The State of Western Australia v Nammour - [2023] WADC 49

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- NAMMOUR [2023] WADC 49
CORAM:   RITTER DCJ
HEARD:   2-3 MARCH 2023
DELIVERED          :   5 MAY 2023
FILE NO/S:   IND 1765 of 2021
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
AND

ELIN NAMMOUR

Catchwords:

Sentencing - Trial of issues - Possession with intent to sell or supply - Whether the offender did not intend to sell the drug - Onus of proof and standard of proof in sentencing - Offender required to prove on the balance of probabilities

Legislation:

Criminal Code (WA), s 417(1)
Evidence Act 1906 (WA), s 31A
Misuse of Drugs Act 1981 (WA), s 6(1)(a)

Result:

Trial of issues determined

Representation:

Counsel:

The State of Western Australia	:	Mr S M Stocks
Accused	:	Ms J T Fisher

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Justine Fisher Barristers & Solicitor

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

Law v The State of Western Australia [2009] WASCA 193
McNamara v The State of Western Australia [2013] WASCA 63
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
The State of Western Australia v Gorgievski [2015] WADC 103
The State of Western Australia v Thompson [2014] WASCA 108

RITTER DCJ:

Background to trial of issues

Ms Nammour's trial was set to commence before a jury on 1 March 2023.
The indictment dated 6 December 2021 alleged that:
(1)On 29 October 2020 at Mandurah Elin Nammour had in her possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
(2)On the same date and at the same place Elin Nammour was in possession of a thing capable of being stolen namely a sum of money, that is reasonably suspected to have been unlawfully obtained.
The first count in the indictment was brought pursuant to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). The second charge was brought pursuant to s 417(1) of the Criminal Code (WA).
On the morning the trial was to commence, the court was advised that, after discussions between counsel, Ms Nammour had decided to plead guilty to both charges, but there was a significant dispute as to the facts comprising the offending.
Accordingly, Ms Nammour was then formally arraigned and pleaded guilty to both charges.
The jury panel was then dispensed with.
A trial of the issues, relevant to the facts to be found by the court in sentencing Ms Nammour for both charges then occurred.
During the trial of issues, the State put the following into evidence:
1.The prosecution file, including the documentary exhibits, contained in a file within 19 tabs.[1]
2.Recorded footage from Western Australia Police executing a search warrant at 8.15 pm on 29 October 2020 at an apartment at Seashells Resort, Mandurah where Ms Nammour, the quantity of drugs, the money the subject of count 2 and drug paraphernalia was located.[2]
3.Excerpts of footage taken by the body worn camera of one of the police officers when executing the search warrant.[3]
4.The transcript of the sentencing proceedings of Ms Nammour by Davis DCJ on 18 September 2017.[4]
[1] Exhibit 1; ts 50.
[2] Exhibit 2; ts 50.
[3] Exhibit 3; ts 51.
[4] Exhibit 5; ts 106.

The issues to be tried and the essential facts

The major dispute for count 1 was whether the drugs admittedly possessed by Ms Nammour for the purpose of sale or supply, were for sale to associates of Ms Nammour or, as she alleged, simply for the supply to her boyfriend, Mr Mark Kennett, and for personal use.
The major dispute for count 2 was the amount of money that Ms Nammour had in her possession that originated from unlawful activities. This will be further explained below.
Ms Nammour was arrested following Western Australia Police executing a search warrant on 29 October 2020, at an apartment at Seashells Resort, Mandurah. Ms Nammour and Mr Kennett were present.[5]
[5] ts 51.
The police seized methylamphetamine weighing 4.36 g at 82% purity. The drugs were found in clip seal bags in Ms Nammour's handbag. Three smaller clip seal bags inside a medium clip seal bag contained 1.03 g, 3.21 g and 0.12 g of methylamphetamine respectively.[6]
[6] ts 51.
Also located in Ms Nammour's handbag was $220 cash. This was located in the same pocket of the handbag as the clip seal bags containing the methylamphetamine. In a separate pocket of the handbag, police seized $11,650 in cash, in $50 and $100 denominations. Accordingly, Ms Nammour had a total of $11,870 cash in her handbag. It was this money which was the subject of count 2.[7]
[7] ts 51.
In searching the main bedroom of the apartment, the police located a set of digital scales, two glass drug smoking implements, a large quantity of small clip seal bags and a notebook. The notebook contained what was admittedly handwritten notes of drug dealing and a 'tick list' of people who owed amounts of money for drugs (the tick book).[8] Ms Nammour admitted both that the tick book belonged to her and the handwriting in the book belonged to her.
[8] Exhibit 4; ts 104.
One of the factual issues in dispute was whether the information recorded in the tick book was about the sale of drugs that Ms Nammour had made in 2020, just prior to her arrest, as contended for by the State, or whether it was about the sale of drugs by Ms Nammour in the 2015 ‑ 2016 period and prior to her arrest on 15 September 2016.
Ms Nammour had been arrested on 15 September 2016 following a Misuse of Drugs Act search warrant being carried out at Ms Nammour's then house in Margaret River.[9] During the search, police found a total of 32.38 g of methylamphetamine. There were a number of bags containing methylamphetamine with the largest quantity being 27.1 g with a purity of 82%. Another bag contained 4.24 g with a purity of 81% and there were five other bags containing smaller quantities ranging from between 0.4 g and 0.51 g. The police also located and seized a number of empty clip seal bags, scales, 'tick lists' and weapons.
[9] ts 107.
As a result of the 15 September 2016 search and arrest, Ms Nammour was charged with possession of methylamphetamine with intent to sell or supply. Ms Nammour pleaded guilty to the offence and was sentenced by Davis DCJ in the District Court on 18 September 2017, to a total effective sentence of 2 years and 8 months. Ms Nammour was also declared a drug trafficker.
In the present proceedings, the State made an application dated 3 December 2021 for the leave of the court, pursuant to s 31A of the Evidence Act 1906 (WA) to lead evidence of the conduct relating to the conviction just mentioned at Ms Nammour's trial.[10]
[10] Bunbury IND 55 of 2017.
The application was determined in favour of the State by Wallace DCJ on 2 May 2022.
Although the trial in the present proceedings against Ms Nammour did not occur, the fact and evidence constituting the facts of the previous conviction are relevant for the purpose of the trial of issues. They are relevant, firstly, as evidence of propensity with respect to assessing the conduct of Ms Nammour on the present charges. It is secondly relevant because as stated, Ms Nammour said that the tick book in her possession when arrested on 29 October 2020 related to sales of drugs during the 2015 - 2016 period. It was the evidence of Ms Nammour, in the trial of issues, that she was still endeavouring to be paid sums of money owed to her by the people named in the tick book, in the period leading up to 29 October 2020.
The plea of guilty upon count 2 by Ms Nammour was on the basis that about $4,000 of the money in her possession in her handbag was money that she received from people who had owed her money for drug sales prior to her arrest in 2016. However Ms Nammour contended the balance of the funds was lawfully obtained, principally, on her version of events, from the sale of her car and winnings from online casino gambling.[11] As set out below, there is some documentary evidence supportive of this assertion.
[11] ts 157.
Apart from the items referred to earlier, on 29 October 2020, the police also seized mobile telephones from within the apartment.
As recorded in the Western Australia Police interim property receipt/physical material log number 383907 for prosecution file tab 3, written on 29 October 2020, the police seized a white Aspera mobile telephone found on the floor in the lounge room and also a white Oppo mobile telephone found on a coffee table in the lounge room. A black Samsung mobile telephone found on the coffee table was recorded on receipt/physical material log number 383911 but is crossed out.[12] This is consistent with that item not being seized.
[12] ts 112.
The State relied upon evidence extracted from the seized telephones in support of its contentions. This evidence will be referred to in more detail below.

The trial of issues hearing

The State led oral evidence from Detective Senior Constable James Stewart.[13] His evidence was principally in the nature of expert evidence as to the language used by those in the drug trade, the availability of methylamphetamine for sale and supply between 2015 and 2020, the fluctuating prices of the drug in the same period, the paraphernalia used by methylamphetamine traders and the quantities of the drug that were commonly for sale. Detective Senior Constable Stewart's evidence is further described below. He was the only witness called by the State.
[13] ts 55.
As anticipated, Ms Fisher for Ms Nammour then announced that Ms Nammour elected to give evidence in the trial of issues. She then did so and was examined and cross‑examined. There was no re‑examination.
Following this, counsel for the State and Ms Nammour made submissions as to the findings they submitted I ought to make in determining the trial of issues and hence the level of seriousness of the offending.
I then said the matter would be adjourned to a sentencing date, but that prior to the sentencing hearing I would publish my reasons with respect to the trial of issues. In addition, a written pre-sentence report was ordered.
The sentencing date was then set down for 14 April 2023. The sentencing could not however proceed on that date, and a new date of 5 May 2023 was set instead.

