R v Walters
[2017] ACTSC 77
•6 April 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Walters |
Citation: | [2017] ACTSC 77 |
Hearing Dates: | 6, 7, 8, 9 December 2016 and 15 February 2017 |
DecisionDate: | 6 April 2017 |
Before: | Rangiah J |
Decision: | Luke Anthony Walters is guilty of the offence that between 1 April 2015 and 30 May 2015 at Canberra in the Australian Capital Territory, he conspired with Izzak Jacob Silvester-Day to commit an offence, namely traffic in a controlled drug other than cannabis, namely Alpha-Pyrrolidinovalerophenone. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – trial by judge alone – conspiracy to traffic in a controlled drug – verdict |
Legislation Cited: | Crimes Act 1914 (Cth) s 3E Criminal Code 2002 (ACT) ss 48, 600, 602, 603, 603(7)CC Telecommunications (Interception and Access) Act 1979 (Cth) s 46 |
Cases Cited: | Bui v The Queen [2011] VSCA 404 DPP v Fattal [2013] VSCA 276 Tully v The Queen (2006) 230 CLR 234 |
Parties: | The Queen (Crown) Luke Anthony Walters (Defendant) |
Representation: | Counsel Mr K Lee (Crown) Mr J Lawton (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Accused) | |
File Number: | SCC 62 of 2013 |
Rangiah J:
The accused, Luke Anthony Walters, is charged with the following offence:
THAT between 1 April 2015 and 30 May 2015 at Canberra in the Australian Capital Territory LUKE ANTHONY WALTERS conspired with Izzak Jacob Silvester-Day to commit an offence, namely traffic in a controlled drug other than cannabis, namely Alpha-Pyrrolidinovalerophenone.
The accused has pleaded not guilty. He has made an election under s 68B of the Supreme Court Act 1933 (ACT) for trial by judge alone.
The case for the Crown and the case for the defence
The Crown led oral evidence from five witnesses. The Crown, with the consent of the accused, also tendered a number of documents and photographs and a “list of admissions”. The Crown’s case depends heavily upon the credibility of evidence given by two witnesses, Izzak Silvester-Day and Tamara Sabol, implicating the accused.
Silvester-Day has previously pleaded guilty to a charge that he conspired with the accused to traffic in alpha-Pyrrolidinovalerophenone (“a-PVP”). In this matter, the Crown alleges that Silvester-Day placed an order for a-PVP from a website in China at the request of the accused. That order failed. The Crown alleges that the accused then asked Silvester-Day to place a second order for a larger quantity of a-PVP. The accused is alleged to have provided the money for each order. The second order was successful and a package containing a-PVP was sent by mail from China to Silvester-Day’s address. The a-PVP was detected by customs officers in Australia and the drug was replaced with another substance and the package delivered. The Australian Federal Police (“AFP”) then raided Silvester-Day’s apartment, finding both the package and the accused there. The Crown alleges that the accused and Silvester-Day entered an agreement to traffic in the drug.
The accused gave evidence. He denied any involvement with the a-PVP. He denied asking Silvester-Day to order it and denied paying for it. He said Silvester-Day had offered to buy him a birthday present and he was only at Silvester-Day’s apartment to pick up the birthday present when the police arrived. The defence submits that the evidence of Silvester-Day and Sabol implicating the accused is not credible or reliable and, conversely, the evidence of the accused should be accepted.
The primary case for the defence is that the Crown has failed to prove that there was any agreement at all between the accused and Silvester-Day involving a-PVP. The defence submits, alternatively, that the evidence demonstrates only that the accused and Silvester-day entered an agreement to import the drug (which was not an offence), not an agreement to traffic the drug. The defence submits that, accordingly, the Crown has failed to prove its case to the requisite standard.
Admissions made by the accused
The admissions made by the accused are as follows[1].
Between 1 April 2015 and 30 May 2015 the accused and Silvester-Day knew each other. Tamara Sabol was the girlfriend of Silvester-Day. Jack Taylor was a friend of Silvester-Day.
a-PVP is a controlled drug pursuant to the Criminal Code Regulation 2005 (ACT), Schedule 1 (part 1.2 - Prohibited Substances). It is a synthetic drug known as “flakka”.
10. Between 1 April 2015 and 30 May 2015, “Crystal Rows” was a Chinese website which sold chemicals, including a-PVP. Crystal Rows shipped chemicals from China to Australia.
11. On 10 April 2015, Silvester-Day placed an order to purchase between five to ten grams of a-PVP on the Crystal Rows website which generated order number 4194. The order was to be paid for with $300 cash.
12. A Western Union Money transfer was completed that day in the sum of $272.53 to the recipient, Gong Jian, in China. The sender’s details recorded on the Western Union transfer were: “Izzak Day of [redacted for legal reasons]” and a contact number of [redacted for legal reasons]. These were not Silvester-Day’s correct details. This money transfer generated a money transfer control number (MTCN) of [redacted for legal reasons].
13. On 30 April 2015, Silvester-Day emailed Crystal Rows to enquire about the status of his order. Using his email address [redacted for legal reasons] Silvester-Day sent the following message:
hi mate just wondering where my order is for:
[redacted for legal reasons]
2615
MCTN: [redacted for legal reasons]
This order was placed on 10/4/2015, and on this site you say that orders take 5-10 working days/please contact me asap
Regards
Izzak
14. On 5 May 2015, Silvester-Day confirmed that the address for order 4194 was [redacted for legal reasons]. In the following days, Silvester-Day exchanged emails with Crystal Rows with respect to problems with the Western Union money transfer and the inability of Crystal Rows to receive the transferred funds. The Western Union transfer was unsuccessful and no shipment was delivered.
15. On 7 May 2015, Silvester-Day placed a second order to purchase one kilogram of a-PVP on the Crystal Rows website, which generated order number 4620. This time Silvester-Day provided his details as Izzak Silvester of [redacted for legal reasons], with an email address of [redacted for legal reasons] and a telephone number of [redacted for legal reasons]. The contact details were correct and current at the time of the order.
16. Silvester-Day and Taylor went to the Australia Post retail shop at Belconnen Westfield Shopping Centre. At about 12:41 pm, Silvester-Day sought a refund for the failed Western Union money transfer MTCN: [redacted for legal reasons] and he was refunded $272.53. Silvester-Day then provided the refunded amount and additional money to Taylor, and assisted Taylor in filling out a Western Union money transfer. Taylor then sent a Western Union money transfer in the sum of $3,113.34 to the recipient, Huan Deng, in China. The money transfer generated a Western Union MTCN of [redacted for legal reasons]. This was payment for the Crystal Rows order 4620.
17. In the following days, Silvester-Day again exchanged emails with Crystal Rows with respect to difficulties experienced by Crystal Rows in receiving the Western Union transfer. The Western Union transfer was unsuccessful.
18. In an email exchange on 13 May 2015, Silvester-Day and Crystal Rows agreed to complete the transaction by bank transfer. Crystal Rows sent through its China Merchants Bank account number [redacted for legal reasons] in an email.
19. On or around 14 May 2015, Silvester-Day called Taylor, who was in Moruya in NSW. Silvester-Day arranged for Taylor to obtain a refund of the failed Western Union money transfer MTCN: [redacted for legal reasons] at the Moruya Post Office as the transfer had been made using his ID. Silvester-Day asked Taylor to deposit the refunded money into Silvester-Day’s Commonwealth Bank Account [redacted for legal reasons].
20. On 14 May 2015, Taylor received a refund for MTCN [redacted for legal reasons] of $3,113.34 at the Moruya Post Office, and deposited $3,131.65 into Silvester-Day’s bank account at the Commonwealth Bank in Moruya. Silvester-Day attended the Commonwealth Bank at the Westfield Shopping Centre in Belconnen. He sent an international money transfer from his bank account in the amount of $3,170.70, which converted to US$2,450.00, to the recipient, Jian Gongjian with a China Merchant Bank account number of [redacted for legal reasons]. The reference number for this transaction was C134509862245. Silvester-Day recorded the description for this transaction as “Protein Powder”.
21. On 19 May 2015, Crystal Rows emailed Silvester-Day, advising they had received funds into their bank account and that the product would be shipped. On 24 May 2015, Crystal Rows emailed Silvester-Day, providing him with a tracking number of EA141238129CN.
22. On 26 May 2015, consignment EA141238129CN arrived via airfreight from China to the Sydney Gateway Facility at 21 Factory Street, Granville in NSW. The consignment was addressed to consignee Izzak Silvester at [redacted for legal reasons], with a contact number of [redacted for legal reasons]. The consignor was recorded as Jack Chen, Shanghai HuiYang Industry Co. Ltd, [redacted for legal reasons], with phone number [redacted for legal reasons]. The description of the consignment’s contents was recorded as epoxy resin.
23. The Australian Customs and Border Protection Service examined the consignment and found six packages. These packages were x-rayed. Two packages showed different contents to the other four packages. All six packages were cut open and revealed crystals wrapped in bubble wrap.
24. Three samples were taken and tested. A sample, which was taken from a package of the set of four packages, gave a result for resin. Two samples, taken from each package of the set of two packages, gave a presumptive positive result for the presence of a-PVP.
