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Local Court 9 November 2022

NSW Police v Gittany

[2022] NSWLC 7

DrugsFirearms & weapons
CRIME BUPRENORPHINE STRIPS PRISON MADE ‘SHIV’ WHETHER ACCUSED HAD POSSESSION OF SHIV

Citation: NSW Police v Gittany [2022] NSWLC 7
Court: NSW Local Court (Kempsey)
Date: 9 November 2022
Judge(s): Nash LCM

Background

An inmate at Clarence Correctional Facility faced two charges arising from events on 7 July 2021. The first charge was possession of a prohibited drug (buprenorphine strips) under s 10(1) of the Drug Misuse and Trafficking Act 1985. The second was possession of a prison-made weapon, commonly called a "shiv," in a place of detention under s 253E(1) of the Crimes (Administration of Sentences) Act 1999.

The accused pleaded not guilty to both charges. The sole issue in dispute on each count was whether the accused had "possession" of the relevant item in the legal sense, including the requisite knowledge of it.

The prosecution relied on a combination of direct evidence (a correctional officer's observations and CCTV and body-worn video footage) and circumstantial evidence from DNA testing. The hearing proceeded on 1 November 2022, after earlier delays caused by a DPP referral and procedural matters.

  • Whether the accused had possession of the buprenorphine strips for the purposes of s 10(1) of the Drug Misuse and Trafficking Act 1985, including the required knowledge and intention (mens rea)
  • Whether the accused had possession of the prison-made shiv for the purposes of s 253E(1) of the Crimes (Administration of Sentences) Act 1999
  • The weight to be given to DNA evidence in a custodial environment, particularly in light of the possibility of secondary DNA transfer
  • The significance of a key prosecution witness not being called to give evidence, assessed in accordance with Mahmood v Western Australia (2008) 232 CLR 397

Decision

Sequence 1 (buprenorphine strips): Guilty. The Magistrate found the prosecution proved possession of the buprenorphine strips beyond reasonable doubt. Direct evidence from a correctional officer and video footage (both CCTV and body-worn) supported the finding, supplemented by DNA evidence. The accused gave evidence denying knowledge of the strips, but the Magistrate rejected that evidence.

Sequence 2 (the shiv): Not guilty. The Magistrate acquitted the accused on the weapons charge. Unlike the drug charge, there was no direct evidence of the accused's knowledge of the shiv. The prosecution case rested almost entirely on DNA findings, which were insufficient in the circumstances.

The Magistrate accepted that secondary DNA transfer was at least a reasonably plausible explanation for the accused's DNA appearing on the shiv. In a custodial environment, DNA deposited on bedding sheets could have transferred to an item placed in the cell by another person without the accused's knowledge. The evidence also disclosed that other inmates could access each other's cells, and that the accused may have shared his cell. The Magistrate was explicit that suspicion of guilt did not satisfy the standard of proof beyond reasonable doubt.

The accused's rejection as a credible witness on the drug charge did not, of itself, cure the absence of direct evidence on the weapons charge. The prosecution's failure to negate the reasonable inference consistent with innocence meant the charge was not made out.

Orders Made

• Verdict of 'not guilty' entered for the charge comprised in sequence 2
• The charge is dismissed

Key Takeaways

  • DNA evidence alone, without direct evidence of knowledge, may be insufficient to establish possession in a custodial setting where secondary transfer of DNA is a reasonably plausible alternative explanation.
  • A finding that an accused is not a credible witness on one charge does not automatically strengthen the prosecution's case on a separate charge where the evidence is independently insufficient.
  • Under the standard set out in Mahmood v Western Australia, the absence of a key prosecution witness (here, a correctional officer proximate to the accused at the relevant time) is a factor to be weighed in assessing whether the prosecution has proved its case beyond reasonable doubt.
  • Possession of a prohibited drug or offensive weapon in a place of detention requires proof of mens rea: the prosecution must establish actual knowledge and intention on the part of the accused, not merely what a reasonable person would have known or intended.
  • Circumstantial evidence in a criminal case must exclude all reasonable inferences consistent with innocence; where such an inference remains open on the evidence, a verdict of not guilty must follow regardless of any suspicion of guilt.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 253E
- Crimes Act 1900 (NSW), s 4 (definition of "offensive weapon or instrument")

Cases:
- He Kaw Teh v The Queen (1985) 157 CLR 523
- Leonard v Morris (1975) 10 SASR 528
- Mahmood v Western Australia (2008) 232 CLR 397
- R v Baird (1985) 3 NSWLR 331
- R v Borg, Carroll & Fear [2015] NSWDC 116
- R v Cotterill (unrep, 7/6/93, NSWCCA)
- R v Galvin (No. 2) [1961] VR 740
- R v Micallef [2002] NSWCCA 480