R v White - [2019] SADC 129

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WHITE
Criminal Trial by Judge Alone
[2019] SADC 129
Reasons for the Verdict of Her Honour Judge McIntyre
4 September 2019
CRIMINAL LAW - PARTICULAR OFFENCES
Accused charged with one count of trafficking in a controlled drug; methylamphetamine.
Verdict – Not Guilty
Controlled Substances Act 1984 s32(3), referred to.

R v WHITE
[2019] SADC 129

The accused, Peter John White, was charged on the Information dated 4 June 2019 with the offence of Trafficking in a Controlled Drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The accused has elected to be tried by a judge without a jury. For the reasons that now follow I find the accused not guilty of the charged offence.
Background
The basic facts can be shortly stated. Police driving south on Augusta Highway on 17 February 2018 at about 10.55pm observed a red Holden Commodore registration number WBE 005 driving in a northerly direction on the same road. Police conducted a U-turn in order to pull that vehicle over. Before the police activated their emergency lights the Commodore suddenly pulled over to the left side of the road. Police saw a man named Geraldo Leo exit the rear passenger side of the Commodore and walk into the scrub land on the west side of the road. Also in the vehicle was another passenger, Jarrod Sullivan, and the accused who was driving. The Commodore was registered to the accused.
Police told Sullivan and the accused to remain in the car. Leo attempted to evade police; both police officers in attendance were required to subdue him. During this, the other two occupants exited the Commodore. The accused was observed on the driver’s side or eastern side of the car and the passenger Sullivan was observed at the front of the car. Police also saw the accused leaning into the Commodore in the area of the centre console.
Leo was arrested. The accused and Sullivan were searched but no items of interest were located. The Commodore was searched, again no items of interest were located. Sullivan and the accused were allowed to leave having surrendered their mobile telephones to the police. The mobile telephones were subsequently examined by police and nothing of interest was discovered. Police returned the mobile telephones to the accused at his home in Port Augusta at about 1 am on 18 February. Sullivan was present at the accused’s home when police attended.
The evening after the arrest of Mr Leo, police re-attended the scene of the arrest in order to search the area of scrub in the vicinity in better lighting conditions. When they arrived police saw a white Holden Calais, driven by Leo’s daughter, parked on the western side of the Augusta Highway about 100m north of the location at which Leo was arrested. Sullivan and another male were apparently searching the scrub on the eastern side of the road. The accused and Leo were in the Calais. Leo told police that they were looking for his necklace which had come off in the struggle the previous evening. The accused told police that they were looking for some keys. Police informed them that the struggle occurred on the other side of the road; that is the western side of the road. All four men then started searching on the western side of the road. They looked in that area for a period of time before departing.
Police then conducted a search of both sides of the road. On the eastern side of the road, they found a broken Alcatel mobile telephone and a blue lemonade can. The can appeared to have been cut in half but was held together by sticky tape. On subsequent examination the can was found to contain plastic resealable bags two of which contained a crystalline substance. When analysed, the crystalline substance in one bag was found to weigh 5.84 grams and to contain 4.02 grams of methylamphetamine; the other contained 47.3g of material containing 28.5g of methylamphetamine.
The Alcatel telephone was registered to Ann Colquhoun-Osmond who is Leo’s partner. Text messages and phone calls on that telephone were analysed by police. There was a text message where the recipient was “Gerry”. There was a telephone call between that phone and the accused’s phone at 4.44pm on 17 February 2018. There was a further text message between the accused’s phone and the Alcatel phone that reads “thanjs” (sic). That message was received at 4.52pm on 17 February 2018.
It is agreed that, on the morning of 17 February 2018, the accused drove his Commodore from Port Augusta to metropolitan Adelaide and that Geraldo Leo and Jarrod Sullivan were his passengers. It is further agreed that, on the evening of 17 February 2018, the accused drove his Commodore from metropolitan Adelaide to the point where police stopped his vehicle on Augusta Highway with Geraldo Leo and Jarrod Sullivan as his passengers. The accused’s Commodore was defected that evening.
