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[2017] ACTSC 287
Supreme Court of the ACT
2017-10-03
Robinson AJ
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW -- STAY OF PROCEEDINGS -- application for stay - abuse of process - human rights - prosecutorial discretion - no relevant unfairness
DRUG OFFENCES - Judge-Alone Trial - Supply - Onus of Proof - legal burden of proving that accused did not have possession of the controlled drug with intention of selling - whether articles matched statutory description - search warrants - admissions of fact - accused's drug use - value of drugs - security concerns -other items found to reasonably be regarded as supporting inference - evidence of the accused - must not speculate about what evidence a person may or may not have given if called by the accused to give evidence - may be many reasons for the telling of a lie apart from the realisation of guilt - accused has not discharged burden of proving he had the drugs in his possession other than with the intention of selling - hand-held electronic devices - convicted on four counts to which the accused pleaded not guilty - convicted on count to which accused pleaded guilty
Criminal Code 2002 (ACT) ss 59(c), 601(2), 604(1)(d)
Criminal Code Regulation 2005 (ACT) s 9, Schedule 1
Dyers v The Queen [2002] HCA 45; 210 CLR 285
Edwards v R [1993] HCA 63; (1993) 178 CLR 193
Radi v R [2010] NSWCCA 265
R v Corish [2006] SASC 369; 96 SASR 207
R v Lane [2011] NSWCCA 157; 221 A Crim R 309
R v Nguyen [2010] SASCFC 23; 108 SASR 66
Steinberg v FCT [1975] HCA 63; (1975) 134 CLR 640
Zoneff v R [2000] HCA 28; 200 CLR 234
SCC 172 of 2016; SCC 174 of 2016
1. Upon arraignment before me, Mr Mohamed Nchucki, the accused, pleaded not guilty to the following counts in the indictment preferred against him. I set out these counts with some paraphrasing.
3. The accused elected to be tried by a judge alone under s 68B of the Supreme Court Act 1933 (ACT).
4. The trial commenced before me on 7 March 2017 but was not able to be brought to an earlier resolution owing to matters beyond the control of the parties and which were adequately explained.
5. After the accused had pleaded to the indictment, his counsel applied for an adjournment of a day to file and serve an application for a stay of Counts 2 and 3 of the indictment on the ground that the preferment of those counts constituted an abuse of process and further was inconsistent with the accused's rights under in the Human Rights Act 2004 (ACT) (Human Rights Act).
6. The factual underpinnings of the claimed abuse of process can be stated shortly. Counts 2 and 3 are framed so as to attract the presumption under s 604(1)(d) of the Criminal Code 2002 (ACT) (Criminal Code) concerning trafficking provisions applicable to MDMA and methylamphetamine. The presumption means that the accused has the legal burden (s59(c) of the Criminal Code) of proving that he did not have the intention of selling any of the controlled drug.
7. The Crown case is that there were 19.23 grams of MDMA and 57.28 grams of methylamphetamine found by police. The applicable item in the Criminal Code Regulation 2005 (ACT) gives the trafficable quantity as 10 grams and 6 grams respectively.
8. However, the weights upon which the Crown bases its case are a gross weight of an admixture in both cases where MDMA and methylamphetamine have been cut down with additives and form only a proportion of that gross weight.
9. When the amount of actual MDMA and methylamphetamine is calculated, the weights become 3.68 grams and 4.83 grams or alternatively 4.31 grams (both figures were mentioned at trial), which are, in both cases, below the trafficable quantity for the active ingredient.
10. By s 601(2) of the Criminal Code 2002 (ACT), the prosecutor has an election as to the prosecution of a trafficable quantity of a controlled drug. That section is as follows:
(2) For this chapter, a trafficable, commercial or large commercial quantity of a controlled drug in a mixture of substances is, subject to the regulations -
(a) if the prosecution elects to establish the quantity of the drug in the mixture - the relevant quantity of the drug worked out by reference to the quantity (if any) prescribed by regulation for the pure form of the drug; and
(b) if the prosecution elects to establish the quantity of the mixture instead of the quantity of the drug in the mixture - the relevant quantity of the mixture worked out by reference to the quantity (if any) prescribed by regulation for a mixture containing the drug.
11. Somewhat surprisingly at first blush, the Criminal Code Regulation 2005 (ACT), by s 9 and Schedule 1, column 3, apply the same quantities for s 601(2)(a) and s 601(2)(b).
12. In Counts 2 and 3 above, the Director of Public Prosecutions has elected to proceed under s 601(2)(b). Counsel for the accused submitted that the unfairness sprang from the choice made to prosecute this matter as an admixture when there is clear evidence available to the Director that the pure weight is less than a trafficable amount.
13. I am unable to see any infringement of the accused's rights under the Human Rights Act.
14. I am not able, as a trial judge, to interfere or review the exercise of the legislatively conferred discretion upon the Director as to how he elects to prosecute an offence.
15. I am able, as a trial judge, to prevent an unfair trial taking place as a result of the exercise of a discretion by the Director.
16. In the circumstances of this case, there is no relevant unfairness in a trial taking place where the Director has elected to proceed under s 601(2)(b).
17. Very few of the facts tendered in the Crown case were in issue and the accused also made formal admissions about them.
18. The real issue in each of Counts 1, 2 and 3 was whether the accused was able to discharge the legal burden of proving that he did not have possession of the controlled drug with the intention of selling any of the controlled drug.
19. This legal burden of proof must be discharged on the balance of probabilities.
20. The issue on Count 4 was confined to whether the articles found in the possession of the accused matched the statutory description.
