The Queen v Wayne Visser
[2016] ACTSC 40
•18 March 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Queen v Wayne Visser |
Citation: | [2016] ACTSC 40 |
Hearing Date(s): | 9, 10, 11, 15 and 16 March 2016 |
DecisionDate: | 18 March 2016 |
Before: | Murrell CJ |
Decision: | Guilty of Count 1, trafficking in a controlled drug other than cannabis, and Count 2, trafficking in a trafficable quantity of cannabis. Not guilty of Count 3, trafficking in a controlled drug other than cannabis. |
Catchwords: | CRIMINAL LAW – Judge alone trial – particular offences – trafficking in a controlled drug other than cannabis – trafficking in a trafficable quantity of cannabis |
Legislation Cited: | Criminal Code 2002 (ACT) ss 59, 600, 601(1), 601(2), 602, 602(2), 603, 603(5), 603(7), 604, 632 Criminal Code Regulation 2005 (ACT) regs 5(1), 5(2), 8, 9 Supreme Court Act1933 (ACT) s 68B |
Parties: | The Queen (Crown) Wayne Visser (Accused) |
Representation: | Counsel Ms E Beljic (Crown) Mr S Gill (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Lynch Lawyers (Accused) | |
File Number(s): | SCC 125 of 2015 |
MURRELL CJ:
The trial
In accordance with s 68B of the Supreme Court Act1933 (ACT), on 18 August 2015, the accused elected to be tried by a judge alone in relation to three drug trafficking charges. His legal practitioner certified that he had received advice and made the election freely.
On 9 March 2016, the accused was arraigned on an indictment dated 6 August 2015. He pleaded not guilty to three offences, each of which allegedly occurred in Canberra on 29 August 2014:
(a)Trafficking in a controlled drug other than cannabis, namely methylamphetamine (total quantity 10.461 g), contrary to s 603(7) of the Criminal Code 2002 (ACT) (Criminal Code).
(b)Trafficking in a trafficable quantity of cannabis (total quantity 898 g), contrary to s 603(5) of the Criminal Code.
(c)Trafficking in a controlled drug other than cannabis, namely oxycodone (total quantity 8.433 g, pure quantity .81 g), contrary to s 603(7) of the Criminal Code.
Separate charges
The three charges were heard together as a matter of convenience. However, I have considered each charge separately and I will return a separate verdict on each charge.
Onus and standard of proof
The prosecution has the task of proving the guilt of the accused beyond reasonable doubt. The accused is presumed to be not guilty of each charge. If I have a reasonable doubt about his guilt on any charge I must return a verdict of not guilty on that charge.
In order to prove a charge beyond reasonable doubt, the prosecution must prove each legal element of the charge beyond reasonable doubt.
In making findings of fact I must rely upon the evidence, i.e. the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.
As a matter of practical reality, in relation to each charge, I must be satisfied beyond reasonable doubt that the accused intentionally possessed the relevant substance.
Uncontested evidence in the prosecution case
From 7.28 am on 29 August 2014, police conducted surveillance near a white Citroen van which was registered to the accused. The vehicle was parked near premises occupied by the accused at Phillip. No one approached the vehicle until 9.28 am, when the accused walked past the vehicle carrying a black satchel. He then stood behind the vehicle and spoke on a mobile telephone.
Soon thereafter, other police arrived and executed search warrants on the accused, his vehicle, and his premises.
On searching the accused, police located $12,200. The sum of $2,200 was in his pockets, divided into two bundles (39 x $50 notes and the remainder in $20 and $5 notes). The sum of $10,000 was in the satchel, separated into bundles (total of 200 x $50 notes).
On the accused’s person, police also located three mobile telephones: a black Nokia telephone, a white Apple IPhone and a Samsung telephone. The Apple IPhone could not be accessed. The Samsung telephone contained nothing relevant. On the SIM card of the Nokia phone, there was a message sent by “Lupz” at 9:05 am stating “huk me up sum $ dis mmng il huk u up tp dis arvo plz”. Ultimately, I decided that nothing could be made of this message; it was speculative to think that the message was related to drug trafficking.
Police searched the Citroen van. This vehicle was used by the accused for his carpet cleaning business. In the vehicle, police located 10.291 g of methylamphetamine (78.1% pure) in the driver’s side door compartment (Count 1). The methylamphetamine was contained three clip seal bags, which were in a larger plastic bag that was, itself, contained within a brown paper bag.
