The State of Western Australia v Harris - [2022] WADC 64

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- HARRIS [2022] WADC 64
CORAM:   GETHING DCJ
HEARD:   20 & 21 JUNE 2022
DELIVERED          :   18 JULY 2022
FILE NO/S:   IND 2148 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
WENDY JOANNE HARRIS

Catchwords:

Trial of issues - Offering to sell or supply a prohibited drug - Turns on own facts

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(c)

Result:

Factual findings made

Representation:

Counsel:

The State of Western Australia	:	Mr J J Walsh
Accused	:	Mr T R Stephenson

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Mr T R Stephenson

Case(s) referred to in decision(s):

Baker v The State of Western Australia [2020] WASCA 117
Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152
ENW v The State of Western Australia [2021] WASCA 213
Floyd v The State of Western Australia [2013] WASCA 33
Julien v The State of Western Australia [2021] WASCA 79
Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367
NAD v The State of Western Australia [2013] WASCA 2
North v The State of Western Australia [2020] WASCA 6
O'Leary v The State of Western Australia [2022] WASCA 4
Ramsden v The State of Western Australia [2019] WASCA 179
RMM v The State of Western Australia [2018] WASCA 183
Slade v The State of Western Australia [2019] WASCA 65
Stefanski v The State of Western Australia [2022] WASCA 5
The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308; (2016) 90 ALJR 1013
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Newton [No 3] [2020] WASC 319
Tirkot v The State of Western Australia [2018] WASCA 41
Wark v The State of Western Australia [2020] WASCA 19
Wellstead v The State of Western Australia [2019] WASCA 130

GETHING DCJ:

Overview

Wendy Joanne Harris was committed to the District Court on three charges as set out in indictment IND 2148 of 2020. They are:
1.On 6 September 2019 near Noranda Wendy Joanne Harris offered to sell or supply a prohibited drug, namely methylamphetamine, to another.
2.On 11 September 2019 near Noranda Wendy Joanne Harris offered to sell or supply a prohibited drug, namely methylamphetamine, to another.
3.On 26 September 2019 near Noranda Wendy Joanne Harris offered to sell or supply a prohibited drug, namely methylamphetamine, to another.
All three charges were initially listed for a trial commencing 29 March 2022.
The day before the trial was due to commence, the State and the court were advised that Ms Harris would plead guilty to counts 2 and 3, but would contest the facts on which she was to be sentenced, leaving count 1 to proceed to trial. For COVID related reasons, the trial did not proceed on 29 March 2022. On 8 April 2022 Ms Harris pleaded guilty to counts 2 and 3, and convictions were recorded. After some argument, the chief judge directed that counts 2 and 3 proceed to a trial of issues, which was to take place before the trial on count 1.
The trial of issues was heard before me on 20 and 21 June 2022.
The State's position is that in both counts 2 and 3 Ms Harris was offering to supply methylamphetamine, that she had the intention and capacity to fulfil each offer and had at least attempted to do so.
Mr Harris' position on count 2 is that the prohibited drug she was offering to sell was cannabis. Her position on count 3 is that while she was offering to sell a prohibited drug, it was not methylamphetamine, but an unspecified prohibited drug.[1] In each case, what she was doing was a ruse in order to get money out of one Daniel Viet Wilson‑Nguyen, who owed her some money. This meant that she never had any intention nor capacity to fulfil each offer, and had not attempted to do so.
[1] ts 91 - ts 92 (submissions).
The State called three witnesses in the trial of issues:
•Sergeant Luke Roy Wood, the investigating officer.
•Senior Constable Ben Marshall, one of the officers who executed a search warrant on Ms Harris' house.
•Detective Constable Jonathon David Symons, who gave evidence generally as to dealing in prohibited drugs.
Ms Harris gave evidence.

General principles

By pleading guilty to each offence, Ms Harris admitted each of the elements of the offence, including all of the essential facts necessary to constitute the offence.[2] For each offence I have identified the facts which are inherent in Ms Harris' plea of guilty, which she must be taken to have admitted by her plea, and which I find proven beyond a reasonable doubt.
[2] Stefanski v The State of Western Australia [2022] WASCA 5 [105] (Buss P, with whom Mazza & Beech JJA agreed); ENW v The State of Western Australia [2021] WASCA 213 [47] (judgment of the court) (ENW); Baker v The State of Western Australia [2020] WASCA 117 [40] (judgment of the court) (Baker).
I have also identified the general facts which are not in issue, which I again find proven beyond a reasonable doubt.
For the contested issues, the facts must be strictly proven according to the rules of evidence.[3] Specifically:[4]
A sentencing judge may not take disputed facts or circumstances into account in a way that is adverse to the interests of the offender unless those facts or circumstances have been established beyond reasonable doubt. However, a sentencing judge may take into account disputed facts or circumstances which are in the offender's favour if those facts or circumstances are proved on the balance of probabilities …
Where the prosecution fails to prove a fact or circumstance which is adverse to an offender, but an alternate fact or circumstance favourable to the offender has not been established on the balance of probabilities, a sentencing judge is not bound to sentence the offender on the basis of the more favourable version. In such a case, the sentencing judge may sentence the offender on the basis that neither of the competing possibilities is known.
[3] North v The State of Western Australia [2020] WASCA 6 [33] (judgment of the court) (North); RMM v The State of Western Australia [2018] WASCA 183 [202] (judgment of the court) (RMM).
[4] RMM [203] - [204]. See also: North [34]; Baker [41] - [42]; Ramsden v The State of Western Australia [2019] WASCA 179 [27] (judgment of the court); Wellstead v The State of Western Australia [2019] WASCA 130 [75] - [76] (judgment of the court).
The factual findings made must be, and are, consistent with the facts Ms Harris admitted by her pleas of guilty.[5]
[5] Baker [40]; ENW [47].

The State invites the court to draw inferences on the key factual matters in dispute. In a criminal trial, where an issue is to be proven beyond a reasonable doubt, before I can draw an inference, or come to a conclusion, adverse to the interests of Ms Harris, the State must satisfy me that it is the only rational and reasonable inference, or conclusion, that can be drawn from all the facts established by the evidence.[6] The factual basis for the inference must consist of 'positive proved facts',[7] that is, evidence which I accept to be honest, accurate and reliable.[8] This is because there can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish.[9]
[6] The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308; (2016) 90 ALJR 1013 [46] - [47] (judgment of the court) (Baden-Clay); O'Leary v The State of Western Australia [2022] WASCA 4 [128] (judgment of the court); Julien v The State of Western Australia [2021] WASCA 79 [39] (judgment of the court) (Julien).
[7] Baden-Clay [55].
[8] NAD v The State of Western Australia [2013] WASCA 2 [72] - [86] (Buss JA, with whom McLure P & Mazza JA agreed); The State of Western Australia v Newton [No 3] [2020] WASC 319 [88] (Corboy J).
[9] Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152, 169 - 170 (Lord Wright).

The scope of the factual matters relevant to the sentencing of an offender for offering to sell a prohibited drug were conveniently summarised by the Court of Appeal in The State of Western Australia v Doyle as including:[10]
(a)the terms of the offer, in particular as to the quantity of a drug, its price, etc;
(b)whether a particular offer is an isolated one or whether it occurs in the context of an ongoing supply of prohibited drugs;
(c)whether, and if so, the extent to which the offer is motivated by reasons of commercial gain or greed;
(d)whether the offeror, at all material times, had the intention to fulfil the offer;
(e)whether the offeror had the capacity to fulfil the offer to supply; and
(f)whether the offeror attempts to fulfil the order and, if not, whether any failure to perform was the result of a decision by the person concerned not to supply or whether it was due to some intervening or extraneous circumstances.
[10] The State of Western Australia v Doyle [2017] WASCA 207 [32] - [33] (judgment of the court). See also: Baker [83] (judgment of the court); Slade v The State of Western Australia [2019] WASCA 65 [40] (judgment of the court); Tirkot v The State of Western Australia [2018] WASCA 41 [53] (judgment of the court).
None of these matters are facts which an offender must be taken to accept as being facts inherent in a plea of guilty to the offence.[11] Rather, they are the key factual findings which the State must prove beyond a reasonable doubt.
[11] Baker [57] - [58]; Floyd v The State of Western Australia [2013] WASCA 33 [12], [17] (McLure P) (Floyd).
The application of the onus of proof in sentencing proceedings to these key factual findings is elaborated by the Court of Appeal in Baker:[12]
Whether an offeror has the capacity to fulfil the offer to supply is one of a number of factors that may be relevant to the seriousness of an offence of offering to sell or supply a prohibited drug …
Where a person is convicted of offering to sell or supply a prohibited drug to another person, contrary to s 6(1)(c), and the prosecution contends, in effect, at the sentencing hearing that the offender actually intended to sell or supply or had the actual capacity to sell or supply the prohibited drug, that contention is a matter of aggravation which the State must prove beyond reasonable doubt …
Where a person is convicted of offering to sell or supply a prohibited drug to another person, contrary to s 6(1)(c), and the offender contends, in effect, at the sentencing hearing that he or she did not actually intend to sell or supply or did not have the actual capacity to sell or supply the prohibited drug, that contention is a matter of mitigation which the offender must prove on the balance of probabilities …
If a person is convicted of offering to sell or supply a prohibited drug to another person, contrary to s 6(1)(c), and neither the prosecution nor the offender makes any contention at the sentencing hearing in relation to whether the offender actually intended to sell or supply or had the actual capacity to sell or supply the prohibited drug, the facts of the offending should be taken at face value. The offender should be sentenced on the basis that the offender intended to sell or supply the prohibited drug in accordance with the terms of the offer, but was denied the opportunity of doing so before his or her arrest …
[12] Baker [59] - [62] (references omitted).

