R v Weng

[2019] NSWDC 686

District Court

New South Wales

Medium Neutral Citation:	R v Weng [2019] NSWDC 686
Hearing dates:	12 - 13 November 2019
Date of orders:	15 November 2019
Decision date:	15 November 2019
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 116 - 119
Catchwords:	CRIMINAL LAW – unfitness of the accused to plead – special hearing – supply of prohibited drug – dealing with the proceeds of crime.
Legislation Cited:	Crimes Act 1900 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Evidence Act 1995 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited:	Barca v The Queen (1975) 133 CLR 82 Green v The Queen (1971) 126 CLR 28 He Kaw Teh v R (1985) 157 CLR 523 Keil v The Queen (1979) 53 ALJR 525 Moore v R [2016] NSWCCA 185 Peacock v The King (1911) 13 CLR 619 Pereira v DPP (1988) 82 ALR 217 R v Filippetti (1978) 13 A Crim R 335 R v Schipanski (1989) 17 NSWLR 618 R v Thomas (No.2) [2015] NSWSC 561 R v Thomas [2015] NSWSC 537 R v Keenan (2009) 236 CLR 397 Shepherd v The Queen (1990) 170 CLR 573 The Queen v Hillier (2007) 228 CLR 618 The Queen v Baden-Clay (2016) 258 CLR 308 Weissensteiner v The Queen (1993) 178 CLR 217 R v Dunn (1986) 32 A Crim R 203
Category:	Principal judgment
Parties:	The Director of Public Prosecutions Mr J Weng
Representation:	Counsel: Mr M Paish Mr M Fokkes   Solicitors: Solicitor for the Director of Public Prosecutions Legal Aid NSW
File Number(s):	2015/140089

Judgment

INTRODUCTION

1. Before the Court is a ‘special hearing’ which the Court is required to conduct pursuant to s 19 of the Mental Health (Forensic Provisions) Act 1990 (NSW). Such hearing is necessitated by notification from the Mental Health Review Tribunal that the accused will not, during a 12 month period after a finding of unfitness, be fit to be tried for an offence. The nature and conduct of such hearing must conform to the requirements of s 21 of this legislation. Generally, the special hearing is to be conducted as nearly as possible as if it were a trial of a criminal proceeding. It is to be done on the “limited evidence available” having regard to the fact that a person unfit to be tried is not able to participate in a special hearing to the same extent that an accused person can normally participate in a normal criminal trial[1] .

   1. R v Thomas (No.2) [2015] NSWSC 561 at [1]

2. By reason of s 21(3)(a), the accused is taken to have pleaded ‘not guilty’ to the offences with which he is charged.

3. In this case, the accused was represented by Counsel who participated in putting before the Court agreed facts, tendered a document and made submissions in support of the accused’s defence.

A procedural limitation

4. There are a range of verdicts that the Court may return in the special hearing, as well as procedural consequences that would follow from those verdicts. Those consequences include imprisonment. But because of the attenuated nature of the hearing, there was very little before the Court, other than the bare circumstances of alleged offending, that could assist the Court to engage in any predictive exercise (in the event the Court found the offences were made out) as to whether a sentence of imprisonment was likely and, if so, for what term: those questions would, of course, require the Court’s evaluation of all sentencing principles and evidence directed to them; not least including the accused’s subjective case (which would include, for example, any prior criminal history). None of that is presently before me. In my view, it would also be procedurally unfair to require the accused to put such material before me at the time the Court has yet to decide whether or not he is guilty of the charges.

5. Having raised these matters, the Crown and the accused’s Counsel agreed that it would be appropriate, in the first instance, only for the Court to determine whether, on the limited evidence available, the accused committed the offences with which he was charged. Only if that verdict is reached will it then become necessary for the Court to embark upon the procedures set out in s 23 of the legislation.

THE INDICTMENT

6. The accused is charged with the following offences on the indictment (as amended):

Count 1: On 7 May 2015, at Guildford , in the state of NSW, the accused did knowingly take part in the supply of a prohibited drug, namely 4.13.33g of methylamphetamine applicable to that prohibited drug, contrary to s 25(2) the Drug Misuse and Trafficking Act 1985 (NSW) (the DMTA).

Count 2: On 7 May 2015, at Guildford in the State of NSW, the accused did knowingly take part in the supply of a prohibited drug, namely 537.42g of pseudoephedrine, contrary to s 25(2) of the DMTA.

Count 3 On 7 May 2015, at Guildford in the State of NSW, the accused did knowingly take part in the supply of prohibited drug, namely 1.99g of 3.4 methylenedioxymethylamphetamine (‘MDMA’), contrary to s 25(2) of the DMTA.

Count 4: On 7 May 2015, at Guildford in the State of NSW, the accused dealt with the proceeds of crime, namely 1 x diamond ring valued at approximately $23,000 knowing that it was the proceeds of crime, contrary to s 193B(2) of the Crimes Act 1900 (NSW).

KEY STATUTORY PROVISIONS

Supply of prohibited drugs (counts 2-3)

7. As indicated counts 2-3 (incl) charge the accused with the offence under s 25(1) of the DMTA, which is stated to be in the following terms:

“(1)    A person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug is guilty of an offence”.

Supply of prohibited drugs in commercial quantity (count 1)

8. Count 1 concerns the supply of a prohibited drug in a commercial quantity. The provision states that:

“2)    A person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence.

