R v Watts & Golja (No 2)
[2016] SADC 113
•21 September 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WATTS & GOLJA (No 2)
Criminal Trial by Judge Alone
[2016] SADC 113
Reasons for the Verdicts of His Honour Judge Costello
21 September 2016
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - RECEIVING AND POSSESSION OF PROPERTY STOLEN OR REASONABLY SUSPECTED OF BEING STOLEN OR UNLAWFULLY OBTAINED - POSSESSION OF PROPERTY STOLEN OR SUSPECTED TO BE STOLEN OR UNLAWFULLY OBTAINED - SUSPECTED OR REASONABLY SUSPECTED OR SUPPOSED TO HAVE BEEN STOLEN OR UNLAWFULLY OBTAINED - BASIS OF SUSPICION
Criminal Trial by Judge Alone - accused jointly charged with offences of Trafficking in a Controlled Drug and Unlawful Possession.
VERDICTS - Trafficking in A Controlled Drug:
As to accused Watts - not guilty.
As to accused Golja - guilty.
VERDICTS - Unlawful Possession:
As to accused Watts - not guilty.
As to accused Golja - guilty.
Controlled Substances Act 1984 ss 4, 32, reg 5, Sch 1, Pt 2; Summary Offences Act 1953 s 41 ; Juries Act 1927 s 7(1); Evidence Act 1929 s 34P; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 (SA) sch 1; District Court Criminal Rules 2014 r 49(1), referred to.
R v Watts & Golja [2016] SADC 12; R v Sweeny [2008] SASC 300; R v Soteriou [2013] SASCFC 114; Tepper v Kelly (1987) 45 SASR 340; R v Perfili [2006] SASC 321; R v Joyce [2014] SADC 125; Peacock v The King (1911) 13 CLR 619; Plomp v The Queen (1963) 110 CLR 234; Martin v Osborne (1936) 55 CLR 367; Knight v The Queen (1992) 175 CLR 495; R v Chamberlain (No 2) (1984) 153 CLR 521; R v Micallef [2002] NSWCCA 480; Shepherd v The Queen (1990) 170 CLR 573; R v Hillier (2007) 228 CLR 618; R v Bac Nam Nguyen (No 2) [2016] SADC 44, considered.
R v WATTS & GOLJA (No 2)
[2016] SADC 113
This is a trial by judge alone. The accused, Adam Matthew Watts (‘Watts’) and Bernadette Kay Golja (‘Golja’) was originally charged on Information dated 16 February 2015 as follows:
Adam Matthew Watts is charged with the following offences:
First Count
Statement of Offence
Trafficking in a Controlled Drug. (Section 32(3) of the Controlled Substances Act, 1984).
Particulars of Offence
Adam Matthew Watts on the 17th day of June 2014 at Manningham, trafficked in a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact the substance was a controlled drug.
Second Count
Statement of Offence
Trafficking in a Controlled Drug. (Ibid).
Particulars of Offence
Adam Matthew Watts on the 17th day of June 2014 at Manningham, trafficked in a controlled drug, namely 3,4-methylenedioxymethylamphetamine (also known as MDMA or Ecstasy), knowing or being reckless as to the fact the substance was a controlled drug.
Third Count
Statement of Offence
Aggravated Possessing a Firearm Without a Licence. (Section 11(1) of the Firearms Act, 1977).
Particulars of Offence
Adam Matthew Watts on the 17th day of June 2014 at Manningham, had possession of a Class H Firearm, namely an imitation silver handgun, whilst not holding a licence authorising possession of that firearm.
It is further alleged as a feature of aggravation that the firearm was loaded.
Fourth Count
Statement of Offence
Possessing an Unregistered Firearm. (Section 23(1) of the Firearms Act, 1977).
Particulars of Offence
Adam Matthew Watts on the 17th day of June 2014 at Manningham, had in his possession an unregistered Class H firearm, namely an imitation silver handgun.
Fifth Count
Statement of Offence
Unlawful Possession. (Section 41 of the Summary Offences Act, 1953)
Particulars of Offence
Adam Matthew Watts on the 17th day of June 2014 at Manningham, had in his possession personal property, namely $2,635.00 cash, whilst at the time of such possession or at a subsequent time before the making of this complaint, was reasonably suspected of having been obtained by unlawful means.
Adam Matthew Watts and Bernadette Kay Golja are charged with the following offences:
Six Count
Statement of Offence
Trafficking in a Controlled Drug. (Section 32(3) of the Controlled Substances Act, 1984).
Particulars of Offence
Adam Matthew Watts and Bernadette Kay Golja on the 17th day of June 2014 at Parafield Gardens, trafficked in a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact the substance was a controlled drug.
Seventh Count
Statement of Offence
Unlawful Possession. (Section 41 of the Summary Offences Act, 1953)
Particulars of Offence
Adam Matthew Watts and Bernadette Kay Golja on the 17th day of June 2014 at Parafield Gardens, had in their possession personal property, namely $23,370.00 cash, whilst at the time of such possession or at a subsequent time before the making of this complaint, was reasonably suspected of having been obtained by unlawful means.
Background and Procedural History
On the afternoon of the 17 June 2014, police attended at an address on North East Road, Manningham, in response to a complaint regarding an assault and attempted criminal trespass. They noted tool marks on the front door, which suggested an attempt had been made to ‘jemmy’ it open. They subsequently spoke to an occupant, who indicated that her then partner, Watts, had been trying to break-in to the property.
Watts subsequently attended the premise, and was arrested and conveyed to the Holden Hill Police complex, leaving his van at the property.
Police officers later returned to search the van belonging to Watts. The search was conducted under the auspices of s 68 of the Summary Offences Act 1953 in order to determine whether the vehicle contained any implements that may have been used in the attempted break-in.
Upon searching the vehicle, police found quantities of methylamphetamine, MDMA, a class H firearm, and some $2,635 cash. Other indicia of drug trafficking, including digital scales, resealable plastic bags, glass pipes, and a ‘tick list’ were also recovered. These items formed the basis of counts one to five on the Information.
Later that day, one of the arresting officers had an (unrecorded) conversation with Watts regarding bail. Watts allegedly provided an address in Parafield Gardens, where a friend of his, ‘Bernadette’, was residing. The property was that occupied by Golja.
Watts was unsure of the exact address, but using Google Maps, was able to identify it as a premise on Lantana Drive. This information was then conveyed to Brevet Sergeant Vance, of the Holden Hill CIB.
After making further enquiries regarding the Lantana Drive residence, Brevet Sergeant Vance determined to conduct a search of that property. The search was conducted (under the authority of a General Search Warrant) pursuant to s 67 of the Summary Offences Act 1953, on the suspicion that there may be drugs and/or firearms located at the address.
Further drugs and a significant sum of cash were located during the course of the search, which formed the basis of counts six and seven on the Information.
Prior to the trial, the accused each filed an application pursuant to r 49(1) of the District Court Rules.
Watts sought, inter alia, the exclusion of the evidence obtained as a result of the search of his van at Manningham, contending that the ‘search was unlawful in that there was no reasonable suspicion justifying the search’. Both accused also sought the exclusion of the evidence obtained as a result of the search of the Lantana Drive property. Watts’s application suggested that the search was unlawful, and that there ‘is no admissible evidence to link [Watts] with the address…’ Golja also argued that the search was ‘unlawful and all evidence…should be excluded under the public policy discretion’.
