[2024] SADC 138

Prosecution: R Counsel: MS T WARD - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: COLLEEN TANYA BROWN Counsel: MS C VOUMARD - Solicitor: CON O'NEILL & ASSOCIATES Hearing Date/s: 15/10/2024 to 16/10/2024 File No/s: DCCRM-23-022054 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 BROWN Criminal Trial by Judge Alone [2024] SADC 138 Reasons for the Verdict of his Honour Judge Handshin 25 October 2024 CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS The accused is charged with one count of trafficking methamphetamine. At around 11:25pm on 6 July 2021, police conducting mobile patrol duties entered the car park of a block of residential units in Maylands. Upon police entering the carpark, a male and female who were apparently engaged in conversation moved away from each other and began walking off in opposite directions. The accused was intercepted by police. The male decamped. The accused had in her clenched left fist three plastic resealable bags containing 1.25g, .24g and .24g of methamphetamine respectively (for a total of 1.73g of methamphetamine). The accused also had possession of car keys and a mobile phone. The car keys operated a vehicle in the car park in which there was a handbag containing multiple unused resealable plastic bags; digital scales and an ice pipe. Syringes were also found in the car. A search of the accused uncovered $1300 cash secreted in her bra. Subsequent examination of the phone produced by the accused demonstrated that the user of the phone was engaged in the business of trafficking methamphetamine in the weeks leading up to 6 July 2021. The issue in dispute was whether it had been proved that the accused intended to sell any of the methamphetamine in her possession. Held: the case as to intention to sell was circumstantial and the hypothesis that the accused had only just acquired the drugs – which were apportioned into unorthodox weights if they were for the purpose of sale – could not be excluded. Despite the messages on the mobile phone clearly demonstrating that the accused was in the business of trafficking methamphetamine in the period leading up to her arrest, the circumstances in which she might possibly have come into possession of the drugs the subject of the charge were such that the prosecution had failed to prove beyond reasonable doubt that the accused had actually formed an intention to sell some of the drugs at the time of her apprehension. The possibility that the accused intended only to consume the small amount of methamphetamine in her possession was further supported by the presence of an ice pipe and syringes in the car connected with her. -- 1 of 25 -- Verdict: not guilty of trafficking but guilty of possessing a controlled drug. Controlled Substances Act 1984 (SA) ss 32(3), 32(5) and 33L(1)(a); Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) Schedule 1, Part 2; Evidence Act 1929 (SA) s 34P(2)(b), referred to. Zenuni v The King [2022] SASCA 106; R v Dookheea (2017) 262 CLR 402; R v Falzon (2018) 264 CLR 361; BNM v The Queen [2020] SASCFC 10; Harriman v The Queen (1989) 167 CLR 590; Catanzariti v The Queen [2021] SASCA 110; Nguyen v The Queen (2020) 269 CLR 299; Pollitt v The Queen (1992) 174 CLR 558; Ford v The King [2023] SASCA 117, considered. -- 2 of 25 -- R v BROWN [2024] SADC 138 Criminal Jurisdiction 1 The accused, Colleen Brown, is charged with one count of trafficking a controlled drug, namely methamphetamine, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (the Act). 2 The charge arises out of a stop and search conducted by police officers Senior Constables Greenwood and Woods on the night of 6 July 2021 during which police located 1.73g of methamphetamine in three small resealable plastic bags in the accused’s possession as well as a mobile phone containing messages suggestive of involvement in the business of trafficking drugs and, in a car connected with the accused, a quantity of unused, resealable plastic bags; digital scales; an ‘ice’ pipe and syringes. The accused was also in possession of $1300, which she had secreted in her bra. 3 The accused elected to be tried by a judge sitting without a jury and pleaded not guilty to the charge. I now publish my reasons for the verdict I deliver. Standard directions and elements 4 The elements of the offence of trafficking in a controlled drug which the prosecution must prove beyond reasonable doubt are: 1. The substance the accused was found with was a controlled drug. There is no dispute that the accused was found with 1.73g of methamphetamine, a substance declared to be a drug of dependence by Schedule 1, Part 2 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) and hence a ‘controlled drug’ within the meaning of s 4 of the Act. 2. The accused knew or was reckless as to the fact that the substance was a controlled drug. This element was not in dispute. 3. The accused trafficked in the substance. The prosecution case is that the accused trafficked by possessing the methamphetamine with the intention of selling any of it to another person. 5 Proving that the accused was in possession of the methamphetamine requires the prosecution to establish that she had physical custody or control of the substance; knowledge that the substance was in her custody or control; and an intention to exercise control over the substance to the exclusion of all others. Mere knowledge of the drugs would not suffice, although this was not a real issue in the circumstances of this case.1 Indeed, there was no dispute that the accused was in 1 Zenuni v The King [2022] SASCA 106, [48]-[50]. -- 3 of 25 -- [2024] SADC 138 2 possession of the methamphetamine which was in fact located by police in her left hand at the time she was intercepted. 6 As the quantity of the methamphetamine found by police was less than 2g, the presumption as to sale provided by s 32(5) of the Act is not engaged. 7 Before turning to a review of the evidence and explanation of my findings and reasons, I remind myself of some fundamental matters. 8 The prosecution bears the onus of proving the guilt of the accused. The standard of proof is beyond reasonable doubt. The accused is not required to prove anything. She is presumed innocent of the charge unless and until the prosecution proves each element of the offence beyond reasonable doubt. In this respect, I keep in mind the comments of the High Court in R v Dookheea (2017) 262 CLR 402 at [41] concerning the standard of proof: …being satisfied of guilt beyond reasonable doubt does not simply mean concluding that the accused may have committed the offence charged or even that it is more likely than not that the accused committed the offence charged. What is required is a much higher standard of satisfaction, the highest known to the law: proof beyond reasonable doubt. 9 As the finder of fact, it is necessary for me to make an assessment of the truthfulness and reliability of the witnesses who gave evidence. I may find a witness to be credible or reliable with respect to some but not all of their evidence. However, with one exception, there was no challenge to the credibility or reliability of the evidence given by the three prosecution witnesses. 