The State of Western Australia v Booth
[2020] WADC 74
•5 JUNE 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BOOTH [2020] WADC 74
CORAM: HERRON DCJ
HEARD: 18-20 MAY 2020
DELIVERED : 5 JUNE 2020
PUBLISHED : 9 JUNE 2020
FILE NO/S: IND GER 40 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
JENNA KAYE BOOTH
Catchwords:
Judge alone trial - Possession of methylamphetamine with intent to sell or supply it to another - Section 6(1)(a) Misuse of Drugs Act 1981 (WA) - Joint principal offender - Circumstantial case
Legislation:
Misuse of Drugs Act 1981 (WA), s 3, s 6(1)(a), Sch V div 1 item 11
Result:
Accused guilty
Representation:
Counsel:
The State of Western Australia : Mr C Henderson Accused : Mr G Giudice Solicitors:
The State of Western Australia : State Director of Public Prosecutions Accused : George Giudice Law Case(s) referred to in decision(s):
Atholwood v The Queen [2000] WASCA 76
Bomford v The State of Western Australia [2014] WASCA 43
Davies v The State of Western Australia [2005] WASCA 47; (2005) 30 WAR 31
Davis v The Queen (1990) 5 WAR 269
Jones v The State of Western Australia [2006] WASCA 192
Kalbasi v The State of Western Australia [2016] WASCA 144
Kenworthy v The Queen [No 2] [2016] WASCA 207
Lai v The Queen [1990] WAR 151
Lau v The State of Western Australia [2017] WASCA 16
Ritchie v The State of Western Australia [2016] WASCA 134
Scafetta v The State of Western Australia [2010] WASCA 209
Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176
Shepherd v The Queen (1990) 170 CLR 573
The State of Western Australia v Williams [2015] WASC 347
HERRON DCJ:
1Jenna Kaye Booth (the accused) is charged by indictment dated 28 August 2019 with a single count of on 23 October 2018 at Mount Adams being in possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. On 1 April 2020 Judge Goetze ordered that the trial of the charge on the indictment be by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA).
2The trial commenced before me on 18 May 2020. The accused was arraigned and pleaded not guilty to the sole count on the indictment.
3After the accused was arraigned, counsel for the State and counsel for the accused delivered brief opening addresses. Counsel for the State explained it was the State case that the accused committed the offence with which she is charged when, on 23 October 2018 at about 10.30 pm, she was a front seat passenger in a Toyota Camry motor vehicle registration CGG 218D driven by Blair McKinnon which was subjected to a traffic stop by police at the intersection of Brand Highway and Pye Road in Dongara. During a search of the vehicle police located multiple new clipseal bags in the glovebox, a container in a black sports bag on the back seat which appeared to have crystal residue in it and two glass smoking implements. Police impounded the motor vehicle and arranged for Geraldton Towing to transport the vehicle to their yard on Boyd Street in Webberton, a suburb of Geraldton.
4Two police officers accompanied the vehicle to Geraldton Towing's premises. At the premises a police officer placed evidence tape on the doors of the vehicle for the purpose of preventing it being interfered with. In the meantime the accused and Mr McKinnon were driven by police to their home addresses.
5The next day on 24 October 2018 police conducted a more thorough search of the Camry motor vehicle. During the search a cryovac vacuum‑sealed bag was found in the internal roof space behind a glasses and lighting console. Later analysis confirmed the bag contained 977 g of methylamphetamine at a purity of 77% and 75%.
6Later that day, on 24 October 2018, police conducted a search of Ms Booth's house in Beachlands. The police located and seized a methylamphetamine pipe in Ms Booth's bedroom. Ms Booth admitted that she had used the pipe to consume methylamphetamine earlier that afternoon. The police also seized an iPhone which was in Ms Booth's back pocket and a wallet containing documents in the name of Mr McKinnon.
7The iPhone's contents were later downloaded. The phone contained text messages which the State alleges were exchanged between Ms Booth and Mr McKinnon on 23 and 24 October 2018, which the State submits are consistent with a drug use relationship between the two of them.
8Later that night Ms Booth participated in an electronic record of interview in which she admitted she owned and drove the Camry. She again admitted she had used methylamphetamine shortly prior to the police executing the search warrant at her house earlier that day.
9It is the State case that Ms Booth and Mr McKinnon travelled together from Geraldton to Golden Bay near Mandurah on 23 October 2018 and were driving back to Geraldton that night when they were stopped by police.
10Testing of the cryovac bag containing the methylamphetamine revealed that Mr McKinnon's DNA was located on the packaging. Ms Booth's DNA was not located on the packaging.
11It is the State case that the accused, Ms Booth, is liable under s 7(a) of the Criminal Code in that she jointly possessed the methylamphetamine with Mr McKinnon with intent to sell or supply it to another. Alternatively, the State says that Ms Booth is liable under s 7(c) of the Criminal Code, as an aider, in that she aided Mr McKinnon in his possession of methylamphetamine with intent to sell or supply it to another.[1]
[1] ts 86 - ts 90.
12For the reasons which follow I am satisfied beyond reasonable doubt Ms Booth:
(a)had knowledge of the methylamphetamine hidden in the roof cavity of her car;
(b)had custody or control over the methylamphetamine;
(c)was, with Mr McKinnon, jointly in possession of the methylamphetamine with intent to sell or supply it to another;
(d)intended to supply the methylamphetamine to Mr McKinnon by permitting him to take physical custody of the methylamphetamine upon their return to Geraldton;
(e)is guilty of the offence alleged on the indictment of being in possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
Legal principles applicable to trial by judge alone
13I respectfully adopt the summary of the relevant principles which guide me throughout this trial sitting as a judge alone without a jury as explained by Martino J in The State of Western Australia v Williams[2] as follows:
Section 119 of the Criminal Procedure Act requires me to apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury. If any written or other law requires information or a warning or instruction to be given to the jury in certain circumstances or prohibits a warning from being given to a jury in certain circumstances, then I must take that requirement or prohibition into account if those circumstances arise in the course of the trial. Section 120 allows me to make any findings and give any verdict that a jury could have made or given if the trial had been before a jury and requires me to include in my judgment the principles of law that I have applied and the findings of fact on which I have relied.
[2] The State of Western Australia v Williams [2015] WASC 347 [7].
14The burden of proving the charge is on the State. The standard to which the State must prove the charge is beyond reasonable doubt. I cannot deliver a guilty verdict unless, subject to one exception, the State has proved each and every element of the offence charged beyond reasonable doubt. Beyond reasonable doubt is a high standard. It is the highest standard known to law. If I have a reasonable doubt then my verdict must be not guilty. In these reasons, whenever I refer to the State being required to prove something, unless I state otherwise, I am referring to the requirement the State prove that thing beyond reasonable doubt.
15When I am considering the evidence I must remember that the accused is presumed to be innocent of the charge against her. Subject to one matter, the accused does not have to prove anything. The only way that presumption of innocence can be removed is if I am satisfied beyond reasonable doubt that evidence has been produced in this trial which proves the accused is guilty of the charge alleged in the indictment.
16I must consider the evidence dispassionately. I cannot allow myself to be influenced by prejudice or by sympathy.
17When I consider the evidence, I must not guess or speculate or look for theories not supported by the evidence. However, I may draw inferences from facts. Because this is a criminal trial and the accused is presumed to be innocent unless she is proven guilty beyond reasonable doubt, before I draw an inference against her, I must be satisfied that it is the only inference that is reasonably available. In considering whether to draw an inference against the accused I do not consider the facts in isolation but I consider them as a whole to determine whether the inference is the only inference reasonably available.
The accused elected to give evidence
18The accused, Ms Booth, gave evidence during the trial. The accused did not have to give evidence at the trial. Because of the presumption of innocence that applies to any person who stands trial she was quite at liberty not to give evidence. But the accused chose to give evidence and, as a result to submit herself to cross-examination by counsel for the State.
19The fact that she chose to give evidence does not in any way detract from the important principles of our system of law that the onus is on the State to prove the charge that it presents against the accused and the accused is presumed to be innocent until the charge against her has been proved beyond reasonable doubt.
20I am guided by the following principles:
(i)If I believe all of the accused's evidence I would acquit her.
(ii)If I find difficulty in accepting the evidence of the accused, but think that it might be true, then I must acquit her.
(iii)Even if I do not believe her evidence I cannot find an issue against the accused contrary to her evidence if her evidence, or any evidence for that matter, has given rise to a reasonable doubt on that issue. It is important for me to remember that the question I must consider is whether, on all the evidence before me, the State has proved this charge against the accused beyond reasonable doubt and, if the accused's evidence, or any evidence for that matter, has given rise to a reasonable doubt then I cannot convict her of the charge.
21Further, even if I do not accept the accused's evidence and reject that evidence it does not follow automatically that I convict the accused of the offence charged. In relation to the main issue in this trial, possession, the accused does not have to prove anything. The law is that I only deliver a guilty verdict if on all the evidence the State has proved the charge beyond reasonable doubt.
22If I do not believe the accused then I should put her testimony to one side.
23The question will remain, has the State, upon the basis of evidence that I accept, proven the guilt of the accused beyond reasonable doubt.
Video record of interview - 24 October 2018
24In this case the accused participated in an interview with the police which was recorded on video. She did not have to but she elected to do so. The video of the interview was played during the trial and was tendered as an exhibit.[3] The accused was also asked questions by police at her house when they executed the search warrant earlier in the day and the video of the search of the house was also tendered as an exhibit.[4]
[3] Exhibit 7.
[4] Exhibit 6.
25The interview with the accused at the Geraldton Police Station was conducted on the night of 24 October 2018.
26At the beginning of both interviews the accused was cautioned, that is, the accused was told that she did not have to say anything if she did not wish to do so and anything she did say would be recorded on camera and could be used in evidence. Thereafter, during the interviews the accused was asked questions.
27What the accused said in the interviews is part of the evidence that I consider in this case, in deciding whether or not the State has proved the charge beyond reasonable doubt. I cannot find an issue against the accused if what she said during the interviews about that issue has given rise to a reasonable doubt on the issue.
28During the search interview the accused made some admissions against interest:
(a)For example, she admitted that she had smoked methylamphetamine earlier in the afternoon before the police arrived at her house and directed police to the pipe she used to smoke the methylamphetamine.[5]
(b)She admitted she took Mr McKinnon's wallet from the car after police gave permission to take their personal belongings.[6]
(c)She admitted a phone seized from her by police was her phone.[7]
(d)She told police that she received Centrelink benefits and also performed some relieving and function work.[8]
[5] Exhibit 6, transcript recording of execution of search warrant, pages 4 - 5, 16 - 17.
