2020-06-05 R v Henderson (No 2) [2020] ACTSC 147



SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

|Case Title: |R v Henderson (No 2) |

|Citation: |[2020] ACTSC 147 |

|Hearing Dates: |2 – 5 June 2020 |

|Decision Date: |5 June 2020 |

|Before: |Elkaim J |

|Decision: |See [118] |

|Catchwords: |CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judge Alone Trial – Traffic in controlled |

| |drug other than cannabis – possession of property suspected of being proceeds of crime – drive |

| |while licence suspended – circumstantial case – whether the accused had actual knowledge of the |

| |presence of the drug – reasonable conclusion inconsistent with guilt – verdict |

|Legislation Cited: |Crimes Act 1900 (ACT) s 114C |

| |Criminal Code 2002 (ACT) s 603(7) |

| |Criminal Code Regulation 2005 (ACT) sch 1 |

| |Evidence Act 2011 (ACT) ss 18, 160 |

| |Public Health Act 1997 (ACT) s 135A |

| |Road Transport (Driver Licensing) Act 1999 (ACT) s 32(2) |

| |Supreme Court Act 1933 (ACT) s 68B |

|Cases Cited: |Filipetti v The Queen (1978) 13 A Crim R 335 |

|Parties: |The Queen (Crown) |

| |Grant Mathew Henderson (Accused) |

|Representation: |Counsel |

| |S McFarland (Crown) |

| |C Watson (Accused) |

| |Solicitors |

| |ACT Director of Public Prosecutions (Crown) |

| |Kamy Saeedi Law (Accused) |

|File Number: |SCC 221 of 2019; SCC 222 of 2019 |

ELKAIM J:

This is a judge alone trial pursuant to s 68B of the Supreme Court Act 1933 (ACT).

The accused is facing one count in an indictment dated 27 September 2019. The charge alleges that on 13 October 2018, the accused trafficked in a controlled drug other than cannabis, namely cocaine (CC12729/2018), in contravention of s 603(7) of the Criminal Code 2002 (ACT).

There are also two transfer charges, firstly that he was in possession of property suspected of being proceeds of crime (CC12730/2018) and secondly that he drove a motor vehicle while his licence was suspended (CC12731/2018). For convenience, I will refer to the three offences as Charges 1 (trafficking), 2 (proceeds of crime) and 3 (suspended licence) respectively.

The accused pleaded ‘not guilty’ to the three charges.

There are some basic matters I should state before I look at the case in any detail.

The Crown must prove its case beyond reasonable doubt. The accused is presumed to be innocent. Suspicion and probability must play no part. As long as there is a reasonable doubt, the accused must be found not guilty.

The Crown does not have to prove the truth of each fact that is asserted in its case. However, it must prove each legal element of the charge beyond reasonable doubt.

The facts that I find must be based on the evidence; that is, the evidence given by the witnesses and that are contained in any exhibits. In addition, in assessing the evidence, I must apply my common sense. I must do so with an open and unbiased mind, hearing the evidence clinically and dispassionately and not letting emotion enter into the decision-making process.

I must also remind myself of the principles involved with deciding a case based on circumstantial evidence.

Circumstantial evidence can be contrasted with direct evidence. Direct evidence is what a witness says that he or she saw or heard or did.

In a circumstantial case, the Crown lacks direct evidence of that kind. This does not mean that a circumstantial case is, for that reason, weaker than a case based upon direct evidence. Some direct evidence can be of very dubious quality.

Further, in a circumstantial case, no individual fact can prove the guilt of the accused. Where the Crown’s case depends either wholly or in part on circumstantial evidence, I must reason in a staged approach.

The Crown asked me, first, to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves, they cannot prove the guilt of the accused.

I am then asked to infer or conclude from a combination of those established facts that a further fact or facts existed. The ultimate fact the Crown has asked me to find, at least for Charge 1, based upon the basic facts, is that the accused trafficked in cocaine. In this case, the parties agreed, the ultimate question was whether or not the accused knew there was a block of cocaine in a Ford Ranger vehicle.

A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown, considered as a whole. It will also depend upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused.

It is important that I approach the circumstantial case by considering and weighing, as a whole, all of the facts I find established by the evidence. It is wrong to consider any particular fact in isolation and ask whether that fact proves the guilt of the accused, or whether there is any explanation for that particular fact or circumstance which is inconsistent with the guilt of the accused.