These arguments were heard prior to the trial, on the voir dire, on 27 January 2016. After hearing counsel, I ruled that most of the impugned evidence, which the accused sought to have excluded, should be admitted. Separate reasons for these decisions were published.[1]
[1] R v Watts & Golja [2016] SADC 12.
Following my ruling, Watts pleaded guilty to counts one to five on the Information.[2]
[2] P4 – agreed fact [11].
Golja indicated through her counsel that, whilst she would be pleading not guilty, the charges would not be contested at trial. This was to enable her to preserve her position on appeal against the voir dire ruling, without the Court enduring the cost of a trial.
The fact that this course of action somewhat truncated the proceedings at trial as against Golja does not, however, absolve the Court of the obligation to deliver reasoned and considered verdicts according to law.[3]
[3] See, eg, R v Sweeny [2008] SASC 300 at [12]-[15].
The Trial
At trial, both accused maintained not guilty pleas to counts six and seven. Each had earlier elected to be tried by a judge sitting without a jury pursuant to the provisions of s 7(1) of the Juries Act 1927. The accused Watts was represented by Mr Stratton-Smith at trial, and the accused Golja was represented by Ms Conley. Ms Holt appeared for the Director of Public Prosecutions.
The Court of Criminal Appeal has said that it is not necessary, in a trial heard by a judge sitting without a jury, for the Court to detail every obvious and basic direction which might be given to a jury.
I do, nevertheless, record that I have reminded myself of the following:
1 An accused person is presumed innocent of all charges unless and until guilt on any particular charge has been proved beyond reasonable doubt.
2 The prosecution bears the burden of proving each particular charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of each offence.
3 The accused do not carry any onus of proof and to the extent that he or she might put forward a defence, he or she does not have to prove it.[4]
4 It is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. If I am left with a reasonable doubt as to the establishment of any element of a charge, then I must give the accused the benefit of that doubt and find him or her not guilty of that charge.
5 Each of the counts on the Information concerns a separate offence. I must treat each separately and consider only the evidence relevant to that charge. If I were to find the accused guilty of one of the charges, on the evidence relevant to that charge alone, I must not use that evidence nor the fact of that finding to assist in the proof of any of the other charges. Nevertheless, such evidence may be relevant to the background or circumstances surrounding the events said by the prosecution to give rise to each of the offences charged.
6 The charges do not stand or fall together. If I were to be satisfied beyond reasonable doubt that the accused committed one of the offences charged, it does not follow that he or she also should be found guilty of any of the other offences charged. Depending on my findings on the evidence, I may find the accused not guilty of all offences charged or guilty of one or more of them.
7 I further direct myself that each count charges a separate and distinct offence against each accused. I must consider the evidence in relation to each accused separately, and must be careful to ensure that, when considering the evidence against each accused, I do not bring into consideration any evidence that is not relevant to that particular accused.
8 I have reminded myself of the normal directions given to juries concerning the proper approach to assessing the various witnesses who gave their evidence, their credibility and reliability and the proper approach to drawing inferences of fact. In this case, each accused elected not to give evidence and remained silent. The accused were not bound to give evidence and they each had the right to decline to give evidence. Because that is their legal right, I am not permitted to draw any inference adverse to them or the case they put forward from the exercise of that right. There may be many reasons why each accused did not give evidence and I should not speculate on those reasons. I have not done so. The accused’s silence in Court is not evidence against him or her; does not constitute an admission by him or her; may not be used to fill gaps in the evidence tendered by the prosecution and may not be used as a ‘makeweight’ in assessing whether the prosecution has proved its case beyond reasonable doubt.
9 In assessing the evidence of the witnesses, I have had regard to their demeanour. I have considered their evidence in the context of the other evidence in the case. I have considered their cross-examination, and applied my judgment to the evidence. I am entitled to accept the evidence of any witness in whole, in part or not at all. Even if I were to find that a witness may be unreliable about some part of the evidence, it does not follow that I must not accept other parts of the witness’s evidence.
10 Finally, I remind myself that I must determine whether or not the prosecution has proved the elements of each charge considered separately and beyond reasonable doubt. If I am unable to say where the truth lays in respect of a charge, then it necessarily means that the prosecution has failed in respect of that charge.
[4] An exception to this position exists in relation to the charge of Unlawful Possession, which is detailed further, below at [24].
In these Reasons, where I indicate that I am ‘satisfied’, I intend to mean that I am satisfied beyond reasonable doubt. The same applies to the phrase ‘I accept’ or ‘I find’ where such appear.
The Prosecution Case in Overview
Upon attending the premises at Lantana Drive, Parafield Gardens, on 17 June 2014, the police spoke to Golja and indicated that they would be conducting a search of her house.
Golja directed the police to an area in a walk-in robe where a purple Nike zip purse was found. The purse contained some 11.27g of methylamphetamine; as well as some dimethyl sulphone; and six tablets and one capsule, all containing MDMA, or ecstasy. It is the 11.27g of methylamphetamine, specifically, that forms the basis of count six on the Information.
Police also located $400 cash in a purple wallet, adjacent to the Nike purse. A further $22,970 was found in a locked safe under Golja’s bed. The police gained access to the safe after being provided with the combination by Golja. This cash, totalling $23,370, is the subject of count seven.
A number of other items of interest were also found at the property. These included a range of indicia of drug trafficking, such as a large amount of dimethyl sulphone, a number of empty plastic tubs and resealable bags, as well as handwritten instructions detailing the process for manufacturing methylamphetamine.
Golja participated in a record of interview, and confirmed that she had directed police to the methylamphetamine in the Nike purse. She stated that she had the methylamphetamine because she was helping out a friend, whom she identified as Watts. She said that she held onto the drugs for him because ‘he gives me a bit of personal smoke’. She further admitted to selling some to friends.
Golja also explained that the dimethyl sulphone found at her house was a ‘cutter’, and that she had made it for Watts.
In regards to the money in the safe, she confirmed that she had provided police with the combination, and knew that there was an amount of cash inside. Some she said to be hers, and some belonged to Watts. She claimed hers was savings that she had put aside from her income from government benefits and child support payments.
In relation to the case against Watts, the prosecution asserted that both accused were in the business of trafficking drugs, and that Watts was in joint possession of the drugs and money found at Golja’s address.
Whilst none of the items were in Watts’s immediate control or physical custody, it was asserted that he had the requisite access and ability to exercise control over the drugs and cash.
In the alternative, it was alleged that Watts supplied the drugs to Golja for her to sell. This, so it was submitted, was sufficient to prove a case against Watts for trafficking on the basis of him having taken a step towards the sale of those drugs.
In support of the case against Watts, the prosecution highlighted that his DNA was found on multiple plastic tubs containing methylamphetamine. His passport was also found in the safe under Golja’s bed, and, in a record of interview, he admitted that he sometimes stayed at the address.
Discreditable Conduct Evidence
Prior to the trial commencing, the Prosecution filed Notices of Intention to Adduce Discreditable Conduct Evidence against each accused, pursuant to s 34P of the Evidence Act 1929.
The notice against Watts sought, inter alia, to lead the evidence, in relation to the five counts to which he pleaded guilty, as evidence against him on counts six and seven.