Key expressions in the DMTA

9. Section 3 of the DMTA defines ‘prohibited drug’ as being a drug in Schedule 1 to the DMTA.

10. Section 3 also defines “supply” as includ(ing) ‘sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things.’

11. At least for counts 1 & 2, the Crown also relies upon the concept of ‘deemed supply’ in s 29 of the Act, which provides that a person, who has in his possession a quantity of the drug not less than the traffickable quantity, shall be deemed to have the prohibited drug in his possession for supply unless one of two exceptions arise. Counsel for the accused did not suggest that either of the exceptions were engaged in this case.

12. Section 6 of the DMTA defines the concept “take part in” (relevantly) the supply of a prohibited drug, in various ways. The Crown’s case in this proceeding against the accused is centred on the alternative in s 6(c), being that the accused provides the premises in which any step in the process of the supply of a prohibited drug is taken, or suffered or permitted any such step in that process of the supply to be taken in premises of which the accused was the owner, lessee or occupier or in the management of which he participated.

Dealing in proceeds of crime (count 4)

13. Section 193B(2) of the Crimes Act 1900 (NSW) provides that:

“A person who deals with proceeds of crime knowing that it is proceeds of crime is guilty of an offence”.

14. Section 193A defines “deal with” as follows:

"deal with" includes—

(a) receive, possess, conceal or dispose of, or

(b) bring or cause to be brought into New South Wales, including transfer or cause to be transferred by electronic communication, or

(c) engage directly or indirectly in a transaction, including receiving or making a gift.

15. Section 193A also defines “proceeds of crime” as meaning:

"Proceeds of crime" means any property that is substantially derived or realised, directly or indirectly, by any person from the commission of a serious offence. 

16. Section 193A relevantly includes as ‘serious offence’

(a) an offence (including a common law offence) against the laws of New South Wales, being an offence that may be prosecuted on indictment

Elements of offences & identifying the issues in dispute

17. With these expressions in mind, The elements for count 1 are as follows:

1. the accused permitted any step in the supply of a prohibited drug to be taken in premises which he owned;

2. knowing that a prohibited drug, methylamphetamine (aka ‘ice’) was in his possession for supply;

3. the quantity of the drug was not less than the commercial quantity applicable to that drug, namely 413.33g of that drug

18. The elements of count 2, being for the supply of a prohibited drug are as follows:

1. The accused permitted any step in the supply of a prohibited drug to be taken in premises which he owned;

2. knowing that a prohibited drug, pseudoephedrine was in his possession for supply;

3. the quantity of the drug was 537.42g

19. The elements of count 3, being for the supply of a prohibited drug are as follows:

1. The accused permitted any step in the supply of a prohibited drug to be taken in premises which he owned;

2. knowing that a prohibited drug, methylenedioxymethylamphetaine (aka ‘MDMA’ or ‘ecstasy’) was in his possession for supply;

3. the quantity of the drug was 1.99g

20. It will be noted that for count 3, the Crown does not have the benefit of the statutory deeming provision for supply as it does for counts 1 & 2.

21. The elements for count 4 are as follows:

1. the accused possessed a diamond ring valued at approximately $20,000;

2. the diamond ring was substantially derived or realised by the accused from the commission of a serious crime, being the offence of supply of a prohibited drug

22. In his submissions, Counsel for the accused candidly conceded that, in relation to counts 1-3 inclusive, all the ‘objective’ aspects of the elements of the offences were made out. The substantive outstanding issue, he submitted, which was common to counts 1-3, is whether the accused knew of the presence of the drugs on his premises.

23. Counsel for the accused even conceded, with specific reference to count 1, that the accused at least knew that there was 3.1g of the ‘ice’ in his premises, being located on a table in Rooms A & D to which the accused had access. His Counsel disputed that the balance of what was said to comprise the alleged quantity of ice was known to the accused.

24. The Court must be satisfied that the Crown has discharged its onus of proving the elements beyond reasonable doubt.

EVIDENCE IN THE CROWN’S CASE

25. The Crown relies upon a large number of facts which were ‘agreed’, pursuant to s 191 of the Evidence Act 1995 (NSW). In this regard, I note that the accused agreed with these facts after having received the advice of his lawyer. (His lawyer signed the agreed facts on behalf of the accused).

26. In summary, the material agreed facts are that:

1. The premises at 5 Kennedy Street, Guildford are situated in a residential street. The house had been converted into a quasi-Buddhist temple, containing numerous monuments and statues inside and outside the premises;

2. At 12:20pm on 7 May 2015, a nurse attended the premises in order to transport the accused to Cumberland Hospital to receive his regular medication. The accused informed the nurse that he had injured himself after having fallen off a table and hitting the back of his head. The accused told the nurse he did not wish to accompany the nurse. Concerned for his welfare, the nurse rang 000 and ambulance officers arrived.

3. The police arrived about an hour later and spoke to the nurse. As they did they were inhibited from accessing the premises, which were heavily fortified. The police heard music playing loudly and noticed strobe lighting. They also observed two motor vehicles out the front: one of which was registered in the accused’s name; and another was registered in the name of Thy DOAN, an individual who the accused subsequently identified as his carer.

4. Police gained access to the rear of the premises through an unlocked door. The accused sighted the police and began walking to the front door. As he did so he picked up a large samurai sword and turned it towards one of the officers. The officer took the sword away from the accused.

5. The accused was conveyed to Cumberland Hospital.

6. Police applied for and were granted a search warrant to inspect the premises. At about 4:30pm on 7 May 2015, police executed the search warrant.

