R v Wardle and Allsopp (No 2)
[2024] SADC 112
•20 September 2024
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WARDLE AND ALLSOPP (No 2)
[2024] SADC 112
Reasons for the Verdicts of her Honour Judge Sutcliffe
20 September 2024
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
The accused are each charged with one count of trafficking in a controlled drug (buprenorphine) contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (count one) and in the alternative with introducing a prohibited item into a correctional facility contrary to s 51(1)(b) of the Correctional Services Act 1982 (SA) (count two).
The prosecution case is that each accused directed or counselled or procured the carrying and transportation of the drug for the purpose of sale, by directing, guiding, or encouraging the firing of that drug into the Port Augusta prison by bow and arrow. The prosecution case relied largely on recorded telephone calls made from the prison and the operation of the co-conspirators rule.
Held: Both accused not guilty of counts 1 and 2.
Controlled Substances Act 1984 (SA) ss 32, 61 and 62; Correctional Services Act (SA) ss 37AA(3) and 51; Criminal Law Consolidation Act 1935 (SA) s 267; Evidence Act 1929 (SA) s 52, referred to.
Mallan v Lee (1949) 80 CLR 198; Giorgianni v R (1985) 156 CLR 473; R v Tyrrell [1894] 1 QB 710; Morris v Tolman [1923] 1 KB 166; Ellis v Guerin [1925] SASR 282; R v Goldie; ex parte Picklum 59 CLR 254; Likiardopoulos v R (1985) 247 CLR 265; R v B, FG & S, BD (2012) 114 SASR 170; R v Webbe & Brown [1926] SASR 108; R v Russell (1933) VLR 59; [1933] ALR 76; R v Hillier (2007) 228 CLR 618; Shepherd v R (1990) 170 CLR 573; R v Baden-Clay (2016) 258 CLR 308; Police v Young (2012) 114 SASR 567; Bulejcik v R (1996) 185 CLR 375; Ahern v R (1988) 165 CLR 87; (1988) 80 ALR; Corak v Palmer (1982) 30 SASR 404; R v Masters (1992) 26 NSWLR 450; Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22; Catanzariti v R [2021] SASCA 110; Pollitt v R (1992) 174 CLR 558, applied.
R v WARDLE AND ALLSOPP (No 2)
[2024] SADC 112
Introduction[1]
[1] “The way to write is to throw your body at the mark when all your arrows are spent” The Journals of Ralph Waldo Emerson, Edited by Robert N. Linscott, Pub. 1949, p.260.
On Monday 6 September 2021 as dusk was falling, a man approached the rear of the Port Augusta Prison quickly on foot. Using a compound bow the man fired an arrow. The arrow flew over the prison fence and landed in the prison grounds. The delivery was not unexpected and was observed by staff, who were on alert for a suspected delivery of contraband. The arrow was seized and examined. Attached to the arrow were 118 strips of Suboxone and one partial strip, each strip containing naloxone and buprenorphine.
Three people were arrested in the vicinity. Christopher West, who had fired the arrow into the prison had fled, but was detained and arrested. Prior to firing the arrow, Mr West had emerged from a grey Mazda which had stopped in a cul-de-sac at the rear of the Port Augusta prison. Police arrested two occupants of that car; Georgina Gunn, the registered owner and driver of the car, and Antonio Votino who was in the passenger seat. Four mobile phones were found in the car and the contents of three of those phones were extracted.
The prosecution case is that both accused, who were in custody at the Port Augusta prison, were the intended recipients of the parcel attached to the arrow and that each accused, between 24 August 2021 and 7 September 2021, directed and or counselled or procured the carrying or transporting of the buprenorphine, for the purpose of sale of the drug.
The accused are both charged with trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act1984 (SA) (count one) and in the alternative with introducing a prohibited item into a correctional facility contrary to s 51(1)(b) of the Correctional Services Act1982 (SA) (“Correctional Services Act”) (count two).
The prosecution case is substantially circumstantial. It relies on evidence of recorded telephone conversations that occurred on the telephone accounts of three prisoners, proof of the participants in those calls, proof of the identity of persons in the community involved in taking steps to transport the strips to the Port Augusta prison, and text messages extracted from the seized phones.
I find both accused not guilty of count one, as I am not satisfied the prosecution has proven beyond reasonable doubt that either accused was a participant in any of the relevant calls and I am not satisfied the evidence establishes an intention to sell the strips. My finding regarding proof of the identity of the callers means count two is also not proven. I find both accused not guilty of that charge. These are the reasons for those findings.
Offences
Elements of count 1
The elements the prosecution must prove beyond a reasonable doubt in relation to each accused are:
·The strips attached to the arrow contained 1,4 Butanediol (buprenorphine);
·1,4 Butanediol is a controlled drug;
·The accused trafficked in the 1,4 Butanediol between 24 August 2021 and 7 September 2021 (i.e. took part in the process of sale, by directing a step in the process of sale); and
·The accused knew, or was reckless, that it was a controlled drug.
A person traffics in a controlled drug if they take part in the process of sale of a controlled drug. A person takes part in the process of sale of a controlled drug if they direct a step in the process of sale. Carrying or transporting a drug is a step in the process of sale if done for the purpose of sale of the drug.
Particulars
It is the prosecution case that each accused directed Mr Votino to take a step in the process of sale of a controlled drug in recorded telephone calls between 24 August 2021 and 6 September 2021.
With respect to Mr Wardle, it is alleged that he verbally directed Mr Votino to take a step in the process of sale at an unknown time prior to 25 August 2021, on 25 August 2021, on 29 August 2021, on 30 August 2021, on 31 August 2021 and at other unknown times and that each direction was with respect to the act of carrying or transporting the controlled drug to the prison.
It is alleged that Mr Allsopp verbally directed Mr Votino to take a step in the process of sale on the following dates in 2021: 1 September, 5 September, 6 September and at other unknown times, and that each direction was with respect to the act of carrying or transporting the controlled drug to the prison.
Elements of count 2
The prosecution case is that each accused counselled or procured Mr Votino to commit the offence contrary to s 51 of the Correctional Services Act of delivering or introducing into a correctional institution an item prohibited by the regulations and Mr Votino in turn, arranged for the principal offender, Mr West, to introduce the item by firing an arrow attaching the prohibited item over the prison fence.
The elements of the offence of delivering or introducing in a correctional institution without the permission of the CE (the person holding or acting in the position of chief executive of the Department) an item prohibited by the regulations are:
·That the offender delivers an item to a prisoner or introduces an item into a correctional institution;
·The item is prohibited by the regulations;
·The item is delivered or introduced into a correctional institution without the permission of the CE; and
·Buprenorphine is a controlled drug prohibited by the regulations.[2]
Is the offence contrary to s 51 of the Correctional Services Act an offence that can be committed by prisoners?
[2] Regulation 8 of the Correctional Services Regulations 2016 provides that a substance that is a controlled drug under the Controlled Substances Act is a prohibited item for the purpose of an offence against s 51 of the Correctional Services Act 1982.
It was argued by defence counsel that the s 51 offence is one that does not apply to prisoners, a meaning that is said to be apparent from the plain meaning of the words and the objective of the section. The offence is expressed as applying to persons other than prisoners. Notwithstanding those words and that offending conduct by prisoners is addressed elsewhere in the Correctional Services Act, I am not persuaded that liability for aiding, abetting, counselling or procuring is specifically excluded or excluded as a matter of necessary implication, or because the accused may be considered persons of a class whom the substantive offence is designed to protect.[3] Liability is not necessarily excluded by the fact that a particular offence may only be committed by a prescribed class of offenders. A person may aid, abet, counsel or procure an offence even she or he is incapable of committing that offence as the principal offender.[4]
[3] Mallan v Lee (1949) 80 CLR 198; Giorgianni v R (1985) 156 CLR 473) cf R v Tyrrell [1894] 1 QB 710; Morris v Tolman [1923] 1 KB 166; Ellis v Guerin [1925] SASR 282.
[4] Mallan v Lee (1949) 80 CLR 198; R v Goldie; Ex parte Picklum (1937) 59 CLR 254.
Aid, abet counsel or procure
Section 267 of the Criminal Law Consolidation Act, 1935 (SA) provides that ‘a person who aids, abets, counsels or procures the commission of an offence is liable to be prosecuted and punished as a principal offender’.
To prove count two, the prosecution must establish beyond reasonable doubt that:[5]
·The offence of delivering or introducing a prohibited item into a correctional institution was committed;
·The accused knew the essential facts involved in the commission of the offence; and
·The accused intentionally aided, abetted, counselled or procured the commission of the offence.
[5] Giorgianni v R (1985) 156 CLR 473.
Conviction of the principal offender is not required, however, on the evidence the prosecution must prove that the principal offender committed the offence.[6]
[6] Likiardopoulos v R (1985) 247 CLR 265; Giorgianni v R (1985) 156 CLR 473 at 491.
Aiding, abetting, counselling or procuring the commission of an offence requires the intentional assistance, or encouragement, which includes advising, persuading inducing, of the doing of those things which go to make up the offence.[7]
[7] Giorgianni v R (1985) 156 CLR 473, 479.
The four terms describe a single concept, encapsulated by Cussen A.C.J. in R v Russell (1933) VLR 59, [1933] ALR 76, at p 67, where his Honour observed:
All the words abovementioned are, I think, instances of one general idea, that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely, such commission.
It is not necessary to show that the accessory’s conduct had a causal impact on the principal’s offending. It sufficient to show that the conduct was objectively likely to promote the commission of the offence.[8] It is not necessary to prove that the accused intended that the principal offender commit the crime.
