R v Wilton & Hallion - [2014] SADC 205

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WILTON & HALLION
[2014] SADC 205
Reasons for Ruling of His Honour Judge Tilmouth
11 December 2014
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - PROOF AND EVIDENCE
Circumstances alleged to mitigate participation in trafficking in cannabis, found unproven on the evidence.
Mule v The Queen (2005) 79 ALJR 1573; Anderson v The Queen (1993) 177 CLR 520; R v Olbrich (1999) 199 CLR 270, applied.
R v Trocko (1988) 142 LSJS 187, discussed.
Tiknius v The Queen (2011) 221 A Crim R 365; R v Trimboli (1979) 21 SASR 577; R v Wilton [2014] SASCFC 96; Oblach v The Queen (2005) 65 NSWLR 75; R v Day (2009) 262 LSJS 187; Warner v Metropolitan Police Commissioner [1969] 2 AC 256; He Kaw Teh v The Queen (1985) 157 CLR 523; Kural v The Queen (1987) 162 CLR 502, considered.

R v WILTON & HALLION
[2014] SADC 205
A disputed facts hearing

The defendants Trevor John Hallion and his half-brother William Jeffrey Wilton, were arraigned at Port Augusta on 2 April 2014 on a joint charge of trafficking in a large quantity of the controlled drug cannabis. Mr Wilton pleaded not guilty whereas Mr Hallion pleaded guilty. Mr Wilton was subsequently tried before a jury at Port Augusta and convicted. His appeal against conviction on the basis of an unreasonable and unsupportable verdict was dismissed by the Court of Criminal Appeal: R v Wilton.[1]
[1] [2014] SASCFC 96.
Both matters are now before the court for sentence. In relation to Mr Hallion there is an outstanding dispute as to the factual basis on which he is to be sentenced. He claims to have been subject to threats and intimidation in committing the offence. These reasons explain why Mr Hallion has failed to demonstrate such threats or intimidation occurred.
Uncontradicted facts
Towards sunset on Thursday 29 September 2011, Mr Hallion was driving his van northwards along the Stuart Highway in the upper north of the State, bound for Alice Springs. He was pulled over by Senior Constable Larkins who was then on ‘solo uniform mobile patrol’ about 15 km north of Coober Pedy, for the purpose of conducting a random breath test. Mr Hallion was alone in his vehicle. Larkins detected a strong smell of cannabis coming from the van as he stood next to it on the side of the highway. He informed Mr Hallion that he proposed to inspect the vehicle, his suspicions having been aroused. No issue is taken as to the legality of the ensuring search.
Adjacent to the sliding door inside the rear compartment he noticed a plastic garbage bag and again detected the strong smell of cannabis coming from it. Upon opening the package he observed that it contained cannabis. He thereupon contacted other police for assistance.
The vehicle was conveyed to the Coober Pedy Police Station and searched. A total of 18.118 kg of cannabis was found in the rear, distributed in the manner recorded in a statement of agreed facts before the court:
·A black plastic bag was located near the sliding door in the rear of the vehicle. It contained 8 plastic bags with: 443.4g, 452.0g, 439.0g, 440.5g, 436.5g, 455.5g, 450.5g, and 443.5g of female cannabis plant material.
·A white plastic drum (drum 1) at the very back of the rear of the vehicle containing 6 plastic bags with: 448.0g, 450.5g, 450.5, 443.5g, 448.5g, and 447.5g of female cannabis plant material.
·A second plastic drum (drum 2) at the very back of the rear of the vehicle containing a large ‘Cocos’ plastic bag which itself contained 6 plastic bags with 454.5g, 451.0g, 451.0g, 451.5g, 451.5g and 454.0g of female cannabis plant material.
·A large cardboard box in the middle of the rear of the vehicle containing:
oA large clothing vacuum bag containing 9 packages with 453.0g, 551.5g, 453.0g, 453.0g, 452.0g, 453.5g, 453.5g, 452.0g, and 453.0g of female cannabis plant material.
oA large clothing vacuum bag containing 11 plastic bags with: 452.5g, 452.5g, 453.0g, 453.0g, 452.5g, 453.5g, 453.5g, 452.5g, 452.0g, 453.5g, 453.5g of female cannabis plant material.