7. Numerous items were found. They included (with reference to a room number later provided by the accused):

1. A White Samsung mobile phone (mobile number 0448166867) (in Room A);

2. 2 other mobile phones (in Room A),

3. An Ipad computer with USB sticks (in Room A);

4. A small jar containing methamphetamine, on the coffee table (Room A);

5. A range of other drugs, being ice, pseudoephedrine and ecstasy in Room A;

6. Numerous bottles of alcohol and designer shoes (Room A)

7. A Gucci bag containing a St George Bank letterhead (dated 26 March 2014) addressed to the accused and another document (dated 28 May 2014)(Room F);

8. Used cigarette butts on an ashtray (Room F);

9. Various satchels, or resealable bags containing ice (Room F);

10. Bags of pseudoephedrine (in Room F)

8. Photographs were taken of virtually all of what was found.

9. Analysis carried out indicated the quantities of the drugs that were found (in Rooms A, D & F combined). In summary there was:

1. 413.33g of ice seized (410.23g of which were located in Room F);

2. 537.42g of pseudoephredine seized (all but 1.02g being located in Room F);

3. 1.99g of 3,4 MDMA (located in Room A)

10. Cash in the sum of $25,000 was found in a plastic case located in Room D.

11. A computer and two USB sticks were located on the coffee table in the living room (room A). These were analysed and revealed that a range of articles, recipes, tutorials and forum Q&A in relation to the manufacture of drugs (see the detail set out in the table in Agreed Fact 17). These USB sticks had been accessed as recently as March and April 2015, only a month, or perhaps 2 months, before the execution of the warrant.

12. The accused’s email address (which he identified in his ERISP interview) was located on the computer seized by the police, as well as the iPhone.

13. On 11 May 2015, the accused was released from Cumberland Hospital and was arrested. Thereafter the accused was conveyed to Parramatta Police Station where he was read and explained his rights in the presence of a support person and qualified Mandarin interpreter. The accused participated in an electronically recorded police interview.

14. The accused identified the rooms to his home, to which I have made reference.

15. DNA analysis was undertaken in relation to two cigarette butts located in the ashtray on the table in Room F. DNA recovered on the Marlboro cigarette butt matched the accused’s DNA profile. DNA recovered on a different cigarette butt matched an unknown profile.

16. Fingerprint analysis was undertaken in relation to a number of items seized by the police. The accused’s fingerprints were located on two items inside the premises:

1. A left middle finger imprint on the glass jar containing 0.99g of ice found in the cupboard of the coffee table in the main living room (Room ‘A’); and

2. A left index finger imprint on the side of the glass bowl containing 327g of ice on the table in room F.

17. The right thumb of Ying Cheng LUO could not be excluded from appearing on a vase containing 1.78g of ice in the cupboard in Room F. Fingerprints were located, but not identified, on a vase containing 1.78g of ice in the cupboard in Room F and the side of a vase containing 4.2g of ice in the cupboard in Room F.

18. On 13 May 2015, police approached a male known as Yi Tan LIN (Peter) outside the subject premises. He told police he was there to see a male person known as “Jimmy”. He was searched and located within his pocket was a bag containing a substance later identified as ice in an amount not less than the commercial quantity.

19. ‘Peter’ told police he was to bring the substance to the premises in exchange for $2,000. He believed that “Jimmy” lived at the premises and had received a telephone call from him two days before. He described ‘Jimmy’ as being tall, with a tattoo on his arm and leg.

20. The accused’s iPhone 6, which had been found in Room A and was seized by police, stored ‘Peter’s mobile number. The phone also stored photographs of the accused on his mobile indicating tattoos on his body.

21. Text messages on the phone which were photographed reveal a coded conversation relating to the cost of various amounts of prohibited drugs between a person who identified himself as “James” and a person with a female ‘profile’ picture.

22. 327g of ice would have a street value of approximately $92,112.67.

27. For count 4, the Crown relied upon the circumstance of a receipt for the diamond ring found in the premises at Guildford.

Video recording of execution of search warrant

28. The Crown arranged to play before the Court a video recording of the execution of the search warrant carried out at the subject premises on 7 April 2015. What was generally depicted in the video was what Mr Crown accurately enough described as a ‘quasi-Buddhist temple’, with numerous statues. It was also apparent from the video that loud music emanated from parts of the property as well as disco-style lighting of the kind not usually associated with reverent observances at Buddhist temples.

29. The critical feature was what was apparent in Room F, where the subject drugs were principally located. The footage showed that, initially, room F was locked. One of the investigating officers forced it open after none of the keys that the officer had in his possession were able to open the door. Once opened, the footage showed a dark room, albeit one which was illuminated by lights of a not dissimilar nature to those which had lit other parts of the premises. Nevertheless, the police officers used torches to illuminate the contents of the room. The room was not all that large. Its main feature was a rectangular desk. On the desk were certain implements consistent with the production of drugs. There was a glass jar; there was a glass bowl. Within the drawers of or under the desk, officers retrieved re-sealable bags containing drugs. There was also a set of scales and filters. There were small white disposable bottles containing drugs in a white bin.

30. The video also depicted other matters identifying the accused, referred to in the Agreed Facts: there was a ‘Gucci’- branded bag, with a St George Bank statement bearing the accused’s name. There was also a photograph of a person resembling the accused’s physical features, with a dog.

31. There was no bed in the room. There were no other indications, such as photographs, documents or clothes to indicate the use of the room by any person other than the accused.

The Accused’s ERISP

32. At 5:50pm on 11 May 2015, the accused submitted to an ERISP interview. This occurred after he was arrested. He had a support person and an interpreter to assist him. He was cautioned. No suggestion was made that any impropriety attached to the circumstances of the interview.