[6] Exhibit 6, transcript recording of execution of search warrant, pages 20 - 21.
[7] Exhibit 6, transcript recording of execution of search warrant, page 25.
[8] Exhibit 6, transcript recording of execution of search warrant, page 11.
29In relation to the record of interview conducted at the Geraldton Police Station later that night Ms Booth confirmed she had taken methylamphetamine earlier in the day.[9]
[9] Exhibit 7, transcript record of interview, page 5.
30She admitted she owned the Toyota Camry[10] and that she kept the car in the driveway of her house.[11]
[10] Exhibit 7, transcript record of interview, pages 8 - 9.
[11] Exhibit 7, transcript record of interview, page 10.
31Ms Booth also admitted that she was the person who drove the car.[12]
[12] Exhibit 7, transcript record of interview, page 10.
32The questions asked by the police are not evidence. It is the accused's answers that is the evidence.
33If the accused did not agree to or in some way accept the content of a question asked of her, the question become evidence against her.
34Further, if the accused did not respond to a question asked of her, it was her right to not respond. As the police officers made clear to the accused by giving her the caution, the accused did not have to say anything to the police. It was her right not to answer any questions asked of her by the police. I must not draw an inference against the accused for exercising her right not to answer questions asked of her by police. Again, if whenever the right was exercised an adverse inference was drawn against an accused person it would mean that the right had no value. The fact that the accused elected not to answer some of the questions asked of her by police during interview proves nothing one way or the other.
Criminal responsibility - parties (s 7 Criminal Code)
35Before dealing with the elements of the offence, it is appropriate that I explain the law in relation to criminal complicity.
36The State's case is that the accused is:
(a)a joint principal offender, together with another person, Mr McKinnon; or
(b)the accused knowing aided Mr McKinnon to commit the offence alleged on the indictment;
37Relevantly by s 7 of the Criminal Code in this case, when an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence:
(a)every person who actually does the act or makes the omission which constitutes the offence;
(b)every person who aids another person in committing the offence.
Section 7(a) - principal
38To be guilty of the offence as a person who actually does the act or makes the omission which constitutes the offence, the accused must actually do the act or if acting jointly (in concert) with another do one or more acts in the series of acts which constitutes the offence.
39If two or more persons are acting together to carry out an unlawful act then the acts done by each of them in carrying out that unlawful act are treated as the act of all of them.
40I must look at the totality of the acts and if it can be said that the accused was acting together or in concert with another, one doing one thing and the other, other things, all of which acts if done by one person would constitute the offence then each of the perpetrators is liable as a principal and treated as if he or she actually committed the offence.
41Put another way if two or more persons are acting together (in concert) to do an act which if done would amount to the commission of the criminal offence and that act is done by one or both of them, each is deemed to have committed the offence.
42The State says the accused, Ms Booth, provided her car and drove Mr McKinnon to Golden Bay to enable him to take delivery of the package of methylamphetamine, permitted or allowed him to hide the package in the roof cavity of her car and started driving him back to Geraldton with the intention of permitting him to retrieve the drugs when they arrived back in Geraldton.
Section 7(c) - aiding[13]
[13] See Scafetta v The State of Western Australia [2010] WASCA 209 [12] (McLure (Buss JA and Mazza J agreeing).; Bomford v The State of Western Australia [2014] WASCA 43; Ritchie v The State of Western Australia [2016] WASCA 134 [84].
43To aid another means to give help support or assistance. Relevantly, the aid can take the form of actual physical assistance.
44To prove that a person has aided another the State must establish beyond reasonable doubt four matters:
(i)First, that a person or persons (the principal), relevantly Mr McKinnon, has committed the offence.
(ii)Secondly, the State must establish that the person alleged to be an aider, had actual knowledge of the facts amounting to the offence for which aid is being provided. It is not sufficient for there to be a mere suspicion that the facts existed. There must be actual knowledge of the facts amounting to the offence for which aid is being provided.
(iii)Thirdly, the aider did or omitted to do something with the intention of aiding or assisting in the doing of the acts which make up the offence. It must be a deliberate or intentional provision of aid, help, support, assistance or encouragement.
(iv)Fourthly, what the aider did or omitted to do actually aided or assisted the commission of the offence. The State must prove the aider has done some positive act in the nature of assistance, encouragement, help or support either by conduct or words. The aid must be provided before the commission of the offence is completed.
45To aid another in the commission of the offence the aider has to have actual knowledge of the facts amounting to the offence that is occurring and must actually give encouragement, help, support or assistance to the commission of the offence, and intentionally encourage, help, support or assist the other person to commit the offence.
46All four matters are required before a person can be said to be an aider. Knowledge, by itself, that an offence is being committed is not sufficient. Knowing that an offence is being committed does not make a person an aider. Providing aid by itself, is not sufficient.
47The aiding does not need to have caused the commission of the offence. One person can aid another person even though that person already intended to commit the offence.
48The State says that Ms Booth aided Mr McKinnon to commit the offence alleged by driving Mr McKinnon to Golden Bay so he could take delivery of the drugs and then drive him back to Geraldton with the drugs.
The elements of the offence - what the State must prove
49The count on the indictment alleges an offence against s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA). In Lau v The State of Western Australia[14] Buss P explained the elements which the State must prove in relation to an offence alleged against s 6(1)(a) of the MDA:[15]
65A number of propositions may be stated in relation to proof by the State of the knowledge of an accused where the accused is charged, as a principal offender, with possession of a prohibited drug, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act.
66First, the State must prove that the accused had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that he or she had in his or her physical possession, or otherwise in his or her control or under his or her dominion, a substance or thing.
67Secondly, the State must prove that the accused had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the substance or thing was 'a prohibited drug'.
68Thirdly, it is unnecessary for the accused to have had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the substance or thing was the specific drug the subject of the charge.
69Fourthly, it is unnecessary for the accused to have had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the weight or quantity of the substance or thing was as alleged in the charge.
70The principles I have stated in relation to count 1 and s 6(1)(a) of the MD Act are taken from my reasons in Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176 [179] - [184] and the decisions cited in my reasons.
[14] Lau v The State of Western Australia [2017] WASCA 16.
[15] Lau v The State of Western Australia [65] - [70] (Mazza & Mitchell JJA agreeing).
50Therefore, to prove the offence alleged the State must prove each of the following elements beyond reasonable doubt.
51The first is identity, that is, the State must prove that the person who did the things the State says constitutes the offence was the accused, Ms Booth and not someone else. There is no issue in relation to this element.
52Secondly, the State must prove that methylamphetamine is a prohibited drug.
53As a matter of law, methylamphetamine is a prohibited drug.
54There is no issue that methylamphetamine is a prohibited drug.
55Thirdly, the State must prove the accused was in possession of a prohibited drug. This is the main issue in this trial. The accused denies that she knew the package containing methylamphetamine was hidden in her car.
56The expression 'to possess' means:[16]
to possess includes to control or have dominion over, and to have the order or disposition of, and inflections and derivatives of the verb 'to possess' have correlative meanings;
[16] Section 3 of the MDA.
57In Kalbasi v The State of Western Australia[17] Mazza & Mitchell JJA explained what the State must prove to prove a person was in possession of a prohibited drug:[18]
91A person may possess a prohibited drug by having actual physical custody of it or by having control or dominion over it.
92In order to possess a prohibited drug it is necessary that the accused has knowledge of that drug, being 'knowledge … that he or she had possession of a prohibited drug of some kind, even though that person did not know what prohibited drug he or she possessed'. Knowledge is established 'if there is proof of a belief by the accused in the likelihood (in the sense that there was a significant or real chance) that he or she had a prohibited drug in his or her physical possession or otherwise in his or her control or under his or her dominion': The State of Western Australia v R [2007] WASCA 72; (2007) 33 WAR 483 [50], [67]. The State does not have to prove that the accused has knowledge that the prohibited drug in his or her physical custody or control or dominion is, as a matter of law, a prohibited drug: Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176. The State must prove that the accused had an intention to possess the prohibited drug: Davis v The Queen (1990) 5 WAR 269; (1990) 50 A Crim R 55, but cf Davies v The State of Western Australia [2006] WASCA 151. The elements of knowledge and control must coincide: Lai v The Queen [1990] WAR 151; (1989) 42 A Crim R 460 and Cumming v The Queen (1995) 86 A Crim R 156, 162 163.
[17] Kalbasi v The State of Western Australia [2016] WASCA 144.
[18] Kalbasi v The State of Western Australia [91] - [92].
58Possession is a different concept from ownership. It is wider than physical possession.
59Possession means to knowingly have control or custody of a prohibited drug (or have dominion over and to have the order or disposition of) with the intention to possess that drug.
60In short, it means having something, knowing that you have it and intending to exercise some control over it.
61There are three requirements for possession, knowingly, custody or control and intention.
62In relation to each of those requirements the State must prove the following matters.
63First, the accused must have knowledge that the thing possessed is a prohibited drug of some kind.
64The accused does not have to know the type or quantity of the prohibited drug she actually possessed but she must have knowledge that what she possessed was a prohibited drug of some kind.
65It is not sufficient for the State to prove that she suspected that it was a prohibited drug, she must have knowledge in the sense that I will explain that it was a prohibited drug.
66In this case the accused has denied she had any knowledge of the presence of the prohibited drugs, that is, the methylamphetamine, which was found.
67This is the main issue in this trial.
68Knowledge means that she was aware that she was in possession of a prohibited drug or believed in the likelihood, in the sense that there was a significant or real chance, that the item in question was a prohibited drug.
69Whether the accused has this knowledge is a question of fact. It is a matter for me to determine.
70Whether or not it existed is a matter to be inferred from the circumstances surrounding the commission of the alleged offence. That is, a combination of all the circumstances. The inference can only be drawn if it is the only rational inference available.
71Secondly, possession requires either actual physical custody or what is referred to as control (de facto custody) in the sense that the accused can be said to exercise control and dominion over the article in question to the exclusion of other people.
72A person can possess something by physically holding it, however, a person can also possess something without physically holding it.
73Having physical custody, control or dominion over something does not mean that the person has to have the thing with him or her. A person may have driven into work, parked the car in its bay and gone to work with the keys in his or her pocket. The person is still in possession of their car even though they are keeping it somewhere else.