General facts which are not in issue

It is convenient to start with the general facts which are not in issue.
Between 15 August 2019 and 16 October 2019 police lawfully intercepted telecommunication service ending in 602. This phone number was identified as being used by Mr Wilson-Nguyen.[13]
[13] Exhibit 1.
The results of the lawful intercept, which I will refer to generally as 'TI Product', is before the court in three exhibits:
(a)Exhibit 2 - Investigator Summary Report;
(b)Exhibit 3 - Telephone Intercept Material; and
(c)Exhibit 8 - Protected SMS Report.
From the TI Product, police identified that Mr Wilson-Nguyen was having drug related communications with someone using the mobile phone ending in 219. During the course of the investigations, this person was identified as the offender, Ms Harris. Ms Harris had this phone in her possession and used it from time to time.[14] However, I accept on the balance of probabilities that:
(a)this was a prepaid phone and was not registered in Ms Harris' name;[15]
(b)other people used it from time to time;[16]
(c)her friend Daniel Cottich knew the passcode;[17] and
(c)it was stolen a week or so before she was interviewed by police on 30 October 2019.[18]
[14] ts 177 (Harris); Video Record of Interview, 30 October 2019 (ROI) ROI 6.
[15] ts 177 (Harris).
[16] ts 178 (Harris); ROI 6 - 7.
[17] ts 178 (Harris).
[18] ROI 6.
The TI Product may be divided into four categories:
(a)the IT Product relevant to count 1, being CSN 1993 to 2017, 2019, 2020, 2035, 2036, 2037, 2073, 2074, 2104, 2105, 2107, 2113, 2114, 2132, 2133 and 2137 (Count 1 TI Product);
(b)the IT Product relevant to count 2, being CSN 2370, 2373 to 2375, 2396, 2400, 2403 to 2405, 2418 (Count 2 TI Product);
(c)the IT Product relevant to count 3, being CSN 3210, 3223 to 3225, 3232 to 3235, 3237, 3238, 3240, 3241, 3251 to 3253, 3255, 3260 (Count 3 TI Product); and
(d)the remaining TI Product in exhibit 3, which the State relies on as circumstantial evidence to prove its contentions in relation to counts 2 and 3 (Remaining TI Product).
Throughout the period 15 August 2019 to 16 October 2019 Ms Harris lived at an address in Noranda. She lived there with her partner Stephen Green. Mr Green had at this time been charged with drug related offending, and was due to be sentenced in late October 2019.[19]
[19] ts 177 - ts 179 (Harris).
During the period August to October 2019, there were people in Ms Harris' house using illegal drugs.[20] She occasionally used cannabis and methylamphetamine, smoking it in a pipe.[21] The drugs she used were sourced from her partner, Mr Green, which she would share with him.[22]
[20] ts 187 (Harris).
[21] ts 187 - ts 188, ts 212 (Harris).
[22] ts 187 - ts 188 (Harris).
Also residing at the address in Noranda were Ms Harris' three children, then aged 6, 14 and 22.[23]
[23] ts 267 (Harris).
On 16 October 2019, police executed a search warrant at the address in Noranda and seized a number of items. The exhibit log for the items seized is exhibit 6, with some photographs of the items seized being exhibit 7.
The relevant items seized were:
•A glass smoking implement, found in the master bedroom.
•Small empty clip seal bags, found in the master bedroom.
•A clip seal bag containing cannabis, found under the coffee table in the front lounge room.
•Silver scales, found under the coffee table in the front lounge room.
•Black/silver scales, found on the coffee table in the front lounge room.
•Silver 'spade' scales, found on the coffee table in the front lounge room.
•Black/silver scales 'AWS', found on the coffee table in the front lounge room.
•White powder in a tub, found on the coffee table in the front lounge room.
•A number of empty clip seal bags, found on the coffee table in the front lounge room.
•Glass smoking implement, found in the TV Cabinet in the front lounge room.
•Black taser, found in the TV Cabinet in the front lounge room.
•A clip seal bag containing cannabis, found in the TV Cabinet in the front lounge room.
•OC Spray, found under the couch in the front lounge room.
On one of the sets of electronic scales, there were traces of what appeared to be illicit drugs, and which on analysis turned out to be methylamphetamine.[24]
[24] Exhibit 4.
It is not clear on the evidence before me what the white powder in the tub was, save that it was not methylamphetamine nor any prohibited drug.
As to the cannabis, one bag contained 17 g and the other 9 g.[25]
[25] ts 128 (Wood).
No methylamphetamine was found during the search.
Ms Harris gave evidence that on the day of the search warrant, she had gone out around 10.00 am and did not see what was on the lounge room table.[26] She said that she would use the scales to weigh cannabis, but Mr Green would use them to weigh methylamphetamine.[27] She would use the clip seal bags to put cannabis in.[28] As this evidence was not challenged in cross-examination, I accept it on the balance of probabilities.
[26] ts 198 (Harris).
[27] ts 198 - ts 199 (Harris).
[28] ts 199 (Harris).

The ruse

The recurring theme in the evidence of Ms Harris is that her actions towards Mr Wilson-Nguyen were part of a ruse in order to recover money owed to her by him. As this theme permeates the other issues, it is necessary to consider it first.
Ms Harris had known Mr Wilson-Nguyen since around the end of 2016.[29] Ms Harris gave evidence that some 18 or so months prior to September 2019, she had given Mr Wilson-Nguyen $1,400 to go and buy some drugs for her.[30] She used to buy methylamphetamine from him.[31] He had taken off with her money and had not given her any drugs.[32] She had no contact with him after that for some period of time.[33] However, in August 2019 he turned up unannounced to her house.[34] She mentioned the money but he just fobbed her off.[35] Between then and the date of the search warrant he had not repaid the money.[36] He did, however, acknowledge that he owed her money in a text message on 20 September 2019.[37] She did not believe that he was ever going to pay her back.[38]
[29] ts 184 - ts 185 (Harris).
[30] ts 185 (Harris).
[31] ts 189 (Harris).
[32] ts 185 (Harris).
[33] ts 185 (Harris).
[34] ts 185 (Harris).
[35] ts 185 - ts 186 (Harris).
[36] ts 186 (Harris).
[37] ts 186 - ts 187 (Harris).
[38] ts 192 (Harris).
This text message is CSN 2882, and reads as follows:
Hi aye sorry haven't been in contact! Have dramas up to my eye bulls [sic] legit! Had my payments cut! Been trying to sort that out! And being sent one place to the other … to be told to go back again … had to threaten self harm and an option of topping myself on the cards to even get assistance have a re-evaluation appointment with Centrelink Wednesday coming to assess my capacity … I'm even selling my car if ya know anyone $6500 ono … registered struggling to buy groceries … but I ain't forgotten I will pay what's owed plus extra for the delay
Mr Wilson-Nguyen immediately sent a further text, CSN 2883, saying: 'Once I can sort something out'.
Around this time, Mr Green was facing sentencing for drug related offending and it was Ms Harris' understanding that he was likely to go to prison.[39] He was the sole breadwinner in the household. She was not working because of the children, so they were barely getting by.[40] It was in this context that she made a plan to recover the debt from Mr Wilson-Nguyen. She described it in this way:[41]
[39] ts 192 - ts 193, ts 212 (Harris).
[40] ts 193 (Harris).
[41] ts 194 (Harris).
All right. So did that prompt you into action over the Daniel Wilson‑Nguyen debt?---No. Not until Daniel suggested it to me.
So ‑ ‑ ‑?---I said you shouldn't worry about it and then he said he'd take care of it and try and get it back, so then he planned to get it back.
All right. So there was a plan to get it back? Whose plan was it?---Daniel's and mine.
All right. And - and to be clear, what was it that you intended to do?---Just really to get his money and tell him that we'll go get him something and not go back with his money, like he did to me.
This is Daniel Wilson‑Nguyen you would tell?---Yes.
All right. So how was the plan to be carried out?---We were just - convinced him to come over or I go there to pick up the money and then I'd say I have to go get it and not go back.
Okay?---So if that didn't work Daniel shouldn't have tried to change some red ‑ ‑ ‑
Okay? --- ‑ ‑ ‑ and get some money out of him.
As I understood Ms Harris' evidence, the 'Daniel' referred to as the person who gave her the idea was Daniel Cottich, a friend of hers, and not Daniel Wilson-Nguyen.

