The State of Western Australia v Ulrich - [2014] WADC 59

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: THE STATE OF WESTERN AUSTRALIA -v- ULRICH [2014] WADC 59

CORAM: HERRON DCJ

HEARD: 17 MARCH 2014

DELIVERED : 16 MAY 2014

FILE NO/S: IND 528 of 2013

BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
WALTER FRANK ANTHONY ULRICH

Catchwords:

Trial of issues - Section 6(1)(a) Misuse of Drugs Act 1981 - Plea of guilty to possession with intent to supply - Whether an intention to sell

Legislation:

Evidence Act 1906 s 31A
Misuse of Drugs Act 1981

Result:

Finding of an intention to sell or supply methylamphetamine pursuant to s 6(1)(a) of the Misuse of Drugs Act 1981

Representation:

Counsel:

State of Western Australia : Ms T L S Tan
Accused: Mr R M Utting

Solicitors:

State of Western Australia : Director of Public Prosecutions
Accused: Lemmon Legal

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

Langridge v The Queen (1996) 17 WAR 346
Liberato v The Queen (1985) 159 CLR 507
Marker v The Queen (2002) 135 A Crim R 55
Pepper v State of Western Australia (2005) 30 WAR 447

HERRON DCJ:

Background

By indictment dated 20 June 2013 Walter Frank Anthony Ulrich is charged with one count pursuant to s 6(1)(a) of the Misuse of Drugs Act 1981 (MDA) that on 3 July 2012 at Ferndale he had in his possession a prohibited drug, namely methylamphetamine with intent to sell or supply it to another.
On 26 November 2013, Mr Ulrich pleaded guilty to the charge on the indictment but on the basis that he had methylamphetamine in his possession only for supply. He denies he had methylamphetamine in his possession with intent to sell. Except that Mr Ulrich also denies various items found with the methylamphetamine was drug paraphernalia or associated with the commercial use of the drugs and in particular that two pages of handwritten notes were a tick list, he otherwise admits the material facts read by the prosecutor as follows:
On 3 July 2012 police executed a Misuse of Drugs Act search warrant at the accused's house at 519 Metcalf Road in Ferndale. The accused was present during the search, along with a man named Andrea Corriera, a friend of the accused's.
They were both found outside in the rear yard when police arrived. After identifying himself on camera, police officers gave him the option of leaving, which he did after being searched, both his person and his car. Nothing was found on Mr Corriera and he left.
During the search police found a black toiletries bag on top of the fridge in the kitchen that contained two clipseal bags with 9.38 grams of methylamphetamine at 42 per cent purity, and 0.076 grams of methylamphetamine respectively. This came to a total of 10.14 grams of methylamphetamine.
Also located in the same black toiletries bag were the following items: electronic scales which, when tested, were found to contain no traces of any common illicit drugs; a two-page list which the State will allege is a tick list; a pepper spray; empty clipseal bags; and a further clipseal bag containing 1.25 grams of a white crystalline powder which, when tested, was found to contain no common illicit drugs. That powder, the State will allege, was a cutting agent, your Honour.
During their search police also noted that the accused had a six-camera CCTV set up at his house, and for the sake of completeness I note that there was also a tin located in a cupboard in the kitchen that contained two smoking implements, what appeared to be some cannabis, and a clipseal bag of a substance that was later identified as a mixture of cocaine and lavasamol.
The State contends Mr Ulrich intended to sell at least a portion of the methylamphetamine found in his possession.
A total of 10.14 g of methylamphetamine was found in a black toiletries bag on the top of the fridge in the kitchen of Mr Ulrich's residence at 519 Metcalfe Road, Ferndale. It is not disputed that 9.38 g of methylamphetamine at approximately 42% purity was found in one clipseal bag and 0.76 g at an unknown purity found in another clipseal bag.
I am therefore required to determine whether Mr Ulrich intended to sell at least a portion of the methylamphetamine found by police at Mr Ulrich's premises when they executed a search warrant on 3 July 2012.
The offence created by s 6(1)(a) of the MD Act has three elements:
(i)possession;
(ii)of a prohibited substance; and
(iii)with intent to sell or supply.
By his plea of guilty the offender Mr Ulrich admits each of those elements, except in this case he denies an intention to sell, as opposed to an intention to supply: see Marker v The Queen (2002) 135 A Crim R 55 [66], [67] (Anderson J) and [110] (Steytler J).
A charge under s 6(1)(a) of the MDA is a composite offence. The MDA draws no distinction between an intention to sell and an intention to supply. There are not two separate offences: Pepper v State of Western Australia (2005) 30 WAR 447.
The onus is on the State to prove beyond reasonable doubt that Mr Ulrich was intending to sell, rather than only supply, at least some of the methylamphetamine in his possession as this would be an aggravating feature of the offending for the purposes of sentencing: see Langridge v The Queen (1996) 17 WAR 346 and Marker v The Queen per Murray J [22].
At a trial of issues before me on 17 March, the State called Acting Detective Senior Sergeant Richard Leslie Green and Andrea (Andrew) Corriera. The defence called Mr Ulrich, Justin Tames and Delores Game.
At the request of counsel for Mr Ulrich at the conclusion of the evidence, I adjourned the hearing to allow the parties to prepare written submissions with references to the transcript of the evidence. Both parties have since filed written submissions and do not seek to make further oral submissions.