21. On 26 November 2014 officers of the Australian Federal Police arrived at the accused's house in Chisholm, ACT at around 6.00 am, having with them four search warrants. Police entered the premises at about 6.25 am.
22. Those warrants permitted officers to search the premises, two cars and the accused himself.
23. The warrants were in familiar terms for searches where drug dealing was suspected. Items of interest were recovered from the premises and one of the two cars.
24. The accused, his wife and their small baby lived in the premises searched at the time. Those premises were a free standing suburban home and had, relevantly, a number of bedrooms, a dining room and a laundry.
25. It is the contents of the pockets of the accused's work pants, found in a laundry basket under the sink in the laundry which has significance for the Counts.
26. In the back yard of those premises there was also a locked detached building. In this building the accused had an office which he described to police as "my office". That office had a desk, whiteboards, a computer, a printer and a bar fridge, with a clear glass door, as well as many other things, including files and business records.
27. It is the contents of the bar fridge and the finding of scales in a shelf of the desk which has significance for the Counts.
28. The car of interest was a black Toyota Hilux Utility which was registered in NSW to MEK Group Pty Ltd. Inside that car, two bags belonging to the accused were found during the execution of the warrant. One was a black "Lonsdale" branded bag. It could be described as a sports bag. The other was a smaller blue canvas bag branded "G-Star". This bag could be described as a satchel bag.
29. It is the contents of the two bags which have significance for the Counts.
30. Senior Constable O'Mahony conducted an audio recorded interview with the accused during the execution of the warrants. A number of police were engaged in the searches. When an item of interest was found, Senior Constable O'Mahony would, in general, ask the accused about that item. The recorded interview was played to the Court and a transcript of it became MFI 2 as an aide memoire. Photographs were taken of the items of interest in situ as they were discovered and these photographs were in evidence.
31. On 7 March 2017, the accused made the following formal six admissions of fact. (The admissions as to weight include some mathematical calculations based on purity, as referred to above).
32. As a result of the recorded interview, the formal admissions and the photographs, there was a body of undisputed objective evidence pertaining to the four counts of the indictment in issue.
33. The Crown helpfully summarised this evidence under different headings. There was no dispute as to the accuracy of the summary. The issue between the parties was the significance of the evidence on the issue of possession for sale.
34. The accused put forward a case that he had possession of the drugs, the subject of the indictment, entirely for his own use. He told the police this in the course of the execution of the warrants and he gave evidence of this in the witness box. He also tendered a 2008 business record of a medical practitioner and relied upon the report and evidence of Associate Professor Davies, consultant psychiatrist as to his drug use.
35. The fact in issue is whether the accused had the drugs for his own consumption. It was submitted that the fact that the accused was a heavy drug user himself could rationally affect the probability of the existence of the fact in issue. I accept this reasoning process, but on the facts of this case the weight given to a conclusion based upon the premise requires careful evaluation. As a general proposition, many persons who are addicted to drugs or take drugs also sell drugs.
36. It was conceded by the Crown in her final address that the accused himself had a "drug issue" in 2014, that is, that he was a user of drugs at that time. The Crown case, also as it was formulated in final address, was that the accused was both a "buyer and seller" of the drugs.
37. It is common ground that the Crown has proved, beyond reasonable doubt, that the accused had in his possession trafficable quantities of the substances the subject of the first three counts of the indictment.
38. In those circumstances, in each count, the accused bears the legal burden of proving that he did not have possession of the controlled drug with the intention of selling any of the controlled drug.
39. I approach the resolution of the first three counts by taking account of all the proved facts and circumstances in combination, rather than taking each circumstance in isolation.
40. However, in order to explain my reasons for judgment, I propose to set out a number of the circumstances relied upon together with observations in narrative form before discussing those circumstances in combination and the case made by the accused.
41. Before entering upon that task, I interpolate here to record, that the Crown drew my attention to the decision in R v Nguyen [2010] SASCFC 23; 108 SASR 66 (Nguyen) at [77]-[78] for the significance to be attached to the "trafficable amount" fixed by the legislature in the schedule. I did not find this case helpful in this regard and have contented myself by following the Criminal Code Regulation 2005 (ACT) without any implication. I have not found any case following or applying Nguyen on this issue.
42. The Crown points out that 137 grams of cocaine is 22 times the trafficable quantity, 57.28 grams of methylamphetamine is about 10 times the trafficable quantity and 19 grams of MDMA, constituted by 86 pills, is nearly twice the trafficable quantity.
43. The first circumstance that the Crown dealt with is the value of the drugs in question. She drew on the evidence of Sgt Scott on the question of that value in the Canberra market in 2014 and submitted that the evidence suggested that, taking the lower range of figures given by the witness, the value of the 137 grams of cocaine was $28,800.00, the value of the 86 pills of MDMA was $2,520.00 and the value of the 57.28 grams of methylamphetamine was $19,200.00 or thereabouts.
44. There were a number of shortcomings in this evidence of value but having regard to them and taking the lower figure in the range, the figures provide some indication of value for present purposes. Inherently, buyers and sellers in this market do not possess perfect knowledge of purity, additives, precise weight and other factors which ought to affect price in a transparent market. The accused gave evidence of the acquisition of cocaine for the sum of $20,000.00 prior to the execution of the warrants for which he made a partial payment of $10,000.00 to $12,000.00.
45. No value was given to the cannabis found. The Crown indicated that the only significance to be attached to the finding of cannabis is that it added to the variety of drugs on hand. (There was no application to exclude this evidence.)
46. I accept that the value of the drugs in question is such as to reasonably support the inference that the accused was a dealer in drugs.