If sold in lots of approximately an imperial pound each, the cannabis could yield in the order of $50,000-$80,000.
No fingerprints belonging to Mr Hallion were detected on any of these items. Many that belonged to Mr Wilton were, namely multiple fingerprints on 10 of the 12 plastic shopping bags located in two plastic buckets (one of which bore his fingerprints), 12 fingerprints and a palm print on one bag in a bucket as well as 21 fingerprints and two palm prints on bags in the second plastic drum. The fact is that nearly all of the bags in the plastic buckets had his fingerprints on them. Obviously in convicting Mr Wilton, the jury must have inferred beyond reasonable doubt from this evidence that he was involved in the process of handling the bags when they were full, and potentially by filling, weighing and wrapping them. Furthermore, as the prints had survived these processes largely intact, the inescapable inference is that Wilton’s handling of the packages must have occurred proximate in point of time to placement in the van.
The record of interview
Mr Hallion was arrested, given his arrest rights and taken to the Coober Pedy police station. At about 9.20 that night, he was formally interviewed by Larkins in which he freely participated. It was video recorded and played in open court. During the course of that interview Mr Hallion made admissions that the vehicle was his, that he had left Adelaide at about 11.30 that morning and that he was heading for Alice Springs. He said that he was instructed to drop the car off at a BP service station in Alice Springs behind a video store near McDonalds and to leave it there for 30 minutes before going back afterwards to retrieve it.[2]
[2] Answer 128.
Mr Hallion explained to the police that he had fallen into financial problems owing to a failed business venture. He explained that he sold a couple of front case engines to a person (whom he did not name) who was ‘chasing there [sic] money back’.[3] The interview on this topic proceeded:[4]
[3] Answer 91.
[4] Question and Answers 92-98.
QAnd when you say something faulty what, what was it.
AI sold it was a couple of front (undecipherable) engine you know half cut front ends
QJapanese engine
AHmm
QHow much
AThey wanted back four and half thousand
QAnd how much (undecipherable) engines worth
ANo the whole parcel was about five thousand dollars and I had already given them back two thousand five hundred. So I only owned two and a half but I didn’t have any means of I’m in that much debt its not funny.
QIs that the only debt you in
ASorry
QYou said you got that much debt it’s not funny. What other debt have you got
AWell no I have mortgages and an overdraft that I’m still paying off and
QOk so the, the basis for this dispute between these people um is two and half thousand dollars.
AHmm
He claimed that on the Saturday previous, two men came to his house demanding the money on behalf of the purchaser as follows:[5]
[5] Question and Answers 101-108.
QIs that right. Just, just tell me a little bit about that what, what happened
AI was um at the front with the putting the DVD player in my car which I might have told you and um. The two guys approached from the back, come up the drive way and one fellow did the talking. The other guy stood on the other side of the car. He kept asking, he was told he was here to collect and I kept explaining to him I didn’t have money I didn’t have any money
QDid you know him do you know their names
ANot those people no
QHave met them ever before
ANo
QSeen them before
ANo
QOk so what did they say did they say they’re to collect the money
AHere to collect
QThe money
AYep
QAnd what was your response to that what
A(undecipherable) I didn’t have any money on me and I was defensive to start with because we didn’t know who they were and they mentioned who they were they to collect for
QWhich is
Mr Hallion proceeded to describe a scuffle that developed between them in which his fingers were injured, demands for money and threats to his family including his children were made, and that they said:
…we’ll be coming back for you and then Monday night I got a knock at the door again and I was told they would wipe my debt if I drove to Alice Springs.[6]
[6] Answer 47.
He told police that these men said they would put ‘some stuff’ or a bag in his car, (he was not told what it was), and that he was not to touch it.[7] He proceeded to explain ‘these people aren’t nice people’,[8] and that ‘after the altercation on Saturday there was no way on earth that I was going to anything but do what I was told’.[9] He also invited the police to look at the injuries to his hands said to have been sustained in the scuffle of the previous Saturday, an invitation they did not take up.
[7]    Answers 50-52.
[8]    Answer 71.
[9]    Answer 76.
Judging from this interview, Mr Hallion appeared obviously tired, at times sombre and at face value, genuine enough. This material evidence is available in his case and deserves to be accorded such weight as the court considers appropriate, even though some portions may be self-serving: Mule v The Queen.[10]
[10] (2005) 79 ALJR 1573, [23].