The State's evidence

Acting Detective Senior Sergeant Green (Detective Sergeant Green)

Much of Detective Sergeant Green's evidence is not disputed by the defence. He gave evidence as to the circumstances in which police executed the search warrant on 3 July 2012 at the defendant's residence at 519 Metcalfe Road, Ferndale. The execution of the search warrant was video recorded and a DVD was tendered into evidence and became exhibit 1.
When police attended at 519 Metcalfe Road, Ferndale, the accused was present in his backyard with a man named Andrea (Andrew) Corriera. The defendant told police the house belonged to him and he lived there alone. Mr Corriera was searched along with his car and allowed to leave by police.
Detective Sergeant Green observed the defendant's house had been set up with CCTV cameras which, when viewed on a screen inside the house showed six different views outside the house.
During the search, police found a black toiletries bag on top of the fridge in the kitchen. The following items were found inside the toiletries bag:
(a)one clipseal bag containing 9.38 g of methylamphetamine at approximately 42% purity;
(b)one clipseal bag containing 0.76 g of methylamphetamine at an unknown purity;
(c)electronic scales, which when tested showed no trace of common illicit drugs;
(d)a two page list of names and figures;
(e)pepper spray;
(f)empty clipseal bags; and
(g)1.25 g of a white crystalline powder that did not contain any common illicit drugs.
In the State's submission the two pages containing lists of names and figures was a tick list which is commonly found in the possession of drug users and dealers.
Further, the other items, the electronic scales, the pepper spray and the empty clipseal bags were also, in the State's submission, drug paraphernalia often associated with the sale and supply of drugs.
In relation to the white crystalline powder in the amount of 1.25 g, the State submits that was a cutting agent to be used for the purposes of reducing the purity of the methylamphetamine and increasing the quantity of the drug for use and sale.
Detective Sergeant Green also gave evidence that two smoking implements were found. The defendant told police that one of the smoking implements belonged to him but the other belonged to someone else who left it at his house for use when they came over.
Detective Sergeant Green also gave expert evidence regarding the quantities and cost or price of methylamphetamine at street level use. He said that a point or 0.1 g typically sells for between $50 and $100 and 1 g for between $500 and $1,000. An ounce sells for between $12,000 to $16,000. He estimated the seized drugs had the potential to be sold between $5,000 and $10,070 on the street.
He said a heavy user often used 1 g of methylamphetamine a day.
In relation to a tick list, he explained that some users maintain a schedule of what is owed by them as they often obtain methylamphetamine on credit or on tick.
He said pepper spray is often used by drug dealers for their own protection.
CCTV is also commonly used by drug dealers for protection of their own premises and as surveillance against police.
In cross‑examination Detective Sergeant Green agreed that scales are commonly used by both users and sellers. He agreed that the greater the volume of methylamphetamine purchased, the cheaper it is.
He also agreed that it is common to find various mobile phones, often under false names, in the possession of drug dealers. However, in the case of Mr Ulrich police only found one phone which was in Mr Ulrich's name. The police didn't analyse the phone for details.
He agreed that clipseal bags, although they were often used for distributing drugs, are often used for normal household users.
He also agreed that often police find cash when executing search warrants but no cash was found in Mr Ulrich's possession.

