R v Zappia - [2015] SADC 117

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ZAPPIA
Criminal Trial by Judge Alone
[2015] SADC 117
Reasons for the Verdict of His Honour Chief Judge Muecke
21 August 2015
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
Accused charged with one count of Trafficking in a controlled drug.
Verdict: Guilty as charged.

R v ZAPPIA
[2015] SADC 117
The charge

Nathan Lindsay Zappia (‘the accused’) is charged with Trafficking in a Controlled Drug. It is alleged that he, on 2 July 2012 at Ridgehaven, knowingly trafficked in a controlled drug, namely 3,4-methylenedioxymethlyamphetamine.
This offence contains three ingredients, each of which much be proved by the prosecution beyond reasonable doubt.
First, it must be proved that the substance that the accused had was a controlled drug. The drug alleged, which is otherwise known as MDMA or ecstasy, is declared to be a controlled drug by the Controlled Substances Act 1984.
Secondly, it must be proved that the accused trafficked in ecstasy. A person traffics in a drug if he has possession of a drug intending to sell it. That is the manner in which it is alleged that the accused in this case trafficked in ecstasy.
Thirdly, it must be proved that when the accused possessed ecstasy he did so knowing that the substance was ecstasy, or at least knowing that it was a controlled substance.
I refer again to the second element above. Here it is alleged that the accused possessed ecstasy for the purpose of selling it. In proving this the Crown has the benefit of a statutory presumption. If the Crown proves beyond reasonable doubt that the accused possessed more than a ‘trafficable quantity’ of ecstasy, then the law presumes that he had possession of it for the purpose of selling it unless he proves that he had it for some other purpose. The accused does not have to satisfy me beyond reasonable doubt that his purpose for having it was not sale. It is enough if he persuades me that it is more likely than not that his purpose was other than to sell the ecstasy that he had. If he fails to so persuade me then this second element is proved by the Crown.
A trafficable quantity of ecstasy is 2 grams. It is an agreed fact in this case that the accused possessed a total of 10.39 grams of a substance that contained ecstasy.
It is not in dispute in this case that the accused possessed that total amount of substance containing ecstasy and that he possessed it in 34 tablets police found in the wardrobe of his room in the house where he lived. It is not in dispute that the accused knew that he possessed those tablets and that he knew that the tablets contained ecstasy.
The issue in this case is the second element of the offence charged against the accused. As to that element, the issue primarily is whether the evidence I heard at the accused’s trial satisfies me that it is more likely than not that the accused had the 34 tablets of ecstasy for a purpose other than to sell it or some of it to others.
Subject to the statutory presumption regarding sale the Crown must prove the charge against the accused. This applies to the first and third elements of the charge against the accused. In respect of these two elements the accused does not have to prove anything and, in particular, he does not have to negative those two elements.
As to the second element of the offence charged, relating to whether or not the accused intended to sell the ecstasy the subject of the charge, the statutory presumption will operate against him unless I am satisfied that it is more likely than not that his purpose for possessing the ecstasy was other than to sell it. He gave evidence at the trial before me in order to persuade me of that. Notwithstanding that, it is still for the Crown to prove the other two elements of the charge and also to prove that the statutory presumption in respect of the second element arises. The Crown must prove these matters beyond reasonable doubt.
In this case the accused is not to be convicted of the charge against him unless I am satisfied that his guilt has been proved beyond reasonable doubt. I must be satisfied of that in respect of all elements of the offence, although the second element will be proved beyond reasonable doubt if it is proved that the statutory presumption arises and I am not persuaded that it is more likely than not that the accused’s purpose for possessing the ecstasy the subject of the charge was other than to sell it. In this respect I must be satisfied of the accused’s version in this case as to that matter.
In this respect a focus in this trial and in these reasons will probably be on the accused and his credibility and reliability.
I must consider carefully all the evidence I have heard and counsel’s submissions. I must decide which witnesses are credible and reliable, remembering that an honest witness can be mistaken and unreliable. In deciding whether a witness is credible and reliable I must use my life experiences and common sense. I have the right to believe or disbelieve. I may believe some of the evidence of a particular witness, and disbelieve other evidence that witness gave.
I must consider only the evidence that I heard at the accused’s trial. I must put aside any feelings of sympathy, anger or distaste, and even prejudices (if I know I have any), and carry out my task calmly and objectively.
If, in these reasons, I speak about matters being ‘proved’ or ‘satisfied’ or ‘established’, or any other word or expression of that kind relating to the proof of matters in issue, I mean, although I may not say so on every occasion, ‘proof beyond reasonable doubt’.
The Crown case
There was a Statement of Agreed Facts (Exhibit P4).
It was agreed that at about 4.25pm on Monday 2 July 2012 police attended at the accused’s home address at Ridgehaven. They searched his bedroom. They located a clear plastic resealable bag containing 34 tablets in a suit bag hanging in the wardrobe. The bag containing those tablets is depicted in Exhibit P1. It is the smaller of the two plastic bags on the yellow envelope. The tablets were transferred from the smaller bag to the larger bag seen to the right of Exhibit P1. Exhibit P1A depicts the tablets in the larger plastic bag with the smaller plastic bag, now empty, seen to the right of the larger bag.
Police also found a notepad paper titled ‘Seal the Deal 101’. This was found in a black metal tin located in the bottom drawer of the wardrobe in the accused’s bedroom. This paper is Exhibit P2.
At about 5.29pm on the same day police saw the accused walking on a street near his home. They stopped and searched him. They located and seized a Samsung mobile telephone.
The 34 tablets police found in the suit bag in the accused’s bedroom were deposited at the Forensic Science Centre of South Australia on 27 August 2012 for analysis. The analysis revealed that 30 of the tablets were a green speckled colour and bore a horse/polo design. The other 4 tablets were a pink/yellow speckled colour and bore a horse/polo design. The 34 tablets weighed a total of 10.39 grams and contained a total of 1.65 grams of 3,4‑methylenedioxymethylamphetamine (MDMA).
The Samsung mobile telephone number was registered to the accused at his home address. The service was activated on 31 May 2012 and was disconnected on 27 September 2013.
The Samsung phone and Vodafone SIM card were taken to the Electronic Crime Branch of the South Australian Police. On 27 February 2013 the content from the phone and SIM card was extracted. A total of 153 SMS messages were extracted from the memory of the mobile telephone. Of these 144 were incoming messages to the phone and 9 were outgoing messages. Twenty SMS messages were extracted from the Vodaphone SIM card. A selection of 58 SMS messages extracted from the phone are reproduced in Exhibit P3. That table shows the date and time of each message, whether the messages came into the phone or was sent from the phone, the name of the contact (as stored on the device), the telephone number of the other party, and the message.
Detective Brevet Sergeant Corbridge gave evidence that he attended at the accused’s house at 4.25pm on Monday 2 July 2012. He and two other police officers searched the accused’s bedroom. He searched the wardrobe and found a clear resealable bag containing ecstasy tablets. He transferred them from the original bag into a new bag for them to be analysed.
Mr Corbridge said that another police officer located a black metal tin in a bottom drawer of the wardrobe. In the tin was the paper ‘Seal the Deal 101’ (Exhibit P2).
Mr Corbridge said that he and the other police officers located the accused nearby. He searched him and found the Samsung mobile phone which he seized and submitted for examination.
When cross-examined by Ms Burgess, of counsel for the accused, Mr Corbridge said he did not find any J-bags on the accused when he stopped him. He did not find any J-bags anywhere else in the house other than in the accused’s bedroom. He did not locate any cash on the accused when he stopped him. He did not locate any cash in the bedroom that he searched, nor did he locate any cash in any other location in the house. He did not locate any scales in the bedroom or within the house. He did not find any other drugs in the house and the accused did not have any drugs on him when he stopped him. He did not find what is commonly known as a customer list or a list with names and amounts or dollar figures on the accused nor within the house.
Mr Corbridge said that there were no telephone intercepts in this case, there were no undercover operatives operating in this case, there were no observations made of the accused apparently dealing in drugs, and there were no observations made of people coming to his house.
Mr Corbridge agreed with Ms Burgess that but for the ecstasy tablets located in the accused’s bedroom, the messages that came from his phone, and the ‘Seal the Deal 101’ paper there was no other indicia of sale in this case.