Ms Nammour's contention

As stated, Ms Nammour's position was that the drugs in her possession were for personal use and the only supply was to be to her boyfriend, Mr Kennett. With respect to the cash, she admitted that about $4,000 of it was obtained illicitly, on the basis of people paying off drug debts to her for dealing that had occurred prior to her arrest in September 2016. However, she maintained that the balance was lawfully obtained and in particular from documented winnings on an internet casino game and the sale of her car in August 2020 for $8,000.[14]
[14] ts 157.

Evidence of Detective Senior Constable Stewart

I have earlier set out in summary form the purpose of the State calling Detective Senior Constable Stewart.
The transcript of the proceedings of Ms Nammour's prosecution in the District Court at Bunbury on 18 September 2017 was also tendered through Detective Senior Constable Stewart and became exhibit 5.
In his evidence-in-chief, Detective Senior Constable Stewart said, relevantly:
(a)In 2020 he was a senior constable based at the Mandurah detective's office and dealing with serious, violent and drug offending.[15]
[15] ts 55.
(b)He had been a serving police officer for just over seven years in Australia and before that, seven years in the United Kingdom.[16]
[16] ts 55.
(c)Drug prices have fluctuated since 2015 due to supply and demand issues.[17]
[17] ts 56.
(d)In 2020 in Western Australia, during the COVID-19 interstate transport restrictions, there was a drugs 'dry'. This was because it was difficult to get drugs across state borders and moving through the metropolitan area. This caused prices to rise.[18]
[18] ts 56.
(e)A point is the name for 0.1 g of methylamphetamine. This is the basic quantity of a deal.[19]
[19] ts 56.
(f)In 2015 the price for a point was between $50 and $100.[20]
[20] ts 57.
(g)In 2020 the price for a point of methylamphetamine was between $150 to $170.[21]
[21] ts 57.
(h)In the 'drug lexicon' a 'B' and 'HB' are a ball and half-ball of methylamphetamine. A ball is sometimes also called an eight ball. This is because it is an eighth of an ounce of methylamphetamine. This equates to 3.5 g. A half-ball is 1.75 g.[22]
[22] ts 57.
(i)In 2015 a ball or an eight-ball or 3.5 g of methylamphetamine cost around $1,000 to $1,500. In 2020 the price went up to $2,500. At the height of the scarcity of supply the price was upwards of $7,000 for a ball, eight‑ball or 3.5 g of methylamphetamine. This was during COVID‑19 when drug supply was interrupted.[23]
[23] ts 58.
(j)Where there was a purity of the drug of 82% this was consistent with a commercially produced sample of methylamphetamine.[24]
[24] ts 59.
(k)The clip seal bags that were seized from Ms Nammour's apartment were the types of bags that are commonly called 'deal bags' and used to contain a point of methylamphetamine.[25]
[25] ts 60.
(l)In Ms Nammour's handbag there was a piece of cardboard which she said during the search had come from the tick book, found in her bedroom. On the piece of cardboard there was writing saying 'Lou paid $3 for the two she grabbed earlier'. The $3 could be a reference to $300. There was also written on the cardboard 'K + L paid $1,000'.[26]
[26] ts 61.
(m)Also located during the search was an item commonly referred to as a 'meth pipe'. This was a glass smoking implement.[27]
(n)Scales that were seized from the apartment were of the type commonly used to measure out quantities of drugs.[28]
(o)Detective Senior Constable Stewart was asked about the entries on a number of pages of the tick book.
(p)The detective said that 'tick' is providing somebody with drugs on the basis they will pay you when they have the money available.
(q)During the search warrant Ms Nammour told the detective that the tick book was from when she was previously arrested in 2016.
(r)References in the book to 2B and 1HB could be a reference to two balls and one half-ball of methylamphetamine. A half-ball listed in the book as being worth $6,500 is not consistent with 2015 ‑ 2016 prices but is consistent with 2020 prices.
(s)The detective gave similar evidence with respect to numerous items within the tick book. For example, an amount listed of $1,400 was consistent with 2020 prices for a half-ball which was more than double the 2015/2016 price for a half-ball.
(t)Detective Senior Constable Stewart was asked questions about numerous entries in the tick book about a person called 'Deb'.
(u)One of the references in the tick book was to Deb getting a half‑ball for $600. The detective said that was not consistent with 2020 prices.
(v)A 14 g amount of methylamphetamine is sold and known as a half-ounce or an H-O.
[27] ts 62.
[28] ts 63.
In cross-examination Detective Senior Constable Stewart said the following:[29]
[29] Cross-examination starts at ts 107.
(a)There was an orange container on the bedside table in the apartment which housed the digital scales. There was methylamphetamine in a bag in this location as well as in bags in Ms Nammour's handbag.
(b)A drug user usually stores methylamphetamine in clip seal bags.
(c)Clip seal bags can be purchased in batches of 10, 20 or 30 or much bigger batches than that. The detective had been told in the past that drug users separate methylamphetamine into different bags to ensure that they do not overuse/overdose.
(d)Sometimes drug users weigh their drugs out on scales.
(e)It can be relatively cheaper for drug users to buy their drugs in larger quantities rather than smaller quantities. Accordingly, a user could buy a larger quantity than they intended to use on the day.
(f)A person who is using drugs might be in possession of needles or smoking implements to take the drugs.
(g)From the interim property receipt of items seized on the day at the apartment occupied by Ms Nammour, there were two smoking implements found and seized. One was at the side table of the master bedroom and one was on top of the wardrobe of the master bedroom.
(h)Quite often larger smoking implements are used for cannabis and smaller implements are used for methylamphetamine, although there can be substitution between them.
(i)From within the room and the area where the detective was searching there was evidence that somebody had been using methylamphetamine there.
(j)There is no independent information as to where the cash came from that was found in Ms Nammour's possession.
(k)Based on police information, drug prices were appreciably higher in 2015 than they were in 2016.
(l)This was from supply and demand issues and there are many things which may affect supply and demand.
(m)If there is a 'huge arrest' in Western Australia of an amount of methylamphetamine it can affect local supply.
(n)The cost of methylamphetamine is demand and supply sensitive and giving prices for a given year is an educated estimate based upon averages.
(o)For 'street end-level dealing' anything from a point to a half-ball may be involved and the prevalence of that kind of dealing is much greater than dealing in kilograms of methylamphetamine.
(p)With respect to Ms Nammour and selling drugs, Detective Senior Constable Stewart looked at the tick book to try and obtain price estimates from that.
(q)Detective Senior Constable Stewart agreed that from the notes written in the tick book there was a pattern of recording each transaction taking place.
(r)Although not the arresting officer on 15 September 2016, Detective Senior Constable Stewart could say that Ms Nammour was then arrested at a property in Margaret River with 33-odd grams of drugs. Twenty-eight grams is an ounce. And so, Ms Nammour was 'picked up' with a little over an ounce.
(s)The only date revealed within the tick book was on page 2. The date was 9 September 2015. That date preceded the rest of the pages in the tick book which were written on.
(t)During the period that Ms Nammour was selling drugs in 2015 and 2016 she might have sold them for more or less than somebody else.
(u)Detective Senior Constable Stewart's evidence-in-chief about prices was based upon his knowledge of the prices at the time. The evidence about prices in 2015 was based upon information held by police and the 2020 prices were based on that information plus the detective's own experience of how much a drug was worth at that time.
(v)Within the tick book there are pages that have been torn out.
(w)In 2020 methylamphetamine was hard to come by even for a 'well‑seasoned dealer'.
(x)Later into 2020 and 2021 people were paying upwards of $25,000 for an ounce of methylamphetamine.
(y)In October 2020 the price of an ounce of methylamphetamine could well have been as high as $25,000. It could well have been higher because the year was 'chaos, in terms of pricing for drugs'.
(z)Generally, in 2020 throughout the year the prices went up. However, 'pricing isn't an exact science'.
(aa)Based upon the context of the entries within the tick book, the pages that were missing do not have any bearing upon the contents of the book.
(ab)Detective Senior Constable Stewart was taken to an amount owed, according to the tick book, from Kato and Lochie of $7,440. This debt was referred to on a number of pages. Detective Senior Constable Stewart inferred from the amount owed that they were regular users. He also agreed that the entries within the tick book could have taken place within days of each other.
(ac)According to the tick book the amount owed by Kato and Lochie went down by $1,000 when they paid that amount and was then recorded as being $6,440. From page 11 through to pages 16 and 19, the amount of Kato's and Lochie's debt was still $6,440 indicating all of the listings in the tick book could have taken place within a few days. This continued through to page 27. One of the entries on page 27 was a half-weight for Lochie of $400. A half-weight is half a gram or five points. A point would have been worth about $150 in 2020. Accordingly, five points or a half-weight for $400 was not consistent with 2020 prices. Based upon that transaction the detective agreed that there was evidence of prices that might have been charged in 2015. On page 31 there was a summary with respect to Lochie and Kato on an entire page which showed all of their transactions.
(ad)On page 33 of the tick book the reference in relation to Kato and Lochie was owing $5,590 which suggested no further movement in their debt.
(ae)On page 37 their debt remained at $5,590. This was also recorded on page 39 of the tick book. On page 40 there was the entry 'need to call to round up some coin' and then five named clients including Kato and Lochie with the amount 500 written next to their names.
(af)On page 42 there was then recorded that Lochie and Kato paid $1,000 which would have left a balance of $4,590.
(ag)On page 43 of the tick book this was the amount recorded for Kato and Lochie's debt, amongst other debts owed to Ms Nammour. On pages 44 - 45 of the tick book there was a reference to Kato and Lochie which says: 'We took another $1,000 out but Mick only wanted to pay off $500 I now owe him $500 and there [sic] new balance is $4,590 - $500 = $4,090. I also owe Mick $500'. Page 45 was the last page of the tick book.
(ah)On page 43 there was a running summary which indicates there was about $20,000 owed at the time whoever was writing the book stopped writing it.
(ai)Detective Senior Constable Stewart agreed that the transactions over the pages could have taken place over a number of days.
(aj)Detective Senior Constable Stewart agreed that when a search warrant was issued, officers may not necessarily pick up every item of relevance including every tick book that a person might have in their possession.
(ak)In 2020 no search warrant was executed at the home of Ms Nammour, only the resort apartment room where she was staying.
(al)The detective was asked whether he agreed that in his experience the prices referred to in the tick book may well be a reference to prices relating to 2015. He answered that reviewing the transactions other than the ones he had been asked about there was a reference to somebody owing $150 which would be a point in 2020. However, the detective also confirmed that a point in 2020 could have sold for much more than $150 and that 'potentially' in 2015 a point could have sold for as much as $150.
(am)The detective was then asked 'where we do have evidence of amounts of sales in these notes, do you agree that they are consistent with potentially being notes relevant to 2015'. The detective answered 'they could be'.

