The Queen v Martin [2018] NTSC 19

[3] On 19 April 2017 the accused drove from Katherine to an unknown location in Darwin city in a red Hyundai Xi35 hatchback registration number CB99BX belonging to his mother-in-law. Ernest Braun, Codey Stretton and Warren Camfoo travelled with the accused. The accused and his passengers checked into an unknown room into the city and stayed there for about half an hour. Michal Phillips picked up Braun from the room and they were gone for about 20 minutes before Phillips dropped Braun back to the room.

[4] The accused and his three passengers then went to Graham Quintrell's house in Palmerston in the red Hyundai. After about 20 minutes, Michael Phillips arrived at Quintrell's house in a White Toyota Land Cruiser. Braun entered the front of Phillip's vehicle with a blue and black backpack. He got out of the vehicle with the backpack 2 or 3 minutes later.

[5] The accused then drove from Quintrell's house in the red Hyundai towards Katherine. Braun was seated in the front passenger seat, Stretton was seated in the rear passenger side, Camphoo was seated in the middle of the rear seats and Quintrell was seated on the rear driver's side. While inside the vehicle, Braun showed Stretton the blue and black backpack which contained cannabis. Stretton opened the bag and saw the cannabis inside.

[6] At about 6:53pm, the vehicle pulled into a check point established by police inside a Drug Declared Area at Adelaide River. Police directed the accused to pull into an inspection bay and screened the vehicle with the use of a drug detection dog. During the search police located a blue and black backpack in the rear passenger seat side foot well that was found to contain two cryovacced packages containing a total of 903.6 grams of cannabis plant material. Approximately 300 clip seal 'deal' bags were also located in the centre console of the vehicle. After police located the cannabis, Braun attempted to take full responsibility for the cannabis claiming that it was all his.

[7] The accused and his passenger were arrested and taken to the Darwin Watch House. The accused participated in a record of interview denying his involvement in the offence. The amount of the cannabis located is a commercial quantity and would have a value of between $10,000 to $12,000 if sold in Darwin, or if sold in Katherine would have a conservative street value of $27,240.

[8] The Crown has served a co-incidence notice, pursuant to s.98 of the Act in respect of which the Crown intends to lead further evidence at the trial, in order to prove that the accused did a particular act, namely transported the commercial quantity of cannabis plant material, and had a particular state of mind, namely knowingly possessed the commercial quantity of cannabis plant material on the 19th April 2017.

[9] The further evidence consists of three previous occasions when the accused was in a motor vehicle with other passengers in the Katherine area when, on a search of the vehicle, cannabis was located.

[10] The first occasion relied upon occurred on 28 February 2017. The accused was a front seat passenger in a Mitsubishi Pajero being driven by Tania Holtze. Also in the vehicle was Graham Quintrell, Sandra Martin and the accused's child. Police stopped the vehicle travelling south from Katherine at a vehicle check point on the Stuart Highway at the Tindall RAAF Base turn off. Police located a large clip seal bag of cannabis packed into ice inside a blue cooler bag on the rear passenger floor. The cannabis weighed 20 grams. Both the accused and Quintrell admitted co-ownership of the drugs. The accused was later convicted and a fully suspended sentence of imprisonment was imposed.

[11] The second occasion relied upon occurred on 29 January 2016. On this occasion the accused had driven a silver Holden Captiva from Katherine to Darwin with Joshua Page. After their arrival, Page sourced a quantity of cannabis and methamphetamine, and placed the cannabis in a disposable cup which he wrapped black electrical tape around in the accused's presence. The accused then drove back towards Katherine. At about 6.35 am he was stopped at the corner of Emungulan Road and the Stuart Highway, approximately 2km north of Katherine. The vehicle was searched. Police located a burnt ice pipe in the waistband of the accused's shorts, the package containing 49.81 grams of cannabis in two clip seal bags inside Page's shorts between his legs, a pencil case in the front left passenger foot well containing about 1 gram of methamphetamine, 2 used syringes, and number of unused clip seal bags and AU$200. The accused was arrested and participated in an electronic record of interview in which he made admissions. He was charged and fined in respect of both the methamphetamine and the cannabis.