In short, the ruse was that Ms Harris was going to let Mr Wilson‑Nguyen think that she was going to supply him with a prohibited drug. He would give her some money to go and purchase the prohibited drug. She would simply take his money, as he had done to her. I will refer to this as the 'Ruse'.
I return to make findings on the Ruse later in these reasons.

Count 1 TI Product

It is convenient to next consider the Count 1 TI Product. The State relies on the Count 1 TI Product as part of the circumstantial evidence to prove its contentions in relation to counts 2 and 3. It is not in issue that one party to these SMS messages was Mr Wilson-Nguyen. However, Ms Harris' position is that she was not the other party.
The specific messages relied on by the State are:
(a)CSN 1996, which is a message from Mr Wilson-Nguyen to Ms Harris' mobile number, sent at 2.12 am on 6 September 2019, in which he says: 'Are you able to pop over as car still not running haven't had time to fix it just yet';
(b)CSN 1997, which is a message from Ms Harris' mobile number to Mr Wilson-Nguyen, sent at 2.13 am on 6 September 2019, in which the sender says: 'Yeh';
(c)CSN 1998, which is a message from Mr Wilson-Nguyen to Ms Harris' mobile number, sent at 2.13 am on 6 September 2019, in which he says: 'How long roughly just tired was doing some of my homework catching up on assessments etc';
(d)CSN 1999, which is a message from Ms Harris' mobile number to Mr Wilson-Nguyen, sent at 2.16 am on 6 September 2019, in which the sender says: 'How much';
(e)CSN 2000, which is a message from Mr Wilson-Nguyen to Ms Harris' mobile number, sent at 2.17 am on 6 September 2019, in which he says: 'I have $200 plus money in the bank can always transfer some too was wanting a weight';
(f)CSN 2001 which is a message from Ms Harris' mobile number to Mr Wilson-Nguyen, sent at 2.17 am on 6 September 2019, in which the sender says: 'Ok';
(g)CSN 2002 which is a message from Mr Wilson-Nguyen to Ms Harris' mobile number, sent at 2.19 am on 6 September 2019, in which he says: 'How long so I know when to open the gate';
(h)CSN 2003 which is a message from Ms Harris' mobile number to Mr Wilson-Nguyen, sent at 2.35 am on 6 September 2019, in which the sender says: 'Probably about half hour, its gunna be 350';
(i)CSN 2004 which is a message from Ms Harris' mobile number to Mr Wilson-Nguyen, sent at 2.35 am on 6 September 2019, in which the sender says: 'Its quite goid too';
(j)CSN 2005 which is a message from Mr Wilson-Nguyen to Ms Harris' mobile number, sent at 2.37 am on 6 September 2019, in which he says: 'That's fine'.
The State says that the reference to a 'weight' is to a gram of methylamphetamine. This reflects the evidence of Detective Symons, who also said that the term 'weight' related to powdered, crystalline drugs, and not cannabis.[42] The State says that the agreed price was $350, which reflects the then price of a gram of methylamphetamine, being $350 - $500.[43] From the context of the communications, I find it as a positive proved fact that the transaction discussed in the Count 1 TI Product related to methylamphetamine.
[42] ts 166, ts 168 (Symons).
[43] ts 165 (Symons).
Ms Harris gave evidence that she did not send or receive any of these messages.[44] In the early hours of Friday 6 September 2019, she was at home sleeping. Later that day she, Mr Green and her children, with other family members, went to the Burswood Resort Casino for the weekend,[45] something which I accept is verified by the photographs which are exhibit 9.[46] Mr Cottich had stayed at her house, with her cousin John, the night of Thursday 5 September, and continued to stay over the weekend to mind the house.[47] She said that Mr Cottich sent these messages, that he knew the passcode and that she allowed him to use her phone.[48]
[44] ts 181 - ts 182 (Harris).
[45] ts 182 - ts 183 (Harris).
[46] ts 204 - ts 208 (Harris).
[47] ts 183 - ts 184 (Harris).
[48] ts 227 - ts 233 (Harris).
The State invites the court to reject Ms Harris' evidence and find that it was Ms Harris who was the other party to the messages comprising the Count 1 TI Product. Counsel for the State relies on three points. The first is that Ms Harris accepts that the messages immediately preceding and following involved her. The second is that there is nothing in the text of the relevant messages indicating a change in the person with whom Mr Wilson‑Nguyen was communicating. The third is that the messages indicate that Mr Wilson-Nguyen has a level of familiarity with the person he is communicating with, being discussions about bank transfers (CSN 2007 to CSN 2010) and Mr Wilson-Nguyen just getting back from hospital (CSN 2074).
The identity of the person Mr Wilson-Nguyen was communicating with in the Count 1 TI Product is not one of the key findings which must be made beyond a reasonable doubt (see [14] above). Rather, it is one of the circumstances relied on by the State from which it invites the court to draw an inference as to one of the key findings. As set out at [13], it must, nonetheless, be a 'positive proved fact' before it can be used as part of the circumstances from which an inference adverse to Ms Harris may be drawn.
I am not so satisfied. There is nothing in the content of the Count 1 TI Product which unequivocally points to Ms Harris as being the other party to these SMS messages. There is no objective fact specifically relating to the Count 1 TI Product from which I can conclude that Ms Harris was lying when she gave evidence that she was not involved in these communications. I cannot use facts not specifically relating to the Count 1 TI Product (for example, the terms of other messages Ms Harris admits to being a participant in) to come to this conclusion as this would involve circular reasoning. On the other hand, Ms Harris' explanation was plausible, an explanation which might be true.
For these reasons, I do not regard it as a positive proved fact that Ms Harris was a participant in the SMS messages the subject of the Count 1 TI Product. Rather, I make no finding as to the identity of the person whom Mr Wilson-Nguyen was communicating with. With one caveat, I put this evidence to one side for the sentencing of Ms Harris.
The caveat is that there is one fact which I do regard as a positive proved fact from the Count 1 TI Product. This is that in the transaction being discussed in the Count 1 TI Product Mr Wilson-Nguyen was wanting to purchase a weight or gram of methylamphetamine.

