draw the inference that the tick list and the messages on the mobile phone demonstrate that the accused was in the business of dealing in methylamphetamine. His drug dealing was being conducted up until the time of his arrest. For example, he received a message at 4.06 pm on 21 November 2019, ‘I’m trying to get the coin hey, Not happy with stuff burnt so quick. I’m gonna have to replace it with something else which I can’t afford to do. I’m trying …’ and at 4.32 pm on the same day, ‘Can you meet me now bro? The dude wit da coin has just rocked up’. That inference is strengthened by his possession of the 1,4-butanediol. The fact that the weights of the two bags were respectively about half a gram and a gram, common weights for sale to users, also adds weight to the inference that he possessed the methylamphetamine intending to sell it. Considered as a whole, the evidence discounts as a reasonable possibility that there is some other explanation for his possession of that drug.
Each element having been proven beyond reasonable doubt, I find the accused guilty of Count 1.
Count 2, 1,4-butanediol
I am satisfied beyond reasonable doubt that the liquid the subject of this Count was 108 grams of 1,4-butanediol, a controlled drug.
I am satisfied beyond reasonable doubt that the accused knew the drug was 1,4-butanediol. I refer to the inferences I drew in this regard from the evidence of Mr Colligan. To those inferences can be added the messages on the accused’s phone which demonstrates that he was being offered a quantity of ‘juice’ on 19 November 2019, juice being a slang term for 1,4-butanediol.[17]
[17] Exhibit P4, Annexure A, p 2.
I am satisfied beyond reasonable that the accused was in possession of the 1,4-butanediol. In that regard I draw an inference as to possession from the location in which the drug was found, the matters to which I have referred in the evidence of Mr Colligan about the shower gel bottle being in the possession of the accused when it was in the refrigerator, the fact that he was in the business of dealing drugs, not exclusively methylamphetamine[18] and the message on his phone less than a week before his arrest referring to juice.
[18] The text messages suggest that the accused had in the past sold cannabis, and he was in possession of cannabis.
Possession having been established, the statutory presumption as to purpose applies and I find this element proven beyond reasonable doubt.
All three elements of the offence having been established beyond reasonable doubt, I find the accused guilty of Count 2.