Detective Jarrad Parker gave evidence that he has been a police officer for about 13 years. He was, at the time of the trial, stationed at the Drug and Organised Crime Task Force. He said that he spent about four years on uniform patrols and in the course of that work spoke to users of controlled drugs, including ecstasy. He also came across people suspected of selling controlled drugs although not so much back when he was on uniform patrols. In 2005 he was seconded to the Port Adelaide Operation Mantel team which was responsible for the policing of street‑level drug use in the Port Adelaide area. That included street-level drug use and trading in relation to ecstasy tablets. He was later second-in-charge of the Operation Mantel team.
Mr Parker said that he had done the clandestine drug laboratory course which is compulsory for police officers who work in Operation Mantel. He later presented at one of the courses for those involved in drug investigations. He presented to give those attending the course a basic knowledge of all things around drug investigations and illicit drugs. Later he facilitated that course.
Mr Parker said that a large part of his duties at the Drug and Organised Crime Task Force involved exclusively investigating drug-related matters. Some of his work involved drug investigations of trafficking in ecstasy. He explained that part of his duties involved gathering information from suspects and offenders relating to the trading in illicit drugs, and monitoring telecommunication intercepts that related to the sale, supply and manufacture of illicit drugs, including ecstasy. He said that some of those intercepts included text or SMS messages.
Mr Parker said that as a result of his experience he believed he was familiar with the way in which ecstasy was consumed, packaged for sale and distributed. He was also familiar with the prices that are usually paid for ecstasy.
Mr Parker said that ecstasy is most commonly encountered in tablet form, although it can be either in a powder or a crushed-up tablet which is found, in either case, in a capsule. Ecstasy tablets are produced similarly to how methamphetamine is produced in a laboratory although it is a different chemical process. He said it is quite rare for it to be actually produced in Australia. Mostly powder is imported into this country and is then pressed here into tablets.
Mr Parker gave evidence of the street names for ecstasy. He said that apart from those names they are also quite often referred to by their colour and/or the print that is on the tablet. He referred to it being fairly common a few years ago that a red tablet with a Mitsubishi emblem printed on it was referred to as a ‘red Mitzi’. He explained that a die to press ecstasy powder into tablets can be hard to obtain so quite often a large batch of tablets is produced at once with the one die, with the same ‘brand’ on them.
Mr Parker said that generally street level deals of ecstasy were in small press-seal bags, or small money bags, similar to the small bag seen on the envelope in Exhibit P1. He said that the tablets seen in the larger plastic bag on Exhibit P1A are consistent in appearance with what he sees marketed as ecstasy.
Mr Parker said that when ecstasy is sold it can commonly be sold as single tablets or what is referred to as ‘a 10 pack’. That is 10 tablets in a plastic bag.
Mr Parker said that the price of ecstasy tablets has fluctuated regularly over time and that fluctuation can be due to the availability of the drug at any one time. He referred to there having been a shortage of MDMA from 2009 through to 2011. He said that the price can also vary depending upon the amount purchased. The larger the amount purchased the cheaper per tablet it is. The price can also vary on how well the purchaser knows the dealer, and vice versa. The location of sale can also affect the price.
Mr Parker said that as of July 2012, when the accused was arrested, ecstasy tablets could sell from anywhere between $20 to $35 for a single tablet. He said that if the 34 ecstasy tablets found on the accused were sold singly, anywhere from $680 might be obtained. That is if they were sold at $20 each. If they were sold at $35 each anything up to $1,190 would potentially be realised. If they were sold in quantities of ten, which could bring anywhere from $20 to $30 per tablet, the seller would potentially realize between $680 to $1,020.
Mr Parker said that in his experience cash was predominantly the method used to pay for ecstasy. That is the preferred method, although there was a process called ‘getting something on credit or a tick’. That is a promise of payment at a later date, and that is quite common in all illicit drug transactions. He said that also stolen goods or any other goods could be exchanged for the drug. Even a different drug could be exchanged for ecstasy.
Mr Parker said that some dealers only deal with cash whilst others allow credit to purchasers. Not every dealer provides credit.
Mr Parker said that in his experience there was no particular place drug dealers generally used from which to sell drugs. There was no particular time of day or night that drug deals take place. Sometimes a dealer would deliver to a customer and sometimes it would be the other way.
Mr Parker said that there are some items that are commonly associated with or found in relation to someone who is involved in the trafficking of ecstasy. There may be new or unused press-sealed bags. There may be one or more mobile phones. There may be cash, but not necessarily so. There may be ‘a tick list’ which keeps a record of the debts owed for the drugs. He said it can be the case that all of these items are present on someone or at someone’s house who is dealing in ecstasy. It can also be the case that only one or a couple of those things are present at the time. Sometimes it will be the case that none of those items, other than the drugs, will be found.
Mr Parker said that part of his involvement with drug investigations was viewing text messages from mobile phones of people selling ecstasy. He said that generally these communications or conversations are coded. A potential purchaser will text his dealer to see if he has some drugs to sell by asking: ‘Can we catch up?’, ‘Are you home?’, ‘Have you got any?’, ‘Are you holding?’. An affirmative response from the dealer indicates that person is available and in a position to deal. He said that when these messages are exchanged the purchaser generally refers to the quantity sought rather than the value. The purchaser and the dealer would have a general idea of the value of the cost per tablet so the purchaser will request a quantity. Sometimes the price will arise for larger quantities.
Mr Parker then referred to Exhibit P3, the table of SMS text messages extracted from the accused’s Samsung mobile phone. He gave evidence about some of the words used in the messages and gave his interpretation of some of the messages. He said that ‘coin’ is money; ‘hun’ is a hundred; ‘caps’ is short for capsules; ‘flips’, ‘lollies’ and ‘rounds’ is ecstasy; ‘tick’ is credit; and ‘moved’ is sold.
Mr Parker said that message 25 is consistent with an inquiry to purchase illicit drugs. He said ‘get ten’ refers to a 10 pack which is a common quantity of ecstasy. A ‘bender last night’ refers to having a big night on some intoxicating substance and ‘need replenishments of a new variety’ indicates that that person has run out of whatever they had and needs some new drugs. ‘I’m all good to go. Cash sorted’ indicates that the person has money to purchase 10 ecstasy tablets.
Mr Parker said that an enquiry of the type seen in message 40 (‘Oi man u got any need em’) is consistent with what he has seen in his investigations by someone wanting to purchase some illicit substances.
Mr Parker said that in message 45 ‘g’ can refer to a gram of a controlled drug or it can refer to a $1,000 (a grand). He said this message looks like some form of exchange but it is hard to determine exactly what is being exchanged, whether it is money or different commodities of drugs. He said that sometimes payments for drugs can be made with a combination of other drugs, cash or other property.
Mr Parker gave evidence about message 51 – ‘Green spec ralphs and orange spec ralphs half an half’. He said that quite often ecstasy tablets are referred to by their colour and what is printed on them. His experience suggested that the message was speaking about green specked ecstasy tablets with a Ralph Lauren print on them and orange speckled ecstasy tablets with a Ralph Lauren print on them.
Mr Parker was asked to comment on Exhibit P2 – ‘Seal the Deal 101’. He said that the quantities and pricing that were listed on that document were consistent with the quantities and pricing of ecstasy in about July 2012 when the accused was arrested. He said that the strategy referred to in the document was consistent with methods employed by dealers of ecstasy tablets. He said that the questions under ‘Sale Speech’ are consistent with methods of which he was aware that are employed to sell ecstasy tablets.
Mr Parker said that when he first saw Exhibit P2 – ‘Seal the Deal 101’ his thought was that it was essentially a business plan for the sale of ecstasy. It covered most aspects of what you need to do.
When cross-examined by Ms Burgess, Mr Parker agreed that he could not tell from looking at the small bag in which the ecstasy tablets were found whether they were destined for sale or for personal use.
When it was put to Mr Parker that the number of ecstasy tablets found, being 34, could be consistent with sale or with personal use, he responded: ‘The quantity of 34 I would argue is not consistent with personal use’. He did say, however, that he could not rule out personal use if someone could ‘come up with the money to purchase that many’. He said it was unusual for that sort of quantity to be purchased and kept because of the amount of money required to be outlaid. He said that whilst it was not something that he could rule out, it was not something that he had experienced. He said that he had ‘never seen a person purchase that amount of tablets for personal use. That’s my experience’.

Mr Parker said that he had not been made aware of any indicia of sale in this case other than the tablets, the ‘Seal the Deal’ note and the text messages.