Remaining TI Product

It is instructive to next consider the Remaining TI Product, as the State also relies on this as circumstantial evidence for both counts 2 and 3.
It is not in issue that the communications the subject of the Remaining TI Product were between Ms Harris and Mr Wilson‑Nguyen, which I find as a positive, proven fact.
The State relies on the Remaining TI Product to establish that Ms Harris was engaging in offering prohibited drugs to Mr Wilson‑Nguyen and, secondly, that those prohibited drugs included methylamphetamine.[49]
[49] ts 277 (submissions).
CSN 1551 is an SMS from Mr Wilson-Nguyen to Ms Harris on 31 August 2019, in which he says: 'Hey any chance you can deliver'.
CSN 1556 is the transcript of a conversation between Ms Harris and Mr Wilson-Nguyen on 31 August 2019, about an hour after the message in CSN 1551. It provides:
WNHello
HHello
WNHey yeah, I was just about to send you a message.
HThat's okay. I just on the road that's all. Um, and I gotta go either your place or Midland, so I'm deciding where to go first.
WNOh, come - come to mine. Mum's here. Is, um [indistinct] same as last, got the other day.
HWell, yeah, um, so I gotta take, um, 750 for the paint, um, to this person, like now, and I don't have 750.
WNOh, true, oh fuck.
H'Cause I.
WN[indistinct]
HI've just see, um, her and I'll come to you then there. So, give me like 20 minutes?
WNYeah, that's all right.
HYeah, I'm - I'm with Leana and Allah.
WNThat's fine.
HYeah, okay.
WNRighto.
HWe'll see you round [indistinct].
WNAll right see you.
HBye.
When being cross-examined Ms Harris ultimately accepted that this conversation was about the supply of prohibited drugs, but said it was a lie and that she was 'dribbling crap to him every day'.[50] She accepted that she was going somewhere to pick up some money and probably some drugs, but said that she was not going to Mr Wilson-Nguyen's house to take him some drugs.[51]
[50] ts 214 - ts 219 (Harris).
[51] ts 216 (Harris).
CSN 1570 is an SMS from Mr Wilson-Nguyen to Ms Harris at 9.48 pm on 31 August 2019 in which he says: 'How far away are you?'.
CSN 1600 is an SMS from Mr Wilson-Nguyen to Ms Harris at 11.52 pm on 31 August 2019 in which he says: 'Hey hey u alive?'.
CSN 1603 is an SMS from Mr Wilson-Nguyen to Ms Harris at 11.55 pm on 31 August 2019 in which he says: 'Don't worry been sorted now'.
CSN 1618 is an SMS from Ms Harris to Mr Wilson-Nguyen on 1 September 2019 at 7.04 am in which she says: 'Hi sorry I fell asleep early last night, im good all day if u need again and HAPPY FATHERS DAY'.
CSN 1620 is an SMS from Mr Wilson-Nguyen to Ms Harris on 1 September 2019 at 7.51 am in which he says: 'Thank you very much!!! And if I can get the car running I'll pop round later maybe cheers'.
CSN 1669 is an SMS from Ms Harris to Mr Wilson-Nguyen on 1 September 2019 at 12.56 pm in which she says: 'No worries, i can come to u no problem, it's a little wet to be taking bubs out if ur just staying at home'.
CSN 1968 is an SMS from Ms Harris to Mr Wilson-Nguyen on 5 September 2019 at 7.53 pm in which she says: 'Hi how ya going, can u get anything ur way'. Ms Harris said in cross-examination that that was a reference to cannabis, as Mr Wilson-Nguyen was dealing in 'cannabis as well'.[52]
[52] ts 221 (Harris).
CSN 1969 is an SMS from Mr Wilson-Nguyen to Ms Harris on 5 September 2019 at 7.55 pm in which he says: 'How much you after'.
CSN 1970 is an SMS from Ms Harris to Mr Wilson-Nguyen on 5 September 2019 at 7.56 pm in which she says: 'Half if I cam get enough paper'. I find that the reference to 'half' is a reference to a quantity of drugs, which could be a half-ball or a half an ounce,[53] and the reference to 'paper' is to cash.[54] In cross-examination, Ms Harris denied that she was asking Mr Wilson-Nguyen for methylamphetamine. Rather, she said that the message was referring to cannabis.[55]
[53] ts 164 - ts 165 (Symons).
[54] ts 166 (Symons).
[55] ts 223 - ts 224 (Harris).
CSN 1971 is an SMS from Mr Wilson-Nguyen to Ms Harris on 5 September 2019 at 8.52 pm in which he says: 'Ok ik my mate has some now how much idk but I'll ask'.
CSN 1973 is an SMS from Ms Harris to Mr Wilson-Nguyen on 5 September 2019 at 9.05 pm in which she says: 'Ok'.
CSN 1976 is an SMS from Mr Wilson-Nguyen to Ms Harris on 5 September 2019 at 9.21 pm in which he says: 'How much have you got now'.
CSN 1977 is an SMS from Ms Harris to Mr Wilson-Nguyen on 5 September 2019 at 9.21 pm in which she says: 'How much is half'.
CSN 1979 is an SMS from Mr Wilson-Nguyen to Ms Harris on 5 September 2019 at 9.22 pm in which he says: 'Asking right now'.
CSN 1982 is an SMS from Mr Wilson-Nguyen to Ms Harris on 5 September 2019 at 9.42 pm in which he says: 'I'd say 14 for queens and most likely 2,2 for double that'. I accept that the reference 'queens' is to a quarter of ounce.[56] I accept that the reference to '14' is to $1,400 and '2,2' is to $2,200; to suggest that it is a reference to '$140' and '$220' defies common sense and experience. These amounts are consistent with the price of a quarter of an ounce of methylamphetamine at the time, being $1,450 - $2,200.[57] A quarter of an ounce of cannabis was going for $110.[58] Ms Harris was cross‑examined on this message, and said that it related to cannabis and not methylamphetamine, commenting that he was overcharging, and that this was very expensive cannabis, though she was not going to purchase it.[59] I do not accept this evidence. Her interpretation is inconsistent with the text of the communication, viewed in the context of the evidence of Detective Symons which I accept.
[56] ts 169 (Symons).
[57] ts 165 (Symons).
[58] ts 166 (Symons).
[59] ts 225 - ts 226 (Harris).
CSN 1984 is an SMS from Mr Wilson-Nguyen to Ms Harris on 5 September 2019 at 9.44 pm in which he says: 'It once he answer I'll confirm'.
CSN 1985 is an SMS from Ms Harris to Mr Wilson-Nguyen on 5 September 2019 at 9.44 pm in which she says: 'Ok'.
CSN 1986 is an SMS from Ms Harris to Mr Wilson-Nguyen on 5 September 2019 at 10.35 pm in which she says: 'Any word yet'. In cross-examination, Ms Harris said that this message was about Mr Wilson-Nguyen supplying her with cannabis.[60]
[60] ts 226 (Harris).
CSN 1987 is an SMS from Mr Wilson-Nguyen to Ms Harris on 5 September 2019 at 10.35 pm in which he says: 'Not yet sorry'.
The next series of SMS messages are the Count 1 TI Product, which I have already considered.
CSN 2189 is an SMS from Ms Harris to Mr Wilson-Nguyen on 7 September 2019 at 7.44 pm in which she says: 'Sorry im good now if u need and heaps of green'. I accept that the reference to 'green' is to cannabis. The text of the message clearly conveys that the 'green' is in addition to some other prohibited drug which Ms Harris had, and which she believed Mr Wilson-Nguyen may need.
The next series of SMS messages and conversations are the Count 2 TI Product, which I again consider later in these reasons.
We then get to CSN 2467, which is the transcript of a recorded conversation between Ms Harris and Mr Wilson-Nguyen. In it she says, among other things: 'I'm good now if you want any'. In cross‑examination, Ms Harris said that she was pretending that she had drugs as part of the Ruse.[61]
[61] ts 233 - ts 235 (Harris).
CSN 2471 is an SMS from Mr Wilson-Nguyen to Ms Harris on 12 September 2019 at 2.59 pm in which he says: 'Awh forgot to tell ya my usual person got raided yesterday night … so be careful'.
CSN 2508 is an SMS from Mr Wilson-Nguyen to Ms Harris on 13 September 2019 at 12.15 am in which he says: 'Hey you up and still good?'
CSN 2509 is an SMS from Ms Harris to Mr Wilson-Nguyen on 13 September 2019 at 12.15 am in which she says: 'Out getring it now'. In cross-examination, Ms Harris said she was lying when she said this, all part of the Ruse.[62]
[62] ts 236 (Harris).
CSN 2510 is an SMS from Ms Harris to Mr Wilson-Nguyen on 13 September 2019 at 12.15 am in which she says: 'Can meet u at mine'. In cross-examination, Ms Harris agreed that in this message she was telling Mr Wilson-Nguyen to come to her house to pick up the drugs she told him about in the previous message.[63]
[63] ts 236 (Harris).
CSN 2511 is an SMS from Mr Wilson-Nguyen to Ms Harris on 13 September 2019 at 12.15 am in which he says: 'Ok to easy let me know when your back cheers'.
CSN 2515 is an SMS from Ms Harris to Mr Wilson-Nguyen on 13 September 2019 at 1.55 am in which she says: 'Hi do u still want urs'. In cross-examination, Ms Harris accepted that this was about prohibited drugs, but not methylamphetamine.[64]
[64] ts 237 (Harris).
CSN 2516 is an SMS from Mr Wilson-Nguyen to Ms Harris on 13 September 2019 at 1.59 am in which he says: 'Nah sorry all sorted'.
CSN 2517 is an SMS from Ms Harris to Mr Wilson-Nguyen on 13 September 2019 at 2.03 am in which she says: 'Did u get some'.
CSN 2518 is an SMS from Mr Wilson-Nguyen to Ms Harris on 13 September 2019 at 2.09 am in which he says: 'Went through a different mate'.
CSN 2591 is an SMS from Mr Wilson-Nguyen to Ms Harris on 13 September 2019 at 8.13 pm in which he says: 'You all good me to head over?'
CSN 2592 is an SMS from Ms Harris to Mr Wilson-Nguyen on 13 September 2019 at 8.32 am in which she says: 'Yeh home in 25min'.
CSN 2593 is an SMS from Mr Wilson-Nguyen to Ms Harris on 13 September 2019 at 8.44 pm in which he says: 'See ya shortly'.
CSN 2594 is an SMS from Ms Harris to Mr Wilson-Nguyen on 13 September 2019 at 8.44 pm in which she says: 'K'.
The next SMS is CSN 2882, which I have quoted at [34].
The next series of messages and conversations comprise the Count 3 TI Product, which I also discuss below.
CSN 3266 is an SMS from Ms Harris to Mr Wilson-Nguyen sent at 8.24 pm on 27 September 2019 in which she says: 'Hi can u get'.
CSN 3267 is an SMS from Mr Wilson-Nguyen to Ms Harris sent at 10.19 pm on 27 September 2019 in which he says: 'Have a mate who has how much idk what ya after though'.
CSN 3268 is an SMS from Ms Harris to Mr Wilson-Nguyen sent at 10.23 pm on 27 September 2019 in which she says: 'I got now thanks'.
The next relevant communication is CSN 3613, which is an SMS from Ms Harris to Mr Wilson-Nguyen sent at 10.16 am on 3 October 2019, in which she says: 'Happy birthday fir yesterday, i kniw all too well wot ur saying believe me, wots ur address i try pop in. Can u get sales'.
CNS 3164 is an SMS from Mr Wilson-Nguyen to Ms Harris sent at 10.50 am on 3 October 2019 in which he says: '[XX] Regent Drive Alexander Heights and yeah can get sales'.
CSN 3632 is an SMS from Mr Wilson-Nguyen to Ms Harris sent at 2.58 pm on 3 October 2019 in which he says: 'Let me know if your still gonna pop in'.
CSN 3807 is the transcript of a telephone conversation between Ms Harris and Mr Wilson-Nguyen on 7 October 2019 at 5.48 pm. It provides:
HHello.
WNHey. How are you?
HHello. How are you?
WNYeah, not too bad. Um, are you good?
HNot yet. I'm seeing - I've got someone coming over now.
WNOh, okay. You'll let me know, please?
HUm, yeah, and you got coin?
WNUm, yeah, course.
HWhat do you want?
WNI got what I owe as well.
HAh, we can, um, what, um, how much do you want?
WNAh, HB.
HAll right. I'll call you back shortly.
WNAll right. Thank you.
HOkay. Bye.
WNOkay. Bye.
The State says that the reference to a 'HB' is to a half‑ball, 1.75 g, of methylamphetamine[65] and the reference to 'coin' is to cash. In cross‑examination, Ms Harris agreed that this was a reference to a half‑ball of methylamphetamine. However, she said that this was part of the Ruse.[66]
[65] ts 165 (Symons).
[66] ts 210 - ts 212 (Harris).
Looking at the Remaining TI Product as a whole, I find the following facts to be positive proved:
(a)the communications between Ms Harris and Mr Wilson-Nguyen were about dealing in prohibited drugs;
(b)generally Ms Harris was the supplier and Mr Wilson-Nguyen the purchaser, though on occasion it was Mr Wilson-Nguyen supplying to Ms Harris;
(c)the prohibited drugs they were talking about included methylamphetamine, and not just cannabis, as the language used on occasion is not language commonly used when dealing in cannabis; and
(d)at no time in the communications does Mr Wilson-Nguyen say anything to the effect that the arrangements which he discussed with Ms Harris were anything other than genuine dealings (for example, at no time does Mr Wilson-Nguyen say anything to the effect that he was being duped or misled by Ms Harris).