74The concept of possession does not require that the object be in the person's hand or on the person but it does require that the person has either physical custody of it or it be under their control either solely or jointly with others.
75In Sgarlata v The State of Western Australia[19] Buss JA said:[20]
Where an accused is charged, as a principal offender, with possession of a prohibited drug, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act, and putting to one side for the moment the issue of the knowledge of the accused, the State must prove beyond reasonable doubt that:
(a)the accused had in his or her physical possession, or otherwise in his or her control or under his or her dominion, a substance or thing;
(b)at least where the substance or thing was not in the accused's immediate physical custody, an intention by the accused 'to control' or 'have dominion over' the substance or thing within the extended definition of 'to possess' in s 3(1) of the MD Act;
…
[19] Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176.
[20] Sgarlata v The State of Western Australia [179] (Mazza JA agreeing).
76Proof of knowledge will normally be sufficient to show intention to control.[21]
[21] Atholwood v The Queen [2000] WASCA 76 [55] (Malcolm CJ) (Wallwork & Anderson JJ agreeing); Davis v The Queen (1990) 5 WAR 269, 279 (Malcolm CJ).
77In Jones v The State of Western Australia[22] Wheeler JA said:[23]
19… It may be inferred, as a general rule, that a person who is in control of premises has knowledge of and dominion over items located there. However, that is not an inference that can be drawn in every case. Where the item is concealed, and there is no evidence to suggest by whom it is concealed, and where a number of persons are capable of having concealed the item, there is no reason to draw the inference that any particular person concealed the item. This is not because there is some proposition of law that it is necessary, in cases where items are concealed, to negative knowledge and control by all others. It is because in cases such as the two I have described there is a reasonable hypothesis consistent with innocence, that hypothesis being that the items were placed where they were by some other person without the knowledge or consent of the appellant, and that the appellant remained unaware of them. Whether there is such an hypothesis, so as to prevent an inference adverse to a particular appellant from being drawn, is simply a question of fact.
20As a matter of law, as was conceded by the appellant's counsel, more than one person can be convicted of having possession of the same drug. Even where evidence of possession is circumstantial, it is open to a jury to draw an adverse inference, in respect of more than one person, that those persons were jointly in possession of a drug.
[22] Jones v The State of Western Australia [2006] WASCA 192.
[23] Jones v The State of Western Australia [19] - [20] (McLure & Pullin JA agreeing).
78Wheeler JA added:[24]
In the present case, the methylamphetamine was, of course, concealed, but the principles are the same. The question is always whether there is a reasonable hypothesis consistent with innocence, and, if so, whether that hypothesis has been negatived by the State.
[24] Jones v The State of Western Australia [22].
79In Davies v The State of Western Australia[25] Roberts-Smith JA made the following observations which are particularly pertinent to the factual circumstances of this case:[26]
37Possession need not be exclusive, either as a matter of fact or law. Several persons can have joint possession as against the rest of the world (Cumming v The Queen (1995) 86 A Crim R 156).
38Possession can therefore be had in a wide variety of ways and exclusively by one person or jointly (in different ways) by several (Davis v The Queen (1990) 5 WAR 269; Atholwood v The Queen (2000) 110 A Crim R 417). So in this case, both the appellants and Tyssul had control and dominion over the cannabis while it was in the appellants' house. The appellants knew it was there (He Kaw Teh v The Queen (1985) 157 CLR 523), had permitted Tyssul to store it there in exchange for cash and allowed him access to it. That was sufficient exercise of control or dominion (Lai v The Queen [1990] WAR 151).
[25] Davies v The State of Western Australia [2005] WASCA 47; (2005) 30 WAR 31.
[26] Davies v The State of Western Australia [37] - [38].
80See also Lai v The Queen.[27]
[27] Lai v The Queen [1990] WAR 151 (Wallace & Nicholson JJ) (155).
81What the State says is that the methylamphetamine found by police was jointly under the control of the accused and Mr McKinnon, that the package containing drugs was under the joint control and custody of the accused and Mr McKinnon.
82Possession is wide enough to include any case where the person alleged to be in possession has hidden the thing, or been a party to hiding the thing, effectively for the purpose of taking it into his or her physical custody when he or she wishes and where others are unlikely to find it except by accident.
83What is involved before a person can be found to be in possession of a hidden thing is that it must be found that he or she had hidden it or was in some way a party to its hiding and that he or she had hidden it or been a party to its hiding so that they could take it into their physical custody when they wished to do so.
84If a person keeps drugs in a place where they hope no one will find them with the intention of exercising control over them the person is in possession of those drugs.
85More than one person can have possession of the same drugs at the same time. That could happen, for example, if a person who had drugs kept them at another person's house with that person's permission. Each person would have physical custody or control of the drugs, each would know they had the drugs and if each had the required intention they would each be in possession of the drug.
86Similarly, two persons living in the same house where drugs are kept would each be in possession of the drugs providing each of them knew of the presence of the drugs and were able to control the drugs if each had the requisite intention with respect to the drugs.
87A person can be in possession of drugs even though they are in a place to which others have access. They could be in a person's possession if the person has the ability to access them and it is unlikely as a matter of fact that any third party would interfere with the drugs because, for example, it is unlikely that they would be found or if found the finder would be unlikely to interfere with the drugs, perhaps because of their relationship with the accused. These are matters of fact for me to consider in determining if the State has proven beyond reasonable doubt that the accused had dominion or control over the drugs.
88The mere fact that drugs are found, for example, in a person's car does not necessarily constitute possession. There is no law that says if drugs are found in a person's car or on a person's property that the person is in possession of it. The State does not contend that.
89Nevertheless the location where the drugs are found is a matter to be taken into account by me in determining whether or not I can infer the possession of the drugs by the accused. It is one of the circumstances to be considered.
90The accused says she had no knowledge of the drugs found.
91The accused denies she was associated or involved with the drugs found in the car. Therefore the accused says she did not have custody of or control over the drugs.
92The third requirement that the State must prove is that the accused had the intention to exercise control or dominion over the drugs.
93The intention must be a present intention. That is, an intention at the time the drugs were found because that is when the State says that the accused was found in possession of the drugs therefore it must be at that time that the accused intended to exercise control or dominion over the drugs.
94Knowledge of the drugs without the intention to exercise control is not enough to constitute possession. A person may know that drugs were in a container, but they must have the intention to exercise control over it to in fact possess it. The capacity to exercise control over the drugs is not sufficient.
95The State must prove that the accused actually intended to exercise control or dominion over the drugs.
96Future intention to exercise control of a prohibited drug would not be sufficient. The control and intention to exercise control must be exercised at the same time.
97If on the evidence I am satisfied beyond reasonable doubt that the accused had knowledge of the drugs and that the drugs were prohibited drugs and that the accused had physical custody or what is referred to as control (de facto custody) in the sense I have explained, this would permit me to conclude that the State had proved that that the accused had the intention to control the drugs.
98What the State says is that the only reasonable inference is that the accused was in possession of the drugs. That she was were jointly in possession of the drugs with Mr McKinnon.
99That the accused knew of the presence of the methylamphetamine and that she had the custody or control over the drugs and intended to exercise control or dominion over the drugs.
100On the State case the accused had control over the drugs by being in charge of the vehicle which she owned and which she was driving and in which she permitted Mr McKinnon to conceal the drugs. The accused had physical custody and control of her vehicle at all material times in which the drugs were concealed with her permission. She voluntarily and intentionally exercised physical control over the methylamphetamine so as to possess it jointly with Mr McKinnon.[28]
[28] Compare Davis v The Queen (1990) 5 WAR 269 (276), (281) - (282) (Malcolm CJ).
101The accused says that because she was not aware of the presence of the drugs and had no knowledge of them, she could not and did not have the intention to exercise control or dominion over the drugs.
Knowledge and intention
102As I have said, the State's principal case is that the accused jointly had possession of the methylamphetamine that was found in the car.
103As I have explained, the State must prove that the accused knew of the drugs and had control, and an intention to exercise control, over them. These are all matters that concern the accused's state of mind.
104A state of mind, can never be directly proved as a fact, it can only be drawn as an inference from other facts which are proved. I must determine the accused's state of mind from the evidence of all the circumstances in which the accused said or did those things. I need to draw an inference in this respect.
105In this case the State depends to a large degree on circumstantial evidence rather than direct evidence.
106The general principles concerning what the State must prove where it relies upon circumstantial evidence were recently summarised in Kenworthy v The Queen:[29]
[29] Kenworthy v The Queen [No 2] [2016] WASCA 207 [18] - [21].
18The principles concerning prosecution cases that turn on circumstantial evidence are also well settled. The following relevant principles were recently summarised by the High Court in R v Baden Clay:
1.When the case against an accused person rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.
2.To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his or her guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable them to draw.
3.For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding an accused guilty if the inference of guilt is the only inference open to a reasonable person upon a consideration of all the facts in evidence.
4.In considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.
19The nature of the requirement to look at the evidence as a whole was explained by Gibbs CJ and Mason J in Chamberlain v The Queen [No 2]:
[T]he jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and … they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference.
20In Baden-Clay, the High Court distinguished between the drawing of inferences from facts proved by the evidence and mere speculation or conjecture. The court cited with evident approval the following passage from the speech of Lord Wright in Caswell v Powell Duffryn Associated Collieries Ltd:
There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.
21Where an intermediate fact constitutes an indispensable step upon the way to an inference of guilt, that fact must be proved beyond reasonable doubt if the ultimate inference of guilt is to be the only reasonable hypothesis left open by the evidence. Otherwise, it is not necessary for each of the individual facts or pieces of evidence from which an inference of guilt is drawn to be proven beyond reasonable doubt.
107In Shepherd v The Queen[30] Dawson J said:[31]
… it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where - to use the metaphor referred to by Wigmore on Evidence, vol. 9 (Chadbourn rev. 1981), par. 2497, pp. 412-414 - the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.
[30] Shepherd v The Queen (1990) 170 CLR 573.
[31] Shepherd v The Queen (579) (Mason CJ, Toohey & Gaudron JJ agreeing).
108Circumstantial evidence is an example of the drawing of inferences from proven facts.
109In a circumstantial case no individual fact can prove the guilt of the accused.
110Where the State's case depends either wholly or in part on circumstantial evidence then I must reason in a staged approach.
