[2025] SADC 23

Prosecution: R Counsel: MS T WARD - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: WARREN EDWARD PROUT Counsel: MR W MICKAN - Solicitor: MR P HILL Hearing Date/s: 27/11/2023 to 30/11/2023, 01/12/2023, 08/04/2024 to 09/04/2024 File No/s: DCCRM-21-1471 B DISTRICT COURT OF SOUTH AUSTRALIA (Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v PROUT Criminal Trial by Judge Alone [2025] SADC 23 Judgment of her Honour Judge Matteo 13 March 2025 CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES Defendant charged with two counts of trafficking in a controlled drug relating to possession with intention to sell 11.4g of methylamphetamine crystals secreted in a small magnetic box under the driver’s seat of a truck registered to him (count 1) and 443g of cannabis inside a filing cabinet in a locked study at his residential premises (count 2). The prosecution case that the defendant was in possession of the subject drugs is, in each instance, wholly circumstantial. There is evidence on the prosecution case of the defendant’s truck and residential premises being accessible by another person with an interest in illicit drugs. Held: 1. The prosecution circumstantial case on count 1 does not exclude as a reasonable explanation exclusive possession of the methylamphetamine in the truck by another. 2. The prosecution circumstantial case on count 2 does not exclude as a reasonable explanation exclusive possession of the cannabis in the study by another. Verdicts: As to counts 1 and 2, the defendant is not guilty. Controlled Substances Act 1984 (SA) s 4, s 32(3), referred to. R v GNN (2000) 78 SASR 293; R v Soteriou (2013) 118 SASR 119; BNM v The Queen [2020] SASCFC 10; R v Cekic [2016] SASCFC 31, considered. -- 1 of 22 -- -- 2 of 22 -- R v PROUT [2025] SADC 23 Introduction 1 The defendant is charged on an information with two counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (CSA). 2 The defendant pleaded not guilty and elected to be tried by judge alone. 3 The particulars of the offences with which the defendant is charged are relevantly as follows:1 Count 1 Warren Edward Prout on the 6th day of November 2020 at Croydon, trafficked in a controlled drug, namely, methylamphetamine. Count 2 Warren Edward Prout on the 6th day of November 2020 at Morphett Vale, trafficked in a controlled drug, namely, cannabis. The matter in overview 4 On the evening of 5 November 2020, a truck registered to the defendant was parked on Port Road at Croydon. The defendant and two other males were in the vicinity of the truck when police attended at that location in relation to an investigation into the suspected theft of copper cabling. The truck was seized in connection with the copper theft investigation and searched the following day. It was found to contain 11.4g of methylamphetamine crystals secreted inside a small magnetic box under the driver’s seat. 5 Also on 6 November 2020, the defendant’s residential premises were searched and a quantity of 443g of cannabis was located inside a filing cabinet in a locked room. 6 The prosecution case is that the defendant was in possession of the methylamphetamine, which is the subject of count 1, and the cannabis, which is the subject of count 2, with the intention of selling those drugs or intending that they should be sold. 7 In respect of each of counts 1 and 2, the primary issue in contention, and therefore for my determination, is whether the prosecution has proved beyond 1 The defendant was originally jointly charged with Andrew Kingsley Pitt; the charges as against Pitt were the subject of a nolle prosequi entered on behalf of the Director of Public Prosecutions prior to the commencement of the defendant’s trial. I do not speculate as to the reason/s for that. -- 3 of 22 -- [2025] SADC 23 2 reasonable doubt that the defendant was in possession of the drugs the subject of the charge. Elements of the offence of trafficking in a controlled drug 8 The elements of the offence of trafficking in a controlled drug are as follows: 1. The substance the subject of the charge is a controlled drug. 2. The defendant knew that the substance was a controlled drug. 3. The defendant trafficked the controlled drug. 9 By s 4 of the CSA, to traffic in a controlled drug means to sell the drug; or have possession of the drug intending to sell it; or take part in the process of sale of the drug. 10 The prosecution case in respect of each of counts 1 and 2 was put on the basis that the defendant possessed the controlled drug intending to sell it.2 11 The methylamphetamine the subject of count 1 and the cannabis the subject of count 2 are controlled drugs. 12 A threshold matter for determination in respect of each charge is whether the prosecution has proved beyond reasonable doubt that the defendant was in possession of the drug concerned. General legal directions 13 The defendant is presumed to be innocent of the offences. The defendant bears no onus. The prosecution bears the onus of proving the guilt of the defendant beyond reasonable doubt. It is not sufficient for the prosecution to prove a suspicion of guilt or that the defendant is possibly or probably guilty. The prosecution must exclude as a reasonable possibility any matter raised by or on behalf of the defendant which might affect proof of the charge. 14 I am to consider the charges separately, and only by reference to the evidence which applies to the charge under consideration. 15 I am to bring an open and unprejudiced mind to my consideration of the evidence and the ultimate question of whether the charges (or either of them) are proved by the prosecution beyond reasonable doubt. I am to consider the evidence and arrive at verdicts without sympathy for, or prejudice against, any party involved in the proceedings. 16 In assessing the evidence given by witnesses in the trial, I am to consider both their truthfulness and their reliability in determining whether I can rely upon the evidence given. I may also consider how the evidence of a witness fits with 2 T104 (prosecution opening), T298 (prosecution closing address). -- 4 of 22 -- [2025] SADC 23 3 other evidence I find proved. I may accept or reject all or part of a witness’s evidence. 17 I draw no inference against the defendant for exercising his right to remain silent at trial. I do not treat the defendant’s silence as constituting any admission or as a makeweight for the prosecution’s evidence. 