25. The AFP were called. a-PVP was a controlled drug within the ACT at the time, but was not a border controlled drug.
26. On 27 May 2015, the AFP collected the consignment from the ACBPS and transported it to the AFP Forensics Services in Weston, ACT. AFP Forensics examined the two packages which tested positive for a-PVP and confirmed those packages contained a-PVP. The net weight of the a-PVP was 997.3g. A sample of the a-PVP was sent to the National Measurement Institute (‘NMI’). The results from the NMI indicated the sample had a purity of 78% a-PVP. A trafficable quantity of a-PVP is 6 g as defined in the Criminal Code Regulation 2005 (ACT).
27. Police enquiries relating to the delivery details showed that [redacted for legal reasons] was the residence of Sabol, Silvester’s girlfriend. The number [redacted for legal reasons] was an Optus Mobile service registered to Silvester-Day.
28. On 28 May 2015, a Controlled Operations Authority was issued to the AFP, allowing police to deliver a substituted consignment to Silvester-Day at [redacted for legal reasons]. As a result, substitute packages were prepared and placed in the original consignment.
29. On 29 May 2015, a telecommunications service warrant pursuant to s 46 of the Telecommunications (Interception and Access) Act 1979 (Cth) was issued by a Federal Circuit Court judge for the mobile phone service of Silvester-Day [redacted for legal reasons]. On the same day, a surveillance device warrant pursuant to s 16 of the Surveillance Devices Act 2004 (Cth) was issued by the Federal Circuit Court judge allowing for a tracking and listening device to be placed inside the consignment.
30. On 29 May 2015, a search warrant pursuant to s 3E of the Crimes Act 1914 (Cth) was issued by a Magistrate for [redacted for legal reasons], including any electronic devices or mobile phones within the premises.
31. At about 12:38 pm on 30 May 2015, police attended the unit complex at [redacted for legal reasons] in the guise of Australia Post workers to deliver the substituted consignment. A female person, who identified herself as Sabol, signed for and took possession of the consignment.
32. A short time later, there were text messages exchanged between Sabol and Silvester-Day. Sabol informed Silvester-Day about the arrival of the consignment.
33. At about 6:35 pm, police executed the search warrant on the premises. The accused, Silvester-Day and Sabol were present during the search. After the conclusion of the search, the accused was allowed to leave the residence, and Silvester-Day and Sabol were arrested and transported to City Police Station.
34. The following items were located:
(a)the six packages, two of which contained the a-PVP, inside a Coles shopping bag;
(b)Western Union paperwork with [redacted for legal reasons];
(c)Western Union paperwork with [redacted for legal reasons];
(d)the original cardboard box in which the consignment was delivered;
(e)a Samsung mobile phone GT-I9100 in the possession of the accused; and
(f)a Samsung mobile phone GT-I9500 in the possession of the accused.
The evidence of Izzak Silvester-Day
35. Silvester-Day’s evidence took a tortuous course. The Crown’s opening was to the effect that the accused had asked Silvester-Day to place the orders for the a-PVP and had provided the money for him to do so[2]. Initially, Silvester-Day’s evidence in chief was quite inconsistent with the opening.
36. Silvester-Day gave evidence that the accused had visited his apartment several times. There were two or three times when the accused came around while Sabol was also there. The accused came up to use his laptop on one occasion, and they looked up YouTube videos and gym stuff. The accused asked him to make an order online [3].
37. However, contrary to the opening, Silvester-Day’s evidence was that he could not remember what the accused had asked him to order online[4]. He said he could not remember the name of the substance he ordered from the Crystal Rows website, but said that it was a research drug that he had ordered for research purposes[5]. The money he used to pay for the substance was deposited into his bank account. It was not his money, but he could not recall who provided the money[6]. Silvester-Day gave evidence that he had placed a second order on the Crystal Rows website for approximately 1kg of a-PVP at a cost of $US2,400. When asked by the prosecutor how he got that amount of money, he said that he could not remember. He said that someone had suggested that he place the order, but was unable to say who that was[7].
38. Silvester-Day gave evidence that the accused came to his apartment shortly before the police arrived on 30 May 2015[8]. He had sent a text message to the accused’s phone saying, “At work, bro. Protein is in. Come around tonight”, with a winking face emoticon. He later sent another text to the accused’s phone saying, “Huge surprise for you brother. ha ha”[9]. He also telephoned the accused. In that conversation, Silvester-Day told the accused that the “protein” had arrived. The accused was to come to Silvester-Day’s apartment to pick it up. Silvester-Day gave evidence that by “protein” he meant a “whey isolate” that gym users take for recovery and repair[10]. He said that the accused arrived at his apartment and was there for about 30 seconds before the police knocked on the door. He could not recall the conversation he had with the accused[11].
39. Faced with Silvester-Day’s evidence, the prosecutor applied under s 38(1) of the Evidence Act 2011 (ACT) for leave to question the witness as though the Crown was cross-examining the witness. The prosecutor also applied under s 38(3) for leave to question the witness about matters relevant only to the witness’ credibility. The applications were based, in particular, upon inconsistencies between Silvester-Day’s evidence and statements he had made in the course of a record of interview to police about the accused’s involvement in the purchase of the a-PVP. The applications were not opposed and I granted the leave sought[12].
40. Upon further questioning by the prosecutor, Silvester-Day’s evidence changed substantially. He asserted that his memory of relevant events had improved as a result of reading the transcript of his record of interview with the police. He said that “after reading this recorded interview I’ve remembered everything correctly”[13].
41. Silvester-Day said that the accused had asked him to purchase a-PVP for the accused. The accused had said he did not know how to use a laptop very well and did not know how to make orders and stuff like that. At that stage, Silvester-Day thought that the drug was legal, but he later found out that it was illegal. The accused had come to his apartment for the purpose of ordering the drug. They looked at the product online and decided to order it. At that stage the accused said he wanted it for personal use, training for the gym[14].
42. Silvester-Day said the accused attended the post office with him and gave him the $272 to place the first order. He said that the accused gave him the address, [redacted for legal reasons] to use as the delivery address[15].
43. Silvester-Day said there were problems with the person who operated the website accessing the money, and he informed the accused of the problems. Silvester-Day gave evidence that the accused “just decided to up the order and try again”. The accused gave him approximately $3,000 for the second order. The cash was given to him in the accused’s car outside the Belconnen library[16]. Taylor agreed to the Western Union money transfer being placed in his name because Silvester-Day had forgotten his ID[17].
44. Silvester-Day gave evidence that the accused said that he had asked his friends about the value of the a-PVP, what it does and who would buy it. The accused said he was going to turn the a-PVP into “flakka” and that he intended to sell it. The accused spoke about “cooking it” and said he needed to make it into a drug. Silvester-Day indicated that that conversation happened between placing the second order and receiving the a-PVP. The conversation took place very close to the “receiving date”[18].
45. When Silvester-Day pleaded guilty to a charge of conspiracy to traffic a controlled drug, a statement of facts had been placed before the Court. One of the facts recorded was that Silvester-Day and Luke Anthony Walters entered into an agreement to purchase a drug called “Alpha-PVP”. Silvester-Day accepted that the fact recorded was the truth[19].
46. The statement of facts also recorded that, “The defendant entered into the agreement with the understanding that he would facilitate the purchase of the substance knowing that the co-offender would sell the substance to various buyers”. Silvester-Day accepted that the co-offender was the accused and the fact stated was the truth[20].
47. The statement of facts also recorded that before the police entered the unit, the accused was discussing purchasing a ceramic baking dish to use to mix up the a-PVP with other substances to sell to people he had lined up. Silvester-Day accepted that was the truth. Silvester-Day said that the accused also talked about the product and what he was going to do with the money[21].
48. Earlier in his evidence, Silvester-Day accepted that the accused told him to use the word “protein” for a-PVP. He said that in his text to the accused saying “Protein is in”, he was talking about the a-PVP. When it was suggested that there was no protein in the house for the accused to collect, Silvester-Day said that the accused was actually getting real protein as well. Silvester-Day accepted that in his text to the accused saying “Come around and get it” with a winking face, he was inviting the accused to come around and collect the a-PVP[22].
49. Earlier in his evidence, Silvester-Day was asked about a recorded conversation between himself and Sabol on the day the a-PVP was delivered. In that conversation he referred to “Luke” as a person who was going to sell the drug.
50. Under cross-examination by counsel for the accused, Silvester-Day was asked about his involvement in facilitating the supply of illegal steroids. Initially he gave evidence that[23]:
No. I would – I could direct people where to purchase steroids from. I have never obtained steroids for myself or other people.
51. I gave Silvester-Day a warning that he had a right to object to giving evidence on a particular matter or giving particular evidence on the ground that the evidence may tend to prove that he had committed an offence against or arising under an Australian law[24]. He then objected to answering certain questions. He indicated that he was willing to give evidence, without being required to give evidence. He was informed that a certificate would be provided pursuant to s 128(7) of the Evidence Act[25].
52. Silvester-Day was then cross-examined about his involvement in the sale or supply of illegal steroids. He admitted that he had arranged for steroids to be picked up, dropped off and paid for. He denied selling steroids himself. He described himself as “the one in the middle” who facilitated the sale of steroids[26].