Later, a left thumbprint and a right index fingerprint of the accused were developed from the outside of the brown paper bag. A DNA sample was obtained from the brown paper bag and the accused was excluded as a contributor.
On the larger plastic bag, two fingerprints were located, but they did not match the fingerprints of the accused. DNA was obtained from this bag, and the accused was excluded as a contributor.
No useful DNA sample was obtained from a swab of the three snaplock bags.
Under the front passenger seat, police located 898 g (907 g is 2 pounds) of cannabis in two similar plastic bags which were contained within one larger vacuum sealed bag (Count 2). The original position of the larger bag can be seen in Exhibit 2, image 32. One of the two interior bags had two fingerprints and one partial fingerprint on it, none of which matched the accused’s fingerprints.
In relation to one of the two interior bags, DNA was obtained and the accused was excluded as a contributor. In relation to the large vacuum sealed bag, a DNA sample was obtained and the accused was excluded as a contributor.
In the dashboard compartment of the van near the steering wheel, police located four blister packets of oxycodone (total weight 8.433 g – Count 3). There were two packets containing 10 mg tablets of oxycodone (weight 4.238 g) and two packets containing 20 mg tablets of oxycodone (weight 4.201 g). From one of the 10 mg packets, a tablet had been removed, leaving a remaining total of 27 10 mg tablets. Similarly, from one of the 20 mg packets, a tablet had been removed, leaving a remaining total of 27 x 20 mg tablets. A forensic chemist analysed half a tablet and inferred that, as all tablets were a pharmaceutical product, the remaining tablets were consistent as to their contents and contained the stated quantity of oxycodone. The total quantity of pure oxycodone in the 54 tablets was .81 g.
In the dashboard compartment, there was also a plastic bag containing 75 blue heart shaped steroid tablets (9.963 g methandienone).
There was also a small clip sealed bag containing 0.175 g of methylamphetamine (part of Count 1). The forensic chemist described this as a clear crystalline substance. He said that it was a small (less than 1/25 of a teaspoon) but usable amount of methylamphetamine.
A DNA sample taken from the outer surface of the oxycodone drug packages was analysed and the accused was excluded as a contributor.
In relation to a DNA sample obtained from the plastic bag in which the blue pills were located, analysis revealed that the accused was 90 times more likely than the average member of the public to have contributed to the major profile in the DNA sample.
The steering wheel/gear stick/internal driver’s door handle areas of the van were swabbed. The DNA that was detected on the swab originated from at least three individuals.
At the Phillip premises of the accused, police located two white Apple mobile telephones, seven unopened SIM cards (not seized), and one opened SIM card.
Police executed a search warrant at 16 Lindsay Street, Griffith. Those premises were occupied by Joseph Murray and his wife, Tamara Murray (a cousin of the accused). Joseph Murray was at the premises.
Bank account records relating to accounts held by the accused disclosed no significant withdrawals in the weeks leading up to 29 August 2014. However, as there was no evidence that these were the only accounts held by the accused, this evidence is of little weight.
The MYOB general ledger for the carpet cleaning business operated by the accused (which was maintained by a firm of accountants and compiled from information provided by the accused and Mrs Murray) showed that, for the period 1 July to 28 August 2014, business expenses exceeded business income (Exhibit 30).
The lay witnesses
Significant aspects of the evidence given by the lay witnesses, Mr and Mrs Murray, were contentious. The accused submitted that Mr and Mrs Murray were unreliable witnesses.
In relation to “evidence given in a criminal proceeding by a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding”, s 165 of the Evidence Act 2011 (ACT) imposes certain requirements where a trial is conducted before a jury; generally, if requested, the judge must warn the jury that the witness’s evidence may be unreliable and inform them of the reasons why that may be so.
This case was not conducted before a jury. However, I approach Mr Murray’s evidence with caution because, in October 2015, he was sentenced by the Magistrates Court for a cannabis offence. Mr Murray understood that he had received a good behaviour order rather than a sentence of imprisonment because he had undertaken to give evidence against the accused, and that he remained at risk of imprisonment if he failed to give evidence against the accused. That circumstance could provide him with a motive to implicate the accused and exonerate himself in relation to the matters before me.