18 I shall indicate further specific principles of law which I am to consider and apply in the course of my consideration of the evidence. Evidence Scene at Port Road 19 Shortly after 10.00pm on 5 November 2020, Detective Brevet Sergeant Jake Renko and Brevet Sergeant Ryan Weissel, both members of the Western District Criminal Investigation Branch, attended at Port Road, Croydon, near the intersection of South Road. At the time of their arrival, there were two trucks parked on the footpath on the northern side of Port Road, about 50m apart and facing in opposite directions. The trucks had the appearance of ‘worker vehicles’, as Brevet Sergeant Weissel described them, with orange lights flashing on top. Neither Weissel nor, I infer, Renko was wearing a body-worn camera. 20 One of the trucks was a white Mitsubishi Canter with South Australian registration S319 AWW (the Canter truck). The other was a Mitsubishi Fuso with South Australian registration S861 AFG (the Fuso truck). Police checks revealed that the Canter truck was registered to the defendant, Warren Prout,3 and that the Fuso truck was registered to a company, All-round Excavation Services. 21 When officers Renko and Weissel arrived at Port Road, there were three men present in the general vicinity of the two trucks, being the defendant, Andrew Kingsley Pitt (Pitt) and Robert Gardner (Gardner). Brevet Sergeant Weissel took steps to formally identify the males. The defendant and Gardner each provided Telstra employee identification cards. As a result of conducting checks on the males, Brevet Sergeant Weissel ascertained that Pitt was the subject of an active arrest warrant, and informed Detective Brevet Sergeant Renko accordingly. Another police vehicle was requested to attend to assist with the arrest of Pitt pursuant to the warrant. 22 This much of the evidence which I have summarised seemed to be common ground between the parties and uncontroversial. Brevet Sergeant Weissel’s observations at the scene on Port Road 23 Knowing that Pitt was to be arrested, Brevet Sergeant Weissel stayed ‘in his general vicinity’. Weissel had Pitt under observation for about 45 minutes. Weissel 3 Exhibit P16 (agreed facts), number 6: ‘The White Mitsubishi Canter truck bearing registration S319AWW was registered to Warren Prout of 42 Emmerson Drive Morphett Vale between 25 October 2020 and 24 January 2021.’ -- 5 of 22 -- [2025] SADC 23 4 saw Pitt get into the Canter truck and sit in the passenger seat with the door slightly ajar. Pitt was at that time patting a dog which was on his lap. 24 During the time Weissel was observing Pitt, he (Weissel) was aware of Detective Renko conversing with the defendant and Gardner. At no point did Weissel see Gardner approach the Canter truck. 25 Pitt was arrested and conveyed from the scene on Port Road by another police patrol at 11.17pm. Following the arrest of Pitt, the dog was removed from the Canter truck and the truck was locked by the defendant. The defendant and Gardner were subsequently arrested (in relation to suspected copper theft) and separately conveyed from the scene. 26 In cross-examination, Weissel said that at the time he and Renko arrived on Port Road, the defendant, Pitt and Gardner were standing between the two trucks, towards the rear of the Canter truck. Weissel and Renko both got out of their police vehicle, which was parked facing the Canter truck, and approached the males straight away. 27 There was a period of about 10 minutes before Weissel returned to the police vehicle to conduct checks on the onboard computer in the centre console. The checks took 10 to 15 minutes. Weissel agreed that his attention was on the computer for the most part, but that he also had an eye on ‘the general scene’. He said that during this time, the males were ‘milling about outside’. He was not recording their movements. 28 Weissel described the lighting in the area as darkish with standard street lighting. Weissel admitted the possibility that he was mistaken in initially describing the trucks as facing in the same direction. 29 Weissel gave evidence in cross-examination that after conducting the computer system checks and requesting the attendance of another police patrol, before he commenced observing Pitt, he walked around the scene to see what else was around what was described as the worksite, including to look at copper cabling on the side of the road and looking into the rear tray of the Canter truck. Once Pitt approached the passenger side of the Canter truck, Weissel stood near the passenger side and watched Pitt. By reference to a photograph of the front of the Canter truck,4 Weissel said that he was on the right-hand (passenger) side, standing about 3m back ‘diagonally away from the vehicle’. 30 Weissel said that Pitt was in the cabin of the Canter truck for ‘approximately 30 minutes on and off,’ which he explained to mean that Pitt got in and out of the vehicle. At one point, Pitt stood outside the vehicle to smoke, then got back into the vehicle. Weissel could not say how many times Pitt got into and out of the Canter truck. When the cabin doors were opened, the interior cabin light would 4 Exhibit D4, p.23. -- 6 of 22 -- [2025] SADC 23 5 turn on. In re-examination, Weissel said that he did not see the cabin light come on while he had been in the police vehicle conducting checks. 31 In cross-examination Weissel agreed that he did not have notes of the mens’ movements because the police’s primary interest in the men and focus related to suspected copper theft. The arrests of the defendant and Gardner related to that suspected offence. 32 As to the man Gardner, Weissel had no record of what he was doing, but he had a recollection of Gardner being on the footpath between the two trucks and ‘milling around’. He did not think Gardner approached the cabin of the Canter truck. Gardner and the defendant were towards the rear of the Canter truck, separated from Pitt. 33 By reference to a photograph of the interior cabin of the Canter truck,5 Weissel agreed that the dashboard on the driver’s side was in parts over chest level, and that the dashboard itself was cluttered with items. 34 Weissel was not aware of Pitt having a backpack on the night; a backpack containing a phone connected to Pitt was only discovered during the search of the Canter truck conducted on the following day. Detective Brevet Sergeant Renko’s observations at the scene on Port Road 35 On arrival, Detective Brevet Sergeant Renko observed the three males to be near the rear of the Canter truck moving some objects. He could not see into the Canter truck at that time. 36 Renko approached the men and explained that police were investigating a matter and sought their particulars, which were forthcoming. Renko remained with the males at the rear of the Canter truck while Weissel returned to the police vehicle to conduct checks. During the five to ten minutes Renko was with the males at this location, none of them left the vicinity. 