53. Under cross-examination, Silvester-Day admitted to being involved in a number of transactions where he facilitated or discussed facilitating the supply of illegal steroids. Silvester-Day’s attention was drawn to a series of text messages between him and “Bradley Peasant”. In some of those text messages, Silvester-Day discussed purchasing steroids from Peasant for $140 or $150 and supplying the steroid to someone else for $220. Later, Silvester-Day referred to an “easy 70”. Silvester-Day was asked whether that message suggested that he made $70 from the sale. His answer was[27]:
Sure. It implies it, but at no point have I ever made money off a sale. I would have just been telling him [Peasant] to say “Look, man. You could ask for 220 and probably get it”.
54. Silvester-Day continued to deny that he had ever made any money from the sale of steroids despite accepting that, “I’ve just stated here in the text message that I charged this guy 220”. When asked whether he was indicating the profit that he had made, Silvester-Day said, “Just speaking out of bravado, I guess, rather than…”. Silvester-Day later said, “So for all we know, I could have been lying in this text message”. When it was suggested that he could instead be lying in his evidence, Silvester-Day’s answer was “No”[28].
55. Later in the cross-examination, Silvester-Day was asked about discrepancies between his evidence and statements he made to police while they were executing the search warrant at his apartment. He told the police that he thought the a-PVP was “completely legal”. In earlier evidence, he said that he had discovered that the drug was illegal a day or two before the police raided. He admitted that he had lied to the police[29].
56. Silvester-Day accepted that when he was taken to the police station he was told that he and Sabol faced a charge of conspiracy for which the maximum penalty was life imprisonment. He accepted that he was worried, but more on behalf of Sabol rather than himself. He was asked whether that was when he decided to implicate the accused in the matter. He answered[30]:
I didn’t decide to implicate Mr Walters in the matter. I just decided to tell the truth.
57. Silvester-Day denied that he had been told by police officers that it would be in his interests to cooperate in the record of interview[31].
58. Silvester-Day accepted that a police officer had told him that Sabol could be charged as a co-conspirator. Silvester-Day admitted that he told police[32]:
Um, the other 5 percent is – the reason I’m here is, you know, I don’t want to spend time in prison. I mean, I probably will, you know, but anything less than life is great.
59. Silvester-Day accepted that he had sent the accused a text message on 22 May 2015 saying, “Happy birthday, brother. Hope you have a mad day. Get stuffed full of foods and presents”.
60. In a response to the suggestion that he had told the accused in April 2015 that he would get the accused a birthday present, Silvester-Day said “No”. When pressed, he said “It could have happened, I don’t recall”. He said he had no recollection of telling the accused that he was going to get him “something gym related”. When asked whether it was possible that his answer was, “possible, but no”[33].
61. It was suggested to Silvester-Day that he had asked the accused where he could send the present, and that the accused had indicated that he did not like giving out his address, but said that he would give Silvester-Day a friend’s address and that it could be posted there. The accused then gave Silvester-Day the address [redacted for legal reasons]. Silvester-Day’s response was that he could not recall any such conversation, but that it could possibly have happened[34]. In re-examination, he explained that he meant “Anything’s possible”[35].
62. Silvester-Day recalled that around this time the accused was purchasing a Ford Falcon and fixing it up[36].
63. It was suggested to Silvester-Day that the accused had never entered the post office with him. He disagreed with that suggestion. It was suggested that the accused had never given Silvester-Day cash for either the first or second money orders. Silvester-Day maintained that the accused had given him the money[37].
64. It was suggested to Silvester-Day that he implicated the accused in the matter in order to shift the blame to the accused. Silvester-Day denied the suggestion[38].
65. Silvester-Day did not recall tagging the accused in an article about flakka on a Facebook post[39].
66. Silvester-Day was asked the following questions and gave the following answers[40]:
Q: There is also no fear from you of repercussions if you implicate Mr Walters anyway, is there?
A: If I implicate Luke Walters all I’m getting is justice. I’m sitting here with a conspiracy to traffic drugs title to my name and he’s going to walk away scot-free.
Q: So you want to do everything you can to make sure he doesn’t walk away scot-free?
A: I’m just trying to make it that the other party involved in a crime that I committed is found guilty.
Q:So you will do everything you can to make sure he’s found guilty?
A:I will tell the truth.
Q:And not be evasive?
A:I was evasive because – I don’t know if I’m allowed to say this, but prior to walking in here yesterday I received a phone call from another party saying, “Please do not give evidence against Luke Walters. There are some serious heavies that will come round to your house and bash you”. And I have text messages and a record of phone call that have been chased up by the police as we are speaking now”.
Q:So you’re suggesting that someone else has threatened you?
A:Yeah.
67. Counsel for the accused had a recording of a discussion between Silvester-Day and another person played. That conversation occurred after Silvester-Day’s arrest. Silvester-Day accepted that the recording demonstrated that he was then still facilitating the supply of steroids. Silvester-Day had also suggested that the other person get an application called “Wickr”. He accepted that by then he had found out from the police that they could not access messages on Wickr[41].
68. Silvester-Day confirmed that he had been sentenced to a period of 12 months imprisonment to be served by way of an intensive correction order and ordered to do 104 hours of community service. He had received a discount of three months imprisonment because Silvester-Day was prepared to give evidence against the accused[42].
The evidence of Tamara Sabol
69. Sabol is Silvester-Day’s girlfriend. She lived with Silvester-Day at an apartment at [redacted for legal reasons]. Sabol gave evidence that there were three occasions when the accused visited her apartment whilst she was present.
70. The first time was in early March 2015. Silvester-Day and the accused were looking online at some type of substance using Silvester-Day’s laptop. She heard bits and pieces of their conversation. She heard the accused saying that they were going to order something in. The order was to be made from a website called Crystal Rows or Crystal Road, and it was coming from China. The order was going to an address which she thought was [redacted for legal reasons]. That address was written down on a piece of paper that the accused gave to Silvester-Day[43].
71. Sabol recalled some email correspondence concerning difficulties that the supplier of the substance had in accessing the money via a Western Union transfer. At that time the accused visited the apartment again. The accused was yelling and was angry about the supplier. The accused said something about selling the substance and that he had people lined up[44].
72. Sabol said that the third time the accused attended the apartment while she was there was on the day when the package arrived. The package was addressed to Silvester-Day, but she understood that the package was intended for the accused.
73. The AFP had hidden a listening device in the package. Conversations between Sabol and Silvester-Day were recorded through that listening device and a transcript of those conversations was placed into evidence. In those conversations, Sabol referred to “he” on a number of occasions. For example, she said “When he’s coming to get it. I want it out of the house now.” Later she said “No, he’s coming up here.” She said “He’s taking it and leaving.” Sabol gave evidence that the “he” that she was referring to was the accused[45].
74. By the time the accused arrived at the apartment, the six parcels in the package had been transferred into a Coles bag because the box was falling apart. The box, which contained the listening device, was placed into a bin. As a result, there is no recording of the conversation between Sabol and Silvester-Day and the accused[46].
75. Sabol’s evidence was that the accused sat down in a lounge chair. The Coles bag was in front of the accused, but some distance away from him. Sabol’s evidence was that the accused was talking about mixing the substance in the package with another drug to then sell. Silvester-Day and the accused talked about how there was a lot of the substance in the package and that they weren’t too sure how that had happened. The accused talked about cooking up the drug that had arrived in the package with other drugs to make something. The accused said he had people lined up already for the product and that he was going to mix it in cooking dishes or baking dishes from K-Mart[47].
76. Sabol said that around this time Silvester-Day had no savings and had no credit card[48].
77. Sabol was cross-examined about whether her employment had been terminated in October 2015 because she had acted dishonestly. She denied that suggestion[49].
78. Sabol was pressed with the suggestion that when she was interviewed by police after being arrested she had told police things that didn’t happen in order to protect Silvester-Day. She denied that suggestion[50].
79. It was suggested to Sabol that the first time she ever mentioned the accused’s second visit to the apartment was when she was giving her evidence. She disagreed. The Crown then conceded that Sabol had not mentioned the accused’s second visit when she spoke to the prosecutor in the week prior to the trial[51]. However, in re-examination she was taken to portions of her interview with the police and she indicated those portions where she had told the police about the accused’s second visit[52].
The evidence of Jack Taylor
80. Taylor gave evidence that in May 2015, Silvester-Day showed him a roll of money. Silvester-Day said that he needed to send it off at the post office for a new research chemical that he was told to buy. Taylor said[53]:
I can’t remember exactly because it was like a year, nine months ago – but he said he met this guy at the gym and this guy was telling him he had to go buy it – like threatening or something – I don’t know the exact details. I didn’t really want to know at the time. Like I was like “leave me out of it” sort of thing.
81. Taylor was asked “What did he tell you that the guy wanted to do with the drug?” His answer was[54]:
Oh - Izzak said it was a drug. You know people are going to buy it and use it. Like he didn’t mention any details. But I am assuming…
82. Taylor said that he filled in a Western Union transfer form in his name because Silvester-Day did not have his ID with him. Taylor signed the form.
83. Taylor said that there were apparently some problems with the money transfer and a few weeks later Silvester-Day asked him to withdraw the money and then transfer it into Silvester-Day’s bank account. He did so[55].
84. Under cross-examination, Taylor confirmed that Silvester-Day had given him $3,000 and said something about a guy wanting him to buy the substance for him. He confirmed that Silvester-Day had said[56]:
I have to send this off to China to buy this new drug. It hasn’t been registered as illegal yet. This guy wants me to buy it for him. Don’t worry. It’s not illegal. This guy has told me that it is a research chemical and that people were using it as a drug.