There were other reasons for approaching the evidence of Mr Murray with care.
First, he minimised the connection between himself and his wife on the one hand, and the accused on the other. He indicated that his wife had little, if anything, to do with the carpet cleaning business of the accused. In contrast, Mrs Murray openly stated that she played a significant role in relation to the business, and her evidence was consistent with the evidence of Mr Muir, the accountant who acted for the business in mid 2014. Mr Murray indicated that it was only “every now and then” that the accused parked his Citroen van overnight at the Murray residence. Mrs Murray said that it was often parked there.
Second, there was evidence from a police officer that, on 29 August 2014, Mr Murray had told her that he used methylamphetamine but, in evidence, Mr Murray denied that he had used methylamphetamine and he professed a lack of recall about what he had said to the police officer.
I consider it likely that Mr Murray did tell the police officer that he used methylamphetamine and that he did recall making that statement to the police officer. Otherwise, I think it unlikely that Mr Murray deliberately lied, but I am satisfied that, at least, he tended to recall events in a manner that was favourable to himself. A witness who has been criminally involved and who is ashamed of their involvement may subconsciously exhibit such a tendency.
For these reasons, I have limited confidence in the evidence of Mr Murray, except where it is corroborated by the evidence of other witnesses in whom I do have confidence.
I found Mrs Murray to be an impressive witness. She gave her evidence in a forthright manner and she appeared to have a good recall of events. For example, she appeared to have an accurate recall of dates and the sequence of events, and she readily made concessions that could be seen to be contrary to the interests of her husband. Her account differed from that of her husband in what may be seen to be significant respects. Mrs Murray is the cousin of the accused and she must have been on good terms with him when he had the carpet cleaning business because she assisted him for little financial return. While she would have a stronger allegiance to her husband, she was also close to the accused. It was not suggested that she had discussed her evidence with her husband.
The defence suggested that Mrs Murray had only recently asserted that she was aware of conversations in which the accused offered Mr Murray money in return for Mr Murray “taking the rap” for the cannabis found in the van, and that Mrs Murray kept “improving” her evidence, belatedly asserting that such conversation had occurred more than once.
I do not accept these submissions. I accept Mrs Murray’s explanation that she did not appreciate the significance of the substance of the “take the rap” conversation or the number of times that the conversation occurred. The manner in which the series of conversations was gradually revealed through Mr Murray’s evidence was consistent with her explanation.
Mr Paunoski’s evidence was not challenged in any significant respect.
Contentious Prosecution Evidence
Access to the Citroen van
Mr Murray gave evidence that prior to the raid the only people that he saw using the Citroen van were the accused and “Tony” (Mr Paunoski). He did not see Tony driving the van alone; Tony used it only when the accused was also present.
Mrs Murray said that the van was generally parked overnight at the Murray residence because the accused did not have enough parking space at his residence. The vehicle was locked. When the vehicle was parked overnight, the Murrays were not given the key to the vehicle and they did not have a spare key. Prior to 29 August 2014, the only people who accessed the van were the accused and “Tony”, who would sometimes collect the vehicle, complete a carpet cleaning job and return the vehicle.
Mr Murray said that the Citroen van was only parked at his residence when the accused went to Sydney or when he didn’t want to drive home. For a three week period after the raid (initially, Mr Murray said that it was before the raid), the vehicle was parked at his residence. Mr Murray said that he and his wife did not have a spare key to the van, although the accused did leave the key with Mr Murray when he went to Sydney.
Mr Tony Paunoski gave evidence that he was employed by the accused on occasions over a period of about two months, ending “a week before the raids”. During that period, he worked with the accused, who collected Mr Paunoski and dropped him off in the carpet cleaning van. It was not until after 29 August 2014 that Mr Paunoski had access to the van keys. When travelling in the van, Mr Paunoski would sit in the passenger seat. Mr Paunoski said that, prior to 29 August 2014, he saw no one other than the accused with keys to the vehicle.
I accept the evidence of Mrs Murray that the van was generally parked overnight at the Murray residence. I also accept her evidence that, when the vehicle was parked at the Murray residence prior to 29 August 2014, the accused did not leave the van keys with the Murrays and he did not provide them with a spare key.
I find that, up until a week before 29 August 2014, Mr Paunoski often travelled in the van. He may have driven it (and forgotten that he had done so), but he was usually a passenger. Prior to 29 August 2014 he did not have keys to the van.