[8] R v B, FG & S, BD (2012) 114 SASR 170 [30].
In a case where it is alleged the accessory facilitated an offence, the question may be whether the alleged accessory intends to facilitate conduct that in the known circumstances constitutes, or if engaged in the future will constitute, an offence.[9]
[9] R v B, FG & S, BD (2012) 114 SASR 170 [30].
Procurement may be personal, or through the intervention of a third person.[10]
[10] R v Webbe & Brown [1926] SASR 108, 112.
The same conduct relied upon in relation to count one is relied upon in proof of count two.
General directions
The onus of proof is beyond a reasonable doubt. Each accused is presumed innocent unless and until his guilt has been proved beyond a reasonable doubt. This requirement extends to proof beyond a reasonable doubt of every element of the offence charged. To the extent that any accused puts forward a defence, or innocent explanation, he does not have to prove it. The burden of proving an offence lies wholly upon the prosecution. It is not sufficient for the prosecution to show a suspicion of guilt or that an accused is probably guilty. An accused can only be found guilty of an offence if the evidence proves his guilt beyond a reasonable doubt.
Each accused, and the evidence admissible with respect to him, must be given separate consideration.
The prosecution relies upon circumstantial evidence, to establish the identity of the accused, knowledge and intention. The prosecution does not have to prove each individual item of circumstantial evidence beyond reasonable doubt.[11]
[11] Shepherd v R (1990) 170 CLR 573.
In this regard in R v Hillier Gummow, Hayne and Crennan JJ said:[12]
… It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.
…
Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal. …
(footnotes omitted).
[12] (2007) 228 CLR 618 at [46]-[48].
I bear in mind that a reasonable hypothesis consistent with innocence:[13]
…“must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence”. Further, “in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence”. The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.
(footnotes omitted).
[13] R v Baden-Clay (2016) 258 CLR 308 at [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
There are two steps in approaching a circumstantial case. First, to consider the evidence on which the prosecution relies and decide what facts are established. Second, to consider what inference, or inferences, can be drawn from the established facts. The second step requires a consideration of the combined strength of the facts established by the evidence. There cannot be a guilty verdict unless the circumstances exclude any reasonable explanation consistent with innocence. In other words, before any accused can be found guilty of an offence, guilt must be the only rational inference to be drawn from the facts or circumstances which I accept are established on the evidence.
My resolution of the case depends upon my assessment of all the evidence and that includes, not just a consideration of inferences in favour of the prosecution but inferences, explanations and submissions put forward on behalf of each accused.
Neither accused gave evidence. The exercise of that right must not be used against an accused and must not be treated as evidence. The choice not to give evidence cannot be used to fill any gaps in the evidence. It does not make the prosecution case stronger or more persuasive. I bear in mind that it is always for the prosecution to prove its case beyond reasonable doubt.
Matters not in dispute and issues for determination
I find the evidence proves that both accused were prisoners in the Port Augusta prison at the relevant times, that an arrow was fired into the prison grounds on 6 September 2021 containing 118 strips and one partial strip by Mr West, and that Mr Votino and Ms Gunn were arrested in the vicinity of the prison in the aftermath of the arrow being fired.
In relation to the element of directing a step in the process of sale with respect to count one, and the element of counselling or procuring in relation to count two, identity is in dispute. It is disputed that the words spoken in the telephone calls establish that a direction was given in those calls or at any other time, or that the words amount to counselling and procuring.
For the reasons provided below, I am satisfied that Mr Votino was in regular telephone contact with two prisoners in the days preceding 6 September 2021. I am satisfied that Mr Votino spoke to the user of Mr Allsopp’s telephone account about plans to transport the buprenorphine to the prison. Mr Votino provided information about his efforts to obtain transport and the timing of his anticipated arrival. The conversations were guarded and leave the impression there had been other communications relevant to the delivery that occurred which were not recorded.
Challenge to the use of a certificate of analysis
The evidence that the substance fired into the prison grounds was buprenorphine, is contained in a Certificate of Analysis[14] which is admissible pursuant to s 61(2) of the Controlled Substances Act 1984 (SA). That section operates as an aide to proof in proceedings for an offence against that Act by providing:
In any proceedings for an offence against this Act, an apparently genuine document purporting to be signed by an analyst and to certify that an analysis of a substance referred to in the certificate was carried out by, or under the supervision of, the analyst will, in the absence of proof to the contrary, be proof of any facts stated in the certificate—
(a) tending to identify the substance analysed or tending to identify the substance analysed as an analogue of another substance for the purposes of this Act; and
(ab) as to the weight, amount or quantity of the substance analysed; and
(b) relating to the nature and results of the analysis.
(emphasis added)
[14] Exhibit D9.
In relation to count one, that the strips attached to the arrow contained naloxone and buprenorphine was not in dispute.
It was submitted that as a matter of statutory construction, the certificate cannot be used in the consideration of count two, an offence contrary to the Correctional Services Act.
The prosecution relied on two arguments in support of the submission that s 61 of the Controlled Substances Act 1984 (SA) is not limited to proceedings only involving offences under that Act. The prosecution contended that as count two is properly joined to count one, s 61(2) of the Controlled Substances Act1984 (SA) is engaged, as the trial concerns one proceeding, involving two charges. The second string to the prosecution’s submission, is that as ‘drug’ in the Correctional Services Act carries the definition provided in the Controlled Substances Act1984 (SA) it would be illogical and undermine the purpose of the Correctional Services Act to read s 61 of the Controlled Substances Act1984 (SA) in a manner that did not permit its use in proving that substances are controlled drugs. The prosecution in the alternative relies on s 52 of the Evidence Act 1929 (SA).
Given my findings in relation to identity, this is not an issue that requires a final determination, but I make the following brief observations of the submission regarding the need to read the Controlled Substances Act 1984 (SA) and Correctional Services Act together.
Having regard to the effective reversal of the onus of proof consequent upon the use of an evidentiary certificate, the section permitting the use of a certificate as an aide must be read carefully.[15]
[15] Police v Young (2012) 114 SASR 567 at [27][28].
The phrase “in proceedings for an offence against this Act” in s 61(2) of the Controlled Substances Act 1984 (SA) can be contrasted to s 37AA(3) of the Correctional Services Act which provides for the use of evidentiary certificates, “in proceedings for an offence against this Act or any other Act”. (emphasis added).
The prosecution relied on s 37AA(3) of the Correctional Services Act in support of the submission that s 62 in the Controlled Substances Act 1984 (SA) intends to pick up offences against other Acts, but did not grapple with the utility of s 37AA(3), if its submission regarding the broad interpretation of s 61 of the Controlled Substances Act 1984 (SA) is to be accepted as correct.
Section 37AA(3) provides for proof of facts by a certificate of analysis for proceedings for an offence against that Act or any other Act for the specific purposes listed in that section, which include proceedings that relate to the unlawful use of any drug, and enables the provision of a certificate to certify the presence of a drug in a biological sample taken in a procedure that complies with the requirements of the Correctional Services Act.
If the prosecution’s submission is correct, it would follow that if these proceedings had included an alleged failure to comply with bail as a consequence of using a controlled substance, the prosecution could rely on a certificate pursuant to s 61 of the Controlled Substances Act1984 (SA) to prove the presence of a controlled substance in a biological sample, without the need to comply with or to certify that the sample was taken in accordance with the prescribed procedure under the Correctional Services Act. That construction undermines the evident purpose of s 37AA and weighs heavily against holding that ‘in proceedings against this Act’ in the Controlled Substances Act1984 (SA) impliedly means, ‘in proceedings against this Act or any other Act’.
Expert Evidence - Detective Senior Sergeant Macrae
At the time of giving evidence, Detective Senior Sergeant Macrae held duties within the Serious and Organised Crime Branch of the South Australian Police which investigates organised crime predominately involving drug offending and was the officer in charge of Operation Ironside. Detective Macrae gave evidence about the use of illicit substances in custodial settings, including the use of buprenorphine, the ways in which it is brought into prisons, and its value in the custodial setting compared to its value in the community. Detective Macrae had sufficient experience and qualifications with respect to those matters, which were not contested. Detective Macrae was conscious of the need to be clear about the limits of his experience and knowledge and there were several occasions where he made clear the limits of his experience and knowledge. He also endeavoured to explain aspects of his evidence to reduce the risk of misunderstanding. I accept that his evidence establishes the following matters.
Buprenorphine is an opioid class drug. It is lawfully prescribed in Australia for serious pain treatment and to treat opioid addiction. Buprenorphine in the form of Suboxone has naloxone in it, which blocks some of the effects of the opioid and is used to provide an opioid dependant person with a reducing amount of opioid, while not providing the high. Buprenorphine is not a stimulant. A drug that has the opposite effect of a stimulant is more sought after by persons in custody.
A member of the public can obtain Suboxone strips from a chemist on prescription. The drug is lawfully available to prisoners, on prescription for persons with an opioid dependency.
Suboxone comes in doses of 12 mg, 8 mg, 4 mg and 2 mg. Detective Macrae had only seen it in doses of 8 mg and 2 mg in prisons and in the community.
Methods to conceal and introduce the drug
Buprenorphine comes in a very small film and can be stacked on other films. It is consumed by being absorbed and can become damaged if wet. Packaging such as cling wrap, or similar plastic is used as protection. The strips were often bundled up together and wrapped.
Buprenorphine has been seized within and outside prisons from visitors, which is collected and paid for by persons outside prison.