Mr Parker agreed with Ms Burgess that on occasion it can be the case that what often appears on its face to be something related to drugs may have a different interpretation. He said that ‘getting context from a wider range of messages can be important’. He agreed that where code language is used between people sometimes he does not know what some words mean. He said, however, that if he sees them repeated in a context that can help to make ‘an educated guess’ and to make sense of particular messages.
The Defence case – the accused’s evidence
The accused said that he was 25 years old and lived with his parents at Ridgehaven. He said that in July 2012 he was living with his parents at the same house. He was working back then as he was when he gave evidence. He was then working as an ‘electrician tradie’.
The accused said that in July 2012 he was using ecstasy, a lot. He first used it about a year before. That followed ‘a bit of a rough time’ when he was in his hometown in country Victoria. He then moved to Adelaide with his father and found some mates to go out with here. A mate of his from his hometown turned up in Adelaide and offered him some ecstasy. The first ecstasy tablet he took was three or four months after he arrived in Adelaide. That was at a nightclub on a Saturday night when he was out with friends. He said that tablet made him feel pretty good and he ‘got a lot of things off (his) mind’. After having one he could not stop.
The accused said that he gradually took more and more ecstasy tablets and was taking more over the course of any one night. He said that it would be ‘a good 12 hours’ between 8.00 o’clock at night and 8.00 in the morning. He said that he started pretty much from when the nightclub opened and it could vary from a Wednesday night to a Sunday night. It was Thursday mainly right through to Sunday. He said he was nightclubbing on Wednesday, Thursday, Friday, Saturday and Sunday nights. He was still working during that time but struggling.
When the accused was asked how he paid for the ecstasy he said that because the person supplying him was ‘a very close mate I got away with getting it on tick or paying half and half’. That was half now and half later. He said he paid his supplier cash initially and was only buying between 5 and 10 tablets for between $150 and $200. He would take one or two a night.
The accused said that after a good six months his use escalated and he would use 10 or so ecstasy tablets a night. He was paying on tick, half and half. He said that he would then pay back what he owed on credit when he had more money to do so.
The accused said that after the six months after he first started taking ecstasy he continued to consume anywhere between 10 and 15 ecstasy tablets every night that he went out in every week to 2 July 2012 when he was arrested. He said, however, that between 10 and 15 ecstasy tablets a night was over a twelve-hour period. He did not take 15 tablets in one hit.
The accused said that he was having difficulty paying for the ecstasy tablets he purchased from his hometown friend at the time just before July 2012. He said he was getting harassed by his friend because his friend had to pay his supplier.
Ms Burgess asked the accused:
QAt that point in time did you find yourself owing him more money than you had when you first started.
AYes.
QWhat sort of – we talked about the quantities that you were using, so you talked about between 10 and 15 tablets a night – what sort of cost or what sort of debt were you racking up with this person at that time.
AIn the hundreds, so, yeah.
QOn a per night basis.
ANo, in general, like as in, in total.
QSo would you buy the tablets in a lot or would you buy them ready for each night. Can you explain to –
AJust buy them in one lot, yeah.
QSo approximately what sort of costs would there be in buying it in one lot.
AThe more you buy the cheaper it is.
HIS HONOUR
QThat doesn’t quite answer the question.
AYeah.
QWhat sort of price – I’ll start again – perhaps.
MS BURGESS’S QUESTION READ BY REPORTER
AThe price varies from how much I bought at a time to how much it would cost.
QSo at that point in time just before July what sort of quantity were you buying at one time.
ASay 40 – 45.
QHow long a time frame would that last for you, your usage.
AUsually roughly, like lasts probably, like those four or five days, but other than that if I had spares I’d sort of leave them for myself the next week and not get as much or still get the same but just keep stocking for myself.
The accused said that because his friend was under pressure his relationship with his friend changed. He said ‘it got to more of him sort of making it business wise than just being mates’. When asked how he dealt with that change the accused said: ‘I just dealt with it, like sort of just kept it to myself sort of’. He said he ‘Tried to brush it off but still tried to be a mate at the same time sort of thing, I didn’t want to get much involved’.
Ms Burgess then took the accused to Exhibit P3, the table of SMS messages.
The accused said that message 1 was from Hayche who the accused said was his friend from country Victoria and the person who supplied him ecstasy. This message was an incoming message to the accused’s mobile phone. It arrived at about 4.00pm on Monday 25 June 2012. This is nearly exactly seven days before the accused was stopped and searched by police on Monday 2 July 2012.
The accused said that this message was from Hayche and he understood the message to mean that Hayche needed to be paid for ecstasy he had previously supplied to him. He said he couldn’t remember whether it was a couple of hundred dollars or a few hundred dollars. He said ‘I’d say ‘a few’ to be safe’. He agreed that if he was buying 40 to 45 tablets at a time and was paying $20 each that was about $800 to $1,000. He added, however, that it was probably a little less because he would have got the tablets for $18 each. He said he would pay half and get half on credit. He said, however, that the money he owed kept building up over a period of time and because his supplier had been a mate for a long time he would allow that to occur.
Ms Burgess took the accused to each message on Exhibit P3 in turn. I do not refer to each and every one of them.
The first 45 messages came in to the accused’s phone. That is people were sending messages to the accused’s phone. Of the remaining 14 messages on Exhibit P3 only 3 were sent by the accused to others. The other 11 were all incoming messages. The first of the outgoing messages was sent in the morning of 2 July 2012, the day the accused was arrested.
Of the first 45 messages, all of which came into the accused’s phone, 22 came from ‘a person’ whose name in the accused’s contacts on his phone was stored under ‘Hayche’ or ‘Big Bad Wold’. The accused’s evidence was that Hayche and Big Bad Wolf were the same person and that person was his old friend from country Victoria who was his supplier in Adelaide of ecstasy. Hayche and Big Bad Wolf were stored on the accused’s phone on different mobile phone numbers. That is, on the accused’s evidence, Hayche would message him from a mobile phone with a particular number whilst Big Bad Wolf would message him from a mobile phone with a different number. Of the first 45 messages it seems only 4 came from contacts stored under a full name of the person messaging the accused and there were only 3 such people, 2 messages coming from one of them. The rest of the contacts were either christian names, nick names, or maybe surnames.
During his evidence the accused said that a number of the messages coming from Hayche or Big Bad Wolf reflected his evidence that his supplier wanted him to pay him what he owed him for past supplies of ecstasy he had provided to him. He said other messages related to him seeking to obtain ecstasy for his own use either from Hayche/Big Bad Wolf or from others.
The accused also said that he had some difficulty in interpreting some messages because Exhibit P3 did not contain what he said would probably have been other messages in between the incoming messages. He said that he would have sent messages in reply to some of the incoming messages.
The accused also said that a number of the incoming messages were inquiring of him whether he was going into town and whether he wanted to meet the senders of them.
The accused was asked about message 6, which was from ‘Dale’ on Monday 25 June 2012. The message was: ‘I’ll be keen man. Can I grab them 2morrow’. When the accused was asked what he understood by that message, he answered:
A‘I’ll be keen man’ probably would have been me asking if it was like – like if he wanted to go to town or things like that, but the ‘can I grab them’ would have been maybe through Hayche who I got the ecstasy tablets from, would have been like I owed him like, like the ecstasy that I gave back, gave to me or money which I owed him for my like usage of what I used.
QSo am I right in understanding –
HIS HONOUR
QCan you explain that again please.
AIt would have been as, either it would have been money or it would have been leftover ecstasy that I’d not used or anything to give back to Hayche, which was a mate of Dale’s – Dale’s a mate of, sorry, of Hayche.
QSo Dale wants some leftovers.
AYeah, I’m guessing so, yeah, but I had a lot of people asking me because they knew the situation I was in, but it doesn’t mean that I actually gave anyone any because I wanted them for myself obviously because they were good, and because I was consuming a lot.
XN
QWe haven’t got your response to these messages, have we.
ANo.
QSo what we have in front of us is the incoming messages, we don’t have your responses, do we.
ANo.
QSo is that why it is that you’re not sure or you can’t explain any more than what you’ve explained with that message.
AYes.
When the accused was asked what he interpreted message 9 from Dale, which read ‘Will probably need a lot of help near the weekend;) Cos because my man is out of town’ to mean, he answered:
AI’m not too sure to be honest. Could mean a lot of things, just need a lot of help like doing something around the house or anything like that.
QSo did you help out Dale.
AWith?
HIS HONOUR
QAround the house.
