R v Watt - [2018] SADC 122

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WATT
Criminal Trial by Judge Alone
[2018] SADC 122
Reasons for the Verdicts of His Honour Judge McEwen
28 November 2018
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - REASONABLE HYPOTHESIS CONSISTENT WITH INNOCENCE
Trial by Judge without jury. Accused charged with three counts of trafficking in methylamphetamine, one count of trafficking in a commercial quantity of methylamphetamine, one count of trafficking in a large commercial quantity of methylamphetamine, and two counts of unlawful possession.
Circumstantial evidence case, entailing the inference that the accused and another person were together conducting a business of drug trafficking.
Held: Combination of all circumstances insufficient to establish guilt - verdict of not guilty on all counts.
Controlled Substances Act 1984 (SA) s32(3), s32(1), s32(2); Summary Offences Act 1953 (SA) s41(1), referred to.

R v WATT
[2018] SADC 122
The Charges

Lucian Alistair Watt is charged with three counts of trafficking methylamphetamine, one count of trafficking a commercial quantity of methylamphetamine, one count of trafficking a large commercial quantity of methylamphetamine and two counts of unlawful possession of cash money. He elected for Trial by Judge Alone.
On 1 September 2015 the accused was a passenger in a vehicle driven by Ms Peta Walters. The vehicle was stopped by police and searched. Further enquiries led police to search premises at 19A Waldron Street, Elizabeth East. Ms Walters was the tenant of those premises under a residential tenancy agreement. During the search of the Waldron Street premises police found methylamphetamine in the fridge and a nearby cupboard. In a locked safe in a spare room they located further methylamphetamine and cash money. In the roof space of the garage, accessed by a manhole, police located liquid methylamphetamine.
The seven charges against the accused relate to the specific amounts of methylamphetamine and cash money, located as follows:
·Count 1: 0.77g of methylamphetamine in Ms Walters’ handbag in the car;
·Count 2: 45.14g of methylamphetamine in a small black bag, located in the car, inside a concealed compartment in the front passenger dash board;
·Count 3: $20,000 located in the same black bag;
·Count 4: 540.8g of methylamphetamine in the fridge, and a cupboard, at Waldron Street;
·Count 5: 1075g of methylamphetamine in a sports bag located in the roof cavity, above the garage, at Waldron Street;
·Count 6: 227.13g of methylamphetamine inside a locked safe in the lounge room, at Waldron Street;
·Count 7: $31,700 in cash also inside the safe.
The Prosecution Case
As an overview of the prosecution case against the accused, I quote from the prosecution opening and closing addresses:[1]
Your Honour, as I was saying, the issue in this case is the prosecution will prove the accused in fact possessed the drugs, or took part in the process of sale.
The prosecution's case is that the accused and another female, Ms Peta Walters, were in joint possession of the drugs and the cash, with the intention to sell them together, or at the very least, the accused took part in the sale of those drugs, by doing one or more of those things specified in the particulars.
…
On the prosecution case it's not only where these two people living together, they were in a relationship together, but they were also running a drug trafficking operation, primarily out of that address.
…
Your Honour, I want to close my submissions by saying this: as per the particulars, we say that the accused and Ms Walters possessed these items together. But, of course, it's open to your Honour to find that the accused took part in any one of those ways. Therefore, at the very least, the prosecution says that the drugs, he knew about them, he knew they were going to be sold and he took part by doing one of those things, the obvious one being that he was living at Waldron Street and he was permitting his premises for Ms Walters to carry out her business.
Now, my friend may suggest to you that Ms Walters was the drug dealer. Well, he's absolutely right about that, she sure was. She sure was a drug dearly and she was a drug dealer with that man there. If anything, any evidence of drug dealing in relation to Ms Walters only advances the prosecution case because they were in it together.
[1] T6.22 – .31; T9.9 – .12; T333.11 – .28.
It is common ground that at the relevant time Ms Walters was dealing in methylamphetamine.