Count 3

Matters not in issue

The State relies on the conclusions reached in relation to count 3 as part of the circumstantial evidence it relies on to prove count 2. So it is necessary to consider count 3 first.
By her plea to count 3, Mr Harris has admitted that she offered to sell or supply a prohibited drug to another. A fact inherent in the plea is that the offer she made was a serious offer, one made with the intention that it be regarded as genuine by Mr Wilson-Nguyen.[67]
[67] Baker [57] - [58]; Floyd [12], [17].
There are three particulars: that the offer was made on 11 September 2019; that it was made near Noranda and that the prohibited drug involved was methylamphetamine. The first two particulars are not in issue; the third is the subject of the trial of issues.

It is not in issue, and I find, that the offer the subject of count 3 was made in the Count 3 TI Product, which occurred on 26 and 27 September 2019. It is not in issue that these message and calls were between Ms Harris and Mr Wilson-Nguyen.[68]
[68] ts 192 (Harris).
The starting point is CSN 3210, which is the transcript of a telephone conversation between Ms Harris and Mr Wilson-Nguyen at 12.44 pm on 26 September 2019:
HYeah. Yeah. Okay. Hello (INDISTINCT BACKGROUND CONVERSATION)
WNHow you going?
HHello.
WNHey. Um, I was just wondering, um, I have a friend that's [indistinct] um - - -
HUm, yep. I'm just down going shopping now.
WNOh, okay. Cool. Yeah, well he's looking for, um, a half.
HUm [indistinct]
WNYeah, how much is that?
HAh, for, like, per W or - - -
WNAh, nah, nah, nah, O.
HOh, HO. Um, can - I'm - I'm paying, um, ah, what do you call it? He's charging me - the - I'm going to now is three, but the one this afternoon's cheaper.
WNYeah. My - my mate's willing to pay frigging [indistinct]
HHis friend's, like we're - I'm - I'm in, ah, that's why I'm going there.
WNOh, okay. Yeah. Oh, yeah. Um - - -
HLike, it's pretty good.
WNYeah. Yeah, I know. That's fine. All right. So, how much do you charge us for [indistinct]
HI'm paying three.
WNFuck. Fucking hell. That's expensive.
HIf - if you get more, he might lower it. I don't know.
WNYeah, if he isn't, I can't part with the money, hey [indistinct]
HYeah. Shit, yeah.
WN[indistinct]
HYou might have to get more. Um, I'll talk to you when I go out there and I'll - I'll call you back.
WNAll right. No worries. Thank you.
H'Cause I got to cover the, um, avenues anyways.
WNYeah, cool. All right.
HYep.
WNEven if you do, like, with the - the Queen for now, that'll probably - - -
HYeah.
WNYeah, you know.
HYeah.
WNUm, but [indistinct]
HYeah, I'll see if I can get [indistinct] yeah and suss it out.
WNYep. All right. Thank you.
HAll right. I'll call you shortly.
WNAll right.
HOkay. Bye.
CSN 3223 is an SMS from Ms Harris to Mr Wilson-Nguyen sent at 5.32 pm on 26 September 2019 in which she says: 'Im ready for wot u wanted'.

CSN 3224 is an SMS from Mr Wilson-Nguyen to Ms Harris sent at 5.38 pm on 26 September 2019 in which he says: 'Ok yeah but my mate won't pay anymore than 2,5'.
CSN 3225 is an SMS from Mr Wilson-Nguyen to Ms Harris sent at 5.39 pm on 26 September 2019 in which he says: 'You know anyone who has the software or program to unlock an iPhone X'.
CSN 3232 is an SMS from Ms Harris to Mr Wilson-Nguyen sent at 6.33 pm on 26 September 2019 in which she says: 'That's wot im paying for this one other one is 3.5'.
CSN 3233 is an SMS from Ms Harris to Mr Wilson-Nguyen sent at 6.33 pm on 26 September 2019 in which she says: 'Both good quality u can take a look'.
CSN 3234 is an SMS from Ms Harris to Mr Wilson-Nguyen sent at 6.56 pm on 26 September 2019 in which she says: 'I will ask about phone'.
CSN 3235 is an SMS from Ms Harris to Mr Wilson-Nguyen sent at 6.57 pm on 26 September 2019 in which she says: 'Ask ur friend if he will pay 2750 ono'.
CSN 3237 is an SMS from Mr Wilson-Nguyen to Ms Harris sent at 7.01 pm on 26 September 2019 in which he says: 'No way he said max 2500 all he has'.
CSN 3238 is an SMS from Ms Harris to Mr Wilson-Nguyen sent at 7.02 pm on 26 September 2019 in which she says: 'C wot i can do'.
CSN 3240 is an SMS from Mr Wilson-Nguyen to Ms Harris sent at 7.02 pm on 26 September 2019 in which he says: 'Cheers'.
CSN 3241 is an SMS from Mr Wilson-Nguyen to Ms Harris sent at 7.03 pm on 26 September 2019 in which he says: 'Another mates on to it also'.
CSN 3251 is an SMS from Ms Harris to Mr Wilson-Nguyen sent at 7.56 pm on 26 September 2019 in which she says: 'Can do for same as me best i can do at, im ordering mine inna min'.
CSN 3252 is an SMS from Mr Wilson-Nguyen to Ms Harris sent at 8.01 pm on 26 September 2019 in which he says: 'Ok don't think my mates mate wants it not ether that or he's passed out Sam it'.
CSN 3253 is an SMS from Mr Wilson-Nguyen to Ms Harris sent at 8.01 pm on 26 September 2019 in which he says: 'Dam*'.
CSN 3255 is an SMS from Ms Harris to Mr Wilson-Nguyen sent at 7.12 am on 27 September 2019 in which she says: 'Hi call me if ur mate wants im ready'.
CSN 3260 is an SMS from Mr Wilson-Nguyen to Ms Harris sent at 9.19 am on 27 September 2019 in which he says: 'Cheers I'll let ya know'.