ALike as in like work wise, I’ve done a couple of jobs for him, yep.,
XN
QDale.
AYeah.
QSo do you see this message as being related to anything drug-related.
ANo.
HIS HONOUR
QWho was his man do you know.
AI had some electrical work that I did for him, because he’s a builder, and I’ve done three and a half years, but at his house, just in his room that he wanted me to look at, so that’s what I’ve done.
QSo who is his man.
AI don’t know who his man is.
The accused was asked about messages 25, 26 and 28. These three messages were all from ‘Jack’, and they were all received by the accused’s phone within a period of about 20 minutes. The accused said that he could not recall who Jack was. He said he could have been ‘someone in the group that would have known I had like my share of stuff for me on the weekend’. These questions and answers then followed:
QSo the message ‘Yo Nath, can I get 10 off you today? Had a bender last night, need replenishments of a new variety, any chance? I’m all good to go. Cash sorted’, can you explain that message, break it down or explain it.
ANot off the top of the head, it would have been a message I ignored –
QWhen you say –
A– because a lot of messages asking for things like that because a lot of people knew that I knew people that sold sort of thing and there was no way I was getting rid of my stuff to support someone else, I was having enough – hard enough time to support my own, so.
QSo when this person is asking to get 10 off you, do you take that to be 10 ecstasy –
AYeah, would have been, yeah.
QWhat do you understand ‘need replenishments of a new variety’ to mean.
AI don’t know, maybe a different kind of what he had or something, I don’t know.
QWhen this person says ‘I’m all good to go. Cash sorted’, what did you take that to mean.
AHe just said he’s got money sort of thing, like it’s fine, he’s not going to get it on credit or anything like that.
QAnd if someone’s offering to – I mean if you look at the messages 24 and 25 together, because there’s about half an hour difference in time, you’ve got Big Bad Wolf saying he’s needing money or he’s needing ecstasy and then you’ve got someone else asking for ecstasy and saying they have got money, what was your response to that message or those messages.
HIS HONOUR: If any.
XN
QIf any. Did you respond to those messages and if so what was the response.
AI couldn’t remember those, half these message, like I said, I can’t remember, only just seen them like once with Trevor and over the phone discussing it with you sort of yesterday briefly, so.
QSo what about could it be the case that this message related to ecstasy, you agree with that.
AYes.
QAnd it looks like you were being asked to hand it over, do you agree with that.
ACould have been the case, yes.
...
HIS HONOUR
QIs that as you understood it.
AYes.
QDid you respond.
AI’m not too sure. Yeah, I can’t remember, without the outgoing text to match it, I can’t.
HIS HONOUR: The next might help.
XN
Q26: ‘ASAP. I’m at the Aquatic Centre North Adelaide now, gonna look around for an ATM .. just a case of getting cash out from a teller ..’, does that remind you of anything more about the previous message.
ANo. See there is only a few messages of that so I can’t recall.
QCan you say whether there were others in that sequence, or you don’t know.
AOthers as in?
QOther messages that perhaps aren’t here.
AThere could be. I don’t know unless I look at my phone.
QCan you recall whether you responded to this message or it was one that was ignored.
ANo, I can’t recall.
...
QMessage 28 from Jack ‘Hectic as, nah bro I can’t ey .. got no liscence .. and only got 200.’ What do you interpret that message to be.
AI’m not too sure.
QIf we go back to messages 25 and 26, does there seem to be a link between message 28 and those two messages or does it seem to be a different topic.
AIt could be a different topic, I don’t know. It could be me asking him for money, it can be like to borrow, obviously to pay someone else to get back but I don’t know.
QDid you ever obtain or purchase any ecstasy tablets from Jack.
ANo.
QAnd can you tell whether the reference to 200 is a reference to money or to tablets.
AWhat – looking at it now i could be meaning – asking – me asking him for money but he said he has only got 200 so – like I said there is only three, I can’t recall the outgoing messages.
The accused was asked about message 37, which was an incoming message from ‘Ryan’ (whom he said he thought was a ‘friend of a friend’), in this way:
Q‘No idea bro. I asked my friend but no reply! I have a mate who wants a hun btw man, just trying to help you.’ What does that mean.
ANot too sure off the top of my head to explain that. A lot of people knew that I owed him like money for my habit sort of thing so it could have been him saying he could help me out sort of thing.
QCould you have sought help from Ryan.
AI could have but that would have been – like, made me deal sort of thing which is something I didn’t want to do living with two younger brothers and stuff like that, I didn’t want people coming around to a house that wasn’t really mine so –
QWhat do you understand that a ‘hun’ to mean.
ADon’t know.
The accused was asked about message 40, which was an incoming message from Brayden Love. When he was asked who Brayden Love was he answered:
AI couldn’t tell you to be honest at the moment.
QDo you remember a person called Brayden.
ADon’t know off the top of my head, no.
QThe message ‘Oi man, you’ve got any need em’. What do you interpret that to mean.
QHe is probably just asking me if I have any.
QAnd ‘any’ being.
QEcstasy, lollies, whatever you want to call them.
The accused was asked about message 45 in this way:
QThe next message 45 ‘Nah he doesn’t. Can I have that 80 make my g and give you the rest in rounds.’ What does that mean.
AOff the top of my head it’s I think I owed – that’s all I had at the time was $80 to give him back so that’s probably what he needed, and rounds could be something. It could be ecstasy, I’m not too sure. Like I said I don’t have any outgoing messages to know – these are all incoming, it’s two years, it’s text messages, I don’t know –
QYou can’t remember the exact sequence.
AYes.
QWhen it says ‘Make my g’, what do you take that to be.
AThat would be a thousand dollars.
QSo you say that $80 and then ‘Make my g’ so owing a thousand.
A‘Yep.
QAnd give you the rest in rounds. That possibly means ecstasy.
AYes, because he usually gave me on tick if I wanted some, that was a constant supply sort of thing.
QSo what does the word ‘rounds’ mean. Can you use ‘rounds’ in another sentence.
AIt’s like another word for ecstasy, I would imagine.
The accused was asked about message 47 in this way:
QNo 47, also from Hayche not long after ‘Dude you know I’d help you out but I’m fucked as well’, that same face again ‘Have you moved that 80 yet’; what does that mean.
AI think he was trying to get me to move some stuff for him, which I wasn’t planning on doing so.
QSo when you say ‘move it’ do you mean sell it.
AYeah, sell it, yeah.
QSo could the 80 that’s referred to in message 45 be 80 tablets and then if we look at, 47 ‘Have you moved that 80 yet’, could that refer to drugs as well as money, or money.
AIt could, I’m not too sure.
QIs it the case that Hayche asked you to sell drugs for him to recoup the money that you owed him.
AIt’s come up in conversation a fair bit, yeah.
QHow did you deal with that.
ASort of said I didn’t want to get involved – I couldn’t deal with it as in selling so I didn’t want people coming over to the house and stuff like that when I’ve got two little brothers.
QDid you say something along the lines of you wanted to deal with it your own way, is that what you said before.
AYeah.
QWhen you say that, what did you mean by that.
ALike just paying back over time through work money and things like that.
QWhen was the first time that Hayche asked you if you could sell for him.
AHe’s brought it up numerous times.
QWhat had your response been all the way along.
AIt’s just been in a conversation, it’s been ‘No’, straight up, like I’m doing now, so that’s it.
QYou told us before you were harassed. Was there anything to do with this topic that – that was related to this topic in any way or just generally about getting his money back to him.
AThis was generally getting his money, he said obviously the more you buy of someone else’s the cheaper you get it.
QYou told us before you didn’t respond to some of these messages. Can you recall responding to this message or did you respond to it.
ANot that I know of, it was 2 July, that was the day I got done, caught.

The accused confirmed that the day of his arrest was 2 July 2012. He was then asked about message 48 which is a message he sent to Hayche on the same day as message 47. This message appears to be the only message on Exhibit P3 where the time is out of sequence with the message preceding it. It is stated to be sent at 14:22:20 on 2 July 2012 (message 48) whereas message 47 comes in at 14:25:34 on 2 July 2012. Maybe that is an error, or maybe not, but it could be that message 48 is in response to message 47.
The accused was asked about message 48 in this way:
QThis message says ‘If u know ppl tht want EM, just let me know man an I can met em or something, I doubt anyone will by em by tonight’ then that same face symbol again. What did you mean by that message.