10 The prosecution case that the accused intended to sell at least some of the methamphetamine found in her possession is circumstantial. To prove an intention to sell, the prosecution rely on the combined force of messages on what is alleged to be the accused’s mobile phone that, it is submitted, demonstrate the accused was in the business of trafficking methamphetamine in the lead up to and on the day of her arrest, together with $1300 cash found in the accused’s bra at the time of her arrest and other accoutrements of drug trafficking found in a vehicle connected with the accused, namely, digital scales and a quantity of unused, resealable plastic bags. The prosecution also point to the unusual circumstances in which the accused was intercepted by the police, namely, late at night in a car park of residential flats, and the apportionment of the drugs in the accused’s possession into three smaller bags comprising of 1.25g, .24g and .24g of methamphetamine respectively. 11 An assessment of circumstantial evidence is to be conducted wholistically. Individual items of evidence are not to be discarded or ignored in the fact finding process because, viewed in isolation, they are incapable of sustaining the inference for which the prosecution contend. My task is to identify the evidence which I accept; the facts which I find established by the evidence and the rational and logical inferences I am prepared to draw from those facts and ask whether I am satisfied beyond reasonable doubt that the accused intended to sell some of the methamphetamine in her possession. Of course, as proof of an intention to sell -- 4 of 25 -- [2024] SADC 138 3 depends on circumstantial evidence, the prosecution will not have proved the offence beyond reasonable doubt unless I can exclude any reasonable explanation arising on the evidence that is consistent with innocence. 12 The defence contended that I would be unable to exclude the hypothesis that, even if the accused was trafficking in methamphetamine proximately to her arrest, she had not formed an intention to sell any of the methamphetamine found in her possession on 6 July 2021. The defence point to the unusual circumstances in which the accused was intercepted by police, with three small and unconventional portions of methamphetamine that she may have only taken possession of moments before the arrival of the police, together with the indications that she is a personal consumer of methamphetamine, in support of the submission that it is reasonably possible that the accused intended to consume the methamphetamine herself. 13 At the end of the prosecution case, the accused indicated she would neither give nor call evidence. This was her right and I draw no adverse inference from the exercise of this right. I have not used the accused’s silence as a make weight or to fill any gaps or deficiencies in the prosecution case. To do otherwise would be to undermine the accused’s right to silence. Plainly enough, the fact that the accused elected not to give evidence does not alter the burden of proof which remains fixed on the prosecution; nor does it affect the weight that must be given to the presumption of innocence. Messages suggesting previous acts of drug trafficking 14 As I have mentioned, the prosecution relied upon text and other messages found on a mobile phone seized from the accused at the time of her arrest, in support of its contention that the accused intended to sell some of the methamphetamine in her possession. The prosecution argued that the messages demonstrated that the accused was in the business of trafficking methamphetamine in the weeks leading up to and on the day of her arrest, which was said to be strongly probative of the accused’s intention with respect to the methamphetamine in her possession on 6 July. This evidence was said to sit with the other indicators of participation in the business of trafficking methamphetamine, namely, the cash found on the accused and the digital scales and unused resealable bags found in the car. 15 The prosecution submitted that evidence that tended to suggest the accused was involved in the business of trafficking methamphetamine was admissible pursuant to s 34P(2)(b) of the Evidence Act 1929 (SA). 16 There was no challenge to the admissibility of this evidence. The defence position, rather, was that in the unusual circumstances of this case, even if it was concluded that the accused had been trafficking methamphetamine, it remained a possibility that she had only just taken possession of the drugs found in her hand by police and hence had not yet necessarily formed an intention to sell any of those drugs. -- 5 of 25 -- [2024] SADC 138 4 17 The admissibility of evidence that shows that an accused charged with a drug trafficking offence is or has been, proximately to the charged offending, involved in the business of selling drugs of a particular kind is well established.2 The existence of an interest in or involvement in the business of selling drugs will often provide the foundation for inferring that the interest, or business, persisted at the time of the charged act. In this respect, proof of the existence of the interest or business and the accused’s continuing involvement in it proximate to the charged offending gives the evidence the required probative value because of the incentive that ongoing participation provides and because of the time, effort and resources ordinarily required to establish an illicit enterprise in the first place.3 18 This is a permissible use of the evidence tending to show the accused was in the business of selling methamphetamine. I direct myself however that what must be proved in this case is that the accused intended to sell some of the drugs in her possession at the time she was apprehended and that satisfaction that she had engaged in past acts of drug trafficking cannot be used as a substitute for proof of an intention to sell on the charged occasion. Equally, I must not reason that, if I am satisfied the accused was involved in the business of trafficking drugs, she is the sort of person who would commit crime more generally and hence is more likely to be guilty of the charged offence (‘mere’ propensity reasoning). The significance of proof of an interest in or propensity to traffic methamphetamine, is that it makes it more likely that the accused was intending to sell at least some of the drugs in her possession at the time of her arrest. 19 The prosecution submitted further that evidence that tended to show the accused was a user of methamphetamine (such as the presence of the ice pipe and syringes in the vehicle) was admissible to demonstrate an incentive or motive to sell methamphetamine in order to be able to fund her ongoing use of that drug. This too was said to be a permissible use pursuant to s 34P(2)(b) of the Evidence Act. Again, the defence did not challenge the admissibility or permissible use of this evidence but submitted that it supported the conclusion that the prosecution had not excluded the alternative hypothesis that, as a user of drugs, the accused intended only to personally consume the methamphetamine found in her possession. The prosecution case 20 I turn then to a summary of the prosecution case. 21 The prosecution called three witnesses: Senior Constables Greenwood and Woods, who gave evidence about the incident giving rise to the charge, and Detective Brevet Sergeant Armstrong, who gave evidence about the pricing, packaging and sale of methamphetamine. 