If I find a conclusion is a reasonable conclusion to draw based upon a combination of the established facts then, before I can convict the accused, I must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused, the circumstantial case fails, because I would not be satisfied of the accused’s guilt beyond reasonable doubt.

I understand that drawing a conclusion from one set of established facts to find that another fact is proved involves a logical and rational process of reasoning. I must not base my conclusion upon mere speculation, conjecture or supposition.

The elements of Charge 1 are:

The accused trafficked in a substance by transporting, guarding or concealing, or possessing the substance;

The accused intended to traffic in the substance;

That substance was a controlled drug as per Schedule 1 of the Criminal Code Regulation 2005 (ACT);

The accused was reckless as to whether the substance was a controlled drug; and

When the accused trafficked in the substance, the accused had an intention of selling some or all of the substance or a belief that someone else intended to sell some or all of the substance.

The elements of Charge 2 are (under s 114C of the Crimes Act 1900 (ACT)):

a) The accused dealt with money or other property; and

b) That money or other property is proceeds of crime.

The elements of Charge 3 are (under s 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT)):

a) The accused was a person whose Australian driver licence was suspended by a court in Australia or under the law of any jurisdiction;

b) The accused drove a motor vehicle on a road or road related area during the period of suspension; and

c) The accused was not issued with a restricted licence that would otherwise permit him to drive that motor vehicle.

In a nutshell, the Crown case is that on 13 October 2018 the accused and another man, Mr Vincenzo Marzano, drove to Sydney in a black Ford Ranger motor vehicle, bearing registration number CEW09D. They left at about 6:00pm and returned after 11:00pm.

Upon return to the accused’s residence in the Australian Capital Territory, the vehicle was searched. A block of cocaine weighing 444.249 grams and of 80.1% purity was found in the centre console of the vehicle. The quantity is well in excess of a trafficable quantity (6 grams).

An agreed statement of admitted facts was tendered (Exhibit A). I think it important to set out those facts:

1. On 13 October 2018 Glen Kelly and I were the only directors and employees of our company Extreme Street Performance Pty Ltd.

2. The mobile number [redacted] is registered to Extreme Street Performance Pty Ltd and is predominantly used by me.

3. The mobile number [redacted] is registered to Mr Ryan Henderson, who is my brother.

4. The black Ford Ranger, bearing New South Wales registration CEW09D is registered to Extreme Street Performance Pty Ltd and is regularly, but not exclusively, driven by me.

5. In 2018, the World Time Attack Challenge event was held on Friday 12 October 2018 to Saturday 13 October 2018 at Sydney Motorsport Park located on Ferrers Road, Eastern Creek, New South Wales (NSW).

6. The last session of Pro shoot-out commenced about 4:40pm on Saturday 13 October 2018. The World Time Attack Challenge trophy presentation occurred about 4:40pm to 5:15pm that afternoon. Participants commence packing up their garages once their session is complete.

7. The last race of the whole event was the International Drifting Cup, which started about 5:30pm on the Saturday and concluded about 9:30pm that same night. The general public left the venue following the presentation of the Drift Cup Trophy, about 10:00pm.

8. Australian-based participants and exhibitors were required to commence bump out from the venue on Saturday night. Some participants may have left vehicles and trailers at the venue overnight but there was no on-site accommodation for participants.

9. At approximately 6:02pm on 13 October 2018, Mr Vincent Marzano and I travelled to Sydney together in the Ford Ranger. I was the driver and Mr Marzano was the passenger of the vehicle. We drove down the Federal Highway and stopped in the vicinity of King Georges Road and the South Western Motorway in Beverly Hills, Sydney. I arrived in Sydney too late to attend the World Time Attack Challenge event. We remained in Sydney for approximately 10 minutes and returned back to Canberra. We arrived back in Canberra at approximately 11:25pm.

10. When the Ranger arrived at my residence in [redacted], police executed a search warrant on the vehicle. A block of cocaine was found within the centre console. The block was packaged in a clear food saver bag.

11. During the search, police located $12,450 in cash in a cardboard box located in the back seat of the vehicle. Police also located a round [sic] up $5 note with white powder residue in the driver's side visor.