The prosecution case against the accused in this trial is a circumstantial one. In his police interview the accused denied knowledge of the drugs or cash. In his opening statement of issues, Mr Moen, for the accused, confirmed that his client denied knowledge, possession, or any involvement in respect to the drugs and money located in the vehicle and in the premises at Waldron Street. The accused gave evidence to that effect.
In this trial, the circumstantial case that has been advanced has two major components to it. Firstly, the prosecution point to a number of items of evidence that are said to lead to the inference that the accused and Ms Walters were acting together in conducting a drug trafficking operation from Waldron Street. In other words, at the time, the accused was part of an ongoing drug selling operation. The second component of the circumstantial case against the accused is that the individual charges are proved by taking the specific facts and circumstances relating to the subject matter of each charge, together with the initial inference that the accused, at the time, was part of the ongoing drug operation with Ms Walters. It can readily be seen that the initial inference that the accused was part of the ongoing drug operation with Ms Walters, is a crucial element of the case against the accused on each of the individual charges.
As an example, I take count 1. This charge relates to 0.77g of methylamphetamine located in Ms Walters’ handbag, which was in the car, when they were stopped by police. The only evidentiary link between the accused and that methylamphetamine is that it was in the car in which he was a passenger. There is no forensic or other evidence which is capable, in itself, of establishing that the methylamphetamine was in the accused’s possession; that he was exercising control over it; or that he even knew of its existence.
For this count, and other counts, the prosecution rely, to varying degrees, upon the inference that the accused and Ms Walters were jointly in the business of trafficking in methylamphetamine at the relevant time. Without that inference, count 1 relating to the methylamphetamine in Ms Walter’s handbag, patently cannot be established against the accused. Similarly, for most of the other counts.
The situation is a little different with respect to counts 2 and 3, for which there is relevant forensic evidence. However, as will be seen, the inference that the two of them were in the business of trafficking methylamphetamine, is also an important aspect, of the case presented on those two counts.
I shall return to a detailed analysis of the circumstantial case, upon each count. At this stage I am simply noting that the inference of the accused’s participation in an ongoing drug trafficking operation, is an essential component to the prosecution case on the individual charges.
Ongoing Joint Drug Trafficking Operation
To establish this critical inference that the accused was part of what was plainly a drug trafficking operation being conducted from the Waldron Street premises, the prosecution point to a number of items of circumstantial evidence.
During the trial, some of these individual facts and circumstances were disputed and some were not. The inference that the prosecution invite the Court to draw from these facts and circumstances was very much disputed.
Firstly, that the accused and Ms Walters were in a relationship. This was not in dispute. The accused’s evidence was that they had formed a relationship a few months prior to the date of the charges. The relationship is borne out by the content of numerous text messages.
Secondly, a number of items of evidence that the prosecution point to as demonstrating that the accused was living at the house at Waldron Street. I shall return to this topic.
Thirdly, that a number of the drugs and drug related paraphernalia located at Waldron Street were on plain display. This included the drugs located in the fridge and the cupboard above the fridge; and a dish containing methylamphetamine traces which appeared to be used for converting liquid methylamphetamine into crystalline form.
Mr Christey submitted in his closing address:[2]
Those drugs alone were worth hundreds of thousands on the street. It wouldn't make sense for Ms Walters or anyone else just to have left those drugs in plain sight, in a common area, that are worth that much, unless of course they were both involved in the trafficking of those drugs and that is the only logical inference which is available to your Honour here on the prosecution case.
[2] T329.37 - T330. 6.
I shall return to an analysis of whether this broad, critical, inference can be drawn from the totality of the evidence before me.
The Accused’s Evidence
I do not propose to set out the accused’s evidence in detail. I did not find his evidence credit worthy. I form the view that in the main the accused’s evidence was aimed at distancing himself as much as possible from the premises at Waldron Street and the car.
I briefly note some topics upon which I found his evidence totally implausible and lacking credit worthiness.
