[2025] SADC 66

Prosecution: R Counsel: MS H KINUTHIA - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: PAUL JOHN SCOTT Counsel: MR S MCDONOUGH - Solicitor: OLIVER COLE, MCDONOUGH COLE LEGAL Hearing Date/s: 14/04/2025, 16/04/2025, 01/05/2025 File No/s: DCCRM-22-369 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 SCOTT Criminal Trial by Judge Alone [2025] SADC 66 Judgment of his Honour Judge Soulio 6 May 2025 CRIMINAL LAW Accused jointly charged with one Ms Temple on Information dated 27 May 2022 with two counts of trafficking in methylamphetamine. Verdict: - As to both counts Not Guilty. Controlled Substances Act 1984 (SA) ss 4, 32; Juries Act 1927 (SA) s 7, referred to. R v Gardi [2015] SASC 186; Zenuni v The King [2022] SASC 106, considered. -- 1 of 9 -- -- 2 of 9 -- R v SCOTT [2025] SADC 66 Introduction 1 The accused, Paul John Scott, was jointly charged with one Susan Emily Temple on an Information dated 27 May 2022 with two counts of trafficking in a controlled drug, pursuant to s 32 of the Controlled Substances Act. 2 The particulars of the offence in each count are that the accused, on 3 April 2021 at Salisbury, trafficked in a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact the substance was a controlled drug. 3 The reason that there are two counts is that there were two separate amounts of methylamphetamine found in a motor vehicle stopped by police on that date. The Prosecution Case 4 The prosecution case, in broad overview, is that on 3 April 2021 police observed a motor vehicle bearing registration S494 BAN and determined that that vehicle had an active defect notice applicable to it. Police activated their lights, and the driver of the vehicle, Ms Temple, stopped the vehicle and alighted from the driver's side door. She approached police and identified herself. Police ascertained that Ms Temple was not authorised to drive due to previous drug driving convictions. 5 Police arranged for the vehicle to be impounded due to the status of Ms Temple's licence. The accused and Ms Temple were directed to remove personal items from the vehicle. 6 Police evidence from Police Officers Jackson and Cheney included that the accused collected a shopping bag from the front passenger side footwell. Ms Temple took possession of two backpacks which were also located in that footwell. 7 Police formed a suspicion regarding the circumstances in which the accused and Ms Temple were in the vehicle. I pause to observe that there was no challenge to the formation of that suspicion, nor to the lawfulness of the search that followed. 8 The search of the accused resulted in police finding a bundle of empty plastic resealable bags in the accused's right trouser pocket. The accused gave evidence during trial that those bags had been in the centre console of the vehicle and when police pulled the vehicle over he grabbed the plastic bags and put them in his pocket. He rather frankly said he did so out of “force of habit”. 9 Inside the vehicle police located a sunglasses case under the passenger side footwell. That case contained a number of small zip lock bags containing what, upon analysis, turned out to be methylamphetamine, with a mixed weight of 9.65 gm and a pure weight of 4.65 gm. That is the subject of Count 1. -- 3 of 9 -- [2025] SADC 66 2 10 In a backpack which Ms Temple had retrieved from the car and which was found to contain an ice pipe, a proof of age card in the name of Ms Temple, and cigarettes, were two press-seal bags containing what turned out to be 49.1 gm of mixed weight material, containing 34.1 gm of methylamphetamine, the subject of Count 2. 11 Police seized the accused's mobile telephone. It is common ground that an analysis of that telephone did not reveal any messages consistent with drug trafficking. I will return to that topic. The Trial 12 The charges proceeded to trial before me, the accused having elected for trial by judge sitting alone pursuant so s 7 of the Juries Act. I did not have in evidence before me any information regarding the disposition of the charges as against Ms Temple. 13 I bear in mind the elements of the offence of trafficking in a controlled drug, but it is common ground in this matter that the only element in dispute and the only real issue for determination is whether the accused was in possession of the relevant drugs, either in exclusive possession, or in joint possession with Ms Temple. 14 I bear in mind the Director of Public Prosecutions filed an unchallenged notice of intention to adduce discreditable conduct evidence which related to the possession of items associated with drug dealing, namely the ice pipe I have referred to, and plastic resealable bags found in the accused’s trouser pocket and in the tray of the vehicle, and a sum of $3,850 in cash which was located in the centre console. I bear in mind the uses for which such evidence may be led, and the reliance placed upon it by counsel for the Director of Public Prosecutions as set out in her opening. The Prosecution Evidence 15 The prosecution at trial relied on the evidence of the police officers, to whom I have referred, Police Officers Jackson and Cheney who conducted the stop and search, together with their body-worn camera footage which I viewed in court and subsequently reviewed. 16 The prosecution also relied on the evidence of Detective Sheehy and in particular his statements of 10 July 2023 and 10 April 2025 which were received into evidence. 17 The additional evidence relied upon by the prosecution included a defect notice issued to the accused on 14 February 2020, regarding vehicle registered number S751 ALB, it being unchallenged that the vehicle being driven by Ms Temple, and in which the accused was a passenger, normally bore those plates but had different plates fitted at the time of the police stop. -- 4 of 9 -- [2025] SADC 66 3 18 There was also a notice of disposal of that vehicle which related to the earlier transfer of that vehicle to one Ms Ormsby, the accused's sometime partner. 