In re‑examination Detective Senior Constable Stewart said:[30]
(a)From viewing the video of the search of Ms Nammour's hotel room at 0:06:47 there is a book matching the tick book which is on the bedside table next to the orange container.
(b)A number of telephones were seized at the hotel room. One of the telephones had the Signal application. Signal has been used for about the last five or six years. Detective Senior Constable Stewart was not aware that Signal was in use in 2015 or 2016.
[30] Re-examination starts at ts 140.

Additional documentary evidence

The sentencing transcript of the hearing before Davis DCJ on 18 September 2017 recorded that the matter came to the court by way of an expedited committal for sentence.[31]
[31] Exhibit 5; ts 106.
A search of an address in Tingle Avenue, Margaret River had taken place on 15 September 2016. Ms Nammour directed police to cannabis and utensils used for smoking cannabis and methylamphetamine in her bedroom claiming that they were for personal use. Later during the search warrant police located a small locked black box behind the headrest cushion of the lounge room sofa. The police located the keys to the locked box inside a pillowcase of one of the pillows on the sofa. Ms Nammour had claimed she did not know where the box had come from or who it belonged to. The locked black box contained numerous clip seal bags containing methylamphetamine with various quantities of methylamphetamine totalling 32.38 g. The police also located and seized empty clip seal bags, scales, tick lists and weapons.
In mitigation it was submitted Ms Nammour had pleaded guilty at the first committal mention date on 20 April 2017 which was a relatively early stage after having received the State brief. It was submitted that Ms Nammour got into drug dealing through a series of misfortunes that commenced with the death of her partner in January 2016. She was then living in Perth and had children aged 8 and 6. Following the death of her partner the lease on the house where they were staying was terminated and Ms Nammour became homeless. Ms Nammour started sleeping in the car with her two children in the Margaret River area and began to use methylamphetamine. Ms Nammour became addicted and commenced selling to support her own habit and to support her children.
It was accepted that Ms Nammour had tick lists in her possession.
Prior to her involvement with drugs, Ms Nammour had spent nine years as a regional manager for Beds Plus until it went into liquidation. Ms Nammour completed Year 12 of high school and also held a Diploma in Beauty Therapy. Ms Nammour had been in custody prior to sentencing on that date. It was said on her behalf that Ms Nammour wanted to be 'drug free upon her release'.
The State submitted to Davis DCJ that the major aggravating factor was there was an ongoing commercial enterprise. Reference was made to the evidence constituted by the tick lists.
In sentencing, her Honour said that severe penalties were required because of the clear evidence of the detriment that methylamphetamine causes to people who use it and the people who are the victims of the aggressive and criminal behaviour of methylamphetamine users.
Her Honour accepted that it was an aggravating factor that Ms Nammour was selling the drug and it was as the State says an 'ongoing commercial enterprise'. Her Honour said the fact that Ms Nammour was also using and dealt in drugs to support her habit did not reduce the seriousness of the offending. Her Honour referred to the reasons of Mazza JA in McNamara v The State of Western Australia[32] where his Honour said that the use of illicit substances for any mental health issue is not mitigatory even when it might be considered to be causally related to the offending.
[32] McNamara v The State of Western Australia [2013] WASCA 63 [119].
Her Honour also mentioned Ms Nammour's criminal record which listed convictions for stealing in 2004, fraud in 2009 and not having an authority to drive in 2010. There was then a drug‑related conviction in April 2015 for an offence committed on 28 February 2015, of possession of drug paraphernalia in or on which there was a prohibited drug. Her Honour commented that this showed Ms Nammour was using illicit drugs before the death of her partner in early 2016. There were other convictions for no authority to drive between February and July 2016 and a conviction in May 2016 for providing false or misleading personal details. There was another conviction in August 2016 for stealing.
Her Honour observed that Ms Nammour's criminal record meant that she could not be treated as a person of good character.
Her Honour commented that whilst on remand at Bandyup Prison Ms Nammour had done courses to improve her situation and done a bridging course to get into university where Ms Nammour planned to study commerce. It was also said to be to Ms Nammour's credit that she pleaded guilty and had expressed remorse. Her Honour accepted that Ms Nammour wanted to be drug free on her release. Taking into account a discount of 20% for Ms Nammour's plea of guilty, her Honour imposed a sentence of imprisonment of 2 years 8 months with eligibility for parole and backdated it to 15 September 2016, being the date when Ms Nammour was arrested and taken into custody.
The Western Australia Police interim property receipt 383907, referred to earlier, and dated 29 October 2020 at 2015 recorded that the cash, clip seal bags, a glass smoking implement, black and orange digital scales, a large smoking implement, a clip seal bag containing crystal material, a black book tick list, a white Aspera mobile telephone and white Oppo mobile telephone were seized from the premises. Photographs of these items were tendered in evidence.
As noted during the evidence of Detective Senior Constable Stewart the tick book only had one date written in it. This was 9 September 2015 and was above a list with a heading in red, 'Who I Think Won't Pay Me'. There was then listed eight 'clients' with a total balance owed of $4,500. The page before this in the tick book recorded domestic arrangements including buying Ms Nammour's son his 'stuff' for Christmas, enrolling her daughter into high school and checking the 'status' of her 'Versace sunglasses'. There was also reference to needing to buy 'lino' for the kitchen floor and the laundry cupboard and the need to get carpet cleaned again.[33]
[33] ts 68.
On page 3 there was a list in the same format as the list on page 2 except on this occasion the list was headed in red, 'Who I think Will Pay Me'. The list contained 12 clients with a total balance owed of $13,270. There was then a reference to cash on hand and stock available.[34]
[34] ts 69.
I have earlier referred to the evidence of Detective Senior Constable Stewart with respect to the amounts that the drugs were being sold for as recorded in the tick book and in particular with respect to Deb in examination‑in‑chief and Kato and Lochie in cross‑examination.
The document at tab 10 of the prosecution file of documents is a certificate authorising disclosure of protected information under the Social Security (Administration) Act 1999 (Cth) and other legislation. The certificate disclosed that recorded on a Centrelink database was the name Elin Nammour with a date of birth of 23 August 1985. The certificate records a period of interest of 1 January 2020 to 29 October 2020. In the certificate, Ms Nammour's mobile telephone number is recorded as being **** *** 062 as at 13 November 2019, and her email address recorded as **@**.[35]
[35] ts 240.
There was also recorded a Centrelink payment history from 1 January 2020 to 29 October 2020 of the Family Tax Benefit amount of $11,949.08 net, Newstart Allowance of $257.20 net and Jobseeker payment of $9,209.24 net.
Each of these amounts was said in parenthesis to be approximate but it is unclear why such exact amounts were labelled as approximate.
The documentary evidence also included at tab 13 of the prosecution file a 'Cellebrite Report'. In his statement that was received into evidence as part of the State prosecution file, Sergeant Harbir Singh Pandhaal said he was a certified operator relating to the Universal Forensics Extraction Device known as UFED tool developed by Cellebrite, having completed their operator training course. Sergeant Pandhaal said that on 30 October 2020 he was asked to extract data from two mobile telephone devices and SIM cards. The two devices were an Oppo mobile telephone with a Telstra SIM and an Aspera mobile telephone with an Optus SIM. To extract the date Sergeant Pandhaal used the UFED tool referred to. Sergeant Pandhaal extracted reports of the examinations on a hard drive. Sergeant Pandhaal verified that the contacts on the mobile devices matched that on the download reports but otherwise did not review the extraction reports or the contents of the devices, SIM or memory cards. Sergeant Pandhaal provided the extraction reports to the investigating officer.[36]
[36] ts 311.
There was no dispute about the extraction of data from the two mobile telephones.
The Cellebrite Report set out extracted SMS messages, between pages 2 ‑ 18 of the report. They were set out in a table with headings, '#', 'Folder', 'Party', 'All timestamps', 'SMSC', 'Status', 'Source Info', 'Message' and 'Deleted'. There was nothing in the 'Deleted' column. In the Folder column, there is recorded, 'Sent' or 'Inbox'. The 'Party' column records the telephone number the SMS has been sent to or received from. The 'All timestamps' column records a date and time 'PM (UTC + 8)'. The 'SMSC', 'Status' and 'Source Info' columns do not record any particularly relevant information.
The Cellebrite Report disclosed 13 contacts from a telephone including 'Kate', 'Kenno Mark', 'Kristy Tim', 'Leah Potato Head', 'Lochy' and 'Tarco'. The Cellebrite Report, on page 2 disclosed nine SMS messages sent on 11 October 2020; 33 messages sent between 13 October and 22 October 2020; a further 31 messages extracted from the period 9 October to 25 October 2020; 42 SMS messages extracted between 16 October 2020 and 21 October 2020; five messages extracted between 26 and 27 October 2020; 25 messages extracted between 8 October 2020 until 24 October 2020; 28 SMS messages were extracted between 9 October 2020 and 14 October 2020 and 13 messages from 20 October 2020 until 25 October 2020.
At tab 14 of the prosecution file there were 43 pages of screenshots of SMS messages from a mobile telephone.[37]
[37] ts 220.
Prosecution file tabbed document 15 was a Cellebrite Report showing a number of participants in MMS conversations. The mobile telephone numbers included in these conversations were confirmed by Ms Nammour in her evidence to include 'Kenno', herself, 'Leah', 'Tarco' and 'Jim'. Included in what was extracted was a message on 26 October 2020 at 10:52:29 (UTC + 8) which was about Ms Nammour's win of $11,031.31 on an online casino game.[38]
[38] ts 169.
In the prosecution file at tab 15 was a Cellebrite Extraction Report of 153 SMS messages from the 062 number from 25 October 2020 to 29 October 2020.[39]
[39] ts 165.
The document at prosecution file tab 16 was an ING bank statement for Ms Nammour from 25 February 2020 to 31 December 2020.[40]
[40] ts 264.
The documents at prosecution file tab 17 were bank statements from the National Australia Bank (NAB) bank accounts of Ms Nammour. For the account numbered **-***-**38,[41] there was an opening balance of 0.17 cents on 19 June 2020 and a closing balance of 0.04 cents on 19 November 2020. There was also a NAB statement for account numbered **-***-**52[42] which had a credit of $215 on 1 October 2020 and a credit of $1.40 on 30 October 2020. Finally there was a NAB bank statement for an account numbered **-***-**75.[43] This had a credit balance of $20.33 on 1 October 2020 and $0.04 on 19 November 2020.[44] As the deposits into this bank account before Ms Nammour's arrest assumed some importance in her evidence and in the closing submissions, I have prepared an annexure to these reasons that sets out a table, by reference to each depositor, of each of the deposits, including the date, amount and description of the deposits as recorded on the bank statement.
[41] The number is anonymised for privacy reasons. It will be referred to as the NAB 38 account number.
[42] The number is anonymised for privacy reasons. It will be referred to as the NAB 52 account number.
[43] The number is anonymised for privacy reasons. It will be referred to as the NAB 75 account number.
[44] ts 331.
The documents at prosecution file tab 18 were bank statements from an ANZ bank account of Ms Nammour numbered ***-*******-**63 from 20 August 2020 to 28 October 2020. As at the latter date the balance of the account was $0.70. Within these bank statements was a credit to Ms Nammour of a payment of $7,000 from Mr Steven Gernhoefer on 31 August 2020 which Ms Nammour said in her evidence was from the sale of her car.[45]
[45] ts 341.
The final document in the prosecution file of documents at tab 20, was a Westpac Banking Corporation statement for Ms Nammour from 24 September to 24 December 2020 which recorded a closing balance of -$626.42.
I will further refer to some of the evidence contained in these documents below.