Buprenorphine in the form of Suboxone has been introduced into custodial facilities by mail, prison visits, via contractors, Department for Correctional Services staff, physical drops over the wall of a prison, and by various other means including by drones, throwing and by bow and arrow.
The economics of supply
Drug testing results from the Department for Correctional Services indicate that buprenorphine is the most prevalent drug that is detected in prison, a result which is not isolated to South Australia. High prevalence of use correlates with high supply, which operates as a downward pressure on price.
When face to face visits for prisoners stopped due to COVID-19, the pricing of drugs in prison increased. The value of items within the prison can be much higher than they are in the general community, including tobacco, needles or syringes, a mobile phone, and alcohol.
The price for Suboxone in the community is significantly less than what it is inside prison. Within the prison environment, Suboxone is highly sought after.
Strips of buprenorphine can be cut down into little squares and sold on.
Payment for illicit items including buprenorphine can be made by exchanges of funds outside prison. There are instances where illicit items have been provided to a prisoner without a financial transaction occurring, and provided by a syndicate the person in custody works for, or by a friend or associate, to assist them. The item might be used by the prisoner or for barter or to get a profile within the prison.
Use of the prisoner telephone system
Monitoring of prisoner telephone calls has revealed instances where a call is placed by one prisoner, and contrary to policy and procedure, another prisoner comes onto the call. There have been instances where the prisoner making the call has made it clear they were doing so on a request by another person to arrange something. This conduct undermines the effectiveness of the telephone system, which has the objective that phone calls be made between known, identified persons, and monitored.
Unguarded conversations and coded conversations occur on prisoner telephone calls. Codes are used in several ways, depending on the level of knowledge of the two people involved. Sometimes the codes relate to a drug and at other times the code word could be something which has no correlation to a drug at all.
Mobile phones in prisons are readily available. They can be very small and capable of being transported over prison walls by an arrow.
Records of interview
The prosecution case relies to a significant extent on identification evidence in proof of guilt. The voices of Mr Votino, Mr Wardle and Mr Allsopp in the records of interview are relied upon to enable a comparison between those recordings and the voices heard in recorded telephone calls, to establish, in conjunction with other evidence, the identities of the speakers in the telephone calls. I have only used the records of interview for that purpose.
Interviews with Mr Votino, Mr Allsopp and Mr Wardle
There are three records of interview with Mr Votino. The first recording was recorded on body worn footage and occurs next to a car by the roadside and continues as he is conveyed from the scene of his arrest and at the police station. Mt Votino’s voice is often less distinct than that of the police officer’s voice. Mr Votino speaks from time to time to ask short questions or make a comment.
Another recording with Mr Votino consists of Mr Votino being cautioned, being advised of the allegations and records a buccal swab procedure. The recording runs for less than 12 minutes. Mr Votino indicates that he would decline to answer questions immediately after being cautioned and is not questioned. Mr Votino speaks about making a phone call and some personal matters but does not speak at length.
The separate interviews with Mr Allsopp and Mr Wardle are very brief. They are conducted in what appears to be a large room. There is noise in the background and the sound echoes. Mr Allsopp and Mr Wardle both speak briefly, predominately to answer yes or no to questions.
In Bulejcik v R (1996) 185 CLR 375, Toohey and Gaudron JJ drew a distinction between voice identification and voice comparison and made observations about the circumstances in which evidence of voice comparison is considered.[16] Consistent with the matters highlighted in Bulejcik, I warn myself about the dangers of making voice comparisons and the matters which make comparison difficult in this matter, which is the small sample of voices of each accused, and the different context and environment in which the voices are speaking.
[16] At pages-394-395.
The records of interviews involved responding to a police officer in the knowledge their responses were being recorded, with the possibility of it being used as evidence. The quality and nature of speech can be expected to be different than in a monitored telephone conversation with a friend or associate.
Prisoner phone calls
Evidence was led regarding the management and operation of the prisoner telephone system from Mr Shaun Barry, manager of security with the Department for Correctional Services and an affidavit of John Evans, manager of intelligence and analytics for the Department for Correctional Services was tendered.[17] That evidence establishes the following about the Prisoner Telephone System (‘PTS’).
[17] Exhibit D9.
Prisoners can access PTS to call persons they have nominated. When nominating a person, the prisoner must provide a phone number, a name for that number, and details of their relationship with that person. Once that information is loaded into the PTS, the prisoner can place calls to the persons on their telephone contact list. The telephone numbers and names are stored on the PTS and given an identifying prefix number between 0-9.
To place a call, the prisoner enters their prison identification number and personal identification number (PIN). The prisoner then selects the prefix number they wish to call from the identifying number 0–9.
All calls on the PTS are recorded. All prisoners are required to read and sign a declaration containing the conditions of use and access to PTS, which is an acknowledgement that administrative action may be taken against the prisoner if they inappropriately use the PTS. Inappropriate use includes using another prisoner’s or an officer’s PIN. Reports can be generated reporting the number or numbers called on a prisoner’s account, the date and duration of the calls.
The prosecution tendered 17 audio recordings of telephone calls,[18] received by investigating officer Brevet Sergeant Aaron Clifton, from the Department for Corrections as being calls from the accounts of each accused made between 1 August 2021 and 30 September 2021 and calls made from the account of Mr Jones from an unidentified period.[19] Each digital audio file containing a call contains a written description of a date, a time, and another number.
[18] The calls are contained on MFI P11, a USB which contains other items the subject of objection. The 17 calls were admitted.
[19] T 90-91.
The following documents were tendered as business records pursuant to s 53 of the Evidence Act 1929 (SA).
The phone number listing for Mr Allsopp.[20] This document is a record held by the Department for Correctional Services, of the names of persons that Mr Allsopp could call on the PTS, which included Julie Allsopp, who is described on the document as Mr Allsopp’s mother, and a “Tony Vorteno” with a mobile phone number ending in 608.
[20] P4.
A recorded call report for Mr Allsopp[21] which records calls that were placed on Mr Allsopp’s account, including calls to the contact “Vorteno” with the phone number ending in 608, on 1 September 2021 at 2:29pm, 5 September 2021 at 3:11pm and 6 September 2021 at 2:01pm.
[21] P5.
The phone number listing for Mr Wardle.[22] This document records persons that Mr Wardle was able to call on the PTS on his account, including a contact described as ‘Anthony Vortino’ with the same mobile number provided for Tony Vortino in Mr Allsopp’s phone number listing.
[22] P6.
The recorded call report for Mr Wardle for the period between 1 August and 30 September 2021.[23] This report records that a phone call was placed from Wardle’s account to the contact Anthony Vortino on 18 August 2021 at 11:12am, 22 August 2021 at 11:00am and 1:10pm, and that a call was placed to the same contact on 24 August 2021 at 2:34pm, 29 August 2021 at 9:48am and 30 August 2021 at 5:39pm. Each phone call has a corresponding file number recorded.
[23] P7.
A phone number listing for the prisoner Alex Jones.[24] This included a contact described as ‘Kelly Lovekin’ with a phone number ending in 275. No recorded call report relating to this account was tendered.
[24] P8.
The documents and recordings were generated automatically, and in the case of the prisoner phone lists, based on information provided by each accused.
The weight and reliability of the matters stated in the documents turns on the whole of the evidence which may tend to confirm or undermine the genuineness of the record, that a prisoner may provide inaccurate information when nominating the names of persons and phone numbers they wish to call, and the possibility that prisoners can use another prisoner’s telephone account to make phone calls. I must also consider the source from which the document is produced, the safeguards taken to ensure its accuracy and any other relevant matter.
There is no basis to consider that the phone number listings and recorded call reports were corrupted through the malfunction of software or in some other way. There was no evidence that the PTS was not operating as expected.
Mr Barry gave evidence that the recorded call reports are accurate, and the data is automatically electronically recorded at the time the phone call is placed. Mr Barry had not personally conducted tests for the accuracy. Each prison has a security coordinator who is trained and accustomed to using the system, and it automatically records through the software.
Dates and times of the calls made from the accounts of Mr Wardle and Mr Allsopp
The recorded call reports (call reports) for the phone accounts establish the dates and times of calls made on Mr Wardle’s and Mr Allsopp’s phone accounts.
The file description of each digital audio file containing a phone call from the PTS does not identify the name of the prisoner from whose account the phone call was made from, but it includes a date and time and another number. It is apparent, from a comparison of these entries to the date and time of the calls and file number of calls recorded in the call reports, that the other number in the digital file description, not being a date or time, is the file number of the call described in the call report.
The times recorded in the digital audio file descriptions are in minutes, whereas the times of calls on the call reports are in minutes and seconds. This results in time discrepancies that are consistent with the times in the digital audio file description being rounded up or rounded down. I do not consider this minor time discrepancy provides a basis to consider the time recordings in the call reports are inaccurate to any greater extent.
I find that the telephone calls that are referrable to the call reports, were made on the date and time as described in the file description for each call.
Dates and times of calls made from Mr Jones’ phone account
The phone calls with a date, time and file number that do not correlate with the dates and times of calls made from Mr Allsopp’s phone account or Mr Wardle’s phone account must have been made from Mr Jones’ phone account.
There is no call report relating to Mr Jones’ phone account. There is no evidence establishing the dates and times that the calls were made or to whom they were made. There is no basis to infer that the digital file description of the date and time for each audio file containing the call is accurate, as there is no evidence establishing how the file descriptions of the audio files were generated. They may have been generated by an automatic process, derived from the meta data, or by manual entry from an unknown data source. The ‘rounding up and down’ of the times recorded in the audio file descriptions when compared to the times recorded in the call reports, is consistent with the dates and times in the audio file descriptions having been manually entered.
