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District Court 22 July 2019

R v Tinker

[2019] NSWDC 945

Drugs
CRIMINAL VERDICTS AND REASONS FOR JUDGMENT JUDGE ALONE TRIAL TEN COUNTS DRUG SUPPLY CANNABIS LEAF, CANNABIS RESIN

Citation: R v Tinker [2019] NSWDC 945
Court: District Court of New South Wales
Date: 22 July 2019
Judge: King SC DCJ

Background

The accused, Simon Tinker, faced a ten-count indictment arising from two distinct episodes of police activity: a surveillance operation on 1 November 2017 and a search of his Daceyville premises on 3 November 2017, as well as an earlier encounter at Kingsford on 25 May 2017. The charges spanned drug supply, manufacture, cultivation, firearms possession, and dealing with the proceeds of crime.

Tinker pleaded guilty to four counts at the outset, including supplying a commercial quantity of tetrahydrocannabinol (THC), manufacturing a large commercial quantity of THC, and two firearms offences involving an unauthorised double-barrel shotgun and a paintball gun. The remaining six counts proceeded to a judge-alone trial.

The trial turned on whether Tinker possessed and supplied various quantities of cannabis leaf, cannabis resin, and THC, whether he cultivated seven cannabis plants, and whether he dealt with $49,830 in cash recklessly as to it being the proceeds of crime.

  • Whether Tinker supplied 67.2 grams of cannabis leaf at Kingsford on 25 May 2017 (Count 1)
  • Whether Tinker possessed 8,873.76 grams of THC (a large commercial quantity) for supply at Daceyville between May and November 2017 (Count 4)
  • Whether Tinker possessed 2.4 kg of cannabis leaf for supply at Daceyville during the same period (Count 5)
  • Whether Tinker supplied 14.1 grams of cannabis resin at Daceyville during the same period (Count 6)
  • Whether Tinker cultivated seven cannabis sativa plants on 3 November 2017 (Count 7)
  • Whether Tinker dealt with $49,830 AUD being reckless as to whether it was the proceeds of crime on 3 November 2017 (Count 10)

Decision

His Honour found the accused's evidence to be unreliable throughout. The court concluded that Tinker was prepared to lie where he believed police had no contrary evidence, and made concessions only when he recognised that a lie could not be sustained. The evidence of his partner was given little weight, given her knowledge of his activities and their relationship.

The Crown's case rested on surveillance footage, the results of a premises search, and lawfully intercepted telephone calls. Over 2,000 calls had been monitored, of which only one related to Tinker's claimed concreting work, and that call was not returned. Expert evidence from a detective senior constable identified coded references in the intercepted calls consistent with drug supply, including references to specific cannabis strains and arrangements for delivery.

The statutory deeming provision in section 29 of the Drug (Misuse and Trafficking) Act 1985 applied to Counts 4 and 5: where a person possesses a quantity of a prohibited drug at or above the traffickable threshold, they are deemed to possess it for supply unless they prove otherwise. Tinker did not displace that presumption. For Counts 1 and 6, where the quantities fell below the traffickable threshold, the Crown proved supply on the direct evidence available.

The court was satisfied beyond reasonable doubt on all six contested counts, finding that Tinker knowingly possessed the relevant drugs for supply, cultivated the cannabis plants, and dealt with the cash proceeds recklessly as to their criminal origin.

Orders Made

  • Guilty verdict and conviction entered on Count 1 (supply of 67.2 grams cannabis leaf, Kingsford, 25 May 2017)
  • Guilty verdict and conviction entered on Count 4 (supply of 8,873.76 grams THC, large commercial quantity, Daceyville)
  • Guilty verdict and conviction entered on Count 5 (supply of 2.4 kg cannabis leaf, Daceyville)
  • Guilty verdict and conviction entered on Count 6 (supply of 14.1 grams cannabis resin, Daceyville)
  • Guilty verdict and conviction entered on Count 7 (cultivation of 7 cannabis sativa plants, Daceyville)
  • Guilty verdict and conviction entered on Count 10 (dealing with $49,830 as proceeds of crime, reckless)

Key Takeaways

  • The District Court applied the deeming provision in section 29 of the Drug (Misuse and Trafficking) Act 1985, confirming that possession of a prohibited drug at or above the traffickable quantity shifts the burden to the accused to prove the drug was not held for supply.
  • Lawfully intercepted telephone calls, interpreted through expert evidence identifying coded language, formed a significant part of the evidentiary foundation for supply-related convictions.
  • A credibility finding that the accused lied strategically, conceding only what the evidence made unavoidable, was central to the court's rejection of his defence across all six contested counts.
  • Section 4 of the Drug (Misuse and Trafficking) Act 1985 (the admixture provision) was relevant to the THC charges, which encompassed preparations, extracts, and other substances containing any proportion of the prohibited drug.
  • Dealing with cash proceeds recklessly as to their criminal origin, under section 193B(3) of the Crimes Act 1900, requires only recklessness, not actual knowledge that the funds derived from crime.

Legislation and Cases Referenced

Legislation:
- Drug (Misuse and Trafficking) Act 1985 (NSW), ss 3(1), 4, 23(1)(a), 25(1), 25(2), 29, Schedule 1
- Crimes Act 1900 (NSW), s 193B(3)

Cases cited: None recorded in the judgment.