The evidence of Ms Nammour

In her evidence‑in‑chief Ms Nammour relevantly said the following:
(a)She is currently employed as a commercial and domestic cleaner.[46]
[46] ts 144.
(b)Following her arrest on 15 September 2016 Ms Nammour remained in custody and served a total sentence of 2 years 8 months' imprisonment. She was released on 19 May 2019.[47]
[47] ts 145.
(c)The 4.4 g of methylamphetamine in her possession on 29 October 2020 was for herself and her partner Mark Kennett. He is listed as 'Kenno' in the tick book.[48]
[48] ts 146.
(d)The two glass items that were seized by police at the hotel were used for smoking methylamphetamine.[49]
[49] ts 146.
(e)Asked about the extent of her drug use as at 29 October 2020, Ms Nammour said after she got out of prison she had not used the drug for 'ages' but then started. This occurred after problems arose in relation to her partner who had passed away before she had been to prison. She commenced using again about six to eight weeks after getting out of prison. By October 2020 Ms Nammour said she was using maybe five points of methylamphetamine a day. This was also called a half‑weight but was 0.5 g per day.[50]
[50] ts 147.
(f)Ms Nammour would work out how much to use on each occasion she smoked the drug by weighing it using her scales. This was because she did not want to overdose.[51]
[51] ts 148.
(g)The drugs that she was using were packaged in clip seal bags and she was planning on 'rationing it out to make it last …'. Her daily use at the time was a half‑weight and she was planning on rationing it out to separate bags so that she did not go over that amount in a day because it was so expensive.[52]
[52] ts 149.
(h)The drugs in her possession when arrested were purchased as a ball which was cheaper overall. When she had purchased the drugs Ms Nammour thought she was obtaining 3.5 g but it turned out to be 4.4 g.[53]
[53] ts 149.
(i)Ms Nammour thought it cost around $5,000 to purchase the drugs. Prior to that Ms Nammour had been purchasing transactions in single points.[54]
[54] ts 150.
(j)Ms Nammour could not be precise about how much she intended to share with Mr Kennett. However she was not selling drugs on or around 29 October 2020.[55]
[55] ts 151.
(k)With respect to the cash Ms Nammour said that around $4,000 of it was from people who had owed her money from before she had been to prison the first time. They were on payment plans trying to pay her back the money because she also owed money to the person from whom she had purchased the drugs.[56]
[56] ts 152.
(l)At the time of her arrest in 2016 Ms Nammour owed drug suppliers about $16,000. This was still owed on 29 October 2020, less amounts of $200 that she was paying her supplier every three weeks or so.[57]
[57] ts 152.
(m)In 2015 and 2016 Ms Nammour was both using and selling drugs. She had a very bad habit back then. From 2015 to 2016 she was using a half‑ball to a ball of drugs per day; being 1.75 g - 3.5 g per day.[58]
[58] ts 153.
(n)In 2015 and 2016 Ms Nammour was purchasing an ounce maybe two ounces depending upon the situation. At about that time it was a cost of $6,000 - $7,000 per ounce. Methylamphetamine was generally more expensive in 2015 than 2016. In 2020 the prices were extreme because it was 'impossible' to get methylamphetamine.[59]
[59] ts 155.
(o)The drug debt that Ms Nammour had in 2020 related to her activities in 2015 - 2016.[60]
[60] ts 155.
(p)Some of the cash that was located in her purse on 29 October 2020 was from people who had owed her money from 2016.[61]
[61] ts 156.
(q)Ms Nammour was not paid by the people to whom she supplied drugs whilst she was in custody.[62]
[62] ts 156.
(r)The origin of the cash in her handbag included receiving $8,000 for the sale of her car, from $7,000 via bank transfer and $1,000 cash.[63]
[63] ts 156.
(s)Additionally on 23 October 2020 Ms Nammour had a massive online casino win of $11,000.[64]
[64] ts 156.
(t)The money transfer for her car was deposited into her ANZ bank account. Ms Nammour said that she had 'instantly withdrawn the money because … I'm a believer of cash, I've always held cash on me, it's just how I kind of work. I like to give people cash and I don't buy things normally unless I do have cash'.[65]
(u)The vehicle she had sold was a Mercedes. The bank statement reflected several withdrawals after the deposit into the account of $7,000 from Mr Gernhoefer. Ms Nammour held onto the cash she had received after withdrawing money from the account.[66]
(v)Ms Nammour withdrew money from her bank accounts because 'I'm kind of old fashioned like my parents, I guess. I don't know. And just everything was always cash. I don't trust banks, to be honest'.[67]
(w)Ms Nammour said her casino winnings of $11,031.31 were from the 'Joka VIP room'. She won the money playing a game called 'Viking Fortune'. The win occurred on 23 October 2020. After winning Ms Nammour sent an MMS message from the 062 number.[68]
(x)Ms Nammour said that she had that number a long time ago. The record of the MMS showed that it was sent on 26 October 2020 at 10.52 pm but Ms Nammour said she won the money on 23 October 2020.[69]
(y)Ms Nammour identified a screenshot of a page that she had uploaded to Instagram. This referred to the date of 29 October 2020 and 'Hoochie_85' which was the name of Ms Nammour's Instagram account. The date on the page, 23 October 2020, reflected the date that she posted the page. It was a few days before 'the raid happened'. A printout of the screenshot of the Joka VIP room Instagram post was received as exhibit A. After winning the amount of $11,000 Ms Nammour 'cashed out'. She withdrew the sum from her online gambling account in one lot. The money was then deposited straight into her NAB account.[70]
(z)The NAB bank statement for the NAB 75 account number indicated a payment on 30 October 2020 of $11,000. The money was then withdrawn from her bank account although some of the debits did not appear in the statement until 2 November 2020.[71]
(aa)Ms Nammour estimated that from the bundle of cash that the police seized she would have had about $3,000 from the money she obtained for the car sale and the rest would have been casino winnings except for the money received in payment for sales of methylamphetamine dating back to 2016. Ms Nammour said that off the top of her head this amount was close to $4,400. This money was received by way of sometimes being paid into bank accounts and other times being paid in cash.[72]
(ab)The entries she made into the tick book were done in 2015.[73] The reference to Deb in the tick book helps put a date on when the book was created because she has not been friends with Deb for many years. Deb's full name is Debra Harris. There was a payment into Ms Nammour's NAB 75 account number, recorded in the bank statement on 27 October 2020 from Debra Harris. Ms Nammour ceased being friends with Debra Harris before 2020. However Ms Harris still owed Ms Nammour a debt and the deposit into the account of $500 was for part repayment of the drug debt.[74]
(ac)The tick book reflected transactions that covered a week or maybe two weeks.[75]
[65] ts 157.
[66] ts 158.
[67] ts 161.
[68] ts 170.
[69] ts 168.
[70] ts 171.
[71] ts 174.
[72] ts 175.
[73] ts 179.
[74] This deposit is shown in Annexure A.
[75] ts 181.

Ms Nammour was extensively, and with respect somewhat laboriously, cross‑examined, covering 141 pages of transcript. It is unnecessary to summarise all of the cross examination for the purposes of this decision. The most pertinent aspects of the cross‑examination were reflected in the closing submissions of the State, which are now set out.