The evidence of Mr Hallion
Mr Hallion gave sworn evidence in elaboration of these claims of threats and intimidation, and of the fear that his wife and children would be harmed. As to the Saturday incident he said this in response to questions from his counsel:[11]
Yes, yes as I said he was asking for the money and I said 'I haven't got it' and he, he just basically - he was almost in front of me, he was right up against me, I pushed, we got into an argument and it turned into fisticuffs, a few punches were thrown. I was pushed to the ground. Then while I was on the ground he was on top of me and he had my hands back over my head there so they were on the pavers and the taller gentleman came up from behind and stood over the top of me and he stood on my hands and he crushed my hands between (INDICATES) the pavers and his feet and his shoes and held me down there while the other guy was, you know, laughing thinking it was a big joke and -
Shortly afterwards he added ‘they were asking for astronomical money’, said they would return and that if he didn’t have the money ‘they would start harming my kids and my family and my wife’.[12]
[11] T22.23-.35.
[12] T23.21-.29.
As to the incident of the following Monday he told the court this:[13]
AThe gentleman who said I owed the money and the two gentlemen that were there from Saturday.
QSo when you opened the door what next occurred.
AHe said 'I want to talk to you' - no, he said 'Do you have the money?' and I said 'No, I don't have the money', he said 'I want to talk to you' and I said well - he said 'I'm coming inside' and I said 'You can come inside but they're not coming inside'.
[13] T24.22-25.28.
Mr Hallion elaborated in considerably more detail the circumstances in which the items containing the cannabis came to be the in the van than he did to the police, as follows:[14]
QI want you to tell his Honour to the best of your ability how those items, that ultimately contained the drugs, got into your car.
ARight. When my wife had taken my kids and that to a school function they had come up after that and the young girl came and knocked on the front door and said 'I need your keys to your car' and she said 'I'm here to have your car, organise your car for you', so I gave her the keys and she said 'You're to stay inside and we will, we will, we will get you, you know, when you're ready, when we're ready to go', so I handed her the keys.
QMoving forward a bit, when you were ready to go were there any instructions of any kind given to you.
AYeah, I was told to, not to touch anything in, in the vehicle, they put stuff in the vehicle so it didn't need to be touched and that I was to drive, this is when they told me that I was to drive to Alice Springs and I was to go up to a, a service station up there and just ask the servo, was it a DV store, where I was to park the car and I was going to sit in the McDonald's for, for, you know, half an hour or so and then come back and collect my car.
He proceeded to explain that in participating as he did he was ‘terrified’ and ‘petrified’.[15] This account of events is not inconsistent with what he said to the police the following day.
[14] T26.11-27.11.
[15] T27.20-.21.
Legal principles
It is common ground that Mr Hallion bears the onus of proof of the mitigating circumstances on the balance of probabilities: Anderson v The Queen,[16] and R v Olbrich.[17] There is no doubt as a matter of sentencing principle that proof of threats or intimidation falling short of establishing a defence of duress, compulsion or necessity, may depending on the proven circumstances, serve to mitigate the penalty that might otherwise be appropriate: Oblach v The Queen,[18] Tiknius v The Queen,[19] R v Day.[20] The reasons underpinning this principle were explained by King CJ in R v Trocko,[21] as potentially effecting the degree of subjective or moral culpability and as bearing upon the prospects of rehabilitation.
[16] (1993) 177 CLR 520.
[17] (1999) 199 CLR 270, [24]-[25].
[18] (2005) 65 NSWLR 75.
[19] (2011) 221 A Crim R 365 [17], [35].
[20] (2009) 262 LSJS 187, [35].
[21] (1988) 142 LSJS 412.
As Mr Hallion gave evidence that he has ‘never been in trouble before …’,[22] this must be taken into account in assessing the credibility of his version of the events: R v Trimboli.[23]
[22] T29.12-.13.
[23] (1979) 21 SASR 577.
Analysis of the evidence
Standing alone the claim by Mr Hallion of intimidation viewed objectively, is unlikely but it is not inherently implausible. There was nothing in his demeanour as such, that causes one to doubt his evidence. It is in an examination of the finer details however that clues can be found as to the veracity of his evidence.