12. An analysis of the cocaine found it to weigh 444.29g [sic] with 80.1% purity. Police estimate the approximate street valuation of the cocaine if broken down to individual sales would have a median street price of $288,600 if sold for $325.

13. DNA analysis of inside and outside of the top section of the food saver bag yielded a DNA profile suitable for identification. Forensic analysis concluded that the DNA analysis was 5 billion times more likely to have originated from Mr Marzano than any other person.

14. DNA analysis of the rolled up $5 note also yielded a DNA profile. Forensic analysis concluded that the DNA analysis was 890 million times more likely to have originated from the accused (me) than from any other person.

I will now describe some of the evidence called or tendered. It is not a complete rendition but rather my summary of what I considered to be the more relevant parts of the evidence. It is subject to the detail and accuracy of the transcript.

The first witness called by the Crown was Mr Glen Kelly. He and the accused are partners in a business called Extreme Street Performance Pty Ltd (referred to as ESP) in Queanbeyan.

The business of ESP includes the restoration of motor vehicles, often beginning with an older vehicle in poor condition and transforming it into a high performance and, subject to the eye of the beholder, attractively presented motor car.

Mr Kelly said that he had been at work on 13 October 2018. This was a Saturday. He quite often worked on a Saturday when, generally, the work would be done on his own vehicle or a vehicle that needed to be completed.

On this particular Saturday he commenced work at about 10:30am to 11:00am. The accused was also working that day. He may have arrived before Mr Kelly. They were both there until about 3:30pm to 4:00pm.

The Ford Ranger was leased by the company but generally used by the accused. Under cross-examination Mr Kelly agreed that it might also be used by customers of the business, for example as a courtesy vehicle, or by employees carrying out business work. The vehicle was often parked outdoors. Mr Kelly did not know if it was usually locked but said that the company vehicles were “rarely locked”.

Mr Kelly did not use the Ford Ranger on 13 October 2018.

Mr Kelly said he had known the accused for about 14 years. He was originally an employee but on the resignation of a former partner, the accused became a business partner (more likely a director) in the business. He said that in 2018 the business was doing well, which he defined as having the capacity to pay wages and bills.

Mr Kelly gave evidence about his conversation with the police on 15 October 2018 and also on 21 May 2020. On the latter occasion he was asked questions about an invoice for certain parts. He said he was not aware of an invoice. When he spoke to the accused about the missing invoice, the accused said there was no invoice because the subject of any invoice (two or possibly three turbochargers) was not going to be paid for. It related to a customer named Bill. Mr Kelly did not know Bill.

Mr Kelly said he had never seen cocaine in the workshop and he had not put any cocaine in the Ford Ranger. The cocaine located by the police in 2018 was not his.

Under cross-examination Mr Kelly said he was a qualified mechanic who had become well-known, and he believed highly regarded, as an engine tuner.

He said that the nature of the business was such that a number of people would enter the workshop to speak to him, or others, about their vehicles. He found this annoying and an interference with his work. He identified a Mr Alex Finch as an employee of the business. He was an apprentice who primarily worked with the accused.

Mr Kelly said that the accused generally handled the office side of the business. He dealt with customers and the accounts. In the workshop he was very experienced and capable of stripping and rebuilding old motor vehicles.

I was shown portions from a television series (Rides Down Under: Workshop Wars) about the renovation of motor vehicles. The episodes I saw featured ESP, and in particular, the accused and Mr Kelly. The Crown objected to the tender due to relevance. I ultimately allowed it in on a limited basis, namely to establish the respective roles of the accused and Mr Kelly in the business, and to show that the running of the business might include after-hours deliveries of parts to other areas in New South Wales.

The next witness was Mr Vincenzo Marzano. As referred to above, he was a customer of ESP who became a friend of its two principals. He accompanied the accused on the trip to Sydney. He drove to the accused’s home at around 6:00pm and they set off in ESP’s Ford Ranger for Sydney. Mr Marzano put his “belongings” in the centre console. At no stage of the journey did he notice any cocaine in the console.

Mr Marzano said that he understood the purpose of the trip to be the delivery of a turbocharger (or perhaps more than one turbocharger). He did not see the turbocharger and was vague about whether he had seen a box in the vehicle. He agreed that a turbocharger could fit into a box about 12 inches by 6 inches. This size is consistent with a shoebox.