AOff the top of my head that would have been just him offering me some that I couldn’t pay for and I said ‘If there’s anyone else that wants them just get them to them and I’ll work out my own way of getting my own stuff’.
QCan you explain that again.
AIt would have been him asking, say like if I was ready to get some more, something like that, I said ‘No, maybe later tonight’ and I said ‘If you know anyone else that wants them get rid of them and I’ll just get mine my own way’.
HIS HONOUR
QWhen you gave that answer, when you said ‘Just off the top of my head’, in answering Ms Burgess’s questions on these messages are you now reconstructing what you think they mean, or do you have no memory of what they mean and you’re reconstructing.
AI’ve sort of, yeah, have no memory of what’s going on because there’s only a couple of outgoing and the rest is all incoming so without matching it up I couldn’t tell you off by heart what happened or what they were directed at in the context of what’s going on because there’s only three outgoing.
QIf you had the outgoings, all the outgoings, would you then be able to tell us from memory what they were.
AI’d have more of an idea, yes. Like I said all of them incoming and there’s only three outgoing that I’ve seen.
QYou’ve made that point a number of times but does that mean that because this is two years ago you cannot now remember these messages or what they related to.
AI know they’re not related to me selling any drugs, that’s for sure, but I know, for me to explain myself more I’d need more shown to me, yeah, it was two years ago.
XN
QAre you being cautious about answering the questions because of a problem with memory or is it because you don’t have everything to be sure – that’s I think what the judge is getting at, whether you can actually remember sending each and every one of those outgoing messages.
AI can’t remember what I sent, no, and what I’ve read. This is all new looking at it now, none of this sticks in the back of my head, so.
QCan you give us an explanation as to why that would be. You told us because of the time frame.
ABecause it’s been two years, there’s nothing dramatic in my life that’s happened, it’s only a bunch of messages that you read once and that’s it.
QWould there be any other reason why that might be the case, like at this time, that all this is going on.
ABesides me being like not mentally there due to constant consumption of drugs and alcohol then that’s probably the reason why I wouldn’t have clicked more.
QThat’s another factor that you’re I guess offering as an explanation.
AYeah.
The accused said that message 49 meant to him that ‘if I had any leftovers that he had given me prior for myself that he’d give them what I had left’. He said that Hayche was nagging him every second to get money from him so that he could pay his suppliers.
The accused was asked about message 50, which came in to him from Hayche about 20 seconds after message 49, in this way:
QMessage 50 incoming from Hayche ‘What are they I probably can’; can you put that in context at all.
ANo, I (he) would have been asking what I had left over.
QMessage 51, this is the third outgoing call, this is from you to Hayche, is that right.
AYes.
QMessage reads ‘Green spec ralphs and orange spec ralphs half and half’, what does that mean.
AProbably would be just telling him what I had as to like what I had left that was mine.
QAnd the ralphs, what does that mean.
AThat’s the name of the ecstasy.
QDoes that accord with what the detective’s evidence was earlier this morning about Ralph Lauren.
AYes.
QAnd green and orange, what do you take those to be, obviously they’re colours, but what in this context.
AI’m not too sure on the context.
QIs that the colour –
AYeah, the colour, yeah.
HIS HONOUR
QColour of the.
AThe ecstasy tablets.
XN
QDid you in fact have green ralphs or green ecstasy tablets at that time, green spec ones.
AGreen ones I had, yes.
QDid you have orange spec ralphs.
AI think they were pink or something, I’m not too sure.
HIS HONOUR
QBut you’ve written ‘orange’.
AYes, they would have been orange then.
Immediately after this answer regarding the fact that he had green spec ralphs and orange spec ralphs, Ms Burgess put before the accused Exhibits P1 and P1A. The accused confirmed that the tablets shown in those exhibits were the green specs that he had been talking about and that the other colour tablets seen in the exhibits could be the orange spec ralphs that he had been talking about.
The accused confirmed, when asked by Ms Burgess, that Exhibits P1 and P1A depicted the drugs that the police found in his wardrobe in his room at his house. He said that the drugs in the plastic bag on the envelope in Exhibit P1 were how he purchased them from Big Bad Wolf. He said that he would have done that about a week before his arrest on 2 July 2012. He said he paid for those drugs half in cash and the ‘rest was on like credit’. He said that the orange tablets had been left over from before. He did not further explain that before Ms Burgess moved on to ask him about the ‘Seal the Deal 101’ letter (Exhibit P2).
Regarding that document the accused said that he did not think that he ‘ever read it really’. He said that he had not had a chance to read it recently. He then said that he had read it briefly ‘but not like sat down and read it word-for-word, just sort of skimmed over it and it’s been locked away sort of since I received it’.
The accused said that he received that document from Hayche about a week and a half or a couple of weeks before he got caught. He was pretty sure he was given it at Hayche’s house. He said he was there trying to sort out how to pay Hayche what he owed him. He was asked:
QDid he explain to you anything about the process of selling amphetamines.
AIt’s pretty self-explanatory, didn’t need a note. If I wanted to go out and sell something it’s not hard to go out and sell ecstasy to people at a nightclub, it’s just something he’d written up.
QSo this is something he offered you, is it.
ASomething that he just gave to me and said ‘Look, if this is what you want to do, like, if you want to do it to pay be back quicker, then here is how you do it’.
QSo he handed it to you, is that right.
AYes.
QDo you know if he wrote it out.
AI’m not sure if he wrote it out but I didn’t write it, no.
QWhat did you say to him when you received it.
ASort of laughed and I said ‘Don’t really need a letter telling me how to do something’ but I just said ‘Look, I can pay you back but I’m not paying you back through going through debt to pay you back’, if you get what I mean like. I would have been in debt to someone else, I’m more into debt with him, would have made things a lot worse, in my state, I don’t think I would have been able to do anything like that, so.
QSo did you ever want to follow this set of instructions –
ANo.
Q– to yourself. Did you ever plan to do that.
AI didn’t plan to, no.
QDid you ever make a start.
ANo, I didn’t, never made a start.
HIS HONOUR
QWhy would you have been in debt to someone else.
ABecause I would have got my stuff off someone else.
QWhy wouldn’t you have kept getting it off Hayche.
ABecause he wasn’t in a position to give me any when he was in debt for himself so I probably would have got them off of someone he got them off, which would have made me in debt to someone else.
QBut he gave you the pills a week before, they were received.
AYeah, that was for myself.
QAnd you paid him – how many of them are there.
A34.
Q34, so let’s say 30, $300 in cash and $300 on the tick.
ANo, because I would have got them cheaper than $20 of each one, that’s what the messages were saying, he’s not making any money off me.
QSo Hayche is prepared to advance you credit even though you owed him money that he feared for his life if he didn’t pay it back to someone else.
AWell, that was – yes, I’d kept giving him money and I kept making a promise that I would pay him and it’s never turned out for me to do so.
XN
QHow much did you owe Hayche at the time he gave you this letter or this instruction sheet, approximately.
AAbout $600, top of my head, yes.
When the accused was asked why he took the document ‘Seal the Deal 101’ away with him he said that he ‘obviously wasn’t thinking because, yes, just put it down to it, I wasn’t thinking at the time’. He agreed that when he got home he just put it in a wardrobe and he did not take it out or look at it again.
The accused was cross-examined by Mr Wilson, of counsel for the DPP, about his earnings and his expenditures, including the cost to him of buying ecstasy tablets, in mid-2012. He said that he was working 40 hours a day from Monday to Friday. Although his hours may vary they were mostly 7.00 o’clock in the morning to 4.00 or 3.00 o’clock in the afternoon. He was paid $170 a day. He was living with his parents. He spent about $100 a week for his food and other expenses. He spent about $20 or $30 a week on public transport. He said he spent ‘probably a little bit less’ than $200 a week on alcohol.
The accused confirmed that he was taking drugs every Wednesday, Thursday, Friday, Saturday and Sunday nights. He was taking up to 10 to 15 ecstasy tablets a night.
When the accused was asked how it was that he would take ecstasy tablets through the night sometimes up to 8.00 o’clock in the morning when he needed to be at work at 7.00 o’clock in the morning, he answered:
Mainly Fridays through to Sundays, the other two wouldn’t be until 8, so, but I’d still probably stay up until early hours of the morning, then go home and quickly get changed, have a shower and then go straight to work.