There are some inconsistencies between his evidence and the record of interview which are likely to be attributable to the fact that he was tired and that the police became rather dismissive of his explanations. It is often the case that more detail is elicited under closer examination and scrutiny in the courtroom than during police records of interview.
These considerations to one side, of further significance is that when spoken to by the police, he described the sum of money at stake as being two and a half thousand dollars.[24] Such an amount was within his financial reach for repayment given the number of motor vehicles at his disposal and his capacity to spend a not inconsiderable amount on petrol before departure. The zealous, aggressive and intimidating demand as described by him appears grossly disproportionate to the supposed debt. Furthermore, although he described the demands as ‘astronomical’ in-chief,[25] it was not until he was under cross-examination that he first put the unlikely figure of $50,000 on it.[26]
[24] Answer 95.
[25] T23.25 (evidence-in-chief).
[26] T41.18-44.20, T50.4-52.32, T68.37-69.3.
Another unsatisfactory feature of his evidence relates to the question of knowledge. By his plea of guilty Mr Hallion necessarily admitted the essential ingredients of the charge, including knowledge that there were illegal drugs in the car, even if he did not expressly know that it was cannabis: Warner v Metropolitan Police Commissioner,[27] He Kaw Teh v The Queen,[28] Kural v The Queen.[29] During the record of interview he repeatedly denied knowledge of the cannabis, ‘I didn’t know what was in the bag’,[30] I didn’t think it was cannabis – I didn’t think it was legal’,[31] ‘I didn’t really give it a thought’,[32] ‘I don’t know what was in the bags’,[33] for example. These states of mind fit rather awkwardly with his plea of guilty, which is taken as an admission of knowing illegal drugs were involved.
[27] [1969] 2 AC 256.
[28] (1985) 157 CLR 523, 589 and 152.
[29] (1987) 162 CLR 502, 504-505 and 512.
[30] Answer 53.
[31] Answers 70 & 71.
[32] Answer 74.
[33] Answer 124.
Nor does his evidence that ‘I guess at the end of the day I knew … I was … I just didn’t know what sort of drugs, it could have been cannabis, it could have been heroin it could have been anything’ [34] fit all that comfortably with his plea neither. More to the point, it is difficult to marry either states of knowledge with the uncontested evidence of Constable Larkins that a strong smell of cannabis could be detected from outside the vehicle even before access was gained. The odour must have become quite apparent to Mr Hallion during the course the preceding journey of six or more hours.
[34] T28.34-29.3.
Putting aside for the moment the unlikely, casual, vague and imprecise nature of the supposed arrangements both upon leaving Adelaide and upon arrival in Alice Springs, and that a young assertive woman visited him on the Thursday morning, a most telling consideration is this. During the course of his evidence Mr Hallion deposed that he had nothing to do with his half-brother, the co-accused, since around 2007.[35] According to him this situation arose because Mr Wilton had written off a vehicle owned by Mr Hallion and then falsely claimed that it had been stolen and ‘wouldn’t acknowledge that’.[36]
[35] T19.1-19.
[36] T19.1-19.
The unassailable objective fact is that a large number of unspoiled quality fingerprints attributable to Mr Wilton were detected on the plastic bags containing the cannabis and the other items detailed earlier. That inexorably means he undoubtedly handled those items at some stage shortly before or at the time they were placed in the van, in conjunction with the unlikely hypothesis that someone else handled them extensively afterwards based on the expert finger print evidence that ‘on a smooth surface such as … plastic, obviously that’s a lot easier to rub off or destroy’.[37] It follows from Mr Hallion’s account that somehow Mr Wilton was coincidentally involved in the immediately preceding events.
[37] T76.22-24.
This version of events put forward by Mr Hallion utterly fails to reconcile this objective evidence. It is a highly unlikely and quite frankly inexplicable co-incidence. Principally for that reason, in combination with the above flaws in his account of the matter, that the evidence of Mr Hallion must be rejected. In that situation he fails to discharge the onus of proving the supposed threats, because they are irreconcilable with established facts.
Conclusion and orders
The claimed intimidation and threats against Mr Hallion therefore remain far from proven on the balance of probabilities. Both men are remanded for submissions in mitigation accordingly.