On arrival in Sydney Mr Marzano went for a walk and had a cigarette. He did not see where the accused went or what he did. He waited about half an hour for the accused to return. I note he told the police the time he spent in Sydney was about 10 minutes. They then drove back to Canberra. On arrival the police searched the vehicle and showed him the bag of cocaine.

Mr Marzano was initially charged in relation to the drugs, but the proceedings against him, for an unknown reason, were terminated in the Magistrates Court.

Mr Marzano was not a particularly impressive witness but his evidence, especially his denials of any relationship to the cocaine, was not challenged, either by the Crown or by the accused.

The next witness was Mr Ryan Henderson, the accused’s younger brother. Importantly his phone was the subject of the original interception warrant in the police investigation. He was a particularly unimpressive witness, but perhaps surprised me with the substantiation of what initially seemed an almost ridiculous suggestion.

A telephone intercept was played to Mr Henderson (Exhibit D). It is between him and the accused and seemed to concern a vet and some ashes. The purpose of the tender was to suggest that the words used were code for trading in drugs. Mr Henderson denied this and initially said that the conversation was so long ago that he had no idea what it was about.

Under cross-examination Mr Henderson was asked about the demise of a cat. This reminded him of the death of his daughter’s cat, Mojo, around the time of the telephone call. After searching the photograph folder in his telephone he was able to locate an image which became Exhibit 3. The re-emergence of Mojo as a part of a ‘build-a-bear’ is perhaps unusual but clearly, if the photograph is to be believed, a potent salve to the child’s distress. Thus the photograph substantiates Mr Henderson’s prompted recollection, although leaves parts of the conversation unexplained. This is particularly referable to “twelve” and “fourteen” which might accord with the evidence of Detective Sergeant Scott concerning common weights used in the sale of cocaine (Exhibit G at [12]).

Mr Henderson was also reminded about a synthetic lawn business that his brother had financed. He thought the reference to money may have concerned this business. He said he had never been owed money by his brother, who had always supported him both emotionally and financially. This included during his own criminal problems when he had spent some time in prison.

While I reluctantly acknowledge that the late Mojo is, in part, the subject of the intercepted phone call, the call is otherwise extremely suspicious. I accept that it is about a month before the relevant transaction, but it certainly has an air of disguised communication about it.

Ms Michelle Crampton was the first witness called on the second day of the hearing. She is the partner of the accused. She objected to giving evidence under s 18 of the Evidence Act 2011 (ACT). I upheld the objection and excused her from attendance. The basis of my decision was that her giving evidence would likely harm the relationship between her and the accused.

The next witness was First Constable Barnes. On 13 October 2018 he was a ‘searching officer’ and photographer, for a time, in relation to the search warrant. When he first looked in the Ford Ranger he had already been told about the cocaine block, currency and a mobile phone that had been located in the vehicle.

First Constable Barnes was shown photograph 5 in Exhibit E. He said the photograph revealed the console after the drugs had been removed. He later helped count the cash that had been found in the vehicle. He also participated in a search of the house of the accused. There is no evidence of any useful discoveries being made in the house.

I also note here that there is no photograph of the cocaine in place when it was first discovered. Although the Crown suggested the photographs show the packet to be large and likely to have covered most of the console, the photographs in Exhibit E obviously do not show the actual size of the packet. I was not given the dimensions of the packet or of the centre console.

First Constable Barnes did not recall if the shoebox containing the cash had been seized.

Detective Constable Giles was the next witness. He sighted the Ford Ranger on the Federal Highway at about 11:00pm. He went to the accused’s address and arrived at about 11:25pm, just after the accused. He parked behind the Ford Ranger.

Detective Constable Giles approached the vehicle and spoke to the passenger, Mr Marzano. He obtained his wallet for identification purposes. Two drug detection dogs were then allowed into the vehicle. A little later he was directed to the centre console by Detective Sergeant Saunders. He observed a plastic bag with a white brick in it.

A little later Detective Constable Giles took Mr Marzano to the Watch House where a record of interview was conducted.

On 15 October 2018 the officer went to ESP’s premises where he spoke to Mr Glen Kelly.

First Constable Pham gave evidence of arriving at the accused’s residence in an unmarked police vehicle which he parked in the driveway. This was before the arrival of the accused. The Ford Ranger stopped in the driveway. First Constable Pham went to the passenger side of the vehicle where he told Mr Marzano about the search warrant. He then searched Mr Marzano.