His evidence as to how he came to be in the car that evening and where they were going, was highly implausible and contradicted by the surrounding circumstances including their direction of travel. There were contradictions and significant alterations between what he told police and his evidence in court; and between his evidence in chief and cross-examination on this topic. Similarly, his evidence as to the one prior occasion upon which he said he had driven the car, I found to be unconvincing. In my view, the accused was implausibly distancing himself from the car in which there were drugs concealed in a secret compartment in the dashboard.
Similarly for the premises at 19A Waldron Street in which drugs were found in various locations. The accused was at pains to deny that he was living at that address. Again, his efforts to distance himself from the address were implausible, and contradicted by the surrounding evidence, including numerous text messages in which the premises were referred to between the two of them as ‘home’.
The accused’s evidence was that he was still living at his sister’s address at 54 Cynthia Road, Salisbury. When cross-examined on the photographs which depict a bedroom devoid of any clothing or significant possessions, and with empty drawers, and no bedding, his response was that his clothes were all in the wash.
As to the numerous items of male clothing and other items at 19A Waldron Street, the accused’s version was that none of these items were his. Rather, they were items belonging to Ms Walters’ ex-boyfriend. His explanation for why they were still in the premises, when the man named Andrew had moved out, was totally implausible. The accused painted himself as some type of mediator and go-between in the former relationship between Ms Walters and the man Andrew. This involved going to a storage unit to retrieve possessions, and even clothing, belonging to Andrew, and bringing them to the house for reasons that are opaque and highly unconvincing. When cross-examined upon the similarity between clothing at the house and clothing in his possession, he sought to explain this with the ridiculous proposition that he was in the habit of wearing items of clothing that belonged to his partners ex-boyfriend.
His evidence relating to the fact that registration papers and prescription scripts, in his name, were located at Waldron Street, I also find to be totally implausible.
Those topics are examples of why I found his evidence to be untruthful, and an attempt to distance himself from the car and the premises where the drugs were located.
Of course, the accused carries no onus to prove or disprove anything. My rejection of his evidence does not advance the prosecution case against him. I turn to an assessment of that circumstantial case.
Participation in the Ongoing Enterprise
As noted, it is plain that Ms Walters, either alone or with one or more others, was conducting an ongoing drug trafficking operation. It is plain that this was based at Waldron Street, in the sense that large quantities of drugs and cash were stored there; and at least some drug related activities were being carried out at the address.
As noted earlier, a critical component of the circumstantial case against the accused, on individual charges, is the prosecution allegation that he was a participant in the ongoing drug operation conducted at, or out of Waldron Street.
Has the accused’s participation in the ongoing operation been proved?
The first circumstance relied upon in this regard is that Ms Walters and the accused were in a relationship. As noted earlier, that is not disputed. Of course, being in a relationship and being partners in a drug operation are two very different things. The relationship is relevant, but of limited probative value.
The second circumstance relied upon by the prosecution is that the accused was living at 19A Waldron Street. Upon the entirety of the evidence I find that he was spending significant time living at that address. He still had a bedroom at his sister’s house at Cynthia Road Salisbury, and it may be that on occasions he slept there. However, the evidence, especially the text messages, point strongly to him having, to a large extent, moved into the Waldron Street premises. It is unnecessary to make a precise finding as to the proportion of nights he did or did not sleep at Waldron Street. I find that he was living there at least to a significant extent, and that his access to the premises included times when Ms Walters was not there.
I note the accused’s own evidence that he was definitely spending time there. Insofar as the prosecution rely upon this circumstance to demonstrate that the drugs in the common area of the house were on plain display to anyone living or staying in the house; it does not turn upon him living there seven days and nights a week. Spending significant time living there, as I find he was, brings this circumstance into consideration.
The third factual circumstance relied upon by the prosecution, is that there were drugs and drug related paraphernalia on plain display at Waldron Street. Mr Christey emphasised this circumstance as pointing strongly to the accused’s involvement in the drug operation. However, this circumstance needs to be balanced with other relevant circumstances. The significant amounts of methylamphetamine and cash, which are the subject of counts 5, 6, and 7 were concealed in the roof cavity of the garage, and the locked safe in the loungeroom. There is no forensic or other evidence which directly links the accused to the contents of the roof cavity or the locked safe.