I am unable to make a finding about precisely when the calls on Mr Jones’ account were made.
Accommodation arrangements
There was no dispute about the following matters in evidence which I find proven. Between 29 March 2021 and 6 September 2021 Mr Wardle was in custody at the Port Augusta Prison, housed in the Saltbush unit, block B with a total of eight prisoners accommodated in the bedroom.
Between 16 April 2021 and 7 August 2021 Mr Votino was housed in the same bedroom as Mr Wardle. Mr Votino was released from custody on 8 August 2021 and had spent the day prior to release in Block A.
From 7 August 2021 until 6 September 2021 Mr Allsopp was housed in block B, bedroom one.
The Saltbush unit is a residential accommodation unit housing a maximum of 128 prisoners. The unit is divided into four blocks, A, B, C and D. Each block has four divisions in those blocks, upper and lower. Each division can hold a maximum of eight prisoners.
Blocks B and C are adjacent to each other, and run parallel to the northern boundary fence. Each block is divided into bedrooms and common areas. Each bedroom accommodates a maximum of eight prisoners.
The Saltbush unit is more accessible to the public than other units due to its position in relation to the fence line. Consequently, mobile phones have been found in the Saltbush area at a higher rate compared to other areas.[25]
[25] T 57.
The prisoners housed in the Saltbush unit are usually unlocked at about 8:15am with freedom to move around following a count. The prisoners cook their own meals and attend work or other activities including recreation and education.[26]
[26] T 29-30.
Prisoners can access a concrete area between the two blocks B and C but are not permitted past that area. There is no physical barrier stopping them from reaching the northern internal fence.
A prisoner count is undertaken at about 11:30am. The prisoners are then confined to their blocks until shortly after 1:00pm and confined again following a count at 4:30pm. When evening activities are permitted, they are free to roam from about 5:00pm with two hourly counts conducted until the curfew count at 10:30pm. After that time prisoners are secured until the morning.
Findings regarding the transport and firing of the buprenorphine
I am satisfied the evidence establishes the following matters, which were not in dispute.
Firing of the compound bow
At about 6:06pm on 6 September 2021, a grey Mazda was captured on CCTV arriving at a BP service station on the Augusta Highway. A woman emerged from the driver’s seat and two men emerged from the passenger side, one from the front seat and one from the rear seat. By 6:15pm, all three had returned to the same seats from which they had emerged.
The same grey Mazda stopped in a cul-de-sac at the rear of the Port Augusta Prison. Two men exited the car and accessed the boot. One of the men moved towards the prison. The second male got back into the passenger side of the car.
Between 6:20pm and 6:45pm the man who walked towards the prison fired an arrow. The arrow hit the wall of C block and landed on the concrete path between C block and B block, at the feet of two Correctional Services officers. The area where the arrow landed was accessible to prisoners. The male who shot the arrow fled but was stopped by Department for Correctional Services officers. That man was Christopher West.
The grey Mazda was intercepted and stopped a short distance away. Ms Gunn was driving the car and Mr Votino was in the passenger seat. Ms Gunn was the registered owner of the car.
Police seizures
An arrow was seized from inside the prison grounds and deconstructed. The contents were sent to the Forensic Science Centre. The contents comprised 118 absorbent film strips and one partial strip, all containing naloxone and the controlled drug 1.4 Butanediol (buprenorphine). The Chief Executive of the Department for Correctional Services did not authorise the introduction of this controlled drug into the prison.
“The worst thing is to try to shoot as well as your previous shot”.[27]
[27] A 14th century archery treatise in Mamluk-Kipchak, author unknown.
Police seized another arrow located outside the prison, in the scrub between the cul-de-sac and the northern perimeter prison fence. A package attached to the second arrow contained what appeared to be three lollies, emitting a chemical smell and containing diethylhexylphthalate.
A compound bow was found in the scrub a short distance north of the prison fence and seized. A Cash Converters price tag was attached to it, marked with the price of $195.26.
A third arrow was found in the boot of the grey Mazda that had the same appearance to the two other arrows police seized. Elsewhere in the car, police found:
·a Motorola phone;
·a Samsung mobile phone;
·a phone marked Item 31;
·a Blade mobile phone; and
·$300 cash.
Evidence obtained from the seized mobile phones
Motorola phone
The SIM card contained a phone number that was subscribed to Mr Votino. The phone contained images of Mr Votino and a registration certificate in his name. Social media accounts on the phone were registered to ‘Antonio Votino’ and ‘Tony Votino’. The phone contained a Wickr account under the name ‘Stabble Boy’ and recorded the contact ‘Luke’ with a phone number ending in 580.
Investigating Officer Brevet Sergeant Aaron Clifton gave evidence that messages extracted from the phone were sourced from Wickr and collated in a bundle[28]. The content of some of the messages indicates that some are sourced from other applications, including Facebook. Nothing turns on this discrepancy and I am satisfied all the messages were extracted from Mr Votino’s phone.
Samsung phone
[28] MFIP 12
The Samsung phone contained images of Georgina Gunn and social media accounts in her name. A service number ending in 843 was subscribed to Georgina Gunn in the period between 1 August 2021 and 6 September 2021. The evidence does not establish that the Samsung phone located in the Mazda used that service number. Messages in the Wickr app on the Samsung phone of potential relevance to the investigation were collated in a bundle.[29] I am satisfied that the Samsung phone was used by Ms Gunn.
Black mobile marked item 31
[29] MFI P13.
The contents of this phone included an image showing a Wickr application and images and videos of Mr West. There was evidence that the investigating officer had been informed about a fingerprint match relating to this phone, but no admissible evidence regarding fingerprint evidence was led. I disregard the evidence that the officer was told about a fingerprint match.
The contents of the Blade mobile phone could not be extracted.
Cash converters purchase
On 3 September 2021, Mr Votino purchased a bow from Cash Converters.
Who is “Vortino” in the prisoner phone number lists?
I am satisfied that the contact ‘Vortino’ on the phone number lists for both accused was Mr Votino. The spelling ‘Vortino’ is consistent with being a misspelling of ‘Votino’. Mr Votino was the subscriber to the phone number provided for the contact Vortino.[30] The Motorola phone containing the sim card with his subscriber details was found in Ms Gunn’s car.
[30] D9 affidavit of Jason Betts.
I am satisfied the evidence establishes the person answering the calls made to the contact ‘Vortino’ was the one person. The voice of the person answering the calls is consistent and distinct.
There is other evidence that supports the conclusion that the contact ‘Vortino’ was Mr Votino. The person answering the phone calls made to the contact ‘Vortino’ makes comments consistent with having previously been an inmate. An example is in a telephone call on 22 August 2021 made on Mr Wardle’s phone account. The man answering the call asks who is in the accommodation with the prisoner. His responses are consistent with him being familiar with the people being mentioned.
The user of Mr Allsopp’s account referred to the contact Vortino in calls as ‘Jockey’, and ‘Jock’, and the user of Mr Wardle’s account referred to that contact as Jockstar and Jockalee, nicknames which correlated with the theme of the username of the Wickr account on the Motorola phone that I am satisfied was used by Mr Votino, “Stabbleboy”.
I find that the person answering the calls to the contact “Vortino” was Mr Votino. I have reached that conclusion without relying on the record of interview conducted with Mr Votino.
Text messages sent by Mr Votino, Ms Gunn and Mr West - non hearsay use
The text messages sent by Mr Votino from his Motorola phone reveal that on 31 August 2021 he made enquiries to find a person who could send an arrow over a fence, he contacted Ms Gunn on 15 August 2021, 1, 3, 4 and 5 September 2021, and on 5 September 2021 enquired whether Ms Gunn could take him and another to Port Augusta and contacted Mr West on 6 September 2021. Messages from Ms Gunn’s phone show contact on 6 September 2021 in the early afternoon with Mr West.
The messages show that the users of those phones were both in contact with each other at those times, tending to show that Mr Votino, Ms Gunn and Mr West were known to each other, and were engaged in the same unlawful common enterprise.
The phone calls recorded on the Prisoner Telephone System
Each phone call commences with an automated recording stating, “this call is coming from the Port Augusta prison and will be subject to monitoring and recording, if you do not wish to receive this call hang up now. If you have any concerns about a prisoner’s wellbeing, please contact the prison immediately, go ahead please”.
The following chronology contains a summary of the relevant conversations on calls made from Mr Wardle’s phone account and the calls made from Mr Jones’ account, which on the prosecution case, are all made by Mr Wardle.
I am satisfied that the calls that are relied upon and said to be made from Mr Wardle’s phone account and Mr Allsopp’s phone account, were made on those respective accounts, to Mr Votino.
I have had regard to the quality and quantity of the material during the process of listening to the calls side-by-side, comparing the calls to each other and to the records of interview. The quality of the audio of the recorded interviews is distinctly different from the quality and nature of the audio of the calls. At times in the phone calls, the prisoner on the call speaks quickly.
I set out the calls relied upon by the prosecution in chronological order.
Calls made from Mr Wardle’s phone account
The first call relied upon occurred on Wednesday 18 August 2021 and was made to Mr Votino. The caller refers to Mr Votino as ‘Jockalee’ and Mr Votino refers to the caller as ‘Nick’.[31] The matters discussed indicate the men have a close relationship, and that Mr Votino is willing to undertake a task for the caller, involving posting a picture to a person for a joke. The prisoner also asks Mr Votino to say hello to ‘Simo’ and asks Mr Votino to keep his girl out of trouble if he can. The prisoner asks Mr Votino to keep trying and “keep on it I don’t know what’s going on with it, they don’t tell us nothing”. Mr Votino says he will call every morning at 8:30, that this morning was a no go and “Due to...they’re going to review it Friday yeah”. The prisoner says he will call in a few days. Mr Votino says he loves him.