Closing submissions of the State

In closing the State accepted the pipe and bong were evidence of drug use by Ms Nammour which was consistent with somebody who was dealing in drugs and using drugs. It was submitted however that the 'large' amount of 4.4 g was wholly inconsistent with a user particularly when one looked at the totality of the evidence.[76]
[76] ts 324.
It was submitted that Ms Nammour said she paid $5,500 for a ball which is 3.5 g and the dealer must have given her bonus of nearly 0.9 of a gram which at the time would have been worth a significant amount of money.[77]
[77] ts 324.
It was submitted that the source of the funds as to where she got that $5,500 was 'clouded in mystery'.[78]
[78] ts 325.
Reference was also made to Ms Nammour's evidence that the week before she had a half‑ball which cost another $2,000.[79]
[79] ts 325.
It was then submitted that her evidence about where the money came from was very vague. This included evidence that people were lending her money in order to buy drugs for her own personal use. It was submitted she would then have no way of paying the money back.[80]
[80] ts 325.
The State submitted that it was implausible that somebody would be spending that much money on drugs and not selling them.[81]
[81] ts 325.
Reference was made to the extracts of the Oppo telephone at tab 11 of the prosecution file. On this telephone the user was recorded under the name 'Hoochie' and the number was **** *** 422.[82]
[82] ts 325.
The State referred to the messages recorded on this telephone including between Ms Nammour and 'Kenno' who was Ms Nammour's now partner Mr Mark Kennett.[83]
[83] ts 325.
There was reference also to a group discussion about a debt of $6,440. The State said that amount was recorded in the tick book as being an amount Ms Nammour was having difficulty in obtaining, and being frustrated. It was submitted that the Signal messages on the Oppo telephone tied in precisely with that sequence. This submission was imprecisely made and hard to follow. In reviewing the messages extracted from the telephones the only reference to 6440 that I have been able to see is a message on page 10 of tab 14 of the prosecution file. The messages on that page are recorded as having been made on 20 October 2020. The operator of the telephone appears to be exchanging messages with 'Mark Kenno'. The operator of the telephone informs 'Mark Kenno' that he owes '300' and says that he is 'not the worry they r. They owe me like 6440' [sic]. However the identification evidence of who held and operated that telephone was imprecise and I am not able to determine that this message was necessarily made by Ms Nammour and if so that it proves that she was selling methylamphetamine to others at the time in question.[84]
[84] ts 325.
The State also referred in their closing submissions to the cross‑examination of Ms Nammour about money being deposited into her accounts.[85]
[85] ts 325.
The State also referred to texts found on what was asserted to be Mr Kennett's telephone that were sent from the 062 number. The State referred to the fact that in examination‑in‑chief Ms Nammour said that she sent a text from that telephone on 26 October 2020 about the winning of the casino money.[86]
[86] ts 325.
However it was submitted that when, during cross‑examination text messages from that telephone number were shown not to be helpful to her case Ms Nammour asserted that it was not her telephone number or that she had changed it with Centrelink. This evidence was described by the State as being a 'fantasy mystery tour'.[87]
[87] ts 326.
The State also referred to text messages on the 062 number apparently involving discussions with Mr Kennett; including that the sender of the message was going to be in their 'swimmers' all day, that they needed to come down to the gate to let him in, that they were going to make up a bag but 'your mate and Leigh were there'. It was then submitted that Ms Nammour's evidence about crocheting a bag was 'nonsense'. It was accepted by Ms Nammour in her evidence that these messages were sent by her.[88]
[88] ts 326.
The evidence about crocheting was in relation to evidence from one of the Cellebrite Reports which was at tab 15 of the prosecution file. As set out above, the report included 153 SMS messages from the 062 number. It was acknowledged that this was a number used by Ms Nammour at the time of the extracted SMS messages. Other numbers which were contacted by Ms Nammour, when using that number included that of 'Kenno' or Mr Kennett who operated number **** *** 164.[89] There was a record of a message 131 from Ms Nammour's number to the 164 number which was read on 28 October 2020 at 8:39:22 pm (UTC +8). The message reads: 'Hahaha easy as then that's that hahaha although it is gonna be hard not to jump ya in front of everyone hahaha but ill [sic] tame myself haha'.[90]
[89] To be referred to as the 164 number.
[90] ts 230 - ts 231.
Message 132 sent at 8:44:17 pm on the same date reads 'OMG U r hat [sic] as fuk [sic] I swear'.[91]
[91] ts 230.
A little later message 135 was read at 7:15:42 am on 29 October 2020 from the 062 number to the 164 number which says 'Hey im gonna make you a bag but I didn't wanna give it too [sic] you in front of ure [sic] mate and Leah cause the fact that the feenz [sic] hard hahaha'.[92]
[92] ts 231.
The next message 136 sent from the 062 number at 7:20:39 am on 29 October 2020 is 'I Gunna give U some cash and I Gunna go collect wot [sic] us owed aswlel [sic]'.[93]
[93] ts 348.
Message 137 from the 062 number to the 164 number sent at 7:22:49 am on 29 October 2020 was 'Nah all good don't stress about that but bring back swimmers cause thats were [sic] ima [sic] be all day hahahah'.[94]
[94] ts 212.
The next message 138 sent to the 062 number is 'Nice I will do gorgeous. xX'. The next message 139 from the 062 number and read by the 164 number at 8:59:12 am on 29 October 2020 is 'K cause [sic] I just kicked the girls out cause I caught them stealing and doing it on the sly too grrrr [sic] so not happy and im not gonna grab the bike cause its not registered so I hope ure [sic] mate can give you a lift bk hahaha'.[95]
[95] ts 212.
Ms Nammour was cross-examined about some of these messages.[96]
[96] ts 228.
It was put to Ms Nammour that tab 15 in the prosecution file consisted of a download from Mr Kennett's telephone which was seized in the apartment. That was accepted by Ms Nammour. Ms Nammour also accepted that the document showed her 062 number was listed as being a telephone communicated with by Mr Kennett's telephone.[97]
[97] ts 200.
Ms Nammour was asked about a conversation which, it was put to her, was between her and Mr Kennett. She said that there were conversations similar to that although she did not recall the specific conversation. Ms Nammour confirmed that although she was seeing Mr Kennett at that time she was also communicating with 'other blokes' but not supplying drugs to anyone apart from Mr Kennett. Mr Stocks asked Ms Nammour whether the message about making you a bag was about making up a bag of drugs for Mr Kennett. Ms Nammour said she did not read it like that but it could be read like that. Ms Nammour was then asked about what other bag you were making up for anybody at that time. Ms Nammour answered 'well, I do crochet, sir, sorry'.[98]
[98] ts 231.
Later in her evidence,[99] Ms Nammour said the 062 number was not a number that belonged to her Samsung telephone. Asked what telephone the 062 number was associated with, Ms Nammour said it was a telephone she got from Reset when she got out of prison. Reset she said was a place that gives people a hand when they are released from prison. She said 'they were the ones that got me that telephone number and that telephone and it was just like a block telephone. It was a crappy little telephone'. Ms Nammour said the 062 number was associated with the telephone she was given after she was out of prison. Ms Nammour said it was not the Oppo telephone found at the apartment nor her Samsung telephone.
[99] ts 239.
Ms Nammour agreed that the 062 number was a number she had registered with Centrelink but that was when she had got out of prison.[100] Ms Nammour said she had not used that telephone and the message about being in bathers and coming down to the gate and letting people in was not made by her.[101] Ms Nammour accepted however that she used that telephone number when she registered and opened her casino account when she got out of prison.
[100] ts 239.
[101] ts 240.
Ms Nammour then accepted that within the documents at prosecution file tab 15 there was a message she sent to a group of numbers after her casino win from the 062 number. Ms Nammour agreed to sending the message and that the telephone number was registered with Centrelink when she got out of prison. However, Ms Nammour's evidence was that the messages had been sent by her using another telephone and not the 062 number. However, she did not produce any evidence supporting this. Mr Stocks accepted however that he had to leave the evidence there.[102]
[102] ts 244.
In closing Mr Stocks, as I have said, referred to the 'nonsense about crocheting a bag'. Mr Stocks referred to no knitting wool being recovered in the Seashells apartment and it being an example of the fact that Ms Nammour made things up as she gave her evidence.[103]
[103] ts 326.
Mr Stocks also referred to her giving 'convenient' evidence that the $11,000 was in her bank account earlier than on 26 October 2020; and that this was on 23 October 2020. It was submitted that this evidence was given to coincide with the bank account evidence and that her evidence must be that it was an absolute coincidence that on 26 October 2020 somebody else was communicating with her boyfriend about the fact that they had won $11,000 on spins, in the same way as that when the bank statement said it received the money on 30 October 2020 it got that wrong because she took the money out before her arrest.[104]
[104] ts 330.