The accused said that he would buy anywhere between 20 and 50 ecstasy tablets from his dealer for a week. He said he thought that if he was paying $17 a tablet ‘that would have been $850 for half or total’. He said that he would have paid about $400 or $450 in cash each week. That was when he was earning $170 per day and had no other source of income. He denied, when Mr Wilson put it to him, that he could not afford to pay that amount each week with his income and other expenses. He disagreed with Mr Wilson when it was suggested to him that he started selling ecstasy to fund his habit.
The accused said that he was not going to say the name of Hayche and Big Bad Wolf whom he said were one and the same person. Mr Wilson then asked:
QHow do we know that Hayche and the Big Bad Wolf are the same person. You won’t provide us with a name or any other details about them. What are their names.
ABecause if it comes back on me and it’s all my fault, I’ve got to like hide myself because I’ve dobbed in someone else. Like I’ve got little brothers and sisters and that that live here. I’m not going to put them at risk from people going to go to their house just because you want to know a name, because you guys have got all incoming texts, the same, half of these don’t match them up, and accuse me of selling. So I’m not giving out a full name.
When Mr Wilson cross-examined the accused about the fact that a considerable number of SMS text messages were incoming messages whilst only relatively few were outgoing messages the accused said he could not explain that. He then immediately added: ‘The only thing that I can remember of that phone was it only saved a certain amount of sent messages. It didn’t save – I don’t think any more than 15 or 10 or so messages that was sent out. It wasn’t me, it was the phone itself’. The accused disagreed when Mr Wilson suggested to him that there were relatively few outgoing messages because he deleted outgoing messages because he was operating an ecstasy selling business. The accused disagreed that the only outgoing messages on Exhibit P23 occurred just before he was arrested because he had not had an opportunity to delete them.
Mr Wilson cross-examined the accused about a number of the messages on Exhibit P3. When he asked what the accused understood message 5 to mean the accused replied: ‘It could mean anything, I don’t know’. He agreed that his evidence was that he simply did not know what message 5 could mean.
The accused disagreed when Mr Wilson suggested to him that in message 6 Dale is referring to collecting some ecstasy tablets from him, or to buying some ecstasy tablets from him. He said he had no idea why Dale might have used a ‘winky face’ in message 9 he sent to him. He disagreed when Mr Wilson suggested to him that Dale was making inquiries to buy ecstasy tablets from him because his own dealer was out of town. The accused said that he was ‘not too sure what that would have been’ when Sally messaged to him: ‘Help me please’. He said he was ‘sort of’ alarmed when he got that but said ‘It wasn’t something bad. It was sort of she needed someone to talk to’. He said he was ‘pretty sure’ that Sally was the one that had cancer so she wanted someone to talk to. He said that he had met Sally out on the town a ‘fair few times’ and that ‘she was friends with friends’. He disagreed when Mr Wilson suggested that Sally was inquiring of him to sell her some ecstasy tablets.
Mr Wilson asked the accused about message 15 in this way:
QMoving to message No. 15, again from the Big Bad Wolf. ‘I’m waiting on a bloke but I need them by five at the latest’. What do you understand to be referring to by the word ‘them’.
ANot too sure off the top of my head.
QIt’s not money, is it.
ADon’t know.
QDo you accept it wouldn’t make sense if it was money.
AHalf these messages don’t make sense.
QDo you accept this message wouldn’t make sense if he was referring to money.
APardon.
Q‘I need them by five at the latest’.
ACould be talking about what I had left over that he wanted back, could be money, could be anything.
QBut you’ve given evidence that he never actually came around and took any tablets back off you, is that right.
ANever did, no.
QI suggest that what he’s talking about, the Big Bad Wolf in this Message 15 is that he needs some ecstasy tablets from you by five at the latest, do you agree or disagree.
ADisagree.
In relation to message 17 Mr Wilson suggested to the accused that as part of his ecstasy business he would obtain drugs from Big Bad Wolf to on-sell and that Big Bad Wolf was inquiring in this message as to how many tablets he still had left to sell. The accused disagreed with that suggestion.
The accused also disagreed with Mr Wilson’s suggestion that he would frequently send out messages to people ‘effectively spruiking for business to see if they were in the market for some ecstasy tablets’. Mr Wilson then asked this:
QAnd I suggest that’s what Katie was responding to in message No. 13 when she said ‘I’m doing drug-free for two weeks’ and the same again when Hannah sent you a message saying ‘I don’t think anyone will need anything’. I suggest they were all responses to you making inquiries of people as to whether they wanted to buy any ecstasy tablets off you.
ADisagree. Katie was a girlfriend at the time and she’d regularly get on it with me, so I asked what she was doing this weekend, if she wanted to go out, do the same that we usually do. She didn’t want to that time. So we were all talking about sort of slowing down anyway, and she decided to do it first.
When Mr Wilson cross-examined the accused on message 24 the accused said that that referred to Big Bad Wolf wanting cash that the accused owed him, the ‘flips’ were the ecstasy that had been supplied to him, and Big Bad Wolf was asking if he had any left over that he could not afford to pay for and which he could give back to him. Mr Wilson then asked:
QAgain you say he never came and got them off you.
ANo, he never did, because there was a few messages that I’ve ignored and there’s a few that I didn’t reply back because I didn’t want to contact him or anything like that.
QBut we’ll never know, will we, whether you replied to that message or a number of these messages, will we, because you say your phone could only store 15 outgoing messages at a time, is that right.
AYes, if I wanted to delete all these other messages I would delete all these incoming ones as well, these ones, a few of them seem to be worse, why wouldn’t I have deleted them? I had no assumption like the police coming to the house or anything like that so.
HIS HONOUR
QYou said ‘some of these incoming ones seem to be worse’.
AAs in like look wise, they look to be bad, why wouldn’t I have deleted any of them as to saying he’s saying I’ve deleted a hundred or so messages.
When Mr Wilson asked the accused about message 25 from Jack he said he could not recall who Jack was. When asked why he had stored Jack as a contact in his phone he answered:
AIt probably would mean me being intoxicated, being friendly as I would have been, I would have had a lot of numbers that I got just in general from talking to people outside, smoking and becoming friends with.
QWhat do you think he meant when he said ‘Yo Nath can I get 10 off you today. Had a bender last night, need replenishments of a new variety. Any chance. I’m all good to go, cash sorted’. What do you take Jack to be referring to in that message.
ALike I said before a lot of people messaged me because they knew I knew people who could get stuff and I had my own supplier and so assuming they’d messaged me asking if they could have some of theirs because they couldn’t get their own.
QHow was it other people you met came to know you were someone who could organise ecstasy tablets for them.
ABecause it was a small group of people that we hang around with so it wasn’t exactly quiet, the people I knew and things like that.
QSuch a small group you can’t now remember much about Jack at all other than that you might have met him there, is that right.
AYes, it would have been through Hayche.
The accused said that it was possible that he could have told people when he was drunk when he was out that he could obtain ecstasy tablets for them if they needed them. He said he could not remember if he had, and added: ‘Being intoxicated I wouldn’t remember anything of what I said and didn’t say during the night but there was no way I would have said that ‘I can sell you pills’. If I said anything it would have been ‘I know someone who can get something’ but it wouldn’t have been the line of ‘I’ll sell to you’’. Mr Wilson then asked:
QSo can you just explain what would be the purpose of Jack messaging you to ask for replenishments of a new variety if he didn’t think you were in a position to organise for them to buy some ecstasy tablets.
ALike I said I don’t recall, can’t remember. Could have been something I said on the weekend, could have been that – I don’t know.
QI suggest that when Jack’s messaging you in message No. 25 there he’s indicating to you that he needs some ecstasy tablets of a new variety and that he’s in a position to pay cash; do you agree or disagree with that.
ADisagree.

The accused was asked about message 29 in this way:
QLooking at message No. 29, it is an unknown number ‘Hey it is mon, can you please get those five to me tonight’, who is ‘mon’.
AI honestly don’t know who mon is. Could have been a typing error, it could have been anything, I don’t know. It is an unknown number.
QWhat did you understand mon to be asking for when she said ‘Can I please get those five to me tonight’.
AI don’t know.
QI suggest she was asking you for five ecstasy tablets that she wanted by that night, do you agree or disagree.
ADisagree.
During cross-examination the accused said that the last time he got drugs from Big Bad Wolf would have been a Wednesday or a Thursday, ‘so the week before or so’. He purchased 40 tablets off Big Bad Wolf on that occasion. He said they were the drugs that police found in his wardrobe. He said that at that time he had 4 left over from a previous purchase and he had used 10 over the time since he had received them before his arrest. He said he ‘didn’t have a big weekend that weekend’ due to the fact that he owed money. He said that explained why there were 34 tablets in his room which police found at about 4.25pm on Monday 2 July 2012.