A little later he heard the accused speaking to Constable Wilson-Smith. He heard him tell the officer that he had travelled to Sydney to drop something off for a World Time Attack event. He said he was running a turbocharger to Gerry. He said he did not use a courier on weekends. He said the Ford Ranger was a business car and not his. He had taken Mr Marzano for the drive. He had been in Sydney for about 10 minutes.

Then he heard Mr Marzano tell Constable Wilson-Smith that he had been delivering parts in Sydney and there had been a turbocharger in the back seat.

Under cross-examination First Constable Pham conceded that the references to a turbocharger may have been in the plural. He also said that the accused had mentioned that “heaps of people drive my vehicle”.

First Constable Pham said that both the accused and Mr Marzano referred to being in Sydney for about 10 minutes. He accepted that they had not had an opportunity for collusion as to their stories.

Detective Sergeant Saunders was the next witness. He was a team leader on the night and also participated in the surveillance of the Ford Ranger. He first saw it at about 11:00pm on the Federal Highway. When he arrived at the residence, he saw officers talking to the occupants of the vehicle.

The officer in charge of the drug detection dog said there had been “an indication” near the centre console and gearshift of the vehicle. He looked in the vehicle. At that stage the lid of the console was down (closed). He raised it and saw the brick of cocaine in a clear plastic bag. There may have been some items on top of it.

Detective Sergeant Saunders said he obtained a sports bag that was in the back of the vehicle in order for Constable Wilson-Smith to ask the accused about it. He then picked up the cocaine bag for the same purpose.

The officer then searched the driver’s side area of the vehicle where he found the accused’s wallet and also the rolled up five dollar note in the driver’s side visor, as seen in photograph 11 of Exhibit E. A black mobile phone was located near the steering wheel.

Detective Sergeant Saunders said that he spoke to Ms Crampton and said to her: “I can tell you that Grant is with us at the moment. He has been arrested for trafficking in cocaine. He is with investigators at the watchhouse in the city”. This evidence was initially taken as part of a voir dire, but was later excluded and has been ignored for purposes of these reasons.

Under cross-examination the officer confirmed that there had been no cooperation with New South Wales police for a joint operation, nor had there been time to arrange a squad to travel to Sydney to see where the accused went. He accepted that whatever happened in Sydney was a crucial part of the investigation.

The officer accepted that keys, a wallet and cigarettes may have been located on top of the cocaine. There should have been a photograph of this circumstance, but there was not.

It was suggested to the officer that a blood sample could have been ordered of the accused to see if he had consumed cocaine. The officer did not agree that such a process was necessarily appropriate.

Importantly Detective Sergeant Saunders accepted that if a correlation had been established, for example by degrees of purity, between the cocaine in the brick and that on the five dollar note, that could have had “persuasive value”.

The next witness was Constable Wilson-Smith. She was the informant in the case. As a result of the tracking of the accused’s mobile phone, she established, on 13 October 2018, that he had driven to Sydney, where he stopped for about 10 to 15 minutes and then commenced a return journey to Canberra. This activity clearly alerted the officer who put in place surveillance of the accused and a reception party at his residence.

Under cross-examination, and in submissions, Constable Wilson-Smith was criticised for not having instigated a more complete enquiry involving New South Wales police. I reject the criticism. She acted, in my view, appropriately having regard to the sudden departure of the accused for Sydney.

When Constable Wilson-Smith arrived at the residence other police were already there. She cautioned the accused and Mr Marzano before conducting a record of interview with them. She said that the accused made “no comment” about the cocaine and Mr Marzano said that he had never seen it before.

Constable Wilson-Smith said that when she looked into the console there was nothing on top of the plastic bag of cocaine. She accepted however that she was not aware if anything had previously been removed by Detective Sergeant Saunders from above the plastic bag.

The Constable accepted that she had an option to obtain a blood test but she did not do so. She said that her inquiries revealed that the accused’s licence had been suspended for not voting.

The Crown tendered Exhibit F which is made up of a number of statements from police officers involved in the investigation and various other persons. The statement of Constable Howe attaches photographs of both the inside and outside of the Ford Ranger. The location of the shoebox can be seen in the final photograph.