33. Having regard to the nature of the application before the Court, I had a concern about the accused’s mental capacity. The Crown cited two instances of, to put it neutrally, irregular answers. One concerned the accused’s suggestion of another “invisible” person in the interviewing room (A7). The other concerned his evidence, towards the conclusion of the interview, that his son could “fly” (A 471). In my assessment, however, the accused otherwise answered all questions in a way indicating his understanding of what was asked. His answers, in the written form, generally read lucidly. In short, he exhibited capacity. I am not altogether convinced that the two answers I referred to were not, in the circumstances, either sarcastic or evasive answers.

32. I will refer to salient parts of the ERISP when addressing the parties’ submissions below.

Proof of custody

35. The accused proved, by means of a NSW Police Custody Management Record (Ex 1) that from 7 May to 13 May 2015, the accused was in custody of one form or another.

Principles relating to proof

Onus of proof

36. The Crown must prove the accused’s guilt beyond reasonable doubt. At the end of the Court’s consideration of the evidence in the special hearing and the submissions made to it by the parties the Court must consider whether the Crown has established the accused’s guilt beyond reasonable doubt on the limited evidence before it.

37. However, the Crown does not have the burden of proving beyond reasonable doubt every single fact that arises from the evidence and which is in dispute. The obligation that rests upon the Crown is to prove the elements of the charge; that is the essential facts that go to make up the charge, and must prove those facts beyond reasonable doubt.

38. If an accused suggests that fantastic or unreal possibilities should be regarded by the jury as affording a reason for doubt, the Court may find that fantastic or unreal possibilities ought not to be regarded as a source of reasonable doubt: Green v The Queen (1971) 126 CLR 28 at 33; or as was put in Keil v The Queen (1979) 53 ALJR 525, “fanciful doubts are not reasonable doubts”.

39. Proof of a matter beyond reasonable doubt involves rejection of all reasonable hypotheses or any reasonable possibility inconsistent with the Crown case: Moore v R [2016] NSWCCA 185 at [43] per Basten JA; RA Hulme J generally agreed at [94] and see RA Hulme J at [125]. If there is a reasonable possibility of some exculpatory factor existing then should find in favour of the accused: Moore v R at [99], [125]. It is a matter for the Crown to “eliminate any reasonable possibility” of there being such exculpatory matter: Moore v R at [99], [125] and several cases cited at [99]–[124].

Circumstantial evidence

40. The Crown’s case on the critical element of the accused’s knowledge is circumstantial in nature. That being so, in a trial by judge alone, the Court cannot return a guilty verdict unless the Crown has excluded all reasonable hypotheses consistent with innocence: The Queen v Baden-Clay (2016) 258 CLR 308 at [46], [50]; Barca v The Queen (1975) 133 CLR 82 at 104. For an inference to be reasonable it must rest upon something more than mere conjecture: The Queen v Baden-Clay at [47] quoting Peacock v The King (1991) 13 CLR 619 at 661. It is not incumbent on the defence either to establish that some inference other than guilt should be drawn from the evidence or to prove particular facts tending to support such an inference: The Queen v Baden-Clay at [62] citing Barca v The Queen at 105. That proposition merely reflects the fundamental principle that the Crown must prove the charge beyond reasonable doubt: The Queen v Baden-Clay at [62].

41. Where an accused with peculiar knowledge of the facts is silent, “hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused”: The Queen v Baden-Clay at [50] quoting Weissensteiner v The Queen (1993) 178 CLR 217 at 227-228, which was cited with approval in RPS v The Queen (2000) 199 CLR 620 at 633.

42. The Crown must prove its case beyond reasonable doubt where the evidence relied upon by the Crown may give rise to another reasonable explanation for the facts other than that the accused is guilty of the offence charged: see generally Shepherd v The Queen (1990) 170 CLR 573; R v Keenan (2009) 236 CLR 397 at [126].

43. In considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence: The Queen v Baden-Clay at [47] citing The Queen v Hillier (2007) 228 CLR 618 at [46]. The evidence must be considered as a whole and not by a piecemeal approach to each particular circumstance: The Queen v Hillier at [46].

‘Knowledge’

44. This is the critical mental state: the Crown accepts that it must establish that the accused knew of the presence of the prohibited drug on the premises.

45. Generally, for the purposes of the criminal law, an accused’s knowledge must be actual: He Kaw Teh v R (1985) 157 CLR 523 at 570. Nevertheless, a combination of suspicious circumstances and a failure to make inquiry may lead a Court to infer actual knowledge of the existence of property: Pereira v DPP (1988) 82 ALR 217; see also R v Schipanski (1989) 17 NSWLR 618. It is not necessary that the accused knows it was a particular prohibited drug of the kind charged: R v Dunn (1986) 32 A Crim R 203 at 205.

46. The Court is entitled infer or conclude what a person knew or believed from considering all the surrounding circumstances, provided any such inference or conclusion is a rational one and is not based on mere speculation or suspicion. Because of the requirement that the Crown proves this essential fact (or ingredient) beyond reasonable doubt, any inference or conclusion that is drawn about the accused’s knowledge or belief must be the only rational inference or conclusion open on the evidence. In this context, it is relevant to consider as one of the circumstances to be taken into account what a reasonable person in the position of the accused would have known or believed as to the nature of the prohibited drug being supplied; whilst recognising that the ultimate inquiry is what this accused knew or believed.

The accused’s ERISP evidence

47. The accused was not obliged to answer questions during the interview, but he chose to do so. I am, of course, entitled to consider that evidence, along with all the other evidence. Further, simply because I do not accept parts of what the accused says does not establish the Crown’s case: there is no onus upon him to establish that what he said to the investigative police was true. By the same token, if the Crown satisfies me that salient parts of what he told the police could not reasonably be true, then this not only undermines the accused’s credibility in giving his account, but that circumstance may be taken into account when considering whether the Crown has discharged its onus of proof.