The prosecution argued that this evidence, as well as that of various indicia of trafficking found at both the Parafield Gardens residence, and in Watts’s van, demonstrated that Watts ‘was in the business of dealing drugs and that he had a tendency or propensity to sell drugs as part of that business’. It was suggested that this was relevant and highly probative in making it more likely that he was in possession of the drugs and cash, the subject of counts six and seven.
Mr Stratton-Smith objected to the leading of this evidence, arguing that it did not satisfy the requirements in s 34P(2) of the Evidence Act. In particular, it was submitted that the probative value of the evidence did not outweigh, what he submitted was, its significant prejudicial effect.
After hearing counsel, I ruled that the evidence did tend to suggest that Watts had engaged in discreditable conduct within the meaning of s 34P, but that it should nevertheless be admitted because the probative value of the permissible uses of this evidence substantially outweighed any prejudicial effect it may have. I indicated that I considered the evidence admissible as demonstrating an interest, on the part of Watts, in the business of dealing in drugs, and an inclination or propensity on his part to possess drugs for such a purpose. I also formed the view that it may be relevant to rebut any potential suggestion of an innocent explanation for Watts’s DNA being found on relevant items in the house.
A Discreditable Conduct Notice was also filed against the accused Golja, to which no objection was taken.
I am satisfied that some of the evidence sought to be led, particularly item D in the Notice namely, that of a tick list found in the bedroom, is evidence of discreditable conduct. However, I am satisfied that such evidence is properly admissible to prove that the accused was conducting a business of trading in illicit drugs, in accordance with the reasoning of Vanstone J in R v Soteriou.[5]
[5] [2013] SASCFC 114.
The Charges
Trafficking in a Controlled Drug
The offence of Trafficking in a Controlled Drug is defined by s 32(3) of the Controlled Substances Act 1984 (SA), which relevantly provides:
32—Trafficking
…
(3)A person who traffics in a controlled drug is guilty of an offence.
Maximum penalty:
(a)for a basic offence—$50 000 or imprisonment for 10 years, or both;
(b)for an aggravated offence—$75 000 or imprisonment for 15 years, or both.
…
(5)If, in any proceedings for an offence against subsection (1), (2), (2a) or (3) it is proved that the defendant had possession of a trafficable quantity of a controlled drug, it is presumed, in the absence of proof to the contrary—
(a)in a case where it is alleged that the defendant was taking part in the process of sale of the drug, that the defendant—
(i)was acting for the purpose of sale of the drug; and
(ii)had the relevant belief concerning the sale of the drug necessary to constitute the offence; or
(b)in any other case—that the defendant had the relevant intention concerning the sale of the drug necessary to constitute the offence.
Accordingly, the elements of this offence, which the prosecution must prove beyond reasonable doubt are:
· The substance that the accused had in their possession was a controlled drug, namely methylamphetamine.[6]
· The accused trafficked in that controlled drug. A person traffics in a controlled drug if he or she:
(a)sells the drug;
(b)has possession of the drug intending to sell it; or
(c)takes part in the process of the sale of the drug.
· When the accused were in possession of the drug, or took part in the process of sale of the drug, they knew or were recklessly indifferent to the fact that the substance involved was a controlled drug.
[6] It is not in dispute, and the evidence establishes that the substances found by the police in the walk-in robe in Ms Golja’s house, contained a controlled drug, namely methylamphetamine. See T45; exhibit P11 and Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 (SA) sch 1.
In the event that the prosecution proves that the accused were in possession of a trafficable quantity of methylamphetamine (namely more than 2 grams) the statutory presumption in s 32(5) of the Controlled Substances Act comes into effect.
Unlawful Possession
The offence of Unlawful Possession is defined by s 41 of the Summary Offences Act 1953, which provides:
41—Unlawful possession of personal property
(1) A person who has possession of personal property which, either at the time of possession or at any subsequent time before the making of a complaint under this section in respect of the possession, is reasonably suspected of having been stolen or obtained by unlawful means, is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(2) It is a defence to a charge for an offence against this section to prove that the defendant obtained possession of the property honestly.
(3) If personal property is proved to have been in the possession of a person, whether in a building or otherwise and whether the possession had been parted with before the hearing or not, it will, for the purposes of this section, be taken to have been in the possession of that person.
Accordingly, the elements that must be proved beyond a reasonable doubt to make out this offence, are that:
· The accused had possession of personal property, namely $23,370 in cash.
· The property, either at the time it was in the possession of the accused, or any subsequent time before a complaint is made, was reasonably suspected of having been stolen or obtained by unlawful means.
If the Court finds that the suspicion, that the property was unlawfully obtained, was a reasonable one, then ‘the defendant is guilty of the offence unless he [or she] proves, on the balance of probabilities, that he [or she] obtained possession of the property honestly’.[7]
[7] Tepper v Kelly (1987) 45 SASR 340 at 343.
Because of this somewhat unusual reversing of the onus, the Court of Criminal Appeal has on occasion stressed the need for care before convicting a person of Unlawful Possession.[8] This is particularly so where, as here, the charge is joined on an Information with another charge. I have reminded myself of this fact in considering this charge.
[8] See, eg, R v Perfili [2006] SASC 321 per Sulan J.
The Evidence
The prosecution called the following witnesses:
· Detective Sergeant Belinda Vance.
· Detective Brevet Sergeant Matthew Hudson.
· Sheree Tracey Brozyna, a DNA expert.
· Elizabeth Ockleshaw, a handwriting comparison expert.
· Detective Sergeant Michael Murphy, a Drug and Organised Crime Task Force officer at SAPOL.
In addition to those witnesses called, the prosecution tendered the transcript of evidence given by Senior Constable William Walker on the voir dire hearing of 27 January 2016. A declaration of Constable Steven Jakubowicz was also tendered without objection. This declaration simply established the provenance of SMS messages tendered as exhibit P8, which were extracted from a mobile phone belonging to Golja. The respective records of interview of Watts[9] and Golja[10] were also tendered.
[9] Exhibit P9.
[10] Exhibit P11.
The Prosecution Case
Senior Constable William Walker
Although Walker was not called during the trial, as noted, the transcript of the evidence he gave on the voir dire was tendered.
Walker attended at a Manningham address during the morning of 17 June 2014, following a report that someone was trying to break into the premises.[11]
[11] VDT7.
He said that the front door had obvious tool marks on it, as if someone had attempted to ‘jemmy’ it open. An occupant informed him that the person trying to break-in was Watts.[12]
[12] VDT8.
Whilst Walker was speaking to the occupant, the occupant’s phone rang, and the caller was identified to Walker as Watts. Walker had a brief conversation with Watts who subsequently attended at the premises He was then arrested in relation to the break-in, and taken into police custody.[13]
[13] VDT9.
After conveying Watts to the Holden Hill Police Station, Walker had a brief conversation with him regarding bail. Walker suggested that the purpose was to ensure that Watts understood his rights in relation to bail, and to ascertain an appropriate bail address. The conversation was not videotaped.[14]
[14] VDT10.
Watts provided an address at Parafield Gardens as a potential bail address. He did not know the exact address, but with the assistance of Walker, and Google Maps, he was able to identify the premises as being on Lantana Drive. Walker did not understand Watts to be presently living at the address, but was told that Watts’s friend ‘Bernadette’ lived there, and that he had stayed there previously.[15]
[15] VDT10 – VDT11.