True it is, the methylamphetamine in the fridge and the cupboard, were there to be seen by the accused. As I have noted, this is so irrespective of the precise amount of time he was spending at Waldron Street.
The fourth topic of circumstantial evidence is that the accused’s DNA was found on two of the three pipes, and the digital scales, that were concealed in the black bag, in which the drugs, the subject of count 2, were found. This bag was in the secret compartment in the passenger dashboard of the car, directly in front of where the accused was sitting when the car was stopped by police. The evidence is not entirely clear upon the precise location of the drugs and the pipes, within the compartments of the black bag. However, nothing really turns on this. The significant circumstance is that the accused’s DNA was on two of the pipes, and the scales, that were in the same bag as the drugs, and that this bag was in the hidden compartment of the vehicle.
Analysis of the Circumstantial Case
I remind myself that in this case, as in any circumstantial evidence case, the prosecution rely upon the combined force of all the proven facts to establish the inference that the accused is guilty of the relevant charge. Upon any individual count, I need to be satisfied that the only rational inference is that the accused is guilty of the offence. If there remains a reasonable possibility of innocence; in other words a rational explanation consistent with his innocence; then the prosecution will not have proved its case beyond reasonable doubt on that particular count.
I approach the task in the manner in which Mr Christey suggests in his closing address:[3]
In my submission, the starting point for your Honour should be to determine whether or not the accused was in fact using the address at Waldron Street as his primary place of residence. On the prosecution case this is how I say we have circumstantially proved that.
[3] T328.16 – 20.
As I have already outlined, I find that the Waldron Street address, was, at least to a significant degree, the accused’s place of residence. I find he was spending significant time living there. Plainly he had moved, or was in the process of moving, from Cynthia Road to Waldron Street. There is nothing unusual about a person having property at, and spending time at, two addresses. Upon the material before me I consider it is neither necessary nor possible for me to precisely determine the proportion of time the accused spent at each address. For the purposes of the prosecution case I make the finding that the accused was living at Waldron Street a significant proportion of the time. In all likelihood I consider he was living there more than at Cynthia Road; however, whether it was more time than Cynthia Road; less time than Cynthia Road; or in equal balance; in my view matters not. Waldron Street was either his primary place of residence, or one of his two primary places of residence.
I return to the approach Mr Christey in his closing address suggested I take:[4]
Now, on the prosecution case I'm going to begin by addressing the charges in relation to counts 4-7 first. I invite your Honour to take that same approach when you consider the evidence in this case because, in my submission, taking that approach may readily assist your Honour in determining the guilt of the accused on the first three counts in the car. The reason I say that is this: because if your Honour is satisfied that the accused trafficked or took part in the trafficking of the drugs inside his own house, then, of course, it may well assist you in concluding that the accused was in the business of dealing drugs and that he knew about the drugs in the car and, therefore, took part in those charges as well.
So, I invite your Honour to consider count 4 to start with, perhaps the most obvious to anyone that he is living in that house. As I've said, on the prosecution case the accused was living there. It defies commonsense that anyone living at that house would not have known that in that fridge and the cupboard above the fridge was that much methylamphetamine, particularly if you were a drug user. Clearly, those items are not hidden and they are in plain view to anyone using the fridge and the cupboard above.
[4] T329.6 – 30.

In relation to count 4 the prosecution emphasise several features of the evidence:
Firstly that the drugs in the fridge and the cupboard above the fridge were in plain sight to anyone living at the house. Secondly the drugs were of significant value. For this count alone that value was potentially in the realm of hundreds of thousands of dollars if sold on the street.
Thirdly, the prosecution point to equipment related to drug activities which was also in plain view in the house. This included sets of digital scales, and a dish and spatula on plain view in the kitchen which appeared to have been used in the process of crystallising the drug.