Andrew Corriera

Mr Corriera gave evidence that he had been a family friend and had known Mr Ulrich for 20 years.
He dropped into Mr Ulrich's house at between 11.00 and 11.30 am. He was driving past and saw the garage open and simply dropped in. He had been there for 20 to 30 minutes before police arrived. He walked through the open garage and did not go inside the house.
He said he did not know anything about the presence of drugs on the premises and did not discuss purchasing drugs from or with Mr Ulrich.
In cross-examination he denied he used methylamphetamine and denied he often used methylamphetamine at the defendant's premises or had used methylamphetamine just before the police had arrived. He said he had never used methylamphetamine.
He denied he had arranged to jointly purchase the methylamphetamine found by police in Mr Ulrich's house and denied half of the methylamphetamine was owned by him.

The defendant – Mr Ulrich

Mr Ulrich said he was aged 57 years, was divorced and worked as a self‑employed landscape gardener. He had worked in that capacity for 20 to 30 years. He said he worked 24 hours a day.
He said that in 2012 he was a user of methylamphetamine, mainly for the purpose of keeping him awake while working.
He smoked methylamphetamine and used 1, 2 or 3 g per day.
He said he purchased the 9.3 g of methylamphetamine seized by police. He bought two eight balls. He bought methylamphetamine on behalf of himself and Mr Corriera after reaching an arranging with Mr Corriera to jointly purchase the methylamphetamine.
He said Mr Corriera came over to his house every day to have a smoke of methylamphetamine because his partner did not like him using the drug at home. He used a pipe to smoke the methylamphetamine and left the pipe at Mr Ulrich's house.
He explained he installed security cameras about 10 years ago because his house was often broken into and he kept plants and tools associated with his landscaping business in his garage which had been stolen in the past.
In relation to the pepper spray he said he bought four cans of pepper spray from an army surplus store which had since closed down. He kept two cans, one can in his black toiletries bags in which he put everything and took it with him everywhere. Another can he kept in his van. He gave another can to his mother and a fourth can to his girlfriend.
He denied the handwritten notes were a tick list. Although he admitted the notes were in his handwriting he said except for one note, in which he set out quantities and prices of methylamphetamine when he was calculating what it would cost him to buy methylamphetamine and in which he had calculated a sixth of an eight ball to cost $584, none of the rest of his handwritten notes related to drugs.
1 oz → ⅛  3.5
½ oz → ½     8            1.75
¼ oz → ¼     8            9
6 ÷ 3500 →$584
I OWE DAN : -      2000 + 3500 → 5,500
OWES ME : -   600 + 700 + 700 → 2,000
BAL: - 3500
Specifically, he denied the bottom half of the note related to drug dealing. He said it related to $3,500 he owed a friend Dan for buying two model helicopters from him and $2,000 he owed Dan for the supply of soakwells, colourbond sheeting and excavators.
He also denied any of the names and entries on a separate piece of paper referring to seven different people related to drug dealing. He said that simply related to monies owed to him and owing by him for unrelated matters.
In particular, the name 'Just' was Justin Tames to whom he had loaned the sum of $3,000 and in respect of which Mr Tames had reimbursed $800.
In relation to the entry for 'Boo', that related to his partner Delores Game with whom he had been in an on-off relationship for about 18 years. The entries next to her name related to the sum of $20,500 he had loaned her for the purchase of a motor vehicle, a Honda Jazz. He produced an ANZ Bank statement in his business name, Garden Park Developments, for the period 28 February 2011 to 31 March 2011 which contains an entry on 15 March 2011 for a cheque withdrawal of $20,500.
The entry for 'Golly' was a reference to Mr Corriera.
In cross-examination he said he earned on average $100,000 to $120,000 annually. He has a mortgage for $200,000 on his Metcalfe Road house for which he pays about $1,000 a month. He also owns a rental property in respect of which he pays $2,000 to $2,500 per month and receives rent of $450 per week.
He said Mr Corriera would buy drugs directly from a person at his, ie, Mr Ulrich's house. He said for five or six years he had an arrangement with Mr Corriera that they would buy drugs together and split the drugs between them. He said Mr Corriera always had cash even though he did not work. Mr Corriera loaned Mr Ulrich $20,000 in bits and pieces in mid‑2010.
On this occasion Mr Corriera paid Mr Ulrich $2,000 cash in advance for the methylamphetamine which Mr Ulrich was going to purchase on behalf of both of them and then split between them. He said he purchased the methylamphetamine the day before the execution of the search warrant on 3 July 2012. He purchased two eight balls and a little bit more of something else, ice, but it was not any good. He purchased it from a friend of his. He purchased it for $4,000. He gave the seller $2,000 provided by Mr Corriera and the rest of it was supplied on credit. He did not have any money of his own at that time.
The 1.25 g of white powder which was seized by police was, Mr Ulrich said, MSM.
He said Mr Corriera knew Dan.
Mr Ulrich said that although he only purchased two eight balls, that is, 7 g in total, of methylamphetamine, he added other methylamphetamine he already had in his possession to the bag, the intention being that when Mr Corriera came over he would take from the bag his 3.5 g or an eight ball by using the scales to measure the correct amount.
When Mr Corriera came over to his place on 3 July, he heard him knock on the front door and he then came around the back through the garage. At the time, Mr Ulrich was smoking methylamphetamine and because he did not want to share any of the methylamphetamine with Mr Corriera, he threw everything into a large plastic bag and then put that bag into the black toiletry bag which he put on the top of his fridge. He normally kept the plastic bag containing the methylamphetamine in his shed from where he had taken the plastic bag containing the methylamphetamine earlier that morning.
Although he had put the drugs into the toiletry bag to hide them from Mr Corriera they then each smoked some methylamphetamine which they finished smoking shortly before the police arrived.
In relation to his evidence‑in‑chief regarding purchasing four cans of pepper spray, he was, in cross-examination, taken to transcript of his interview by police during the execution of the search warrant in which he said the can of pepper spray found by police in the black toiletry bag was the only one he had which had been given to him. He said what he told police was not true and maintained he had bought four cans in total.
He was extensively cross‑examined about his handwritten notes. He maintained his denial the notes record drug dealing activities. He said it was a coincidence that a figure of $3,500 appears on the top of the page, where there are, by his own admissions, notations of amounts and prices of drugs, and also at the bottom of the page referring to Dan. He maintained the calculations at the top of the page related to an offer he was made to purchase six eight balls of speed, whereas, the notation on the bottom of the page was written at a later time and did not relate to drug activities but to monies he owed his friend Dan for the supply of soakwells, the use of an excavator, and some sheeting to do with his landscaping business and one of two model helicopters he purchased from Dan.
He said he did not know how the notes got into the black bag.
He admitted he had bought drugs from Dan and paid him in cash. He said he rarely bought drugs on tick.
He said 5.8 g of methylamphetamines, (which would have been the amount remaining after Mr Corriera was given his eight ball of 3.5 g) would last him a week depending on the amount of work he was doing. The amount of methylamphetamine he consumed was related to the amount of work he was performing.
He bought an eight ball two times a month, sometimes more. He then said he bought 3.5 g every fortnight. He estimated he spent $4,000 a month buying methylamphetamine.