The evidence of Michelle Carey
85. Michelle Carey gave evidence that she knows the accused through her partner, Allan Reid. She said that she does not know Silvester-Day or Sabol[57].
86. Carey said that she has lived at [redacted for legal reasons], for 17 years. She permitted the accused to use the address to have a first aid certificate sent there at the end of 2014 or beginning of 2015 because he was in the process of moving. She said that there was no other time she permitted the accused to use her address. She denied permitting the accused permission to use her address for any other purpose or to use her date of birth for any purpose[58].
87. Carey was asked about the mobile telephone number [redacted for legal reasons]. She was taken to Exhibit 11 which showed she was registered as the account holder in relation to that number and that the billing address for the number was [redacted for legal reasons]. Carey denied permitting anyone to subscribe to that number using those details[59].
88. Under cross-examination, Carey accepted that Reid had asked her if it was okay for the accused to have a first aid certificate delivered to her house, but denied that Reid asked her on behalf of the accused about using her address for a phone. Carey agreed that the accused had left a Ford Fairmont car out the front of her house around April or May 2015. The accused had asked Reid to fix the car[60].
The evidence of Brian Coe
89. The Crown tendered the statement of Brian Coe[61], a Digital Forensic Examiner employed by the AFP, and also called him to give oral evidence. Coe examined a Samsung mobile phone and extracted data from a micro-secure digital card and a subscriber identity module card found within the phone.
90. Coe was able to determine that the user of the phone had, on a date that appeared to be 12 April 2015, accessed a webpage containing an article entitled “New designer drug Flakka can leave users violent with superhuman strength”. The article talked about the dangers of flakka and said that it had not yet been recorded in Australia[62].
91. Coe’s evidence was that he had not found any search term using the word “flakka” on the phone. He agreed that that could be consistent with someone providing the user of the phone with a link to the page and the phone accessing the article through the link[63].
The evidence of Scott Clarke
92. Leading Senior Constable Scott Clarke was employed with the AFP. He gave evidence that a listening device had been placed inside the package that was delivered to Silvester-Day’s address. It recorded a conversation between Silvester-Day and Sabol, but the package was then thrown out[64].
93. Clarke’s evidence was that he and other officers executed a search warrant upon Silvester-Day’s address on 30 May 2015. Silvester-Day, Sabol and the accused were in the apartment[65].
94. There was a Coles bag in the middle of the lounge room at the apartment. When Silvester-Day was asked about a-PVP, he pointed to the Coles bag[66].
95. Clarke’s evidence was that Silvester-Day and Sabol were taken to the Canberra City Police Station, while the accused was permitted to go. Silvester-Day and Sabol each consented to being interviewed[67].
96. Two black Samsung mobile phones were seized from the accused. A number of screen shots were taken of SMS messages found on one of the telephones. Coe was able to download the contents of the second phone.
97. Under cross-examination, Clarke accepted that he had told Silvester-Day that he was facing an offence that was carrying a maximum penalty of life imprisonment. His recollection was that he explained that to Silvester-Day in the car as they were driving back to the station. He did not recall explaining that to Silvester-Day in the presence of Sabol[68].
98. Clarke acknowledge that the first time Silvester-Day said that Walters was involved in the importation or purchase of a-PVP was in the record of interview. Clarke accepted that was after he had told Silvester-Day he was facing an offence that carried a maximum penalty of life imprisonment. Clarke gave evidence that Silvester-Day was quite shaken when he was told about the maximum penalty[69].
99. In re-examination, Clarke said that Sabol and Silvester-Day were transported to the city police station separately. He said that witnesses are separated so that they do not have a chance to concoct any story. Clarke said that after they were transported to the Canberra City Police Station they were put in separate interview rooms and separately interviewed. Silvester-Day and Sabol were not together by themselves after the police entered the apartment[70].
The evidence of Luke Walters
The accused gave evidence that he met Silvester-Day about two-and-a-half years prior to April or May 2015. They met at a gym where they both trained.
The accused’s birthday is on 22 May. His evidence was that in mid to late April 2015, Silvester-Day asked the accused if he could buy him a birthday present. Silvester-Day said that he would like to buy some protein powder for the accused. He asked the accused for his address. This was apparently because Silvester-Day was to be away in Sydney on a course on the accused’s birthday and wanted to send the protein powder[71].
The accused states that he was hesitant to give Silvester-Day his address because, “I don’t give out my address”. The accused says that he then gave Silvester-Day “a friend of the family’s address”. That friend of the family was Allan Reid, the partner of Michelle Carey. The address was [redacted for legal reasons][72].
In his evidence in chief, the accused was taken to his bank statement for the period from 14 April to 30 May 2015. He was asked about an EFTPOS purchase of $168.15 and a cash withdrawal of $1,200 on 4 May 2015. He said that the purchase of $168.15 was from Autopro and that he got an oil filter, coolant, oil and everything to do with a service on his car. He said that $1,000 of the $1,200 withdrawal was used to purchase a white Ford Fairmont motor vehicle. He said that the vehicle was driven to [redacted for legal reasons], where Allan Reid resided, and left there for 8-12 weeks while he and Reid serviced the car. He said the items he bought from Autopro were used on the car he purchased[73].
The accused said that Silvester-Day had sent him some text messages and telephoned him wishing him happy birthday.
The accused was taken to the text message from Silvester-Day on 30 May 2015 saying, “The protein is in, Bro”. The accused said that he thought Silvester-Day was referring to his birthday present[74].
The accused denied giving Silvester-Day $300 to purchase a-PVP online. He denied attending Silvester-Day’s house and looking at a laptop. He denied that there was ever an occasion (other than when the police arrived) when the accused went to Silvester-Day’s apartment and Sabol was also there. He denied that he gave Silvester-Day $3,000 on another occasion and told him to order a larger amount of a-PVP. He denied he was ever present at Silvester-Day’s house when he placed any orders on the internet[75].
The accused gave evidence that on 30 May 2015, he was at Silvester-Day’s apartment for less than 10 minutes between arriving and the police arriving. He had a conversation with Silvester-Day and Sabol about his birthday and about how Silvester-Day’s course went in Sydney. There was no conversation about a-PVP. There was no discussion about selling a drug[76].
When the accused was asked by his counsel whether he knew what a-PVP is, he responded “I wouldn’t have a clue”. He said that the first time he heard about a-PVP or “flakka” was when Silvester-Day posted an article on Facebook and shared it with the accused. He was asked the following questions and gave the following answers[77]:
Okay. And what was the post about?---that – what’s the name of that thing you said?
The flakka?---that thing, yes.
The accused denied that he had $3,000 to give to Silvester-Day. He said that his sole source of income was a disability pension from Centrelink for back, neck and mental injuries[78].
Under cross-examination the accused said that by 2 May 2015, he would train with Silvester-Day at a gym every day[79].
The accused confirmed that he had two mobile telephones in May 2015. In respect of one of the phone numbers, he accepted that the person subscribed to that number was Michelle Carey. The address associated with that number was [redacted for legal reasons]. That was not the accused’s address. He agreed that his birthday and date of birth was not associated with the Optus account relating to that number[80].
Under cross-examination, the accused confirmed that he was “very close” to Silvester-Day. He was asked about giving Silvester-Day the [redacted for legal reasons] address instead of his own address. The following exchange occurred between the prosecutor and the accused[81]:
Didn't you say or wasn't it the case that you say that he told you that he would get it delivered to your address?---He asked for my address and I gave him a family member's address, yes.
That's because you say you don't like giving out your address?---Only my direct family has my address.
Does Mr Reid know where you live?---Yes, he does.
He's not your direct family, is he?---He's a friend but he's been with my family for about 15 years, yes.
So he's not your direct family, is he?---No.
So when you said that only your direct family have your address that wasn't right?---Yes, that is right.
Well, Mr Reid is not your family?---In your eyes, yes.
Well, not your direct family?---Not blood, no.
But you say he's got your address?---Yes, he has.
When you said that only your direct family has your address that was not right?---That is right. Only my direct family have my address. To me he's like family. I've known him for over 15 years.
Later in cross-examination he was asked about his knowledge of flakka. The following exchange occurred[82]:
Now, sir, around this time, you knew what flakka was, didn’t you?---No, I did not.
Well, it was in your evidence before that you had been tagged in a - - - ?---Yes, that’s right.
- - - post about flakka?---Yes.
And you accessed that article, didn’t you?---I was tagged in the post on social media and I opened it to look at it.
So, after opening it to look in - to look at it, you were aware of flakka?---At that point, yes.
So when you answered my question before - I said, “At around this point in time were you aware of flakka?” and you said, “No,” that was wrong wasn’t it?---I wasn’t sure about the times which you were talking about, yes.
The accused denied that he had any conversation with Silvester-Day about flakka before he was tagged in the article on Facebook. He said Silvester-Day had just tagged him in the article and he opened it. He had deleted the article from his Facebook page, but denied that this was because he didn’t want people to know that he had looked up the article[83].