2 R v Falzon (2018) 264 CLR 361, [1]; BNM v The Queen [2020] SASCFC 10; Harriman v The Queen (1989) 167 CLR 590. 3 Catanzariti v The Queen [2021] SASCA 110, [141]. -- 6 of 25 -- [2024] SADC 138 5 22 As I have mentioned, there was no challenge by the defence to the credibility of Senior Constables Greenwood and Woods. There was a minor challenge to the reliability of Senior Constable Greenwood’s evidence as to where a mobile phone was found. 23 Detective Armstrong’s evidence was not challenged. 24 In light of these matters, I propose to briefly summarise the evidence adduced by the prosecution. Senior Constable Greenwood 25 Senior Constables Greenwood and Woods were on mobile uniform patrol on 6 July 2021 engaging in pro-active policing when they entered the car park of a group of residential units at Phillis Street, Maylands. Upon entering the car park, the officers saw a male and female in close proximity to each other. The two then separated. The male subsequently decamped from the area. 26 The female, who was later identified as the accused, was asked to stop and did so. She was approached by Senior Constable Greenwood who observed three plastic resealable bags to be protruding from her clenched left fist. The bags contained white crystalline material, subsequently analysed and found to be methamphetamine weighing a total of 1.73g. 27 After seizing the three bags, Senior Constable Greenwood noticed that the accused had car keys in her possession. She provided the car keys and a mobile phone that had been on her person somewhere. 28 Using a remote access fob attached to the car keys, Senior Constable Greenwood unlocked a white car (confirmed in cross examination to be a Daewoo) in the car park not far from where the accused had been stopped by police. 29 During a search of the car, Senior Constable Greenwood located a handbag in which was a sunglasses case containing a bundle of small plastic resealable bags, digital scales, an ice pipe and some further plastic resealable bags containing what were suspected to be illicit substances. 30 In cross examination, Senior Constable Greenwood rejected the suggestion that the mobile phone may have in fact been found by police in the car. He maintained the accused had handed it to him at the same time she provided the car keys. 31 Senior Constable Greenwood said he was aware of the identity of some of the residents of the unit block and believed that the accused’s daughter may have been living in the units at the time of these events. -- 7 of 25 -- [2024] SADC 138 6 Senior Constable Woods 32 Senior Constable Woods gave evidence that after entering the car park to the block of units, the male and female, who appeared to have been in conversation with each other when police arrived, moved off in separate directions. The male moved towards Clifton Street (as depicted on P1) and was followed by Senior Constable Woods who took him back to the patrol car. 33 The female moved in the direction of another vehicle in the car park and was essentially intercepted by Senior Constable Greenwood. 34 Senior Constable Woods said that after taking the male back to the patrol car, she sat in the front passenger seat intending to obtain the male’s details and conduct a search on him on the mobile police computer system, but before she could obtain any details, including his name, the male decamped on his bicycle. The male was not pursued. 35 Senior Constable Woods then made her way to Senior Constable Greenwood who was standing behind another vehicle in the car park which she would later describe in cross examination as a Daewoo. She observed Senior Constable Greenwood take hold of the accused’s wrist and remove some plastic resealable bags from her clenched fist, which were then handed to Senior Constable Woods. Senior Constable Woods identified the plastic resealable bags depicted in photograph 3 of P2 as the bags seized by Senior Constable Greenwood and provided to her. 36 Senior Constable Woods did not see any other item removed from the accused’s hands. She said that the description on the exhibit label visible in photograph 3 of P2 that suggested that the three plastic resealable bags came from a red pouch was incorrect but she could not explain how the error on the exhibit label came to be made. In any event, she was not challenged in cross examination about the three bags in fact being retrieved from the accused’s hand. 37 Senior Constable Woods said that Senior Constable Greenwood then conducted a search of the Daewoo via the front passenger door, placing some items seized from the car into the police vehicle. 38 The accused was thereafter arrested and Senior Constable Woods conducted a search of her, during which she felt something amiss in the area of the accused’s bra. She asked the accused if she had anything in that area and the accused produced $1300 cash in various denominations. 39 The accused was conveyed to the City Watch House. In cross examination, it was suggested to Senior Constable Woods that whilst at the Watch House, the accused said something to Senior Constable Woods about a ‘pension’ and ‘bank’. Senior Constable Woods agreed that the accused had asked her about the cash that had been seized from her and mention was made of a ‘pension’. Senior Constable -- 8 of 25 -- [2024] SADC 138 7 Woods agreed it was possible that the accused mentioned ‘bank’, but if that is so, the context in which the comment was made was not drawn out in the evidence. 40 The defence subsequently tendered (D16) a short clip of footage taken from the body worn camera of Senior Constable Woods, which showed her engaging with the accused in a cell at the City Watch House. I have watched the clip and have found it difficult to make out what the accused said. There was no dispute between the parties that she mentioned something about the cash being pension money, and I will proceed on that basis. The prosecution position was that the word ‘bank’ could not be heard, but even if the accused mentioned something to the effect that the money had come from the bank, the implication is the same: the accused was essentially proffering an explanation that the money had a legitimate provenance.4 41 Later that night and into the following morning, Senior Constable Woods conducted a review of the mobile phone that Senior Constable Greenwood had seized from the accused. She observed messages on the phone that she considered to be of relevance to the police investigation. She put the phone in flight mode to preserve its content and subsequently took photographs of the various communications which the prosecution contend to be evidence of the accused’s involvement in trafficking methamphetamine. 