111The State first asks me to find certain basic facts established by the evidence. I am then asked to infer or conclude from a combination of those established facts that a further fact or facts existed.
112The ultimate fact that the State asks me to find based upon the basic facts is that the accused is guilty of the offence charged.
113Relevant to this case the ultimate fact the State asks me to find is that the accused was in possession of the methylamphetamine because she knew of the presence of the drugs, had custody or control over them and had the intention to exercise control or dominion over the drugs.
114I must consider and weigh, as a whole, all the facts I find established by the evidence.
115I must consider from the facts I find whether I can conclude from those facts that the accused is guilty of the offence charged.
116If such a conclusion does not reasonably arise then the State's circumstantial case fails because I will not be satisfied of guilt beyond reasonable doubt. Of course it follows that I must find the accused not guilty.
117If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused, the circumstantial case fails because I would not be satisfied beyond reasonable doubt of the accused's guilt.
118To bring in a verdict of guilty based entirely or substantially upon circumstantial evidence it is necessary that guilt should not only be a rational inference but also that it should be the only rational inference that can be drawn from the circumstances.
119If there is any reasonable possibility consistent with innocence it is my duty to find the accused not guilty. This follows from the requirement that guilt must be established beyond reasonable doubt.
120I can only draw inferences from facts which I have in the first place found to be established.
121It is essential, that when I resort to a process of inferential reasoning I remember the onus or burden of proof is on the State and that the standard of proof is beyond reasonable doubt, and that the accused is presumed innocent and those matters continue to apply.
122Now (and subject to the qualification I will explain in a moment) before I draw an inference, or come to a conclusion against the accused, I must be satisfied that it is the only reasonable inference or conclusion that can be drawn consistent with the proven facts.
123It would not be proper for me to draw an inference adverse to the accused unless I have reached the conclusion that such an inference is the only reasonable one open on the evidence.
124In relation to the facts from which the State asks me to draw the inference I do not consider those facts in isolation, but consider them as a whole to determine whether the inference of guilt is the only inference reasonably available.
125The circumstances which I find to be established must be such as to exclude every reasonable inference consistent with the innocence of the accused.
126I cannot draw an inference that the accused is guilty of the offence with which she has been charged unless the evidence is inconsistent with any reasonable conclusion other than that the person is guilty of that charge.
127In summary:
1.If there is a reasonable inference open on the evidence, consistent with the innocence of the accused, then I must draw that inference.
2.I must not draw an inference of guilt against the accused unless I am satisfied that the inference is the only inference reasonably open on the evidence.
3.To bring in a verdict of guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt should not only be a rational inference but also that it should be the only rational inference that can be drawn from the circumstances.
4.If there is any reasonable possibility consistent with innocence, it is my duty to find the accused not guilty. This follows from the requirement that guilt must be established beyond reasonable doubt.
128In this case the State says that I can draw the inference that the accused was in possession of the drugs the subject of the charge, because the only reasonable inference is that the accused had knowledge of the drugs, had control or custody over the drugs and an intention to exercise control or custody.
129I earlier said that what I have just explained was subject to a qualification which I would explain. The only qualification to that which I have just explained regarding the drawing of inferences in a criminal trial is in relation to the allegation in the charge that the accused intended to sell or supply the prohibited drugs to another, which is the third element which the State must prove beyond reasonable doubt to which I now turn.
130The third element that the State must prove is that the accused had the intention to sell or supply the methylamphetamine in her possession or any part of it to another.
131The word sell is used in its ordinary meaning of exchanging the prohibited drug for money.
132To supply a drug includes to deliver, dispense, distribute, forward, furnish, make available, provide the drug or to return the drug and it does not matter that it is supplied on behalf of another or on whose behalf it is supplied.[32]
[32] Section 3 of the MDA.
133It is the State case the accused intended to supply the methylamphetamine to Mr McKinnon by permitting him to remove the drugs from the motor vehicle's roof cavity after they had returned to Geraldton.
134On the third element of intention to sell or supply the methylamphetamine the law is that a person shall, unless the contrary is proved on the balance of probabilities, be deemed to have in his or her possession methylamphetamine with intent to sell or supply it to another if he or she has in their possession not less than 2 g of methylamphetamine.[33]
[33] Sch V div 1 item 11 of the MDA.
135If the State has proved beyond reasonable doubt that the accused had in her possession not less than 2 g of methylamphetamine, the law places on the accused the onus of proving on the balance of probabilities that she did not intend to sell or supply the methylamphetamine to another. This standard of on the balance of probabilities is a lesser standard than the standard of beyond reasonable doubt. What the accused must prove is that it was more probable than not that she did not intend to sell or supply the methylamphetamine in her possession to another.
136The State's case is that in addition to the law that a person shall, unless the contrary is proved on the balance of probabilities, be deemed to have in her possession methylamphetamine with intent to sell or supply it to another if she has in her possession not less than 2 g of methylamphetamine, there is evidence from which I can draw the inference that the accused intended to sell or supply the methylamphetamine or some of it to another.
137The State refers to the following facts and circumstances:
1.The total quantity of the drugs of 997 g from which the State submits you can conclude it is too great a quantity for personal use.
2.The potential value of the drugs of approximately $1 million if sold in point quantities.
3.The text messages on the accused's phone indicating that she was involved in drug use and obtained her drugs from Mr McKinnon.
4.The distance travelled, or which would have been travelled, of approximately 1,000 km to meet a friend of Mr McKinnon's for 15 minutes.
5.The hiding of the drugs in the roof cavity of Ms Booth's car which required a compartment to be removed.
6.Ms Booth had custody and control of her car at all times.
7.Both Ms Booth and Mr McKinnon were drug users and Mr McKinnon supplied drugs to Ms Booth.
138There are, in theory, three possible verdicts. One possible verdict is guilty as charged. Another possible verdict is guilty of the offence of simple possession of methylamphetamine but without the intention to sell or supply the drug. Another possible verdict is not guilty of the charge.
139It is not however the State case that the accused is guilty of simple possession on the charge. The State case against the accused is the accused was only in possession of the drugs for the purpose of selling or supplying the drugs or some of them to others. As I have earlier explained, it is the State case that the accused intended to supply the drugs to Mr McKinnon by allowing him to take physical custody of the drugs after they returned to Geraldton.
140As I have explained, the onus is on the accused to prove she was not in possession of the methylamphetamine with an intention to sell or supply. The standard of the balance of probabilities is a lesser standard than the standard of beyond reasonable doubt. What the accused must prove is that it was more probable than not that she did not intend to sell or supply the methylamphetamine in her possession to another.
141I refer to the direction I earlier gave myself in relation to the drawing of inferences when considering whether the State has proved beyond reasonable doubt the element of possession. The direction was that I can only draw an inference against an accused person if I am satisfied that it is the only inference reasonably available to be drawn from the facts that I find to have been established. The direction must be applied by me when I am considering the possession element of the charged offence. However, the direction should not be applied when I consider the element of intention to sell or supply, that is, the element that I am currently considering. The direction does not apply in this context because, as I have just said, if I am satisfied beyond reasonable doubt that the accused was in possession of more than 2 g of methylamphetamine the onus is placed on the accused to prove on the balance of probabilities that she did not have the intention to sell or supply all or some of the drug. Thus in this circumstance the direction that I have given myself about the drawing of inferences does not apply. The State does not have to satisfy me that the only inference reasonably available to be drawn is that the accused had the relevant intention. Rather, the onus is on the accused to satisfy me on the balance of probabilities that she did not have that intention.
142There is no real issue that if I am satisfied beyond reasonable doubt that the accused was in possession, in the sense I have explained it, of the methylamphetamine the accused was in possession of the prohibited drug with an intention to sell or supply it to another. I would therefore return a verdict of guilty.
Summary of evidence
Traffic stop
143On 23 October 2018 at about 10.30 pm Senior Constable Jaeger and Constable Warhurst conducted a traffic stop on a Toyota Camry sedan registration number CGG 218D at the corner of Brand Highway and Pye Road in Dongara. The driver was Blair James McKinnon. The front seat passenger was the accused, Ms Booth. After Mr McKinnon informed the police officers that his driver's licence was suspended, which they confirmed on the police computer, the vehicle was impounded for a period of 28 days.[34] The vehicle and each of the occupants were searched. Two smoking utensils, which were found in the car,[35] were seized.[36] Numerous new small clip seal bags were found in the glove box and seized.[37]
[34] ts 93 - ts 95, ts 101.
[35] ts 95, ts 101, ts 197.
[36] ts 94 - ts 95.
[37] ts 95.
144Each of Ms Booth and Mr McKinnon, after they were allowed to collect their personal items from the vehicle,[38] were then driven to their homes in Geraldton.[39]
[38] ts 95.
[39] ts 95.
145Senior Constable Hughes and Senior Constable Pears were also present that night and assisted in the vehicle stop.[40] Senior Constable Hughes confirmed from the police computer that the registered owner of the Camry was the accused.[41]
[40] ts 100.
[41] ts 101.
146Senior Constables Hughes and Pears remained with the vehicle while awaiting the arrival of the two truck from Geraldton Towing Services to take the vehicle to their premises in Webberton, a suburb of Geraldton. Senior Constables Hughes and Pears accompanied the two truck to the premises of Geraldton Towing Services arriving at about 2.00 am the following morning, 24 October 2018.[42] The vehicle remained on the tow truck in the yard. Constable Hughes placed evidence stickers on the doors of the vehicle to prevent any tampering with the doors.[43]
[42] ts 102.
[43] ts 102.
Senior Constable Bambling
147On the morning of 24 October 2018, Detective Senior Constable Bambling, with other police officers, attended at the Geraldton Towing Services yard and searched the vehicle. The search was recorded on video and was tendered.[44] The search was conducted between 9.06 am and 11.49 am. The search video, after parts had been redacted by agreement between counsel, is approximately 15 minutes in duration.[45]
[44] Exhibit 2.
[45] ts 109.
148The search video shows the stickers placed on the vehicle by Senior Constable Hughes had not been broken and that therefore the car door had not been opened.[46] At about 4:00 the video shows a centre ceiling compartment, containing the interior light and sunglasses holder, dangling from the ceiling of the vehicle. The vision then shows the internal cavity in the roof in which a package is seen. There is no recording of the compartment being removed from the ceiling. No evidence was lead in chief as to what was involved in removing the compartment from the ceiling. However, in cross-examination Senior Constable Bambling said that before he took the compartment out of the roof cavity it was loose. It was just a matter of 'popping it off, by using his fingers'.[47]
[46] ts 110.