The accused was cross-examined about message 46. He accepted that the reference to ‘1 or 2 hundred rounds’ was to ecstasy tablets, and that 200 ecstasy tablets would probably be worth over $2,000. When Mr Wilson asked him whether he thought it was unusual that Hayche offered to give him well over $1,500 worth of ecstasy tablets as long as he could get $600 cash back from the accused that he was owed, the accused replied:
AWell, he knew what the situation was I was in, that I wasn’t thinking for myself. So, I could turn around and say the same thing to you, I will offer you something he is not even going to pay me with because he knows that I love ecstasy at the time. I was always on it. Constantly on it. So, what he was trying to do was manipulate me to hold it and do something and in return he probably wasn’t going to give me those in the first place.
QWhen you say he was trying to manipulate you into trying to do something, are you talking about manipulating you into paying him back the $600 you owed him.
AYes, the only way is to pay it because he was getting hounded on by his person, so he came down to me because I owed him some money. It wasn’t the full amount that he owed the person but it was some amount that I had to pay him so he could pay his debts.
QDo you accept it just doesn’t make sense that Hayche would give you $1,500 or more of pills in order to get $600 payment off of you.
AThat is what I said, it doesn’t make sense. It looks like someone that’s a drug addict, you are going to go to him and I’m going to give you this and this and this drug-wise to help me out and then you don’t do it afterwards.
When cross-examining about message 47 Mr Wilson suggested to the accused that that message from Hayche was asking him whether he, the accused, had ‘moved that 80’ ecstasy tablets. The accused said he disagreed with that suggestion. Mr Wilson then asked:
QBut do you agree that the term ‘moved’ relates to selling drugs, have you heard that term used.
AI’ve heard that term used. It’s like I said he was trying to get me to do stuff for him because he knew I was in debt to him and he just wanted his money so it was the fact that he was trying to get his money any way possible, trying to talk me into doing something that I didn’t want to do and he was going to get it the way he wanted to by means of saying he’ll give me 100 grams if I’d help him out or something like that. The fact is I’ve got two little brothers that I don’t want people rocking up to the house and their bedroom is the front bedroom when you rock up to the street, I don’t want people throwing rocks through the windows when my two little brothers, 11 and 10, are sleeping right next to the windows. If I was in another person’s house maybe I would have but I don’t – if I’d had my stepmum and that here she’ll tell you the same thing, how much I’ve loved my brothers and that’s probably one rule that stopped me getting into that was the fact that I was living there. If I wasn’t living there then maybe I would have got talked into something that I didn’t really want to do, but that’s not the case, I didn’t do anything like that.
QMessage No. 48 this is on 2 July, the day of your arrest.
HIS HONOUR Just before you go on.
QDid it occur to you that you may have been in that position already for your little brothers, you were in this house where your mate Hayche was fearing for his life, he was talking about taking you, you and himself interstate presumably to escape from someone.
AYeah, it did.
QAnd you’re already getting, on your evidence, multiple requests from people that you hardly knew to supply as a dealer drugs to them.
AYeah.
QSo it was out there that you were a dealer, or thought to be one or could be one.
AYeah.
QSo didn’t you think your little brothers were in a bit of strife.
AThat’s the reason, as you go back into the other messages, the fact that I said I was going into hospital, I wanted to sort myself out, ‘I can pay you what I pay you next week, I’m sort of done’, but it never got to that stage because I got caught couple of hours later.
Message 46 came into the accused’s phone at about 2.25pm on Monday 2 July 2012. This was two hours before police found 34 ecstasy tablets in the accused’s bedroom.
When cross-examined about message 48 the accused said he was ‘not too sure off the top of my head’ what he meant when he sent that message to Hayche which read ‘If u know ppl that want em just let me know man an i can meet em or something i doubt anyone will by em by tonight:/’. He disagreed when Mr Wilson suggested that the accused was asking Hayche to let him know if he, Hayche, knew people that wanted to buy 80 pills that he, the accused, had, but that he, the accused, was not confident that someone would buy them that night. He also disagreed with Mr Wilson’s suggestion that in message 49 Hayche was responding to the earlier inquiry by the accused and was asking whether the accused wanted to give them to Hayche to see what he could do to sell them. Mr Wilson then asked the accused about messages 50 and 51 which, it was suggested, followed the two earlier messages. Mr Wilson referred to message 50 in which Hayche asked: ‘What are they I probably can?’. Mr Wilson suggested to the accused that in message 51 he, the accused, was informing Hayche that he had green speckled ralph ecstasy tablets and orange speckled ralph ecstasy tablets and that he wanted to be paid half in cash and would offer half on credit. The accused disagreed with that suggestion and said that what he was saying was something completely different. He said that what he was saying was that the ecstasy tablets he had were equal numbers of green and orange tablets. He said half were green and half were orange. Mr Wilson then asked:
QAnd do you accept that the pills that police found in your room – well, it’s an agreed fact that the pills –
AThey were all green.
QSorry.
AThey were all green.
QNo.
ABesides four.
Q30 of the tablets were green, four of them were a pink/yellow speckled colour. Where were the orange tablets that you talk about in that message.
AThe orange ones were obviously the ones I had in there that are pink, orange, whatever colour you just want to call them.
QCan you just help me understand this: you’re saying that you accept that that message relates to ecstasy tablets, is that right.
APardon?
QDo you accept that message 51, your outgoing message, ‘green spec Ralphs and orange spec Ralphs’ relates to ecstasy tabs.
AYes, as I told Sally before.
QAnd you’re saying that the words ‘half and half’ in that message mean that half the tablets are green and half are orange.
AYes.
QAnd this message was sent a couple of hours before you were arrested.
AYes.
QAnd a couple of hours before police found 30 green tablets and four pink/yellow tablets in your wardrobe, is that right.
AYes.
QSo can you explain to me how it is that you came to tell Hayche you had half orange, half green tablets when in reality you had 30 green tablets and four pink or yellow tablets.
AI don’t know. I don’t know what I was thinking two years ago when I sent that message.
The accused then said that he did not know to which tablets he was referring in his message 51 to Hayche. He said that he was not referring to tablets other than the ones that were found by police in his wardrobe because he said they were the only ones he had. He then said that he was ‘not too sure’ whether message 51 related to the ecstasy tablets in his wardrobe. When Mr Wilson then put to him that the message did relate to the ones in his wardrobe the accused disagreed with that suggestion.
Finally, in cross-examination, Mr Wilson asked the accused about ‘Seal the Deal 101’. The accused said that he could not remember ‘off the top of my head what (Hayche) said’ when he gave that document to him. When pressed the accused said:
AIt was along the lines of trying to get me to get his money back and to help him pay off what he could pay as a friend, ‘If you ever want to get into this, here is a piece of paper’, which I laughed and I said ‘I don’t need a piece of paper telling me to do something’.
QAnd you said that to him, did you.
AYes.
The accused said that the instruction sheet was already written out when he was given it by Hayche. He said that he laughed because he thought it was a joke. He said that he put it in the black tin in his wardrobe and when asked why he answered, ‘I just put it in there’. He said that he had told Hayche that he was not selling any drugs for him. He said he took it from Hayche because he was a mate and he ‘wasn’t going to try and like annoy him too much, so I tried to keep the peace’. He put it in his box and ‘never really looked at it since’. He said that he thought about throwing it out once he had left Hayche’s house and when asked why he did not throw it out he answered: ‘Just never threw it out, I put it in my tin, that was it, sort of forgot about it until it got brought up’.
The accused agreed that it was an instruction sheet on how to sell ecstasy tablets but he never intended to sell any. He said that people had made enquiries about purchasing tablets off him but he never said yes to them.
The accused disagreed when Mr Wilson suggested to him that he possessed the ecstasy tablets police found in his wardrobe intending to sell all or at least some of them to other people.
After the accused had completed his evidence, the next day Ms Burgess raised with me the issue as to whether the accused would ‘release the name of Hayche and Big Bad Wolf’. I was informed by Ms Burgess that immediately after court the previous day the accused raised with her that issue and he advised her that ‘he was quite happy to tell the court who that person is’. I was told that ‘he was reluctant to do so at the time he was being asked because there were some people in court’ and he ‘didn’t know who they were’. Ms Burgess informed me that she had indicated to the accused that it would be very unlikely that I would close the court for him to name that person and that if he went back into the witness box and named that person it would be in an open court. I was told that the accused was aware of that.