42 I will return to the significance of the mobile phone communications in due course. Detective Armstrong 43 Detective Armstrong gave expert evidence about the consumption and sale of methamphetamine and, in particular, with respect to the packaging, pricing and quantities in which methamphetamine was sold in and around June / July 2021 at ‘street level’. 44 There was no dispute as to Detective Armstrong’s qualifications and experience to give this evidence. 45 Detective Armstrong gave evidence that street level deals of methamphetamine tend to be made in standard quantities known as a point or points (being .1 of a gram), a gram, half an 8-ball (1.75g), an 8-ball (3.5g), a half ounce (14g) and an ounce (28g). Small quantities of methamphetamine were most commonly sold in plastic resealable bags such as those found in the handbag in the Daewoo or small plastic tubs. 46 Detective Armstrong spoke to the average price of the common sale quantities of methamphetamine in June / July 2021 by reference to a schedule prepared from information disseminated by the Illicit Drug Advisory Group, which 4 The accused’s comments were said to be admissible for their truth in accordance with Nguyen v The Queen (2020) 269 CLR 299 as they were essentially mixed statements in which the accused claimed ownership of the cash but asserted it was legitimately obtained. -- 9 of 25 -- [2024] SADC 138 8 collects data relating to the sale of illicit drugs from various law enforcement agencies including police, Department of Home Affairs, and the Australian Border Force. By reference to the schedule, Detective Armstrong said relevantly: • The average price of a point of methamphetamine in June / July 2021 was between $50 and $100. • The average price of half an 8-ball of methamphetamine (1.75g) in July 2021 was between $700 and $900. The IDAG figures did not include an average price for the sale of half an 8-ball in June 2021, but Detective Armstrong said, unsurprisingly, that the general expectation would have been that half an 8-ball would be approximately half the price of an 8-ball. • The average price of an 8-ball of methamphetamine (3.5g) was between $1500 and $2000 in July 2021 and $700 and $900 in June 2021. Detective Armstrong explained that the substantial discrepancy in sale price as between June and July 2021 was due to what he recalled to be a price ‘bump’ in the market in July 2021. 47 Detective Armstrong said that prices would fluctuate depending on economic or market conditions generally. 48 Indicators that someone might be involved in trafficking drugs could include: multiple mobile phones or SIM cards; digital scales (although these could be associated with both trafficking and personal consumption of drugs); tick lists; large quantities of resealable bags; large sums of cash owing to the predominance of cash transactions in the illicit drug trade. In cross examination, Detective Armstrong agreed that the presence of syringes can be associated with use of methamphetamine and that quantities of resealable bags could be found in possession of people using as well as selling methamphetamine. 49 Detective Armstrong was asked to comment on various messages found on the mobile phone seized by police on 6 July 2021 and it is convenient at this point to refer to the content of those messages. The text messages and other communications on the phone 50 The messages found on the mobile phone can be divided into three groups: messages on Facebook Messenger; messages on the application Signal; and standard ‘text message’ communications. 51 The prosecution contended that the messages demonstrated that the accused was in the business of trafficking methamphetamine in the weeks leading up to her arrest. This interest and involvement in the business of trafficking methamphetamine was said to be strongly probative of the fact that the accused intended to sell at least some of the drugs that were found in her possession on 6 July 2021. -- 10 of 25 -- [2024] SADC 138 9 52 As I have said, the defence did not challenge the admissibility of the evidence for this use pursuant to s 34P(2)(b) of the Evidence Act but argued that there was a question mark over who the user of the phone was and that, in any event, even if I were able to conclude that the accused was the author of the relevant messages, her involvement in the business of trafficking drugs did not foreclose the possibility that she had the drugs in her possession on 6 July for personal use or, at the very least, had not then decided whether she would sell any of the drugs, given what the defence contended was an available hypothesis on the evidence: namely, that the accused had only just acquired the three bags of methamphetamine from the male who decamped the scene, which explained why the drugs were not concealed in any way and were simply being held in her left clenched fist at the time of the police attendance. Facebook Messenger 53 Exhibit P5 comprised communications via the Facebook Messenger application installed on the mobile phone. The communications purported to be between the user of the phone and accounts in the names of ‘SC’, ‘AG’ and ‘AL’. 54 The prosecution submitted that the dates of most of the communications in this bundle could be inferred from the fact that after the phone was seized by police late on the night of 6 July 2021 / early 7 July 2021, it was placed into ‘flight mode’ to preserve the contents of the phone and therefore lost its connection to the internet. The prosecution argued that messages sent / received on ‘Tuesday’ were sent / received on Tuesday 6 July 2021; messages sent / received on ‘Wednesday’, were sent / received on Wednesday, 30 June 2021; messages sent / received on ‘Friday’ were sent / received on Friday, 2 July 2021. The premise of this submission was that if the messages were sent more than a week before the phone was put into flight mode, they would record a date and not simply a day of the week. 55 The Facebook Messenger communications were in the following terms: • Undated: SC: Ahh. Ok. Ill keep that in mind. SC: Any fast? SC: how much for a pt? User: 80 SC: Shit. I know its gone up. Wow SC: U cant do me 1 for 65? User: Yeah can you wait I got to go to see my mate at Glen Osmond b4 1030 -- 11 of 25 -- [2024] SADC 138 10 SC: How u getting there? Do u need a lift? • Tuesday, 6 July 2021 at 12:57am User: No 56 It was submitted by the prosecution that the reference to ‘Tue at 12:57am’ is a reference to Tuesday, 6 July 2021, and it follows from the context of the conversation that the preceding ‘undated’ exchange must have been proximate to 6 July 2021. 57 Detective Armstrong said that ‘pt’ was a common way to refer to a ‘point’ of methamphetamine and that, assuming the messages were sent in July 2021, the suggested price of $80 for a point was within the average price range as set out in P14. Detective Armstrong said the subsequent negotiation of the price reflected common practice in the illicit drug trade. 