Having pointed to those relevant circumstances, Mr Christey made the submission:[5]
I mean, what are the odds that all these drugs are all over the place and someone living in there just didn't know anything about them? Either he's the most unluckiest boyfriend/man in the world, or as the prosecution says, he was involved in a significant drug operation with Ms Walters, or at the very least he took part in that operation and in the process of the sale of those drugs.
[5] T331.21 – 28.
One difficulty with that submission is that it is limited to knowledge. However, knowledge alone is not sufficient to establish possession of the drugs on the part of the accused; nor is knowledge alone sufficient to establish some role in trafficking.
It is one thing to infer that the evidence establishes knowledge on the part of the accused, at least of the existence of the drugs and equipment in plain view in the house. However, it is quite another thing to say that the only rational hypothesis is that he was engaged in Ms Walters’ drug trading activities.
His evidence is that he was a methylamphetamine user and she was his supplier. Whilst I am generally unimpressed with his credibility, I certainly cannot exclude as a reasonable possibility that he was a user and that she was his supplier. This scenario fits comfortably with the totality of the evidence. This puts a different gloss on the evidence pointed to by the prosecution. Insofar as he was (or could have been) both an occupant of the premises, and a customer, Ms Walters had no reason to conceal from him that she had drugs and equipment in her possession; at least to some extent. She may have wished to conceal the volume and value of the drugs she possessed but insofar as I am presently dealing with count 4 relating specifically to the drugs in the fridge and nearby, it is perfectly plausible that Ms Walters was prepared to leave those in fairly open display, not because he was a joint participant in the operation, but simply because he was a customer. As a customer, it would be no surprise to him that his supplier had drugs and equipment.
Even without him being a customer of hers, there is a rational and plausible hypothesis that she trusted him enough to not conceal some of her drugs and activities. They were in a relationship. Mere knowledge on the accused’s part that his girlfriend was trafficking methylamphetamine or in possession of methylamphetamine, and equipment, is not sufficient in itself to implicate him.
I note that in his closing address, Mr Christey raised the suggestion that in living in Waldron Street, the accused was ‘permitting his premises for Ms Walters to carry out her business’. Permitting premises is not a concept that features in the prosecution opening, or even in the list of particulars, that the prosecution provided.
In any event, whilst the evidence establishes that the accused was spending significant time at the Waldron Street premises, it is overreaching to try to suggest that they were his premises that he was providing to her to conduct her drug activities. That is a reversal of the true position. She held the Residential Tenancies Agreement. They were her premises to which he moved in, as part of the recently formed relationship. It is quite implausible, as well as belated, to attempt to float the concept of permitting premises.
In relation to count 4, the evidence certainly establishes that Ms Walters did not see the need to conceal from the accused, that she was in possession of those drugs and of scales and other equipment. It follows there was the potentiality, for the accused to know about the drugs that are the subject of count 4. That is as far as the evidence establishes: a plausible potentiality for knowledge on his part of the existence of those drugs and equipment. However, even if I am prepared to infer beyond reasonable doubt that the accused did know of those drugs, that is insufficient to make out the charge.
Of course, the situation would be quite different if the evidence established knowledge on the part of the accused of the existence of particular drugs, together with the critical inference that he and Ms Walters were in the business of drug trading. It would then be open to infer that any drugs in the house, or car, that he knew about, were stock in trade of their ongoing, joint, drug trading operation.
However, the totality of the evidence does not enable me to infer beyond reasonable doubt that the accused was part of a joint drug trading operation. The high point of the evidence is that he was spending significant time living at her premises, and there were at least some drugs and equipment on open display. In my view this falls well short of an inference that he was a participant in the trafficking operation. Plausible alternative scenarios include that he was a customer; or that he was simply a boyfriend whom she trusted to keep quiet about her activities.