Walker spoke with his patrol supervisor, Sergeant Kim Bos, regarding the allegations against Watts, and the fact that Watts’s van remained at the property, unsearched.[16]
[16] VDT11.
It was Walker’s understanding that Officers Shepherd and Greenwood then attended and conducted a search of the van. Greenwood later informed him that as a result of the search they had uncovered a large quantity of drugs and firearms, which prompted Walker to liaise again with Sergeant Bos, and discuss briefing detectives.[17]
[17] VDT11 – VDT12.
In cross-examination by Mr Stratton-Smith, Walker confirmed that prior to the unrecorded conversation about bail, he had conducted a (recorded) interview with Watts in the Holden Hill Cells.[18]
[18] VDT16.
He denied being aware of Watts providing, or any checks having taken place, concerning a possible bail address in Wynn Vale.
Although he could not specifically recall it, he conceded that it was possible that in providing the Parafield Gardens address, Watts initially could not remember his friend’s name, beyond that it started with a ‘B’.[19]
[19] VDT17.
In cross-examination by Mr Redmond (who appeared for Golja on the voir dire), Walker outlined the briefing that he had with Detective Sergeant Vance. He confirmed that he told Vance that Watts had specifically said he was not staying at the Parafield Gardens address, that Watts did not know the address, and had to look it up with the aid of Google Maps.[20]
[20] VDT18.
He acknowledged that the purpose of briefing Vance was to enable her to carry out further investigations, which one would expect to include a search of the address given by an accused.[21]
[21] VDT19.
He denied having misled Vance when telling her about the bail address, and reiterated that he did not tell her that Watts was residing there.[22]
Assessment of Senior Constable William Walker
[22] VDT22.
I generally accept Officer Walker as a truthful and reliable witness. Although his failure to have the ‘bail conversation’ recorded is regrettable, and the language he used when conveying information to Sergeant Vance could have been more precise, I am satisfied that the general thrust of his evidence was honest and accurate.
Detective Sergeant Belinda Vance
Vance was one of the officers, involved in the search of Golja’s Parafield Garden’s residence. She attended that address on the afternoon of 17 June 2014, following a briefing by her Sergeant, and Senior Constable Walker. Walker informed her about the items found in Watt’s van earlier that day.[23]
[23] T24 – T25.
Prior to attending, Vance conducted searches on SAPOL intelligence systems. These revealed that a female named Bernadette Golja was residing at the Parafield Gardens address. This was consistent with what she believed Watts had told Constable Walker. Intelligence also indicated that Golja may be a person of interest in relation to other matters.[24]
[24] T25.
Upon attending at the property, Vance spoke with Golja at the front door. She explained that a search would be conducted, and gave Golja the opportunity to ‘declare’ any items to police. Golja indicated that she had some drugs in a purple purse in the walk-in robe.[25]
[25] T27.
Vance located two purple purses in the walk-in robe. The first contained some plastic tubs containing a white crystalline substance, whilst the other contained some $400 in cash.[26] Vance testified that she immediately suspected that this cash was unlawfully obtained – based on its proximity to the drugs in the other purse, as well as other indicia of drug trafficking.[27]
[26] T28.
[27] T29.
The search then progressed to the adjoining bedroom, where a safe was located under the bed. Whilst initially locked, the safe was opened with the aid of a combination provided to police by Golja.[28]
[28] T30.
When the safe was opened, Vance observed a significant amount of cash, which she estimated to be in excess of $10,000. She again immediately suspected that this money was obtained unlawfully, through the sale of drugs. She based that suspicion largely on the amount of cash found, the fact that it was not stored in the bank but under Golja’s bed, and also as a result of the labelling on the envelopes within which it was packaged. One envelope read ‘next lot’, which, in the context of what had been found, she assumed referred to the next lot of drugs.[29]
Assessment of Detective Sergeant Vance
[29] T30 – T31.
Vance’s evidence was not tested in cross-examination by either accused, and, I have no reason to doubt the truthfulness and reliability of her evidence, both generally, and in the following particular respects:
· Golja directed her to where the methylamphetamine and $400 cash were found in the walk-in rob; and
· That, upon uncovering the sums on money in both the walk-in robe and the safe, Vance formed an actual suspicion that the money had been obtained unlawfully.
Detective Brevet Sergeant Matthew Hudson
Hudson was also involved in the search of the Parafield Garden’s premises. He was the assigned exhibits officer.[30]
[30] T34.
Within one of the purple purses found in the walk-in robe were four plastic tubs. Three of them contained a clear crystalline substance, whilst the fourth contained some plastic bags, within which were six tablets and a capsule.[31]
[31] T36.
It was agreed by counsel that the substances within the tubs were as follows:[32]
· The first tub contained 4.74g of crystalline powder, of which 3.8g was methylamphetamine, at a purity of 80.17%;
· The second tub contained 6.53g of crystalline powder, of which 4.46g was methylamphetamine, at a purity of 68.3%;
· The third tub contained dimethyl sulphone; and
· The tablets from the fourth tub contained a combined total of 1.92g of MDMA.
[32] T45 – T48.
A black glasses case was also recovered from the bedroom. Within this case was another small tub of crystalline substance (agreed to be 0.25g of a substance containing methylamphetamine) and a glass ice pipe.[33]
[33] T37.
Further items recovered from the bedroom included some planners and diaries and an extendable metal baton. On a chest of drawers in the bedroom police found three cups, and inside the chest a tray, all of which contained a white coloured ‘shandy’ substance.[34] It was agreed that the cups and tray contained dimethyl sulphone.
[34] T38.
From a safe located in the walk-in robe, a set of digital scales and a number of documents were recovered. The documents appeared to be handwritten instructions for a chemical manufacturing process.[35]
[35] See photographs 59-62 in exhibit P2.
Hudson also described the safe that was found underneath the bed. He recalled that the contents comprised mostly cash, but that there was also a passport found inside.[36] Photographs 67 and 68 of exhibit P2 show this passport, and it is clear that it belonged to Watts.
[36] T39.
Hudson was present whilst the money was counted by Senior Detective Acting Chief Inspector Stuart McIntyre.[37]
[37] T41 – T42.
A black Jordan brand shoebox was also found under the bed. Within this box were a number of resealable bags, and nine empty plastic tubs.[38] A further resealable bag was found in the top drawer of a bedside table. It contained a small amount of crystalline substance, which it was agreed weighed 0.01g, and contained methylamphetamine.
Assessment of Detective Brevet Sergeant Hudson
[38] T39.
Hudson’s evidence was also not tested by cross-examination, and I have no hesitation in accepting his evidence as truthful and reliable.
Sheree Brozyna
Ms Brozyna is a forensic scientist employed in the biology department of Forensic Science South Australia. She is involved in analysing, interpreting, and reporting on forensic DNA samples.[39]
[39] T49.
Ms Brozyna explained the process involved in analysing DNA. She said that the first step involves retrieving DNA from an item of interest to produce an evidence sample. Depending on the object, there a number of ways this can be done, including by swabbing or performing a tape lift on the item.[40] She then explained that a number of steps are subsequently involved in the extraction process. A key part of this process is to determine how many ‘contributors’ there are to a particular evidence sample. There are occasions when this cannot be determined. In such instances the DNA sample cannot be analysed. The same applies if it is determined that there are more than four contributors, in which case the evidence sample is deemed ‘too complex’ to analyse.[41]
[40] T53.