[31] The prosecution did not seek to rely on the use of the name ‘Nick’ by Mr Votino as an exception to the hearsay rule and I have not used it in that way.
The next call to Mr Votino was made on Sunday 22 August 2021 just after 11:00am. Mr Votino said, “I’ve been ringing, I’ve been ringing them…Ah yeah it’s not happening this week”. The prisoner told Mr Votino, in response to an enquiry, that the persons now in ‘the house’ were “Oblect, Deano and Drunk” and that it is a good house.
It is possible that the ‘house’, meant the bedroom in which the prisoner was housed. If he was referring to the bedroom, his answer suggests that four prisoners were sharing the room at that time. This is important, because during the relevant period Mr Wardle shared a room with seven other prisoners.
The reference to ‘Deano’ being in the ‘house’ is circumstantial evidence consistent with the caller being the accused Mr Wardle, who at that time was housed with Dean Allsopp. There is no evidence identifying ‘Oblect and Drunk’ nor is there any evidence establishing the location of the phone used to place the call.
The prisoner asks how Simon was going. Mr Votino says he was alright and had intended to see him on Friday, but they did not catch up. The prisoner tells Mr Votino that he has taken everyone off his phone list and visit list.
There is no evidence that Mr Wardle at a time proximate to this call removed or changed the persons on his phone number list. The phone number listing for the accused Mr Wardle records that Mr Wardle had 10 contacts that he could call, including Mr Votino. There was no evidence establishing the precise date range that this phone list operated, but it is possible that this was the list that applied to Mr Wardle’s phone account between 18 August 2021 and 31 August 2021. The prosecution case was presented on that basis.
Mr Votino tells the prisoner that he had been past his house on Friday night, that he goes there every couple of days, and is trying to go around there and clear up the yard with his dad.
The prisoner then refers to the previous topic and asks, “What are they saying when you tried, just try next week or they say no?”.
Mr Votino says he did not have a definite answer and that they just say to keep on trying. He said when he asked if he should ring tomorrow morning, he was told, “she goes yeah ring tomorrow morning…she goes that’s the best thing is just ring in the morning”, and that she said it could change overnight. The prisoner tells Mr Votino he will call in a few days.
On 22 August 2021 a call was made to Mr Votino. The prisoner refers to Mr Votino as “Jockstar”. The prisoner asks if he can “swing past mine quickly” and Mr Votino says yes. The prisoner states he’ll call back in 10 minutes. There is no evidence that a further call was made ten minutes later.
On 24 August 2021 a phone call was made to Mr Votino’s phone number. The prisoner placing the call on Mr Wardle’s account says, “Hello”. There is no response.
29 August 2021
On 29 August 2021 a call is made from Mr Wardle’s account to Mr Votino. The prisoner asks how he is and if he has seen Max. Mr Votino conveys that he has contacted him, has not received a reply, but will “go past there today”.
Mr Votino tells the prisoner that he spoke to “that bloke” and said, “remember I said for him to go see that bloke, that bloke reckons he’s got like nothing, full of fucking bullshit”. The prisoner tells Mr Votino to speak to Max and ask him if he can wait until he gets out, to work something out with him.
Mr Votino asks if everything was okay with him and Kim. The prisoner says he does not know and is not allowed to speak to her.
On the prosecution case, Mr Votino’s reference to Kim in this call is a reference to the woman who participated in a call made from Mr Jones’ phone account. There is no evidence establishing the date and time of this call.
The prosecution case is that the comment that the prisoner is not allowed to speak to Kim, explains why the prisoner used another account to contact Kim. There is no evidence that might explain or verify that Mr Wardle was not allowed to speak to a woman with the name Kim. There was no evidence of any restrictions put in place by prison staff, or the existence of an intervention order, that might have operated to restrict Mr Wardle’s ability to contact a person with the name Kim.
Nonetheless, I am satisfied that the user of Mr Wardle’s account and Mr Jones’s account in the specified calls is the same person for reasons I later address.
The prisoner asks Mr Votino if he has been to see “Bazza”. Mr Votino tells him he has been trying to get in contact with him, but that apparently it was “all sorted”. The prisoner says he does not think it is sorted. Mr Votino says he has been trying to get in contact with him but that no one wanted to provide his number. Mr Votino says that he is planning to see Simo at his work on Monday. The prisoner says, “Got somebody that can do yep”. Mr Votino says, “he said he was going to be in contact with “Bazz” and “He’s the only one that”, without finishing the sentence. The prisoner says, “Even if you still find somebody anyway, I don’t know” and that was nothing was sorted.
The prisoner askes Mr Votino if he had posted the picture for the joke they had previously discussed. Mr Votino says he will post it and will not put his handwriting on it.
The prosecution submits that by asking Mr Votino if he had seen ‘Bazza’ and by saying that nothing had been sorted and encouraging Mr Votino’s offer to contact someone, the prisoner guided Mr Votino to carry or transport a controlled drug into the prison.
In support of this submission the prosecution relies on a call made on Mr Jones’ account said to be made on 25 August 2021, in which the prisoner instructs Mr Votino to speak to ‘Bazza’ and prompts him to recall what he had been asked to do, and then says, “Robin Hood”. For the reasons I have provided I am not satisfied the evidence establishes that call was made on 25 August 2021 or a time proximate to the alleged offence. That call is not capable of shedding light on the topic being discussed in the calls made from Mr Wardle’s phone account.
The evidence does not disclose the identity of ‘Bazza’. There is little evidence in this or in the preceding calls to support an inference that the attempts to contact ‘Bazza’ have any connection with guiding or encouraging Mr Votino to carry or transport a drug into the Port Augusta Prison, particularly given that the user of Mr Wardle’s phone account asks Mr Votino to carry out numerous tasks for him.
30 August 2021
On 30 August 2021 a call is made from Mr Wardle’s phone account and the prisoner refers to Mr Votino as “Jockstar”. Mr Votino says he has been trying to get in contact with “the other cunt” and that he is difficult to contact. Mr Votino confirms he is referring to ‘Bazza’. The prisoner says that he thinks Deano spoke to Luke that day and that he thinks that he is going to give Mr Votino a ride, but he does not know.
The prosecution relies on this conversation as evidencing knowledge that only Mr Allsopp’s cell mates could have, as Mr Allsopp had “Luke Bollenhagen” as a contact on his phone list, who had the same phone number as recorded in Mr Votino’s Motorola phone for the contact ‘Luke’. That a person with the name ‘Luke’ appeared on his phone list does not of itself prove that Dean Allsopp spoke to a Luke, but it is evidence consistent with ‘Deano’ being Dean Allsopp.
There is no evidence of any calls made from Mr Allsopp’s phone account to his listed contact ‘Luke Bollenhagen’ or any other person who may be ‘Luke’.
The prisoner said, “We told him to to ring Simo and give him your number or maybe, do you want to ring Simo and get his number and ring him?”. Mr Votino agrees. There is no evidence of any calls made from prison to a person who might be ‘Simo’, or calls made to a person who was instructed to call ‘Simo’.
The prisoner says, “And just ask if he can”. The prisoner’s attempt to connect Mr Votino to a person who can drive him somewhere and the suggestion to contact ‘Simo’ is relied upon as evidence of directing a step in the process of sale.
Mr Votino then tells the prisoner that he has a car but cannot register it until he gets his licence. Mr Votino asks, “Why do you need?...”, and the prisoner says, “Just swing past mine again”. They then discuss other matters.
In response to Mr Votino saying that he “will ring Lukey now” and it would be likely to be either this Friday or Monday, the prisoner says, “Just get him to tell Deano when”.
There is no evidence of any call then occurring between Mr Allsopp and the contact, ‘Luke Bollenhagen’, or any other person who might be ‘Luke’.
“Words are like arrows, once shot they cannot be called back”[32]
[32] English proverb.
A conversation then occurs that is difficult to follow, as the prisoner speaks in a guarded manner.
The prisoner asks Mr Votino if he remembered that he said he changed his mind and said the different way.
Prisoner: “First I said one way and then I said oh go that way”
Mr Votino: “Ah...”
Prisoner: “Behind Troy’s”
Mr Votino: “Yeah yeah yeah yeah yeah yeah”
Prisoner: “I reckon the first way is better”
The prisoner asks Mr Votino to “get Luke and tell Deano the details, I’ll get Deano to call him tomorrow”. The prisoner says that he’ll tell him to call Luke tomorrow, and he (Luke) can tell Deano.
The prosecution case is that the instruction to “get him to tell Deano when”, and the coded instruction about which ‘way’ was better, amounts to directing a step in the process of sale, being the carrying and transporting of the buprenorphine.
There is no evidence that identifies Troy, or where ‘Troy’s’ might be. The user of Mr Allsopp’s account also speaks to Mr Votino about ‘Troy’s house’ as outlined below.
The lack of contextual detail made it difficult for Mr Votino to understand the meaning; there was a pause before Mr Votino’s initial response, which carried an uncertain tone. I am satisfied the prisoner was intentionally withholding detail that he did not want overheard.
It is possible the attempt to contact ‘Bazza’ was about arranging transport for Mr Votino to travel to Port Augusta for the purpose of transporting buprenorphine but there is scant detail in these phone calls to understand their context. The meaning conveyed and understood by Mr Votino appears to draw on other communications that are unknown. The content of the calls carries the risk of circular reasoning highlighted by defence counsel, that of reasoning from a starting point that the caller was guilty of participating in Mr Votino’s delivery of buprenorphine, and to reason that this is what the prisoner was discussing.