[47] ts 145.
149Otherwise, there is no evidence as to what was involved in removing the compartment, or of the appearance of the interior roof and the compartment before it was removed.
150At about 4:30 Senior Constable Bambling, who is standing outside the vehicle, gets into the vehicle. The sound to the video is muted. At about 4:40 Senior Constable Bambling appears to be demonstrating how he removed the compartment from the ceiling while he is talking. However, he did not give evidence to explain what he was demonstrating. After the package had been removed and the compartment detached from the electrical cord, photographs were taken of the exposed roof cavity in which the package was hidden.[48] The recording then shows him removing the package from the cavity. The package is placed into a security movement envelope held by police officers standing outside the vehicle. The officer in charge of the search warrant, Detective Senior Constable O'Brien, later gets into the vehicle from the driver's side and shines a torch into the cavity while Senior Constable Bambling reaches into the ceiling cavity apparently searching for any other packages in the cavity. Later, at about 7:20, the compartment is disconnected from the electrical cords and placed into a brown paper bag.
[48] Exhibit 8; ts 124 - ts 125.
151The package was hidden on the passenger side of the compartment cavity.
152Two packets of new clip seal bags, a GPS and some black tubing were seized during the search and placed on the roof of the vehicle and visually recorded.[49]
[49] ts 111 - ts 112; Exhibit 2, at about 9:00 in the search video.
153I find that from the vision of the package in the cavity and how Senior Constable Bambling removed it, the package was tightly wedged into the cavity.
154Later that day, Constable Bambling conducted an electronic evidence recording of the seized package. The recording was not tendered into evidence. There is no issue about the contents of the package. Constable Bambling opened the package and emptied the contents into two separate containers, which he weighed and then sealed into new security movement envelopes.[50] The containers were sent for analysis. One container contained 517 grams of methylamphetamine at a purity of 75%[51] and the other container contained 480 grams of methylamphetamine at purity of 77%.[52]
[50] ts 116.
[51] Exhibit 5.1, certificate of approved analysis.
[52] ts 118 - ts 119; Exhibit 5.2, certificate of approved analysis.
155On the afternoon of 24 October 2018 Detective First Class Constable Zonik and other police officers executed a MDA search warrant at Ms Booth's house at a suburb of Geraldton. The execution of the search warrant was recorded and a DVD of the recording was tendered into evidence.[53] During the search First Class Constable Zonik interviewed Ms Booth. I have been provided with redacted transcript of the interview with Ms Booth during the execution of the search warrant to assist me to follow what was said by First Class Constable Zonik and Ms Booth. I am satisfied the transcript generally accurately transcribes what was said.
[53] Exhibit 6.
156When she was asked whether she had consumed any drugs or alcohol in the last 24 hours, Ms Booth admitted she had used methylamphetamine at about 2 o'clock that afternoon, the recording of the execution of the search warrant commencing at about 4.28 pm.[54] When she was asked how she was feeling Ms Booth said she was shocked but was fine physically.[55]
[54] Transcript of search warrant recording, pages 4 - 5.
[55] Transcript of search warrant recording, page 5.
157At the beginning of the search warrant recording Ms Booth is visibly upset and tearful. When she was informed a significant quantity, and later approximately 1 kg, of methylamphetamine, was found in her vehicle, Ms Booth became quite distraught and appeared to experience breathing difficulties.[56] When she asked whether she wanted to contact a lawyer she became quite upset.[57]
[56] Transcript of search warrant recording, pages 3 - 4.
[57] Transcript of search warrant recording, page 7.
158She declared she had $75 on her dresser.[58] The money was later shown in the video recording.[59] Ms Booth said that she received Centrelink payments and also did relieving and function work.[60]
[58] Transcript of search warrant recording, page 6.
[59] Transcript of search warrant recording, page 11.
[60] Transcript of search warrant recording, page 11.
159When asked whether she wished to declare any drug items Ms Booth said that she had a pipe in her purse which was behind her pillows on her bed. The pipe was located and seized by police.[61] She admitted she used the pipe to smoke methylamphetamine earlier that afternoon.[62] She said that she had had the pipe for about a month. She said nobody else slept in the house apart from her children.[63]
[61] Transcript of search warrant recording, page 16.
[62] Transcript of search warrant recording, page 17.
[63] Transcript of search warrant recording, page 17.
160During the search of the house a black leather wallet was seized from Ms Booth's bedroom which Ms Booth admitted was Mr McKinnon's. She said she took the wallet from the car after police gave her and Mr McKinnon permission to take their valuables from the car when it was impounded.[64]
[64] Transcript of search warrant recording, pages 20 - 21.
161Police also seized Ms Booth's iPhone they found on her in her pocket.[65]
[65] Transcript of search warrant recording, page 25.
162After the search of Ms Booth's house was concluded police took Ms Booth to the Geraldton Police Station where she participated in a recorded record of interview. Again, I have been provided with the transcript of the interview as an aid and I am satisfied that it generally accurately records what was said during the interview.
163At the commencement of the interview when Ms Booth was being asked preliminary questions by the police she appears very upset. There are long pauses between her answers and it was often difficult to hear what Ms Booth said. The interviewing officers frequently had to prompt Ms Booth to have her answer their questions. Eventually Ms Booth confirmed she was able to proceed with the interview and that she understood the police caution.[66]
[66] Exhibit 7, transcript of police record of interview 24 October 2018, page 6.
164Ms Booth admitted she owned the Camry which she had owned for about a year. The vehicle cost her $9,999 which was paid by her father.[67] Ms Booth said she had lived at the address for nine years. She was renting.[68] Her vehicle was kept at her house, mainly in the driveway.[69] She admitted she was the person who drove the vehicle.[70]
[67] Transcript of police record of interview 24 October 2018, page 9.
[68] Transcript of police record of interview 24 October 2018, pages 9 - 10.
[69] Transcript of police record of interview 24 October 2018, page 10.
[70] Transcript of police record of interview 24 October 2018, page 10.
165When Ms Booth was asked whether she was a passenger in the Camry when it was stopped by police the previous night she became very upset and was crying and appeared unable to answer the police questions. Eventually she admitted she was in the car.[71]
[71] Transcript of police record of interview 24 October 2018, page 12.
166Ms Booth admitted she had owned the Camry since 23 March 2017.[72]
[72] Transcript of police record of interview 24 October 2018, page 12.
167In cross-examination Senior Constable Bambling confirmed that when police searched Ms Booth's house a box of jewellery was seized which police later returned to the owner, Ashley Watts.[73]
[73] ts 158.
168Senior Constable Bambling was also asked about a telephone call made from Ms Booth's mobile telephone, number XXXX XXX 867, from Walkaway, to the telephone number 08 9409 3039.[74] The call was made at 10.53 am. Walkaway is about 30 km south-east of Geraldton.[75] Senior Constable Bambling did not know whether the phone number ending 039 was the number of Ocean and Reef Aquatic in Wangara.[76]
[74] Exhibit 12.2, page 3.
[75] ts 158.
[76] ts 158.
169Senior Constable Bambling confirmed that to gain entry to the house at which Mr McKinnon was living, the police had to jump over a fence because the gate was nailed shut.[77] Three mobile phones and a SIM card were seized from Mr McKinnon.[78]
[77] ts 144.
[78] ts 144.
170Senior Constable Bambling confirmed that forensic swabs were taken of the compartment and the Cryovac bag in which the methylamphetamine was contained. The items were also tested for fingerprints.[79]
[79] ts 145 - ts 146.
Julie Ann Murakami, forensic scientist with PathWest
171A forensic scientist employed with the PathWest forensic biology laboratory, Ms Julie Ann Murakami, confirmed that PathWest received DNA reference samples from the accused and Mr McKinnon together with swabs said to be taken from the ceiling cavity above the front passenger seat of a motor vehicle.[80] A mixed DNA profile consistent with having come from two individuals was recovered from the swab which, when compared to the reference DNA profiles of both Mr McKinnon and Ms Booth, showed the DNA profile was greater than 100 billion times more likely to occur if Mr McKinnon and an unknown individual were contributors to the mixed DNA profile rather than two unknown individuals from the Australian population. Ms Booth was excluded as a contributor to the mixed DNA profile.
[80] ts 165 - ts 167.
172Various swabs taken from the surfaces of the vacuum sealed bag in which the methylamphetamine was contained either resulted in a DNA profile not being recovered or a mixed DNA profile being recovered but which was unable to be interpreted because of the complexity of the mixed profile.
173Ms Murakami also explained that if someone touches an object they do not necessarily leave DNA on that object. A number of factors can influence the likelihood of whether DNA in the form of skin cells is left on an item, including the surface of the item. DNA is more likely to be transferred and retained on a rough abrasive surface as opposed to a smooth glossy surface. Some individuals naturally shed more DNA then others. How often a person washes their hands and whether they have a skin condition such as eczema or psoriasis, can increase the amount of DNA available for transfer. Secretions from sweat in skin cells increases the likelihood of DNA being transferred to an item if it is touched. The duration over which an item is touched influences whether DNA is transferred to the item. The greater the force and duration of the touching the more likely DNA will be transferred than if the item was touched briefly and gently. Exposure to extreme heat, UV or moisture over a prolonged period of time can break down or physically remove DNA, as can washing or cleaning the item.[81]
[81] ts 169.
174In cross-examination Ms Murakami said that in the mixed DNA profile recovered from one swab of the ceiling cavity, male DNA was detected but she could not determine whether there was also female DNA present in the sample.[82]
[82] ts 171.
Detective Sergeant Marc O'Neill
175Detective Sergeant Marc O'Neill is currently attached to the Geraldton Detectives Office. He has been involved in nine police operations involving methylamphetamine.[83] He has dealt with various quantities of methylamphetamine from small amounts of a point to half kilograms of methylamphetamine.[84]
[83] ts 172.
[84] ts 173.
176Detective Sergeant O'Neill explained that the street level methylamphetamine is generally sold by the point in small clip seal bags. It can also be sold in other amounts from half a gram up to 28 grams or an ounce.[85] A point is sold for approximately $100 at the current time.[86] That price has not changed over the course of the years. In October 2018 in Geraldton the purity of the methylamphetamine ranged from approximately 65% to 85%.[87]
[85] ts 173.
[86] ts 174.