[41] T55 – T56.
Ms Brozyna was called upon to retrieve DNA samples from a number of items of interest in this matter, and compare them with reference samples obtained from the two accused.[42]
[42] T58.
A report of her findings was tendered and marked exhibit P6. Her results can be summarised as follows:
· The Nike branded purse was subjected to two tape lifts. A tape lift from the outer surface resulted in a DNA profile that was deemed too complex for analysis. A second tape lift was performed on the inside on the purse, which yielded an evidence sample deemed to derive from four contributors. A comparison was then performed against the reference samples of the two accused. Ms Brozyna’s analysis concluded that it was 6.4 billion times more likely that Golja was a contributor than not, and 110 times more likely that Watts was a contributor. This is considered extremely strong support for the conclusion that Golja’s DNA was on the purse, and strong support for the conclusion that Watts’s DNA was on the purse.[43]
· The first plastic tub from inside the purse, which contained methylamphetamine, was also subjected to a swab of the outer surface, from which a mixed DNA profile from three contributors was recovered. The analysis of Ms Brozyna suggested that it was 1.7 billion times more likely that Golja was one of the contributors; and 3.8 billion times more likely that Watts was a contributor than not. This provides extremely strong support for the conclusion that the DNA of both accused was found on the plastic tub.[44]
· The outer surface of the second plastic tub, which again contained methylamphetamine, yielded a mix DNA profile from four contributors. Ms Brozyna’s analysis indicated that it was 7.8 million times more likely that Golja was one of the contributors; and 39,000 times more likely that Watts was similarly a contributor. This is considered extremely strong support, and very strong support for the conclusion that the tub contained the DNA of Golja and Watts, respectively.[45]
· The third tub from the purse, which contained dimethyl sulphone, yielded a mix DNA profile of two contributors from a swab of its outer surface. The analysis indicated that it was 3 billion times more likely that Golja was a contributor, providing extremely strong support for the conclusion that her DNA was on the item. For Watts, the analysis suggested it was only 8 times more likely that he was a contributor than if the sample came from two unknown persons. This is only slight support for the conclusion that his DNA was on the plastic tub.[46]
· A swab of the final tub from the purse, which contained a number of resealable bags and the tablets and capsule of MDMA, yielded a sample for which the number of contributors could not be determined. As such the sample could not be analysed against the reference samples of the accused.[47]
[43] T59 – T61; exhibit P6.
[44] T61 – T62; exhibit P6.
[45] T63; P6.
[46] T64; P6.
[47] T64; P6.
In cross-examination by Mr Stratton-Smith, Ms Brozyna agreed that the results of a DNA analysis such as this only indicate that a person’s DNA has come into contact with an item. It cannot be said from such an analysis when or how that DNA came to be on the item in question.[48]
[48] T65.
Ms Brozyna also accepted that DNA can come to be on an item by a process of ‘secondary transfer’. She explained that this could involve, for example, person A shaking the hand of person B, as a result of which person A’s DNA could be transferred to person B’s hand. If person B then went on to touch or handle an object, there is a chance that person A’s DNA could be found on that object.[49]
[49] T65.
Mr Stratton-Smith referred to the wide disparity between some of the likelihood ratios, ranging from single figures to numbers in the billions. Ms Brozyna agreed that the size of the ratio can depend on the ‘quality’ of the sample being analysed, which quality itself could, among other things, depend on the age of the sample, i.e. how long the DNA had been on the item.[50]
[50] T65 – T66.
She also accepted, as a general proposition, that (when talking about processes such as secondary, or perhaps tertiary, transfer) for each ‘transfer step’ she might expect the sample to weaken somewhat. She agreed this could, although not necessarily always, affect the size of the likelihood ratio.[51]
Assessment of Ms Brozyna
[51] T67.
Ms Brozyna’s qualifications were not disputed, and I accept her evidence, as a suitably qualified forensic scientist, as being both truthful and reliable. Her responses to Mr Stratton-Smith’s cross-examination were fair and balanced. In particular I accept that her evidence reveals:
· Extremely strong support for the conclusion that Golja’s DNA was on the inside of the Nike purse, and three plastic tubs containing methylamphetamine and dimethyl sulphone within that purse; and
· In relation to Watts, strong support for the conclusion that his DNA was on the inside of the Nike purse. There is extremely strong support, and very strong support, respectively, for the conclusion that his DNA was on the two tubs containing methylamphetamine in the purse, and only slight support for the conclusion that his DNA was on the tub containing dimethyl sulphone.
Elizabeth Ockleshaw
Ms Ockleshaw was also employed at Forensic Science South Australia, and is involved in the analysis of handwriting.[52]
[52] T68.
She explained that this process involves comparing the writing on an item of interest, with a ‘sample document’ provided by a known individual, to endeavour to establish whether that known individual authored the writing on the item of interest. One of the first steps in the analysis is for the analysing officer to satisfy herself that the sample document is a natural and fluent sample of that person’s handwriting, i.e. that the person has not attempted to alter or disguise the writing.[53]
[53] T68.
Ms Ockleshaw was provided with a sample obtained from both accused. She was satisfied that Golja had provided a natural and fluent sample, but had doubts in relation to Watts. She noted that his sample exhibited poor ‘line quality’, ‘angular letters’, and a ‘lack of consistency’, all indicative of a deliberate attempt to disguise one’s typical handwriting.[54] Accordingly she came to the conclusion that she could not provide a formal opinion as to whether Watts authored the items of interest she was asked to compare.[55]
[54] T72 – T73.
[55] T73.
Despite this, she did note some similarities between the sample provided by Watts and the writing on both a ‘tick list’ found in his vehicle at Manningham,[56] and handwritten instructions for the manufacture of methylamphetamine found in a safe in the walk-in robe at Golja’s Parafield Gardens residence.[57] No evidence was lead in relation to Ms Ockleshaw’s opinion on whether Golja may have authored any of the items of interest.
[56] T73 – T74; see also pp 28-40 of exhibit P5.
[57] T74; see also T38 – T39.
In cross-examination by Mr Stratton-Smith, Ms Ockleshaw agreed that the sample documents received from both accused were quite limited, and that she would have preferred something more extensive.[58]
[58] T76.
She conceded that, with respect to Watts’s sample, she could not exclude the possibility that he actually wrote in that way, and that without a larger sample, she was not in a position to state that it was definitely disguised. She confirmed in re-examination that one of the reasons why she erred towards the opinion that his sample was disguised was her observation as to a lack of consistency in the sample.[59]
Assessment of Ms Ockleshaw
[59] T77.
Ms Ockleshaw presented her evidence in a dispassionate, balanced, and ostensibly reliable manner. Unfortunately, given the paucity of material available for her to analyse in relation to Golja’s handwriting, and the limitations identified in the analysis of Watts’s sample, her evidence is of limited assistance.
On the basis of her evidence, I accept that there are some similarities between Watts’s handwriting sample and the writing on the manufacturing instructions found in Golja’s walk-in robe. However, due to the limitations identified above, I am unable to reach any meaningful conclusion in relation to her analysis.