It was submitted, however, that what the bank account showed was there was a $1,000 cash withdrawal on the night of 29 October 2020 and that everything else was withdrawn later.[105]
[105] ts 328.
Mr Stocks also submitted that if one looked at the Oppo telephone contact list the correlation between that contact list and the tick list in the book seized by the police in October 2020 was 'astonishing'.[106] This contact list was at page 1 of tab 15 of the prosecution file.
[106] ts 328.
It was also submitted that between 1 October 2020 and 19 November 2020 Ms Nammour had $31,000 deposited into the NAB bank account 9875 referred to earlier. Mr Stocks submitted that it was a nonsense to suggest this was money not obtained from drug dealing, when Ms Nammour was on Centrelink.[107] This submission is tempered by the fact that Ms Nammour's arrest was on 29 October 2020, so that the receipt of monies after that date does not necessarily refer to her activities up to the date of her arrest.
[107] ts 328.
Mr Stocks also referred to the dissonance between Ms Nammour's evidence that she did not trust banks and her regular depositing of money into the bank account.[108]
[108] ts 329.
Mr Stocks also submitted that Ms Nammour's evidence that she paid for a ball of methylamphetamine? on tick was 'ridiculous'.[109]
[109] ts 329.
It was submitted that Ms Nammour kept on changing her story during her evidence and that she had 'an answer for everything as long as you ignore all of the other answers she gave along the way that did not make sense'.[110]
[110] ts 329.
It was submitted that Ms Nammour could afford the purchasing of drugs because of all of the money going in and out of the bank account consistent with the tick list.[111]
[111] ts 329.
Mr Stocks also submitted that the cash in hand figures in the tick book when she suddenly stopped using the book was almost exactly the same amount of cash that she had in her purse when arrested on 29 October 2020. In the tick book it records she had amassed $11,700 as cash in hand and when she was arrested she had $11,650 in cash bundled together, and another couple of hundred dollars in her wallet.[112]
[112] ts 329 - ts 330.
Mr Stocks accepted, however, that although some of the deposits in the bank account attributed to Deb Harris or Debra Harris matched what was in the tick book, some did not. As to that, Mr Stocks submitted the State accepted that whilst Ms Nammour was using methylamphetamine, the tick book was a pretty good record but she made mistakes. He submitted rhetorically that if there are payments that are not accounted for, into her bank account, that cuts both ways because if it is not related to the drug dealing the State was making submissions about, what was it related to?[113]
[113] ts 331.
Mr Stocks submitted that Ms Nammour's answers became more and more equivocal about financial matters.[114]
[114] ts 332.
Mr Stocks also submitted that when one had a look at the bank accounts and the amount of money that she received over seven or eight weeks, the only rational explanation was that Ms Nammour was funding her habit by the sale of drugs.[115] Mr Stocks submitted that no weight could be given to Ms Nammour's evidence.
[115] ts 333.
Mr Stocks submitted that the only rational inference beyond a reasonable doubt was Ms Nammour was selling drugs, based upon the evidence. It was then submitted that if the court did not accept that, Ms Nammour's evidence must simply be rejected and that the court would then be left in a position of not being satisfied that the drugs were for her use and supply only to Mr Kennett.
In her closing submissions, Ms Fisher submitted that based on the decision of The State of Western Australia v Gorgievski[116] that:
(a)where an offender seeks to have a sentencing judge take into account a matter that is mitigatory, it is for the offender to prove that on the balance of probabilities.[117]
(b)it would be necessary to first determine the defence case that Ms Nammour, with respect to count 1, intended to use part of the 4.4 g of methylamphetamine for herself and supply some of that to her partner, Mr Kennett, but not sell any of the methylamphetamine.[118]
(c)with respect to count 2, all of the money found on her except approximately $4,000 was legitimately acquired by her and was not connected in any way to the sale of drugs. With respect to the balance of approximately $4,000 this was money received for the sale of methylamphetamine which took place prior to her imprisonment in 2016 and not in the lead‑up to her arrest in October 2020.[119]
(d)it may be in a particular case such as Gorgievski that the court cannot make a determination upon whether an offender had drugs in their possession to sell or to sell and supply or to supply or to use and supply but may sentence on the basis that the person was convicted of an offence in the terms of the indictment of being in possession of drugs with an intention to sell or supply.[120]
[116] The State of Western Australia v Gorgievski [2015] WADC 103 (Gorgievski).
[117] Gorgievski [4] citing R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, 281 [25], [27]; Law v The State of Western Australia [2009] WASCA 193 [33] - [34] (Buss JA).
[118] ts 334.
[119] ts 335.
[120] See Gorgievski [37] and The State of Western Australia v Thompson [2014] WASCA 108 (Thompson).
Ms Fisher submitted that the State had accepted that some of the methylamphetamine in Ms Nammour's possession was for her to use. Ms Fisher submitted that that was consistent with not only the evidence of Ms Nammour but also the fact that smoking implements were found within the room when she was arrested. It was also submitted that the clip seal bags and scales were consistent with obtaining drugs for personal use. Ms Nammour gave evidence to this effect, and it was supported by that of Detective Senior Constable Stewart.[121]
[121] ts 335.
Ms Fisher also submitted that the quantum of methylamphetamine that Ms Nammour possessed, 4.4 g, was equivocal as to whether the methylamphetamine was for personal use and supply to Mr Kennett or for commercial sale. Again Ms Fisher referred to the evidence of Ms Nammour on this topic together with that of Detective Senior Constable Stewart, cited earlier.[122]
[122] ts 335.
With respect to the tick book, again Ms Fisher submitted that whilst it was agreed on both sides of the bar table that the book recorded the sale of methylamphetamine, there was disagreement as to whether it recorded such details for 2015 and 2016 or for 2020. Ms Fisher pointed to the fact that the tick book contained amounts being received which did not match amounts being received in Ms Nammour's bank accounts in 2020. Ms Fisher also contrasted Ms Nammour's evidence of giving methylamphetamine to Mr Kennett or 'Kenno' in 2020 as opposed to the tick book recording that 'Kenno' had bought drugs from her and owed $2,700.[123]
[123] ts 338 - ts 339.
In this way, Ms Fisher submitted that the evidence with respect to the crocheting, referred to earlier, was, even if not accepted, not inconsistent with simply supplying Mr Kennett with drugs as opposed to selling them to him. This is because the reference to providing Mr Kennett with a bag, in the text message referred to earlier, did not refer to the sale of a bag to him. Ms Fisher submitted that if the text message was construed in that way it was inconsistent with the tick book being for 2020 supplies of drugs to Mr Kennett, because the tick book referred to drugs being sold rather than given to him.[124]
[124] ts 339.
Ms Nammour's evidence that she was going to share some of the methylamphetamine with Mr Kennett was also supported by the fact that Mr Kennett was present in the hotel room when the police arrived there.
Ms Fisher submitted that the evidence of the bank accounts did not help in the determination of the facts to any great extent. Ms Fisher submitted that the State's emphasis on $31,000 having been transacted within a bank account between a six or seven week period was somewhat exaggerated. This was because the money received included payments from Centrelink, undisputed payments which Ms Nammour said she was earning from cleaning and waxing, casino winnings and money she obtained from the sale of her car, as referred to earlier.[125]
[125] ts 336.
Ms Fisher also referred to the contents of the tick book and in particular the date at the commencement of it. It was submitted that there was no evidence that Ms Nammour simply wrote the date on the second page of the book at some point to cause subterfuge. It was submitted that Detective Senior Constable Stewart agreed that the notes produced in the book could have been made over a matter of days and that the nature of drug dealing is such that the items recorded in the book could take place over a short or a long period of time. Therefore it was submitted that the court could not be entirely certain as to what period of time the notes covered.
Ms Fisher submitted that it was open on the evidence for the court to find that the tick book related to an historical record of what occurred in 2015 and 2016.
Ms Fisher referred to the reference to enrolling her daughter in high school on the first page of the tick book. If this was contemporary with the age at which Ms Nammour's daughter was to enter high school then this would be inconsistent with the book entry having been created in 2015. However, it was submitted by Ms Fisher that as Ms Nammour said in her evidence sometimes people need to enrol their children in schools earlier than the age at which they are to attend those schools. Ms Fisher submitted that that was particularly the case in private schools and that judicial notice could be taken of that fact.[126]
[126] I do think that it is a notorious fact upon which I can act that, where adults wish to enrol children in private schools in Western Australia, it is often the case that they need to enrol them well before the age at which the child will enter the school.