[12] The third occasion relied upon occurred on 22 October 2015. On this occasion the accused was the driver of a Toyota Prado travelling toward the Barunga Community. His passengers were Graham Quintrell and Kerryn Rosas. Quintrell was seated in the rear directly behind the front seat passenger, Rosas. The vehicle was stopped by police at about 11 pm about 2 km from Barunga . on searching the vehicle, 7 clip seal bags each containing approximately 1 gram of cannabis were located in a cigarette packet found in the passenger side rear seat pocket directly in front of where Quintrell had been sitting. The accused and his passengers denied any knowledge of the cannabis. A prosecution was brought but later discontinued. At this time, s.40 (1) (c) of the Misuse of Drugs Act provided that proof that a dangerous drugs was at the material time in or on a place in which the person was concerned in the management or control is evidence that the drug was in that person's possession unless it is shown that the person then neither knew nor had reason to suspect that the drug was in or on that place. This Court had held that this provision created only an evidentiary presumption which, if not rebutted, may, but not necessarily must, lead to an inference of guilt[1].

[13] The Crown case at trial relies heavily on s.40 (1) (c) of the Misuse of Drugs Act as it now stands, after it was amended by the Misuse of Drugs Amendment Act 2015, s.8 (2). The present formulation provides that proof that a dangerous drug was at the material time in or on a place in which the person was concerned in the management or control is taken to be proof that the drug was then in the person's possession unless the person proves that the person then neither knew nor had reason to suspect that the drug was in or on that place. As Kelly J observed in The Queen v Gjonaj[2] the practical result of the provision is that, if the Crown can prove that the accused was the driver of the car, the evidentiary onus will switch to the accused to prove, on the balance of probabilities, that he did not know the cannabis was there, and had no reason to suspect it was there. If that onus is not discharged, the jury will inevitably find that the accused was in possession of the cannabis, and as he was the driver of the vehicle in which the cannabis was found, may also find that the accused was intentionally supplying the drug, in accordance with the extended definition of "supply" contained in s.3 (1) of the Misuse of Drugs Act, which includes to transport a drug, whether or not for fee, reward or other consideration. The purpose of the co-incidence evidence is to call evidence to rebut any suggestion by the accused that he neither knew nor had any reason to suspect a dangerous drug was in the vehicle.

Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless:

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

1. On three prior occasions, the accused has been in a vehicle with at least one other adult that has been searched by police and found to contain dangerous drugs. This is the fourth occasion where the accused has been in a vehicle, is not the sole occupant, and the vehicle contains dangerous drugs;
2. On two previous occasions the accused was in a vehicle with Graham Quintrell that was searched by police and found to contain dangerous drugs. This is the third occasion where the accused has been in a vehicle with Graham Quintrell containing dangerous drugs.

[16] In relation to the circumstances in which the events occurred, I note that on the Crown case, on two previous occasions the accused was the driver of a vehicle in which dangerous drugs were found when the vehicle was searched by police. On this occasion he was the driver as well. I also note that on two of the three previous occasions the accused admitted to ownership of the drugs and pleaded guilty to charges of unlawful possession of the drugs. On the occasion this is also relevant to the probative value of the evidence sought to be adduced.

[17] Counsel for the accused submitted that the proposed certificates of conviction which the Crown seek to tender are inadmissible because of s.91 (1) of the Act. However, that provision only applies if the purpose is to prove the existence of a fact that was in issue in that proceeding. The fact that the accused pleaded guilty is sufficient to prove that there was no issue in that proceeding as to his guilt and as to the circumstances of the offence on which the plea was based. .However, there would need to be evidence of the plea and the facts led at the hearing in respect of which the plea was accepted. It is not necessary to take this matter any further at this stage.