Golja – Record of Interview (‘ROI’)[60]
[60] Although neither of the transcripts of the ROI's for Watts and Golja were tendered, it was accepted by both parties that the transcripts were accurate. I have therefore had recourse to them and referred to passages from each of them in the course of these Reasons.
During her recorded interviews with police, that took place on 17 June 2014, I note and take into account that Golja was clearly upset and distressed. Despite this, she was forthcoming, and made a number of admissions. She initially confirmed directing police to the drugs in her house, with the following exchange taking place:[61]
[61] At pp 2-3 of MFI P12.
QAlright. Like I said we’ve attended at your home address here at about 2.24 this afternoon.
A Yeah.
Q You’ve greeted us at the front door.
A Yeah.
Q And Brevet Sergeant VANCE has shown you a general search warrant.
A Mm, mm.
Q And then we’ve come in and searched the property is that all true and correct.
A Yes.
…
QWell. As we’ve gone through the house… Well is there anything that you’ve told us about in the house.
A Yes. Got um glass pipes and some drugs.
Q What sort of drugs.
A Um ice.
Q …Whereabouts was the ice.
A In my walk in robe.
Q Okay. Was it in a container or was it sitting on a shelf or.
A It was in a pouch.
Q Do you know what colour the pouch was.
A Purple.
When asked why she had the ice, she said:[62]
A Just helping out a friend. Cos I’m an idiot.
Q Alright when you say helping out. What you mean by that.
A Holding onto. Um and then yeah. He comes and goes.
[62] At p 3 of MFI P12.
After being formally arrested, and read her rights, Golja went on to identify Watts as the friend in question. She was asked:[63]
[63] At p 7 of MFI P12.
Q You said that you were holding on to the ice for a friend.
A Hmm yeah.
Q Who comes and goes is that correct.
A Yeah.
Q What’s your friend’s name.
A Adam.
Q Adam. Do you know his last name.
A WATTS.
Q Adam WATTS yep. Does he live here.
A No.
…
Q Okay. Do you know where Adam lives.
A I don’t think he has a fixed address.
Q … Why do you hold onto it for him.
AI, he, I um. So I don’t know. Like so that I have the. He gives me a bit of personal smoke.
QOh you smoke ice yourself.
AYeah occasionally yes.
The following was then put to her:[64]
[64] At p 8 of MFI P12.
Q …Do you um sell any of the ice from here yourself.
A If. Yeah I can. To friends yeah.
Q You, you sell it to friends.
A Well yeah.
Q Yeah. Do they give you money and you give them a bit of ice.
A Yeah.
…
Q … Are you aware it’s an offence to sell ice.
A Yeah.
…
Q How much. Do you know how much you sell it for.
A A hundred dollars a point or something.
Golja later confirmed that she would also sell quantities in excess of a point.[65] She further acknowledged that she would allow people to buy drugs on credit, or on ‘tick’, and that she used her mobile phone to arrange the sale of drugs to her friends.[66] In relation to storing the profits of her sales, the following was said:[67]
QOkay and with. With what you do sell. Where do you keep the money from what you sell.
AIn a. Like a purse sort of thing.
QMm, mm and what colour’s your purse.
AIt’s like a pinkie colour. I think.
[65] At p 11 of MFI P12.
[66] At p 12 of MFI P12.
[67] At p 13 of MFI P12.
I am satisfied that this was a reference to the second ‘pouch’ found in the walk-in robe that contained $400 cash.
The following was said in relation to the cups found in the bedroom that contained a crystalline substance, later found to be dimethyl sulphone:[68]
[68] At pp 20-22 of MFI P12.
QUm they searched through [the drawers in the bedroom] and they found three, well looks like coffee cups with coffee filters in them.
AMm, mm.
QWhich then have a lot of white crystallised substance. The same as the tubs.
AMm, mm.
QThat you pointed out to the officers.
…
QWhat can you tell me about those coffee cups with the. The filters and the. All that white crystallised substance that are in them.
AUm just that it’s not ice.
QThat, that’s not ice in those cups.
ANo.
QWhat is that stuff. Do you know what it is.
AIt’s called. They call it cutter.
QOh okay. So that’s cutter.
AYeah.
QWhose. What. Whose is it.
AUm, I made it. I had someone tell me how to make it. So I made some for Adam.
…
QAlright, what were you gonna use the cutter for.
ACos is um. Adam needed it I guess.
QIf Adam needed it. So did Adam ask you to make that.
ANo.
The interview then turned to the money found in the safe under the bed. Golja confirmed that she knew, and provided, the combination to enable to safe to be opened by police. When asked what she could tell them in relation to the safe, she replied:[69]
[69] At pp 25-28 of MFI P12.
A There was money in the safe.
Q Do you know how much money.
A Um no.
…
Q Alright, so whose money is that
A Ah a bit of both.
Q … Sorry, when you say a bit of both.
A There was some of his money. Some of my money.
Q Alright what part of that was your money.
AUm there was some savings in an envelope and then there was some money that um. Someone was paying off the white car. The Commodore.
…
QWhose car is that.
AAdam’s.
QAdam’s car okay. So someone was paying you.
AYeah well, yeah. A friend of mine was going to buy it.
…
QNow the hundred dollar notes. Where, do you know where they’ve come from or what they’re part of.
AMoney that I’ve been trying to save.
QOkay.
AOne for a course and a trip. Like me and the kids.
QOkay. How long have you been saving.
AA few years.
QYeah alright. How much roughly do you save. Like it it like two dollars a week. Two hundred dollars a week, what. How do ya. How do you save the money. How does it work.
AI try and do hundred bucks a fortnight.
QThat’s fine alright. Are you working at the moment.
ANo.
She went on to explain that her income came from a combination of a government parenting payment, and child support payments.[70] She also claimed that all the money in the safe, with the exception of the $100 notes, was Adam’s, and she was unsure where he got his money from.[71]
Assessment of Golja in the ROI
[70] At p 28 of MFI P12.
[71] At p 30 of MFI P12.
Despite Golja’s clearly emotionally state in the ROI, she was cooperative with police, and provided them with a substantial amount of information. I gained the impression that she was giving generally open and honest answers.
I am satisfied that she made admissions in relation to being in possession intending to sell and selling a substance she knew to be methylamphetamine and that, at least, the $400 found in one of the purses was money from such drug sales. I am also satisfied that, whilst she indicated that there were a number of items belonging to Watts at the property, she was being truthful when she said that he did not live there. Golja suggested that he had never even stayed overnight.
Watts – Record of Interview (‘ROI’)
Watts also participated in a ROI on 17 June 2014. However, the recording of this interview appears to have been affected by a tape malfunction, and it accordingly provides limited assistance.
In the questioning that was recorded, Watts makes a number of admissions in relation to the items found in his van, the subject of counts one to five which do not advance the Crown case in relation to these charges.
He did, however, acknowledge having a number of items stored at Golja’s Parafield Gardens residence. These included two vehicles, a Holden Commodore that he sold,[72] and a Hilux;[73] as well as some clothing.[74] Beyond this, there is little else that can be taken from this ROI.
Assessment of Watts
[72] At p 42-43 of MFI P10.
[73] At p 43 of MFI P10.
[74] At pp 7-8, 43 of MFI P10.