The accused acknowledged that he had provided the [redacted for legal reasons] address to Silvester-Day, despite there being no arrangement for him to use that address. The accused gave evidence that he had asked Allan Reid if he could use Carey’s address for a SIM card for his telephone. He said that he had asked Reid to ask Carey to use her identity to subscribe to the SIM card. Reid told him he had asked Carey and hooked it up. When asked whether Carey was aware that the SIM card was in her name, he said, “Allan asked her”. He said that Reid told him that he had asked Carey “and she said, “Yes”” and “that she had done it, correct”. His evidence was that Reid told him that Carey knew about the SIM card being subscribed in her name. He denied the suggestion that Carey did not know about this. He denied that he had provided Silvester-Day with the [redacted for legal reasons] address in order for the flakka to be delivered there. He denied that he provided that address because he was trying to distance himself from the flakka[84].
Under cross-examination, the accused was asked about his evidence concerning the EFTPOS transaction on 4 May 2015. He was taken to EFTPOS transactions on 13 May and 25 May 2015 and asked what he bought. He was unable to remember what he purchased. He agreed that he was not charged until December 2015, that there was no reason for him to go back and have a look at these bank account transactions from May 2015 and that there was no reason why any of these transactions would stick in his memory. The following exchange occurred[85]:
You say what, coolant oil and oil filter, is that right?---That’s why it says Autopro Belconnen, correct.
It doesn’t say what you bought though, does it?---No.
But you say you’ve got a specific memory of that?---Correct.
Not of any of the other - or the two other purchases that I took you to?---Unaware.
You say you withdrew $1200 that day to purchase a car?---Correct.
Do you have any receipt for the car?---Unaware.
Unaware of whether you got one, or unaware if you still have one?---Unaware about the receipt.
Or whether you got one when you bought it?---Unsure.
But you have a precise memory of what you bought at Autopro the same day?---Correct.
But you can’t remember whether or not you got a receipt for a $1200 car that you bought?---A thousand dollar car, but correct.
A thousand dollar car, okay. So you withdrew 1200, but it was a thousand dollar car?---Correct.
Okay. Did you not put that money towards the purchase of a-PVP or flakka, that you withdrew on that day?---No.
In re-examination, the accused said that he had not spoken directly to Carey about getting a SIM card in her name and had only spoken to Reid about that issue. Reid told him that it was okay with Carey for him to get that SIM card. It was Reid who gave him the SIM card[86].
As with the other witnesses, I have not attempted to set out in full the evidence given by the accused. I have, however, considered the totality of their evidence.
The legislation and directions
Section 48 of the Criminal Code 2002 (ACT) provides:
48 Conspiracy
(1) If a person conspires with someone else to commit an offence (the offence conspired) punishable by imprisonment for longer than 1 year or by a fine of 200 penalty units or more (or both), the person commits the offence of conspiracy.
(2) However, the person commits the offence of conspiracy only if—
(a) the person entered into an agreement with at least 1 other person; and
(b) the person and at least 1 other party to the agreement intend that an offence be committed under the agreement; and
(c) the person or at least 1 other party to the agreement commits an overt act under the agreement.
(3) Despite subsection (2), any special liability provisions that apply to an offence apply also to the offence of conspiracy to commit the offence.
(4) The offence of conspiring to commit an offence is punishable as if the offence conspired had been committed.
(5) A person may be found guilty of the offence of conspiracy even though—
(a) it was impossible to commit the offence conspired; or
(b) the person and each other party to the agreement is a corporation; or
(c) each other party to the agreement is—
(i) a person who is not criminally responsible; or
(ii) a person for whose benefit or protection the offence exists; or
(d) all other parties to the agreement are acquitted of the conspiracy (unless to find the person guilty would be inconsistent with their acquittal).
(6) A person must not be found guilty of the offence of conspiracy to commit an offence if, before the commission of an overt act under the agreement, the person—
(a) withdrew from the agreement; and
(b) took all reasonable steps to prevent the commission of the offence conspired.
(7) A person for whose benefit or protection an offence exists cannot be found guilty of conspiracy to commit the offence.
(8) Any defence, procedure, limitation or qualifying provision applying to an offence applies to the offence of conspiracy to commit the offence.
(9) A court may dismiss a charge of conspiracy if it considers that the interests of justice require it to dismiss the charge.
…
Section 602 of the Criminal Code provides:
602Meaning of trafficking
For this chapter, a person traffics in a controlled drug if the person—
(a)sells the drug; or
(b) prepares the drug for supply—
(i)with the intention of selling any of it; or
(ii) believing that someone else intends to sell any of it; or
(c)transports the drug—
(i)with the intention of selling any of it; or
(ii) believing that someone else intends to sell any of it; or
(d)guards or conceals the drug with the intention of—
(i)selling any of it; or
(ii) helping someone else to sell any of it; or
(e) possesses the drug with the intention of selling any of it.
Section 603 of the Criminal Code provides:
603 Trafficking in controlled drug
(1) A person commits an offence if the person traffics in a large commercial quantity of a controlled drug.
Maximum penalty: imprisonment for life.
(2) Absolute liability applies to the circumstance that the quantity trafficked in was a large commercial quantity.
(3) A person commits an offence if the person traffics in a commercial quantity of a controlled drug.
Maximum penalty: 2 500 penalty units, imprisonment for 25 years or both.
(4) Absolute liability applies to the circumstance that the quantity trafficked in was a commercial quantity.
…
(7) A person commits an offence if the person traffics in a controlled drug other than cannabis.
Maximum penalty: 1 000 penalty units, imprisonment for 10 years or both.
…
Consistently with the judgment of Buss JA in Quaid v The Queen (2011) 210 A Crim R 374 at [169] – [177], the Crown submits that if the accused is to be convicted, the Crown is required to prove each of the following matters beyond reasonable doubt:
1.The accused entered into an agreement with Silvester-Day to commit the offence of trafficking in a-PVP (being a substance that was a controlled drug, as defined in s 600 of the Criminal Code and schedule 1, part 1.2 of the Criminal Code Regulation other than cannabis).
2. If the accused and Silvester-Day entered such an agreement, they intended that the offence of trafficking in a-PVP would be committed pursuant to the agreement.
It is necessary to prove that Walters and Silvester-Day meant to enter into the agreement to commit the offence of trafficking in a-PVP.
This involves proof that the accused had knowledge of, or belief in, the existence of the facts that made the conduct the subject of the agreement an offence (as distinct from having knowledge of, or belief in, the legal characterisation of the conduct).
This requires the Crown to prove that the accused knew or believed that he or Silvester-Day or both would sell the a-PVP, take possession of the a-PVP with the intention of selling it, or prepare the a-PVP for supply with the intention of selling any of it.
3. The accused or Silvester-Day committed an overt act pursuant to the agreement. The Criminal Code does not define the term “overt act”. The ordinary meaning of the phrase refers to a plainly apparent act. In order for an act to qualify, it must be carried out with the intention of advancing the conspiracy: DPP v Fattal [2013] VSCA 276 at [21].
The Crown concedes that Silvester-Day’s evidence is evidence of a kind that “may be unreliable” within s 165(1) of the Evidence Act 2011 (ACT)[87]. That concession is rightly made and, pursuant to s 165(2), I give myself a warning that Silvester-Day’s evidence may be unreliable and that I must be cautious in deciding whether to accept the evidence and what weight, if any, I give to that evidence. Silvester-Day’s evidence may be unreliable because he has motivation to implicate the accused in his own criminal conduct, as I will discuss later.
Counsel for the accused submits, and I accept, that I must direct myself in accordance with the judgment of Brennan J in Liberato v The Queen (1985) 159 CLR 507 at 515 that:
The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.
Counsel for the accused submits, and I accept, that I should also direct myself in accordance with the judgment of Kirby J in R v Anderson (2001) 127 A Crim R 116 at [26] where his Honour said that the following directions should be given:
First, if you believe the evidence of the accused, obviously you must acquit. Second, if you find difficulty in accepting the evidence of the accused, but think that it might be true, then you must acquit. Third, if you do not believe the accused, then you should put his testimony to one side. The question will remain; has the Crown, upon the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?
Counsel for the accused submits, and I accept, that I should direct myself in accordance with R v Murray (1987) 11 NSWLR 12 at 19 (and Robinson v The Queen (1999) 197 CLR 162 at [21] and Tully v The Queen (2006) 230 CLR 234 at [55]-[59]). Those cases require that I must exercise caution before I can convict the accused as the Crown case largely depends upon acceptance of the evidence of a single witness. This being so, unless I am satisfied beyond reasonable doubt that Silvester-Day is both an honest and accurate witness in the account he has given, I cannot find the accused guilty. Before I can convict the accused, I must examine the evidence of Silvester-Day very carefully in order to satisfy myself that I can safely act upon that evidence to the high standard required in a criminal trial. In a criminal trial, where the Crown case relies solely or substantially upon the evidence of a single witness, I must approach that evidence with particular caution because of the onus and standard of proof placed upon the Crown. I am entitled to convict the accused upon the evidence of Silvester-Day, but only after I have carefully examined the evidence and satisfied myself that it is reliable beyond reasonable doubt. In considering Silvester-Day’s evidence and whether it does satisfy me of the accused’s guilt, I should look to see if it is supported by other evidence.
In R v Mulcahy [2010] ACTSC 98, Nield AJ described the appropriate directions and approach in a trial by judge alone. I respectfully adopt and apply those directions. His Honour said:
13.A criminal trial is governed by rules. The fundamental rules are designed to ensure that an accused person receives a fair trial according to law. The fundamental rules which govern a criminal trial are these.