47. The issue of the typical security concerns of drug dealers was invoked by both sides. The Crown called attention to the fact that the "office" was locked and the car in question was locked. Counsel for the accused regarded this as inadequate for an actual dealer in the circumstances. One could have expected, so the submission went, heavy padlocking or security measures, CCTV or roller shutter doors. What occurred, it was submitted, was inconsistent with a drug dealer concealing his stock in trade and consistent with the haphazard approach of a drug addict concealing his habit from his wife. Related to this, was the fact that drugs were kept, as was drug "paraphernalia", in a bar fridge with a clear glass door.
48. On this issue and in the particular circumstances proved, I accept that there are good arguments each way. However, the security measures that were implemented were not inconsistent with selling drugs.
49. Another circumstance was embraced by both sides. The drugs in question had come either from different sources, or had been mixed to different purity and with different additives. I am not persuaded by the evidence that the accused himself mixed drugs to a desired level of purity to on-sell. He may have done so but there is insufficient evidence to make such a finding. The evidence is consistent with the accused obtaining supplies of drugs from various sources. Although it could well be argued that a very high purity of some drugs may indicate a high level dealer, I do not regard that argument as helpful here. Lower purity drugs can be bought and sold. There is no reason to believe that the drugs in the accused's possession were not capable of being traded or even unlikely to be traded. The Crown does not make a case that the accused was "higher up the supply chain". The case made is of a drug user also selling drugs.
50. The Crown relied upon the packaging of the drugs found in the car, 7.159 grams of methylamphetamine, being approximately two typical "eight ball" street deals. It also relies upon the eight clip seal bags found in the fridge each containing a typical street deal of one gram of cocaine. I do not think that the evidence as to packaging is otherwise than equivocal. It is as consistent with buying those drugs in that packaging as it is with repackaging the drugs for sale. Similarly, by the packaging alone, the separate bags of MDMA and cocaine are equivocal although not inconsistent with the selling of drugs.
51. However, the packaging of the drugs found has an immediate connection with the scales found, the unused clip seal bags and a measuring cup.
52. Some further description needs to be given of these items particularly the scales. During the search of the accused's office, electronic scales were found and photographed in situ (Ex 9 Photograph 20) according to the police evidence. There is no evidence that the scales were tested. The scales were not seized despite having been listed on the warrant. No police officer called could explain this omission. As the Crown said in final address "[t]here are definitely parts of the police investigation in this matter that have something to be desired". Where the scales were found had potential significance. In a very tidy and organised office the scales were on the top of the desk in very close proximity to and just above the bar fridge.
53. The accused gave the following evidence under cross examination -
And those scales were sitting on the top of - on your desk?---I honestly do not remember seeing those scales sitting there.
So where do you remember those scales were?---I can't even remember the last time I saw those scales, to tell you the truth.
You can't remember when you last saw those scales?---I think they were in the bottom drawer underneath the table there.
So I take you to photograph 22?---Photo 22. Yes.
And you can see there the photograph there. There's some scales there. You see those?---Yes, I do.
Do you say that those scales were not in that position?---I do not recall - - -
On the morning of that search warrant?---I do not recall seeing the scales there at the time.
When was the last time you used those scales?---To my knowledge they weren't working at all.
But you had them?---Sorry?
You had the scales?---They were there.
So you say it wasn't working. When was the last time they were working?I do not recall.
So can you recall ever using those scales?---No, I don't recall ever using those scales.
So are you saying to his Honour that you have never used those scales?Your Honour, I'm telling you I don't remember the last time I used those scales, or if they were - - -
That's different to have you ever used them. Do you recall ever using them?No, ma'am, I don't - - -
Never?--- - - - remember using those scales.
HIS HONOUR: Can I ask what the scales were used for?---Those scales?
Yes, those scales?---I don't remember using them. I never used those scales.
How would they have gotten into the place where - well, presumably into your office?---From - it could have been - I'll be just speculating, your Honour. I don't remember. I don't remember seeing them there, I don't remember even using them ever. And that's - - -
MS CAMPBELL: Now, if I can take you to photograph 20?---Yes.
That's a photograph of your office?---Yes.
You'd agree?---Yes.
You'd agree it's fairly tidy and organised?---Yes, that's correct.
54. I did not think the explanation for the presence of the scales was credible. That does not necessarily mean that the accused used the scales in selling drugs. He may have used the scales for his own drug taking or to check weights of drugs purchased for his own consumption. If per-chance the scales were not in working condition on the actual day of the execution of the warrant, that position is unlikely to have been the case for any great length of time.
55. The measuring cup and unused clip seal bags were suitable for use in measuring out and packaging drugs.
56. I accept that the scales found, the unused clip seal bags and the measuring cup are such as to reasonably be regarded as supporting the inference that the accused was a dealer in drugs.
57. The Crown also relied upon the money found in the course of the execution of the search warrants as being the proceeds of the sale of drugs. There are a number of aspects to consider. The first is whether the Crown has shown that there was no source of money available to the accused other than from his drug dealing. A considerable amount of financial information was tendered concerning the business affairs of the accused. The Crown, however, undertook no great detailed analysis of this information and did not call additional evidence which may have narrowed the accused's possible sources of money. As a result, I have concluded that it is not possible to rule out the possibility that the accused did have available to him, out of the proceeds of his business, the amount of money found in the execution of the search warrants. The accused gave evidence that he obtained money in cash from the bank for his business as well as from "love jobs" and that he carried that cash with him in the ordinary course of his business for business purposes. I will return to this topic in the course of discussing the evidence of the accused.