Justin Tames

Mr Tames said he was a motor vehicle dealer. He had known Mr Ulrich for five to six years. In 2012 Mr Ulrich asked him to source a vehicle and paid him the sum of $3,000 in cash as an advance. However, Mr Tames was unable to buy a vehicle but kept the funds after speaking with Mr Ulrich because he was then going through a separation and experiencing financial difficulties. He said the money was a short‑term loan. He paid back $800 to Mr Ulrich. There was no documentation evidencing the monies paid by Mr Ulrich to Mr Tames.
In cross-examination he said he was asked to source the car around June 2012. There was no discussion with Mr Ulrich about the terms of the loan, how and when it was going to be repaid. He said he repaid $800 two to three months later, that is, after Mr Ulrich paid the money to him.
He denied he was a user of methylamphetamine or that he bought methylamphetamine from Mr Ulrich. He denied the sum of $3,000 or the monies he said was owing by him to Mr Ulrich of $2,200 related to drugs.

Delores Game

She confirmed she had known Mr Ulrich for about 18 years and they had been in a personal relationship, on and off, during that time.
She said she ran a cleaning business and damaged her previous car in a motor vehicle accident. She needed another car for her business and Mr Ulrich agreed to pay for a new car. She said that was in March 2011. She went with him to the car dealer when he paid over the sum of $20,500 for the car.
The agreement was that she would pay him when she could and she paid him some monies. She estimated that in July 2012 she still owed Mr Ulrich $16,000 to $17,000.
In cross‑examination she said she did not borrow the money from a bank because she did not have a good credit history. She always borrowed money from Mr Ulrich. She did not keep a record of what she owed. She only ever paid off the monies he had loaned her in cash. She paid a lump sum of $3,000 or $3,500 on one occasion.