37 Upon being advised by Weissel of the existence of a warrant relating to Pitt, Renko stepped about six to eight metres away to make a phone call in a return alcove area.6 Renko continued to observe the males but said that he had his back to them at times. Weissel remained with the males. Renko was in a position removed from the males for between minutes and half an hour. Renko moved away to take some photographs, then observed Pitt walk towards the front passenger seat of the Canter truck. He said that Weissel walked over with Pitt and remained with him, he estimated a couple of metres from the door. Renko said that when Pitt was in the Canter truck, he was ‘just sat there’ in the front passenger seat. During this time, the defendant and Gardner remained at the rear of the Canter truck. Renko then made further phone calls and was not looking in the direction of the males at 5 Exhibit P1, p1. 6 Marked on exhibit D3 (T218). -- 7 of 22 -- [2025] SADC 23 6 all times. He estimated that the longest his attention was drawn away from the Canter truck was seconds. 38 Detective Renko described the lighting in the area at the time as ‘medium’. Police were using torches. He said it was ‘dark in some areas and light in some others’. 39 Renko said that he placed Pitt under arrest and made arrangements for his conveyance from the scene. He arrested Pitt at the passenger seat of the Canter truck and at that point noticed the dog in the cabin. Renko estimated that about an hour and 20 minutes elapsed between police arrival at Port Road and the conveyance of Pitt. During that time, he did not see either the defendant or Gardner go into the Canter truck or the Fuso truck. There was a period of time after Pitt’s conveyance from the scene when he did not maintain observations of the defendant and Gardner. 40 Detective Brevet Sergeant Renko gave evidence about the attendance of two Telstra employees at the scene following Pitt’s conveyance. There was no evidence or suggestion that either of them approached, or had opportunity to access, the trucks. 41 Renko saw the defendant lock the Canter truck with a key which he retained possession of until they returned to the Port Adelaide police station. Both trucks remained locked at the scene and were not searched or visually inspected inside that night. 42 The defendant was arrested at 12.34am on the morning of 6 November 2020. At 1.21am, Detective Renko conducted an audio-visually recorded interview with the defendant, a matter which I shall return to. 43 In cross-examination, Detective Renko agreed that when Pitt was seated in the cabin of the Canter truck, his view of Pitt was obstructed by the truck itself, including the tray and its contents.7 Renko agreed that Pitt was inside the Canter truck for about half an hour in total, during which time his attention was on making phone calls and on the defendant, Gardner and officer Weissel, more so than Pitt. Renko did not see Pitt get in and out of the Canter truck. Like Weissel, Renko agreed that the police’s focus at that time was on the investigation of copper theft, and he did not note the movements of all persons. 44 As to his view into the cabin of the Canter truck during the time Pitt was inside, Renko agreed that the cabin was dark and he could only see the back of Pitt’s head through the window. 45 When Renko approached the Canter truck for the purpose of arresting Pitt, the passenger door was open. 7 As shown in exhibit D4, photograph 1 (T231-232). -- 8 of 22 -- [2025] SADC 23 7 46 Whenever the defendant and Gardner were within Renko’s view, they were always at the rear of the Canter truck. Search of the Canter truck 47 The Canter truck was conveyed from Port Road to the secure police exhibit storage facility at Ottoway,8 where it was searched by officers Weissel and Renko on 6 November 2020. 48 The passenger side of the cabin was searched by Brevet Sergeant Weissel, while the driver’s side was searched by Detective Brevet Sergeant Renko. There was a blue backpack on the passenger seat (the blue backpack) and a black backpack in the centre console next to the driver’s seat (the black backpack). There was a small black magnetic box under the driver’s seat (the magnetic box). Contents of the blue backpack 49 The blue backpack is shown in situ on the passenger seat of the Canter truck in exhibit P2, page 3 (photograph 011). It contained the following items:9 1. A Samsung mobile phone, with a profile belonging to Andrew Pitt under ‘Me’ on the contacts page. 2. A sunglass case containing a glass pipe and a small plastic resealable bag containing 0.30g of methylamphetamine. 3. A small metal tin containing a small quantity of cannabis. 50 No suitable fingerprints for analysis were located on the plastic bag which contained the methylamphetamine.10 Contents of the black backpack 51 No photograph was taken of the black backpack in situ. The black backpack contained the following items:11 1. A sunglass case containing a glass pipe and a small plastic resealable bag containing 1.23g of methylamphetamine. 2. An expiation reminder notice in the name of the defendant. 3. A wallet containing identification in the name of the defendant, handwritten notes of account details and $3,470 cash. 4. 40 plastic resealable bags. 52 No suitable fingerprints for analysis were located on the plastic bag which contained the methylamphetamine.12 8 Exhibit P16 (agreed facts), number 7. 9 Exhibit P14 (exhibit log). 10 Exhibit P16 (agreed facts), numbers 8, 10. 11 Exhibit P14 (exhibit log). 12 Exhibit P16 (agreed facts), numbers 8, 10. -- 9 of 22 -- [2025] SADC 23 8 Contents of the magnetic box 53 The magnetic box contained a plastic resealable bag containing 11.4g of mixed methylamphetamine,13 which is the subject of count 1. 