At the end of the call the prisoner asks if Mr Votino is going to go past his house and asks him to go past and check.
Calls made from Mr Allsopp's account
The following chronology contains a summary of the relevant conversations on calls made from Mr Allsopp’s phone account.
“An archer cannot hit the bullseye if he doesn’t know where the target is” - unknown
On 1 September 2021 at 5:52pm a prisoner using Mr Allsopp’s phone account calls Mr Votino.
The prisoner says, “Yeah it’s Deano ah, old mate asked me to call but he said not to go past your brother in laws house, ah past your old house would be better”. He then says, “you know where you were living. At the same time”. He clarifies that this is where Mr Votino was living with ‘old mate’ instead of ‘Troy’s’. If the prisoner is Mr Allsopp, and he is referring to Block B in the prison, he is referring the block where he then resided.
Mr Votino says that he is having trouble organising it, that even getting up there has been an issue.
The prisoner says, “Can you ask Cheese for a lift if he can organise a lift or Barry”. Mr Votino talks about the difficulty in contacting ‘him’.
The prisoner says, “just let me know the date that you’re going to go past my friend’s house, and I’ll call you every day so you can let me know”. Mr Votino says he is not going to let him down, but he is having issues. The prisoner says he will call again tomorrow.
On the prosecution case, Mr Allsopp guided Mr Votino to carry or transport a controlled drug to the prison in the conversation and that the reference to Votino’s ‘old house’ referred to a location in the prison, presumably block B where Mr Votino had been housed with Mr Wardle, and that he offered solutions for transport.
The abstract, guarded instructions provided by the prisoner indicate that he did not want anyone other than Mr Votino to understand what he was conveying. The prisoner expressed his interest in receiving timely information from Mr Votino about the plan to go past a house.
There is no evidence that identifies the ‘brother in laws’ house as a location within the prison, or whether a prisoner named Troy was accommodated in one of the other blocks. The arrow carrying the buprenorphine hit the wall of block C. On the assumption that the instructions were a coded way of saying the arrow should be fired to a location behind block B, either the instructions were not followed, or the arrow landed in range, but missed its target.
3 September 2021
In this call Mr Votino advises the prisoner he had been to buy something from “Cashies”, and he thinks he is going to “burn those fucking movies around Monday”, that he was waiting for someone to come around and mentions “6”. When asked if he recalled what time old mate said, Mr Votino says, “6:30 or something like that”. The prisoner agrees to keep in touch with Mr Votino, who says he will do ‘the two movies like you asked’ and that the first one will be alright, but the second will be a better copy.
The prosecution relies on the conversation on 1 September 2021 with the relayed instruction to go past ‘his old house’, and the conversation on 3 September 2021, as conduct by Mr Allsopp directing a step in the process of sale. The prosecution submits that the item Mr Votino said he bought from “Cashies” was the compound bow and that the reference to burning two movies is consistent with the two different parcels found on two arrows, one containing the buprenorphine and the other containing no controlled drugs.
The prosecution submit it can be inferred that Mr Allsopp had asked Mr Votino to carry or transport the packages. The conversations are consistent with this, when considered alongside the evidence of Mr Votino’s involvement in transporting the buprenorphine. The conversation on 1 September 2021 is a relayed instruction that could amount to guidance regarding the trajectory of delivery.
No request to carry or transport anything was made in the conversation on 3 September 2021, and no express guidance or other statement was made that would, of itself, be conduct constituting a direction.
5 September 2021
The prisoner calls Mr Votino ‘Jock’ and asks if he is still catching up with Barbie tomorrow. Mr Votino says, “Yeah I reckon should be about 6:30”. The prisoner says he will call tomorrow to make sure if he is going to see her or not.
6 September at 2:01pm
The prisoner calls Mr Votino ‘Jock’ and asks what he is doing.
Mr Votino says, “Nah fuck all just ah yeah on the way”.
These conversations are also relied upon as evidencing a direction or guidance, or encouragement with respect to the transport of the buprenorphine. When they are each viewed in isolation, neither contains a direction, guidance or encouragement. The prisoner only receives information from Mr Votino. Viewed in combination, the prisoner’s conduct in regularly checking in with Mr Votino to monitor his travel, is capable of amounting to encouragement of Mr Votino’s undertaking.
A band of merry men?
The prisoner responds, “oh yep all good no worries, I’ll let em know that you’re coming”. It is plain the prisoner understands, without being told, where Mr Votino is going.
I find that the prisoner was seeking updates on Mr Votino’s arrival time, which is consistent with his knowledge and interest in Mr Votino’s travel.
The words, “I’ll let em know that you’re coming” are spoken quickly and they run together. I have listened to it carefully on multiple occasions. The prosecution submitted that the male, who on the prosecution case is Mr Allsopp, said, “I’ll let her know that you’re coming” and that the pronoun ‘her’ was a coded reference to Mr Wardle.
The quality of the audio does not permit a finding that the prisoner said “her”. At that point the audio is unclear. I have listened to it carefully and do not consider the word sounds like ‘her’. It would be unusual for the speaker to use the pronoun ‘her’, when previous references to an unnamed person or persons have been “old mate”.
After careful review, I cannot exclude the possibility that the user of the account said, “I’ll let em know you’re coming”, meaning either “him” or the plural, “them”.
The possibility that the prisoner was referring to multiple persons is relevant to the assessment of whether the prosecution can establish that any proven conduct by the accused was undertaken with the intention to sell. It is possible that the user of Mr Allsopp’s account was indicating he would tell more than one person to keep a look out for the delivery and possible that he was not intending to personally collect the item.
The prosecution submits that the calls made on 5 and 6 September 2021 on Mr Allsopp’s phone account amounted to further examples of guidance and encouragement of Mr Votino’s act of carrying or transporting a controlled drug.
The calls made on Mr Allsopp’s account are brief and there are less calls to consider compared to calls made on Mr Wardle’s account, but I have considered them carefully and am satisfied that each call is made by the same prisoner.
Calls made from Mr Jones’ phone account
Each call is identified with reference to the number containing the transcript provided as an aide.[33] It is the prosecution case that the male prisoner placing each call is Mr Wardle.
[33] MFI P14.
Call 5
A call is made from the prison and a woman answers. The prisoner refers to the woman with affection.
The woman tells the prisoner that “Jocky”, was there and that she might get him to get her a burger from the fish and chip shop. They discuss other personal matters. The prisoner then asks what Jocky was doing and that he wants to ask him something. The woman says, “Jocky, Jocky… Here Nick wants to speak to you”.[34]
[34] As with the previous reference to the name ‘Nick’ in a call on Mr Wardle’s account, the prosecution did not rely on this as an exception to the hearsay rule and I have not used it in that way.
A second male voice says hello and the prisoner calls him “Jock”, who on the prosecution case is Mr Votino. The voice of the person answering to the name Jocky and variations of that name, is indistinguishable from Mr Votino’s voice heard on the calls from Mr Wardle’s and Mr Allsopp’s phone accounts.
The prisoner says:
Can old mate here was just wondering, can you speak to Bazza and remember what I asked you to do.
The man says, “Yep. Yeah” and the prisoner responds, “Robin Hood”. The prosecution case is that this is a reference to the intention to fire drugs into the Port Augusta prison with a bow and arrow.
There is no anchor point from which to infer that this conversation related to the alleged offending, in the absence of other evidence proving the date of this conversation. That the prisoner mentioned a person that legend describes as an outlaw archer and master of disguise, and referred to ‘Bazza’, a name referred to in a call on Mr Wardle’s account, are not sufficient to prove that these conversations related to the charged conduct that is partialised as occurring between 24 August 2021 and 7 September 2021.
The caller tells him to speak to Bazza if he’s got someone. When the man responds, “Yeah yeah yeah if not, I said I’ll work something out”. The prisoner responds, “So not not you, but yeah see if he can find someone”.
The prosecution case is that the words, “see if he can find someone” amount to an instruction or at the very least guidance from Mr Wardle to Mr Votino, about what to do and how to go about it. It is submitted that this amounts to directing a step in the process of sale and that these words alone establish that this person, alleged to be Mr Wardle, directed a step in the process of sale.
The male says no worries, and that he is having trouble getting in contact with ‘him’ but he’ll have a chat to ‘Swissy’. The prisoner said, “Tell him that Dean, tell Swissy that Deano fucking asked could he get in touch with him?”.
The male agrees.
The reference to ‘old mate’ at the beginning of the conversation is consistent with the caller passing on a message from ‘old mate’ about ‘Robin Hood’. The possibility that he is passing on a message is supported by the prisoner asking ‘Jocky’ to tell another person, Swissy, that Deano asked could he get in touch with him.
The prisoner thanks the male for going to his house and checking on Kim.
The two men tell each other they love each other. The prisoner then resumes a conversation with the woman he had been speaking to. The prisoner tells the woman that Jocky will help her with whatever she needs him to do. I infer that the prisoner trusts and has confidence in ‘Jocky’.
Call 8
A prisoner speaks to a woman. They discuss personal matters. The prisoner asks whether Jock is coming over today. The woman tells him that he is here now.
The prisoner asks to speak to him, and a male voice comes on the line. The prosecution relies on the following conversation as evidence of directing a step in the process of trafficking.
The prisoner asks if the man has contacted Luke. The man says that he did, that Luke does not have wheels, but he has some other avenues worked out.
