District Court New South Wales Medium Neutral Citation: R v Sukkasem [2020] NSWDC 78 Hearing dates: 17 March 2020 Date of orders: 17 March 2020 Decision date: 17 March 2020 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 20 Catchwords: CRIMINAL LAW – evidence – drug offences – evidence of cash located on premises at which accused apparently resided – pre-trial application to limit evidence to one count (proceeds of crime charge) and exclude evidence in relation to other count (drug possession for purpose of supply) – whether evidence unfairly prejudicial to accused Legislation Cited: Crimes Act 1900 (NSW), s 193C(2) Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29 Evidence Act 1995 (NSW), ss 55, 56, 137 Cases Cited: R v Falzon [2018] HCA 29; 92 ALJR 701 R v Hughes & Curtis (1983) 49 ALR 110 Category: Procedural and other rulings Parties: The Crown Ms N Sukkasem Representation: Counsel: Mr J Brook for the Crown Mr G Stanton for the accused Solicitors: Office of the Director Of Public Prosecutions of New South Wales Legal Fusion File Number(s): 2018/116557 Publication restriction: Nil Judgment INTRODUCTION 1. The accused pleads not guilty to two counts on an indictment, those counts being that on 14 December 2017 in Sydney she: 1. supplied a prohibited drug, namely methylamphetamine contrary to ss 25(1) and 29 of the Drug Misuse and Trafficking Act 1985 (NSW) (the 'DMTA'); and 2. dealt with property, namely $5,630 in cash, in circumstances where there were reasonable grounds to suspect that the property was the proceeds of crime, contrary to s 193C(2) of the Crimes Act 1900 (NSW). 1. The trial is before me, sitting alone. 2. The accused raises a pre-trial objection to evidence that the Crown proposes to rely upon. For the purpose of determining the application, I have been supplied with the Crown Case Statement. 3. The gist of the accused's application is that evidence of cash located on premises in which, it appears, she resided or at least last stayed should be excluded from the Court's consideration of count 1. 4. I understand that the objection is based upon ss 55-56 and 137 of the Evidence Act 1995 (NSW). That is, I understand that the accused contends that the evidence of cash located on the premises, whilst relevant to count 2, is irrelevant to count 1; or, in the alternative, if it is relevant, it is so unfairly prejudicial as to outweigh its probative value and is thereby rendered inadmissible under s 137 of the Evidence Act. THE CROWN CASE STATEMENT 1. This statement relevantly indicates that the Crown case will be that on 14 December 2017, police executed a search warrant at the premises at unit 304/718 George Street, Sydney. Those premises are a single level, two bedroom unit. Upon execution, the Police found the accused on a bed in the second bedroom. The police say that the accused informed them that she lived in the unit. They say that the accused admitted staying in that room – there is some ambiguity as to what the accused said about whether or not she lived there and/or, if she did, whether someone else lived there as well. 2. The Crown case will be that the police located 124.04g of methylamphetamine, contained in 48 resealable bags found in different locations throughout the bedroom. The Crown case will also be that a number of other chattels were found in the bedroom, including a Louis Vuitton coin purse. 3. Most relevantly, for the purposes of this application, the Crown case will be that cash in the sum of $5,630 was found in the bedroom; along with a small set of silver scales, a mobile phone and notebook ledgers. THE ACCUSED'S ARGUMENT 1. As indicated, the accused does not object to evidence about the cash located on the premises being admitted in respect to count 2. Its objection is that it becomes admissible in relation to count 1. 2. The accused submits that the Crown relies upon the deeming provision in s 29 of the DMTA, which, to paraphrase, and in application to the circumstances of this case, would deem possession by the accused of 124.04g of methylamphetamine to constitute possession of the prohibited drug for supply unless the accused could prove that she had possession for a purpose other than for supply. 3. The accused's Counsel submitted that it is not the accused's intention to raise a case that the drug was to be used for her personal use. 4. That being so, the submission ran, since the Crown case relied upon the deeming provision in s 29, there was no permissible purpose for it to also rely upon the presence of the cash as an indicia of actual supply. Counsel noted that there was no conduct in count 1 referable to actual supply. 5. Counsel for the accused then submitted that if the evidence of the presence of cash was admitted, it would lead to unfair prejudice. It was suggested that there was either duplicity in the first count or, if not, there was a prospect of double jeopardy because the existence of the cash was a common factual feature of the two counts. That being so, the evidence must be excluded under s 137. 6. In response, the Crown submits that in its recent decision in R v Falzon [2018] HCA 29; 92 ALJR 701, the High Court reaffirmed long-standing principle that where a person found in possession of a prohibited drug is also found in possession of the accoutrements of a drug-trafficking business, including re-sealable plastic bags, scales, a multiplicity of mobile telephones or significant quantities of cash, such evidence is admissible in proof of a charge that the drugs were in possession for the purposes of supply; and, more specifically, the evidence is of the nature of circumstantial evidence which, when used in conjunction with the fact of possession may found the inference that the accused was engaged in the business of selling drugs. This was so notwithstanding that such evidence may also be indicative of a tendency towards crime (at [1]). 7. The Crown submits that the circumstance that the two counts may commonly require proof of the existence of cash on the premises does not give rise to concerns about duplicity or double jeopardy. DETERMINATION 1. In my opinion, there is no substance in the argument that because the Crown invokes the statutory presumption in s 29, it is precluded from trying to establish that the accused had possession of the drug for the purpose of trying to establish that the accused was carrying on or involved in a drug trafficking business. This would treat the Crown as being put to an election where it is established that the Crown is entitled to rely upon both the statutory presumption and actual evidence tending to establish the fact to be proved: R v Hughes & Curtis (1983) 49 ALR 110. The circumstance that the accused's Counsel has foreshadowed that no argument will be run that the drugs which were located in the bedroom were not intended for her personal use does not alter the position. Section 29(a), by its terms, is only a rebuttable presumption. It is open to the Crown to seek to rely upon the evidence of the cash on the premises in rebuttal to whatever purpose that the accused might seek to rely upon. 2. There is no duplicity in the Crown seeking to rely upon the evidence in this way in count 1: there are no multiple offences. 3. I do not see that double jeopardy arises. Theoretically, the accused might establish, for the purposes of count 2, that such cash as was located on the premises may not have represented the proceeds of a drug trafficking business, but she could still be convicted on count 1 on the basis of all of the evidence in relation to count, excluding the evidence of the cash that was found. 4. In relation to the s 137 objection, the position is not dissimilar to how the High Court ruled on a similar objection in Falzon: the probative value of the evidence of cash found in the bedroom was high; and, combined with other apparently circumstantial evidence of carrying on of a business, including scales and re-sealable bags and a Louis Vuitton purse, constitute a prima facie strong circumstantial case. The evidence of the cash was prejudicial to the accused, but that is only because it is admissible. Further, to the extent to which the evidence may suggest any propensity reasoning, the accused's counsel will, of course, have the opportunity to submit to an appropriate direction that I should give myself at the conclusion of all the evidence. 5. The accused's application is rejected. ********** 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: 02 April 2020