When the accused was searched on 29 August 2014, his girlfriend was present. The degree to which she had access to the van was not explored in evidence.
Conversation with the accused on 29 August 2014
Mrs Murray gave evidence that, on the afternoon of 29 August 2014, she saw the accused. He said words to the effect of:
I’ve been raided. The police came to my house this morning. I’m going to Sydney for a while to get out of Canberra.
Mr Murray gave evidence that, on the afternoon of 29 August 2014, the accused attended his premises. At the time, Mrs Murray was standing some distance away. The accused said words to the effect of:
I’ve been raided. They came and they took me down pretty hard. They took what I had. What have they got from you?
In evidence, Mr Murray said that the accused informed him that drugs had been taken from his car and Mr Murray believes that the accused also referred to the police taking a small amount of money. When the accused spoke to him, the accused was crying.
When he gave evidence at the trial, Mr Murray’s account of the conversation on 29 August 2014 was more explicit than the account that he gave to police soon after the events in question. However, I do not consider that the differences were significant.
I do consider that there were significant differences between the accounts given by Mr Murray and Mrs Murray. The explanation for the differences may be that the witnesses were speaking about different conversations. However, in all likelihood they were speaking about the same conversation. I prefer Mrs Murray’s account of the conversation. As the conversation was recounted by her, the accused made no admission.
Later statements to Mr Murray
Mr Murray gave evidence that the accused later said to him words to the effect of:
Do you want to take the rap for 2 pounds of cannabis? I will pay you (possibly $5000)? If not, and you find someone to take the rap, I will pay them.
Mr Murray recalled that he had responded in the negative.
Mrs Murray gave evidence that, in December 2014, the accused returned to Canberra and a conversation with her husband to the following effect:
Things are getting harder. I need someone to take the rap for some stuff that was found. Joe, if you take the rap for some of the stuff I’m prepared to give you $5000.
According to Mrs Murray, in a different and later conversation, the accused said words to the effect of:
They have a lot on me and if I could get someone to take the rap for the 2 pounds it would make it easier. Joe, would you take the rap?
Mrs Murray said that there were several conversations about “taking the rap”. She believes that, at first, her husband said that he would “think about it”. However, he could have said “no” and “laughed it off”. At no time did Mrs Murray think that either party was serious. She first mentioned this matter to the DPP about three weeks prior to the trial and, at that stage, she mentioned only one conversation about “taking the rap” because she didn’t realise that it was relevant to mention the series of conversations.
As stated above, I found Mrs Murray to be an impressive witness. I accept her evidence about the conversations concerning “taking the rap” for “2 pounds” of cannabis.
Impliedly, the conversations were a request (perhaps made jokingly) for Mr Murray to accept responsibility for 2 pounds of cannabis for which he was not otherwise responsible. I consider this to be the most natural meaning of the conversations. However, I accept that the conversations do not unambiguously bear this meaning. It is possible that the conversations were a request for Mr Murray to accept responsibility for drugs that were his drugs.
The accused
The accused did not give evidence. He was entitled to exercise his “right to silence” and I draw no adverse inference from his decision to do so.
In the record of interview between police and the accused at the Phillip premises, the accused made a number of assertions consistent with innocence. In so far as the assertions are exculpatory, I treat them as a prima facie possible version of events. However, most of the assertions were equivocal at best.
The prosecution relied upon some of the statements made by the accused in the record of interview as admissions. As most of those statements were, at best, equivocal, I do not treat them as admissions. For example, at questions 201 – 211, the accused equivocated about whether he had previously seen the cannabis that was located in the vehicle. At question 209 he was asked what he was going to do with it and he responded “I wasn’t going to do anything with it. Smoke it.” Considering the context in which this statement occurred in the manner in which the answer was given, I treat it as a “joking” statement rather than a serious admission.
Conflicting statements made by the accused in the record of interview do not strengthen the prosecution case.
Overall, I consider that the record of interview was relatively neutral, and it was uninfluential in relation to this judgment; I consider that it assisted neither the prosecution nor the defence.