Counts 5, 6 and 7 relate to the drugs in the ceiling of the carport and the drugs and cash in the locked safe of the spare room. Apart from the accused’s partial occupancy of the premises, there is no evidentiary link between him and those drugs or cash. There is no forensic or other evidence linking the accused to the content of the locked safe; or to what was hidden in the garage ceiling. Unlike count 4, for counts 5,6 and 7 the prosecution cannot even put the submission that the drugs or money were on plain display and therefore the accused must have known about them. The prosecution case on these counts is entirely reliant upon the critical inference that the two of them were joint participants in the drug trading operation from that house. Given that I am unable to draw that inference beyond reasonable doubt, these counts must also fail.
Similarly, for count 1, relating to the methylamphetamine in Ms Walters’ handbag in the vehicle. The prosecution case against the accused on that count is also critically reliant upon the overall inference that they were in the business of trafficking drugs together. For the reasons I have outlined, I am not prepared to draw that inference beyond reasonable doubt.
That leaves counts 2 and 3, which relate to the drugs and cash inside the black bag, within the concealed dashboard compartment of the car. That bag also contained three ice pipes. DNA was located on all three ice pipes. In accordance with the Agreed Facts, I find that one of the pipes had DNA of two contributors namely the accused and Ms Walters. A second pipe had three DNA contributors, two of whom were the accused and Ms Walters. The bag also contained a set of digital scales, with DNA from four contributors, two of whom were the accused and Ms Walters.
The prosecution case upon these counts, as for the other counts on the Information, was put on the basis of the critical inference that the accused and Ms Walters were in the business of drug trading at the time. The prosecution case is that the drugs concealed in the car were an example of the joint trading operation which was being conducted from Waldron Street:[6]
Like I have said, they were running it out of Waldron Street and on that night they were going mobile.
[6] T332.27 – 28.
In the sense that these two counts rely upon the same critical inference of a joint drug trading operation, they fail for the same reason as the earlier counts. However, for these counts the matter does not end there. These are the only counts for which there is some forensic evidence which goes some way to linking the accused to the contents of the bag, which included the drugs and cash. As his DNA is on other items in that bag, I need to consider whether the evidence establishes possession of the drugs and cash by the accused, independently of the ‘joint trading’ line of reasoning which I have rejected. In other words, does the evidence relating to this particular quantity of drugs and cash, standing alone, establish possession on the part of the accused? Can I infer from the existence of his DNA on other items in the hidden bag, that he was in possession of the drugs and cash that were in the same bag?
Again, that inference would need to be drawn, to the exclusion of any other reasonable hypothesis or a rational explanation. The items upon which the accused DNA (along with DNA from other contributors) was found were two pipes and a set of digital scales. Plainly, there are plausible explanations for a person’s DNA being on items of that kind, without them being responsible for trafficking the drugs. Scales and pipes can be used or touched by the consumer of drugs. This is consistent with the finding of three contributors on one of the pipes and four contributors on the scales. So there may well be a plausible and rational hypothesis consistent with innocence, without regard to the accused’s evidence at all.
However, as I have already noted, although I reject a good deal of the accused’s evidence, I cannot rule out the reasonable possibility that he was a user, and a customer of Ms Walters. He has given evidence to that effect, and that aspect of his evidence I find to be plausible, and consistent with the totality of the evidence before me.
This makes it unnecessary for me to deal with the possibility of transfer of DNA between respective items in the bag, and with the imprecision of the evidence as to precisely where in the various compartments of the bag the contents of the bag were distributed.
For those reasons, the totality of the evidence leaves me unable to conclude beyond reasonable doubt the accused was in possession of the drugs and cash the subject of counts 2 and 3; and unable to conclude beyond reasonable doubt that he was trafficking in the drug the subject of count 2, either jointly with Ms Walters, or at all.
My verdicts are:
Count 1 – Not Guilty.
Count 2 – Not Guilty.
Count 3 – Not Guilty.
Count 4 – Not Guilty.
Count 5 – Not Guilty.
Count 6 – Not Guilty.
Count 7 – Not Guilty.