[2024] SADC 137

Prosecution: R Counsel: MR M DE LORME - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: ANTHONY WITTANA EDWARD WELLS Counsel: MR M CHRISTEY - Solicitor: ALMEIDA & ASSOCIATES Hearing Date/s: 11/04/2024, 12/04/2024 File No/s: DCCRM-22-014923 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 WELLS Criminal Trial by Judge Alone [2024] SADC 137 Reasons for the Verdict of his Honour Judge Barklay 24 October 2024 CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING The accused is charged with one count of trafficking in a controlled drug, namely methylamphetamine, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). In the event the accused was found not guilty to the offence of trafficking in a controlled drug, the prosecution rely on the statutory alternative of supply of a controlled drug, contrary to s 33I(1)(b) of the Controlled Substances Act 1984 (SA). It was not in dispute that the accused had possession of the drugs that are the subject of the charge. The central issue in dispute is whether the accused had the intention to sell at least some of the methylamphetamine that was in his possession. Verdict: Not Guilty to Trafficking in a Controlled Drug. Guilty to Supply of a Controlled Drug. Controlled Substances Act 1984 (SA) ss 4, 32(3), 32(5), 33I(1)(b), 33R; Juries Act 1927 (SA) s 7(1)(a); Correctional Services Act 1982 (SA) ss 76(1)(b), (2)(b)(i), 76A(1)(a); Evidence Act 1929 (SA) ss 34P, 34P(1)(a), referred to. Elrick v The Queen [2021] SASCA 13; Gasmier v The Queen [2020] SASCFC 16, considered. -- 1 of 16 -- -- 2 of 16 -- R v WELLS [2024] SADC 137 [Criminal] Introduction 1 The accused is charged with one count of trafficking in a controlled drug pursuant to s 32(3) of the Controlled Substances Act 1984 (SA) (‘CSA’). The particulars of the charge allege that on 17 August 2022 at South Brighton, the accused trafficked in a controlled drug, namely methylamphetamine. The accused pleaded not guilty to the charge and elected to be tried by judge alone.1 2 I find the accused not guilty of trafficking in a controlled drug, but guilty to the statutory alternative of supplying a controlled drug contrary to s 33I(1)(b) of the CSA. The following are my reasons for so finding. Elements 3 Before setting out the elements of the offence, I direct myself that all elements of an offence must be established beyond a reasonable doubt before there can be a verdict of guilty. Trafficking in a Controlled Drug 4 The offence of trafficking in a controlled drug has three elements: (1) The substance, in this case, methylamphetamine, is a controlled drug; (2) The accused knew, or was reckless as to the fact that the methylamphetamine was a controlled drug; and (3) The accused trafficked the methylamphetamine. 5 There was no dispute that methylamphetamine is a controlled drug,2 and that the accused knew it as a controlled drug. Accordingly, I find elements one and two proved beyond a reasonable doubt. 6 The issue in dispute is element three, that being, whether the prosecution has established, beyond a reasonable doubt, that the accused trafficked the drugs in his possession on 17 August 2022. As to element three, the accused admitted that the methylamphetamine (the subject of the charge) was in his possession. It was an agreed fact that the drugs located at the South Brighton property were 55 grams of crystals, containing 43.1 grams of methylamphetamine (‘the drugs’).3 It follows, that the central issue in the trial was the purpose of his possession. 1 Section 7(1)(a) of the Juries Act 1927 (SA). 2 Section 4 of the CSA; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) sch 1. 3 Exhibit P5, Agreed Fact 1. -- 3 of 16 -- [2024] SADC 137 2 7 As the drugs in the accused’s possession exceeded a trafficable quantity of a controlled drug (namely, 2 grams of methylamphetamine), the prosecution relies on the statutory presumption that the accused possessed the methylamphetamine for sale, as set out in s 32(5) of the CSA. 8 The legal effect of this provision is that, in the absence of proof to the contrary, the accused had the relevant intention concerning the sale of the drugs necessary to constitute the offence.4 This provision does not relieve the prosecution of the burden of proving the elements of a trafficking offence beyond a reasonable doubt, but rather, provides a presumption, in aid of that proof, which operates unless and until it is rebutted by proof, on the balance of probabilities, to the contrary.5 9 The accused gave evidence at trial in order to displace the statutory presumption. I will return to his evidence later in these reasons. Statutory Alternative - Supply of Controlled Drug 10 The prosecution case was that the accused was guilty of trafficking in a