58 The next conversation on Facebook Messenger was between the user of the phone and ‘AG’ and took place on ‘Wed at 7:41pm’. The prosecution submitted that this must have been a reference to the Wednesday prior to Tuesday 6 July 2021 – namely, Wednesday 30 June 2021. • Wednesday, 30 June 2021 at 7:41pm: AG: Hey Coll are you going to be on tonight at all I have someone that wants a hb AG: If u can how much User: No, from Damo AG: What do you mean no from damo User: It’s damo and she can’t do it AG: Fuck ok let me know 59 Detective Armstrong gave evidence that the reference to a ‘hb’ was consistent with a reference to a ‘half 8-ball’, or 1.75g of methamphetamine. 60 I pause here to interpolate that, on the defence case, this message indicates that someone other than the accused had access to and used the mobile phone such as to raise a doubt about whether it could be inferred that the accused was necessarily the author of the messages. I will return to this issue in due course. 61 A further conversation between ‘AG’ and the user of the phone took place on ‘Fri at 1:40pm’, which the prosecution submitted was Friday 2 July 2021. • Friday, 2 July 2021 at 1:40pm: -- 12 of 25 -- [2024] SADC 138 11 AG: Hey Coll you got anything User: Yes it’s 75a pt AG: Fuck Coll can you do a hb for 650$ User: $750 AG: Coll look I haven’t got 750$ now can you do it for me for 650$ and I’ll fix you up with the hundred on Sunday User: Cant AG: Coll can you do it for 700$ AG: So what’s the verdict Missed Call from AG Fri at 1:53pm • Friday, 2 July 2021 at 2:10pm: AG: How far are you coll 62 Detective Armstrong said that reference to ‘75a pt’ was consistent with a reference to a point of methamphetamine for sale at $75, which in turn fell within the price range a user might have expected to pay for a point as at July 2021. Detective Armstrong considered the follow up message ‘can you do a hb for 650$’ to be consistent with an inquiry about availability of half an 8-ball and the price being suggested by the purchaser was in accordance with average prices at the time. 63 The last conversation on Facebook Messenger was between ‘AL’ and the user of the phone and was said by the prosecution to have taken place on Tuesday, 6 July 2021 in the hours leading up to the accused’s arrest: • Tuesday, 6 July 2021, 6:50pm: AL: R U able to hook a g up for 2morrow? It’s my pay day?? • Tuesday, 6 July 2021, 7:06pm: AL: Or after midnight?? • Tuesday, 6 July 2021, 8:11pm: User: Maybe I’m waiting AL: Il set my alarm for 1am that’s wen I get paid oj AL: Ok -- 13 of 25 -- [2024] SADC 138 12 64 Detective Armstrong said that a gram of methamphetamine – as well as other illicit substances – is commonly referred to as a ‘g’. 65 Exhibit P6 contains a series of photographs of text messages located on the mobile phone seized from the accused. The messages are between a contact in the mobile phone described as ‘Daren Not Payu’ and the user of the phone and are alleged to have been exchanged on Tuesday, 6 July 2021. • Tuesday, 6 July 2021, 11:49am: Daren Not Payu: Hi col. Someone pinched my car so im pretty down atm. Have to got wine? User: Yes. User: Someone backed into mine. User: I’m at Maylands. User: Leaving at 12. User: Need paper. Daren Not Payu: Got 400 or 550. My lift is picking me up in 20 mins so where can I meet you. Daren Not Payu: Ok. Should just make Maylands by noon. So please don’t leave early. User: I’ve got a house inspection at mile end around 1pm latest but will wait til 1215 Daren Not Payu: Can’t you pop into my place on the way to mile end? User: No. But after the inspection. Daren Not Payu: He’s 3 minutes away from my place well get there bang on 12.15 ok. Daren Not Payu: Passing the Sussex now. User: Ok. Daren Not Payu: Got 550 all up. Daren Not Payu: Just past payneham rd. Daren Not Payu: I’ve just made a payment to “Colleen Brown” PayID…Amount: $550 Scheduled pymt date: 06 Jul 2021. Status: Paid -- 14 of 25 -- [2024] SADC 138 13 66 Detective Armstrong was unable to specifically comment on the potential meaning of the word ‘wine’ in the above context. He remarked that he would need more information in order to express an opinion as to whether the text message exchange was consistent with a discussion about methamphetamine. He said however that the reference to a $550 payment was consistent with the price for a gram of methamphetamine in July 2021 and that using code was common in the drug trade. The terms which could be used were only limited by there being a mutual understanding between purchaser and seller as to the meaning of a term. 67 Exhibit P7 consists of photographs of Signal application messages between ‘Mikey’ and the user of the phone, which appear to have taken place on an unknown date and then on 21 June 2021, 24 June 2021, 29 June 2021, 30 June 2021, 2 July 2021 and 4 July 2021: • Undated: Mikey: Babes I’m begging could it be worked out may I buy a ball off you. User: I’m not having any luck with the soup atm but if things change I beInTouch I promise. Mikey: Thank you [love heart emojis] Mikey: Babes do you have a half a bowl on you. User: No only couple pts. • Monday, 21 June 2021: Mikey: Babes I’m hoping can I get a big bowl of soup. Mikey: Hey babes anything [crying emoji] User: Only got 3 for ton. Mikey: 3p Mikey: Fuck [crying emoji]. • Thursday, 24 June 2021: Mikey: Hello gorgeous. Mikey: I hope you are having a good night. • Tuesday, 29 June 2021: Mikey: Babes I need soup. -- 15 of 25 -- [2024] SADC 138 14 Mikey: Babes please I have not had anything since yesterday lunchtime I’m begging you I would never tell a soul Mikey: Just once off I have 200. • Wednesday, 30 June 2021: User: Ok you need. • Friday, 2 July 2021: Mikey: Hey babes Mikey: I hope you are having a good night [love heart emoji] Mikey: Is there soup available. • Sunday, 4 July 2021: Mikey: Raj Mikey: Fw anmmn8k User: Yes$750 User: Call me as made soup for u Mikey: Thanks beautiful I can’t afford it atm User: Ok Mikey: Gorgeous I just got out of hospital and I have nothing except 200 dollars what would that get me [love heart emoji] I’m in so much pain cause my back Mikey: I’m just waiting to get picked up [sad emoji] Mikey: I have 300 now Mikey: I have 300 and an unopened 700ml bottle of wild turkey whiskey Mikey: If 750 for half a bowl thats 42.85 per serve 42.85 x 7 = 299.95 Wild turkey 44.00 = 1 Mikey: It’s ok if you can’t lovely Mikey: Babes remember that big order Mikey: Is it still 7 for one Mikey: Id rather go through you babes -- 16 of 25 -- [2024] SADC 138 15 Mikey: Hello babes Mikey: U there 68 Detective Armstrong considered that the message from Mikey inquiring about buying ‘a ball’ was consistent with a reference to an 8-ball of methamphetamine. 69 Detective Armstrong was not familiar with the use of the word ‘soup’ as a code for methamphetamine but the suggested price for ‘soup’ of $750 accorded with the price a purchaser might have expected to pay for a half 8-ball of methamphetamine in July 2021. The subsequent mathematical breakdown of that figure by ‘Mikey’ reconciled with the price payable for each of the 17.5 points that would make up a half 8-ball. 70 Detective Armstrong said further that the user of the phone’s message that they only had ‘a couple pts’ and ‘3 for a ton’ was consistent with language used in his experience to refer to three points of methamphetamine for the price of $100. However, this would suggest that the price ‘per point’ would be in the order of $33, which, according to P14, would be anywhere between $17 and $67 below the price that a purchaser might have expected to pay for a point in June and July 2021. Detective Armstrong said that could be a function of the ‘buy in bulk’ discount that a dealer might offer. 