The accused went back into the witness box and gave a name of the person he said was Big Bad Wolf and Hayche.
Findings and Conclusions
In this case the accused is charged with trafficking in a controlled drug, namely MDMA or ecstasy.
It is not in issue that on 2 July 2012 at the house where he lived at Ridgehaven the accused knowingly had possession of a ‘trafficable quantity’ of ecstasy. He admitted that the 34 tablets police found in his wardrobe were his, that he knew they were there, that they were ecstasy tablets and that he knew that they were.
The 34 tablets of ecstasy the accused possessed weighed a total of 10.39gms and contained a total of 1.65gms of MDMA. The total weight is significantly greater than 2gms, the quantity over which the statutory presumption applies.
In these circumstances the law presumes, in the absence of proof to the contrary, that the accused possessed those ecstasy tablets intending to sell all or some of them. If there is no proof to the contrary of that legal presumption I would find the accused guilty as charged.
In this case the issue is whether or not I am satisfied, on the balance of probabilities, that there is proof to the contrary of the legal presumption. In other words, has the accused satisfied me that he probably did not possess the tablets in his wardrobe intending to sell all, some or any of them.
Whilst it is not just his evidence to which I may have regard in determining this issue, his evidence is very important because what I am concerned with here is what his intention was in knowingly possessing the controlled and prohibited drug ecstasy.
I have set out some of the accused’s evidence is detail. That is his evidence in examination-in-chief and in cross-examination.
I have done so partly because my consideration of his evidence is that the accused’s explanation of the SMS messages during his examination-in-chief and then in his cross-examination evolved and changed, sometimes subtly and sometimes not, from him saying that many of the messages indicated that his dealer was trying to get him to pay his outstanding debt to him or saying that he had difficulty in understanding and interpreting some of the messages which were sent some years ago particularly in the absence of messages he sent, to accepting eventually that a number of the messages to him were from people asking him for or to sell them ecstasy and that a number of them could be interpreted as messages to him as if he was a dealer in ecstasy.
The position that the accused seemed to me to take as cross-examination evolved differed from the position he seemed to me to take during examination-in-chief. In my view it differed in a quite significant way and his acceptance that some of the messages to him appeared to be couched in a way as if he was a dealer in ecstasy led him to giving an explanation that others knew he had access to ecstasy and needed money, and that Hayche had raised with him many times whether he would sell ecstasy to others. In cross-examination he ultimately accepted that he could have told people when he was drunk when he was out that he could obtain ecstasy tablets for them if they needed them. He then said that he could not remember if he had done that, but added that there was ‘no way’ he would have said that he could sell pills to them. This means that his evidence was that he could have said that he could ‘obtain’ ecstasy tablets for people if they needed them although he could not remember if he had said that, but he could remember that he would not have said that he could ‘sell’ ecstasy tablets to them.
I refer here to what King CJ said in R v Firman (1989) 52 SASR 391, at 394 as I consider it important guidance on the law and the facts regarding the SMS messages in Exhibit P4.
The content of the telephone calls was relevant as tending to prove the existence of such a business and the appellant’s involvement in it, because it consisted of inquiries for drugs apparently made by potential customers. A necessary incident of a business of selling a commodity is the receipt of inquiries and offers to buy from customers. The making of such inquiries and offers by a number of people tends to prove the carrying on of a business. If such inquiries or offers are directed to a particular premises, they tend to prove the carrying on of the business at those premises. If they are directed to a particular person, they tend to prove the carrying on of the business by that person. The purpose for which the evidence was tendered and admitted was therefore not to prove the truth of anything stated by the telephone callers but to prove the fact of the making of the inquiries or offers.
I have set out in some detail the transcript of the accused’s evidence regarding a number of the messages on Exhibit P3. I consider that in a number of those passages the accused was either dissembling, was being dishonest or was feigning an inability to interpret the messages by resorting to the time that has elapsed since the messages were sent and, more tellingly in my view, the absence of messages he sent in reply to those that came into his phone. I refer in this regard in particular to messages numbered 6, 9, 13, 15, 25, 26, 28, 29 and 37.
The accused was almost saying at a number of points in his evidence: ‘I do not now remember any of these messages, many are meaningless, and my evidence about them is “off the top of my head” and given without the answering messages’. I do not accept that evidence to be the truth.
I consider that messages 46 to 51 are particularly important and telling for my decision in this case. These messages were within an hour of each other on the afternoon of the police finding the 34 ecstasy tablets in the accused’s wardrobe and his arrest. Message 46 was admitted by the accused to be referring to up to 200 tablets of ecstasy. Six minutes later Hayche suggests that he would help the accused out but he could not, and then Hayche asks if the accused had ‘moved that 80 yet’. I am satisfied and find that Hayche was asking the accused about whether he, the accused, had sold 80 ecstasy tablets. I am satisfied and find that within seven minutes after that message the accused messaged Hayche asking him if he knew anyone who wanted them and, if he did, he could meet them, although he doubted whether anyone would buy them that night. I am satisfied and find that Hayche then messaged the accused telling him that he would see what he could do if he could obtain them from the accused. Hayche then asked what the accused had, and he said that he probably could sell them. The accused responded by saying that he had green speckled ralph ecstasy tablets and orange speckled ralph ecstasy tablets.
The accused’s evidence-in-chief was that this last message of his to Hayche referred to the ecstasy tablets police found in his wardrobe less than two hours later that same day. The ecstasy tablets police found were green and pink/yellow, but not in equal proportions. There were 30 green tablets and 4 pink/yellow ones. In cross-examination the accused said that the ‘half and half’ he messaged to Hayche referred to equal quantities of green ralphs and orange ralphs that he had. He ultimately said, or had to say, that what he was referring to in that message was not the ecstasy tablets police found. He had to do this because he denied he was referring in his message to them being available for sale half for cash and half on credit. The evidentiary path from asserting in examination-in-chief that message 51 related to the ecstasy tablets in his wardrobe to the opposite assertion in cross-examination was a tortuous, confusing and unbelievable one.
If it was true that message 51 was not referring to the tablets in his wardrobe then the accused must have been referring to ecstasy tablets in his possession other than the ones the police found. Furthermore, he must have been, on my findings, referring to 80 ecstasy tablets that he was going to make available to Hayche for sale that were referred to in message 47. That may well have been the case, although it seems that the expert evidence and the accused’s earlier evidence about how he purchased drugs from Hayche suggests that the ‘half and half’ in message 51 more likely referred to the terms of sale rather than equal quantities. This is also more likely as there is no evidence before me as to whether green speckled ralphs are more desirable or better than orange speckled ralphs, or vice versa. If they are not then Hayche would be unlikely to care how many the accused had of each colour.

Whatever the true position as to this is, I am satisfied and find that messages 46 to 51 were messages between the accused’s supplier of ecstasy tablets and the accused in circumstances where the accused was also a dealer and seller of ecstasy tablets, albeit probably at a lower level than Hayche.
I accept Detective Parker’s evidence that he had never seen 34 ecstasy tablets which were not, at least partly, destined for sale and that it was very unusual for him to find that many for personal use only. Although I acknowledge that Detective Parker could not rule out that the tablets found by police in the accused’s wardrobe were solely for his personal use, his evidence as to his experience, coupled with the text messages on Exhibit P3 is so compelling as to lead me to the only conclusion to which I can come. That is that the accused had the ecstasy tablets police found in his wardrobe for the purpose of selling all or some of them. I come to that conclusion and make that finding beyond reasonable doubt.
I would make this finding even without the ‘Seal the Deal 101’ document. I find that that document was a business plan for the accused’s business of dealing in ecstasy. I am unconvinced by and I reject his evidence as to how he considered it when he received it and how he reacted when he was given it. I do not, however, reason that because he said he did not need instructions on how to sell ecstasy (if that is what he was saying) that was because he was a dealer in ecstasy. I am convinced that document is consistent with and lends some weight to prove to my satisfaction beyond reasonable doubt that the accused was in the business of selling ecstasy.
As my ultimate conclusion is as I have set out, it goes without saying that I am not satisfied that the accused has proved to the contrary of the statutory presumption that he had the ecstasy tablets police found in his wardrobe for the purpose of intending to sell all or some of them.
I find the accused guilty as charged.