In his statement, Leading Senior Constable Aldridge described his use of the drug detection dogs and his referral of certain areas for further searching. Constable Dick was the property officer and he prepared Property Seizure Records which are annexed to his statement. They refer to the money in the shoebox, being $12,450, and also to the plastic bag containing the cocaine being in the centre console and the rolled up five dollar note in the driver’s side sun visor.

Constables Howe, Dick and Catalinac also refer to the accused wearing a black top with “Cocaine and Caviar” in gold font on the front. No inference, other than a limited sartorial elegance, can be drawn from the outfit.

Field Intelligence Officer West prepared a map showing the path of the Ford Ranger (containing the accused’s phone) to Sydney and back. It is difficult to see from the map the precise location in Sydney where the vehicle travelled.

There is also a statement from Mr Joshua Schwartz, a forensic biologist. His notes are attached and are consistent with the agreed facts in Exhibit A. Ms Alison Hughes is a fingerprint examiner. She found no fingerprints on the bag in which the cocaine was located or on the five dollar note.

Ms Inga-Lena Whitman-Holmes is the Chief Financial Officer at Superlap Australia Pty Ltd. In her statement she says that the 2018 World Time Attack Challenge was held on Friday, 12 October 2018 and Saturday, 13 October 2018 at the Sydney Motorsport Park in Eastern Creek, NSW. The event concluded at about 9.30pm on 13 October 2018.

The final witness was Detective Sergeant Scott whose evidence in chief was given through his statement (Exhibit G). He is obviously an experienced officer in the area of illicit drugs. His statement concerns the manner of the use and sale of cocaine and its valuation on the market. As to the drugs involved here his valuations extended from $200,000 to $300,000. He was not cross-examined.

The Crown then closed its case.

The accused gave evidence. He was not obliged to do so, but having entered the witness box I am bound to treat his evidence like that of any other witness. It was open to me to accept some of his evidence and reject other parts.

The accused, both in evidence in chief and under cross-examination, denied any association with the block of cocaine. He did not know it was in the console and he did not know how it might have found its way to that location.

The accused said he was equal partners in ESP with Mr Kelly. This had been the case for about 10 years. The business was concerned with the modification of vehicles.

Most parts for the vehicles came from Sydney or other parts of the country. There were no suppliers of turbochargers in the ACT although the Territory’s inhabitants had a widespread interest in “hotting up cars”. He said he ran the workshop. He dealt with customers, banking, invoicing, ordering and deliveries.

The accused said that earlier in August he had ordered some turbochargers from GCG, a company located in Sydney. He identified a tax invoice (Exhibit 4) describing the order and the amount paid. This correlated with the payment, shown in Exhibit 1, of $13,675 on 7 August 2018. The importance of the order was that the turbochargers which he says he took to Sydney to sell had originally been part of the order from GCG. They are the three turbochargers with a combined cost of $9,075.

The accused said that on 12 October 2018 he had received a call in the workshop from a man named Bill, enquiring about turbocharger upgrades for Ford Falcons. Bill did provide a surname but the accused could not remember it. The accused told Bill that he could supply the three turbochargers needed and could do so at a “good price”. A price of $12,500 in cash was agreed. An arrangement was made to deliver the turbochargers to Bill in the suburb of “Hollywood” in Sydney. They were to meet at 9:00pm on “Panama Parade”. No evidence was led by the Crown, nor any suggestion made to the accused, that the nominated address did not exist.

The accused said that he originally intended to travel to Sydney earlier in the day so that he could attend the World Time Attack event, but he was unable to get away in time. He took Mr Marzano with him for the drive. They were good friends. The arrangement was that Bill would be in a red Falcon and the accused would be easily identified by his vehicle. It is clear from the photographs in Exhibit F that the Ford Ranger takes full advantage of its advertising potential.

When asked, under cross-examination, why Bill might have ordered turbochargers from Queanbeyan when he could have got them from a supplier in Sydney, the accused said that it was part of the business of ESP, and for which it was well regarded, to supply parts such as turbochargers to customers. The Crown did not lead any evidence to suggest that GCG was a supplier open to the public. On examination, Exhibit 4 suggests GCG may well be a manufacturer that does not deal directly with the public.