14.The Crown bears the onus, burden or obligation, to use three interchangeable words, to prove the guilt of the accused. The Crown has asserted that the accused has committed a criminal offence, therefore the Crown must prove that the accused committed that offence. The accused does not have to prove that he did not commit that offence.
15.The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. The accused cannot be found to be guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt.
16.The accused is presumed by law to be innocent of the offence with which he stands charged unless and until the evidence which I accept satisfies me beyond reasonable doubt of his guilt. If the evidence which I accept satisfies me beyond reasonable doubt of his guilt, then he loses the presumption of innocence and the appropriate verdict is guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of his guilt, then he remains presumed to be innocent and the appropriate verdict is not guilty.
17.In addition to the fundamental rules which govern a criminal trial, the following rules have been developed.
18.As I am the judge of the facts, as well as the judge of the law, I must bring an open and unbiased mind to the evidentiary material. I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the Crown and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will.
19.I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the event about which the witness has given evidence.
20.I must determine the relevant facts according to the evidentiary material, considered logically and rationally, without acting capriciously or irrationally.
21.I may use my common sense, my individual experience and wisdom, in assessing the evidence given by the witnesses.
22.I am not required by any rule of law, logic or common sense to accept a witness wholly or to reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance, or I can reject everything that a witness has said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said that I consider worthy of acceptance and reject the rest of what that witness said as I consider it unworthy of acceptance.
23.The accused gave evidence on oath. He was not required to do so; he could have elected not to give evidence. By giving evidence he became a witness in his trial. His evidence is not any better or any worse than the evidence of other witnesses in his trial simply because he is the accused. His evidence falls to be considered in the same way as the evidence of the other witnesses in his trial falls to be considered. However, by giving evidence he did not assume any burden, onus or obligation to prove anything in his trial.
24.In a criminal trial the Crown must prove the essential elements of the charge beyond reasonable doubt. The Crown does not have to prove everything about which evidence has been given beyond reasonable doubt.
Under s 68C of the Supreme Court Act, a judge who conducts a trial of a person on indictment without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and such a finding has, for all purposes, the same effect as the verdict of a jury.
Assessment of the oral evidence
The only evidence directly connecting the accused with an agreement to traffic in a-PVP is the evidence of Silvester-Day and Sabol. There is no other evidence which is of itself capable of proving that the accused was involved in ordering and paying for the a-PVP and that he intended to sell it. The credibility and reliability of the evidence of Silvester-Day and Sabol is therefore critical to the Crown’s case.
It is convenient to begin with Sabol’s evidence. My impression was that Sabol gave her evidence in an open, frank and honest manner. She made appropriate concessions, including that there were parts of relevant conversations she could not recall or did not hear and that she and Silvester-Day became aware before the delivery that a-PVP was illegal. Her evidence was unshaken under cross-examination. The attacks on her credit, such as the suggestion that she had been dismissed from her employment because of dishonesty came to nothing. It was suggested in cross-examination that she implicated the accused because she was doing everything she could to avoid Silvester-Day getting into trouble. She denied this. In re-examination, Sabol was asked about parts of the record of interview. It became apparent that in the record of interview she had in fact admitted Silvester-Day’s involvement in the procurement of the a-PVP[88]. I am not satisfied that she had any motivation sufficient to induce her to give false evidence that the accused was also involved in procuring the drug. I am satisfied that her evidence about the involvement of the accused was not fabricated or embellished. I find that Sabol’s evidence was honest and reliable.
It is more difficult to assess the evidence of Silvester-Day. I accept the submission of counsel for the accused that Silvester-Day had motivation to implicate the accused and that parts of his evidence were demonstrably false. That motivation was both to try to avoid Sabol being prosecuted and to reduce his sentence. Silvester-Day received a discounted sentence in consideration of his offer to give evidence against the accused.
Silvester-Day’s initial evidence to the Court did not implicate the accused. He said, for example, that he could not remember who gave him the money to purchase the a-PVP. Later, his evidence changed and he said, for example, that it was the accused who gave him the money. Either Silvester-Day’s earlier evidence or his later evidence was false.
Silvester-Day initially prevaricated about his involvement in the supply of illegal steroids. He then admitted to facilitating the sale of steroids, but denied making any money from their sale. I consider that he gave false evidence to the extent that he minimised his involvement in the supply of steroids and claimed that he had not made any profit from their sale. The evidence demonstrates that he made $70 from one sale. He was willing to participate in the supply of steroids even after he had been charged and provided advice to an associate to use Wickr to avoid detection by police. Further, he accepted that he had lied to police when he told them that he was unaware that a-PVP was illegal. He also lied to Sabol when he told her that a-PVP was legal despite knowing it was not. The false statements made by Silvester-Day weigh heavily against acceptance of other parts of his testimony.
However, there are several matters that persuade me that Silvester-Day’s evidence concerning the involvement of the accused in procuring the a-PVP and the accused’s intention to sell the drug should be accepted.
Firstly, Silvester-Day’s evidence that the accused was involved in ordering the a-PVP and that the accused intended to sell the drug was corroborated in part by Sabol. I accept Sabol’s evidence that she saw Silvester-Day and the accused looking at a substance on Silvester-Day’s laptop at her apartment, heard them say that they were going to order something in from a website called Crystal Rows or Crystal Roads, and that it was coming from China. I accept her evidence that the accused wrote down [redacted for legal reasons] as the address the substance was to go to. I also accept Sabol’s evidence that on a second occasion the accused attended her apartment and was angry about the failure of the order, that he discussed selling the substance and that he had people lined up. I accept Sabol’s evidence that on the night of 30 May 2015, before the police arrived, the accused was talking about cooking up the drug with other drugs to make something and said he had people lined up already for the product. My acceptance of Sabol’s evidence makes it much easier to accept the evidence of Silvester-Day concerning the involvement of the accused in procuring the drug and the accused’s intention to sell the drug.
Secondly, I observed Silvester-Day closely while giving evidence and formed the view that he was truthful when giving his ultimate evidence as to the involvement of the accused. The position was otherwise when he gave the evidence which I have found to be false. I am left with the impression that Silvester-Day is unsophisticated, somewhat naïve and not particularly bright. His lies were transparent, but it also seemed to me apparent that when he gave his later evidence of the accused’s involvement, he gave his evidence truthfully. For example, the evidence I have set out at para [66] impressed me as having the air of truth about it. That passage also explains why his initial evidence was false (although I do not draw any inference that the accused or someone acting with the knowledge of the accused made the phone call). Further, Silvester-Day’s evidence concerning the involvement of the accused was not shaken under cross-examination. Other than his false evidence initially which failed to implicate the accused, the lies he told were peripheral to the central issue of the accused’s involvement.
Thirdly, in cross-examination it was suggested to both Silvester-Day and Sabol that they falsely implicated the accused in interviews with the police conducted on the night their apartment was raided. I am satisfied that between the time the police arrived and when they participated in separate interviews, Silvester-Day and Sabol were not left together by themselves. They had no opportunity to get together to concoct a story that the accused, who on his story was coincidentally at their apartment to collect a birthday present, was in fact heavily involved in the procurement of the a-PVP. They independently implicated the accused. That makes it more likely that they each told the truth about the accused’s involvement. This position is supported by the conversations between Silvester-Day and Sabol surreptitiously recorded through a listening device after the delivery was made, but before the accused and the police arrived. In those conversations, they refer to the involvement of another person and at times Silvester-Day refers to that person as “Luke”.
I have heeded the warnings and directions I have described earlier. While I accept that Silvester-Day had motivation to implicate the accused and that he lied in various parts of his evidence, I am satisfied that his ultimate evidence concerning the involvement of the accused in procuring the drug was truthful and reliable.
I accept that Taylor gave his evidence truthfully. However, he appeared to have little useful memory of events and conversations and I have not found his evidence to be of any use in deciding this case.
Carey was a patently frank, truthful and reliable witness. I have no hesitation in accepting her evidence.
On the other hand, I am satisfied that the accused was not truthful in significant parts of his evidence. I was unimpressed by his demeanour. Some of the accused’s evidence struck me as being rehearsed, performed and contrived. For example, in examination in chief, he was asked the following questions and gave the following answers[89]:
Now, Mr Walters, do you know what a-PVP is?---I wouldn’t have a clue.
Did you ever have a look at an article on a-PVP or flakka?---The first time I’ve – I heard about it was when I – it was shared to me.
Who shared it to you?---Izzac Day .
How did he share it to you?---Facebook link, he tagged my name in a post.
Okay. And what was the post about?---That – what’s the name of that thing that you said?
The flakka?---That thing, yes.
Listening to the evidence, the last two answers given by the accused in this passage seemed to me to be a contrived attempt to suggest that he knew so little about flakka that he could not even recall what it was called. The accused impressed me as an intelligent man and he must have been fully aware of what flakka was by the time he gave evidence, given that he had seen an article shared with him on Facebook about flakka, that he had made a formal admission that a-PVP is a synthetic drug known as flakka and that he had been in the courtroom when flakka was mentioned or discussed during the Crown’s opening and in evidence[90].
In cross-examination, the accused was asked the following question and gave the following answer[91]:
Now, sir, around this time, you knew what flakka was, didn’t you?---No, I did not.
