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District Court 19 May 2023

R v Saffo

[2023] NSWDC 182

Drugs

Citation: R v Saffo [2023] NSWDC 182
Court: District Court of New South Wales
Date: 19 May 2023
Judge: Bennett SC DCJ

Background

The accused was charged with supplying a commercial quantity of the prohibited drug gamma butyrolactone (GBL) contrary to s 25(2) of the Crimes Act 1900. The Crown alleged that between 13 and 15 October 2020, the accused was jointly in possession of 3,356 grams of GBL for the purpose of supply, together with another man, Vural Can. The drugs were physically held by Can when he was arrested and the GBL was seized.

Both the accused and the Director of Public Prosecutions agreed to a judge-alone trial under s 132 of the Criminal Procedure Act 1986, and the trial commenced within the 28-day period ordinarily required before such a trial can begin, with leave granted accordingly. The accused pleaded not guilty and elected not to give evidence.

The Crown's case rested substantially on circumstantial evidence, including recorded telephone conversations between the accused and Can, and CCTV footage showing the two men associating between 9 September and 11 October 2020. The Crown relied on this evidence to prove joint possession for supply, while expressly disavowing any tendency evidence use.

  • Whether the Crown had proved beyond reasonable doubt that the accused was in constructive joint possession of the GBL, despite the drugs being physically held by Can at the time of arrest
  • Whether the only rational inference available from the circumstantial evidence was that the accused and Can were partners exercising joint dominion over the GBL
  • Whether the accused knew the substance was a prohibited drug and knew or believed the quantity exceeded one kilogram
  • The proper approach to circumstantial evidence in a criminal trial, including how recorded communications and CCTV evidence could be used without crossing into impermissible tendency reasoning

Decision

Her Honour applied the standard principles governing judge-alone trials, including the requirement to identify the only rational inference available from the established facts viewed in combination. The court reminded itself that a circumstantial Crown case fails if any other reasonable conclusion, inconsistent with guilt, remains open on those facts.

The court found that the telephone recordings and CCTV footage, considered alongside the undisputed basic facts, supported the inference that the accused and Can were acting in concert and jointly exercising dominion over the GBL. This evidence negated innocent association and was probative of joint possession for the purpose of supply.

The accused's silence was expressly noted not to be held against him. However, taking all of the evidence together, the court found that the Crown had established the accused's guilt to the required standard. The only rational inference available was that the accused was jointly in possession of the GBL with Can, with knowledge of its nature and approximate quantity, for the purpose of supply.

Orders Made

  • The accused was found guilty of supplying a prohibited drug, namely 3,356 grams of gamma butyrolactone, being not less than the commercial quantity, between 13 October 2020 and 15 October 2020 at Eastlakes, New South Wales.

Key Takeaways

  • A conviction for constructive possession of prohibited drugs does not require the accused to have had physical custody; joint dominion over drugs held by another person can satisfy the possession element where the circumstantial evidence supports that inference beyond reasonable doubt.
  • Where a Crown case depends entirely on circumstantial evidence, the only rational inference available from all proven facts viewed collectively must be guilt; any other reasonable conclusion inconsistent with guilt requires acquittal.
  • The District Court confirmed that recorded telephone communications and CCTV surveillance footage can be used to negate innocent association and establish joint possession, provided they are not used for the impermissible purpose of tendency reasoning.
  • An accused person's decision not to give evidence in a judge-alone trial cannot be used as an admission of guilt or contribute to any adverse inference; the Crown's burden to prove guilt beyond reasonable doubt remains unaffected by that silence.
  • Under the Drug Misuse and Trafficking Act 1985, possession of not less than the traffickable quantity of a prohibited drug is deemed to be possession for supply unless the accused proves otherwise, shifting a limited evidential burden to the defence on that issue.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 25(2)
- Criminal Procedure Act 1986 (NSW), ss 132, 132A, 133
- Drug Misuse and Trafficking Act 1985 (NSW), s 29
- Evidence Act 1995 (NSW)

Cases
- Fleming v R (1998) 197 CLR 250
- Shepherd v The Queen (1990) 170 CLR 573
- Harriman v The Queen (1989) 167 CLR 590
- Weissensteiner v The Queen (1993) 178 CLR 217
- He Kaw The v The Queen (1985) 157 CLR 523
- Azzopardi v The Queen [2001] HCA 25
- HG v The Queen [1999] HCA 2
- Meakin v R [2018] NSWCCA 288
- Mogilevsky v R [2010] NSWCCA 92
- Jackwitz v R; Franklin v R [2006] NSWCCA 419
- R v Amanatidis [2001] NSWCCA 400
- R v Filippetti (1984) 13 A Crim R 335
- R v Dib (1991) 52 A Crim R 64
- Maric v The Queen (1978) 52 ALJR 631