Provisions of the Criminal Code
Section 600 of the Criminal Code contains the definitions applicable to chapter 6 of the Code. It defines “controlled drug” to mean “a substance prescribed by regulation as a controlled drug, but does not include a growing plant”. It also contains the following definitions:
cannabis means a substance consisting of or containing—
(a)the fresh or dried parts of a cannabis plant, other than goods that consist completely or mainly of cannabis fibre; or
(b)tetrahydrocannabinol.
cannabis plant means a plant of the genus Cannabis.
possession, of a thing, includes the following:
(a)receiving or obtaining possession of the thing;
(b)having control over the disposition of the thing (whether or not having custody of the thing);
(c)having joint possession of the thing.
prepare a drug for supply includes pack the drug or separate the drug into discrete units.
sell includes—
(a)barter or exchange; and
(b)give to someone in the belief that the person will provide property or services in return at a later time, whether by agreement or otherwise; and
(c)agree to sell.
supply includes—
(a)supply by way of sale or otherwise; and
(b)agree to supply.
Section 601(1) of the Criminal Code defines “trafficable quantity”:
trafficable quantity means—
(a)for a controlled drug—a quantity of the drug that is not less than the quantity prescribed by regulation as a trafficable quantity of the drug; and
(b)for a controlled plant—a quantity of the plant that is not less than the quantity prescribed by regulation as a trafficable quantity of the plant.
Section 601(2) provides:
(2)For this chapter, a trafficable ... quantity of a controlled drug in a mixture of substances is, subject to the regulations—
(a)if the prosecution elects to establish the quantity of the drug in the mixture—the relevant quantity of the drug worked out by reference to the quantity (if any) prescribed by regulation for the pure form of the drug; and
(b)if the prosecution elects to establish the quantity of the mixture instead of the quantity of the drug in the mixture—the relevant quantity of the mixture worked out by reference to the quantity (if any) prescribed by regulation for a mixture containing the drug.
Regulation 5(1) of the Criminal Code Regulation 2005 (ACT) (Criminal Code Regulation) defines “controlled drug” by providing that a substance mentioned in Schedule 1 is prescribed. Regulation 5(2) provides that specified substances such as analogues and homologues (each of which is a “related drug”) are also prescribed. Regulation 5(2)(e) states:
(2)The following substances (each of which is a related drug) are also prescribed:
...
(e)a substance containing or mixed with a substance mentioned in schedule 1.
Regulation 8 provides that, for a controlled drug under schedule 1, the trafficable quantity for the drug is the quantity under column 3 of the schedule.
Regulation 9 of the Criminal Code Regulation provides that the relevant trafficable quantities of a drug for s 602(2)(a) and (b) of the Criminal Code are, in each case, the quantity under schedule 1, column 3.
Schedule 1 Part 1.1 of the Criminal Code Regulation mentions methylamphetamine and oxycodone. The trafficable quantity for methylamphetamine is 6 g and the trafficable quantity for oxycodone is 7.5 g.
Schedule 1 Part 1.2 deals with prohibited substances. It mentions cannabis and provides that the trafficable quantity for cannabis is 300 g.
Part 6.2 of the Criminal Code is entitled “Trafficking in controlled drugs”. In part, it provides:
602Meaning of trafficking
For this chapter, a person traffics in a controlled drug if the person—
(a)sells the drug; or
...
(e)possesses the drug with the intention of selling any of it.
603Trafficking in controlled drug
...
(5)A person commits an offence if the person traffics in a trafficable quantity of cannabis.
...
(6)Absolute liability applies to the circumstance that the quantity trafficked in was a trafficable quantity.
(7)A person commits an offence if the person traffics in a controlled drug other than cannabis.
...
604Trafficking offence—presumption if trafficable quantity possessed etc
(1)If, in a prosecution for an offence against section 603, it is proved that the defendant—
...
(d)possessed a trafficable quantity of a controlled drug;
it is presumed, unless the contrary is proved, that the defendant had the intention or belief about the sale of the drug required for the offence.
59Legal burden of proof—defence
A burden of proof that a law imposes on the defendant is a legal burden only if the law expressly—
...
(c)creates a presumption that the matter exists unless the contrary is proved.
632Knowledge or recklessness about identity of controlled drugs, plants and precursors
In a prosecution for an offence against this chapter that involves conduct relating to a controlled drug, plant or precursor, the prosecution—
(a)must establish that the defendant knew or was reckless about whether the substance or plant was a controlled drug, plant or precursor; but
(b)need not establish that the defendant knew or was reckless about the identity of the controlled drug, plant or precursor.