54 A general view of the interior cabin of the Canter truck on the driver’s side is shown in exhibit P1, page 1 (photograph 023). The location of the magnetic box in situ is shown at page 9 (photograph 031), and the magnetic box once removed is shown at page 10 (photograph 032). Regarding the photograph of the magnetic box in situ, Detective Renko said that he saw the box when he ducked his head down in the position in which it is shown in that photograph, which was taken from a position facing the driver’s seat. 55 No suitable fingerprints for analysis were located on the plastic bag which contained the methylamphetamine inside the magnetic box.14 Search of the defendant’s premises 56 Also on 6 November 2020, the defendant’s residential premises at 42 Emmerson Drive, Morphett Vale were searched by police. During his record of interview, the defendant had nominated those premises as being his current home address. It was an agreed fact that the defendant and his former wife had been the registered owners of that property since 13 December 1996.15 57 No persons were home at the time of the search. Brevet Sergeant Nicolaas Jong was the police exhibits officer. 58 The layout of the premises is depicted in a plan, exhibit P5. Apart from common living areas, the premises had two bedrooms and a study. The bedrooms were differentiated as the main bedroom and bedroom 2. At the time of police attendance, the interior doors into the main bedroom and the study were secured by digital locks.16 Police forced entry into those rooms in order to conduct the search. 59 Brevet Sergeant Jong made a walk-through video of the premises17 after entry into the house and individual rooms had been gained, but before any items were seized pursuant to the search. 60 The prosecution contends that the main bedroom was occupied by the defendant, and that bedroom 2 was occupied by Pitt. It is an agreed fact that, as at 5 November 2020, Pitt had been residing at the premises for ‘some time’.18 The 13 Containing 9.11g of pure methylamphetamine: exhibit P16 (agreed facts), number 12. 14 Exhibit P16 (agreed facts), numbers 8, 10. 15 Exhibit P16 (agreed facts), number 1. 16 Exhibit P16 (agreed facts), number 2. 17 Exhibit P6 (walk-through video). 18 Exhibit P16 (agreed facts), number 13. -- 10 of 22 -- [2025] SADC 23 9 prosecution further contends that the study was effectively occupied by the defendant in the sense that it was used for the storage of his items. Search of the main bedroom 61 The only item of relevance seized from the main bedroom was a glass pipe from inside a wardrobe. Search of bedroom 2 62 The following items were located in a wardrobe in bedroom 2:19 1. A glass bong. 2. 81.2g of cannabis in a cryovac bag, which was not vacuum sealed, inside a plastic resealable bag. 3. A Commbank card in the name of Andrew Pitt, and accompanying letter. 4. A wallet containing $3,370 comprising mostly $100 bills inside a Maggi noodle box. 63 Brevet Sergeant Jong gave evidence that the cannabis appeared to be of much better quality than small amounts of cannabis located in the study (referred to below). 64 No suitable fingerprints for analysis were located on the inner or outer plastic bags which contained the cannabis.20 Search of the study 65 The following items were located in the study:21 Inside desk drawers 1. Two ice pipes (in separate drawers). 2. Two cannabis grinders. 3. Electronic scales concealed in a CD cover. 4. 15.1g of cannabis in a cryovac bag and two 5g quantities of green vegetable matter. Inside a cupboard 5. A bundle of Telstra/work related documents.22 6. Two large glass bongs. 7. Documents referring to Michael Purse.23 19 Exhibit P8 (exhibit log); exhibit P12 (photographs). 20 Exhibit P16 (agreed facts), numbers 9, 10. 21 Exhibit P8 (exhibit log). 22 Exhibit P10. 23 Exhibit MFI-P11 -- 11 of 22 -- [2025] SADC 23 10 Inside the drawers of a locked filing cabinet24 8. A homemade taser. 9. An extendable baton. 10. 443g of cannabis25 in a cryovac bag, which is the subject of count 2. 11. A Sunbeam vacuum sealer. 66 Brevet Sergeant Jong was unable to say whether the electronic scales were operable. The taser was not tested. 67 No suitable fingerprints for analysis were located on the plastic bags which contained the cannabis or green vegetable matter.26 Defendant’s record of interview27 68 When interviewed at the Port Adelaide police station at 1.21am on 6 November 2020, and before any of the items from the Canter truck or the Emmerson Drive premises had been located, the defendant stated that he had been with Gardner and Pitt that day (which I take to mean the previous day, 5 November 2020). The defendant stated that he had worked with Gardner replacing Telstra pits and manholes for five years, but that he (the defendant) had not worked with anyone for the last four or five months. Later in the interview he stated that they had not had work in the last 12 months. 69 The defendant admitted having driven the Canter truck to Port Road at about 8.00pm that night, and that it was his dog in the vehicle. He said that Pitt had arrived with him, and that Gardner was in the Fuso truck. 70 The defendant stated that he had not been able to work. In that context, he stated that that had been due to ‘mental health’ and being defrauded. He said he was ‘taken to the cleaners’, that he lost his wife and had been incapable of working. Of the fraud, the defendant said:28 ‘…Um this gentleman wanted to set up a business with me and little did I know he was setting me up for a big fall, so he had business names and that with me as director which I didn’t even know about. Split my family up, so basically lost everything…’ Expert drug evidence 71 The prosecution led evidence from a detective within the Serious and Organised Crime Branch of South Australia Police concerning the illicit use, 24 Exhibit P16 (agreed facts), number 3: ‘At the time of police attendance on 6 November 2020, the filing cabinet in the study was locked. Police forced entry into the filing cabinet in order to conduct a search of the filing cabinet.’ 25 Described upon analysis as dry, 100% female flowering cannabis plant material: exhibit P16 (agreed facts), number 11. 26 Exhibit P16 (agreed facts), numbers 9, 10. 27 Exhibit P13 (USB containing recording of interview). 28 Exhibit P13; MFI-P13A (transcript of record of interview) p.5. -- 12 of 22 -- [2025] SADC 23 11 packaging and value of cannabis and methylamphetamine, which it is not necessary to summarise. It suffices to say that I accept the evidence of Detective Brevet Sergeant Matthew Turtle that, as at November 2020, one pound of cannabis had a value of between $2,500 and $3,000, and a gram of methylamphetamine would sell for around $500 to $550. At that time, an ‘8-ball’, or 3.5g of methylamphetamine, would sell for between $1,200 and $1,900.29 I also accept, without summarising it, Detective Turtle’s evidence about the functions of items such as plastic resealable bags, scales, mobile phones and weapons in connection with the trafficking of controlled drugs. Agreed facts on the defence case 72 The defendant did not give or call evidence. 