controlled drug. However, in the event that I was not so satisfied, the prosecution relied on the statutory alternative6 of supply of a controlled drug pursuant to s 33I(1)(b) of the CSA. I would only consider this alternative verdict, if I found the accused not guilty of trafficking in a controlled drug. 11 The offence of supplying a controlled drug has two elements, which the prosecution must establish beyond a reasonable doubt: (1) The accused was in possession of a controlled drug; and (2) The accused intended to supply or administer the drug to another person. Preliminary Legal Directions 12 The prosecution bears the onus to prove each element of the charge beyond a reasonable doubt. The accused, at all times, is presumed to be innocent unless I, as the trier of fact, were to be satisfied of guilt beyond a reasonable doubt. It is not enough for the prosecution to show a mere suspicion of guilt or to demonstrate probable guilt. Anything short of proving the case beyond a reasonable doubt, and the verdict should be one of not guilty. A reasonable doubt would be one that, after full and careful consideration of all the relevant evidence, I am prepared to entertain. 13 The accused elected to give evidence. He was not required to do so. The accused could have remained silent and left me to decide whether the prosecution proved its case. I must assess the accused’s evidence in the same way as any other 4 Elrick v The Queen [2021] SASCA 13 at [16] (Doyle JA). 5 Gasmier v The Queen [2020] SASCFC 16 at [10] (Kourakis CJ, Nicholson and Lovell JJ). 6 Section 33R of the CSA. -- 4 of 16 -- [2024] SADC 137 3 witness. I must not treat his evidence as deserving less weight simply because he is the accused. Prosecution Evidence – Not in Dispute 14 An extended supervision order was imposed on the accused in 2017. The accused remained subject to this supervision order in August 2022. Conditions of the extended supervision order included Global Positioning System (‘GPS’) monitoring, not to consume illicit drugs and compulsory drug testing. In the event that the accused did not comply with the conditions of his extended supervision order, a parole warrant could be issued for his arrest and the authority of that warrant empowered police to arrest the accused.7 It was not in dispute that the accused had breached his extended supervision order on 17 different occasions between March 2017 and August 2022, and that he was consequently remanded in custody for varying lengths of time in relation to those 17 different breaches. Arrest Evidence - Detective Brevet Sergeant Everlyn 15 On 17 August 2022, the accused again breached his extended supervision order, and a parole warrant was issued for his arrest. Through the GPS monitoring device which the accused was wearing around his ankle, police identified the accused as being at an address at South Brighton and attended there to arrest him. Detective Brevet Sergeant Everlyn (‘Detective Everlyn’), of the Crime Gangs Task Force (within the Serious and Organised Crime Branch), gave evidence about his attendance at the South Brighton property on 17 August 2022. Through Detective Everlyn, the prosecution led the circumstances of the accused’s arrest, along with crime scene evidence. 16 Upon arriving at the South Brighton address, Detective Everlyn initially waited in front of the closed garage roller door, while other police officers entered the house, and opened the roller door to the garage. When the roller door was opened, Detective Everlyn saw the accused standing in between two vehicles in the garage with his friend, TT. The accused’s friends, VB and L, were also present at the South Brighton address. The accused was arrested pursuant to the parole warrant and brought to the front of the address. While Detective Everlyn was at the front of the address with the accused, Detective Everlyn was advised by other police officers inside the garage, that the methylamphetamine, the subject of the charge, had been located on the ground of the garage, at the rear of a black limousine, near where Detective Everlyn first saw the accused. 17 The accused’s, TT’s and VB’s mobile telephones were each seized by police and later analysed by the Digital Evidence section of the South Australian Police. It was agreed that nothing of interest was located on any of the mobile telephones.8 In other words, there was nothing on the accused’s mobile telephone to suggest that he was in the business of drug trafficking. There was no other indicia of sale 7 Sections 76(1)(b), (2)(b)(i) and 76A(1)(a) of the Correctional Services Act 1982 (SA). 