Prohibited drug

The State contends that in the Count 3 TI Product, Ms Harris offered to supply Mr Wilson-Nguyen with half an ounce, 14 g, of methylamphetamine for $2,750. The position put by counsel for Ms Harris was that it was an unspecified prohibited drug.[69]
[69] ts 92 (submissions).
Ms Harris accepts by her plea that she offered to sell Mr Wilson‑Nguyen a prohibited drug. This means that the fact that when Ms Harris' house was searched a month or so later there were many items consistent with dealing in prohibited drugs becomes neutral, not pointing one way to the other towards the prohibited drug the subject of count 3 (or count 2 for that matter) being methylamphetamine, cannabis or some other unspecified prohibited drug.
Ms Harris gave evidence that she did not remember the conversation which is at [102].[70] She said that what she told Mr Wilson-Nguyen in the telephone conversation and following SMS messages was a lie. She was not going to get him anything. She never acquired or intended to acquire any methylamphetamine for him. She never met with him. No actual drugs ever changed hands between the two of them. She did not have any methylamphetamine to sell him.[71] Rather, this was all part of the Ruse. However, her plan to trick Mr Wilson-Nguyen into parting with his money did not end up working.[72]
[70] ts 195 (Harris).
[71] ts 195 - ts 196 (Harris).
[72] ts 196 (Harris).
In cross-examination her evidence initially was different:[73]
I wasn't listening. You can hear it in the audio that I had a passenger with me and I was talking to my passenger. And when Mr Daniel Nguyen was talking I wasn't acknowledging him when I was speaking. I was just fobbing him off and still talking to my passenger. I didn't actually answer him or listen to him when he asked for that.
I don't accept this evidence. The substance of what Ms Harris says are direct and meaningful responses to what Mr Wilson-Nguyen is saying.
[73] ts 242 (Harris).
Later in the cross-examination she went back to her position that it was a lie, but accepted that this conversation was about methylamphetamine:[74]
[74] ts 243 - ts 244 (Harris).
It's all - it's all his made up bullshit, anyway. It's lies, what I'm saying.
You agree that you offer ‑ ‑ ‑?---I'm not ‑ ‑ ‑
‑ ‑ ‑ a half a ‑ ‑ ‑?--- ‑ ‑ ‑ offering him anything.
Well, you've pled guilty, haven't you, Ms Harris?---Yeah.
And that's an offer of a half-ounce, isn't it?---He's asking me for it.
Well, you say 'Ho, h-o. I'm paying what you call it and he's charging me. I'm going to now. It's 3, but this afternoon is cheaper.'?---This is what I said anyway, because I'm - I wasn't getting it for him, anyway, because I can't get that for him.
Well, you say, 'I'm paying. I've already called it and he's charging me. I'm going to (indistinct). It's a reference to $3,000, isn't it, Ms Harris?---Yeah. I don't recall that. I don't know.
And this one - 'The one this after is cheaper' Do you agree you said that?---Yeah, must have done.
But there's two different places you can get methylamphetamine from, isn't there, Ms Harris?---No, there's not because I can't get it from anywhere.
Well, you're saying, 'I'm going to now is 3' - that's the place you're going now and then this on this afternoon ‑ ‑ ‑?---Yeah.
‑ ‑ ‑ is a different place and it's cheaper?---And I'm lying again.
So you're lying to him, that there's two different places ‑ ‑ ‑?---Yeah.
‑ ‑ ‑ you can acquire methylamphetamine?---Yeah. I'll tell him there's 10 different places. And once again, he doesn't - he doesn't ever come, anyway.
So you expect that's a half ounce for $3,000 you're offering?---Yep. Which I'm not ever going to get him.
And is that for methylamphetamine, Ms Harris?---Yep.
…
And:[75]
And a 'queen' is a reference to a quarter ounce of methamphetamine, isn't it, Ms Harris?---A 'queen' means a quarter.
But in this circumstance where you're discussing methamphetamine, this conversation is ‑ ‑ ‑?---Yeah.
[75] ts 246 (Harris).
Ms Harris also accepted that CSN 3223 ([103]) was about methylamphetamine, but that it was another lie:[76]
And then you send a message on 117 saying:
I'm ready for what you wanted.
?---Yeah, that was another lie.
That ‑ what you're telling Mr Wilson‑Nguyen is you're ready to give him the half‑ounce of methylamphetamine?---Mm.
Is that correct?---Yeah.
[76] ts 246 (Harris).
Then as to the message at CSN 3233 ([107]):[77]
And then message on 121, you say:
Both good quality. You can take a look.
Do you agree with that?---Yeah (indistinct).
So you're ‑ so you're offering to let Mr Wilson‑Nguyen look at the methylamphetamine?---Yeah, and if he wanted to then, I would make up another lie and say I couldn't, I needed money first to go get it.
But for him to look at the methylamphetamine, you'd have to have it, wouldn't you, Ms Harris?---Yeah, that would never happen.
[77] ts 247 (Harris).
She went on in cross-examination to reiterate that she never had any methylamphetamine and that Mr Wilson-Nguyen never came to her house with any money.[78] However, she accepted that this series of SMS communications were about methylamphetamine.[79]
[78] ts 247 - ts 251 (Harris).
[79] ts 248 - ts 252 (Harris).
In re-examination she went back to saying that the drug was not methylamphetamine.[80]
[80] ts 269 (Harris).
I find beyond a reasonable doubt that it was methylamphetamine. This is for six reasons.
The first is the language in CSN 3210 ([102]). Detective Symons gave evidence that a half ounce is a weight in which methylamphetamine is commonly sold.[81] In context, I find 'HO' refers to half an ounce. The subsequent SMS messages discussing a price between $2,500 ‑ $3,000 are around the then going price of a half an ounce of methylamphetamine, being $2,000 - $3,000.[82] By contrast, a half an ounce of cannabis was then selling for around $170 - $180.[83]
[81] ts 164 (Symons).
[82] ts 165 (Symons).
[83] ts 166 (Symons).
The second is that there is no evidence to suggest that the drug the subject of count 3 was cannabis.
The third is that the suggestion that it was some other prohibited drug, perhaps a crystalline one also sold in half ounce weights,[84] is purely speculation, something for which there is no factual basis in the evidence.
[84] ts 168 (Symons).
The fourth is my finding from the Count 1 TI Product that the prohibited drug Mr Wilson-Nguyen was wanting to purchase in that transaction was methylamphetamine. This is circumstantial evidence making it more probable that the drug the subject of count 3 is also methylamphetamine, and not some other crystalline drug.[85]
[85] Martin v Osborne[1936] HCA 23; (1936) 55 CLR 367, 375 (Dixon J).
The fifth are my findings from the Remaining TI Product set out at [97]. These findings are again circumstantial evidence making it more probable that the drug the subject of count 3 is also methylamphetamine, and not some other crystalline drug.

The sixth is that Ms Harris accepted in cross-examination that the transaction in count 3 was about methylamphetamine. Although, as mentioned, she recanted this in re-examination, there was nothing equivocal about her repeated concessions in cross-examination. This is consistent with the remainder of her evidence, which is that this was a lie, being part of the Ruse to get money out of Mr Wilson-Nguyen.
For these reasons, I find that the only rational and reasonable inference is that the prohibited drug which Ms Harris was offering to sell in count 3 was methylamphetamine, specifically, a half an ounce (14 g) for a price of $2,750. The inference that this was some other unspecified crystalline drug is mere conjecture, not supported by the evidence, and is not an inference that a reasonable person would draw from the positive proved facts.[86] I thus find this fact proven beyond a reasonable doubt.

Count 3 - intent, capacity and fulfilment

[86] Baden-Clay [47]; Wark v The State of Western Australia [2020] WASCA 19 [275] (Buss JA); Julien [39].