58. But it is not just the amount of money that is significant for present purposes. The Crown, of course, relied on the form of the cash found as being consistent with being the proceeds of sale of drugs. This submission needs to be evaluated together with the other items found having an immediate connection and location to this money. It will be remembered, for example, that drugs were found in the "G-Star", satchel. This satchel also contained $1550.00 in cash. This cash was made up of 23 $50 notes and four $100 notes.
59. It will also be remembered that the sum of $5,880.00 was found in the accused's work pants consisting of 114 $50 notes, 7 $20 notes, 3 $10 notes and 2 $5 notes.
60. Photographs of the money in situ do not indicate that it came directly from a bank to the accused, in that the notes are not lying flat with one neatly on top of the other and the denominations are mixed. Rather, the collection of notes gives the appearance of having been accumulated in a rough pile at different times. The circumstance that the money did not appear to come directly from a bank to the accused, by itself, is a neutral factor to my mind. There are many possible explanations to account for the appearance of the notes.
61. I accept that the money found in the accused's work pants and in the "G-Star" satchel is such as to reasonably be regarded as supporting the inference that the accused was a dealer in drugs. This inference is strengthened by the presence of the flick knife in the accused's work pants and the two electric control devices in the Lonsdale bag.
62. I also accept that the flick knife and the two electric control devices are such as to reasonably be regarded as supporting the inference that the accused had the stock of drugs on hand for the purposes of sale. I regard these items as being capable of providing protection or ensuring compliance in the conduct of the business of selling drugs.
63. There was also found on the execution of the warrants one .22 bullet in the Lonsdale bag, one 7mm bullet in the kitchen of the accused's home and 2 boxes of .22 bullets in the accused's tackle box. However, no firearms were found. I was not asked to exclude this evidence and the Crown drew my attention to Radi v R [2010] NSWCCA 265.
64. I also accept that these items are such as to reasonably be regarded as supporting the inference that the accused was a dealer in drugs.
65. I have not yet given an account of possibly the most important factor in this case. The accused gave evidence and was cross-examined. I remind myself that he did not need to do so. He called one other witness in his case.
66. Each of the matters referred to above, which may reasonably regarded as supporting the inference that the accused was a dealer in drugs, was capable of explanation consistent with the accused having the drugs in his possession for entirely his own consumption.
67. There were before the Court the explanations given by the accused himself during the execution of the search warrants as well as his sworn evidence. The Crown challenged this material directly, a summary of which challenge, is set out in the transcript of 7 August 2017. I interpolate to say here that although the accused's criminal record was before the Court, for other reasons, I regard that record as having no relevance to the determination of the issues in this case. Neither side contended to the contrary.
68. There is also another matter which I need to record. It is certainly the established law that the mode of reasoning applied in Jones v Dunkel (1959) 101 CLR 298 cannot ordinarily be applied to an accused in a criminal trial. The High Court has set out the reasons for this approach in Dyers v The Queen [2002] HCA 45; 210 CLR 285 (Dyers). All of the discussion in that case concerns a situation where the Crown bears the onus of proving its case beyond reasonable doubt. Here, I am concerned with the situation where the accused has actually taken up the task of discharging an onus of proof which has been cast upon him by statute. In evidentiary terms, I am concerned with whether an adverse inference is available from a failure of the accused to call a witness who might have been expected to support his case and thereby assist the accused in discharging the onus placed upon him.
69. The only case I have been able to find where this issue has been debated is R v Corish [2006] SASC 369; 96 SASR 207. A majority of that Court held that it made no difference that the accused bore the onus of proof on an issue and that the reasoning in Dyers still applied. I am not so sure that this decision will not be reconsidered in due course but I propose to follow it.
70. Accordingly, I direct myself that I must not speculate about what evidence a person may or may not have given if called by the accused to give evidence.
71. The accused's case is relatively straightforward. As I have recorded, he admits that he was in possession of trafficable quantities of drugs but says that the drugs were solely for his own consumption and that he was addicted to drugs at the relevant time and had been for many years. He was some 34 years old at the time of the execution of the warrants and he had commenced taking illicit drugs from the age of approximately 17. He gave a history of using different substances and said that by 2014 he was a drug addict in denial.
72. There is documentary evidence that in 2008 the accused consulted a medical practitioner for drug dependence regarding cocaine and gave a history of other illicit drugs used. The accused was admitted to South Coast Private Hospital under the care of Associate Professor Davies on 16 June 2016. On the basis of the history obtained, Dr Davies was of the opinion that the accused was a long term drug user and it was further his opinion that the accused suffered from an undiagnosed Attention Deficit Disorder. He surmised that the accused may have used illicit drugs to self-medicate.
73. The Crown's concession that the accused was an actual user of illicit drugs in 2014 does not require me to go further into the issue. It was not claimed, at the end of the trial evidence, by either party that the accused was not able to function in 2014. At that time he was running a construction business which undertook commercial fit-outs and residential projects and he had been doing so for some six years.
74. In his evidence in chief, after giving an account of his background, upbringing, family and drug taking, the accused referred to the fact that his phone, Ipad and computer had been examined by police. He also confirmed that he did not have the drugs in his possession for supplying to others. I add here for completeness, that it was not alleged by the Crown that there was any evidence of unexplained wealth or lifestyle.
75. The accused was then cross-examined for some time on the circumstances relating to and surrounding his possession of the drugs and other items of interest, what he had told police upon the execution of the warrant, as recorded in MFI 2, and his own acquisition of drugs and drug taking. He was challenged on his accounts of all these matters. It was not, however, put to me that any given answer or explanation was itself a deliberate lie on a material issue told out of a consciousness of guilt perceiving that the truth is inconsistent with his innocence and where the lie is exposed by admission or other evidence from other than the accused (Edwards v R [1993] HCA 63; (1993) 178 CLR 193, Zoneff v R [2000] HCA 28; 200 CLR 234, see also R v Lane [2011] NSWCCA 157; 221 A Crim R 309).