The accused left Queanbeyan at about 6:00pm and travelled to the arranged meeting place. The three turbochargers were handed over in exchange for $12,500. This amount represented a profit on the $9,075 that the turbochargers had cost. The transaction took about 10 minutes, during which time Mr Marzano left to have a cigarette.

The amount recovered by the police from the shoebox was $12,450. The discrepancy of $50 was not explained but is difficult to view as significant.

The accused’s evidence about the workings of the business generally accorded with that of Mr Kelly, in particular, about persons coming in and out of the workshop and the use of the Ford Ranger as a courtesy vehicle.

The accused also said that his brother, Mr Ryan Henderson, was a frequent visitor to the workshop. There was a distinct air about the questions which suggested that Mr Henderson may have been the source of the cocaine. Mr Henderson, in his evidence, had denied any involvement with the cocaine and I regard the evidence about him as not going beyond an unsubstantiated insinuation. The fact that Mr Henderson had a criminal history, and that it involved drugs, is a long way from dictating a conclusion that he was involved with the cocaine.

Nevertheless, recalling that the original search warrant was for Mr Ryan Henderson’s phone, his perpetual presence at the workshop must be seen as a relevant surrounding circumstance.

The accused said that the business was doing well and he had no need for funds. His home was mortgaged but he was able to meet the payments without difficulty. The various loans he had made to his brother had not resulted in financial stress.

Under cross-examination the accused was taken to task for not keeping a record of persons who used the Ford Ranger as a courtesy vehicle because of insurance purposes. I thought the suggestion that this, and perhaps other matters which implied he took a lax approach to his business responsibilities, was something of a bold approach. The questions assumed a knowledge of the insurance policy involved, which was not present.

The accused generally gave his evidence in a straightforward manner and maintained his story through cross-examination. There were however some matters on which I found his evidence unsatisfactory:

a) His denial of having received any one of the four notices that he had been sent threatening suspension of his driver’s licence.

When cross-examined about the five dollar note he said that the presence of cocaine may well have been from him “snorting” the drug. I had the distinct impression that this was an unintended answer derived from him believing that if his DNA was on the note then he must have touched it.

b) The contrast with the evidence of Mr Kelly about an invoice. In his evidence in chief, Mr Kelly said that the accused had told him there would not be an invoice for the turbochargers because there was not going to be any payment. According to the accused there was no invoice or other paperwork because the transaction had not been completed. The police had seized the money rendering any invoice or other paperwork unnecessary. Mr Kelly, consistent with the accused, did say that the invoice related to a person called Bill.

c) The accused said, at his residence, that he did not use couriers on the weekend (according to Constable Pham’s notes). In his oral evidence in chief he said he did not use couriers for “high value goods” or “to do a cash transaction”.

To the extent that I have reservations about the accused’s evidence, I have put aside those parts that I do not accept. The onus always remains on the Crown to prove its case beyond a reasonable doubt.

I think Charge 1 rests on a single factual issue: Was the accused aware of the presence of the cocaine in the Ford Ranger? If he was, then he is guilty. If not, he is entitled to be acquitted. The parties agreed with this summation.

Unquestionably, I have a good deal of suspicion about the accused and the cocaine. He was the primary user of the vehicle, he was a person who used cocaine and the trip to Sydney for the sale of three turbochargers, resulting in a turnaround time of 10 minutes, is definitely, without more, a source of significant conjecture. In addition, as pointed out by the Crown, there is the improbability of another person leaving up to $300,000 worth of cocaine in an unlocked vehicle.

Further, the presence of the large amount of cash suggests at least unusual dealings. On the other hand, having purchased the cocaine, it is perhaps surprising that so much cash was ‘left over’.

The Crown said that, in effect, the sale of turbochargers to Bill was simply unbelievable. Bill was otherwise unidentifiable, there was no proof of transaction and the number of turbochargers sold seemed to fluctuate as time passed. It was suggested that the number of turbochargers had progressed from one to two to three. However Constable Pham accepted that the accused may have referred to turbochargers in the plural and Mr Kelly, in his evidence in chief, said:

Did he say what the invoices would have been for?---Turbochargers.

Did he say how many?---I thought he said two but it might have been three.