The accused was arrested following the discovery of the drugs. When he was arrested the accused told police that he did not know anything about the drugs and had done nothing wrong. He said that he had to go to Adelaide for a medical appointment and that he gave the others a lift to and from Adelaide. He dropped them off at Magill and he did his own things until he picked them up for the return journey.
Legal considerations and general directions
The Court of Criminal Appeal in this State has made it plain that it is not necessary for a court, having conducted a trial by judge alone, to set out in the reasons for verdict the standard or obvious directions of which the trial judge is bound to be aware. I do nevertheless remind myself of the following:
·An accused person is presumed to be innocent of a charge unless and until his guilt has been proven beyond reasonable doubt.
·The prosecution bears the burden of proving a charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence. The accused does not carry any onus of proof, and, to the extent that he might put forward a defence, he does not have to prove it. It is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate that the accused is probably guilty. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to any element of an offence, then I must give the accused the benefit of the doubt and find him not guilty.
·In making findings of fact I must rely upon the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.
·I have reminded myself of the normal directions given to juries in this State concerning the proper approach to assessing the various witnesses who gave evidence, their credibility and reliability and the proper approach to drawing inferences of fact.
·The accused elected not to give evidence in this court. I remind myself that he was not bound to give evidence. He is entitled to remain silent leaving the prosecution to discharge its burden of proving the case.
Elements of the offence
In order to prove that an accused person committed the offence of Trafficking in a Controlled Drug, the Prosecution must prove three matters beyond reasonable doubt. First, that the substance was a controlled drug. Methylamphetamine is a controlled drug.
Second, that the accused person trafficked in a controlled drug.
·A person traffics in a controlled drug if he or she:
a)Sells a drug;
b)Has possession of a drug intending to sell it; or
c)Takes part in the process of the sale of a drug.
·If the prosecution proves beyond reasonable doubt that an accused person possessed a trafficable quantity of methylamphetamine, in the absence of proof to the contrary, an accused person will be presumed to have acted for the purpose of sale of the drug and have had the relevant belief concerning the sale of the drug necessary to constitute the offence.
·As a matter of law, a trafficable quantity of methylamphetamine is 2 grams or more.
Third, that when the accused person trafficked in a controlled drug, he did so knowing or being reckless to the fact that the substance involved was methylamphetamine or at least that it was a controlled substance.
There are two bases upon which the prosecution contends that I ought to find the accused guilty. First that he was in possession of the methylamphetamine intending to sell it or, in the alternative, that he was taking part in the process of sale of the drug by carrying or transporting it.
There is no doubt that the substance that is the subject of the charge was methylamphetamine. There is no doubt that the quantity of methylamphetamine was in excess of 2 grams or more. If I am satisfied that the accused was in possession, or joint possession, of the methylamphetamine then the statutory presumption will apply to prove that he intended to sell it because there is no evidence to the contrary. The presumption does not apply to the alternative basis upon which the prosecution contend that the accused ought to be found guilty; in that situation I must be satisfied that some, or all, of the drug was for sale.
The essence of the concept of possession is that, at the relevant time, the accused intentionally and knowingly has control over the object in question. It is possible to have this control alone or jointly with others. The person, or the person and the others, must have the right to exclude other people from possession of the item. It is not necessary for the person to have the item in their immediate possession, or to own it or to possess it permanently.
To prove that the accused possessed the methylamphetamine found on the eastern side of the Augusta Highway the prosecution must prove first that he knew it was there. The prosecution says that I can infer that the accused did know about the methylamphetamine from a number of factors that I will refer to shortly. But even if I am prepared to draw that inference, that is not the end of the matter. Mere knowledge of the presence of the methylamphetamine, without more, does not constitute possession. In order to establish possession the prosecution must also prove that the accused intended to exercise control over the methylamphetamine whether on his own account or jointly with others. It follows from this that the need to prove that the accused possessed the methylamphetamine necessarily means that I would have to reject the possibility that the drugs were in the sole or exclusive possession of some other person such as Leo or Leo and Sullivan.