76. I direct myself that there may be many reasons for the telling of a lie apart from the realisation of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence.
77. I also direct myself that I am fully entitled to take account of any reluctance on the part of the accused to answer questions responsively, and take account of variations and inconsistencies between his answers.
78. Whilst doing so I make allowance for matters such as miscommunication, the passage of time and the fact that being confronted by police executing the search warrants at one's home in the early morning and being cross-examined in the witness box by the Crown Prosecutor, are both stressful and unfamiliar situations.
79. There were a number of explanations given to the police and number of answers given in the witness box which diminished the credibility of the accused's answer to the counts.
80. As recounted above, police officers arrived at the accused's home in possession of four search warrants. One of these search warrants gave permission to search a Hilux utility with the number plate MEK although this car was not registered in the accused's name. Seeing the car parked outside the accused's premises, police officers determined that they would search it. Commencing at Q192 police show the accused the fourth warrant and he read it. That warrant is in evidence and authorises a search for, amongst other things, drugs, ammunition and money.
81. Commencing at Q 196, the accused was asked a series of questions.
Q196. Is there anything listed on that search warrant that's inside that vehicle?
A M. NCHOUKI: Um, not that I'm aware of sir.
Q197. That you're aware.
A M. NCHOUKI: Nuh.
Q198. Can you explain to me - I'll remind you to sorry, that the caution still applies, that you do not have to say or do anything, but anything you do say or do maybe used in evidence. Do you understand that Mohammed?
A M. NCHOUKI: Yeah mate, yeah.
Q199. Now just with this car, is there anything in this car that's listed on the search warrant?
Q200. Yeah.
A M. NCHOUKI: Whatever you find in it, obviously it's not mine.
Q201. So when you say it's not your car, who owns it?
A M. NCHOUKI: Ah, um, my boss.
82. Questions about the ownership of the car were then asked. At Q220 a further series of questions was asked.
Q220. And how long have you been driving this car for?
Q221. No worries. With that car there, what have you got in it that's yours?
A M. NCHOUKI: Just a bag dude.
Q222. What's the bag?
A M. NCHOUKI: Just my ah, just a duffel bag, just like a - just like gym stuff in it.
Q223 What colours that?
A M. NCHOUKI: Just a black bag.
Q224. Black bag. It hasn't got a brand?
A M. NCHOUKI: Ah, Lonsdale.
Q225. Lonsdale?
A M. NCHOUKI: Yeah.
Q226. And anything else in the car?
A M. NCHOUKI: Nuh, that's it, yeah.
Q227. And whereabouts is that duffel bag?
A M. NCHOUKI: Should be in the back seat I think.
Q228. Back seat?
A M. NCHOUKI: Yeah.
Q229. No worries. Is there anything else that we need to know about that car?
A M. NCHOUKI: No mate, not that I'm aware of man.
83. At Q280 further questions were asked about this car.
Q280. Well do you know where they are, the Hilux keys?
Q281. What colour are your work pants?
A M. NCHOUKI: Um, they're like a kaki colour, underneath the sink, open upthe sink
and - - -
O'MAHONY:
Q282. All right. I've forgotten where I was, I'm just resuming this record of search warrants on the twenty-sixth, Wednesday the twenty-sixth of November, two thousand and fourteen.
A M. NCHOUKI: Yeah.
Q283. I remind you Mohammed, that the caution still applies, that you do not have to say or do anything, but anything you do say or do maybe used in evidence. You understand that Mohammed?
A M. NCHOUKI: Yeah, fine.
Q284. Now you just made a comment about the Hilux?
A M. NCHOUKI: Yeah.
Q285. Can you tell me what you just said before?
Q287. Yeah.
A M. NCHOUKI: That's all I'm saying.
Q288. And how will it be in bag?
84. Thereafter, the car was searched and the two bags with the items of interest (money, drugs, electric control devices and the bullet) were located, and ownership of those items was conceded by the accused.
85. I regard as completely untrue the accused's initial answers to the police questions as to whether the items listed on the search warrant were in the car, and whether he owned those items. The subsequent partial admission, immediately prior to the search but after the keys were to hand, shows the accused's knowledge. No explanation was given by the accused in his evidence explaining these initial answers. The fact that his initial answers were untrue, does not necessarily mean that the drugs were in the possession of the accused for sale. The accused may have misled police, for example, simply to try to dissuade them from searching the vehicle.
86. In paragraphs [102]-[109] below I have set out matters relevant to the issues in Count 4 including the accused's explanation of finding two electric control devices and then how and why they came to be in the bag he carried everywhere with him when he believed that the items were inoperative. I do not believe his explanation to be credible.
87. The accused gave a similar explanation regarding the flick knife found in his work pants together with the sum of $5,880.00. He said -
Q584. I'll just get your attention to an item here.
A M. NCHOUKI: Yeah.
Q585. Describe to me what you see without touching it?
A M. NCHOUKI: Yeah, just a knife.
Q586. Yeah.
A M. NCHOUKI: Yeah.
Q587. What can you tell me about it?
A M. NCHOUKI: Um, it's black, it's got a button on it, and yeah it's a knife.
Q588. Who's the owner of this knife?
A M. NCHOUKI: Ah, I guess yeah, I mean I've had it for a while.
Q589. Yeah.
A M. NCHOUKI: I won't kick your tyres, fuck I've had it for a while man.
Q590. How long have you owned it?
A M.NCHOUKI: Ah, it was in one of my old box trailers and I've just kept it.