71 Detective Armstrong was unable to offer an opinion about the meaning of the phrase ‘7 for 1’ in the message chain dated 4 July 2021. 72 Exhibit P9 comprises photographs of Signal communications between the user of the phone and ‘MM’ on a date or dates that cannot be determined: • Undated: MM: Yes I am MM: Wet nice 5hb MM: Crystally wet MM: Not like Mandy wet !!! User: What’s the price for a half lunch or a full lunch MM: 5 and 9,5 MM: And here with me User: What about a full whole chicken nothing in between and hoping on dryer one Would be looking at 4 full chooks -- 17 of 25 -- [2024] SADC 138 16 MM: Dryer no The 4 chooks yes User: Is that available MM: Chooks yes Dry can’t find User: Ok thanks mate all good sending MM: K MM: And rock now MM: Rocky now too MM: Hb 5 MM: Need to be quick hun User: For the whole chicken MM: Same 73 Detective Armstrong said that the description of the commodity the subject of the message as ‘Wet nice 5 hb’ was consistent with the wet nature of methamphetamine on the illicit drug market during COVID. That the subject of discussion was methamphetamine was reinforced by the subsequent references to ‘rock’ and ‘rocky’, which Detective Armstrong considered to be descriptive of rocky crystallised methamphetamine. He said further that ‘5 hb’ was consistent with five half 8-balls (or perhaps the price of a half 8-ball being $500 – see below). 74 Detective Armstrong formed the view that the messages ‘5 and 9,5’ for a ‘half lunch or a full lunch’ were also consistent with discussion of the price of a half 8-ball and 8-ball of methamphetamine for $500 and $950 respectively, which prices he considered to be reconcilable with the $700 to $900 a purchaser might have expected to pay for an 8-ball in June 2021, with the price of a half 8-ball generally in the order of 50% of the price of an 8-ball. Detective Armstrong acknowledged that P14 did not contain a price range for half an 8-ball in the June 2021 period but extrapolated the price based on the figures referrable to an 8-ball. He said that the message ‘Hb 5’ towards the end of the thread was consistent with a half 8-ball being available for $500. 75 The assumption upon which Detective Armstrong’s interpretation was based was that these communications occurred in June 2021 and not in July 2021 when, according to the IDAG figures, the price of $950 for an 8-ball would have been substantially below expected market value. There is no evidence that the messages were exchanged in June 2021. -- 18 of 25 -- [2024] SADC 138 17 76 Detective Armstrong opined that the reference to ‘chicken drying’ and ‘four full chooks’ could be coded references to the weight of a commodity, but he could not say whether they were referable to ounces or 8-balls of methamphetamine. 77 Exhibit P11 consisted of photographs of a handful of Signal messages between ‘Andrew Laptop’ and the user of the phone on 21 June 2021 and 4 July 2021: • 21 June 2021: Andrew Laptop: How much for a Half ball? Laptop User: Can’t do have half CTN 175$ • 4 July 2021: Andrew Laptop: Any g yet?? User: Yes $7 ea. Andrew Laptop: Great can I swing past I have cash 78 Detective Armstrong said that reference in this message thread to a ‘half ball’ was consistent with Andrew Laptop inquiring as to the price of a half 8-ball of methamphetamine. He was unable to comment on the response ‘have half CTN $175’ save to say that ‘CTN’ was not a term he understood to be associated with methamphetamine. 79 He said that the message ‘any g yet’ could be referable to an inquiry as to the availability of a gram of methamphetamine but the response, ‘Yes 7$ ea’ was not consistent with his experience of the price of a gram. Findings – the telecommunications 80 In making my findings in relation to the nature of the telecommunications, I have looked at the combined effect of the messages. As the messages are said to constitute circumstantial evidence that the user of the phone was engaged in the business of trafficking methamphetamine, none of the messages should be looked at in isolation. It may be that a message that might otherwise appear neutral if considered by itself assumes a different complexion when considered together with other messages that might more clearly sustain an inference that the subject matter of discussion was the purchase and sale of methamphetamine. 81 I accept the evidence of Detective Armstrong that certain comments in the messages summarised above are consistent with inquiries being made about quantities of methamphetamine. 82 I find that the messages, viewed collectively, demonstrate that in the weeks leading up to 6 July 2021, the user of the phone was engaged in the business of -- 19 of 25 -- [2024] SADC 138 18 trafficking methamphetamine. The consistency between many of the terms used in the messages and common quantities in which methamphetamine is sold, together with descriptions of the characteristics of the commodity being discussed (wet / rocky) support the conclusion that the user of the phone was involved in the business of trafficking drugs in the period leading up to and including 6 July 2021. 83 In light of Detective Armstrong’s evidence, it cannot be said that all of the messages to which I have referred bespeak of involvement in the drug trade proximate to 6 July 2021. However, the message threads between the user of the phone and the contacts SC, AG, AL, Mikey and Andrew Laptop demonstrate the making of inquiries by these contacts about the availability and price of methamphetamine for what I find to be points (‘pt/s’; ‘3p’; ‘3 for ton’), half 8-balls (‘hb’; ‘half bowl’), 8-balls (‘ball’) or a gram (‘g’). The messages collectively indicate that the user of the phone was a person who was able to source and sell various quantities of methamphetamine. 84 I am unable to find that the messages with ‘Darren Not Payu’ in relation to ‘wine’ are necessarily about methamphetamine. I accept that wine is being used as a code word for a commodity that Darren Not Payu was prepared to pay $550 for, which is not inconsistent with the price at which a gram of methamphetamine might have been sold as at July 2021. However, I am unable to conclude that this was necessarily a discussion about methamphetamine, as opposed to some other potentially illicit substance, notwithstanding my satisfaction that the user of the phone was engaged at the time in the business of trafficking methamphetamine. 