[18] The first issue is whether the evidence gives rise to an inference based upon the similarity between the events that it is improbable that the events occurred by co-incidence. On the occasion of the events on 27th February 2017, the cannabis was found in the cooler bag. Both the accused and Quintrell admitted to ownership of the drugs which were not in view, located in the back of the vehicle where Quintrell was sitting. The accused was not the driver on this occasion. On the occasion on 29th January 2016, the cannabis was located inside Page's shorts between his legs. The accused was the driver. Quintrell was not in the vehicle. The accused made admissions. On the third occasion, it was located in the rear seat pocket directly in front of Quintrell. Again the accused was the driver. On this occasion no admissions were made. In relation to the facts the subject of the Crown case, the cannabis was located in the rear passenger side foot well nearest where Cody Stretton was sitting. Quintrell was also in the back seat behind the driver, who was the accused. The question is whether the events were sufficiently similar to draw the inference that it was improbable that the events occurred by co-incidence such that the inference may be drawn that accused did not have reason to suspect that there were drugs in his car.

[19] Counsel for the accused drew attention to the fact that in order for the Crown to prove its case, the Crown would need to call Braun as a witness. If this is so, Braun's evidence at the committal hearing, which consisted of his record of interview with the police, indicated that he and Cody had arranged the purchase of the cannabis between them and that the accused had nothing to do with it. Without going into detail, the effect of his evidence was that, so far as he knew, the accused knew nothing about the cannabis. The circumstances were that when the cannabis was collected by Braun, he returned to a house where the others were waiting and the cannabis, which was in the backpack, was put into the front passenger's foot well before the others got into the vehicle. There is no evidence that the accused saw this. Later, as the vehicle was being driven by the accused towards Katherine, he passed the backpack to Cody Stretton who was sitting in the rear near side passenger's seat. Whilst Braun's evidence, if accepted, would show that the accused was not told anything by him about the presence of the cannabis in his car, it does not prove, even if accepted at its highest, that the accused had no reason to suspect that there were drugs, probably cannabis, in the back pack. According to Braun, the others, including the accused, knew that he was "a big weed smoker". It would have been surprising if the accused had not noticed the back pack being handed over to Stretton, and it would not have taken a lot of nous for the accused to have guessed what was in it.

[20] Counsel for the accused also pointed to a number of dissimilarities in the evidence. These included the method of packaging of the cannabis, the quantities on previous occasions being relatively small, being less than a trafficable quantity in each case, and that on previous occasions the accused made admissions to the police when he was pulled over. It was put that the evidence goes no higher than that the accused has been in the past in a car where cannabis was present.

[21] I consider that the evidence proposed to be lead is such that, taken at its highest, it is improbable that the accused had no reason to suspect that there were drugs in the back pack, and that their presence on this occasion was not mere co-incidence. The contended similarities are not strikingly similar, but I nevertheless consider, when taking them together with the events relied upon in the Crown case, that they have significant probative weight.

[22] The next question is whether, in terms of s.101 (2) of the Act that the probative value of the evidence substantially outweighs any prejudicial effect that if may have on the accused. The prejudice is that the jury will become aware of the accused's criminal history to some degree, but the history is very minor. I do not think it at all likely to provoke some irrational, emotional or illogical response in members of the jury tasked to decide the issues at the trial. I think that any prejudice can be cured by an appropriate direction given by the trial judge.

[23] The evidence sought to be led by the Crown at the trial will be admitted into evidence.

[1] Carnesi v Hales [2000] NTSC 98; (2000) 117 A Crim R 363 per Riley J at 365 [8]; _Jaeger-_Steigenberger v O'Neill [2011] NTSC 42 at [31]; Wilson v Malogorski (No2) (2011) 30 NTLR 128 at 141 [59]-[60]; Grosvenor v The Queen [2014] NTCCA 5 at [30]- [31].

[2] [2017] NTSC 15 at 10