Q591. Yeah.
A M. NCHOUKI: I know I shouldn't have it but, yeah.
Q592. So you're aware - so just with that Mohammed, are you aware you're not supposed to have it?
A M. NCHOUKI: Yeah, well, you know yeah.
Q593. Yeah. Whereabouts did you get it from?
Q594. Okay.
A M. NCHOUKI: Yeah, because obviously I got like nine different cars.
Q595. Yeah.
Q596. Yeah.
A M. NCHOUKI: Yeah.
Q597. And whereabouts did you have it stored?
Q598. Okay. The item my understanding is it was located inside the pants.
A M. NCHOUKI: Yeah.
Q599. Yeah.
A M. NCHOUKI: Yeah.
Q600. What can you tell me about that?
A M. NCHOUKI: They're my work pants.
Q601. Yeah.
Q602. Yeah. And when was the last time you would have used it?
Q603. Is it.
A M. NCHOUKI: Yeah.
Q604. So when was the last time you would have touched it?
A M. NCHOUKI: Um, I cut some plastic yesterday when I was tying up the gate.
Q605. Yeah.
Q606. Okay. As you're aware it's a prohibited item.
A M. NCHOUKI: Yes.
88. I do not believe this explanation to be credible.
89. During the cross-examination before me the Crown endeavoured to examine the relationship between the accused's consumption of drugs as at November 2014 and his sources of funding for those drugs. The accused was evasive and non-responsive in his answers. He clearly had an insight into the implications that arose and in particular also knew that the amount of drugs found in his possession had to be reconciled with his drug taking and sources of funding. An example of this is found in the transcript of 19 April 2017:
So it's not the case that you had to scrounge around trying to find a dealer?
You didn't have to sort of try and go out and find a dealer; you knew the dealers?---Yes.
Yes, and you would - so how much money would you spend in a week on goey?---Well, it always varied, ma'am.
Well, tell me the point from what it might vary between?---Well, my daily use - sometimes I would buy it every two weeks, sometimes I would buy it every week, sometimes I'd buy it every month. It (indistinct) It was (indistinct) - - -
So let's say you're buying a week's supply?---M'hm.
And how much would you pay for that week's supply?---I don't recall.
You don't recall how much you were spending?---No, I don't recall how much I spent on drugs.
HIS HONOUR: Well, do you want to have a think about that because as far as I can determine, the evidence is that you have been taking drugs for a very long time?---Yes.
And you've said you have some regular suppliers?---Yes.
Now, I would have thought you'd be able to give the Crown prosecutor an indication of how much you spent on drugs - - -?---Yes. A lot.
- - - given that background?---Okay.
So do you want to just think it over in your mind?---Yeah. Give me a minute. Be about $1000 a week on - a thousand to - anywhere from a thousand to $2000 on speed.
MS CAMPBELL: A week?---Oh, it could stretch over a week and a half approximately.
So what about cocaine? How much would you spend on a week?---It was about $700 a day.
Seven hundred dollars a day?---Habit, yeah. $800, sometimes more.
And so - - -?---Sometimes $2000 a day.
90. Another example of the accused giving evasive answers is seen in the transcript of 19 April 2017:
Now, do you recall when you purchased those items, those two cocaine bags?---I do remember the one in the middle, I purchased it approximately two to three days before.
How much did you pay for that?---I can't give you an exact estimate, approximately - - -
You paid for it by cash?---I paid for it - it was partial payment.
Partial payment?---Mm'hm.
So how much did you have to pay for the partial payment?---I can't give you an exact amount, it would have been a partial payment.
What's the estimate?---It would have been - it would have been probably half.
Half of what you were owing?---Yes, that's correct.
So what was that amount of money?---I don't remember.
Can you make your best estimate?---No, I can't.
You can't say what you paid for at that time?---To give an estimate would have been around probably $10,000, $12,000 something like that.
To buy that?---At the time and the rest would have been partial payment.
Just so are you saying all-up it was about $10,000 to $12,000 and you only put in a partial payment of that?---No, it would have cost me probably around the 20 grand mark, probably a little bit more, and I was required to pay the half and the rest I'll pay it off until the next time - - -
91. From the point of view of the accused, it could be said that there was good reason not to answer this question, if at all possible. The cocaine that the accused said he purchased, was very valuable according to both Sgt Scott's and his own testimony and there was no withdrawal of money reflected in the accused's banking records to account for the payment of even $10,000.00 to $12,000.00 at the relevant time, a matter later acknowledged by the accused. The accused explained that the $10,000.00 to $12,000.00 was money he kept at various places and had been accumulated out of bank accounts whenever possible. He explained:
And you paid about $10,000 to $12,000?---Yes.
There's no deposit - I mean, sorry, withdrawal - be it by online or cash - from those two accounts for that type of money?---Yes.
So where was that cash?---I have always had - I've always had the practice of always keeping money.
So you're telling the court that you have a practice of keeping $10,000 to $12,000 just spare?---That's correct.
Hanging around the house?---Not around the house.
Whereabouts is it kept?---I'll keep it at different places. As I needed it, I'd see fit, I would take it from there.
Well, different places where?---Either I would leave it at my brother's place or I would hide it so my wife wouldn't know about it and I just had it there for when I needed it. I'd accumulate it. Every time where I could sneak money out of the accounts, I would at any chance.
92. The Crown Prosecutor returned to this point on 7 August 2017:
You tell the court that you had the money to pay this $20,000 of drugs each month?---Sometimes, yes.
You'd been putting money away at other places?---Sorry?
You have stored money, cash at other places, hadn't you?---I don't remember.