73 As part of the defence case, certain facts were agreed concerning an examination of plastic packaging undertaken by Detective Renko, which concluded that:30 1. The plastic bags which contained the methylamphetamine the subject of count 1 and the methylamphetamine in the sunglass case in the black backpack were not of the same type. 2. Those plastic bags were of different sizes and the coloured line at the top of each bag was of a different shade of blue. 3. The plastic bag from the black backpack appeared older than the plastic bag which contained the methylamphetamine the subject of count 1. Specific legal directions Possession 74 Section 4 of the CSA provides that possession of a substance includes having control over the disposition of the substance and having joint possession of the substance. 75 I direct myself as follows as to what amounts to possession: • A person has possession of an item if they have the power and intention to exercise control over the item, to the exclusion of others. • In order to possess an item, a person must know of its existence. However, mere knowledge of the existence of an item, or mere association with an item, are insufficient to prove possession. • A person may be in possession of an item without owning it. • A person continues to possess an item even when not physically controlling the item. • Mere acquiescence in the hiding of an item by another is insufficient to prove possession.31 29 Exhibit P15 (Illicit Drug Advisory Group pricing guide, October to December 2020). 30 Exhibit D17 (agreed facts). 31 R v GNN (2000) 78 SASR 293 at [25] (Doyle CJ). -- 13 of 22 -- [2025] SADC 23 12 • A person may jointly possess an item with another. Joint possession involves each person having the power and intention to exercise control over that item, to the exclusion of others (apart from one another). • In order to find that a person is in possession of an item, it is necessary for the prosecution to exclude that the item is in the exclusive possession of another.32 Circumstantial evidence 76 The prosecution case establishing that the defendant was in possession of the drugs the subject of the charges is, in each instance, based entirely upon circumstantial evidence. Accordingly, I direct myself in respect of each charge that I am unable to find the defendant guilty unless the circumstances exclude any reasonable explanation consistent with his innocence. In order to find the defendant guilty of a charge, I must be satisfied that his possession of the subject drug is the only rational inference that the circumstances I find proved enable me to draw. 77 In considering the prosecution’s circumstantial evidence, I am to determine what facts I accept are established by the evidence, and what inferences I am prepared to draw from those facts. In determining whether an inference is reasonable, I am required to consider the combined strength of the established facts. I am not required to consider each circumstance in isolation from the other circumstances, and I need not disregard a circumstance if it is incapable, standing alone, of supporting a reasonable inference that the defendant was in possession of the subject drug. 78 If a reasonable hypothesis which is inconsistent with the defendant being in possession of the subject drug is open on the circumstantial evidence, then I am to give the defendant the benefit of the doubt created by that alternative hypothesis. The defendant is not required to establish that an inference other than that he was in possession of the subject drug should be drawn from the circumstantial evidence, nor is the defendant required to prove any facts that would tend to support such an alternative inference. If the evidence taken as a whole gives rise to a reasonable alternative hypothesis, the prosecution will not have established that the defendant was in possession of the subject drug beyond reasonable doubt. Discreditable conduct evidence identified 79 The prosecution led discreditable conduct evidence pursuant to a ruling made by me prior to the commencement for the trial.33 The discreditable conduct evidence fell into three broad categories, being: 1. The defendant’s possession of items associated with trafficking in methylamphetamine. 32 R v GNN (2000) 78 SASR 293 at [26] (Doyle CJ). 33 Ex tempore ruling relating to p.100 of the transcript (30 November 2023). -- 14 of 22 -- [2025] SADC 23 13 2. The defendant’s possession of items associated with trafficking in cannabis. 3. Evidence of drug trafficking across counts. 80 Evidence of the defendant’s possession of items associated with trafficking in methylamphetamine comprises the 1.23g of methylamphetamine, the $3,470 cash and plastic resealable bags which were located in the black backpack in the Canter truck. Naturally, any permissible use of that evidence is contingent upon a finding that the defendant was in possession of the contents of the black backpack, a matter to which I shall return. 81 Evidence of the defendant’s possession of items associated with trafficking in cannabis comprises of items located in the study at the defendant’s premises, being cannabis grinders, electronic scales, a vacuum sealer and small quantities of cannabis (and green vegetable matter). Any permissible use of that evidence is contingent upon a finding that the defendant was in possession of those items. 82 As to the admissibility of evidence of drug trafficking across counts, by which I mean the evidence of count 1 relating to count 2 and vice versa, I ruled that the evidence was not admissible to establish a propensity or disposition on the part of the defendant to deal drugs generally. I make it clear that I have not used the evidence in that way, or at all to reason that he was generally ‘in the business’ of dealing drugs. Consistent with my ruling, I shall approach the evidence across counts as having a permissible use in evaluating the improbability of a person other than the defendant possessing the charged drug, if the defendant is found to be in possession of the other charged drug, in circumstances where both counts involve a trafficable quantity of a controlled drug concealed in a location to which the defendant has a connection. Any permissible use of the evidence in this way is contingent upon a finding of guilt, which is in turn contingent upon a finding beyond reasonable doubt of possession, in relation to one or other charge. It will be necessary to return to this matter in view of my consideration of the charges. Consideration – count 1 83 The prosecution invites me to infer that the defendant was in possession of the methylamphetamine in the magnetic box based upon the following circumstances: 1. The methylamphetamine was located under the driver’s seat of a vehicle which was registered to the defendant and driven by him on the relevant date. 2. The defendant was familiar with methylamphetamine. 