48. I note that in the form of the evidence before me, I had a written transcript of what was said by the accused. There was no video recording of that interview in evidence. It is therefore not possible for me to form any assessment of the demeanour of the accused when he answered the questions in the interview.

Crown’s submissions

49. These were primarily directed to the element of knowledge common to counts 1-3 (incl).

50. In relation to counts 1- 3, the drugs were (predominantly) found in Room ‘F’ in the premises. In the accused’s ERISP interview, he indicated that Room ‘F’ had been rented to another person ‘Kuan’.

51. The Crown submits that the Court would reject that evidence and otherwise infer that the accused knew of their presence in Room F. In this regard, the Crown cites the following circumstances, many of which became apparent with the execution of the search warrant on the subject premises, indicative of such knowledge:

1. There was no bed in the room for any tenant to use;

2. There were no clothes (of anyone other than the accused) in the room;

3. There were various forms of identification of the accused, in the room, including:

1. The Gucci bag in which there was located a St George bank account statement in the accused’s name;

2. House plans (the accused said in his ERISP that the house had been purchased 6 years prior to the interview: A345)

3. The accused’s DNA on a cigarette butt (or butts) in an ashtray.

4. The accused said in his ERISP that the putative ‘tenant’ of Room F had not used the room for 3 weeks as at the time of that interview (A82).

5. The Crown also referred, more generally, to the signs of life and activity in Room F, which, it said was solely attributable to the accused. This included a fan being on in the room (an assertion contested by the accused) when it was forcibly opened and crystallisation.

52. It was submitted by the Crown that Room F was used by the accused to store personal records. The Crown also noted other matters occurring in other parts of the premises. In the lounge room, there were (as the accused’s Counsel admitted) drugs. There was also a computer and a manual relating to the subject matter of drugs. This was an area where the accused (not to mention the accused’s son) had regular access.

53. In anticipation of the accused’s reliance upon what he said in the ERISP interview on 15 May 2015, the Crown submitted that I should approach what he said with caution: the accused was then, and still is, labouring under a mental illness. On the day he was located in the premises, being the date that the search warrant was executed, on 7 May, he manifested symptoms consistent with the concern that he had not taken his regular medication from a mental health nurse. This led him, when confronted by the police, to brandish a large samurai sword (Agreed Facts 2 & 5). The Crown cited the two other matters I noted earlier which cast some doubt upon his mental capacity when he undertook the interview.

The Accused’s submissions

54. In relation to counts 1 – 3 inclusive, Counsel for the accused emphasised the Agreed Fact 27. This, to paraphrase, concerned the police confronting another person, Yi Tan LIN (“Peter”) outside the subject premises on 13 May 2015. This, it is to be recalled, was two days after the accused’s arrest and 6 days after he was placed under custody of one sort of another. Critically, it is agreed that Peter had explained to the Police that he was at the premises to deliver at least a commercial quantity of ‘Ice’ because he received a phone call from ‘Jimmy’ two days before, being 11 May 2015. Parts of the Agreed Facts (27-29) suggest that it is the Crown’s contention that ‘Jimmy’ is an alias for the accused: the accused had Peter’s phone number on one of the mobile phones that were seized during the execution of the search warrant; and ‘Jimmy’, like the accused, was tall and had tattoos on his body.

55. But, Counsel for the accused submits, it could not have been the accused that made the phone call on 11 May. There was no evidence to link any telephone call from the accused to Peter on that date and the Court was asked to infer that it was not even possible for the accused to have made a call to Peter on that date, as he was under continual custody or supervision.

56. This being so, it was submitted, if the accused did not place the call to Peter, then someone else was ‘Jimmy’, or at least, someone other than the accused directed Peter to bring the drugs to the premises on 13 May. Counsel went on to submit that if there was an illicit dealing that did not involve the accused was happening at his house, without his knowledge, between 11 and 13 May, there was a rational inference available that, prior to 7 May 2015, there were other illicit dealings which occurred without the accused’s knowledge. That the Crown could not dispel such inference must mean that there was a reasonable doubt in relation to the offences based on what occurred on 7 May 2015.

57. Counsel for the accused raised other matters relevant to each count.

58. In relation to count 1, I have noted the accused’s concession that a small (3.1g) part of the alleged quantity was in the accused’s possession, to his knowledge, but that was only because that small portion was located in Rooms A & D. Counsel for the accused seemed to submit that the accused could not have known about drugs in Room F.

59. Similarly, in relation to count 2, Counsel for the accused submitted that all but 1g of the pseudoephedrine was located in Room F. For counts 1 & 2, Counsel submitted that the evidence indicated that a dealer was praying upon the accused, an inherently vulnerable person because of his mental illness.

60. Generally, in relation to the counts based upon the presence of drugs in Room F, Counsel for the accused argued that the accused had no way of accessing the room and said that no key for the room was found on his person by the Police. To the extent that there were other documents identifying the accused in Room F, it was submitted that there was no evidence to suggest the currency of the documents.

61. In relation to count 3, Counsel submitted that the evidence indicated that the ecstasy was located in, the drawer of a table in Room A – not room F, nor Room D. Room A was located towards the front of the house. It was a relatively large space in the premises. Counsel submitted that it was open to find that multiple persons used that room: that it was a common area accessible by the two tenants which the accused had identified as being at the premises. In the absence of any admission by the accused that he knew of the location of the drugs, Counsel relied upon the principle that where there are other persons who could have had possession of the property independently of the accused, the Crown must negative the possibility that they were in possession and not the accused: R v Filippetti (1978) 13 A Crim R 335. Counsel noted that the DNA evidence referred to in the Agreed Facts (paragraphs 24 & 26) suggested at least two other people whose DNA was found on chattels in the premises. The accused had also identified that, apart from ‘Kuan’ being the occupant of Room F, that another person (apparently of Taiwanese extraction) had also leased one of the other rooms in the premises.