Elements of trafficking in a controlled drug (s 603(7), Counts 1 and 3)
In order to prove each of these offences, the prosecution sought to establish the following elements beyond reasonable doubt:
(a)The accused possessed the substance (believed that he had the substance and was aware that he could exercise control over it).
(b)The quantity of the substance was greater than the trafficable quantity for the drug (presumed intention to sell).
(c)The substance was a controlled drug (methylamphetamine or oxycodone).
(d)The accused was reckless as to whether the substance was a controlled drug. The prosecution must prove that the accused knew (was aware) that the substance was a controlled drug of some description, or that the accused was reckless in that he was aware of substantial risk that it was a controlled drug of some description and, having regard to the circumstances known to the accused, it was unjustifiable to take the risk that it was a controlled drug.
Elements of trafficking in cannabis (s 603(5), Count 2)
In order to prove this offence, the prosecution sought to prove each of the following legal elements beyond reasonable doubt:
(a)The accused possessed the substance (believed that he had the substance and was aware that he could exercise control over it).
(b)The quantity of the substance was greater than the trafficable quantity for cannabis (presumed intention to sell).
(c)The substance was cannabis.
(d)The accused was reckless about whether the substance was cannabis.
Circumstantial evidence
As circumstantial evidence is critical to establishing the elements of possession and recklessness that support each charge, I cannot find the accused guilty of any offence unless satisfied that there is no rational explanation for the established circumstances other than that the accused is guilty of the offence.
In cross-examination, Mr Murray vehemently denied the suggestion that he had used the Citroen van to stash his own drugs: p 97 of the transcript.
There was no affirmative evidence that Mr Murray was ever alone in the van, let alone that he stored drugs there. However, this was advanced as a rational hypothesis consistent with innocence in a case that depended on circumstantial evidence.
Count 1 (trafficking in methylamphetamine)
In relation to the methylamphetamine found in the dashboard compartment, the quantity and the manner in which it was stored strongly suggest that it was for personal use. I find that the defence is established. I do not take this packet of methylamphetamine into account on the charge of trafficking.
Exhibit 18 establishes beyond reasonable doubt that the substance contained in the three clip seal bags was methylamphetamine and that the quantity of that substance was greater than the trafficable quantity.
In relation to the element of recklessness, the methylamphetamine was a white crystalline substance that was packaged (in a manner suitable for sale) in clear clip seal bags. If the accused was aware that the clear clip seal bags were in the driver’s door compartment and he had control of the van (i.e. he had possession of the drug), he must have realised that there was a substantial risk that the bags contained a controlled drug of some description, and it was unjustifiable to take that risk.
There is no doubt that, at the time of his arrest, the accused had sole control of the van and its contents. Consequently, the critical issue is possession; whether the accused was aware that the substance was in the driver’s side compartment (was aware that the three clip seal bags were inside a plastic bag in the brown bag).
In relation to possession, I take into account the following circumstances that I find to be established by the evidence:
(a)The van belonged to the accused and was used by him for the purposes of his carpet cleaning business.
(b)While there remains a possibility that someone else may have driven the vehicle in the days or weeks preceding the police raid (forensic evidence relating to a number of people was swabbed from the driving area), the accused is the only person known to have driven the vehicle at the relevant time and there is no doubt that he was the principal driver of the vehicle.
(c)While there remains a possibility that someone else accessed the vehicle without the accused knowing, there is no evidence that another person had the opportunity to do so. On the evidence, the accused was the only person who had keys to the vehicle.
(d)In the period immediately preceding the offence, the vehicle was in the custody of the accused; it had been parked overnight at the premises where he was staying and he had the keys to the vehicle. Surveillance evidence showed that, in the two hours preceding the offence, no one other than the accused approached the vehicle.
(e)The methylamphetamine was not the only drug that was in the vehicle and was packaged in a manner suitable for sale. Cannabis was also found in the vehicle.
(f)It is convenient for a drug trafficker to keep his product in a vehicle that he controls, making distribution easier.
(g)Both the methylamphetamine and the cannabis were stored in locations that were readily accessible to a driver and were the sorts of places within the vehicle that a driver might store his drugs. A person who was using the vehicle to hide drugs but who was not a driver (or was not the principal driver) of the vehicle might be inclined to use a different and more secretive location within the vehicle.