The prisoner says, “nothing to do with my girl though” and that he does not want anyone using her car.
The prisoner says, “what about not this week but next week” and is told by the man that it will be next week.
The prisoner says, “Yep next week on the day and time we said”. The man says it will be around Monday or Tuesday.
Prisoner: “At the time we said before, do you remember?”.
Second man: “I’ll have to test it out, it might be, it might be, it might be”.
Prisoner “Oh don’t worry about it if you can’t, huh. I don’t want to say yeah all good”.
Prisoner: “Oh it might be Troy’s one or it might be there. Alright I’m onto it though”.
The prosecution submits that in call 8, Mr Wardle was guiding Mr Votino’s efforts to get himself to Port Augusta and forbidding him to involve ‘Kim’. By suggesting, “not this week but next week” it is submitted he was further guiding Mr Votino in the introduction of drugs into the prison.
Call 9
The prisoner asks the woman who answers, to tell Jock that Deano is going to ring him in a minute, and later in the conversation asks whether Jock has his phone on. There is other conversation between them that is not relevant.
Call 11
The prisoner asks the woman who answers whether Jock has a licence and says, “You know when he’s going to come, do you know when he’s going for a drive or not”. and is told that Barbie is going to drive him everywhere, and that Barbie is Georgina, or ‘Gina’.
Call 15
The prisoner speaks to a woman about some court proceedings and other matters and then asks, “Oh did, do you know if horse rider went away today”. The woman says yes, and the prisoner says, “My mate’s going to ring you anyway”.
Call 17
The prisoner speaks to a woman. After some general conversation the prisoner asks the woman, “Did you ah with ah horse ride”, and she responds that she has not heard back. The prisoner asks if she wants to try again quickly, or even Barbie. The woman says, “let me try Barbie”.
The prisoner says she does not need to tell him what they say, just if they are on time.
They discuss other things, and the prisoner asks, “Did Barbie answer?” A phone can be heard ringing in the background. When the ringing stops the woman speaks as though she is speaking to someone. She asks, “what time will you get to the hotel?”.
After saying goodbye, the woman then tells the prisoner “he’s super excited he’s like they’re going to reach the hotel in like half an hour, 20 minutes - half an hour”. They then discuss other matters. Before saying goodbye, the prisoner says he has to go in, have dinner and relax, and “I’ll stay inside tonight”.
Is the same person using Mr Jones’ phone account and Mr Wardle’s phone account?
I am satisfied that the male person the prisoner was talking to on Mr Jones’ phone account was Mr Votino, given the similarity in his voice and that he is referred to as Jock or Jockey, a nickname that is consistent with the name used by Mr Votino in text messages, including the first message he sent to Ms Gunn on 17 August 2021.
The prisoner who speaks on Mr Jones’ phone account often speaks in a different tone when he speaks to the woman he calls ‘Kim’, compared to when he speaks to Mr Votino.
I have listened to the calls carefully and I am satisfied that the male voice heard using Mr Wardle’s phone account is the same voice on each call placed from that account. I am also satisfied that the user of Mr Wardle’s account is the same prisoner using Mr Jones’ account to speak to a woman referred to as Kim and to ‘Jockey’, who is Mr Votino. I draw this conclusion based on the following matters:
·Mr Votino is referred to by the user of Mr Wardle’s account as Jocky. In calls on this account Mr Votino tells the prisoner he is assisting ‘Kim’ and going around to her place and is thanked for doing so;
·The user of Mr Jones’ account speaks to a woman, he refers to as ‘Kim’, and speaks to ‘Jocky’ who is present with her;
·The common topics discussed between the user of the accounts and Mr Votino and ‘Jocky’; and
·There is no discernable difference between the male voice heard using the Jones account and Mr Wardle’s account.
The most loyal of the merry men? The nature of the relationship between the user of Mr Wardle’s phone account and Mr Votino
The evidence reveals a particular dynamic in the relationship between Mr Votino and the user of Mr Wardle’s account and Mr Jones’ account.
Mr Votino was more than willing to assist in the tasks he was asked to undertake, including visiting the prisoner’s house and checking on his partner. Mr Votino’s expressions of affection for the caller were not always returned. There was no indication that Mr Votino was expecting a reward or payment in exchange for his time and efforts and no indication that the prisoner anticipated that Mr Vontino wished or expected to be financially rewarded for the tasks he undertook.
There is a risk of inaccuracy in attempting to assess the nature of a relationship between persons based on a snapshot of selected, monitored phone calls, however the dynamic in the conversations between Mr Votino and the caller using Mr Wardle’s phone account and Mr Jones’ phone account was consistent with Mr Votino wanting to demonstrate loyalty to the prisoner, and the prisoner trusting Mr Votino and having an expectation of loyalty. The nature of their interactions did not suggest a commercial relationship.
In that context, it is not implausible that Mr Votino would undertake tasks or be asked to undertake tasks at a potential personal cost and risk, without an intended commercial benefit.
Co-conspirators rule
Testimonial purpose
The prosecution relies on text messages made by Mr Votino and Ms Gunn not made in the presence of either accused in the case against both accused, and relies, in the case of Mr Wardle, on phone calls made by Mr Allsopp not in the presence of Wardle, and in the case of Mr Allsopp, relies on phone calls made by Mr Wardle, not in the presence of Mr Allsopp. A separate ruling provides reasons for my finding that there is reasonable evidence of pre-concert between Mr Allsopp, Mr Votino and Ms Gunn at the time of the communications, but not in relation to Mr Wardle.
It is still necessary for the evidence sought to be admitted against Mr Allsopp to be an act or utterance in furtherance of the common purpose.[35] Acts or utterances ‘in furtherance’ of the common purpose will usually be ‘directions, instructions or arrangements or …utterances accompanying acts’ to further or carry out the common purpose.[36] An utterance which is no more than a narrative of a past event is not made in furtherance of the common purpose.[37]
[35] Ahernv R (1988) 165 CLR 87; (1988) 80 ALR at [100]; Corakv Palmer (1982) 30 SASR 404 at [405].
[36] R v Masters (1992) 26 NSWLR 450 at [461]; Tripodi v The Queen (1961) 104 CLR 1, 7; [1961] HCA 22.
[37] Tripodi at [6]-[7]; [79]; Masters at [461].
The rule does not depend on proof of a common purpose to commit the ‘very offence charged’,[38] but instead depends on proof that ‘several persons...have combined together for the same illegal purpose’.[39]
[38] Catanzariti v R [2021] SASCA 110 [170].
[39] Ibid at [173].
I am satisfied that the following utterances, being text messages sent by Mr Votino and Ms Gunn relied upon by the prosecution, were made in furtherance of the unlawful common purpose and are admissible against Mr Allsopp for their truth. I disregard the other text messages that have not admitted pursuant to this rule or admitted for a non hearsay purpose.
Messages sent by Mr Votino
·On 31 August 2021: ‘Hey bro I was wondering do u no any one that will send an arrow over the fence we’re we were at I’ll fix them up with wat they want to do it, it for owe mate there’; ‘I thought I had it sorted but fella backed out last min’
·On 31 August 2021 to the contact ‘Luke’:
·‘I need some to send an arrow into you no were I’m not sure if he ment u I think u were gonna help with the wheels but I’ll fix them up wat ever they want and give them everything they need’; ‘I don’t really want to do it unless I really have to’; and ‘Do u think u could find someone’
·In response to ‘will you have everything else sorted?all he has to do is shoot it really hey’: ‘Yea’; ‘Ur a legend if it come down to it I would do it but if u gat some that has done before Killa I didn’t want to do unless I really had to’; ‘Friday night or Monday night what ever works better for him’;
·‘Hey bro let me no wat the go is as soon me as u can cheers’
·In response to ‘Hey bro.I spoke to someone.he’s not to sure if can,coz is up there.and has never done an arrow.said will let me know.not to sure who else I can ask.will try find someone if ya stuck.’: ‘Yea plz even if it’s gotta be for a little more coin and I’ll get him up there’
·‘Hey bro sorry to msg again but ether way if I need a lift up there can u do that or u need wills’
·On 1 September 2021: ‘Sorry at friend but I really need to speak to him regarding dino’
·On 4 September 2021: ‘Hey morning I am wondering if u have Ur car and are free to drive some were Monday or Tuesday’
·On 5 September 2021 to Georgina Gunn: ‘Hey can u take west and I to port Augusta tomorrow plz and how much coin do I have to give ya’; ‘Let me no asap plz’.
Messages sent by Ms Gunn
·On 5 September 2021 in response to ‘Hey can u take west and I to port Augusta tomorrow plz and how much coin do I have to give ya’: ‘I can do that it’s up and back trip?’; ‘What time?’; ‘Depends on how much we stopped a good 3 and a half hours. I don’t mind doing it in one day?’; ‘Who am I taking? Does our friend know about this?’; ‘I use to go up there a bit. Would 300 be ok? :)’
·On 6 September 2021 at the following times:
·11:41am: ‘Hey hun just confirming your friend asked if it’s ok to drive to port Augusta today. I said I’ll do it for you but only if I can go up and straight back.’
·11:46am ‘And bring 500 of the stuff for him? Just wanted to check with you first. Sorry hope your feeling better x’
·12:36pm in response to a message from Mr West, ‘Um are U coming pass mine first cos we can’t smoke up in front of stableboy that all cos he clean now’: ‘I might have to get him first can you use the toilets? Lol’; ‘He said to pick you up first so you can do yuour thing lol’
·12:48pm to Mr West, ‘What’s the addy?’