85 I accept and find that the messages between the contact ‘MM’ and the user of the phone in which reference is made to ‘wet nice 5hb’, ‘rock / rocky’, ‘hb 5’ and ‘half lunch / full lunch’ and ‘5, 9,5’ relate to methamphetamine and prices for half 8-balls and 8-balls. However, in these messages the user of the phone is the prospective purchaser, not trader, and whilst a trafficker must replenish their stock at various points in their trading cycle, the messages are also consistent with the user of the phone being a personal consumer of methamphetamine. For these reasons, I do not think that these messages add much to what I have been able to infer from the other messages to which I have referred. 86 Drawing these matters together, I am satisfied that the user of the phone was involved in the business of trafficking methamphetamine in the period leading up to 6 July 2021. I find further that on 6 July 2021, the contact AL was interested in acquiring a gram of methamphetamine from the user of the phone, who replied ‘Maybe, I’m waiting’. Around three and a half hours later, the accused was found with 1.73g of methamphetamine in her possession. 87 To the extent that the messages which I have summarised above are accompanied by dates and times at which they were purportedly sent / received, there was no dispute about the accuracy of those dates and I proceed on that basis.5 5 Ford v The King [2023] SASCA 117, [52]-[57]. -- 20 of 25 -- [2024] SADC 138 19 88 As to those messages which are undated entirely (including without reference to a day of the week on which they were sent / received), I am unable to make any findings as to when they were sent, however I do not consider that to affect the probative value of the evidence for the purposes I have indicated. 89 As to the messages which the prosecution say can be dated on the basis that they refer to a day of the week which is said to indicate the messages were sent / received within 7 days of the seizure of the phone (at which point it was put into flight mode), I find they were sent on the dates I have referred to when summarising the evidence. It follows that I am satisfied that most of the messages were sent / received within the few weeks prior to 6 July 2021, demonstrating that the user of the phone was in the business of trafficking methamphetamine proximately to the arrest of the accused. Findings – possession and use of the mobile phone 90 I turn now to whether I can be satisfied that the user of the phone was the accused. 91 I accept the evidence of Senior Constable Greenwood that the mobile phone was handed to him by the accused at the same time as she provided the keys to the Daewoo. 92 The fact that the mobile phone was in the personal possession and control of the accused just before 11:30pm in the circumstances in which she was intercepted, is a significant piece of circumstantial evidence in support of the conclusion that the phone was the accused’s and that she was the primary user of the phone. 93 The communications I have referred to above also indicate that third parties would send messages to the phone addressed to ‘Coll’ or ‘Col’ – which is consistent with an abbreviation of the accused’s first name, Colleen – and that the user Darren Not Payu sends the user of the mobile phone a receipt for an electronic funds transfer of $550 into an account named ‘Colleen Brown’. 94 The prosecution submitted that the fact that the user of the phone responds to messages which are purportedly sent to ‘Coll’ or ‘Col’ was circumstantial evidence that the accused was the user of the phone. It was argued that the responses made to messages which included an assertion as to the identity of the user of the phone involved an implied admission of or acquiescence in the assertions that the user of the phone went by the name ‘Coll’ or ‘Col’. Whilst I have some reservations about whether that process of reasoning is open, and it was not suggested that the so- called ‘telephone’ exception, developed by the High Court in Pollitt v The Queen (1992) 174 CLR 558 can, or should, apply to assertions of this kind made in text message communications said to relate to the illicit drug trade, it is not necessary for me to resolve this issue. I am able to make a finding as to the identity of the user of the phone without having to make use of any assertions of identity, which I put to one side. -- 21 of 25 -- [2024] SADC 138 20 95 I am satisfied beyond reasonable doubt (although that is strictly unnecessary) that the accused had possession of the phone at the time she was intercepted by police because it was her phone. Whilst it is true that the message from ‘Damo’ demonstrates that someone other than the accused had access to the phone on at least one occasion (to the extent that reliance could be placed on that assertion without infringing the hearsay rule) and responded to a message said to be about the purchase of drugs, I am satisfied that the accused had the phone in her personal possession because she was the user of the phone. The circumstances in which the phone came into the custody of police establish as much: the accused was one of only two people in the car park at the time of police attendance, which was around 11:30pm, when it might be thought less likely that anyone other than the user of the phone would have access to it, and she produced the phone from somewhere on her person. 96 Accordingly, I find that the accused was in the business of trafficking methamphetamine in the period leading up to her arrest on 6 July 2021. This finding is supported by the contents of the handbag found in the Daewoo which, I find, was connected with the accused. The accused had possession of the keys to that vehicle and handed them to police at the time she was intercepted. Inside the Daewoo was a handbag and, although Senior Constable Greenwood gave evidence that he believed the accused’s daughter lived in the block of units, the evidence was that only a male with a bicycle and the accused were in the car park at the time of police attendance. I am satisfied that the handbag in the vehicle was the accused’s handbag and that the syringes in the vehicle were also associated with her. 97 Inside the handbag, police found digital scales, an ice pipe and resealable plastic bags. The accused was also found with $1300 cash secreted in her bra. With the exception of the ice pipe, possession of these items and a quantity of cash affords some further circumstantial evidence that the accused was engaged in the business of trafficking methamphetamine as at 6 July 2021, particularly when viewed in the context of the mobile phone communications. However, the sum of money in the accused’s possession is such that I would place little weight on it for these purposes, although I am confident that the accused’s suggestion that it was her ‘pension’ money that she had secreted in her bra can be dismissed as implausible. Conversely, the presence of the ice pipe and the syringes in the car provides some evidence that the accused was a user of methamphetamine and I make this finding. Did the accused intend to sell any of the methamphetamine in her possession? 98 I turn then to the resolution of the critical forensic issue: has it been proved beyond reasonable doubt that the accused intended to sell any of the 1.73g of methamphetamine found in her possession on 6 July 2021? 