She said she was not aware Mr Ulrich was involved in drugs. She agreed she had been convicted of possession of methylamphetamine but denied that she was aware Mr Ulrich was also using methylamphetamine. She denied she purchased drugs from him. She denied Mr Ulrich and herself were cross-supplying each other.

Credibility

Mr Corriera gave his evidence in a straight forward, credible and believable manner. I was impressed by his demeanour. I accept his evidence was truthful. In particular, I accept he was telling the truth when he denied he knew Mr Ulrich was a user of methylamphetamine or involved with methylamphetamine and when he denied he was himself using methylamphetamine or purchasing methylamphetamine from or with Mr Ulrich.
I find Mr Ulrich an unconvincing and untruthful witness. In a number of instances he gave implausible, contradictory and inconsistent explanations.
One example is his explanations for how the methylamphetamine and the drug paraphernalia were located in the black toiletries bag. His explanations were confusing and I formed the impression he was concocting a story as he was being cross‑examined. He said the plastic bag in which the drugs and drug paraphernalia were stored was normally kept in his shed. He took the bag and the drugs out of his shed that morning to have a smoke of methylamphetamine before he went to work. He was smoking methylamphetamine when Mr Corriera visited his house that morning. At one stage he said he was smoking inside and then he said he was smoking outside. He left everything in the plastic bag on the top of the kitchen table and later a long bench.
He explained when Mr Corriera came around to his house and knocked on the front door he was smoking methylamphetamine and did not want to share the methylamphetamine with Mr Corriera so he put everything into the black toiletries bag to hide it from Mr Corriera. He later said he did not have time to put the plastic bag containing the methylamphetamine and associated items back in the shed. He and Mr Corriera then smoked some methylamphetamine together. He took the methylamphetamine out of the toiletries bag into which he had put the drugs to hide them from Mr Corriera. Mr Corriera did not ask for his share of the drugs which, according to Mr Ulrich, they had arranged to jointly purchase. Nor did Mr Ulrich offer to give Mr Corriera's share to him. Apparently there was no discussion about the drugs they jointly arranged to purchase even though Mr Corriera knew Mr Ulrich would have by then obtained the drugs.
Given, on Mr Ulrich's evidence, he and Mr Corriera had arranged to purchase the drugs together and then split the drugs between them, it does not make sense that Mr Ulrich would hide the drugs from Mr Corriera. Neither does it make sense that according to Mr Ulrich, although he hid the drugs from Mr Corriera because he did not want to share the drugs with him, they then smoked methylamphetamine together shortly before the police arrived, apparently without discussing the drugs they had arranged to jointly purchase and Mr Corriera being given his share. It does not make sense that having hidden the drugs from Mr Corriera in the black toiletries bag so he did not have to share the drugs even though, according to Mr Ulrich, he had only just received the drugs he had purchased on behalf of he and Mr Corriera, they then smoked methylamphetamine together.
Nor does it make sense that they would not have discussed Mr Ulrich, by his account, having just received the drugs which had been jointly purchased and for which Mr Corriera had paid $2,000 cash to Mr Ulrich.
In my view Mr Ulrich's actions, if he did place the plastic bag containing the drugs and associated paraphernalia into the black toiletries bag when Mr Correiri visited that morning, are consistent with Mr Corriera's evidence that he did not use methylamphetamine and did not know Mr Ulrich was a user and that Mr Ulrich was hiding his drug use from Mr Corriera.
Another instance in which I find Mr Ulrich's evidence implausible is his explanation as to the notes. I do not accept his explanation that although his handwritten notations at the top of one page related to drug use when he was considering purchasing six eight balls of speed and in which there is a reference to an amount of $3,500, the later notations referring to owing Dan $3,500 does not also relate to drug use. I reject Mr Ulrich's explanation. I am satisfied that all of the notations on that page relate to drug use activities.
Further, I am also satisfied beyond reasonable doubt that Mr Ulrich's handwritten list of names and dollar amounts on another piece of paper relates to drug dealing activities. I reject his explanation that piece of paper only records monies owed to or by him for unrelated matters. In particular, I am satisfied that because the notes were found by police with the methylamphetamine in the black toiletries bag, the notes record the drug dealing activities.
I am also of the view that Mr Ulrich's financial circumstances did not permit him to maintain his stated use of methylamphetamine of about $4,000 a month, that is about $48,000 a year. On his evidence, he was earning an average of $100,000 to $120,000 a year (which I understand to be gross income) and paying about $1,000 a month off his mortgage for his Metcalfe Road residence. Even accepting the rent he received from the rental property covered his mortgage repayments on that property, when normal living expenses are included, Mr Ulrich would not from his stated income be able to fund the level of his stated drug use.