62. In relation to count 4, initially, counsel for the accused submitted that the diamond ring had been borrowed by the accused from a friend, with the accused making sporadic repayments. The context of what the accused said in the ERISP, however, indicated that the ring was actually purchased (A213), although the accused said that he had purchased it from a friend. When it was pointed out during the course of argument that other parts of the accused’s ERISP indicate that he had large debts, including, but not limited to a mortgage jointly in the accused’s name, and that the accused had said he was in receipt of Centrelink benefits, it was submitted that there was no inconsistency, because the accused was in regular receipt of money from his family, offshore. This family assistance, as well as the accused’s own asserted entrepreneurial activities in acquiring and re-selling (on Ebay) other expensive luxury goods (such as fine wines and shoes, located on the premises) provided arguable means for him to acquire a ring with a purchase price of nearly $25,000.

The Crown’s submissions in reply

63. These were brief. The Crown compared the accused’s modest means, and significant indebtedness, with the lavish array of chattels in the premises (including, but not limited to $60,000 worth of Buddhist statues acquired from China: A381). I should infer, the Crown submitted, that having regard to the evidence overall, it was the storing of drugs that sustained these acquisitions.

64. As to the phone call made to Peter Lin, the Crown contested that it was impossible for the accused to have made the phone call on 11 May. It was possible, so it was contended that the accused could have used another phone, which was not among the three phones seized during the search warrant executed on 7 May.

DETERMINATION

Credit of the accused

65. In a hearing of this kind, predicated upon a finding that the accused is mentally unfit to stand trial, reliance upon what an accused says in an ERISP is somewhat fraught. I accept the Crown’s submission that by reason of his mental illness, the reliability of the accused’s answers in his ERISP interview should be treated with caution.

66. Counsel for the accused accepts that, as trier of the fact, it is open to me to form my own view of the reliability or credibility of the evidence given by the accused in the ERISP interview.

67. The credibility of the accused is important. Acknowledging the high onus of proof on the Crown, it is the accused that raised positive contentions to refute allegations made against him about what he knew. This was, most importantly, his evidence that another person was a tenant of Room F. Another important matter was his evidence that he had (legitimately) purchased a nearly $25,000 ring from a friend, Jimmy Yu (who was not called as a witness).

68. As noted in the principles of proof above, and especially in a circumstantial case, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused. That observation was made in a case where the accused elected to remain silent, but in my view, the principle also applies where the accused elects to give evidence, but such evidence is inherently unreliable or incredible.

69. In this, as I have noted, I am hindered, since I have not seen any video recording of the interview to assess demeanour. This absence of recording is certainly not something for which any adverse inference could be made against the accused.

70. I noted earlier I was satisfied about the accused’s capacity. Credibility and reliability is another matter.

71. Having read the transcript of the ERISP, I find that some of the evidence of the accused to be not credible or reliable. Foremost in my mind was the accused’s answers about the diamond ring. Leaving aside the dubious explanation for how he acquired the ring, the accused said he was purchasing it for “my girlfriend” (A411) whom he did not name. Shortly later, it materialized that the accused did not in fact have a girlfriend – indeed, he had not “met her yet” (A 417-418).

72. The evidence about the ring was also implausible. He said he bought it from a friend. But he could not account for the evidence before the Court which suggested a commercial sale with a jeweller based in Hong Kong (Tab 9 of Ex A), not a friend (“Jimmy” Yu) from Melbourne (A 226). He said that the payments to that friend were in instalments, but there is no corroborative evidence to indicate the accused’s capacity to make instalments in the amounts he suggested (A 218).

73. Next, there were direct inconsistency between the accused saying that he did not smoke (A242), with his later evidence that he did [A309-310]. This was no small matter, having regard to the accused’s DNA being on one of the cigarettes in room F.

74. Further, there was the explanation of his 10-year old son transporting drugs located in the living room (A433 & A468-469).

75. Finally, I find inherently implausible the accused’s evidence (A247, read in the context of the preceding questions beginning at Q233) that the last time he went into Room F had been “4 months’ ago”. This evidence also has to be seen in light of the accused’s evidence that his putative tenant for Room F, had last used the room 3 weeks ago. But the independent evidence in the recording of the execution of the search warrant indicated to me very recent use of that room, most notably in the recent or perhaps current process of crystallising that was apparent, as well as lighting in the room.

76. Perhaps anticipating these difficulties about the accused’s credibility arising from his own words, Counsel for the accused sought to use the accused’s mental illness as something of a shield; to indicate that when things were said against his interest, he did not really mean to say (or perhaps was not capable of saying) the things that he did.

77. I disagree. As I have earlier mentioned, although there were two instances of strange, if not bizarre answers to questions, generally, the transcript reads of an interviewee giving lucid and responsive and were not avowedly irrational answers.

The ‘other illicit dealing’ hypothesis

78. This hypothesis lies at the heart of the accused’s defence, to counts 1-3 (incl).

78. The argument, in my view, rests upon unstable premises. True enough, the onus falls upon the Crown to dispel rational and innocent hypotheses, but that principle only takes the accused so far.

