District Court New South Wales Medium Neutral Citation: R v Lineham [2016] NSWDC 247 Hearing dates: 26 August 2016 Decision date: 14 October 2016 Jurisdiction: Criminal Before: Hatzistergos DCJ Decision: The offender was in possession of 11.5 grams of a prohibited drug, namely cocaine Catchwords: DRUG OFFENCES – supply prohibited drug – representative drug testing – whether untested substance distinguishable from tested sample Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW) ss 25(1), 43 Drug Misuse and Trafficking Regulation 2011 (NSW) Cases Cited: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Duffy v R; Mangan v R [2009] NSWCCA 304 R v Lee Martin Cotterill (Unreported, NSW Court of Criminal Appeal, 7 June 1993) R v Pilley (Unreported, NSW Court of Criminal Appeal, 2 May 1991) R v O'Neill [1979] 2 NSWLR 582 Category: Procedural and other rulings Parties: Regina (Crown) Mr Stuart Lineham (Offender) Representation: Ms M Fleeton (Crown) Mr P English (Offender) File Number(s): 2014/149481 Publication restriction: Nil Judgment 1. On 11 August 2016, the offender Stuart Lineham was arraigned on one charge of supply a prohibited drug, namely cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) [1] and one charge of supply a prohibited drug, namely 3,4-methylenedioxymethamphetamine (otherwise known as ecstasy) contrary to s 25(1) of the 1985 Act. 2. The offender entered pleas of guilty to both offences and sentencing was deferred to the conclusion of the judge alone trial in relation two other offences with which the offender was charged. That trial concluded on 25 August 2016. Later that day, a sentencing hearing commenced. However as there was an issue in respect to a matter relating to which a plea of guilty had been entered, evidence was called to determine the disputed question of fact. [2] 3. The dispute concerned the quantity of prohibited drug the subject of the cocaine charge. The Crown relied on a certificate prepared in accordance with the provisions of s 43 of the 1985 Act and Part 3 of the Drug Misuse and Trafficking Regulation 2011 (NSW), tendered as Exhibit T. The certificate was dated 2 July 2014 and prepared by Mr Christopher John Ewers, an analyst employed by the NSW Government, with qualifications as a forensic scientist. Counsel for the offender raised no issue challenging the chain of custody and the materials tested being those found in the vehicle the subject of a search by police on 17 May 2014. Nor was any challenge advanced as to Mr Ewers' qualifications. 4. The only issue raised was the extent to which Mr Ewers tested the material in question and therefore, the quantity of prohibited drugs that had been established by the evidence. 5. At the trial the evidence was that material found in the vehicle searched on 17 May 2014 included drugs placed in a bag 710425. It contained 18 small resealable bags. [3] Mr Ewers was asked as to the processes he undertook in relation to this substance. Referring to his findings expressed in Exhibit T, he stated:- "In this (sic) items there were 18 resealable plastic bags containing substance. You can see in the footnote that I've said that the substance from nine of these resealable plastic bags was tested. So basically we have an accepted sample selection guidelines which state that we must test a representative sample to the highest practical charge for any exhibit. So here the representative sample is a square route of the total exhibits, so I need to test at least five from that, so I tested nine, because I needed to reach the highest charge which was 5 grams for cocaine. And I've done a full test individually. So I've done an individual presumptive screening test for the presence of cocaine on each of those nine items and then I've tested one individually and a portion of each of the remaining eight combined together and also performed a purity on that composite sample which I found to be 44.5%." [4] 1. Mr Ewers was challenged in relation to his findings. It was put to Mr Ewers that cocaine came in a variety of different colours. Mr Ewers accepted that he had seen white and different shades of white, and also black. He also accepted that it could come in the form of a rock or powder. [5] He acknowledged that there were often times when items were tested, which are suspected of containing a prohibited drug, and they in fact, contained some inert substance. [6] He was then shown Exhibit G and asked to assume that it was a photograph of the 18 resealable plastic bags delivered to his laboratory. 2. Mr Ewers acknowledged that the bags appeared in some instances, to be of powder, and in others, to be of rock. [7] He stated, as compared to the contents of the various bags, that there "maybe a slight shade difference but I couldn't see any." [8] He stated that they all looked a "yellowy tinge." [9] He conceded in respect of the nine resealable bags he did not test, that he could not say that the contents were the same as those that he did test. [10] 3. In submissions, Counsel or the offender submitted that 5.959 grams was accepted in relation to the substance from the nine resealable plastic bags which were examined by Mr Ewers. [11] This is opposed to the 11.5 grams total calculated weight referred to on the contents of the eighteen resealable plastic bags in security bag number 710425. 4. Counsel for the offender submitted that in light of the concessions made by Mr Ewers, that cocaine could come in a number of forms and that he could not be certain that the nine resealable bags he did not test were the same which he did test, the Court would have a reasonable doubt as to whether the remaining nine bags contained the substance which was the prohibited drug (namely cocaine) in line with R v Olbrich. [12] 5. These submissions are misconceived. There is no suggestion or submission advanced that the sampling undertaken by Mr Ewers was not random, nor any discrimination in the packaging in relation to contents. Mr Ewers stated that there "maybe a slight shade difference but I couldn't see any" [13] and that "they all look a yellowy tinge." [14] 6. Consistent with the decision of the NSW Court of Criminal Appeal in R v Lee Martin Cotterill [15] and R v Pilley [16] , the "overwhelming inference" was that the whole of the contents of the packages was of the same quality that was contained in the drug analysed. It follows that I am satisfied beyond reasonable doubt in accordance with Exhibit T that the total calculated weight was 11.5 grams of cocaine with a purity of 44.5%. Endnotes 1. Hereinafter referred to as the "1985 Act" 2. R v O'Neill [1979] 2 NSWLR 582, 588 – 589 (Moffitt ACJ); Duffy v R; Mangan v R [2009] NSWCCA 304 at [21] (Fullerton J with Allsop P and McCallum J agreeing) 3. Exhibit P at [3] 4. T 4.3 – .14 (26 August 2016) 5. T 5.26 – .36 (26 August 2016) 6. T 5.38 – .42 (26 August 2016) 7. T 6.14 – .16 (26 August 2016) 8. T 6.18 – .20 (26 August 2016) 9. T 6.24 (26 August 2016) 10. T 6.39 – .45 (26 August 2016) 11. T 21.9 12. (1999) 199 CLR 270; [1999] HCA 54 13. T 6.18 – .20 (26 August 2016) 14. T 6.24 (26 August 2016) 15. R v Lee Martin Cotterill (Unreported, NSW Court of Criminal Appeal, Finlay J with Hunt CJ at CL and Levine J agreeing, 7 June 1993) 16. R v Pilley (Unreported, NSW Court of Criminal Appeal, Finlay J with Handley JA and Allen J agreeing, 2 May 1991) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 October 2016