In my view, he was selling methylamphetamine to fund his own drug use. He was a user/dealer.
In my view, the handwritten notes are consistent with and evidence of drug dealing. Further, given the number of entries and people recorded and the sums of money recorded, I am of the view Mr Ulrich was involved in extensive drug dealing involving at least a modest level of commerciality.
I was unimpressed by the evidence of Mr Tames and do not believe he was telling the truth when he said Mr Ulrich originally provided him with the sum of $3,000 in cash to buy a motor vehicle but after Mr Tames was unable to source a vehicle he retained the sum of $3,000 as a loan because he was experiencing financial difficulties. No documentation of the receipt of use to which the sum of $3,000 was kept by Mr Tames. In my view it is implausible that a, presumably, licensed, motor vehicle dealer would not have kept documentation of monies provided by a customer for the purpose of purchasing a motor vehicle. It is not plausible that if there had been an agreement for the monies which were advanced for the purchase of a motor vehicle, to be later treated as a loan, that that would not have been evidenced by documentation created by Mr Tames. In my view it is implausible Mr Ulrich would have agreed to loan the sum of $3,000 to Mr Tames, whom he had only known for a relatively short period of time and was not a close friend but merely an acquaintance, in circumstances where, in my view, Mr Ulrich's financial circumstances were not such that he would, or was able to, readily loan monies to anyone, particularly someone whom he had not known for long and was not close to. In my view it is implausible if the monies had been originally advanced for the purpose of funding the purchase of a motor vehicle and then converted to a loan, there would not have been documentation evidencing the terms of that loan including how and when it was going to be repaid.
Neither was I impressed or persuaded by the evidence of Ms Game. I found her to be an unconvincing and unsatisfactory witness. In particular I disbelieve her when she said she was unaware of Mr Ulrich's involvement with methylamphetamine and that he was also unaware of her association with methylamphetamine. The fact that her name appears on a list of debts which was found in a bag with methylamphetamine and other items, which I am satisfied were associated with drug use, when she also has convictions in relation to methylamphetamine use, leads me to conclude that the only reasonable inference open is that the amounts recorded against her name (her nickname Boo) record drug debts. Although the ANZ bank statement tendered by Mr Ulrich (exhibit 6) records a cheque withdrawal on 15 March 2011 in the sum of $20,500, the statement does not otherwise identify to whom or on whose behalf the payment was made. I am not persuaded the withdrawal sum of $20,500, or Mr Ulrich's handwritten entries on the note, record a debt in relation to the purchase of a motor vehicle by Mr Ulrich on behalf of Ms Game.
In particular I point to the inconsistencies between the evidence of Mr Ulrich and Ms Game. Mr Ulrich suggested various entries on the note records at various times monies repaid to him by Ms Game and further monies later loaned to her, whereas Ms Game said she only paid a lump sum of $3,000 or $3,500 in mid-2012. She also did a lot of work for him in his landscaping business and Mr Ulrich deducted whatever money he owed her for the work she did for him from the monies she owed him. She did not keep a written record of what she owed him and simply kept it in her head.
Although the note apparently records the sum of $3,500 was paid, it relates to a sum apparently owing of $16,650 and not $20,500. It then apparently records a further sum borrowed of $2,500 (query on 22 June 2012) on the same day the sum of $3,500 was apparently repaid. According to the note, further sums are debited and credited to 'Boo' on 25 June and 29 June leaving an apparent balance owing of $10,700. Ms Game gave no evidence of repaying and then borrowing the various sums recorded on the note. I am not persuaded the sums recorded as apparently reflecting repayment of monies owing reflect work performed by Ms Game for Mr Ulrich in his landscaping business.
Finally, although Mr Ulrich said the entry for 'Golly' was a reference to Mr Corriera, Mr Corriera was not cross-examined to suggest his nickname was 'Golly', or that he owed Mr Ulrich, and was owed, the monies recorded on the handwritten list on one of the pieces of paper found by police in the black toiletries bag. In his evidence-in-chief Mr Ulrich said the notations for 'Golly' related to water feature parts and lighting for a job Mr Corriera was doing for his girlfriend. I reject Mr Ulrich's explanation and do not accept the entry 'Golly' is a reference to Mr Corriera.
Although I disbelieve Mr Ulrich's evidence, I am still required to put his evidence to one side and consider whether on all of the evidence the State has satisfied me beyond reasonable doubt that Mr Ulrich was in possession of the methylamphetamine with intent to sell it, or at least some portion of it: Liberato v The Queen (1985) 159 CLR 507 per Brennan J (515) (with whom Deane J agreed).