19 A certificate of analysis was received into evidence which related to the seized drugs, together with agreed facts as to the weight and analysis of the drugs, a matter to which I have already referred. The Defence Case 20 The accused gave evidence. He did so ex-custody, a fact which I ignore. He is entitled to such credit as I am prepared to allow for exposing himself to cross- examination when he had the entitlement to remain silent and put the prosecution to proof of the charges against him. Having said that, I then assessed his evidence as I would with any other witness. General Directions 21 I bear in mind the general directions which apply to the consideration of evidence in relation to a charge against an accused as conveniently summarised by Lovell DCJ as he then was in the R v Gardi:1 • As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence. • The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged. • The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise. • The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt. • I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept 1 R v Gardi [2015] SASC 186 at [9]-[15]. -- 5 of 9 -- [2025] SADC 66 4 part of a witness’s evidence and reject part of that evidence or accept or reject it all. • If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty. • I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my common sense and experience in assessing the evidence. Consideration 22 As I have said, the real issue for consideration is whether the accused was in possession of either the drugs said to constitute Count 1, or Count 2, or both; that is, whether the prosecution has established beyond reasonable doubt that was so. The other elements of the offences were not in dispute. The amounts involved would establish by presumption, in the absence of evidence from the accused, that the possession was for the purpose of sale. 23 I have regard to the written and oral submissions made by both counsel. Counsel for the Director of Public Prosecutions articulated her case on the basis that the accused and Ms Temple were in joint possession of the quantities of methylamphetamine, the subject of the charges. Her articulation of the law as to possession was not challenged and I accept her submission firstly, that pursuant to s 4(1) of the Controlled Substances Act possession is defined to include (a) having control over the disposition of the substance or thing, and (b) having joint possession of the substance or thing. 24 Counsel for the Director of Public Prosecutions cited the Court of Appeal in Zenuni v The King2 as to the definition of possession and joint possession in the following terms: A person has possession of an item if they have physical custody or control of the item or of the place in which the item is located, knowledge that the item is in their custody or control, and an intention to control the item. However, mere knowledge of an item’s existence and whereabouts will not constitute possession. Physical control does not require immediate control. Nor does a person need to own an item to be in possession of it. A person is in joint possession of an item if he and another person or persons each have knowledge of the location of an item and intend, between them, to exercise control over the item to the exclusion of any other persons. There must be some form of express or tacit agreement before an item could be in the joint possession of two or more people. 25 The prosecution case relied on a number of items of circumstantial evidence which, it was put, in combination established that the defendant had knowledge of both quantities of methylamphetamine, and intended to exercise or assert control over them jointly with Ms Temple. The items of circumstantial evidence included 2 Zenuni v The King [2022] SASC 106 at [50]. -- 6 of 9 -- [2025] SADC 66 5 that the defendant was seated in the front passenger side of the vehicle in close proximity to both quantities of methylamphetamine, that he was in close proximity to a large quantity of cash in the centre console, and that possession of cash in that form was an indicia of drug dealing. Further, the defendant had in his possession numerous small plastic resealable bags. A further quantity of plastic resealable bags was found in the rear tray of the vehicle amongst the defendant's belongings. The prosecution relied on the possession of plastic bags as part of the indicia of sale referred to by Detective Sheehy. 26 The prosecution relied on the value of the methylamphetamine which, on the prosecution case, made it unlikely that anyone would leave drugs of that value in the vehicle unless the accused was in joint possession of the drugs. 27 The prosecution case also relied on evidence that the defendant was the owner of the vehicle and/or had been living in the vehicle and regularly using the vehicle. The basis for that submission is that the accused had told police that he was the owner of the vehicle and said that he had purchased it from Ms Ormsby a week earlier. The defendant was also in possession of paperwork relating to the vehicle by way of a defect notice which indicated that the accused had been the driver of the vehicle when that notice was issued on 14 February 2020, over a year prior to his arrest. 28 The accused gave evidence at trial that his relationship with Ms Ormsby was a fractious one and that the reason he told police that he had purchased the vehicle from Ms Ormsby was to avoid a situation where police contacted Ms Ormsby to conduct further inquiries. The relationship between the accused and Ms Ormsby, deriving only from his evidence, seems to have been complicated by the relationship with Ms Temple with whom it seems the accused associated, at least for the purpose of purchase and use of illicit drugs. 