79. First, the illicit dealing, if it was that, was subsequent to the dealing in issue in this case. Logically, the accused’s suggested ignorance of one dealing does not mean that he was ignorant of earlier dealings of which he was charged. The issue which the Crown had to prove in relation to these counts was whether the accused knew there were three varieties of prohibited drug in a room in his home as at 7 May 2015. The accused’s central defence was that, on that date, he did not know of what was in room F of his home; that this was a room leased to someone else and a room for which he had no key and therefore no access. That was a defence which was positive in nature. Where, as I have intimated, and will go on to elaborate below, there are problems with that defence, then the circumstance of future, or prospective, drug dealings at the premises, as at 7 May 2015, does not assist the accused.

80. Secondly, I am not prepared to infer, on bare submission alone, that it was impossible for the accused to have made telephone (or indeed any other) contact with ‘Peter’ on 11 May. No legislative, regulatory or other administrative directive or requirement was put before the Court to indicate that in the circumstances which the accused faced, between 7 and 13 May, he was prohibited or prevented from making contact with anyone outside of the place of custody.

81. Thirdly, whilst I can accept that it could not have been the accused’s IPhone (X0001183409), containing ‘Peter’s mobile number, which was used to place a call to Peter on 11 May, that does not exclude the possibility of contact which the accused had with him.

82. Fourthly, although the fact is ‘agreed’, the evidence relied upon here was somewhat vague: Mr Lin was intending to assert that an unidentified person asked him to deliver a package of drugs to “Jimmy.” The accused’s case was that Kuan was the lessee of Room F and that, the accused had nothing to do with what was contained within the room. But ‘Peter’ did not say to the Police that he was there to deliver the drugs to ‘Kuan’, but only “Jimmy” and unlike the evidentiary links between the accused and ‘Jimmy’, there was nothing to associate ‘Jimmy’ with ‘Kuan’.

83. In the circumstances, I do not consider that it is reasonable to infer, by the circumstances of agreed facts 27 and 28 and the circumstance of the accused’s continuous custody between 7 and 13 May, that illicit drug dealings had occurred on the accused’s premises as at 7 May 2015.

Considering the accused’s ‘knowledge’ of the prohibited drugs: the accused’s ‘Room F’ hypothesis

85. I will consider, separately counts 1 & 2, separately from count 3 in this regard, as the drugs were located in Room F. The drugs which were the subject of count 3 were located in Room A. For reasons that I will come to, however, there was a clear connection between the offences on these counts.

86. The real issue in dispute, for both counts, is the aspect of the accused’s knowledge that the prohibited drugs particularised in each count, was in his premises.

87. I note that it is undisputed, and I so find that, in relation to counts 1 & 2, the accused did allow his home to be used for the ‘supply’ of prohibited drugs, in the extended sense referred to in s 3 of the Act, and as per the deeming effect of s 29. I also find, beyond reasonable doubt (in each case), that, for count 1, the quantity was 413.33 grams of ice; and for count 2, the quantity was 537.42 grams of pseudoephedrine.

88. I have already noted my concern about the accused’s credibility and reliability; to such degree that I would be loath to accept his evidence unless it was independently corroborated. No such independent corroboration was provided. For example, there was no documented lease arrangement with ‘Kuan’. Indeed, the accused could not even identify his surname.

89. There were other external indicators, of the kind identified by the Crown, which tell against the existence of any renting of that room. To reiterate, there was nothing, but the accused’s word alone, to indicate any presence of someone else, other than the accused in Room F: no clothes, no photographs. The accused said (A74) that Kuan ‘lived’ in the room, but there was no bed in the room.

90. The accused’s Counsel submitted that the Crown did not establish the currency of the documents identifying the accused in the room. But the supplementary agreed facts indicate that the St George letterhead was dated 26 March 2014 and another document in the Gucci Bag was dated 28 May 2014. The documents were not that old at the time they were seized. In any event, that submission deflects attention away from the inescapable fact that there is no document, of any currency, linking Kuan, with the use of room F.

91. I also consider that the DNA identification of the accused’s fingerprints on the glass jar and glass bowl, both of which contained Ice, to be highly probative of the accused’s recent presence in the room.

92. The Crown does not have to prove the exclusion of other persons in Room F. Thus, the circumstance that others fingerprints may have been on items (a cigarette butt or vase) in Room F does not derogate from the circumstance of proof that the accused knew that the drugs identified in the charges were in the room.

93. There was no suggestion put to me that such items as which contained the accused’s DNA identification were deliberately moved from one part of the premises to another; in effect, to frame the accused. There was also no suggestion that the accused did not know what he was touching. To the contrary, in one of his answers, he revealingly informed the interviewers that he accepted the possibility of touching drugs and being informed (by others) of the content (A377).

94. Further, the video recording of the execution of the search warrant shows that lights were on in Room F, just as they were in other parts of the premises that the accused was occupying. In circumstances where, according to the accused, ‘Kuan’ had not occupied the room for 3 weeks before the execution of the warrant, I do not infer that he had left the lights on in an unoccupied room from the time that he had left, 3 weeks before. To the contrary, the consistent use of lights across most of the rooms in the premises at a time when they were occupied by the accused leads me to infer that it was the accused who had turned, and left, the lights on in Room F. That circumstance, along with the other circumstances linking the accused to Room F, leads me to the further inference that contrary to what he said in the ERISP, he had access to Room F independently of ‘Kuan’.