To prove the alternative position that the accused took part in the process of sale of a drug the prosecution must prove that he knowingly carried or transported it in his Commodore.
The prosecution case
The prosecution case is circumstantial. The prosecution seeks to establish a combination of circumstances said to lead to the ultimate inference of the accused’s guilt. The prosecution submits that the combination of circumstances is capable of no other rational conclusion other than that the accused was in possession, or joint possession, of the drugs located at the side of the highway. In the alternative it is said that these circumstances establish that he was taking part in the process of sale of the drug by knowingly carrying or transporting it.
As the prosecution case rests upon circumstantial evidence, I cannot return a verdict of guilty unless the circumstances exclude any reasonable explanation consistent with innocence. In other words, before I can be satisfied that the accused is guilty, I must be satisfied, not only that his guilt is a rational inference, but that it is the only rational inference that the circumstances I find proven enable me to draw. My approach to the circumstantial evidence requires two steps. First I must look at the facts upon which the prosecution relies as circumstantial evidence, and decide which facts I accept as established by the evidence. Then I must consider what inference or inferences I am prepared to draw from those facts.
The circumstances upon which the prosecution relies can be summarised as follows:
·The circumstances of the traffic stop;
·The location of the methylamphetamine and the mobile telephone on the eastern side of the Augusta Highway;
·The location of the accused on the eastern side of the vehicle and police observations of him leaning into the car;
·The presence of Sullivan at the accused’s house some hours after the traffic stop;
·The use of the accused’s mobile telephone to call a taxi early the next morning;
·The taxi records showing that taxi picked someone up at the accused’s home address and drove 17.5 km along Augusta Highway, which is roughly the distance to the location where Leo was arrested;
·The use of the accused’s telephone to call for a cab to the location of the previous drop off on Augusta Highway;
·Taxi records showing that the last of three stops for the trip from Augusta Highway was the accused’s home address;
·The fact that later the same day the police saw the accused in a vehicle where two males, including Sullivan were engaged in an apparent search of the eastern side of the Augusta Highway;
·The conflicting accounts given by the accused and Leo about the subject of the search and the fact that in either case they were searching the wrong side of the road for items said to have been lost in Leo’s scuffle with the police;
·The evidence of the accused’s DNA, together with that of Leo on black tape, securing the package of methylamphetamine.
I accept all of these facts as established by the evidence. The next step is to consider what inference or inferences I am prepared to draw from these facts. This step requires me to consider the combined strength of the established facts. I remind myself that inferences drawn against an accused must be the only rational inferences which the established facts enable me to draw. I cannot return a verdict of guilty unless the facts exclude any reasonable explanation consistent with innocence.
Discussion
I have carefully considered the evidence and Counsel’s submissions. I find that the methylamphetamine and the mobile telephone found by the police on the eastern side of the Augusta Highway were in the accused’s car immediately prior to Leo’s arrest. Leo could not have thrown those items to that location; he was under constant observation by the police officers. I am satisfied that Leo was deliberately distracting the police. I infer that the methylamphetamine and the mobile telephone must have been thrown by either Sullivan or the accused whilst the police were dealing with Leo. The state of the evidence is such that I do not know which of the two threw those items. Whilst the accused was seen leaning into the car in the area of the central console there is no evidence about the location of the drugs in the car prior to their removal. The police did not observe either man with anything in their hands or throwing any item.
I infer that the Alcatel mobile telephone was Leo’s. There is a text message on it addressed to “Gerry” his name is “Geraldo”. It was registered to his girlfriend. The phone messages between that telephone and the accused’s are consistent with the accused’s version of events relayed to the police that he and Leo were not together in Adelaide.
Given Sullivan’s presence at the accused’s house at the time of the police attendance in the early hours of 18 February 2018 there was more than a limited connection between the two as the prosecution contends. However, this does not add to the prosecution case as I have only limited information about Sullivan’s involvement with the drugs and mobile telephone.