3. The defendant had a financial motive to traffic in methylamphetamine. 4. The defendant was in possession of items associated with trafficking in methylamphetamine (in the black backpack). 5. Subject to my finding regarding count 2, the improbability of another person being in possession of the methylamphetamine. -- 15 of 22 -- [2025] SADC 23 14 6. What the prosecution submits was a limited opportunity for a person other than the defendant to have placed the methylamphetamine in its location. 84 I accept and find that the defendant was the owner of the Canter truck and the person who had driven it to its ultimate pre-seizure location on Port Road on 5 November 2020. I accept and find that the defendant had the means to access the interior cabin of the Canter truck (in the form of the key) and to exercise control over the vehicle while it was parked on Port Road prior to his arrest at 12.34am. 85 I am satisfied beyond reasonable doubt that that the black backpack was the defendant’s backpack, and that he was in possession of its contents. I am so satisfied because of its position in the centre console of the Canter truck next to the driver’s seat, the presence of the defendant’s dog in the vehicle and the defendant’s identification and paperwork inside the backpack. 86 As the contents of the backpack included a glass pipe and 1.23g of methylamphetamine, the evidence tends to suggest that the defendant engaged in discreditable conduct other than conduct constituting the offence by his possession of those items. I direct myself that the evidence of the defendant’s possession of the ice pipe and 1.23g of methylamphetamine is admitted for a permissible use which is limited to establishing that the defendant had knowledge of, and access to, the drug methylamphetamine. I am not to use the evidence of the defendant’s possession of these items to reason that he is a bad person and therefore the sort of person who is more likely to have committed the offence, and the evidence is inadmissible for that purpose. 87 The defendant’s possession of $3,470 cash, which is unexplained, and 40 plastic resealable bags, both individually and in conjunction one with the other, is capable of supplying evidence that the defendant was involved in the business of drug trading. Such involvement may be probative of the issue of whether the defendant was in possession of the subject methylamphetamine, in that it may make his possession of the drugs more likely.34 88 I direct myself that the only permissible use of the evidence of the defendant’s possession of the cash and bags is to enable me to evaluate the probability or improbability of the subject drugs having been secreted in the defendant’s truck by another. I am not to use this evidence, which is suggestive of the defendant being involved in the business of drug trading, to reason that he is a bad person, and is therefore more likely to have committed the offence. 89 It may be accepted that the defendant’s statements to police about not having worked for the previous four or five months are capable of supplying some evidence of a financial motive. Against those statements, there is evidence in the 34 R v Soteriou (2013) 118 SASR 119 (Vanstone J); BNM v The Queen [2020] SASCFC 10 at [54] (Doyle J). -- 16 of 22 -- [2025] SADC 23 15 agreed facts that the defendant owned a property and stated that he was receiving rental assistance from Pitt. 90 I should make it clear in this context that, to the extent that there was evidence that the police were investigating alleged copper theft and the defendant apparently possessed copper materials,35 I have not drawn any conclusion about the defendant’s involvement in alleged copper theft. I was not addressed on these facts by either party. I have only had regard to this evidence to explain the interest, focus and activities of police at the scene at Port Road. I have not considered this evidence as supplying any evidence of financial motive on the defendant’s part. 91 Ultimately there is very limited evidence upon which I can make any meaningful finding about the defendant’s financial status as at the time of the alleged offending. I accept that the methylamphetamine the subject of count 1 was inherently valuable and that the defendant’s statements in interview are capable of providing an indication of a lack of a form of income through employment. I take those matters into account as a combined weak strand in the prosecution’s circumstantial case on possession. 92 Upon my assessment of all of the evidence relating to count 1, it is the reasonableness of the possibility of Pitt being responsible for the placement of the magnetic box and in exclusive possession of its contents which must be excluded in order for the prosecution to succeed in establishing the essential element of possession of the subject methylamphetamine by the defendant. 93 I accept the evidence of Officers Weissel and Renko as to their activities and observations at the scene at Port Road. I consider that their evidence was generally consistent and mutually supportive. 94 Accepting the evidence of Officers Weissel and Renko, I find that the Canter truck and the Fuso truck were in the positions depicted in Exhibit D4 from the time of the arrival of Weissel and Renko on Port Road shortly after 10:00pm on 5 November 2020 and that the defendant, Pitt and Gardner, were outside but in the general vicinity of the rear of the Canter truck at that time. I find that before Weissel went to the police vehicle to conduct checks, the defendant, Pitt and Gardner were between them under the collective observation of Weissel and Renko. I accept that while Weissel was checking the police computer, Renko had the three men under observation and that none of them entered the Canter truck. 