(h)The quantity of methylamphetamine suggests that it was of significant value; it was not the sort of item that a person would leave in another person’s vehicle without the latter’s knowledge.
(i)Two fingerprints of the accused were located on the brown paper bag, within which was the plastic bag containing the three clip seal bags of methylamphetamine.
(j)The accused was in possession of a large sum of money, much of which was packaged in bundles of $50 denominations, i.e. in a manner suggestive of substantial commercial dealings. The accounting records show that the carpet cleaning business did not generate a large income. Indeed, at the relevant time, business expenses exceeded business income. The possession by the accused of the money was consistent with the accused being a drug dealer.
Defence case
The defence submitted that the fingerprints on the brown bag could have been deposited at a time when the methylamphetamine was not inside the brown bag. On the large plastic bag within the brown bag, two fingerprints were located but they did not match the fingerprints of the accused. DNA was also obtained from the large plastic bag, but the accused was excluded as a contributor to that DNA.
In my view, the forensic evidence is neutral. I accept the defence submission that the presence of fingerprints on the brown bag does not take the matter very far; the brown paper bag was inside the accused’s van and could well have been touched by him prior to the drug being placed inside the bag.
Nor does the presence of the fingerprints and DNA of others on the large plastic bag mean that the accused did not touch that bag. Recoverable forensic evidence is not necessarily deposited when a person touches a plastic bag. It is trite to say that “The absence of evidence is not evidence of absence.”
Conclusion
There is no rational hypothesis consistent with innocence. The suggestion that Mr Murray may have deposited a valuable item in the driver’s door compartment of the accused’s vehicle when he did not have access to the vehicle in the immediately preceding period and there was evidence from a very reliable witness (Mrs Murray) that he did not have access to keys to the vehicle is wild speculation. No other hypothesis was suggested, and I can think of none.
The evidence compels the conclusion that the accused was in possession of the methylamphetamine. I am satisfied beyond reasonable doubt that the accused placed the methylamphetamine in the driver’s door compartment of his van believing it to be methylamphetamine.
Count 2 (trafficking in cannabis)
In relation to this charge, I find the following circumstances to be established on the evidence and to be relevant:
(a)The van belonged to the accused and was used by him for the purposes of his carpet cleaning business.
(b)While there remains a possibility that someone else may have driven the vehicle in the days or weeks preceding the police raid (forensic evidence relating to a number of people was swabbed from the driving area), the accused is the only person known to have driven the vehicle at the relevant time and there is no doubt that he was the principal driver of the vehicle.
(c)While there remains a possibility that someone else accessed the vehicle without the accused knowing, there is no evidence that another person had the opportunity to do so. On the evidence the accused was the only person who had keys to the vehicle.
(d)In the period immediately preceding the offence, the vehicle was in the custody of the accused; it had been parked overnight at the premises where he was staying and he had the keys to the vehicle. Surveillance evidence showed that, in the two hours preceding the offence, no one other than the accused approached the vehicle.
(e)The cannabis was not the only drug that was in the vehicle and was packaged in a manner suitable for sale. Methylamphetamine was found in the driver’s door compartment.
(f)It is convenient for a drug trafficker to keep his product in a vehicle that he controls, making distribution easier.
(g)Both the methylamphetamine and the cannabis were stored in locations that were readily accessible to a driver and were the sorts of places within the vehicle that a driver might store his drugs. A person who was using the vehicle to hide drugs but who was not a driver (or was not the principal driver) of the vehicle might be inclined to use a different and more secretive location within the vehicle.
(h)The quantity of cannabis suggests that it was of significant value; it was not the sort of item that a person would leave in another person’s vehicle without the latter’s knowledge.
(i)The cannabis was packaged in clear plastic bags and it would have been obvious to any observer that the bags contained cannabis.
(j)The accused was in possession of a large sum of money, much of which was packaged in bundles of $50 denominations, i.e. in a manner suggestive of large dealings. The accounting records show that the carpet cleaning business did not generate a large income. Indeed, at the relevant time, business expenses exceeded business income. The possession by the accused of the money was consistent with the accused being a drug dealer.