The State accepts that the offer the subject of count 3 did not ultimately proceed to a sale as the friend mentioned by Mr Wilson‑Nguyen was not prepared to accept the price of $2,750.[87] I accept this on the balance of probabilities.
[87] ts 287 - ts 288 (submissions).
The State's position is again that Ms Harris had the intention and capacity to fulfil the offer in count 3, and had attempted to do so.[88]
[88] ts 289 (submissions).
Ms Harris' position was that the offer was a lie, being part of the Ruse to get money out of Mr Wilson-Nguyen. So her position is that she did not have any intention or capacity to fulfil the offer, nor did she attempt to do so.
Looking at all the evidence before the court as a whole (but leaving aside the Count 1 TI Product), a rational and reasonable inference that arises is that during the period 31 August 2019 to 16 October 2019 Ms Harris was engaged in the ongoing sale or supply of prohibited drugs to Mr Wilson-Nguyen. This inference arises from:
(a)my findings in relation to the Remaining TI Product ([97]);
(b)the fact inherent in the plea for count 2, being that the offer made by Ms Harris was a serious offer to sell or supply a prohibited drug, one made with the intention that it be regarded as genuine by Mr Wilson-Nguyen ([149]); and
(c)the fact inherent in the plea for count 3, being that the offer made by Ms Harris was a serious offer to sell or supply a prohibited drug, one made with the intention that it be regarded as genuine by Mr Wilson-Nguyen ([99]).
I do not accept that the references in the communications reflective of drug dealing as being Ms Harris supplying only cannabis to Mr Wilson‑Nguyen. She may well have been doing this as well. She may well also have been purchasing cannabis from him. However, some of the language used and amounts involved are only consistent with dealing in methylamphetamine. This is also consistent with my finding from the Count 1 TI Product that Mr Wilson-Nguyen was wanting to purchase methylamphetamine ([46]). Accordingly, I find that a rational and reasonable inference arising on all the evidence is that during the period covered by the TI Product, 31 August 2019 to 16 October 2019, Ms Harris was engaged in the ongoing sale or supply of methylamphetamine to Mr Wilson-Nguyen.
The issue then becomes whether this is the only rational and reasonable inference. The competing inference contended for by counsel for Ms Harris is that she was lying to Mr Wilson-Nguyen throughout their entire interaction as part of the Ruse. In this context, Ms Harris accepted that she was talking about methylamphetamine in some of the messages, but said it was a lie. This reinforces the conclusion at [141]. However, the Ruse only makes sense if it occurs in the context of the actual ongoing sale or supply of methylamphetamine to Mr Wilson‑Nguyen. In my view, it is only that dealing which would build the trust necessary to induce Mr Wilson‑Nguyen to hand over money to Ms Harris in anticipation of her sourcing some methylamphetamine for him. It is only dealing in methylamphetamine which would involve Mr Wilson-Nguyen parting with an amount in the vicinity of the debt, $1,400, on the expectation of receiving prohibited drugs in return; there is no suggestion in the evidence that Ms Harris was supplying Mr Wilson-Nguyen with half a pound or so of cannabis necessary to generate a price in the order of $1,400.[89]
[89] ts 166 (Symons).
To this I add my finding from the Remaining TI Product that at no time in the communications does Mr Wilson-Nguyen say anything to the effect that the arrangements which he discussed with Ms Harris were anything other than genuine dealings ([97]). If Ms Harris had been lying, and did not in fact have any methylamphetamine to sell to Mr Wilson-Nguyen throughout this entire period, then he would not have continued to ask her for methylamphetamine. It is clear from messages like CSN 1603 ([54]) and CSN 2471 ([75]) that there were others he could source drugs from.
For these reasons, looking at the evidence as a whole, I do not consider that the inference that Ms Harris was lying to Mr Wilson‑Nguyen throughout their entire interaction as part of the Ruse is a reasonable one, that is, one a reasonable person would draw from the positive proved facts.
However, I do accept on the balance of probabilities that, whilst Ms Harris was engaged in the sale or supply of methylamphetamine to Mr Wilson-Nguyen, she was looking for an opportunity to recover from him the $1,400 which he in effect stole from her some 18 months prior. She was motivated by the financial pressure she was under at the time, with her partner, Mr Green, the sole breadwinner for the family, about to commence a term of imprisonment.
This leaves the only rational and reasonable inference to be that during the period covered by the TI Product, 31 August 2019 to 16 October 2019 Ms Harris was engaged in the ongoing sale or supply of methylamphetamine to Mr Wilson-Nguyen. Accordingly, I find this fact beyond a reasonable doubt.
Once the alternative of a lie is removed, the facts of the offending as set out in the indictment may be taken at face value, being that Ms Harris intended to sell or supply the prohibited drug in accordance with the terms of the offer.[90] Specifically, for the reasons set out at [140] - [146] I find beyond a reasonable doubt that Ms Harris had the intention to fulfil the offer the subject of count 3 and that she made some attempt to do so. This was part of the ongoing sale or supply of methylamphetamine to Mr Wilson-Nguyen. I do not accept Ms Harris' evidence to the contrary. Rather, her intention is evident from the message in CSN 3251 ([114]) in which she speaks about what I find to be ordering drugs. I add to these facts the fact that Ms Harris had close connections with at least one person who had access to methylamphetamine, being her partner Mr Green ([23] and [31]).
[90] Baker [62] (quoted at [16]).
I also find beyond a reasonable doubt that Ms Harris had the capacity to fulfil the offer. This is evident from the message at CSN 3255 ([117]) in which she speaks about being 'ready', in the context of what I have found in the preceding paragraph. I do not accept her evidence to the contrary. The only possible interpretation of CSN 3255 in the context of the surrounding messages is that she was ready to proceed with the transaction the subject of the offer which is count 3. This capacity may have been that she had the required amount of methylamphetamine in her possession. It may have been that she could have gone and collected the methylamphetamine once she had confirmation from Mr Wilson-Nguyen that the sale would proceed or had received some money from him. I make no finding in this regard.

Count 2

Matters not in issue

By her plea to count 2, Ms Harris has admitted that she offered to sell or supply a prohibited drug to another. As with count 3, a fact inherent in the plea is that the offer she made was a serious offer, one made with the intention that it be regarded as genuine by Mr Wilson-Nguyen.
There are three particulars: that the offer was made on 11 September 2019; that it was made near Noranda and that the prohibited drug involved was methylamphetamine. The first two particulars are not in issue; the third is the subject of the trial of issues.
Specifically, it is not in issue that it was Ms Harris whom Mr Wilson‑Nguyen was communicating with in the Count 2 TI Product, both in the SMS messages and the telephone conversation.[91]
[91] ts 190 - ts 192 (Harris).

It is not in issue, and I find, that the offer the subject of count 2 was made in the Count 2 TI Product, which all occurred on 11 September 2019.
That material begins with CSN 2370, which is the transcript of a telephone conversation between the two of them at 38 minutes past midnight on 11 September 2019:
WNHello.
HHey.
WNAre you still good?
HI'm just going now.
WNAre you gonna go now?
HYeah, like, I'm nearly there and back soon in about 15, 20 minutes.
WNAll right. So where are you at – you going to there now?
HYeah, I'm nearly there.
WNIn Joondalup or?
HDown at - - -
WNOkay [indistinct] near mine?
HPardon?
WNAre you gonna go anywhere near mine?
HUm, I haven't decided. If I go and get John, I will be.
WNOkay [indistinct]
H[indistinct]
WNUm, yeah, well I can come to you. I – I [indistinct] in the area be be easier for you to drop in.
HYeah, if you wanna [indistinct] meet me there.
WNYeah, well, um [indistinct] where am I meeting you?
HAt mine.
WNOkay, yours, yeah – yeah. That's cool.
H[indistinct]
WNI want – I want – I want a Q though.
HYeah, um, I might what do you call it – might, um, jump to your way. I don't want your car driving at mine.
WNHey what's that?
HI don't you want driving to mine tonight – I'll come your way.
WNOkay. Why's that it's my car?
HTrying to keep it down low.
WNOkay, yeah – yeah – yeah sweet as yeah, cool – cool. All right. Well, I can meet you up the road anyway [indistinct] it doesn't have to be yours.
HYeah – yeah, I'll call you when I'm nearly home and leave here.
WNYeah, all right, too easy.
HOkay.
WNAll right, ta.
CSN 2373 is a SMS from Mr Wilson-Nguyen to Ms Harris sent at 1.11 am on 11 September 2019 in which he says: 'You ready yet???'
CSN 2375 is the transcript of a telephone conversation between the two of them at 1.13 am on 11 September 2019:
WNHello.
HHello. I'm nearly home.
WNYeah, cool. Um, do you want me, um, it's only just me coming.
HYeah, but I don't want your car coming up the street.
WNOkay.
HOr anywhere near my house tonight.
WNBut where can I meet you then?
HOtherwise, um, I will meet you, um, somewhere else.
WNSo if I park up the road can I walk to you?
HSomeone's [indistinct] hey?
WNIf I park up the road, can I walk to yours?
HUm, yeah, fucking, um.
WNHello.
HYeah – well, yeah , well, don't park on the [indistinct] maybe, yeah - - -
WNI'll park round the bend – round the bend on the other side near the freeway
HYeah, on the other side of the bridge there.
WNYep.
H[indistinct]
WNAll right. See you. Bye.
HBye.
CSN 2403 is a SMS from Mr Wilson-Nguyen to Ms Harris sent at 7.35 pm on 11 September 2019 in which he says: 'Hey I'm heading over if Algood with you?'
CSN 2404 is a SMS from Ms Harris to Mr Wilson-Nguyen sent at 7.35 pm on 11 September 2019 in which she says: 'Did u just call'.
CSN 2405 is a SMS from Mr Wilson-Nguyen to Ms Harris sent at 7.35 pm on 11 September 2019 in which he says: 'Yeah'.
CSN 2418 is a SMS from Mr Wilson-Nguyen to Ms Harris sent at 7.53 pm on 11 September 2019 in which he says: 'I'm around the corner 10-15 won't be long and I'll be on foot'.