8 Exhibit P5, Agreed Fact 3. -- 5 of 16 -- [2024] SADC 137 4 located on the accused such as electronic scales, large amounts of cash, tick lists, resealable bags, multiple mobile telephones or encrypted applications. Record of Interview – Admissions to Possession 18 After the drugs were located, the accused was arrested for trafficking in a controlled drug and Detective Everlyn conducted a record of interview with the accused.9 During the interview, the accused made several admissions to possessing the drugs. He said that the drugs were for his personal use, that they were a gift (which he did not pay for), and that whilst he was expecting the drugs, he did not expect the quantity which he received.10 19 The accused said that he was the one to put the drugs in the location that police located them in (on the ground at the rear of the black limousine in the garage of the South Brighton address).11 Drug Expert Evidence - Detective Sergeant Tuplin 20 Apart from Detective Everlyn, the second, and only other prosecution witness, was Detective Sergeant Tuplin, a police officer stationed within the Serious and Organised Branch (‘Detective Tuplin’). Detective Tuplin gave expert evidence in relation to drug pricing and packaging, serious and organised crime, criminal investigations relating to outlaw motorcycle gangs, and drug trafficking. There was no dispute that Detective Tuplin was qualified to give the opinions which he gave. I accept he was qualified to give the opinions he gave about the various topics I have identified. 21 As to the price of methylamphetamine, Detective Tuplin gave evidence that in August 2022, methylamphetamine was valued between $5,000 and $6,500 per ounce, between $1,000 and $1,600 per ‘8-ball’ (one-eighth of an ounce), between $400 and $500 per gram and between $50 to $75 per point (.1 of a gram). 22 Detective Tuplin gave general evidence on the drug trafficking hierarchy, indicating that a street-level dealer is someone who sits above a user and would typically deal with small amounts quite frequently. Following this, are mid-level dealers and high-level dealers. High-level dealers would typically include more organised crime syndicates. 23 Detective Tuplin indicated that if someone is in possession of ounces or multiple ounces, they would typically be labelled a ‘mid-level dealer’ or ‘supplier’, although this is dependent upon the quantity of drugs and the specific circumstances of the individual case. 24 During cross-examination, Detective Tuplin said, based on his experience and expertise with organised crime and drug dealing, that there are people who 9 Exhibit P3. 10 Exhibit P3. 11 Exhibit P3. -- 6 of 16 -- [2024] SADC 137 5 perform tasks such as enforcing debts and negotiating of debts and that it is not uncommon for such people to be rewarded with free drugs for completing such tasks. The following evidence is relevant: Q. In terms of organised crime and drug dealing in particular there are certain people who in fact perform certain other tasks on behalf of the dealers, for example, enforcing debts. A. Yes. Q. And mediation between the parties. A. Mediation is an interesting word but debt collecting, yes, negotiating for a debt to be paid. Q. Negotiations. A. Yes. Q. These persons can quite often receive some sort of reward for their work. A. Yes. Q. It’s not uncommon for that reward to be drugs. A. Not uncommon, no. 25 Apart from Detective Everlyn and Detective Tuplin, the prosecution tendered some agreed facts and that completed the case for the prosecution. Accused’s Evidence 26 The accused elected to give evidence. I will set out the key parts of the accused’s evidence. 27 The accused admitted to possessing the drugs but denied that he intended to sell any of them. He maintained that the drugs were for his personal use. However, he agreed that he would have shared the drugs with his friends, TT and VB, in the South Brighton property, although at the time, he had not thought far ahead enough to consider whether he would share the drugs with other people later on. 28 As to the background of the offending, the accused gave evidence that the ongoing extended supervision order which was imposed on him in 2017 required him to have weekly meetings (sometimes more) with his parole officer. He was regularly subjected to drug testing. The accused’s parole officer could, and did, impose restrictions on his movements from time to time. Provided the accused complied with the terms of the order, he was able to live in the community. 29 As I have already mentioned it was an agreed fact that the accused breached the extended supervision order he was subject to on 17 different occasions -- 7 of 16 -- [2024] SADC 137 6 (between March 2017 and August 2022).12 The accused gave evidence that the nature of the 17 breaches primarily related to drug use, with one drug use breach sometimes consisting of up to 10 dirty urines (positive drug tests). Following a breach, the accused said he would go into custody for about six to 12 weeks. This evidence as supported by the agreed facts. 