[87] ts 174.
177On the basis of $100 per point the value of the methylamphetamine seized by police was, he estimated, approximately $1 million.[88]
[88] ts 174.
178In cross-examination Detective Sergeant O'Neill confirmed that at the lower level of drug dealing it is common for police to find written records of monies owing to drug dealers. It is also common to find scales, multiple mobile phones and clip seal bags.[89]
[89] ts 175.
179The State also tendered a recording of a telephone conversation between Ms Booth and a Leslie Johnston on 26 November 2018 while Ms Booth was remanded in custody at the Melaleuca Remand Facility.[90] I have again been provided with a transcript of the telephone conversation as an aid and I am satisfied that it accurately transcribes the conversation. The recorded call has been redacted by agreement between counsel to remove irrelevant parts of the conversation. Specifically the State relies upon the following parts of that telephone conversation:[91]
LJUh, like the best thing, if you could turn back time, you would have done anything different?
JBUm, uh fuckin; if I was told a lot more and if I was warned a lot then fuck oath I would be.
LJThat's fucked up, ay?
JBYeah, well, just wait until I get out.
…
JBWell, I didn't even know how much it was, so, ah, fuckin' wait until I get out and see ya, and I'll talk more about it, yeah.
[90] Exhibit 1.
[91] Exhibit 1, recorded prison telephone call transcript, page 3.
180Ms Booth said that Mr Johnston was her former husband's best friend.[92]
[92] ts 222.
181The State also tendered a series of text message exchanged between her and Mr McKinnon from 19 July 2018 to 24 October 2018.[93] The text messages on 23 October 2018 from 42 to 6 were exchanged after the police traffic stop. As it is necessary to add eight hours to the recorded time of the text messages, those messages were exchanged on 24 October 2018 and not 23 October 2018.
[93] Exhibit 11.1.2.
182The State also tendered into evidence call charge records for Ms Booth's mobile telephone, number ending in 867, which is evidence of when calls were made to or received and when text messages were sent or received with Ms Booth's telephone,[94] and call charge records for Mr McKinnon's mobile telephone number XXXX XXX 265.[95]
[94] Exhibits 12.1 and 12.2.
[95] Exhibits 13.1 and 13.2.
Ms Booth
183Ms Booth elected to give evidence. She said she did not know the drugs were in her car.[96] The only drugs in the car of which she was aware were the drugs Mr McKinnon was smoking when they were driving to Perth and back. He had drugs in his bum bag in the front seat of the car and used his pipes to smoke the drugs. The drugs were contained in small clip seal bags, similar to the small bags found by police which were seen in the search video of the vehicle.[97]
[96] ts 182.
[97] ts 223 - ts 224.
184Ms Booth said the jewellery found at her place by police belonged to a friend of hers, Ashley Watts.[98]
[98] ts 185.
185As at October 2018 Ms Booth had been living in the house for nine years.[99]
[99] ts 185.
186Ms Booth knew Mr McKinnon did not have a driver's licence,[100] she allowed him to drive her car because she had fallen asleep while she was driving causing her to hit something following which she was no longer confident to drive and therefore let Mr McKinnon drive.[101]
[100] ts 185.
[101] ts 185.
187She had known Mr McKinnon for about eight months prior to October 2018.[102] After she first met Mr McKinnon in March 2018 she was in regular contact with him. She normally saw him at his home.[103] She saw Mr McKinnon using amphetamine.[104]
[102] ts 186.
[103] ts 188.
[104] ts 189.
188She said as at October 2018, she used methylamphetamine every now and again but was not addicted to it. She obtained the methylamphetamine either from her best friend, KR,[105] or from Mr McKinnon.[106] She estimated she bought methylamphetamine from Mr McKinnon on a couple of occasions.[107] She smoked methylamphetamine.[108] KR was living with Mr McKinnon at the time,[109] which was a five minute walk or two minute drive away.[110] On occasions Ms R picked up her children from school because of Ms Booth's work commitments and would also babysit her children.[111]
[105] I have anonymised the name of this person as she was not a witness at trial.
[106] ts 186.
[107] ts 186.
[108] ts 186.
[109] ts 187.
[110] ts 187.
[111] ts 187.
189Mr McKinnon and Ms R were not in a relationship, they were only sharing a house. Mr McKinnon was in a relationship with her friend, Ashley Watts, who in October 2018 was in prison.[112]
[112] ts 187.
190Ms Booth confirmed the wallet found by police in her bedroom was Mr McKinnon's. She was in possession of his wallet because she grabbed all of their personal possessions out of the car when police gave them permission to do so after the car had been impounded. She put everything into her handbag.[113] She had forgotten to return the wallet to Mr McKinnon because he was dropped off by police first.[114]
[113] ts 188.
[114] ts 188.
191Ms Booth explained that the reason she drove to Perth with Mr McKinnon was that he asked her to take him to Perth so that he could get some tools he had ordered from Gumtree and because he also wanted to see a friend.[115] She did not know where his friend lived or who he was.[116]
[115] ts 189.
[116] ts 192 - ts 193.
192Initially she asked him if he could leave it until the following week when she was due to be paid and when she was going to buy some fish for her aquariums which would have been out of quarantine.[117] She had an interest in fish and owned a pair of sea horses.[118] The name of the aquarium was Ocean and Reef Aquatics in Wangara.[119]
[117] ts 189.
[118] ts 190.
[119] ts 190.
193Ms Booth said that she messaged Ocean and Reef Aquatics inquiring whether the fish she wanted to purchase were still available and had asked them to organise the fish so she could drive to Perth to collect them the following week. She was advised that would not be a problem.[120]
[120] ts 190.
194She telephoned the business on 23 October 2018 at about 10.53 am just before driving into Dongara on the way to Perth.[121]
[121] ts 190 - ts 191.
195She said, by reference to the call charge records for her phone[122] the telephone call made from Walkaway for a duration of 106 seconds to the number 08 9409 3039 was the call she made.[123]
[122] Exhibit 12.2, page 3.
[123] ts 191, ts 192.
196The sea horses and the fish were going to cost her $210 or $220.[124] However, she did not have the money at the time to buy the fish.[125]
[124] ts 192.
[125] ts 192.
197Ms Booth said that Mr McKinnon agreed to pay for the fuel for the trip to Perth and back and would also pay for her fish which she would reimburse to him the following week when she was paid.[126]
[126] ts 192.
198Her children were at school on the day they drove to Geraldton. She drove to Perth, leaving Geraldton just after 10.00 am. It was her intention to return to Geraldton just after dinnertime that night to be home for her children.[127]
[127] ts 193.
199On the morning of 23 October 2018 she picked up Mr McKinnon from his house and dropped him off at a caravan park behind the Puma fuel station in Geraldton on the North West Coastal Highway. Mr McKinnon wanted to see a friend at the caravan park and told her to fill up her car with fuel and he would meet her at the service station.[128] Originally they intended to leave Geraldton at about 7.00 am but were delayed for various reasons including Ms Booth deciding to return to her house to change into cooler clothes because of increasing temperature.[129]
[128] ts 193.
[129] ts 194.
200They drove through Dongara and then along the Indian Ocean Drive.[130] They eventually ended up driving to near Mandurah which is where Mr McKinnon told her his friend lived. Mr McKinnon directed her where to drive to. They drove to a house in Golden Bay.[131]
[130] ts 194.
[131] ts 194 - ts 195.
201She pulled up in the driveway of the house. A male person came and spoke to them. She remained outside the garage while he and Mr McKinnon spoke with each other inside the garage. Ms Booth then walked back to the driveway entrance, sat on the verge near the driveway, rang her friend K, and smoked a few cigarettes.[132] The time was about 4.00 pm.[133]
[132] ts 195.
[133] ts 196.
202In cross-examination Ms Booth said that when she was sitting down talking on the phone she had her back to her car. She was about 5, 10 or 15 m away from the car.[134] She left the keys in the ignition.[135] She was wearing headphones when she was talking on the phone, which were inserted in her ears.[136]
[134] ts 226.
[135] ts 226.
[136] ts 226.
203In examination-in-chief she said that as she was sitting on the verge with her back to the car and talking on the phone, Mr McKinnon reversed her car down the driveway and told her 'get in the car, we're going'. She got into the car while she was still talking on the phone to her friend, K. They then pulled up at a school near the house. Mr McKinnon got out of the car and told her to drive.[137]
285I am satisfied the text messages to which I have referred show Mr McKinnon was sourcing drugs, which Ms Booth knew, and Mr McKinnon was supplying drugs to Ms Booth. That is confirmed by Ms Booth's text message 93 to Mr McKinnon at 7.15 pm (19:15) saying she needed a point and that she would be there in five minutes.
286From her text message 88 sent at 10.30 pm on 22 October 2018, I am satisfied Ms Booth was requesting to come to Mr McKinnon's house. By her words 'DW [don't worry] it's a yes … but need to speak about something' I am satisfied Ms Booth had agreed to do something but needed to speak to Mr McKinnon about what she had agreed to do. She then says her 'rego' is due and that she had got a second letter. In my view that text message is consistent with Ms Booth having agreed to drive Mr McKinnon to Perth but wanting to speak to him about the arrangements and pointing out to him that there was a concern to do with her car because her registration was overdue. It is consistent with Ms Booth being concerned about the risk of driving an unregistered vehicle, a similar concern, perhaps, to Mr McKinnon driving while his driver's licence was suspended. Her explanation in cross-examination that Mr McKinnon had paid for her car registration just prior to leaving to drive to Golden Bay is inconsistent with her registration still being due.
287It also indicates that her financial circumstances were poor.
288The next two messages, 87 and 86, were sent by Ms Booth at 1.36 am and 1.39 am in the morning of 23 October 2018, the day that they drove to Golden Bay. The content of the messages and the time at which they were sent suggests a degree of urgency and anxiety being expressed by Ms Booth which in my view is likely to be related to a trip to Perth they had planned or discussed. It is unlikely that the text messages sent at such a time of night would have been sent to Mr McKinnon if Ms Booth believed the trip was innocent. Read by themselves, the text messages perhaps do not mean much but when considered in the context of the earlier and the later messages, those messages are not consistent with an innocent explanation.