99 In support of its contention that the accused intended to sell some of the methamphetamine, the prosecution relied upon: -- 22 of 25 -- [2024] SADC 138 21 1. The packaging of the methamphetamine 2. The quantities of methamphetamine, which it was submitted could be further broken down into perhaps more conventional sale weights. 3. The indicia of sale in the car (the digital scales, the plastic re-sealable bags) and the $1300 cash in the accused’s possession. 4. The circumstances more generally, including that the accused was intercepted by police in a car park late at night, with drugs in her hand and $1300 secreted inside her bra. 5. The mobile phone communications. 6. The accused, as a user of methamphetamine, had a motive to sell methamphetamine in order to sustain her ongoing use of the substance. 100 Counsel for the accused argued that, notwithstanding the mobile phone messages implicated the accused in trafficking drugs, the evidence as a whole did not prove an intent to sell any of the drugs found in the accused’s possession beyond reasonable doubt. Counsel submitted that, although the accused’s possession of the drugs might be thought highly suspicious in the event a finding was made that she was the user of the mobile phone, the small quantity of drugs; the unusual weights of the drugs; and the presence of items in the Daewoo consistent with the accused being a consumer of methamphetamine, gave rise to the alternative hypothesis that the accused had not formed an intention to sell the methamphetamine found in her left hand on 6 July. 101 I am satisfied beyond reasonable doubt that the accused was knowingly in possession of the methamphetamine the subject of the charge and that she knew the substance in her possession was a controlled drug. Indeed, there was no dispute about these elements of the offence. The accused had the three bags in her left hand at the time she was intercepted by police and I am satisfied that she knowingly had custody and control over the drugs and an intention to exercise control over the drugs to the exclusion of all others. 102 The finding I have made that the accused was in the business of selling methamphetamine in the period leading up to and at the time of her arrest is powerful circumstantial evidence that she intended to sell at least some of the 1.73g of methamphetamine found in her possession on 6 July 2021. Moreover, just a few hours before her arrest, the accused was, on my findings, engaged in communications with AL in which she had foreshadowed the possibility of being able to sell him what I am satisfied was a gram of methamphetamine, although I note that, on the evidence before me, the accused sent no further messages to AL after advising that she might have been able to source a gram. That is to say, the evidence does not suggest an agreement was in fact reached whereby the accused would sell a gram to AL. -- 23 of 25 -- [2024] SADC 138 22 103 Of course, it is not necessary for the prosecution to prove that the accused had a specific sale in mind for this element to be made out. It would suffice if the prosecution established that the accused intended to sell even a point of the methamphetamine in her possession at some time in the future. 104 However, an extant intention to sell at the time the accused was found in possession of the methamphetamine must be established beyond reasonable doubt. 105 There are a number of impediments to a conclusion that this element has been proved to the requisite standard. First, the methamphetamine in the accused’s possession at the time of her arrest was curiously apportioned. In one bag was 1.25g of methamphetamine. The two other bags each contained a little over 2 points. These are unusual quantities and it might be thought commercially illogical for a dealer to overweight prospective sales in a manner beneficial only to their purchaser. However, I accept that the accused had ready access to the tools necessary to further weigh and apportion the drugs into perhaps more conventional saleable amounts. 106 Secondly, the circumstances in which the accused was found with the methamphetamine give rise to the possibility that she had only just acquired the drugs from the male who decamped the scene. That follows from the nature of the interaction observed and interrupted by the police and the fact that the accused had the bags of methamphetamine in her left hand at the time she was intercepted. Unless the accused had very recently taken possession of the drugs, there was no logical reason for her to have the drugs essentially unconcealed and easily detected in her hand. 107 The alternative scenarios are that the accused was interrupted in the process of making a sale of methamphetamine to the male or that it may have been purely a matter of happenstance that the accused was engaged in conversation with the male and had three bags of methamphetamine in her hand at the time police arrived. However, for present purposes, what is significant is that I cannot exclude as a reasonable possibility that the accused had just acquired the three bags of methamphetamine from the unknown male. 108 When this matter of timing is combined with the indications that the accused was a personal user of methamphetamine (which, I acknowledge, is not mutually exclusive with an intention to sell at least some of the methamphetamine) and the unusual apportionment of what was, in any event, a relatively small amount of methamphetamine, the circumstantial evidence is such that I am unable to discount the hypothesis that the accused may not have actually formed an intention by the time of her interception to sell any of the drugs. 109 In reaching this conclusion, I have given careful consideration to what I have earlier described as the powerful circumstantial evidence provided by the mobile phone communications in combination with the indicia of sale referred to by Detective Armstrong. The accused’s possession of methamphetamine against that -- 24 of 25 -- [2024] SADC 138 23 background makes me highly suspicious that she was intending to sell at least some of the drugs; indeed, I consider it most likely that she was intending to sell at least some of the drugs. 110 However, to find the accused guilty I must be satisfied beyond reasonable doubt that she intended to sell some of the drugs in her possession and in a circumstantial case, this requires me to conclude that guilt is not just a rational inference arising from the combined force of the evidence; but the only rational inference. 111 As I am unable to exclude the hypothesis that the accused only took possession of the drugs shortly before the police arrived and that she may not have yet formed an intention to sell some of the drugs in her possession, the prosecution has failed to prove this element of the offence. Verdict 112 I find the accused not guilty of trafficking a controlled drug. 113 However, as I have said, I am satisfied beyond reasonable doubt that the accused was knowingly in possession of the methamphetamine. Pursuant to s 33R of the Act, I find the accused guilty of possessing a controlled drug, contrary to s 33L(1)(a). -- 25 of 25 --