30 In August 2022, the accused said he was in the community residing with his partner, K, at her house. He gave evidence that in the days leading up to 17 August 2022, he had been using drugs (which he was receiving for free) in small amounts, from a friend as he needed it. Because he was using drugs, he was concerned that he might be drug tested, and so to avoid that, on about 15 or 16 August 2022, the accused falsely reported to his parole officer that he had COVID-19. He did so because he knew that would lead to COVID-19 restrictions being imposed on him, which included restrictions that he could not leave his house for about ten days (or until an SA Health clearance was provided), but most importantly, that he could not be subjected to urine drug tests. 31 At about 5:00am on 17 August 2022, the accused and his partner had an argument, which resulted in the accused wanting to leave the property. 32 At about 6:30am on 17 August 2022, the accused’s friend, L, picked the accused up from K’s house, and they went to have something to eat at McDonald’s. By leaving the property, the accused breached his parole officer’s directions to remain at the property (because of the COVID-19 lie), and as such, by leaving the property, he automatically breached his supervision order. The accused was aware he was subject to GPS monitoring at the time, meaning that when he left the property, his parole officer would know. The accused gave evidence that as he was so worked up from the argument with K, it was not until he was at McDonald’s with L, that he realised he had breached the COVID-19 restrictions relating to his extended supervision order. 33 The accused and L then returned to K’s house, and the accused said he attempted to contact his parole officer several times. The accused said in the past, his parole officer had permitted him to change addresses, but as the accused had not heard back from him (when he would usually hear back from him quickly), and as he had breached the COVID-19 restrictions, the accused assumed a parole warrant for his arrest would be processing. 34 The accused and L arrived at the South Brighton property between 8:00am and 9:00am on 17 August 2022. The owner of the South Brighton property, M, was the accused’s friend. The accused had been to his house previously (about 20 times), and M let him use his outdoor area to ‘relax’ and ‘party’. 35 Upon the accused’s arrival at the South Brighton property, the accused was aware that he had breached his extended supervision order and that it was likely he would return to custody. He said his intention whilst at the South Brighton 12 Exhibit P5, Agreed Fact 4. -- 8 of 16 -- [2024] SADC 137 7 property was to party. For the next five or six hours, whilst at the South Brighton house, the accused said he was ‘just fooling around’, relaxing and partying with some girls who were at the property. During this time, the accused said his friend, VB, had booked and paid for a bed and breakfast for the accused to stay at for a few days, as he had no money. The accused said that in the past when he had been in similar situations, whereby he had been in an argument with his partner and had needed to change his residential address for the purposes of his supervision order, his parole officer had granted the address change. On this occasion, the accused said he hoped his parole officer would approve a change in address (from K’s house to the address of the bed and breakfast), but he was arrested before he could get the approval from his parole officer to move addresses. 36 In light of the agreed facts as to the litany of breaches and resulting periods of time in custody, I accept that the accused would have realised (despite hoping for a different outcome) a remand in custody was highly likely. 37 The accused gave evidence that he did not bring any drugs to the South Brighton property. He said when he first arrived at the South Brighton property, he was using drugs, which he said were from TT or L. 38 At some point, whilst at the South Brighton property, at the accused’s request, a friend of the accused dropped off the drugs to the South Brighton property. The accused said his friend was a drug dealer who he had known for a long time and who he had requested drugs from on regular occasions, including on 17 August 2022. The accused gave evidence that he either called or messaged his friend to drop him off some drugs, but whilst communicating with this friend, he did not discuss the quantity of drugs that would be given to him. The accused gave evidence that he said to his friend that that he wanted ‘a little bit to party with’ and that on previous occasions, when he had asked for drugs, his friend had given him up to about two 8-balls (7 grams) of methylamphetamine. 