289Ms Booth said she sourced drugs from both her friend, KR, and from Mr McKinnon. Ms R and Mr McKinnon were sharing a house. Ms R, Mr McKinnon and Ms Booth were all drug users. In my view it is likely Ms R knew the purpose of Mr McKinnon travelling to Golden Bay was to collect the package of methylamphetamine. From the text message 37 sent to Mr McKinnon which refers to K, I am satisfied that in the early hours of the morning of 24 October 2018 Ms Booth and Ms R met each other at Ms Booth's house. Ms Booth said that Ms R came to her house questioning her about the police traffic stop but she did not answer Ms R's questions because she was upset.[221]
[221] [240] above.
290I reject Ms Booth's evidence that she did not answer Ms R's questions. In my view the most likely explanation is that Ms R knew that Mr McKinnon and Ms Booth were travelling to Golden Bay to collect the methylamphetamine and that Ms R, who was a drug user, was in some way going to benefit from the methylamphetamine. I accept Ms R was upset with Ms Booth because she allowed Mr McKinnon to drive her car when his driver's licence was suspended which led to the car being impounded by police.
291I do not accept it is a reasonable or plausible explanation that Ms R visited Ms Booth at her house in the early hours of the morning simply out of a concern that Ms Booth's car had been impounded or for the consequences to Mr McKinnon of driving without a licence.
Prison telephone call
292Further, I do not accept Ms Booth's explanation about what she was expressing and referring to in the prison telephone call of 26 November 2018. It was an unconvincing explanation. I am satisfied that in that telephone conversation she acknowledged she was aware of the methylamphetamine hidden in the roof cavity but had not been told and was not aware how much methylamphetamine was in the package.
293There is no evidence Ms Booth was dealing in methylamphetamine. On her own admissions and her evidence, which in this regard I accept, Ms Booth was a user of methylamphetamine in small quantities such as a point (0.1 g). She was sold or supplied methylamphetamine by Mr McKinnon and her friend Ms R who shared a house together. Each of Mr McKinnon and Ms R were also users of methylamphetamine. Ms Booth's financial circumstances were poor. I am satisfied she was unable to afford to purchase or obtain greater quantities of methylamphetamine. She was only able to afford to buy a point of methylamphetamine for $50 to $100. She depended on Mr McKinnon and Ms R to sell methylamphetamine to her on tick if she was not able to afford to pay for the methylamphetamine.
294I accept there is no evidence of any drug indicia associated with Ms Booth which is often associated with drug dealers such as cash, digital scales, and empty clip seal bags. Although two packets of empty clip seals bags were found by police in Ms Booth's car, in my view those bags are more likely to be associated with Mr McKinnon. I am therefore satisfied Ms Booth was not actively selling or supplying methylamphetamine into the wider community. Rather, she was being supplied with small quantities of methylamphetamine by Mr McKinnon and Ms R. She was not involved in handling large quantities of methylamphetamine. In those circumstances, her explanation in the recorded prison telephone call is consistent with her being aware she was transporting methylamphetamine in her car for Mr McKinnon, but was not aware there was approximately 1 kg of methylamphetamine.
When were the drugs hidden in the roof cavity?
295On Ms Booth's own evidence she and Mr McKinnon were essentially together from the time they left Geraldton at about 10.00 am on 23 October 2018 until they were stopped by police. She drove all the way to Golden Bay and drove most of the way on the journey back to Geraldton until she fell asleep and Mr McKinnon took over the driving. She said they were at the Golden Bay house for about 15 to 20 minutes. After introductions she left Mr McKinnon and his friend to themselves and walked to the end of the driveway and sat on the curb with her back to Mr McKinnon and his friend while she talked on the phone with her friend, Ms R, while wearing headphones. She was 5 to 15 metres away from her car. The next thing she knew was Mr McKinnon reversing her car and telling her to get into the car, following which they drove to a nearby school and Ms Booth took over the driving. She never saw Mr McKinnon with a package of drugs. The only drugs she was aware of were the drugs he had in his bum bag for his personal use.
296On Ms Booth's evidence, if it was accepted, the only opportunity for the package of methylamphetamine to be hidden in the roof cavity without her knowledge was in the brief period of time they were at the Golden Bay property when she had her back turned to her car and was talking on her phone.
297The fact that Mr McKinnon's DNA was in the ceiling cavity in which the package containing the methylamphetamine was hidden strongly supports an inference that he placed the package in the roof cavity. In my view it is the only reasonable inference available.
298I am satisfied beyond reasonable doubt that Mr McKinnon was supplied with the package of methylamphetamine by someone at the Golden Bay house and hid the package of methylamphetamine in the roof cavity of Ms Booth's car where it was later found by police when they searched the car on 24 October 2018. Except for Ms Booth, there was no opportunity or reason for anyone else to place the package in the roof cavity.
299However, I do not need to rely upon Ms Booth's evidence as to how long they were at the Golden Bay property and as to the opportunity for hiding the package of methylamphetamine in the car's roof cavity. The call charge records for Ms Booth's mobile phone number ending 867,[222] and Mr McKinnon's mobile phone number ending 265,[223] both confirm their journey south terminated at Golden Bay and that they then started driving back towards Geraldton. The call charge records for Ms Booth's phone establish she was at Secret Harbour south of Perth at 16:11 (4.11 pm) and then at Golden Bay, which is further south, at 16:12. The call charge records indicate that she was still at Golden Bay at 16:45, although the reliability of that evidence is questionable as the next entry at 16:46 shows that she was in Applecross. She could not have been in Golden Bay at 16:45 if she was in Applecross a minute later at 16:46.
[222] Exhibit 12.
[223] Exhibit 13.
300According to Mr McKinnon's call charge records, he was at Golden Bay from 15:32 to 16:41. Again, the reliability of that evidence is questionable as Mr McKinnon's call charge records have him using his phone at 16:08 from Baldivis South, after having used his phone at Golden Bay at 15:32. According to Ms Booth's call charge records, she used her phone from Baldivis South at 16:04. Each of Ms Booth's and Mr McKinnon's call charge records indicate they used their phones at 16:31 at Golden Bay. The last time Mr McKinnon used his phone from Golden Bay was at 16:41. The last time Ms McKinnon used her phone at Golden Bay was at 16:45.
301In my view, it is unlikely Mr McKinnon was in Golden Bay at 15:32, which is the first entry for when his phone was used at Golden Bay as the preceding entry, six seconds earlier, has him using his phone from Murdoch North which is north of Baldivis, which is where he used his phone from at 16:08, approximately 36 minutes after, according to his call charge records, he used his phone from Golden Bay. It would not have taken long to drive from Baldivis South to Golden Bay. It is likely Ms Booth and Mr McKinnon would have arrived at Golden Bay before 16:31, which is the first recorded usage of Mr McKinnon's phone from Golden Bay. I think it is likely they arrived at Golden Bay at some time between 16:11, when according to Ms Booth's call charge records she used her phone from Secret Harbour and 16:31 when the call charge records for each of them confirm they were using their phones from Golden Bay. Mr McKinnon's call charge records last records him using his phone from Golden Bay at 16:41 and Ms Booth's at 16:45. As I have earlier noted, the reliability of the records is to some extent questionable given the next entry in Ms Booth's call charge records has her using her phone from Applecross a minute later. It cannot be correct that if she was near Golden Bay at 16:45, she was near Applecross at 16:46.
302On the entries in Ms Booth's call charge records they were at Golden Bay for about 33 minutes. Based on Mr McKinnon's call charge records, and ignoring the entry that he used his phone at 15:32 from Golden Bay, they were at Golden Bay for approximately 10 minutes.
303Therefore, Ms Booth's evidence that they were at Golden Bay for 15 to 20 minutes is consistent with the call charge records.
304I am satisfied Ms Booth and Mr McKinnon were only at the Golden Bay property for a relatively short period of time of between approximately 15 to 30 minutes.
305According to Ms Booth's call charge records, she used her phone for approximately 19 ½ minutes (1,177 seconds) from Golden Bay for data usage. During the time she was using her phone in the Golden Bay area, Ms Booth made no voice calls. The call charge records only record data usage from the Golden Bay area. Although no evidence was given as to what the entry 'Data' means, I understand it to mean the phone was being used to access the internet. Apart from that usage of approximately 19 ½ minutes to which I have referred, the longest time over which Ms Booth accessed the internet in the Golden Bay area was approximately 5 minutes (306 seconds). The records show Ms Booth continuously used her phone for data usage. Again, although no evidence was given, I understand that telephone calls can be made via the internet.
306Except for her evidence that she rang her friend, Ms R, and had her headphones in, Ms Booth did not give any evidence, nor was she asked any questions, about how she rang and spoke with Ms R. Although the call charge records do not indicate any voice calls were made, I am not, in the absence of cross-examination, prepared to make any adverse finding against Ms Booth that she did not ring and speak with her friend, Ms R, over an extended period of time while they were at Golden Bay. Except for Ms Booth's voice call to the phone number ending 039 at 10.53 am on 23 October from the Walkaway area south of Geraldton, the call charge records were not addressed in closing submissions by either counsel. I find that although the call charge records for both Ms Booth's and Mr McKinnon's mobile telephones are unreliable as to the precise location of Ms Booth and Mr McKinnon when they used their phones, I am satisfied the records are consistent with Ms Booth's evidence that:
•she and Mr McKinnon travelled from Geraldton to Golden Bay;
•they arrived in Golden Bay between 16:12 and 16:31;
•they left Golden Bay at approximately 16:41;
•they were present at the Golden Bay property for approximately 15 to 20 minutes;
•during the time they were in the Golden Bay area Ms Booth extensively used her mobile phone to access the internet;
•Ms Booth likely telephoned her friend, KR, via the internet.
307However, I do not accept, and reject, Ms Booth's evidence that she was sitting with her back to her car which was 5 to 15 metres away and was so distracted with using her phone that she neither saw nor heard Mr McKinnon get into her car.
308I do not accept her evidence that she did not know Mr McKinnon had removed the centre console in the ceiling of her car and hidden a package containing nearly 1 kg of methylamphetamine in the roof cavity before replacing the compartment and that at Mr McKinnon's direction she got into the car and he drove off before they stopped a short distance away and she then resumed the driving of her car. In my view, her evidence is implausible. It is implausible that if Ms Booth did not know Mr McKinnon was intending to take delivery of the methylamphetamine he would have risked detection by Ms Booth who was only sitting a short distance away when hiding the drugs in the roof cavity. It is implausible he would have risked causing damage to the roof compartment which would have been observed by Ms Booth. It is implausible that he would have suddenly decided to hide approximately 1 kg of methylamphetamine in a roof cavity of Ms Booth's car unless she knew what was happening and gave permission to hide the drugs. It is implausible that Ms Booth, who had agreed to drive Mr McKinnon to Golden Bay because his driver's licence was suspended, would not question him why there was the urgency to leave and why he was driving the car when they left the Golden Bay property, if she did not know Mr McKinnon had taken delivery of the drugs and hidden them somewhere in her car.