You don't remember what, that you had other cash at other places?---I dare say I would because yeah.
Did you have cash at other places?---Yes.
Yes. You had cash where?---Sorry>
Where did you have this cash stored?---I dare say it would be with a family member.
A dare say, what is your evidence? Not I dare say?---I would leave my cash with someone that I would trust.
Okay, and who was that?---I can't exactly, have an exact recollection.
You can't remember who you would stash $10,000 with?---Yeah, like I said it would be either my brother, possibly my sister.
You're just making that up as you're going along aren't you, Mr Nchucki? ---No.
Because on that last occasion you told the court that you had stored money with your brother. That's right?---I'd say so, yes.
So it's either you remember it or you don't rather than just guessing. Where was this money kept?---I'm not guessing, I just want to give the right answers like if I said I left it with my brother, yes, I left it with my brother.
HIS HONOUR: Mr Nchucki, the reason you gave $10,000 to your brother, for example, was what? What was the reason?---The reason? I guess I just kept it in a safe place, just if I needed access to money without it, I could just ask him for it and get it and have it easily available if I needed it.
You didn't think you could keep it yourself?---I could but your Honour, I think it's just more of a mechanism for me just if I give him the money he holds onto it if I need it. I can just work with it that way. Pay for drugs when I need it and not, you know, ring up some other family members or in the business, you know, without ringing too much alarm bells. Just keep it quiet just for my drug use and if I needed money I would just say, make up something that I need some money and he would no questions asked just give it to me and I can pay for drugs that way as opposed to giving it to my wife where she'd ask questions.
94. There were many more explanations and just answers that I was unable to accept. It is difficult to capture or reproduce these explanations and answers in a way that will convey my unease. Before me the accused was not attempting to answer the questions put in cross examination honestly and in a straight forward manner. I have kept in mind the direction to myself in paragraph [76] above and also the fact that the rejection of a person's account of events does not necessarily involve an acceptance of the contrary (Edwards v R [1993] HCA 63; (1993) 178 CLR 193 at 208, citing the seminal discussion in Steinberg v FCT [1975] HCA 63; (1975) 134 CLR 640).
95. Having seen the accused over an extended period in the witness box, I am sure that his testimony, including his estimates of his own consumption of drugs and his expenditure on drugs was given to fit, as best he could make them, the objective facts found upon the execution of the warrants and the financial records in the hands of the Crown Prosecutor. I am conscious that my findings on credit have, at least to some small extent, been influenced by the accused's demeanour in the witness box. That demeanour has confirmed my reasoning from the objective facts, from what the accused has said and testified to, and from the circumstances of the case.
96. As can be gathered from my discussion of the accused's case above, there is a substantial issue on credit. Some other factual matters are in the accused's favour. The examinations of the accused's telephone, Ipad and computer revealed, (apparently, for there is no evidence to the contrary), everyday activity. There was no unexplained wealth or lifestyle. There is no direct evidence of supply. The accused was addicted to drugs at the relevant time and so had a reason to use them. He had employment and a source of income. It is also necessary to take account of the security under which the drugs were kept.
97. The evidence of trafficking in drugs derives from the accused being in possession of the implements or accoutrements of the trade of a drug dealer. The items found on the execution of the search warrants could reasonably be regarded by the trier of fact as supporting an inference that the accused was a dealer in drugs.
98. I have set out above what was found in the possession of the accused and the circumstances in which it was found. There was no disagreement between the parties.
99. I give weight to the value of the drugs, even if it is only an approximate value. I also give weight to the fact that three different drugs are the subject of the counts. I give substantial weight to the combination of the finding of the money together with the flick knife in the accused's work pants. The same substantial weight should be accorded to the combination of the finding of the drugs, money and electric control devices in the car, as well as the combination of the finding of the drugs, unused packaging, a measuring cup and scales in the office. Although the finding of ammunition is certainly relevant to the issue, in circumstances where no firearm was found and where no identified firearm was connected in some way to the ammunition, it is of lesser weight to my mind and may not necessarily be connected to the enterprise.
100. I have dealt with some of the evidence and arguments against these contentions in the course of my reasons above. I emphasise that I do not agree that there is a sufficient factual basis to conclude that the accused cut and mixed drugs as opposed to merely measuring out drugs. I do not agree that the finding of the money in the circumstances in which it was found lacks significant probative value merely because the accused had a source of funds from his business.
101. I have concluded in all three Counts that the accused has not discharged the burden on him of proving that he had the drug in his possession other than with the intention of selling any of it.
102. Counsel for the accused conceded that the sole issue in Count 4 was whether the two items described in the indictment answered the relevant description in Part 1.4, Item 4 of Schedule 1 of the Prohibited Weapons Act 1996 (ACT). That description is as follows:
Example - hand-held electric device
a taser self-defence weapon
Examples - other electric device
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
103. A number of matters were not disputed. The two items were relevantly identical. They were recognised by Ms Green from the AFP Firearms Identification and Armoury Team Forensics as hand-held devices and not as pieces of medical equipment or electric prods. The items were controlled by a number of switches which could be operated in various combinations. One such combination produced, under testing, the illumination of a rectangular red light and an arc of electricity jumping between the probes, along with an audible electric crack. A photograph of the arc produced was in evidence. The witness gave evidence that no test is done on items of this nature for forensic purposes because the test itself is a workplace hazard for the examiner. However, the witness gave evidence of her training and familiarity with electric control devices and their functions. Ms Green regarded these two items as electric control devices that inflict a shock and which are used as a control mechanism or a compliance device. Necessarily, the probes must be in contact with the skin to administer an electric shock. In cross examination, counsel for the accused asked Ms Green -
Q. [...] When the electric current passes between the two sideways facing prongs firstly, does the current extend up and beyond the probes or pins as we've been describing them?