In addition to the circumstantial evidence, there was evidence of the statement to Mr Murray about “taking the rap” in relation to “2 pounds”, a reference to the cannabis, which was packaged in two 1 pound bags. As stated above, this was an implied admission in the form of a request for Mr Murray to accept responsibility for 2 pounds of cannabis for which he was not otherwise responsible (although that is not factual finding that I would be prepared to make beyond reasonable doubt, such that I would convict on the admission evidence alone).
Defence case
The defence referred to the absence of forensic evidence linking the accused to the cannabis and the presence of forensic evidence linking others to the cannabis. In my view, this evidence is neutral; it is simply evidence that others handled the cannabis packages before they came to the accused. The fact that the accused did not deposit forensic evidence on the packages is not inconsistent with him having touched them.
The defence noted that the cannabis package, while very large, would not have been visible to someone sitting in the driver’s seat. I accept that submission. However, visibility from the driver’s seat is irrelevant if (as I find) it must have been the accused who placed the cannabis under the passenger seat.
Conclusion
The circumstances set out above and the implied admission satisfy me beyond reasonable doubt that the accused placed the cannabis under the passenger seat knowing that it was cannabis.
While the case against the accused on this charge is not entirely circumstantial, it is largely circumstantial. For the reasons expressed in relation to count 1, I am satisfied that there is no rational hypothesis consistent with innocence.
Count 3 (trafficking in oxycodone)
In relation to this charge, I take into account the following circumstances:
(a)The van belonged to the accused and was used by him for the purposes of his carpet cleaning business.
(b)While there remains a possibility that someone else may have driven the vehicle in the days or weeks preceding the police raid (forensic evidence relating to a number of people was swabbed from the driving area), the accused is the only person known to have driven the vehicle at the relevant time and there is no doubt that he was the principal driver of the vehicle.
(c)While there remains a possibility that someone else accessed the vehicle without the accused knowing, there is no evidence that another person had the opportunity to do so. On the evidence, the accused was the only person who had keys to the vehicle.
(d)The oxycodone was found in a dashboard compartment near the steering wheel, a location convenient for use by the regular driver of the vehicle.
(e)The oxycodone was located in the same place as the blue heart shaped steroid tablets. A DNA sample collected from the plastic bag in which the steroid tablets were located was 90 times more likely to have emanated from the accused than from another contributor.
(f)The general appearance of the contents of the dashboard compartment suggest that it was used to store miscellaneous personal items, suggesting that the items belonged to the principal user of the vehicle.
(g)The packages of oxycodone were clearly labelled and their contents would have been obvious to any observer.
Defence case
The defence noted that, in relation to a DNA sample taken from the outer surface of the oxycodone drug packages, the accused was excluded as a contributor. For the reasons expressed above, I consider that this evidence is neutral.
That defence submitted that, pursuant to s 601 (2), if the prosecution wanted to rely upon the trafficable quantity of a mixture containing oxycodone (as opposed to the pure quantity of oxycodone) it was required to elect to do so. The defence signalled this issue at the outset: T 32 – 34. The attempt by the prosecution to elect to rely upon the quantity of the mixture (rather than the pure quantity) was not made until after the prosecution had closed its case, and that was too late. As the quantity of pure oxycodone was lower than the trafficable quantity, the prosecution could not establish intention to sell by relying upon possession of a trafficable quantity of oxycodone.
Consideration
Based on the above circumstances, I am satisfied beyond reasonable doubt that the oxycodone was in the possession of the accused in the sense that he knew that the substance was in the dashboard compartment and he knew that it was oxycodone.
It is not necessary to determine the vexed question of whether the prosecutor was required to elect before closing and, if so, the consequences of failure to elect.
If the prosecution was able to rely upon the admixture to establish trafficable quantity, the presumption of intention to sell was rebutted. I am satisfied that the oxycodone was part of the personal possessions of the accused that were located in the dashboard compartment. Two tablets of oxycodone had already been used. The overall quantity was small; it only just exceeded the trafficable quantity for an admixture. I am satisfied that, like the accompanying small package of methylamphetamine, the oxycodone was probably intended for personal use.
Verdicts
I find the accused guilty of Counts 1 and 2 and not guilty of Count 3.
| I certify that the preceding one hundred [100] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 18 March 2016 |
Amendments
13 May 2016 Remove vehicle registration Paragraph: [8]
13 May 2016 Remove unit number and street address Paragraph [8]