309Although I do not accept Ms Booth's evidence that she call she made at 10.53 am on 23 October 2018 from Walkaway to the number ending 039 was the fish aquarium business and was about her purchasing fish from them, whether or not she did make the call to the business does not impact upon my findings. The call was made after they had commenced the journey to Golden Bay. If Ms Booth did make the call to the business to collect fish, it was an afterthought or a tack-on to the true purpose of the trip. It was not a reason for the trip.
310From the following facts and circumstances I am satisfied the only rational and reasonable inference is that Ms Booth:
•agreed to drive Mr McKinnon to Perth knowing he was intending to take delivery of a significant quantity of methylamphetamine;
•gave permission to Mr McKinnon to hide the package of methylamphetamine in the roof cavity of her car;
•drove back towards Geraldton knowing the drugs were hidden in her car;
•intended to supply the drugs to Mr McKinnon upon their return to Geraldton by permitting him to retrieve the drugs from her car.
1.Ms Booth was a user of and had an association with methylamphetamine.
2.Mr McKinnon was also a user of methylamphetamine.
3.Ms Booth obtained methylamphetamine from Mr McKinnon.
4.On 22 October 2018, the day before the trip to Perth, Ms Booth sourced or was seeking to source methylamphetamine from Mr McKinnon.
5.Mr McKinnon was only a casual friend of Ms Booth and not a good friend. She had known him for about eight months. She was friendly with his housemate, KR; who was also a user of methylamphetamine.
6.She knew Mr McKinnon's driver's licence was suspended.
7.Ms Booth owned the car and was its only driver.
8.At all material times, specifically when she drove to and parked at the Golden Bay house and drove back towards Geraldton, she was in control of the car.
9.She agreed to drive Mr McKinnon to and from Perth in one day.
10.Ms Booth would have driven approximately 1,000 km in a little over 13 hours had her vehicle not been stopped and impounded by police, and had she not fallen asleep.
11.Ms Booth was experiencing poor financial circumstances and was largely dependent on Centrelink benefits.
12.Ms Booth had the care of her dependent children who were at school.
13.There was no legitimate benefit to Ms Booth to drive Mr McKinnon, who was not a close friend, such a long distance in one day.
14.She was unable to afford the petrol to drive to and from Perth in one day. Mr McKinnon agreed to pay for the petrol, which was of no benefit to Ms Booth.
15.There was no plausible legitimate reason for driving Mr McKinnon to and from Perth. Although she said she was going to use the trip to collect some fish from a business in Wangara which she had intended to collect the following week, she did not, on her evidence, contact the business until she was driving to Perth. It was therefore an afterthought and not the reason for the trip to Perth.
16.It is not plausible that she would have driven Mr McKinnon to and from Perth in one day simply for him to pick up some tools he had bought on Gumtree and to see a friend.
17.They only saw Mr McKinnon's friend for about 15 minutes before starting to drive back to Geraldton.
18.Although Ms Booth had driven all the way to Golden Bay, and the purpose of her driving was because she held a valid driver's licence and Mr McKinnon did not, and she was also the owner of the car, Mr McKinnon reversed Ms Booth's car with some urgency out of the driveway before then driving to a school nearby and allowing Ms Booth to then drive.
19.It is implausible that in those circumstances that if Ms Booth had no knowledge of the drugs, she would not have questioned Mr McKinnon if she believed the trip was for innocent purposes.
20.She drove well beyond Perth to Golden Bay for Mr McKinnon to see the friend.
21.It is implausible she would have agreed to drive Mr McKinnon to and from Golden Bay simply for him to meet a friend for 15 minutes for innocent purposes.
22.From Mr McKinnon's DNA found in the ceiling cavity in which the package containing the methylamphetamine was hidden, the only reasonable inference is that he hid the package in the cavity.
23.Further, the only reasonable inference is that he hid the package in the cavity during the period of time they were at the Golden Bay property.
24.It is implausible Mr McKinnon would have, in the short period of 15 to 20 minutes, decided to pull out the centre console from the ceiling and hide the drugs in the ceiling cavity of Ms Booth's car without her knowledge and without her giving him permission to hide the drugs.
25.It is implausible he would have suddenly decided in the course of a short period of time at the Golden Bay house while Ms Booth was sitting in close proximity to the car to decide to hide the drugs in the ceiling cavity given the risk Ms Booth would see him hiding the drugs or notice the centre console being pulled from the ceiling.
26.It is implausible Mr McKinnon would have risked being unable to replace the centre console or replace it without causing damage to the ceiling which would have been observed by Ms Booth when driving back to Geraldton.
27.It is implausible Mr McKinnon would have hidden the drugs in close proximity to Ms Booth and in her car over which he had no control unless she had knowledge of the drugs and he trusted her with that knowledge and knew he could retrieve the drugs.
28.The drugs were valuable. The approximately 1 kg of methylamphetamine was worth approximately $1 million if sold in point quantities.
29.Mr McKinnon would not have risked hiding such a valuable quantity of drugs in Ms Booth's car unless he trusted Ms Booth to drive him back to Geraldton with the drugs and allow him to recover the drugs from the roof cavity.
30.Further, from the text messages exchanged with Mr McKinnon after they had returned to Geraldton, it can reasonably be inferred Ms Booth was apologising to Mr McKinnon for falling asleep and causing him to drive her car when she knew his driver's licence was suspended, which she believed was the reason for the car being impounded by police, which is consistent with her being concerned because she was aware of the presence of the drugs in the car.
31.It is implausible that given the time of the night when the text messages were exchanged, Ms Booth would have been so concerned about breaking Mr McKinnon's sunglasses that she needed to apologise or be so concerned for the consequences to him for driving without a driver's licence. It is implausible she would have been apologising to him at all given, on her evidence, she had driven him to and from Golden Bay in one day without any benefit to herself.
32.The only rational inference is that Ms Booth was apologising to Mr McKinnon because it was her fault the car had been impounded with the methylamphetamine hidden in it because she had fallen asleep, causing him to drive which led to the car being impounded by police.
33.It is implausible she would have offered in text message 40 to pay for Mr McKinnon to catch a taxi to her house if all that she had done was break his sunglasses and because she was concerned about what would happen to him for driving without a driver's licence.
34.The only reasonable inference is that Ms Booth was apologising to Mr McKinnon because it was her fault the car had been impounded with the methylamphetamine hidden in it and her offer in text message 40 'I'll help fix it for you' was an offer to attempt to get her car back from the towing yard, which they later decided to do in text message 6.
35.Ms Booth's explanation that she had agreed to drive Mr McKinnon to Perth, in part because he paid her car registration which was overdue, should not be accepted because by her text message 88 sent the night before she drove to Golden Bay she said that her registration was due from which it can be inferred Mr McKinnon had not paid her registration.
36.Ms Booth's text message 88 to Mr McKinnon was sent at 10.03 pm. Ms Booth would not have wanted to meet with Mr McKinnon at that time of the night and wanted to speak to him about something unless it was important or urgent. That she was not prepared to identify the subject in the text message is consistent with agreeing to drive him to Perth the next day for illicit reasons.
37.A reasonable inference is that Ms Booth would not have agreed to drive Mr McKinnon to and from Geraldton in one day unless she stood to benefit from driving him.
38.A reasonable inference is that the benefit to Ms Booth was either being supplied with some of the methylamphetamine or receiving payment.
39.From the telephone conversation on 26 November 2018 when Ms Booth was in prison, a reasonable inference is that she was aware of the drugs hidden in her car but not such a large quantity of nearly 1 kg.
311I am satisfied beyond reasonable doubt Ms Booth had knowledge of the methylamphetamine hidden in her car.
Control
312The facts of this case are similar to those in Davis v The Queen.[224] In that case the offender was the owner and driver of a car which she knew was carrying cannabis. Her de facto husband was a passenger in the car. The offender told police that she had driven her husband to meet two men who loaded containers of cannabis into her car. She claimed that although she knew what was in the containers, she claimed the cannabis had nothing to do with her and she had no control over it. Malcolm CJ,[225] referring to Canadian cases, observed that knowledge coupled with consent by the offender to another person having drugs in the offender's car amounted to joint possession. Malcolm CJ further observed that by consenting with knowledge to the cannabis being put into her car, which she was in charge of as driver, and driving it towards Derby, she had voluntarily and intentionally exercised physical control over the cannabis so as to possess it jointly with her husband.[226]
[224] Davis v The Queen (1990) 5 WAR 269.
[225] Davis v The Queen (281).
[226] Davis v The Queen (281) - (282).
313In my view, the factual circumstances concerning Ms Booth are identical to the factual circumstances in Davis. I am satisfied beyond reasonable doubt that because Ms Booth knew that Mr McKinnon concealed the drugs in her car, which she was driving and over which she had control, she consented to Mr McKinnon concealing the drugs in her car and by driving her car back towards Geraldton, she voluntarily and intentionally exercised physical control over the methylamphetamine so as to possess it jointly with Mr McKinnon. I am satisfied beyond reasonable doubt that upon their return to Geraldton she intended to allow Mr McKinnon to retrieve the drugs from the ceiling cavity in her car.
314It follows I am satisfied beyond reasonable doubt Ms Booth was in possession of the methylamphetamine.
315I am also satisfied Ms Booth intended to supply the methylamphetamine to Mr McKinnon. Ms Booth has not discharged the onus of proof upon her of satisfying me on the balance of probabilities that she did not intend to sell or supply the methylamphetamine or any part of it.
Conclusion
316In summary, I am satisfied beyond reasonable doubt Ms Booth:
(a)had knowledge of the methylamphetamine hidden in the roof cavity of her car;
(b)had custody or control over the methylamphetamine;
(c)was, with Mr McKinnon, jointly in possession of the methylamphetamine with intent to sell or supply it to another;
(d)intended to supply the methylamphetamine to Mr McKinnon by permitting him to take physical custody of the methylamphetamine upon their return to Geraldton;
(e)is guilty of the offence alleged on the indictment of being in possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KG
Associate to Judge Herron9 JUNE 2020
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