I am satisfied that Watts was telling the truth in this record of interview, but for the reasons given, his answers do not assist me in great detail in my consideration of the charges as they relate to Watts.
Detective Sergeant Michael Francis Murphy
Murphy is a police officer, currently stationed at Christies Beach CIB, but with extensive experience gained during his time in the Drug and Organised Crime Task Force. He was called to give expert evidence from his experience in policing the trafficking of illicit substances in South Australia.
He testified that the appearance of methylamphetamine can vary greatly, depending on its manufacture. However, it is consistently, or at least most commonly, packaged for sale in resealable plastic bags or plastic containers.[75] He suggested that quantities of new resealable bags are often indicative of an intention to traffic in the future He further identified ‘tick lists’, sums of cash (particularly when found in close proximity to drugs), and multiple mobile phones, among other items, as indicative of trafficking in illicit substances.[76]
[75] T78 – T79.
[76] T86 – T90.
Murphy explained that methylamphetamine is most commonly sold in ‘points’, that is, 0.1 grams. After this, common sizes are one gram, an ‘8-ball’ (an eighth of an ounce, 3.5 grams), and an ounce.[77]
[77] T79.
He said that methylamphetamine can be sold in a form whereby it is ‘cut’ down, or diluted, with other substances. In Murphy’s experience, the most common cutting agent used with methylamphetamine is dimethyl sulphone.[78]
[78] T80.
Murphy was shown exhibit P8, being a number of text messages retrieved from a mobile phone belonging to Golja. In his opinion, there were a number of references suggestive of involvement in the trafficking of illicit substances, specifically methylamphetamine. In particular, he identified content consistent with a ‘tick list’;[79] instructions for a method of manufacturing methylamphetamine;[80] and messages suggestive of arranging the sale of methylamphetamine. As to the latter, Murphy highlighted, and opined on the contents of, a number of messages. The following series of incoming messages, from 10 June 2014, is illustrative:[81]
1Just account number to put money into. How much for a ball?
2Cool. Can fix up the last one and if I give u another the $ for half that ball would you be able to do a ball or not?
3Lol I’ll pay what I owe for the last one which makes us square. Then would I be able to get a ball off u and pay 800 towards it then I owe u 800. Saves me busting ur nuts every day or 2.
4So I’ll give u 1700 in total today.
5Will transfer 1350 and will give u 350 in papers.
[79] At p 1 of exhibit P8; T88.
[80] At pp 2-4 of exhibit P8; T83.
[81] At pp 15-17 of exhibit P8.
Murphy explained that the term ‘ball’ is often used as a short-hand for an 8‑ball,[82] and ‘papers’ is often used in trafficking communications to refer to cash.[83] He further testified that, as at June 2014, the average price for an 8-ball of methylamphetamine would have been around $1,800 to $2,000.[84] Accordingly, he was of the opinion that this series of messages was consistent with an arrangement being made for the purchase of an 8-ball of methylamphetamine.[85]
[82] T92 – T93.
[83] T96.
[84] T81.
[85] T96 – T97.
In cross-examination by Mr Stratton-Smith, he accepted that, whilst resealable bags and plastic tubs are not the only ways that methylamphetamine is packaged for sale, if one was to purchase a point of the drug ‘tomorrow’, it is highly likely that it would come in a resealable bag.[86] In short, he accepted that there was nothing unique about the method of storage and packaging in this case.
[86] T99.
He further proffered the opinion that the text messages reflected someone who was trafficking at the lower end of the scale, in which case he would expect the dealer to be a user themselves.[87]
Assessment of Detective Sergeant Murphy
[87] T99 – T100.
Murphy was an honest and reliable witness, with a level of expertise more than adequate, to permit him to provide opinions in relation to the trafficking of illicit substances. I accept his evidence generally, and in the following regards:
· A range of indicia of drug trafficking was found at the Lantana Drive residence, including, but not limited to: quantities of resealable bags; tick lists; sums of cash; and a significant quantity of a common cutting agent.
· Golja’s mobile phone contained messages that were consistent with the ongoing sale of illicit substances, most likely methylamphetamine. They show references to quantities in which the drug is commonly sold, and common methods of sale, such as accepting purchases on credit or ‘tick’.
The Defence Case
Neither accused elected to give or call any evidence. As I have already indicated, that was their legal right, and I have drawn no adverse inference against either for the exercise of that right.
Circumstantial Evidence[88]
[88] In what follows, I have adopted the analysis of Judge Lovell, as he then was, in R v Joyce [2014] SADC 125.
Where, as is the situation here as against Watts, the case against an accused person rests, to a significant extent upon circumstantial evidence, the jury or judge sitting without a jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’.[89] To enable me to be satisfied beyond reasonable doubt of the guilt of the accused, it is necessary not only that his/her guilt should be a rational inference, but that it should be ‘the only rational inference that the circumstances would enable [me] to draw’.[90]
[89] Peacock v The King (1911) 13 CLR 619 at 634.
[90] Plomp v The Queen (1963) 110 CLR 234 at 252.
A case is not bound to fail merely because it relies upon circumstantial evidence to the exclusion of direct evidence. The strength of circumstantial evidence lies in its ability to show that ‘according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed’.[91]
[91] Martin v Osborne (1936) 55 CLR 367 at 375.
While this statement of principle is uncontroversial it is really ‘no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt’.[92]
[92] Knight v The Queen (1992) 175 CLR 495 at 502.
However, for an inference to be reasonable it must rest upon something more than mere conjecture.[93] It is necessary to weigh and consider the totality of the evidence and in doing so the finder of fact ought not stretch credulity or engage in tortuous reasoning in order to explain away each and every individual circumstance as being consistent with innocence.[94]
[93] Peacock supra.
[94] R v Micallef [2002] NSWCCA 480.
It is of critical importance to remember 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.[95]
[95] Shepherd v The Queen (1990) 170 CLR 573.
Often in a circumstantial case there is evidence of matters, which looked at in isolation from other evidence, may yield an inference compatible with the innocence of an accused. But a circumstantial case is not to be considered piecemeal.[96]
[96] R v Hillier (2007) 228 CLR 618 at [48].
As was said in R v Chamberlain (No 2):[97]
At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness ‘separately in, so to speak, a hermetically sealed compartment’; they should consider the accumulation of the evidence…
[97] (1984) 153 CLR 521 at 535.
Similarly, in a case depending on circumstantial evidence, one should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that what must be considered is ‘the weight which is to be given to the united force of all the circumstances put together’.[98]
Analysis
[98] Ibid at 534.
Count 6
The Case against Watts
The elements of the offence of Trafficking in a Controlled Drug are set out above. For the reasons articulated, I am satisfied as to the first element.[99]
[99] See [40] - footnote 6.
The prosecution are also required to prove possession of the drugs. On this element I have regard to remarks on this issue by Tilmouth DCJ in R v Bac Nam Nguyen (No 2) where his Honour said:[100]
Ordinarily ‘possession’ means one has in one’s possession whatever is to one’s knowledge, physically in one’s custody or under one’s physical control: He Kaw Teh v The Queen. Only if it can be shown beyond reasonable doubt that [the accused] knew the methylamphetamine (or at least a controlled drug), was to his own knowledge in his custody or control, can he said to be in possession of it for this purpose: R v Phung, R v Frangos. Proof of the mere knowledge of the presence of any particular charged item is insufficient, because it is necessary for the prosecution to prove physical control over that item and an intention to exercise control over it: R v GNN. The prosecution must therefore exclude the reasonable possibility that he merely ‘acquiesced’ in hiding the drugs, in the sense of merely permitting them to be concealed in the car or in the bedroom: R v GNN.