39 Shortly after contacting his friend, and about 10 minutes before the police arrived at the South Brighton property, the accused’s friend dropped the drugs off to him. 40 The accused gave evidence that he thought that he might have told his friend that he was ‘under the pump from the police’ whilst on the phone to him (when requesting the drugs), and on this basis, his friend parked a few streets away from the South Brighton property, although he was not sure. However, the accused was certain that when his friend arrived at the property, he ‘definitely’ told him he was under the pump from police. 41 When the accused first saw his friend arrive at the South Brighton property, he recalls that he was sitting in the carport with VB and TT. His friend passed him the bag of drugs. Although he was preoccupied with the girls, he said he noticed that the quantity of drugs was more than he needed or expected (he expected to receive one or two 8-balls), and he mentioned this to his friend. His friend indicated -- 9 of 16 -- [2024] SADC 137 8 that they would sort it out later and that the accused should take whatever he needed. There was no discussion of payment. In fact, the accused expected he would not have to pay for the drugs in cash, although he did expect that at some point in the future, he would assist his friend with drug debt collection (which had occurred regularly in the past). I pause here to indicate that as can be seen later in these Reasons, the accused had been involved in the criminal underworld for years, and part of that involved him collecting drug debts or mediating payment arrangements arising from drug debts. In turn, he would be given drugs for free. 42 I return to the events of 17 August 2022. The accused said that once his friend arrived with the drugs, the accused was aware (or at least was concerned) that the police may arrive to arrest him, so the accused’s friend left soon after he handed the accused the drugs. 43 The accused recalls that his friend told him to grab what he needed, and that he would come back and grab the rest later. However, the accused admitted that he was unsure why he was given much more drugs than what he had received from the same friend in the past. The following evidence is relevant: Q. Are you able to say why such a large amount was dropped off. A. Nah, I think he made a mistake himself. He went to organise it late just before he came in. I’m pretty sure, not 100% that I rang him, but he said just grab what you need then we will sort out the rest later ‘I’ll come back and grab the rest, just leave it there’. Q. It seems an extraordinary amount to drop of. A. Yep, I said that but to this guy not so much. Q. When this friend dropped the drugs off for free on the understanding that at some point in the future he might ask you for a favour. A. Yeah, I knew he would. Q. Was he aware that you were going in and out of custody regularly. A. Yeah. Q. But that didn’t bother him that he may not be able to ask you for a favour for some time. A. It’s never usually longer than six weeks, my breaches, but because I was charged with this it’s been a lot longer but he’d usually get a favour from me down the line. Q. I think you said to him you were under the pump from police. A. Yeah. Q. So he dropped off almost two ounces of methamphetamine knowing it was potentially imminent you were about to be arrested. -- 10 of 16 -- [2024] SADC 137 9 A. Yeah, that’s what I mean, I think he was going to come back and grab it, I’m pretty sure I said that in the interview. 44 As to what the accused intended to do with the drugs, the following evidence is important: Q. So once you’d received the drugs, what was your intention to do with them. A. To use them. I didn’t even get around to that. Q. You were obviously going to use them myself [yourself]. A. I would have used them amongst me, the girls, [TT] probably would have had some. Q. You would have shared it amongst the people you were with at the time. A. Yeah, of course. Q. And potentially other people later on. A. To be honest, I hadn’t thought that far ahead. Q. So to be clear, you were going to share the drug amongst yourself and your friends or by friends I’m referring to [VB] and [TT]. A. Yep. Q. Can I ask you this: if you’d been partying with [VB], [TT] and perhaps other friends with those drugs, if one of those people had asked you if they could buy a gram, let’s say for about $400 which was the evidence we’ve heard about what the market value might have been. A. Yep. Q. What would your answer have been. A. No. Why would they pay for it when I could just give it to them? Q. So if someone had offered you money for any of those drugs - A. Yeah. Q. - your answer would have been no. A. No. I didn’t intend on keeping the whole lot anyway. It made me uncomfortable having it. I’m here right now for that very reason. To be honest, I just wanted to grab a bit out and get rid of the rest. Obviously, it came a lot quicker than what I expected. 