I infer that the accused was a passenger in the taxi called to his house using his mobile telephone on the morning of 18 February 2018 and that he spent time at the Augusta Highway in an area roughly approximate to where Leo was arrested. The accused returned via taxi to his home address. Given the other stops it is likely he was not the only passenger. I do not know how many other passengers were in the taxi nor do I know who they were. Given his presence at the accused’s house earlier that morning it is possible one of them was Sullivan. The Crown says that this evidence about the taxis leads to the inevitable inference that the accused went to the location of Leo’s arrest in order to search for the methylamphetamine and mobile telephone. It is certainly highly suspicious but not conclusive. Given the likelihood that there were others in the car I cannot exclude as a possibility that the accused did not know what the search was for but rather went along to assist with the identification of the location following some ruse by Sullivan or Leo.
The search observed by the police later on 18 February 2018 is likewise suspicious. Sullivan and another man were searching the eastern side of Augusta Highway. The accused and Leo gave conflicting accounts of the item sought. They could not have thought that any item dropped by Leo in the scuffle with police was on the eastern side of the road. However, this does not assist with the question of who threw the items to that side of the road; it is arguably more supportive of the proposition that it was Sullivan given he was actively searching that area. It also does not, without more, establish that the accused knew what they were looking for.
I accept the evidence of the forensic scientist Luke Vulgin. Only two items produced enough DNA for analysis; black tape wrapped around the drugs and a plastic bag containing drugs. The DNA obtained from those items was compared with reference samples for Leo, Sullivan and the accused. Mr Vulgin said that the analysis of the mixed DNA profile from the black tape indicated that there were four contributors. It provided moderate support for the proposition that Sullivan is not a contributor to the profile but extremely strong support for the propositions that Leo and the accused are contributors to the DNA. The DNA was deposited on the outer surface of the tape. It is a very small quantity of DNA. Leo contributed 67% of the DNA and is therefore the major contributor. The accused contributed 31%. The two other contributors are trace contributors. Mr Vulgin said that this was typical of contact DNA. The accused was excluded as a contributor to the press sealed plastic bag but there was extremely strong support for the proposition that Leo was a contributor.
Mr Vulgin explained the manner in which DNA may be deposited. Mr Vulgin agreed that there were a number of secondary mechanisms by which DNA transfer can occur. He agreed that the accused’s DNA could have been deposited on the tape in a number of innocuous ways such as by Leo touching him and then touching the tape; that Leo could have touched something that had the accused’s DNA on it and then touched the tape; that the accused could have drunk from the can that Leo used to put the black taped bundle in and the accused’s DNA from the can was imparted to the black tape. Mr Vulgin agreed that common sense does not always apply to the manner in which DNA is found on particular items. He agreed that on occasion items tested for DNA that might have been thought to contain a good quantity of DNA will not yield enough DNA for analysis and that the converse can also be true. He agreed that where you end up finding DNA is not necessarily where you expect it to be. Accordingly, whilst the DNA evidence is consistent with the prosecution position that the accused was in possession of the methylamphetamine it does not establish that position. Likewise, the DNA evidence is consistent with the accused knowing about the drugs in his car but it does not prove that state of knowledge beyond reasonable doubt given the various innocuous ways in which his DNA may have been deposited on that tape.

Having considered all of the facts I am deeply suspicious that the accused was involved in drug trafficking either by jointly possessing the drugs with Leo and/or Sullivan or by transporting the drugs from Adelaide knowing that they were to be sold. However, suspicion is not enough for proof beyond reasonable doubt. I cannot exclude as a reasonable possibility that the accused did not know of the presence of the drugs in his car and that he was, as he told the police, simply giving Sullivan and Leo a lift. I find that the prosecution has not proven the charge beyond reasonable doubt. In those circumstances notwithstanding my reservations, I must acquit the accused.