Under further cross-examination, the accused acknowledged that after he had opened the article shared with him on Facebook, he was aware of flakka. He accepted that he had opened the article on 12 April 2015 and that his answer to the earlier question was wrong. The accused’s explanation was that he was not sure about the times the cross-examiner was talking about[92]. That explanation seemed to me to be implausible. In the context of the preceding cross-examination it was apparent that the cross-examiner was asking about April and May 2015.
The accused’s evidence concerning why he gave Silvester-Day the address [redacted for legal reasons] (the address of Carey and Reid) for the delivery of his “birthday present” instead of his own address was implausible. He acknowledged that he and Silvester-Day were close friends, but, despite that, he said he was not prepared to provide Silvester-Day with his home address. He said that he gave Silvester-Day “a family member’s address”, and that “only my direct family has my address”. He accepted under further questioning that Reid knew where he lived and that Reid is not a member of his family or direct family. He sought to explain his answers by saying “to me he’s like family”. In my view, having observed the accused in the witness box, his evidence in this respect was implausible and unsatisfactory[93].
The accused’s evidence concerning how he had come to obtain a telephone number registered in Carey’s name was also implausible. The accused’s evidence was ultimately that Reid had provided him with a SIM card and had told the accused that Reid had obtained Carey’s permission to have it registered using Carey’s name[94]. In her evidence, which I accept, Carey denied that she had given anyone permission to obtain a telephone number in her name[95]. Carey denied, under cross-examination, that Reid had asked her on behalf of the accused about using her address for a telephone[96]. It was not suggested to Carey that Reid had asked her if he could provide the accused with a SIM card registered by Carey’s name. If the accused is to be believed, Reid must have obtained the SIM card falsely using Carey’s name. Reid must then have given the accused the SIM card while falsely telling the accused that Reid had Carey’s permission to obtain the SIM card in her name when, in fact, Reid had never asked Carey for any such permission. There is no obvious explanation as to why Reid might do that. The accused’s evidence is quite implausible.
The accused’s evidence that he could remember the items he bought at Autopro with the money he withdrew on 4 May 2015 was implausible. He was unable to remember items he bought on other days. He was even “unsure” whether he got a receipt for the purchase of the car he said he bought. It is implausible that he would remember the specific items he bought at Autopro.
More generally, I was unimpressed by the demeanour of the accused under cross-examination. I do not believe him where his evidence conflicts with the evidence of Sabol or Silvester-Day.
The accused denied any involvement with ordering or paying for the a-PVP. I prefer the evidence of Silvester-Day that the accused asked Silvester-Day to place both online orders and provided the money to pay for each of the orders. Silvester-Day’s evidence that the accused was involved in ordering the a-PVP is partly corroborated by Sabol’s evidence as to the accused’s involvement in placing the first order at her apartment, the accused’s anger at difficulties with the second order and his stated intention to sell the drug.
The accused’s evidence was that Silvester-Day wanted to give him protein powder as a birthday present and that he attended Silvester-Day’s apartment on 30 May 2015 to collect his birthday present. That claim does gain some support from Silvester-Day’s evidence that the accused was to pick up some protein powder as well as the a-PVP and the fact that Silvester-Day sent a text message to the accused saying that the protein had arrived. However, Silvester-Day denied that he said he would get the accused a birthday present (I did not understand his agreement with a question under cross-examination that it “could have happened” to be any more than agreement that there is some vague possibility that it might have happened and he was now unable to recall it). Silvester-Day gave evidence to the effect that the accused had suggested using “protein” as code for a-PVP. I accept those aspects of Silvester-Day’s evidence. I also accept the evidence of Silvester-Day and Sabol that the accused discussed selling the drug when he was at their apartment. I do not accept that the accused attended Silvester-Day’s apartment to pick up a birthday present. He was there to pick up the a-PVP.
What the Crown must prove
Firstly, it is necessary for the Crown to prove beyond reasonable doubt that the accused entered into an agreement with Silvester-Day to commit the offence of trafficking in a-PVP (being a substance that was a controlled drug, as defined in s 600 of the Criminal Code and schedule 1, part 1.2 of the Criminal Code Regulation, other than cannabis).
The accused admits, and I find, that a-PVP is a controlled drug. The accused admits, and I find, that the net weight of the a-PVP was 997.3g. I find that as the weight exceeds 6g this is a trafficable quantity of a-PVP within the Criminal Code Regulation. The offence of trafficking in a controlled drug other than cannabis is punishable by imprisonment for longer than one year, pursuant to s 603(7)CC of the Criminal Code.
I find that the accused asked Silvester-Day to place both orders for a-PVP online, and Silvester-Day did so. The accused provided the funds for both orders. Accordingly, I reject the submission made on behalf of the accused that the accused had no knowledge of or involvement in ordering the a-PVP. I also reject the submission that the accused and Silvester-Day made no agreement concerning the procurement of the a-PVP.
The charge is that the accused and Silvester-Day conspired to traffic in a-PVP. The Crown’s case is that the accused and Silvester-Day entered into an agreement to procure a-PVP with the aim that the accused would sell it, possess it with the intention that it would be sold, or prepare it for supply with the intention that it would be sold.
The defence argued that if there was an agreement between the accused and Silvester-Day, the agreement was that they would import a-PVP (which was not an offence), but that Crown has failed to prove that there was an agreement that to traffic the drug. I ruled against the accused’s no-case application and his application for a Prasad direction on this point. In his final address, Counsel for the accused submitted that I cannot be satisfied beyond reasonable doubt that there was an agreement made to traffic a-PVP.
Silvester-Day’s evidence was that at first the accused said that he wanted the a-PVP for his personal use. I find that the accused and Silvester-Day initially made an agreement to procure a-PVP for the accused’s personal use.
Silvester-Day’s evidence was that on a date very close to when the drug was delivered, the accused told Silvester-Day the accused was going to sell the a-PVP after turning it into flakka by cooking it. There is some difference between the evidence of Silvester-Day and Sabol as to when the accused first indicated that he intended to sell the drug. Sabol’s evidence suggests that occurred prior to the second order being placed[97]. The difference does not matter. I accept that the accused told Silvester-Day that he intended to sell the drug on a day prior to the delivery of the package on 30 May 2015.
The defence submits that the Crown is required, and has failed, to prove that a further agreement was entered to traffic the drug. The Crown argues that it is to be inferred that when or after Silvester-Day became aware of the accused’s intention to sell the a-PVP, the accused and Silvester-Day entered an agreement to traffic in the drug. The defence’s response is that the Crown has failed to prove that any such agreement was entered, the drug already having been ordered before Silvester-Day became aware that the accused intended to sell it and then simply performing the terms of the existing agreement. The defence argues that a new agreement would require a meeting of the minds, but that there is no evidence, or inadequate evidence, that the accused and Silvester-Day entered into any further agreement.
It is clear that the agreement of the alleged conspirators need not be attended by any formalities: R v LK and RK (2010) 241 CLR 177 at 231 (footnote 291). In R v Orton [1922] VLR 469, Cussen J said at 473-474:
But there must at least be on the part of each of the alleged conspirators a conscious understanding of a common design. It frequently happens that conspiracy cannot be proved by direct evidence, and then it is a matter of inference to be deduced from the acts of the accused done in pursuance of a criminal purpose in common between them…
It follows from the fact that agreement is the essence of conspiracy that the accused cannot be found guilty though active to the same end unless you are satisfied that their acting to the same end was in pursuance of the same design …. If any one of them intended to be so active from motives operating on his own mind alone and not in pursuance of any plan arranged between him and one or other of the parties, he could not be found guilty.
There is no direct evidence which demonstrates an agreement between Silvester-Day and the accused to traffic in a-PVP. The issue is whether entry into an agreement of that kind should be inferred from the conduct of the alleged conspirators after Silvester-Day became aware that the accused intended to sell the drug.
Accepting that the accused informed Silvester-Day that he intended to sell the a-PVP on a day shortly before the package arrived, what then happened was: the package was delivered; Silvester-Day informed the accused that the a-PVP had arrived and invited the accused to collect it; and the accused attended Silvester-Day’s apartment to collect the drug. In my opinion, when the accused informed Silvester-Day that he intended to sell the drug, the nature of what the alleged conspirators had agreed to do fundamentally changed. Whereas they had agreed to procure the a-PVP for the accused’s personal use (which may have been legal as it was not a border controlled drug), they now agreed to procure it so that it could be trafficked (which was illegal). What they now agreed to was so fundamentally different to what they had previously agreed, that they can be described as having entered a different agreement. That there was a conscious understanding of a common design to traffic in the drug is demonstrated by Silvester-Day’s conduct in taking steps to pass the package to the accused knowing that the accused now intended to sell the drug and the accused attending Silvester-Day’s apartment to collect the drug. I find that the accused and Silvester-Day entered into an agreement to traffic in the drug.
It is not clear, but the accused also seemed to raise an argument that the agreement would only give rise to a conspiracy if each of the alleged conspirators was required to perform some act in furtherance of the commission of the offence of trafficking. The argument seemed to be that as only the accused was to sell the a-PVP, possess the drug with the intention of selling it, or prepare the drug for supply with the intention of selling it, there could be no conspiracy to traffic in a-PVP. Such an argument was considered and rejected by the Victorian Court of Appeal in Rolls v The Queen; Sleiman v The Queen [2011] VSCA 401, where Weinberg JA said at [23]-[24]:
Of course, a person does not become a party to a conspiracy merely by acquiescing in a plan devised by others. So much is clear. However, it does not follow that the offence under s 321 cannot be made out unless each of the alleged conspirators has personally agreed to participate in some act in furtherance of the agreement.