·Between 12:49pm and 12:50pm to Mr West, ‘I’ll message when leaving’; ‘I’ll probably be leaving at 1:15 just running a little late sorry’
·12:51pm to Mr Votino, ‘500 worth I think he said’
·1:19pm to Mr West, ‘Sorry leaving in 5’
·1:36pm to Mr Votino ‘On the way’
·Between 1:52pm and 1:56pm to Mr West ‘Here’; ‘Mazda 3’.
The assertions in the messages were made in furtherance of the unlawful common purpose as they relate to the making of arrangements to travel to Port Augusta to carry and transport the buprenorphine. The messages sent by Mr Votino on 31 August 2021 plainly related to plans to deliver the Suboxone by arrow and the subsequent messages related to travel arrangements to Port Augusta for that purpose. The assertions were made in furtherance of the alleged offending and are admissible against Mr Allsopp for their truth.
Analysis and findings
I have taken into account all the evidence and considered the parties’ submissions. I have assessed whether the prosecution has established its case beyond reasonable doubt by considering the totality of the matters which have been proved, rather than assessing piecemeal each individual circumstance.
Someone knew that a delivery was on route to reach its target– who was it?
Mr Wardle
I place little weight on the recording of Mr Wardle’s voice in his record of interview, given the small sample and the different nature and quality of the sound, compared to what can be heard on the PTS calls. The most that can be said about the record of interview recording is that there is no characteristic in the recording that clearly distinguishes Mr Wardle’s voice in the record of interview from the voice heard on the calls.
The evidence that is relied upon as establishing identity is consistent with the user of the account being the accused Mr Wardle. The prisoner was using Mr Wardle’s phone account, there was a lack of obvious difference between the user’s voice and the recording of Mr Wardle’s voice, and the nature of the relationship between the prisoner and Mr Votino was consistent with them having been housed together in prison. The prisoner using Mr Wardle’s account claimed that ‘Deano’ was in contact with ‘Luke’ and Mr Votino referred to the user of the account as ‘Nick’. Mr Votino’s interest in knowing who was in the ‘house now’ was consistent with him making an enquiry about who was now housed in the room that Mr Votino had previously been accommodated in.
In combination these matters support a finding that it is likely the user of the account is Mr Wardle, but the whole of the evidence does not exclude the possibility that it was someone else.
That possibility arises from the spontaneous comment by the prisoner in the call on 22 August 2021 on Mr Wardle’s phone account that he had removed everyone from his phone list. There is no basis to give a narrow reading to the comment so that it might have referred to a particular category of persons. The ordinary meaning of the words is that the prisoner had removed all his contacts from his phone list.
If Mr Wardle had removed everyone from his contact list, he would not have been unable to call anyone from his account, including Mr Votino. There is no apparent reason why the spontaneous comment could be untrue. The prosecution case is that Mr Wardle’s phone number listing recorded the persons he could contact on the PTS during the relevant times. If that is correct, the only plausible explanation for the comment is that someone other than Mr Wardle was using the account.
It is not implausible that a prisoner had removed his personal contacts from his own account and was using Mr Wardle’s account to have conversations with Mr Votino that he did not want sheeted home to him personally.
It is known that prisoners use other prisoner’s accounts to make calls, despite the rules that apply prohibiting that practice. It can reasonably be expected that a prisoner will be more inclined to use an account other than their own in breach of those rules if they intend to make a call to communicate about nefarious activities.
Adding to the possibility that the caller was someone other than Mr Wardle, is that the prisoner using Mr Wardle’s account referred to four people being in the ‘house’, which on the prosecution case was a reference to a bedroom. This does not fit well with the ‘house’, being Mr Wardle’s bedroom, which housed a total of eight prisoners at the time.
The reasonable possibility that the prisoner using the account was someone other than Mr Wardle is not excluded.
Mr Allsopp
As in the case against Mr Wardle, the prosecution relies on the combined force of circumstantial evidence regarding identity.
I have listened to the prison calls carefully and I am satisfied that the male voice heard using Mr Allsopp’s phone account is the same voice on each call. As with the recording of Mr Wardle’s voice, I place little weight on the recording of Mr Allsopp’s voice, for the same reasons. The most that can be said about the record of interview is that there is no characteristic in the recording that clearly distinguishes the voice from the voice heard on the calls.
A master of disguise deceives the Sheriff?
That the prisoner was using Mr Allsopp’s account, and that the rules of use make it less probable that another person consistently used Mr Allsopp’s phone account, are matters consistent with the prisoner being Mr Allsopp. That probability is lessened by the known possibility that prisoners do use other prisoners’ accounts, for the same reasons I have provided in relation to Mr Wardle.
The prosecution relies on the phone call made on 1 September 2021 from Mr Allsopp’s account to Mr Votino, in which the caller says, ‘Yeah it’s Deano ah old mate asked me to call’, which is submitted is made immediately after the user of Mr Wardle’s account passed a message to Mr Votino that ‘Deano’ was going to call him in a minute. However, that call was not made on Mr Wardle’s account; it was made on Mr Jones’ account. As there is no evidence of when the call was made, there is no connection in time between that comment and the call from Mr Allsopp’s account to Mr Votino.
The prosecution also submits that the user of Mr Allsopp’s account spoke to Mr Votino about the same subject matter as Mr Wardle, rendering it implausible that the user of Mr Allsopp’s account was someone other than Mr Wardle’s cellmate. In support of that submission, the prosecution relies on calls made on Mr Jones’ phone account and other calls. For the reasons I have provided, the evidence does not establish that he was speaking to Mr Votino about the same anticipated event. While the user of Mr Allsopp’s phone account asked if Mr Votino was catching up with Barbie, a name also used by the prisoner alleged to Mr Wardle in calls on Mr Jones’s phone account, there is no evidence that the query made about Mr Votino or Barbie in those calls, was made in the same period as the calls made on Mr Jones’ account. There is little basis to infer that they were discussing the same matter.
What remains is the sample of Mr Allsopp’s voice in his record of interview, evidence that the calls were made on Mr Allsopp’s phone account, and that the prisoner in one phone call from that account referred to himself as “Deano”, and that on 1 September 2021 Mr Votino said in a text message that he wanted to talk to someone about ‘Dino’.
The possibility that another prisoner used a name that was similar to Mr Allsopp’s first name, and by coincidence used Mr Allsopp’s account, seems unlikely, although it is less implausible when it is considered that the call could have been placed from a phone other than in the Saltbush unit. The weight that can be attached to the prisoner’s use of the name ‘Deano’ is diminished by the lack of evidence regarding the identity of other prisoners housed in the Saltbush unit, or in other units.
As observed in Pollitt v R (1992) 174 CLR 558, albeit in a slightly different context, there is no reason to suspect that a spontaneous identification in an ordinary social interaction is fabricated or otherwise unreliable. A spontaneous self-reported identification in that context can also be accepted as likely to be reliable. That logic does not axiomatically apply when the identification occurs in a conversation to progress an unlawful common purpose, when the parties to the conversation know that the conversation is being recorded. That a prisoner may use another prisoner’s account and go further to distance themselves by impersonating another for personal gain, is not far-fetched.
The rational hypothesis consistent with innocence that another person within the complex used Mr Allsopp’s account has not been excluded.
As the prosecution has not established the identity of the callers, the charges are not proven beyond reasonable doubt against either accused.
Were the strips intended for sale?
I am also not satisfied that the evidence establishes beyond reasonable doubt that any purported direction was given with an intention to sell the Suboxone strips.
I am satisfied that a Suboxone strip has a higher value in a custodial setting than in the community, in the same way that tobacco and alcohol have a higher value in a custodial setting, but there is no evidence of the combined value of the strips or the value of a single strip.
There is a demand in prison for buprenorphine for use by persons who do not qualify for supply on a prescription for an opioid addiction. Those prisoners must either purchase a strip or portion of a strip from within the custodial setting or otherwise obtain it from another prisoner, or have it supplied directly to them from someone introducing it into the prison.
Were the spoils to be freely distributed amongst the poor?
It is not a fanciful possibility that in the phone calls the users of Mr Wardle’s and Mr Allsopp’s phone accounts were co-ordinating a plan that had been struck between themselves or between themselves and other prisoners, who wished to source the buprenorphine to use for themselves.
That possibility arises on Detective Macrae’s evidence that not all illicit substances introduced into prisons are destined for sale. His evidence that there are instances where there is no transaction and contraband has been provided by the syndicate for which the person works for, is an example of supply that does not amount to selling, bartering or exchange. It is not fanciful to consider a person would supply buprenorphine to another in custody, simply for the social capital benefits it may bring.
There was no evidence that either accused knew, or had a belief or an expectation, at the time of the various conversations said to evidence the directions, of the number of strips to be transported.
It was prudent for Mr Votino to supply as many strips as practicable in the one delivery, regardless of whether the strips were intended to be used only by the accused or supplied or sold to others. Given the low cost of Suboxone strips in the community, the real financial cost of the exercise attached to the logistics of the travel, purchase of the compound bow and any costs associated with the engagement of Mr West. The number of strips that were attached to the arrow do not of themselves evidence an intention to sell them.
There is no evidence that any of the costs borne by Mr Votino would ultimately be carried by either prisoner, which might have provided a motive to re coup costs. The evidence is consistent with Mr Votino acting as an enthusiastic, loyal volunteer, willing to supply a quantity of buprenorphine strips at no cost. It is not implausible that Mr Votino was asked or directed to undertake the task of introducing the buprenorphine, without an intended commercial benefit and in the absence of an intention to sell.
The evidence does not establish that any purported direction was given for the purpose of sale.
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