95. Also, I refer to the range of publications on the USB sticks on the coffee table in the living room (Room A) containing a range of publications on the production of drugs (see the detail set out in Agreed Fact 17). The computer belonged to the accused, as indicated by the email address located on it (see Agreed Fact 20). The content manifests the accused’s intense interest in drugs, including, specifically, the manufacture of ice. The Agreed Fact (number 18) indicated that these publications had been accessed only recently before 7 May 2015. In my view, the circumstance of the accused having such intense interest in the drug ice is probative of the issue whether he was aware of the same drug being stored, in vast quantity, in one of the rooms of his premises.

96. Finally, there is tension in the hypothesis which posits that the accused could not have known of the existence of any prohibited drugs in room F when the same categories of prohibited drugs (the subject of counts 1-3) were located in the living room, being room A (see Agreed Fact 10, X0001183406, X000118342, X0001183415). It does not avail the accused to say that this still does not exclude the possibility that Kuan put them there, but the issue is one of visibility of the drugs.

97. I reject the accused’s hypothesis that he could not have known of the drugs located in Room F because that room had been tenanted to someone else; and that he had no access to it.

98. I find, beyond reasonable doubt, that the accused did have access and utilised that access, to room F in his home. I am also satisfied, beyond reasonable doubt that the accused knew that there was Ice and pseudoephedrine in Room A on 7 May 2015.

99. That being the single outstanding issue for counts 1 and 2, I am satisfied that the Crown has established the accused’s guilt for those offences beyond reasonable doubt on the limited evidence before me.

The Ecstasy in Room A

100. In relation to count 3, it is not disputed, and I find beyond reasonable doubt that the accused allowed his premises to store 1.99g of the ecstasy the subject of this count.

101. The Crown did not dispute the submission that this prohibited drug was located in a drawer within Room A.

102. It is not necessary for me to accept the accused’s evidence about the existence of ‘Kuan’ to find that there were other persons who may have used Room A of the premises. One of them would likely have been the accused’s carer.

103. I do not accept that the drug the subject of this count – ecstasy – was located in a drawer in room A. The evidence suggests that a glass jar containing a drug, ice, was located in the cupboard on the coffee table in room A. However, the ecstasy drug was located with other drugs in Room A without being hidden away in the drawer of a table or otherwise concealed (See the Table in Agreed Fact 10, X 0001183406, X0001183422 & X 0001183415).

104. I also find probative, in regard to this count, the contents of the accused’s computer I referred to in the earlier counts 1 and 2.

105. In my opinion, that evidence dispels the accused’s alternative hypothesis that someone else who accessed this room deposited the substance in the jar and concealed it away from view. In other words, I am satisfied that the mental element of knowledge is made out.

106. That being so, I find the essential elements for count 3 are established.

The diamond ring

107. This is another instance where my adverse view of the accused’s credibility and reliability is material. Only the accused was in the position to account for the presence of the ring in his premises, and the explanation which he gave not only lacks credibility but, with its reference to a girlfriend to be, verges on the fantastic.

108. This is not necessarily fatal to the accused’s defence.

109. However, the objective circumstances indicate that there is no other rational or innocent explanation for how the accused came into possession of the diamond ring other than by the proceeds of his drug possession.

110. Reading the transcript of the ERISP, even on his own evidence, the accused had an array of significant debts totalling $120,000 (A201-207) to other people (including his ex-wife), as well as $60,000 owing on the array of Buddhist statues located in the premises (A382). He said he had a mortgage debt of $400,000.

111. Noting my view as to his credibility and reliability, there is no evidence to corroborate his assertion that he has been able to procure significant profit from his sale of fine wines, or from the sale of any other of the luxury goods located in the premises of a man who was in receipt of Centrelink benefits on the public purse.

112. I note also the video footage of the search warrant, disclosing large wads of cash notes totalling a not insignificant sum of money. It was not readily apparent how or why I should infer that the cash notes were received from family located outside of Australia.

113. An agreed fact (paragraph 30) is that 327g of methylamphetamine (‘ice’) has a street value of just over $92,000. In relation to count 1, I have found that the accused was in possession of a quantity of ice which exceeded that quantity. This last fact does not explain how a diamond ring with a purchase price of nearly $23,000 could be purchased, but the location of a range of other luxury goods (Gucci and Hermes bags, designer shoes, scotch whisky, expensive watches and fine wines) on the premises are, in my view, indicative of the accused’s receipt of ‘illegitimate’ earnings rather than the accused’s uncorroborated assertions about his entrepreneurial activities on Ebay.

114. I am satisfied that the Crown has made out the element that the accused knew that the diamond ring was procured through the proceeds of drugs stored on his premises.

115. That being so, I am satisfied that each of the essential elements for count 4 are established.

Verdicts

116. I return the following verdicts:

Count 1:   on the limited evidence available, guilty

Count 2:   on the limited evidence available, guilty

Count 3:   on the limited evidence available, guilty

Count 4:   on the limited evidence available, guilty

117. I will now hear from Counsel as to the procedural consequences that should follow from these verdicts including, in particular, opportunity for the parties to make submissions as to whether a term of imprisonment would have been imposed and the best estimate as to what that term would be if this was a normal trial.

118. In this regard, the legislative framework (especially in s 23) does not envisage the usual sentencing process: the Court must provide an ‘indication’ of whether a sentence of imprisonment would have been imposed and, if so, an ‘estimate’ of the limiting term. I note also the long history of this criminal proceeding against the accused.

119. This being so, I propose only a short period for the parties to make such submissions on the consequences[2] .

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2. Following the precedent in R v Thomas (No.2)[2015] NSWSC 561, where the question of imprisonment and limiting term was heard (and determined) less than a week after the Judge delivered the verdicts (R v Thomas [2015] NSWSC 537).

Endnotes

Decision last updated: 22 November 2019