45 As can be seen from this part of the accused’s evidence, he admits although he was not going to sell the drugs, he intended to supply it to his friends. 46 It was put to the accused during cross-examination that if someone had offered him a significant sum of money for at least some of the drugs in his possession, he would have accepted the money. The accused rejected this -- 11 of 16 -- [2024] SADC 137 10 proposition and queried why he would need money when he was aware that he was about to go back to prison. He gave evidence that when he was not in custody, he would receive approximately $600 a fortnight in Centrelink payments. Accused’s Involvement in the Criminal Underworld 47 In order to understand why the accused’s drug dealer friend might give him the drugs and leave with no expectation of payment and no expectation, on the accused’s part, that he would have to pay for the drugs (in cash), it is necessary to set out some evidence the accused gave about his background and involvement in drugs and the criminal underworld. 48 The accused gave evidence that he was involved in the criminal underworld, including outlaw motorcycle clubs, and had been for many years. He said that he was first introduced to drugs when he was about 15 or 16 years old (he was 45 years old when he gave evidence) and that he had been using amphetamines and fantasy heavily ever since (excluding a period from about 2007 to 2012). The accused gave evidence that he would use half a gram to a gram of drugs per day, with his drug use increasing substantially when he is ‘partying’. Following his releases from custody, he said he would turn back to using drugs ‘straightaway’. 49 The accused said that he had not paid for the drugs he consumed for years. I set out his evidence on that topic: Q. Can you tell us on average how much you’d buy. A. I don’t buy it. Q. How much you’d obtain from a dealer. A. Depends. It depends. I’ve been around since I was 16. I’ve used a lot of drugs. I know a lot of people, especially in the southern area of Adelaide most people know me, I know a lot of drug dealers, I know a lot of the drug users, so I do a lot of favours for these people and that’s how they pay me. Q. When you say ‘favours’, what do you mean. A. I try to call it mediation to probably tone it down a little bit, probably be called debt collecting. Q. Can you just explain in a little bit more detail who you collect the debts for. A. For all sorts of different people, sometimes there is drug dealers that are owed large amounts of money and I’ll usually know these people that owe them money through my extensive history in prison, I’ll know them, they have a lot of respect for me, I can speak to them, put them on a payment plan to avoid them getting hurt. They’ll pay me either cash or whatever I ask for, drugs. Q. How long have you been doing that for. A. I’ve been doing it since 2013. -- 12 of 16 -- [2024] SADC 137 11 A little later in his evidence, the following exchange took place: Q. You’ve given evidence about when you received methamphetamine your evidence is that you don’t buy it. A. Yep. Q. And the reason that you don’t buy it, I think your evidence was, that you use the word mediation, effectively a debt collector for people who are in drug debts. A. You would call me a debt collector, yeah. Q. Given you started using drugs at 15, 16, are you able to say about when it was that you started receiving them for free for doing favours of that kind. A. Look, when I was with a motorcycle club, that’s when I started mediating, well debt collecting. Q. Are you able to say - A. Say as of like 2008 ‘9 onwards, maybe a handful of times that I paid for drugs since that year. Q. That would be about in your mid 20s, is that correct. A. 2009, I think I would have been 30, 31. Q. That’s basically the best part of 15 years you’ve very rarely paid for drugs. A. Correct. 50 I pause here to note Detective Tuplin’s evidence that he was aware that within the criminal underworld, there are people, often referred to as ‘debt collectors’, who perform tasks such as enforcing debts and negotiation of debts, and that it is not uncommon for such people to receive free drugs for their services rendered. 