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Local Court 10 July 2020

Police v Asanovic; Police v Ritter

[2020] NSWLC 4

DrugsFraud & dishonestyFirearms & weapons
CRIMINAL LAW SUPPLY PROHIBITED DRUG DEEMED SUPPLY POSSESS PROHIBITED DRUG PROCEEDS OF CRIME POSSESS PROHIBITED WEAPON

Citation: Police v Asanovic; Police v Ritter [2020] NSWLC 4
Court: Local Court of New South Wales
Date: 10 July 2020
Judge(s): Magistrate Tsavdaridis

Background

Police executed a search warrant at a residential premises on 4 October 2018. The search uncovered 36.85 grams of methylamphetamine in a kitchen cupboard, quantities of cash in various rooms, a child residing at the premises, a baseball bat with its head wrapped in barbed wire, and a large quantity of high-end branded goods including Gucci, Louis Vuitton, and Tommy Hilfiger items.

Two defendants faced charges arising from these finds: one male defendant (charged with drug supply and multiple proceeds of crime offences) and one female defendant (charged with supply, possession, a weapons offence, proceeds of crime offences, conducting drug premises with child exposure, and larceny by finding). Both pleaded not guilty and the matter proceeded as a co-accused defended hearing.

The prosecution case rested partly on direct evidence and partly on circumstantial evidence. The court applied cautionary directions applicable to circumstantial cases throughout its reasoning.

  • Whether each defendant was guilty of deemed supply of methylamphetamine by reason of possessing a quantity at or above the indictable threshold under Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW)
  • Whether the cash found at the premises constituted proceeds of crime
  • Whether the large sums deposited into the defendants' individual bank accounts constituted proceeds of crime
  • Whether the high-end branded goods were proceeds of crime or unlawfully obtained goods
  • Whether the female defendant possessed a prohibited weapon (a baseball bat wrapped in barbed wire, alleged to constitute a mace)
  • Whether the premises constituted a drug house and whether a child was exposed to a drug supply process under s 36Z(2) of the Drug Misuse and Trafficking Act 1985 (NSW)
  • Whether the female defendant committed larceny by finding in relation to a Mounties Club membership card bearing another person's name

Decision

Both defendants were found guilty of the deemed supply charge in relation to the 36.85 grams of methylamphetamine. The DNA of both defendants was located on the bag containing the drug, which was found alongside smaller resealable bags and electronic scales. The court was satisfied beyond reasonable doubt that the elements of deemed supply were established.

On the proceeds of crime charges, the court convicted both defendants in relation to the $8,055.00 in cash found at the premises, treating those funds as representing unexplained wealth attributable to drug supply. However, the court was not satisfied to the required standard that the larger bank deposit figures ($226,606.14 in the male defendant's accounts and $80,064.85 in the female defendant's account) were proved to be proceeds of crime, entering not guilty verdicts on those charges.

The court acquitted both defendants of the charges relating to the high-end branded goods, finding the prosecution case on those items insufficient. The female defendant was also acquitted of possessing the buprenorphine, possessing the prohibited weapon, and the associated back-up charges concerning the luxury goods.

The female defendant was found guilty of conducting drug premises and exposing a child to a drug supply process. The court was also satisfied that she committed larceny by finding in respect of the Mounties Club membership card: the card bore the name of its owner, and a belief would have crystallised that the owner could be found with relative ease, yet the card was retained without consent and with an intention to permanently deprive the owner of it.

Orders Made

Mr Asanovic:
- Sequence 1 (supply methylamphetamine, 36.85g): Guilty
- Sequence 2 (deal with proceeds of crime, $8,055.00): Guilty
- Sequence 3 (recklessly deal with proceeds of crime, luxury goods): Not guilty
- Sequence 6 (deal with proceeds of crime, $226,606.14): Not guilty

Ms Ritter:
- Sequence 1 (supply methylamphetamine, 36.85g): Guilty
- Sequence 2 (possess methylamphetamine, 36.85g, back-up charge): Dismissed
- Sequence 3 (possess buprenorphine, 1.04g): Not guilty
- Sequence 4 (possess prohibited weapon, baseball bat wrapped in barbed wire): Not guilty
- Sequence 5 (deal with proceeds of crime, $8,055.00): Guilty
- Sequence 6 (recklessly deal with proceeds of crime, luxury goods): Not guilty
- Sequence 7 (unlawfully obtained goods in personal custody, luxury goods, back-up charge): Not guilty
- Sequence 8 (conduct drug premises and expose child to prohibited drugs): Guilty
- Sequence 10 (larceny by finding, Mounties Club membership card): Guilty
- Sequence 11 (deal with proceeds of crime, $80,064.85): Not guilty

Key Takeaways

  • Deemed supply under the Drug Misuse and Trafficking Act 1985 (NSW) was established on the basis of quantity alone combined with surrounding indicia, including co-located packaging materials and scales, even where the prosecution relied partly on circumstantial evidence.
  • A prosecution case asserting that bank deposits constitute proceeds of crime requires proof beyond reasonable doubt; the court declined to draw that inference from deposit figures alone without sufficient supporting evidence connecting those funds to criminal activity.
  • Where a case rests in part on circumstantial evidence, the cautionary directions applicable to circumstantial criminal trials apply and can result in acquittals on individual charges even where other charges arising from the same search are proved.
  • Larceny by finding requires proof that a belief crystallised in the defendant's mind that the owner could be found by reasonable means; a membership card bearing both the issuing venue's name and the owner's name was held to satisfy this element.
  • The Local Court's verdicts in this matter were mixed, demonstrating that a single search warrant execution can yield evidence sufficient to prove some charges beyond reasonable doubt while falling short of that standard on others.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 4, 5, 6, 7, 10(1), 25(1), 29, 32, 36TA, 36W(2), 36Z(2), 36Z(7), Schedule 1
- Crimes Act 1900 (NSW), ss 4A, 7, 117, 193A, 193B(3), 193C(1), 193C(2), 193C(3), 527C(1)(a)
- Weapons Prohibition Act 1998 (NSW), ss 4(1), 7, 7(1), Part 2 Division 2 (ss 8-19), Schedule 1 cl 2(12)
- Evidence Act 1995 (NSW), s 141(2)
- Financial Transaction Reports Act 1988 (Cth)

Cases:
- Chamberlain v R (No 2) (1984) 153 CLR 521; [1984] HCA 7
- Fleming v R (1998) 197 CLR 250; [1998] HCA 68
- Peacock v R (1911) 13 CLR 619
- Pitkin v R (1995) 130 ALR 35
- Plomp v R (1963) 110 CLR 234
- R v Dib (1991) 52 A Crim R 64
- R v Kitchener (1993) 29 NSWLR 696
- R v Madden (1995) 85 A Crim R 367
- Shepherd v R (1990) 170 CLR 573
- Woolmington v DPP [1935] AC 462