Section 321 does, of course, require proof that the parties have agreed that at least one of their number will participate actively in the implementation of the agreed plan. In other words, it will not be sufficient if the agreement is to be carried out entirely by some third party, with none of the alleged conspirators playing any active role.
(Citations omitted.)
In Bui v The Queen [2011] VSCA 404, the Victorian Court of Appeal approved this passage from the judgment of Weinberg JA, saying at [237]-[240]:
In Rolls v The Queen; Sleiman v The Queen, this Court recently held that s 321 of the Crimes Act 1958 did not require a person who had entered into an agreement to commit a criminal offence to actively participate in the commission of that offence before they could be convicted of conspiracy to commit that offence
…What s 321 requires is that one or more parties to the conspiracy must be involved in the commission of the offence which the accused have allegedly conspired to commit.
(Citations omitted.)
Under the agreement between the accused and Silvester-Day, the accused was to take possession of the a-PVP. He was to take possession with the intention of selling it, and then sell the a-PVP, either by itself or after preparing it by “cooking” it. This amounted to an agreement to traffic in a-PVP. The offence of conspiracy to traffic in a-PVP does not require that Silvester-Day was to actively participate in the trafficking of the drug.
I find that the Crown has proved beyond reasonable doubt that the accused entered into an agreement with Silvester-Day to commit the offence of trafficking in a-PVP.
The Crown must next prove that the accused and Silvester-Day intended that the offence of trafficking in a-PVP would be committed pursuant to the agreement. It is necessary to prove that Walters and Silvester-Day meant to enter into the agreement to commit the offence of trafficking in a-PVP. This involves proof that the accused had knowledge of, or belief in, the existence of the facts that made the conduct the subject of the agreement an offence (as distinct from having knowledge of, or belief in, the legal characterisation of the conduct). The Crown must prove that the accused knew or believed that he would sell the a-PVP, take possession of the a-PVP with the intention of selling it, or prepare the a-PVP for supply with the intention of selling any of it.
The accused asked Silvester-Day to order the a-PVP for him and provided Silvester-Day with the money for the orders. Silvester-Day ordered the a-PVP and paid for the orders. The accused planned to procure the a-PVP and then sell the drug, either by itself or after “cooking” it. They both knew that the accused would sell the drug, at least from the time the accused informed Silvester-Day of his intention. The accused and Silvester-Day meant to enter into the agreement to commit the offence of trafficking in a-PVP. I find that the Crown has proved beyond reasonable doubt that the accused and Silvester-Day intended that the offence of trafficking in a-PVP would be committed pursuant to the agreement.
The Crown must prove that the accused or Silvester-Day committed an overt act pursuant to the agreement. After the package was delivered, Silvester-Day took the individual parcels of crystals out of the package and placed them in to a Coles bag, since the box was breaking apart. Silvester-Day informed the accused by text message that the “protein” (the a-PVP) had arrived and invited the accused to collect it. The accused attended Silvester-Day’s apartment to collect the a-PVP. Each of these acts was an overt act carried out with the intention of advancing the agreement to traffic in the drug. I find that the Crown has proved beyond reasonable doubt that the accused and Silvester-Day committed the overt acts I have described pursuant to the agreement.
Accordingly, I find that the Crown has proved beyond reasonable doubt that the accused is guilty of the charge that between 1 April and 30 May 2015 at Canberra in the ACT, the accused conspired with Silvester-Day to commit an offence, namely traffic in a controlled drug other than cannabis, namely a-PVP.
| I certify that the preceding one hundred and sixty-eight [168] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Rangiah Associate: Date: 6 April 2017 |
[1] Exhibit 1 – List of Admissions
[2] Day 1: 6 December 2016 – p 4
[3] Day 1: 6 December 2016 – pp 12-14
[4] Day 1: 6 December 2016 – p 16
[5] Day 1: 6 December 2016 – pp 16 and 31
[6] Day 1: 6 December 2016 – p 33
[7] Day 1: 6 December 2016 – p 38
[8] Day 1: 6 December 2016 – p 51
[9] Day 1: 6 December 2016 – p 43
[10] Day 1: 6 December 2016 – p 52
[11] Day 1: 6 December 2016 – p 54
[12] Day 1: 6 December 2016 – pp 62-64
[13] Day 2: 7 December 2016 – p 93
[14] Day 2: 7 December 2016 – p 79-80
[15] Day 2: 7 December 2016 – p 93-94
[16] Day 2: 7 December 2016 – p 99-100
[17] Day 1: 6 December 2016 – p 39
[18] Day 2: 7 December 2016 – p 101-102
[19] Day 2: 7 December 2016 – p 105
[20] Day 2: 7 December 2016 – p 105
[21] Day 2: 7 December 2016 – p 105
[22] Day 2: 7 December 2016 – p 81-82
[23] Day 2: 7 December 2016 – p 116
[24] Day 2: 7 December 2016 – p 122
[25] Day 2: 7 December 2016 – p 123
[26] Day 2: 7 December 2016 – p 123-124
[27] Day 2: 7 December 2016 – p 134
[28] Day 2: 7 December 2016 – p 135
[29] Day 2: 7 December 2016 – p 143
[30] Day 2: 7 December 2016 – p 145
[31] Day 2: 7 December 2016 – p 145
[32] Day 2: 7 December 2016 – p 146
[33] Day 2: 7 December 2016 – p 147
[34] Day 2: 7 December 2016 – p 147-148
[35] Day 2: 7 December 2016 – p 157
[36] Day 2: 7 December 2016 – p 148
[37] Day 2: 7 December 2016 – p 149
[38] Day 2: 7 December 2016 – p 152
[39] Day 2: 7 December 2016 – p 149
[40] Day 2: 7 December 2016 – p 153
[41] Day 2: 7 December 2016 – p 154-155
[42] Day 2: 7 December 2016 – p 155-156
[43] Day 3: 8 December 2016 – p 170-171
[44] Day 3: 8 December 2016 – p 174, 176
[45] Day 3: 8 December 2016 – p 181-182
[46] Day 4: 9 December 2016 – p 242
[47] Day 3: 8 December 2016 – p 194
[48] Day 3: 8 December 2016 – p 175
[49] Day 3: 8 December 2016 – p 206
[50] Day 3: 8 December 2016 – p 207
[51] Day 3: 8 December 2016 – p 208
[52] Day 3: 8 December 2016 – p 212-213
[53] Day 3: 8 December 2016 – p 218
[54] Day 3: 8 December 2016 – p 218
[55] Day 3: 8 December 2016 – p 219
[56] Day 3: 8 December 2016 – p 220
[57] Day 3: 8 December 2016 – p 225-226
[58] Day 3: 8 December 2016 – p 226-227
[59] Day 3: 8 December 2016 – p 227
[60] Day 3: 8 December 2016 – p 228-229
[61] Exhibit 10 – Statement of Brian Russell Coe
[62] Exhibit 10 – Statement of Brian Russell Coe, Appendix E: Web History
[63] Day 3: 8 December 2016 – p 234
[64] Day 4: 9 December 2016 – p 242
[65] Day 4: 9 December 2016 – p 242
[66] Day 4: 9 December 2016 – p 244
[67] Day 4: 9 December 2016 – p 247
[68] Day 4: 9 December 2016 – p 254
[69] Day 4: 9 December 2016 – p 257-258
[70] Day 4: 9 December 2016 – p 259
[71] Day 5: 15 February 2017 – p 4-5
[72] Day 5: 15 February 2017 – p 4-5
[73] Day 5: 15 February 2017 – p 6-7
[74] Day 5: 15 February 2017 – p 7
[75] Day 5: 15 February 2017 – p 7-9
[76] Day 5: 15 February 2017 – p 9
[77] Day 5: 15 February 2017 – p 11
[78] Day 5: 15 February 2017 – p 11-12
[79] Day 5: 15 February 2017 – p 12
[80] Day 5: 15 February 2017 – p 17-18
[81] Day 5: 15 February 2017 – p 20-21
[82] Day 5: 15 February 2017 – p 24-25
[83] Day 5: 15 February 2017 – p 25
[84] Day 5: 15 February 2017 – p 30-31
[85] Day 5: 15 February 2017 – p 32
[86] Day 5: 15 February 2017 – p 39
[87] Day 5: 15 February 2017 – p 52
[88] Day 3: 8 December 2016 – p 211-214
[89] Day 5: 15 February 2017 – p 11
[90] Day 1: 6 December 2016 – p 3; Day 2: 7 December 2016 – p 102; Day 4: 9 December 2016 - 253
[91] Day 5: 15 February 2017 – p 24
[92] Day 5: 15 February 2017 – p 24-25
[93] Day 5: 15 February 2017 – p 20-21
[94] Day 5: 15 February 2017 – p 39
[95] Day 3: 8 December 2016 – p 226-227
[96] Day 3: 8 December 2016 – p 228
[97] Day 3: 8 December 2016 – p 174, 176
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