51 It is also important to note, at this stage, that the prosecution did not challenge the accused about his evidence on this issue. During the final address, the prosecution conceded that I could accept the accused’s evidence on that topic. 52 The accused’s evidence about his drug use, his intention to supply drugs to his friends, his involvement in outlaw motorcycle clubs, and his role within the criminal underworld as a ‘debt collector’ is discreditable conduct evidence. The admissibility and use of that evidence are governed by s 34P of the Evidence Act 1929 (SA). The relevance and permissible use of the evidence was to explain how the accused came to be in possession of the methylamphetamine, why he did not have to pay for it in the first place, and why he did not have to pay for the drugs at a later time (at least not in cash). The evidence was also relevant to provide an alternative explanation for the possession of the drugs, other than that he had them for sale. That is the only way that the evidence may be used. I have not used the -- 13 of 16 -- [2024] SADC 137 12 evidence to suggest that the accused is more likely to have committed the offence because he has engaged in the discreditable conduct.13 Prosecution and Defence Arguments Prosecution Argument 53 The prosecution accepted that the accused did enforce drug debts and was given drugs for free as a result of the role he played in the criminal underworld. They accepted that the drugs in the accused’s possession were likely delivered to him at the South Brighton property on the day of the alleged offence. It was not disputed that the accused was a heavy user of the drugs. It was conceded that the accused’s primary purpose for possessing the drugs was for personal use and supply to his friends. 54 Despite those concessions, the prosecution submitted that the accused’s evidence that he was not going to sell any of the drugs should be rejected. First, the prosecution submitted that the accused had nowhere to live and had no money at the time so that provided a motive for him to sell at least some of the drugs. Second, that the accused’s account that he had been given almost two ounces of methylamphetamine by his drug dealer, when he normally would only get about two 8-balls did not make any sense. The prosecution queried why his drug dealer would give him so much more than he needed to give him, given how much the drugs were worth. The inference being, that the accused needed that much, as he was going to sell some of them. 55 In the alternative, the prosecution submitted that if the accused had displaced the presumption in favour of sale and in those circumstances, I were to acquit the accused of trafficking, I would find him guilty of possessing the drugs for the purposes of supply based on the accused’s admission in his evidence that he was going to do so. Defence Argument 56 The defence submitted that I should accept the accused’s evidence on the balance of probabilities. In those circumstances, the accused had displaced the presumption in favour of sale, and the accused was entitled to an acquittal on the trafficking charge. The defence did, however, concede that the accused was guilty, by way of his own admission to supplying a controlled drug. 57 The defence submission was that the accused was in a position within the underworld whereby he was given drugs for free in exchange for his services as a debt collector. The drug dealer leaving more drugs (than he normally would) on 17 August 2022, was explicable on the basis that the accused had told him, possibly as late as when he arrived at the house, that the police might be about to arrest the accused. In those circumstances, it was easy to see how the dealer may 13 Section 34P(1)(a) of the Evidence Act 1929 (SA). -- 14 of 16 -- [2024] SADC 137 13 wish to get out of the house as quickly as possible and not be delayed by separating the drugs, so he left the accused with more drugs than he normally would. 58 As to the financial motive to sell drugs, the defence submitted that the accused knew he was going into custody, he had somewhere to stay in the short term, he was in receipt of Centrelink payments (approximately $600 a fortnight) so he had some money to live. It was open to accept his evidence that he was not going to sell any of the drugs, because he did not need the money, particularly when considering that it was imminent that he was going to be returning to custody. Discussion 59 This is somewhat of an unusual case, primarily because of the matters that the accused gave evidence about, which were not in dispute. First, that the accused was a ‘debt collector’ within the criminal underworld. Second, because of the debt collector role he played, he was given drugs for free, without having to pay for them. Third, on the day of the offence, the drugs, the subject of the charge, were delivered to him for free (with no expectation that he would need to pay for them in cash) shortly before the police arrived. Fourth, the accused was subject to an extended supervision order and had been arrested and remanded in custody on 17 different occasions between March 2017 and August 2022. In other words, it was reasonable for him to think he was going to be going into custody. 