29 Counsel for the Director of Public Prosecutions submitted that the accused had an opportunity to hide the drugs when he returned to the vehicle at the invitation of police to remove his personnel belongings. It was put that he was present when Ms Temple removed both backpacks from the vehicle. It was also put that the defendant had accepted, when offered by police, a cigarette from the backpack containing the methylamphetamine, indicating an association with that backpack. 30 Counsel for the Director of Public Prosecutions was also critical of the accused's evidence, including his denial of ownership of the plastic resealable bags found in the rear tray of the vehicle; and to the tension between his evidence that the vehicle belonged to Ms Ormsby, and that Ms Temple had borrowed the vehicle to visit her former partner at Mobilong Prison. That tension related to his evidence that Ms Ormsby had left the vehicle with Ms Temple as collateral because Ms Ormsby owed Ms Temple money. -- 7 of 9 -- [2025] SADC 66 6 31 Counsel for the Director of Public Prosecutions submitted that I should reject the evidence of the defendant. Doing so of course of itself would not strengthen the prosecution case. Circumstantial Evidence Direction 32 In considering the use of circumstantial evidence, I direct myself in respect of each charge, that I am unable to find the accused guilty unless the circumstances exclude any reasonable explanation consistent with his innocence. In order to find a defendant guilty of a charge I must be satisfied that his possession, or joint possession, of the subject drugs is the only rational inference that the circumstances I find proved enable me to draw. 33 In considering the prosecution's circumstantial evidence, I am to determine what facts I accept as 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 the circumstance if it is incapable, standing alone, of supporting a reasonable inference that the defendant was in possession of the subject drugs. 34 If a reasonable hypothesis, which is inconsistent with the defendant being in possession of the subject drugs is open on the circumstantial evidence, then I am to give the defendant the benefit of the doubt created by that alternative hypothesis. 35 The defendant is not required to establish that an inference other than that he was in possession of the subject drugs 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. 36 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 drugs beyond a reasonable doubt. 37 Counsel for the accused submitted that the prosecution case allowed for two possible hypotheses – that the drugs were possessed by Ms Temple alone, or that they were possessed jointly by Ms Temple and the accused. Counsel for the accused made the submission that there was no evidence that enabled a finding that, even by inference, Ms Temple agreed to jointly possess the methylamphetamine. Counsel pointed to the fact that despite the evidence of what was put by counsel for prosecution as indicia of sale, there were no tick lists or messages of any relevance on the phone of the defendant, items of evidence often seen in such cases and as indicative of involvement in the sale of drugs. There was no DNA evidence of the accused on any material item, including the sunglasses case or the packaging of the drugs, nor were there fingerprints on any of those items. The absence of such evidence, of course, of itself does not indicate that the -- 8 of 9 -- [2025] SADC 66 7 accused was not in possession of those items, nor does it indicate that he had not handled those items. 38 As I have said, the accused gave evidence on oath. He was cross-examined. He said that the amount of money in the console was the remainder of the proceeds from the sale of a motorcycle. One might have assumed that if he was simply denying any association with anything in the vehicle, he would have declaimed any association with that cash. He gave evidence that he had been riding a motorcycle earlier that day which, it was put to me, was consistent with the hard shell or “turtle shell” backpack which the accused said was his backpack. That did not contain any drugs. 39 The accused said that he had been at his daughter's house nearby before the vehicle had been pulled over and had been waiting there to be collected by Ms Temple who had been driving the vehicle earlier in the day as he needed to obtain treatment or attention for an issue he had with his eye. The body-worn camera footage in fact discloses that the accused had, when waiting at the side of the road, raised with police the fact that he had an issue with his eye. 40 Counsel submitted that the reason for the accused's lie to police regarding the transfer of the vehicle or the purchase of the vehicle from Ms Ormsby was inherently plausible, and it seems that the evidence of the accused that Ms Ormsby still owned that vehicle was not otherwise contradicted. 41 The accused frankly gave evidence that he assumed that Ms Temple had methylamphetamine, and that he would have used some of the drug if she had offered it to him. I accept the submission that that admission falls short of knowledge of the existence of the methylamphetamine in question, and does not go to establish that the accused was in control of any such drugs in any event. 42 I formed the view that the accused was doing his best to give truthful evidence, and generally accept his evidence. His evidence suffered from a combination of poor memory, particularly in the context of a man who admittedly had a long history of substance abuse, and the fact that the accused was endeavouring to recount details of events which had occurred some four years earlier. Conclusion 43 Ultimately, I have come to the view that whilst I am suspicious about the guilt of the accused that, of course, is not the test. I am not satisfied in respect of each count that the combined circumstances exclude the possibility that Ms Temple was in exclusive possession of the two quantities of methylamphetamine. 44 Accordingly, as to each count, the verdict must be one of not guilty. -- 9 of 9 --