Ms Fisher accepted that the cash located on Ms Nammour was cross‑admissible from count 2 to count 1. However it was submitted that the court needed to take into account Ms Nammour's explanations as to how she had the money in her possession. In this regard reference was again made to the money obtained from the sale of her car including the payment from Mr Gernhoefer of $7,000 which was deposited into Ms Nammour's ANZ bank account.[127]
[127] Tab 18, State file of documents, page 2.
Ms Fisher submitted that tab 15 in the prosecution file was a Cellebrite Extraction Report from Mr Kennett's telephone. Ms Fisher referred to message 28 to Mr Kennett's 164 number from the 062 number, which she submitted was belonging to Ms Nammour (even though Ms Nammour's evidence seemed to waiver on that point) which said 'it's fucked tho hahah but I cashed out 11 so I was pretty stoked haha'. The date of this message was 26 October 2020 at 7.18 pm (UTC +8). Ms Fisher submitted this suggested that Ms Nammour was able to cash out $11,000 on 26 October 2020 which was at odds with the banking records, but consistent with her evidence which was that she cannot explain why the bank statement did not reflect a deposit on that date.
Ms Fisher also referred to message 106 from the same report on 27 October 2020 at 4:19:01 am where a message from the 062 number to the 164 number said 'Yay the 4900 i cashed put [sic] the other night before we went to the cas is now in my account whoo hoo bring on the 11K hahaha'.
Ms Fisher also referred to the fact that although the court should find Ms Nammour was giving her evidence to the best of her ability, she was trying to recollect events when she was intoxicated through taking methylamphetamine. It was accepted therefore that Ms Nammour may not be an entirely reliable historian. It was submitted however that there was evidence that she was having casino wins and the reference to $4,900 being cashed out was not reflected in any bank statement. It was submitted therefore that Ms Nammour's evidence about having casino winnings in addition to the $11,000 that ultimately was deposited into her account was reflected in the relatively contemporaneous messages.
Ms Fisher accepted that the contents of the Oppo telephone on its face appeared to contain evidence of drug dealing. However it was not accepted that there was evidence associating that telephone or at least the messages on it with Ms Nammour.
Ms Fisher therefore submitted that the defence had established on the balance of probabilities that Ms Nammour did not intend to sell the drugs that were found in her possession, regardless of whether there were suspicions lingering that she might have been intending to do so.
In reply, Mr Stocks referred to additional messages which indicated that Mr Kennett was obtaining money which he would be providing to Ms Nammour. In particular he referred to the Cellebrite Report in the prosecution file tab 15, message number 9 from Mr Kennett to the 062 number and message 91. Further, in messages 115 and 116, there was initially a message from the 062 number to Mr Kennett and then a reply from him to the 062 number which referred to wanting cash owed but following (so said the State) Ms Nammour's lead on the issue. There was also a reference to message126 from Mr Kennett to the 062 number which said, 'I got some cash going to u sorry, I forgot u don't want to do that I just don't trust Dave once he gone'. There was also reference to message 128 which referred on the State's submission, to Mr Kennett seeing Ms Nammour 'in morn wit more coin'.
However, as pointed out in argument, and in a further submission by Ms Fisher, these communications might be evidence of Mr Kennett bringing money to Ms Nammour, but not necessarily as payment for the supply of drugs to him, or to other people on a contemporary basis; and therefore not inconsistent with Ms Nammour's evidence about the collection of money for historical drug sales.
Mr Stocks also referred to messages received by Mr Kennett on the Oppo telephone from the Signal telephone and that it was not suggested by Ms Nammour at any stage that the Signal telephone belonged to Mr Kennett. Mr Stocks also submitted there was other evidence linking the telephone with Ms Nammour, including the user name of 'Hoochie', which she accepted was a name she used at times.