60 The usual inferences that would arise in a case where a person was in possession of 55 grams of crystals, containing 43.1 grams of methylamphetamine, do not apply with the same force. In particular, the usual inference that a user would not pay that much money for drugs unless they were going to sell at least some of the drugs, to defray the costs, is not so readily drawn in this case. Because the accused was given the drugs (and did not have to pay for them), they were not the valuable commodity they would have been, had the accused paid for them. I do not overlook the fact that if sold, the accused could have made a profit out of the drugs. 61 I have considered the prosecution’s submission that the accused had no money and, therefore, he must have contemplated (and intended to if asked) selling some of the drugs. In my view, the prosecution’s submission overlooks the accused’s outlook on life at the time. I accept the accused was leading a fatalistic lifestyle. The accused was in constant opposition with those who supervised him. Given the background of 17 remands in custody for breaching his extended supervision order), it was reasonable for the accused to believe he would be arrested at any moment. I accept his evidence that before going into custody, he intended on taking drugs with his friends and, to borrow his term, ‘partying’. That much was not really disputed by the prosecution. I am satisfied that the accused was living in the moment and was probably not thinking about anything beyond taking some of the drugs he had been given and supplying his friends with them at the South Brighton property. -- 15 of 16 -- [2024] SADC 137 14 62 I have considered the accused’s evidence that the quantity of drugs he was given was more than he would normally get. On one hand, it might be thought to be unusual that a drug dealer would leave 55 grams of crystals, containing 43.1 grams of methylamphetamine, with a person who may lose it to the police. On the other hand, it was not inevitable, but rather, represented a risk. Further, I bear in mind the unusual relationship that the drug dealer had with the accused. As the accused said, he was never in custody for long, and any debt owed to the dealer would be called on in the form of debt collecting services. As the accused said, to some of the people he moved around with, in the criminal underworld, 55 grams of mixed methylamphetamine was not a significant quantity of drugs. This was also the case for his drug dealer friend. Meaning that if the accused lost it to the police, it would not be the end of the world. I accept his evidence on that topic. 63 The accused’s evidence was given in a straightforward manner. Key parts of what he said about his background were not disputed. When I take into account his evidence as a whole, in my view, it is probable that selling the drugs had not even crossed the accused’s mind whilst he was at the South Brighton property. Whilst that may have changed in time, crucially, at that relevant point in time whilst in the South Brighton property, I am satisfied, on the balance of probabilities, that all the accused contemplated was consuming the drugs himself and supplying them to his friends. 64 It follows that I am satisfied, on the balance of probabilities, that at the time of his possession, the accused did not intend on selling the drugs, nor did he contemplate doing so at some future time. In light of this finding, the accused has discharged the statutory presumption of sale. Conclusion and Findings 65 Based on the accused’s evidence, which I accept, I find the accused not guilty of trafficking in a controlled drug. 66 It remains to consider the statutory alternative of supplying a controlled drug. As is set out above in paragraph 44, the accused admitted that he intended to supply some of the drugs he possessed to his friends who were present at the South Brighton property. In those circumstances, the prosecution says he is guilty by his own admission of supplying a controlled drug. Defence counsel conceded that the accused was guilty of possessing the drugs for supply. In my view, that was an appropriate concession. I am satisfied beyond reasonable doubt that the accused intended to supply his friends with some of the drugs. 67 Accordingly, I find the accused guilty of supplying a controlled drug. -- 16 of 16 --