Section 31A Evidence Act propensity evidence

On 22 August 2013, on the State's application, his Honour O'Neal DCJ granted the State leave to lead Mr Ulrich's prior conviction in the Perth District Court on 20 March 2002 for possession of methylamphetamine with intent to sell or supply. The material facts in relation to that conviction are that when police executed a search warrant on 1 June 2000 at Mr Ulrich's premises in Ferndale, at the same house he was living in when the police executed the search warrant on 3 July 2012, police located a total of 60.7 g of methylamphetamine in two bags in the fridge of the house along with a quantity of clip seal bags, a set of electronic scales, powdered glucose, a tick list and a notebook and $1,100 in cash. Mr Ulrich was interviewed during the search and admitted the two bags of powder which were found and seized were amphetamines but denied he had an intention to sell the drugs. Mr Ulrich pleaded guilty to the offence of possession of methylamphetamine with intent to sell or supply on the basis he had the methylamphetamine in his possession but it belonged to another person who had left it with Mr Ulrich. On the trial of issues on 28 March 2002, Mr Ulrich was sentenced by her Honour Deane DCJ in the Perth District Court on the basis that Mr Ulrich was involved in the sale or distribution of amphetamine and was not merely a holder or bailee of the drugs on behalf of someone else.
I am satisfied the evidence of the facts on which that earlier conviction is based satisfies the definition of 'propensity evidence' in s 31A of the Evidence Act 1906 in that it is propensity evidence which demonstrates the Mr Ulrich has a tendency or propensity to engage in the dealing of methylamphetamine. It therefore goes towards an assessment of the likelihood that on this occasion Mr Ulrich was simply supplying a small amount of the methylamphetamine to one friend, rather than selling it, when he has previously been found in similar circumstances to be selling that drug.
The State submits that the fact that Mr Ulrich was found in similar circumstances previously in 2000 and gave a similar explanation for the drugs which was found to be not feasible by her Honour Judge Deane is a factor which affects Mr Ulrich's credibility on this occasion in giving such an explanation for the methylamphetamine and the drug paraphernalia found at the same house.
I accept the circumstances in which each of the offences were committed are similar.
In my view the similar circumstances in which the earlier offence was committed is evidence that Mr Ulrich has a tendency or propensity to engage in dealing in methylamphetamine and supports the likelihood that on this occasion he was also in possession of methylamphetamine with the intention of supplying at least a portion of the drugs rather than being in possession merely for his own personal use.
I am also satisfied the evidence of the prior conviction in the particular circumstances in which the offence was committed adds weight to the conclusion that I have already reached that Mr Ulrich is not a credible witness, and his explanation that the methylamphetamine seized by police (of at least 7 g) was jointly purchased with Mr Corriera, should be rejected.

Conclusion

In determining whether the State has proved beyond reasonable doubt Mr Ulrich possessed the methylamphetamine with intent to sell or supply it, I am required, if I disbelieve the evidence of Mr Ulrich, to put his evidence to one side and determine whether on all of the evidence, the State has discharged the onus upon it to prove an intention to sell or supply beyond reasonable doubt.
I am satisfied beyond reasonable doubt on all the evidence Mr Ulrich was in possession of the methylamphetamine with an intention to sell it. In my view, he was a relatively heavy user of methylamphetamine and sold methylamphetamine partly to fund his own use but also for, at least, modest commercial purposes. I accept that of the total amount of methylamphetamine seized of 10.14 g, Mr Ulrich intended to use some of the methylamphetamine himself but I am satisfied he also intended to sell some.