Factual findings

I have considered all of the submissions referred to above.
During the course of submissions I discussed with counsel the order in which a decision on the cases put by the State and by the offender should be made. As stated above Ms Fisher submitted that I ought to first consider her client's case in mitigation. I therefore proceed on this basis. Mr Stocks did not necessarily put a clear position on this issue but appeared to submit, correctly, that if I accepted Ms Nammour's evidence on the balance of probabilities, then I would necessarily have a reasonable doubt about the case for the State on both count 1 and count 2.
I have earlier set out the evidence given by Ms Nammour in examination‑in‑chief and to some extent in cross‑examination. The overall intent of the cross‑examination was to discredit the assertions made by Ms Nammour. The key points which the prosecution wished to emphasise in their closing submissions have been referred to above.
It is notoriously difficult for a trier of fact to determine whether a witness is telling the truth or lying.[128]
[128] Charles V Ford, Lies!, Lies!!, Lies!!! The Psychology of Deceit, 1996, ch 10.
During the course of Ms Nammour's evidence‑in‑chief, doing the best that I could to assess her evidence by reference to what she said, how she said it and whether it was complimented by or divergent from objective facts, I thought she was probably telling the truth.
During the course of her cross‑examination and following a careful consideration of the closing submissions made by the State, I have waivered somewhat from this position. During the course of her cross‑examination Ms Nammour became argumentative and was not prepared to admit evidence which seems to be clearly established, that was contrary to her interests. This caused me to doubt the whole of her evidence on the salient points.
An example is the evidence about the crocheting of the bag referred to above. I do not accept the evidence of Ms Nammour about that; but I do not find that necessarily leads to a rejection of all of her evidence about the purpose of possessing the methylamphetamine or the origins of the money in her handbag.
At the end of the day, whilst I have doubts about the substance of Ms Nammour's evidence, I am left in the position that I am unsure whether her evidence is truthful or not. I do not think that I can reach a state of satisfaction on the balance of probabilities that it is more likely than not to be true. It may be true, it is possibly true, but I am unable to find on the balance of probabilities that it is.
Ms Nammour's position on Count 1 on the indictment is as set out earlier that she possessed the 4.36 g of methylamphetamine simply for the use of herself and to supply to her now partner and then boyfriend Mr Kennett rather than having it for sale. I am satisfied that part of the 4.36g was for the use of Ms Nammour and to supply to Mr Kennett. However based upon all the evidence I am not satisfied on the balance of probabilities that Ms Nammour can establish that her intention in possessing the methylamphetamine was limited to that intent.
The principal reason for this is the evidence about the money which was in Ms Nammour's possession when she was arrested, being $11,870 in cash in her handbag, and the evidence of the amount of money going into her bank accounts given her financial status. Ms Fisher accepted, as referred to earlier, that the evidence about the money in her handbag and other financial evidence was cross‑admissible with respect to count 1 on the indictment.
I understand Ms Nammour's position that it was only $4,000 or thereabouts of the $11,870 found in her handbag that could be attributed to drug dealing. Further that this money was only attributable to amounts that she was paid by people she had been selling to and who owed her money going back to the period of 2015 and 2016 before she was then arrested. I also take into account the evidence about the casino win or wins referred to earlier and that Ms Nammour was being paid money by Centrelink, for her employment and for the sale of her car. Nevertheless, in my view the amount of money that Ms Nammour was receiving, together with the evidence of some of the text messages, has the effect that I cannot accept Ms Nammour's evidence, that she only possessed the drugs to supply her own habit and that of Mr Kennett, to be more likely than not to be true.
This does not of course mean that I necessarily accept that the State has proved beyond reasonable doubt that Ms Nammour's intention with respect to most of the methylamphetamine in her possession was to sell it to her 'clients'. Because of Ms Nammour's evidence and that the drug paraphernalia found at the hotel was equivocal as to whether she possessed the drug with the intent the State contended for, together with the evidence of the tick book being equivocal, I am unable to reach the view beyond reasonable doubt that Ms Nammour's intention was possession of the drug largely with an intent to sell.
In referring to the evidence about the tick book as being equivocal I have had regard to the deposits into the NAB bank account recorded in Annexure A. The deposits made into the NAB bank account by Deb or Debra Harris do not correspond with the references to payments made by Deb in the tick book. Therefore I do not think I can find that the tick book records amounts paid in October 2020, as the State contended.
I also note that the deposits into the NAB bank account by Debra Harris, as set out in Annexure A, totalled $4,500 during October 2020. The amount that Deb was said to be owing at the end of the tick book, page 44 was $4,900. Accordingly this is not inconsistent with Ms Nammour's evidence that Debra Harris was in 2020 paying off a debt for 2015 and that was recorded in the tick book.
The bank deposits contained in Annexure A are also consistent with Ms Nammour having received payments from people named in the tick book, as clients, which totalled more than $4,000. These people are not only Ms Harris, but Kristy, Leah, Donna; and in addition there were unsourced payments into Armadale and Mandurah ATMs which may have been from people whom Ms Nammour had supplied drugs to, albeit the latter evidence does not raise above the level of suspicion.
It is at least curious that the tick book summary at page 44 has Leah owing $350, Kristy $750 and Donna $20 respectively, but they paid $580 (Leah), $150 (Kristy) and $250 (Donna) into the NAB account during October 2020, as shown in Annexure A. There was no evidence as to why Leah and Donna would have been paying amounts into Ms Nammour's bank account other than for drug sales, in October 2020. This evidence is therefore suggestive of Ms Nammour selling drugs to these people beyond and that she was not just collecting money from them for the past debts recorded in the tick book. However, Ms Nammour was not specifically asked about these points in her evidence and in my view in would in those circumstances be unfair to make a finding against her on this basis.
In my view, the total of the deposits into the NAB bank account as set out in Annexure A do not necessarily and beyond reasonable doubt establish contemporary drug selling in all of the circumstance.
The outcome of my findings is that as in the decisions of Gorgievski and Thompson which I have referred to earlier, Ms Nammour must be sentenced for the offence committed, simply being in terms of 'sell or supply'; with it being accepted by the State that at least some of the drugs in her possession were for personal use and supply to Mr Kennett.
With respect to count 2 for the reasons largely identified above, I do not accept on the balance of probabilities that Ms Nammour's possession of only about $4,000 of the $11,870 that was found in her possession was reasonably suspected to have been unlawfully obtained. The State's case was in effect that most if not all of the $11,870 was derived from the sale of methylamphetamine. Based upon the evidence of Ms Nammour including that she was not selling drugs to customers prior to her arrest but only collecting old debts, and the equivocal evidence about the tick book, the quantity of the drugs and the drug paraphernalia found in her possession, together with the other evidence about money and income she received and deposited into her bank account, I am unable to accept as the only reasonable inference open on the evidence that all or most of the $11,870 was in Ms Nammour's possession and reasonably suspected to have been unlawfully obtained. The proof of this falls short of proof beyond reasonable doubt, based on inferences.
At the same time I do not, for the reasons set out above, accept on the balance of probabilities that only $4,400 of the money found in Ms Nammour's possession was obtained illegally, on the basis of the payment of old drug debts from 2015-2016. Other than that I cannot be specific in my findings about the money, due to the lack of precision in the evidence.
Accordingly for the purposes of sentencing Ms Nammour, my findings of fact will be:
1.On 29 October 2020 at Mandurah, Ms Nammour had in her possession 4.36 g of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, less an unspecified amount for personal use.
2.On the same date and at the same place Ms Nammour was in possession of a thing capable of being stolen, namely a sum of money of an amount of more than $4,400 but less than $11,870 that was reasonably suspected to have been unlawfully obtained.
As indicated earlier these reasons will be made available to the parties prior to Ms Nammour's sentencing.
As also stated, a pre‑sentence report was ordered at the conclusion of the hearing on the trial of issues. That will be available to the parties and I will consider it as well prior to Ms Nammour's sentencing hearing.

ANNEXURE A

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
HM
Associate to Judge Ritter
4 MAY 2023