What prohibited drug was offered?

The State contends that in the Count 2 TI Product, Ms Harris offered to supply Mr Wilson-Nguyen with a quarter of an ounce, 7 g, of methylamphetamine. The defence position was that the drug was cannabis.[92] These are the only two inferences open on the evidence.
[92] ts 92 (submissions).
The State accepts that the reference to a 'Q' in CSN 2370 could be to a quarter of an ounce of methylamphetamine, but it also could be to a quarter of an ounce of cannabis. It also accepts that there is no pricing information which points to the subject of the discussion being methylamphetamine.[93]
[93] ts 291 - ts 292 (submissions).
As to Ms Harris' position, the telephone conversation which is CSN 2370 ([150]) was played in court. Mr Harris initially gave evidence that at the time she did not hear Mr Wilson-Nguyen say that he wanted a 'Q'.[94] It is most implausible that Ms Harris could remember a conversation which occurred some nearly three years prior in sufficient detail to remember something she did not hear. She then later clarified that this was not what she meant.[95] I regard this as an example of Ms Harris trying to embellish her evidence.
[94] ts 191 (Harris).
[95] ts 257 (Harris).
In relation to what drug was offered in count 2, Ms Harris initially said that she was supplying Mr Wilson-Nguyen with cannabis:[96]
All right. Okay. So in that series of phone calls and text messages that you agree related to you, what were you dealing with? What - what did you believe you were doing?---I was getting him pot - cannabis.
This evidence was in general terms and not specifically in relation to count 2. She also said that she never actually met with him or sold him anything.[97] In cross-examination she said that she never sold any cannabis to Mr Wilson-Nguyen.[98] So in the end there is no factual basis for the inference that the prohibited drug which Ms Harris accepted she was offering to sell in count 2 was cannabis.
[96] ts 192 (Harris).
[97] ts 192 (Harris).
[98] ts 238 (Harris).
Rather, Ms Harris' evidence was that she agreed to supply Mr Wilson‑Nguyen with a 'quarter or seven grams' of drugs, but that this was a lie, part of the Ruse. As to what would happen when he arrived: 'I take his money and I leave'.[99] This does not make sense if the drug was cannabis, as 7 g (a quarter of an ounce) of cannabis would only cost about $175.[100] It only makes sense if the drug was methylamphetamine, a quarter ounce of which would have cost between $1,450 and $2,200.[101]
[99] ts 257 - ts 258 (Harris).
[100] ts 166 (Symons).
[101] ts 165 (Symons).
I add two further facts to the analysis in [164]. The first is my finding from the Count 1 TI Product that the prohibited drug Mr Wilson‑Nguyen was wanting to purchase in that transaction was methylamphetamine. This is circumstantial evidence making it more probable that that the drug the subject of count 2 is also methylamphetamine.
The second is my finding, beyond a reasonable doubt, that the prohibited drug the subject of count 3 was methylamphetamine. This again makes it more probable that the drug the subject of count 2 is also methylamphetamine.
In my view, the only rational and reasonable inference is that the prohibited drug which Ms Harris was offering to sell in count 2 was also methylamphetamine. In the context of the evidence as a whole, the alternate inference that it was cannabis is not a reasonable one, one which a reasonable person would draw from a consideration of all the facts established by the evidence. I thus find this fact proven beyond a reasonable doubt.

Intention, capacity and fulfilment

The State's case is that intent, capacity and attempted fulfilment can be inferred from the detailed arrangements set out in the TI Product. Counsel for Ms Harris again contended that the offer the subject of count 2 was a lie, part of the Ruse, and that Ms Harris did not have any intention or capacity to fulfil the offer, and had not attempted to do so.
The reasons leading me to not accept that Ms Harris was lying when she made the offer the subject of count 3 ([142] - [144]) apply equally to count 2. As does my finding that during the period covered by the TI Product, 31 August 2019 to 16 October 2019, Ms Harris was engaged in the ongoing sale or supply of methylamphetamine to Mr Wilson‑Nguyen ([146]). Again, it follows that the facts of the offending as set out in the indictment may be taken at face value, being that Ms Harris intended to sell or supply the prohibited drug in accordance with the terms of the offer. Specifically, I find beyond a reasonable doubt that Ms Harris had the intention to at least try and fulfil the offer the subject of count 2 and that she made some attempt to fulfil the offer. This was part of the ongoing sale or supply of methylamphetamine to Mr Wilson-Nguyen. I do not accept Ms Harris' evidence to the contrary. Rather, the conversations in CSN 2370 ([153]) and CSN 2375 ([155]) and the messages at CSN 2403 ([156]) and CSN 2418 ([159]) strongly suggest that Mr Wilson-Nguyen was attending Ms Harris' house at 7.35 pm to collect the drugs the subject of the offer, and was doing so, at her request, in a manner that was somewhat suspicious (having to park away from her house and walk to it). This only makes sense if Ms Harris was making some attempt to source the methylamphetamine to complete the transaction. A social visit would not have required this subterfuge.
As to whether she had the actual capacity to fulfil the offer and whether the sale went ahead, Ms Harris gave evidence that she did not have methylamphetamine to supply to Mr Wilson-Nguyen,[102] that she never sold methylamphetamine to him,[103] and that aside from the initial visit and an occasion when his car broke down, he did not come to her house.[104] Again, the messages at CSN 2403 ([156]) and CSN 2418 ([159]) strongly suggest that Mr Wilson-Nguyen was attending Ms Harris' house to collect the drugs the subject of the offer. This only makes sense if she had the actual capacity to fulfil the offer. So I am not persuaded on the balance of probabilities that Ms Harris did not have the actual capacity to fulfil the offer and that the offer did not proceed to a sale.
[102] ts 239 (Harris).
[103] ts 238 (Harris).
[104] ts 241 (Harris).
However, in distinction to count 3, there is no communication from Ms Harris to the effect that she was in fact ready to give effect to the offer or had the actual capacity to do so. So, I cannot find beyond a reasonable doubt that Ms Harris had the capacity to fulfil the offer the subject of count 2. I make no finding in this regard.
Further, the State accepts that it cannot prove beyond a reasonable doubt that a sale in fact occurred.[105] That concession is appropriate as a reasonable alternate inference which the evidence does not exclude is that Mr Wilson-Nguyen never showed up that evening and that the offer did not in fact proceed to a sale. So I make no finding on this issue and she is to be sentenced on the basis that it is not known whether the offer the subject of count 2 proceeded to an actual sale.
[105] ts 292 (submissions).

Summary

In summary, I find beyond a reasonable doubt that during the period covered by the TI Product, 31 August 2019 to 16 October 2019, Ms Harris was engaged in the ongoing sale or supply of methylamphetamine to Mr Wilson-Nguyen.
In relation to count 2, the offer was made in a telephone conversation between Ms Harris and Mr Wilson-Nguyen on 11 September 2019 with the details being discussed in subsequent SMS messages. The offer was a serious offer, one made with the intention that it be regarded as genuine by Mr Wilson-Nguyen.
As to the seriousness of this offending, I find beyond a reasonable doubt that:
(a)the offer concerned the sale or supply of methylamphetamine;
(b)Ms Harris had the intention to at least try and fulfil the offer; and
(c)that she made some attempt to fulfil the offer.
I make no finding as to whether Ms Harris in fact had the capacity to fulfil the offer and whether the sale in fact proceeded.
In relation to count 3, the offer was made in a telephone conversation between Ms Harris and Mr Wilson-Nguyen on 26 September 2019 with the details being discussed in subsequent SMS messages. The offer was a serious offer, one made with the intention that it be regarded as genuine by Mr Wilson-Nguyen.
As to the seriousness of this offending, I find beyond a reasonable doubt that:
(a)the offer concerned the sale or supply of methylamphetamine;
(b)Ms Harris had the intention to fulfil the offer and made some attempt to do so; and
(c)she had the capacity to fulfil the offer.

I accept on the balance of probabilities that this sale or supply did not in fact proceed, though this was because the purchaser was not happy with the price Ms Harris offered.
However, I also accept on the balance of probabilities that, whilst Ms Harris was engaged in the sale or supply of methylamphetamine to Mr Wilson-Nguyen, she was looking for an opportunity to recover from him the $1,400 which he in effect stole from her some 18 months prior. This, as with her offending generally, was motivated by the financial pressure she was under at the time, with her partner, the sole breadwinner for the family, about to commence a term of imprisonment.
Given Ms Harris' limited personal use of methylamphetamine and constrained financial situation, I also find that the primary motivation for this offending was commercial gain.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
SVH
Associate
21 JULY 2022