[Emphasis added, footnotes omitted].
[100] [2016] SADC 44 at [15].
The case against Watts is entirely circumstantial. I have, of course, ignored any evidence of what Ms Golja is alleged to have said to the police in considering the charge against Watts. Ms Holt, for the prosecution, submitted that the evidence connecting Watts to the Parafield Gardens address, and the drugs and cash, left only one plausible conclusion, namely that he jointly possessed the drugs with Golja.
The evidence relied upon by the prosecution is said to comprise:
· His admission to the police that he occasionally stayed at the house and to that end, had left some of his clothing there;
· The fact that he provided the address to police as a nominated bail address;
· The fact that his van has been left at the Parafield Gardens address;
· Two other cars, which at this time were currently or recently owned by him, were parked at this address when the police arrived;
· There was extremely strong and very strong support respectively for his DNA being a contributor to the DNA located on two of the plastic tubs containing the methylamphetamine located by the police at this address; and
· On the same day that police conducted this search of this house he was in possession of another plastic tub containing methylamphetamine and at a similar level of purity. In the prosecution’s submission, it is from the same stock as the drugs found at this address.
I accept that there is some evidence linking Watts to the premises. However, as Mr Stratton-Smith submitted, the first difficultly with the prosecution case is that there is no evidence at all as to what rights he had to enter the house. Whilst some of his property was stored at the house, there is no evidence establishing that he was in a position to exercise physical control over balance of the property stored therein.
The evidence of Ms Brozyna, suggesting that Watts’s DNA was on the tubs containing methylamphetamine in the Nike purse, is perhaps the strongest ‘strand’ of evidence in the circumstantial case against him. I am satisfied that this evidence establishes that Watts handled those tubs at some point. Given that he was found with similar tubs containing similar methylamphetamine product earlier that day, I find that it was very likely that he handled them at a point when they contained methylamphetamine. However, this evidence does not advance the prosecution case beyond a conclusion that he may have handled the tubs. I cannot be satisfied that there is no explanation for Watts having handled these items consistent with his innocence of the charged offence. It may be, as Mr Stratton-Smith proposed, that he had merely used some of the drugs with Golja. Even with the discreditable conduct evidence, which goes some way to rebutting such an ‘innocent’ conclusion, I am satisfied that this does remain a reasonable possibility.
I have strong suspicions that Watts was in (joint) possession of the methylamphetamine, and I am equally suspicious that it was possession for the purposes of sale. After considering all the evidence on this point, in my view, it is probable that he is guilty of the offence as charged. However, none of this evidence, either individually or in combination, is sufficient to amount to proof beyond reasonable doubt.
Accordingly, I find that the prosecution case against Watts on count six fails at this threshold stage. I am simply not satisfied beyond reasonable doubt that Watts possessed the drugs in question, and I find him not guilty of this charge.
The Case against Golja
The case against Golja is more straightforward. I am satisfied that during her ROI she made admissions which constitute admissions to the requisite elements of the charge. She directed police to the drugs, and acknowledged they were in her possession. Whilst noting she used some herself, she admitted selling some to her friends, and accepted that she knew possessing and selling methylamphetamine to be an offence. I am accordingly satisfied that she is guilty of the offence as charged.
Whilst strictly unnecessary, I record that, in the absence of the admissions made during her ROI, the balance of the evidence would have led me to the same conclusion. The drugs were clearly in her custody and control, located in a house she occupied with her children, and in tubs containing her DNA. There were significant indicators of trafficking in the house, and her phone records were certainly consistent with sales of the drugs. I am also satisfied that the amount found was a ‘trafficable quantity’,[101] sufficient to activate the presumption of sale, and the requisite mental state, pursuant to s 32(5) of the Controlled Substances Act.
[101] Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 (SA) sch 1.
Count 7
In considering the charge of unlawful possession, it is convenient to deal first with the second element, namely whether Officer Vance actually entertained, at the relevant time, a reasonable suspicion that the cash was stolen or unlawfully obtained, as it is common to both defendants.
I have already indicated that I accept the evidence of Vance, that upon discovering the cash, both in the walk-in robe and in the safe under the bed, she immediately suspected that it had been obtained unlawfully, specifically, as the proceeds of drug trafficking.
She cited, as a basis for this suspicion, the proximity of the cash in the walk-in robe to drugs and other indicia of trafficking. In regards to the sum in the safe, it was based on the significant sum of cash in a safe under the bed, bundled as it was, and some of it in an envelope marked ‘next lot’, which she suspected referred to the money being for the purpose of sourcing the next lot of drugs.
I am satisfied that, in all of the circumstances, such a suspicion was reasonable. I turn then to consider whether each accused was in possession of the money.
The Case against Golja
As to Golja, she has admitted to being in possession of the $400 in the walk-in robe, and also the $100 notes in the safe, which amounted to a total of $12,000.[102] I am also satisfied that, having provided police with the combination, she exercised, and intended to exercise, control over the safe. It was in her custody, and I am satisfied that she was aware of the total sum of the money it contained. I am thus satisfied that the property the subject of the charge was in the possession of Golja.
[102] MFI P12 p 30.
It thus falls on Golja to satisfy me, on the balance of probabilities, that this money was lawfully obtained.[103] I am not satisfied she has discharged this onus. I reject the suggestion contained in her ROI that she, whilst unemployed, managed to accumulate some $12,000 over the course of a few years. I further accept the prosecution’s submission that the extent of the trafficking revealed by the text messages in exhibit P8 is consistent with this being the source of the significant sum of money in the safe and that this money was unlawfully obtained, being the ill-gotten gains of drug trafficking.
[103] Tepper v Kelly at 343.
I find that the prosecution has proved all elements of the charge in count seven against Golja and that Golja has not discharged the onus cast upon her.
The Case against Watts
As against Watts, the prosecution case relies almost entirely upon the fact that his passport was in the safe to support its contention that he jointly possessed its contents. Ms Holt suggested that an inference may be drawn, from the storage of such a valuable piece of personal property, that Watts had joint access to the safe, and, in turn, the ability to control the contents of the safe.[104]
[104] T110 – T111.
The evidence of his passport, and other items of property linking him with the house, and indeed the drugs therein, is in my view insufficient to establish that he possessed, jointly or otherwise, the contents of the safe. I am satisfied that, with Watts having acknowledged he occasionally stayed at the house and that some of his property was stored there, there are a number of reasonable and innocent explanations as to how his passport came to be in the safe. The prosecution has not, in my view, excluded these explanations, or in fact established that he was even aware of the safe and its contents, or the $400 in the walk-in robe. Whilst, as with count six, I am suspicious as to the role Watts played, this does not amount to proof beyond reasonable doubt.
As such, I find that the prosecution has failed to prove that Watts was in possession of the cash.
Verdicts
Verdicts on count six:
As to accused Watts not guilty.
As to accused Golja guilty.Verdicts on count seven:
As to accused Watts not guilty.
As to accused Golja guilty.
0
16
1