CIVELLO -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2008] WASCA 163 (8 August 2008)

CIVELLO -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2008] WASCA 163 (8 August 2008) - WASCA 2008 case summary — Zoe

[38]

The total of the methylamphetamine in the aluminium container was some 123.6 grams. The accused acknowledges that he was aware that there were drugs in the aluminium container, there were drugs in the freezer which the police subsequently found. In his evidence he denied any knowledge of the drugs which were found in the yellow bucket ... The prosecution suggest to you that you draw the inference if need be that probably that came from the other empty aluminium container which was in the box down in the storeroom.

Whether or not that is significant, that's a matter for you. The accused denied any knowledge of the methylamphetamine which was found inside the yellow bucket. The video shows clearly in the pan of the laundry area, the yellow bucket is up on top of the dryer. The dryer is on top of the washing machine down below. The sniffer drug dog didn't locate it. There is some inconsistency between the evidence of Detective Morrish and Keady as to where it was when the bag containing the powder fell out of the bucket.

Keady says it was in the hallway outside the laundry. Morrish, I think, or the video records it having been said that it fell out onto the dining room table. There is an inconsistency there, ladies and gentlemen. It's a matter for you whether or not that's significant. So if you accept that the accused did not know that there was the amphetamine in the bucket, you may accept that he was aware of the other amphetamine, which I have referred to and so when it comes to taking verdicts and I will explain to you a little later, there is a distinction to be made between those two parts of the methylamphetamine found.

On the other hand of course, the accused says that when he found methylamphetamine, the bags in the shredder, he put them in the freezer. They were in bigger bags than what was found by police the next morning and there was less amphetamine in the bag in the fridge than what he believed he had put into the fridge the night before. What that suggests is that perhaps whilst the accused was asleep Corey repackaged some of the drugs which were in the fridge. He may have repackaged and put some of the drugs in the cooler bag. It may have come from the fridge and into the cooler bag.

... So you may conclude that what was in the yellow bucket, although the accused wasn't aware that there was anything in the yellow bucket, that that was part of the drugs which were put into the freezer and was then subsequently put into the bucket by someone else other than the accused.

So you may consider that he had possession of that drug as well, if you are accepting of those circumstances. As I say it's a matter for your consideration and deliberations as to how you deal with that.

[71]

One aspect which was apparent early in [the appellant's] evidence was the telling of what he acknowledged were lies to the police at the time when the police were searching his motor vehicle. Ordinarily the telling of a lie will merely affect the credit of the witness or the credibility of the witness's evidence. In certain circumstances a lie told by an accused person may go further and amount to an implied admission of guilt.

The state has submitted to you that the accused lied to police in the carpark area before they went up to unit 601 [the appellant's unit]. The subject of those lies were firstly that he gave his current address as the Greenwood address, the matrimonial home which he had left although he had been residing there until a couple of weeks before; secondly, that the security tag for the unit he said was for a roller door at home at Greenwood; and thirdly that he lied as to where he had stayed the night before.

The accused has admitted that what he told police in respect to those matters were lies. They were deliberate lies. Clearly they related to relevant matters, namely the fact that he was aware that there was methylamphetamine upstairs in the unit and clearly he wished to deflect police away from going up to the unit and there conducting a further search.

In that sense the lie is really only explicable on the basis that if he had told the truth then that would have implicated him in the possession of the methylamphetamine in unit 601; that is, his motive for the lie was a realisation of guilt and a fear of the truth. In a sense the fact that he told lies to police is neither here nor there so far as the charge of possession of the methylamphetamine in the unit is concerned because he has admitted that he did have knowledge of the methylamphetamine there and concedes that he had control or dominion over it.

By his counsel he concedes that at a minimum he was in possession of the methylamphetamine or at least some of it found in the unit. That is simple possession. He denies of course that he had it with the intention of selling or supplying it to another. So therefore you can accept that the lies told do support the state's case so far as possession of some, if not all, of the amphetamine found in unit 601. Furthermore, the telling of the lies might be something which you take into account in assessing his credibility generally. That of course is a matter for your consideration. It may be of some weight in your deliberation or you may consider that overall it adds nothing insofar as the accused's credibility generally is concerned.

[87]

The second is that it appears to be assumed that there will in many cases be persons involved in the drug trade, and particularly higher in the 'hierarchy' of that trade, who build up substantial wealth, in circumstances where it is difficult to prove that that wealth has been dishonestly acquired. Some modification of the burden of proof is therefore thought to be required. I would respectfully observe that there will be many cases in which that assumption is no doubt correct. It would be naive to assume that merely because a person has not previously been convicted of dealing in drugs, that the person has never previously done so. On the other hand, it will of course on occasion be the case that an offender does engage in only one criminal transaction, sometimes after a lifetime of otherwise honest labour. The offender's drug dependence, gambling, or other emotional pressures often provide an explanation for such a course, where that occurs.

The understanding I would gain from the Second Reading Speech, then, is largely consistent with the view that I expressed in Sinagra-Brisca. It seems to me that there is a legislative assumption that, prima facie, a person who is declared a drug trafficker and who forfeits property as a result will be losing property which is in whole or in part derived from criminal activity. The offender was never entitled to the property in the first place, since his or her means of obtaining it were criminal, and therefore there is no 'loss' which is required to be taken into account by way of mitigation. However, because the legislative intent is to attack 'ill-gotten gains', it remains open to the Court to recognise in mitigation those situations where real hardship - not merely the loss of presumptively unlawfully acquired property - may be caused to an offender as a result of a declaration pursuant to s 32A. An example given to us in argument was of a hypothetical elderly offender, who had engaged in legitimate work all his life, and who, as a result of what was conceded to be a single, rash transaction, stood to lose the fruits of a lifetime of labour in circumstances where he would be considered too old to start again. As I said in Sinagra-Brisca, much will depend upon the circumstances of the individual case.

The only modification which I would now make to the observations which I made in Sinagra-Brisca would be that, taking into account the observations of McKechnie J, and considering the legislative intent as revealed in the Second Reading Speech, I would alter somewhat the view which I expressed in [26] of those reasons. Rather than suggesting merely that some 'credible material' suggesting a source of property other than drug dealing should be placed before a sentencing Judge, it seems to me that, before a loss as a result of a s 32A declaration can be taken into account by way of mitigation, there must be material which leads a sentencing Judge positively to form the conclusion that all of the property to be lost, or some very substantial portion of it, has been lawfully acquired. In some clear cases, of course, there may be a concession by the State to that effect. That is not to suggest that, even in such cases, significant weight will be placed upon such a loss by way of mitigation. Much will depend upon the nature and scale of the loss and its impact on the offender, having regard to all of the offender's other personal circumstances.

Applying those observations to the present case, there was simply nothing placed before his Honour to suggest that the house which was sold had been acquired solely or largely as a result of the lawful endeavours of the appellant. It was true that he had been apparently lawfully engaged as a panel beater, but that was not sufficient to lead to a conclusion that the acquisition of the house was solely or largely as a result of that occupation. This circumstance should therefore have been given no weight by way of mitigation.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (99 paragraphs)

CIVELLO -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2008] WASCA 163 (8 August 2008)

Knowledge of the drugs in the cooler bag

Knowledge of the drugs in the yellow bucket

Drugs at the appellant's business premises

Legislation Cited (3)

Cases Cited (3)