The accused used cocaine. But that is not enough. Had there been forensic evidence that indicated, if only by percentage of purity, that the cocaine on the five dollar note was consistent with the cocaine in the centre console the Crown’s case would have been significantly stronger. Unlike Mr Marzano, there was no independent forensic link between the accused and the bag. The Crown in its opening said that I would be able to infer that the cocaine on the five dollar note:

…was the cocaine from the block in the centre console that the accused had used that day, therefore going to his knowledge of the cocaine in the centre console, therefore going to his possession of [sic] transporting, guarding, or concealing that cocaine, therefore proving the offence.

The Crown also said this:

HIS HONOUR: Right. I just – how do you get the connection? You know, if there was something about the block or there was something to connect them I would understand and it would be a very good point. But I am just not – what am I missing? I mean where is the probative value?

MS McFARLAND: Simply in that the – as your Honour will see as the evidence falls, that block of cocaine has been opened and part of it has been broken off and the Crown's case will be that that is – it has been used and that $5.00 note with the cocaine on it is also suggestive of it being used and then used by the accused.

There was however no evidence that the block of cocaine had been opened, nor that a part had been broken off. The certificate under s 135A of the Public Health Act 1997 (ACT) (Exhibit B) refers to “An opened plastic vacuum bag”, but there is no evidence suggesting when the bag had been opened. To the contrary, the Property Seizure Records (Exhibit F) refer to a “Plastic bag containing solid white powder” without any reference to the bag being open. The inference relied upon by the Crown is simply not available as a justifiable inference.

How then can I be satisfied beyond reasonable doubt that the accused knew about the cocaine? I think my decision must reflect the approach taken by the New South Wales Court of Criminal Appeal in Filipetti v The Queen (1978) 13 A Crim R 335.

What is apparent from this case is that if persons other than the accused had access to the location of the drugs then the Crown must establish beyond reasonable doubt that the accused had actual knowledge of the presence of the drugs.

The police found the centre console to be closed. Unless it had been opened its contents would not have been apparent to the accused. I note from the photographs of the console that it contained a number items, perhaps including medication. There was no evidence linking the accused to any of the contents of the console. Had there been such evidence perhaps an inference that he was familiar with the contents of the console may have been easier to draw.

The accused also pointed out these matters of consistency with his version:

a) Between his evidence and that of Mr Marzano.

b) The nature of the business, which included cash sales (as shown in Exhibit 1) and not uncommon personal deliveries.

c) The correlation between the amount of money in the shoebox and the sale, for a profit, of the three turbochargers.

d) The identification of the turbochargers as having been purchased by ESP, as seen in Exhibit 4.

e) The evidence establishing that the Ford Ranger was not exclusively used by the accused. In addition it was often parked outdoors, usually unlocked and accessible to many people.

In my view I am compelled to reach a conclusion that while there are facts consistent with the accused’s guilt there are also facts, as described above, inconsistent with his guilt. This conclusion is a reasonable conclusion derived from the circumstances established by the evidence.

Ultimately I am not satisfied that the Crown has proved beyond reasonable doubt that the accused knew about the presence of the cocaine in the console. It follows that he must be acquitted of Charge 1.

In respect of Charge 2, on the basis of my findings that a reasonable conclusion may be drawn that the shoebox contained cash received in exchange for the turbochargers, once again the result is that the accused must be acquitted.

As to Charge 3, this is one of the matters in respect of which I expressed some doubt about the accused’s evidence. His defence was that he had not been aware that his licence was under threat or, later, that it had been suspended. He accepted that if he had been aware, a finding of guilt would follow.

Had there only been one notice that he missed, perhaps his defence would have been successful. However, I do not accept that he missed four notices. He also chose to make no submissions on the deeming provision in s 160 of the Evidence Act. It follows that he should be found guilty of this offence.

The order of the Court is:

a) The finding of the Court on the charge of trafficking in a controlled drug other than cannabis, namely cocaine (CC12729/2018), is that the accused is ‘not guilty’.

The finding of the Court on the charge of possession of property suspected of being proceeds of crime (CC12730/2018) is that the accused is ‘not guilty’.

The finding of the Court on the charge of driving while having a suspended licence (CC12731/2018) is that the accused is ‘guilty’.

| |I certify that the preceding one hundred and eighteen [118] numbered |

| |paragraphs are a true copy of the Reasons for Judgment of his Honour |

| |Justice Elkaim. |

| |Associate: |

| |Date: 5 June 2020 |

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