95 Based on the evidence of Brevet Sergeant Weissel, which I accept, at some time after Weissel had conducted checks in the police vehicle and before Pitt was arrested at 11:05pm, Pitt alone got into the cabin of the Canter truck through the passenger door. Pitt was in the cabin of the Canter truck for approximately half an hour, during which time Pitt got into and out of the vehicle an indeterminable number of times. I find that while Brevet Sergeant Weissel had a view into the 35 Exhibit P16 (agreed facts), numbers 5, 16. -- 17 of 22 -- [2025] SADC 23 16 cabin of the Canter truck, it was not a view that was wholly unobstructed or consistently maintained. From his viewing position, Weissel’s ability to see into the cabin of the truck had to have been limited by the dashboard, such that he could only see that which appeared above it and not below. The general lighting conditions were darkish and there is no clear evidence before me about the extent to which or how effectively the interior cabin light illuminated the cabin. There was an amount of clutter on the dashboard and there was a dog inside the vehicle which, at one point, was on Pitt’s lap as he was patting it. The dog, being in such a position, was capable of presenting a further visual obstruction to Weissel and a layer of concealment for Pitt, should he have been placing or moving any items within the confines of the cabin. The magnetic box appears to me, from the photographs, to be small; by comparison of the exhibit photographs (exhibit P1), it appears to be about the same width of the two sunglasses cases but shorter in length. The photograph of the magnetic box in situ shows that it was placed in a freely accessible open space under the driver’s seat in a void which appears to accommodate the track and lever for adjusting the seat. It appears to me that no special knowledge of that void or manipulation of the seat would be required in order to place an item within it. In other words, I consider it reasonably possible that a person in Pitt’s position in the passenger seat, even while under observation by a police officer from outside of the vehicle some several metres away, could conceivably surreptitiously place an item such as the magnetic box under the driver’s seat without being observed to do so. 96 The contents of the blue backpack, which I am satisfied are linked to Pitt through the presence of his mobile phone, show that he was in possession of methylamphetamine and a glass pipe. That evidence, in conjunction with his previous convictions for possessing methylamphetamine in 2021 and ice pipes in 2019,36 establishes that he had an interest in, and access to, methylamphetamine. 97 To the extent that the defendant was in possession of cash and plastic resealable bags in the black backpack and that those are items of discreditable conduct which are capable of being probative of the defendant being in possession of the methylamphetamine as they are incidentals in a business of drug trafficking, I do not consider that the defendant’s possession of those items advances the prosecution case against him in circumstances where the possibility of placement of the subject methylamphetamine by Pitt is so distinct. Likewise, I do not consider that the evidence of the defendant’s financial motivation has distinct weight in supporting an inference of possession in view of the alternate possibility of placement by Pitt. 98 As to count 1, I am not satisfied that the combined circumstances exclude the possibility that Pitt, being in exclusive possession of the subject methylamphetamine, was responsible for its placement in the defendant’s vehicle. 36 Exhibit P16 (agreed facts), number 14. -- 18 of 22 -- [2025] SADC 23 17 It follows that I reject the prosecution’s alternate or fallback case of joint possession on the part of the defendant. 99 I find the defendant not guilty of count 1. Consideration – count 2 100 The prosecution invites me to infer that the defendant was in possession of the cannabis in the locked filing cabinet based upon the following circumstances: 1. The defendant was the owner and primary occupant of the premises. 2. The study and main bedroom were both secured by digital locks, carrying an implication that they were so secured by the same person. 3. The study contained documents relating to the defendant, namely a bundle of work-related documents (exhibit P10) and a letter referring to Michael Purse (MFI-P11). 4. Financial motive. 101 As noted above, the discreditable conduct evidence taking the form of possession of items associated with trafficking in cannabis is only capable of bearing a permissible use of demonstrating an interest and involvement in cannabis trading if I find that the defendant was in possession of those items. Upon my assessment, there is no evidentiary basis on which to distinguish between the subject cannabis and the cannabis-related items in the study for the purpose of attributing possession. The reasons for this will become clear. Ultimately, I do not consider that the presence of the cannabis-related items in the study are able to assist me in drawing an inference about possession of the subject cannabis and I have effectively treated them as being neutral on this question. To the extent that the cannabis-related items were located in the defendant’s house and were to some degree co-located with his documents, I direct myself not to reason impermissibly that he is a bad person and therefore the sort of person who is more likely to have committed the offence. 102 As I have found the defendant not guilty of count 1, I have not used evidence of that count to engage in any improbability reasoning in respect of count 2. 103 I find that as at 6 November 2020, the defendant was an owner and the principal occupant of the premises at 42 Emmerson Drive, Morphett Vale. I find that the defendant occupied the main bedroom and Pitt occupied bedroom 2. 