A. I couldn't say with certainty if that was the case, as I didn't note that on my observations.
Q. If the current were caused to jump between those sideways facing prongs but the pins were in contact with an animate object, a human or an animal, would that human or that animal necessarily receive an electric shock?
A. I couldn't answer that without testing it.
104. I take this cross-examination into account as having a necessary relationship to the precise fact in issue, namely, whether the items are designed to administer an electric shock on contact. The fact that no testing was done on an aspect of the items in question (albeit for good reason, it seems) opens up a potential gap in the process of reasoning to determine whether the Crown has proved, beyond reasonable doubt, that the items match the statutory definition.
105. Viewing the two items, together with the evidence of their functions when regard is had to the various switch positions, it is difficult to believe that the design of the items can be other than for the administration of an electric shock on contact. There is some confirmation for this. The items in evidence are marked "3800 VOLT, 800 TYPE, Direct - current ultrahigh voltage" with a label which may reasonably be supposed to have been attached in the course of a business and for the purpose of describing or stating the nature of the items (Evidence Act 2011 (ACT) s 70).
106. The accused told the police that he found the two items on a building site. According to the accused, the items would not work after he "played" with them. He said that he had initially thought they could be lasers or belong to "sparkies" who had dropped them. He was then asked by police-
Q 379 And what's it used for?
A It was in a bag, I don't know electric shock, shock mother fuckers I guess.
Q So it's kind of like a- like a taser, electric shock device?
A I think so, I think so yeah.
107. By itself, I would give this admission limited weight, upon the reasoning that the strength of an admission to smoking cannabis depends upon a familiarity with cannabis. However, I find that the items "worked", at least for some purposes when tested on 10 December 2014 and I conclude that the presence of the two items on 26 November 2014 in two separate compartments of the Lonsdale bag indicates that it is more likely than not that they had been pressed into service or were to be pressed into service, in some way as electric control devices. That bag contained earphones, personal deodorant, an Ipad, gym items, a hair brush, a bullet and Panadeine Extra. The accused was asked the following questions concerning why the items, which he described as inoperative, were in his Lonsdale bag, a bag he apparently carried everywhere-
Right. So you put them in your bag and you decided that you'd put one in one pocket - a zippered pocket, and one in the other zippered pocket?---I can't exactly remember why or what was the reason for that.
So if you were just keeping them you would have just tossed them into your bag together, wouldn't you?---No, I can't answer that. I don't have an explanation for that now.
But you agree they were both in two different separate pockets in that Lonsdale bag?---Um
I can take you to Photograph 7?---Yes.
Photograph 7 shows the end pocket of the Lonsdale bag?---Yes.
You can see there beside the (indistinct) cone the top of that Taser-like device. Yes?---I can see the device underneath the Versace case, that's right.
So there was no need for you to keep those devices in your bag, was there? ---There was no need?
Yep?---Can you ask that in another way? Rephrase the question.
This was a bag that you carried everywhere?---Yes.
You took it everywhere, you say?---That's correct.
You don't need to take these Taser-like devices around with you all the time, do you?---No, ma'am.
But you did?---From photos they're in there, yes.
108. It is probable that the accused had an insight into the functioning of these items, and his admission, recorded above, is entitled to some weight in the proof of the case against him.
109. I have concluded that the items in question are hand-held electric devices designed to administer an electric shock on contact. They are not items of medical equipment and they are not electric prods designed to be used exclusively with animals.
Principles of law applied and the findings of fact relied upon
110. Pursuant to s 68C of the Supreme Court Act 1933 (ACT) I am required to set out the principles of law I have applied and the findings of fact on which I have relied. I am also required to state any warning, direction or comment that I am required to take into account.
111. The admissions, properly made by the accused in this case, make it unnecessary to set out some standard directions.
112. As well as the principles of law stated above, I have applied the principles below.
113. As the tribunal of fact as well as the judge of the law, I must find the facts and draw the inferences from them as well as apply the law to the facts as I find them. I must bring an open mind to the evidence and view it dispassionately, and not let emotion enter into my decision. Both the Crown and the accused are entitled to a verdict free of partiality, prejudice, favour or ill will. The verdict that I deliver must be in accordance with the evidence.
114. I must determine whether a witness is accurate, honest and reliable. I can accept part of the witness' evidence, reject part of that evidence, or reject or accept the totality of that evidence.
115. I must determine the facts in accordance with the evidence and I may use my common sense, experiences and wisdom in assessing that evidence.
116. The accused is convicted on the four Counts of the indictment to which he pleaded not guilty.
117. On his plea of guilty, the accused is convicted on Count 5 of the indictment.
118. Order that the matter stand over to a date to be fixed for sentence.
I certify that the preceding one hundred and eighteen [118] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson.
R
Nchucki [2017] ACTSC 287
(1993) 178 CLR 193
(1959) 101 CLR 298
(1975) 134 CLR 640
MS CAMPBELL: So you kept it with him to keep it safe?---Not keep it safe, more have it readily available when I needed it.
So you didn't think to put it in the bank?---Sorry?
You didn't think to put this money in the bank?---No.
Why not?---Because I'm going to be drawing out a lot more money for drugs and then that would obviously, my wife would ask or my, the people that worked with me, the company would ask where the money was going.
But you had your own personal account, didn't you?---Yes, I do have a personal account. That's correct.
In fact, the evidence that you gave last time was that your wife didn't have access to those accounts?---That's correct.
So she wouldn't know what's going in and out of that account?---She did to a certain extent.