104 From my viewing of the walk-through video,37 it appears that there is a fair amount of mess and clutter throughout the house, although this appears to be less pronounced in the main bedroom. There is a strong inference that the defendant was responsible for the installation of digital locks on the main bedroom and study doors and, further, that the purpose of such locks would be to keep others, including a boarder such as Pitt, out of those rooms. That inference arises strongly 37 Exhibit P6. -- 19 of 22 -- [2025] SADC 23 18 because of the defendant’s position as the owner and principal occupant of the premises. The inference is based in part upon an assumption that a home occupant in the position of the defendant would require or wish to have the ability to keep his space and/or belongings secure from a person renting a room at the premises. The defence submits that the inference is not certain because there exists an unexcluded possibility that the defendant shared the digital lock code for the study with Pitt. That would rather defeat the purpose of a digital lock, if the purpose of the lock was to secure the room from Pitt. But the purpose of the locks may have been broader than to keep Pitt out; they may have been there as an additional layer of internal protection from theft or interference by another or others. There is no evidence before me as to how the digital locks operated in the sense of whether they required any inputting action in order to become activated each time, or if they locked automatically when the door closed. There is no evidence as to how long they had been installed and how that timeframe sits with Pitt renting a room at the premises. 105 In evaluating the possibility of the defendant having shared the study lock code with Pitt, I must look at the nature of the relationship between the men. All that I am able to discern in this regard is that Pitt had been living at the defendant’s house for ‘some time’ and paying rent to do so.38 The prosecution points to correspondence dated 15 September 2020 addressed to Pitt at a post office box in Sedan to support a conclusion that the living arrangement at Emmerson Drive was not of longstanding. I am not prepared to draw that conclusion because a post office box is obviously not a residence and it is possible for mail to be sent to the post office box of another. The defendant and Pitt had driven to Port Road together on the defendant’s admission and Pitt was sufficiently comfortable to get into the Canter truck alone and pat the defendant’s dog while the police were present. I do not know enough to conclude absolutely that the defendant would not have shared the study digital lock code with Pitt, or to characterise the possibility as a remote or unreasonable one. 106 I am satisfied that the defendant is connected to the contents of the study because of the presence of his work documentation (exhibit P10) inside a cupboard in the room. 107 I deal briefly with MFIP11, a letter referring to Michael Purse. I am satisfied that the contents of the letter relate to the subject matter of allegedly fraudulent activities and resultant financial and emotional stress. I am satisfied that the contents in their detail are capable of bearing a correlation to matters asserted by the defendant in his record of interview, which include being “frauded” by a man who sought to set up a business with him and losing everything. There is a specific correlation on the topic of the defendant being named as a company director without his knowledge. The document is not relied upon testimonially by the prosecution. Rather, the document stands as a piece of circumstantial evidence in the form of a writing on subject matter which is of interest to the defendant, and 38 Exhibit P16 (agreed facts), number 13. -- 20 of 22 -- [2025] SADC 23 19 containing indications that it was written by him (for example, use of the first person and references to a wife and house). It is analogous to the notebook in R v Cekic.39 108 I consider that it is appropriate to admit the document, and I have regard to it as providing a circumstantial link between the defendant and the interior of the study, with equivalent probative weight to the work documents P10 in evaluating the issue of possession of the subject cannabis. 109 I evaluate the possibility of Pitt having access to the study, and therefore the possibility of him being in possession of the subject cannabis, by reference to the positive evidence of Pitt’s involvement with cannabis and the negative evidence of the defendant’s involvement with that drug. To summarise, there is no evidence extraneous to the study which demonstrates that the defendant had any involvement with, interest in or access to cannabis. In contrast, there is evidence of Pitt being connected to cannabis by the contents of his backpack and his bedroom. I have regard to the cross-examination of Brevet Sergeant Jong which established that the cannabis the subject of count 2 and the 81.2 g of cannabis located in Pitt’s bedroom, both comprising female flowering cannabis plant material, were of much better quality than the small amounts of cannabis located elsewhere in the study. In conjunction with this, I have regard to the nature of the cryovac bag in which the cannabis the subject of count 2 was contained and the cryovac bag component of the packaging of the 81.2 g of cannabis in Pitt’s bedroom, as representing a minor but consistent circumstantial link between Pitt’s evident possession of cannabis and the cannabis in the filing cabinet in the study. 110 I note that other than the agreed fact about the police having to force entry into the filing cabinet, there is no evidence before me as to the manner in which that filing cabinet was locked and what means were required to access it without force. For example, there was no evidence about the finding or testing of any keys which may have been capable of unlocking the filing cabinet. 111 There is no fingerprint or DNA evidence which links the defendant to the cryovac packaging in which the subject cannabis was contained or any of the cannabis or green vegetable matter which was co-located within the study. 112 Upon my ultimate evaluation of all of the evidence, the absence of evidence of an interest on the part of the defendant in cannabis, in conjunction with the positive physically and temporally proximate evidence of interest on the part of Pitt in cannabis and the unexcluded possibility of Pitt having knowledge of the digital code for the study lock, subverts the inference of possession which arises from the defendant’s ownership and occupancy of the premises and the presence of his documentation within the room. 39 [2016] SASCFC 31 [133]-[134]. -- 21 of 22 -- [2025] SADC 23 20 113 As to count 2, the prosecution has not excluded the possibility that Pitt was in exclusive possession of the subject cannabis. There is no evidence on which I am able to be satisfied beyond reasonable doubt that the defendant had knowledge of its existence which would be foundational to establishing that he possessed it jointly with Pitt. 114 I find the defendant not guilty of count 2. Verdicts 115 As to counts 1 and 2, the defendant is not guilty. -- 22 of 22 --