R v White [2011] ACTSC 21 (15 February 2011)

R v JEFFREY WAYNE WHITE
[2011] ACTSC 21

CRIMINAL LAW – trial by judge alone – intention to traffic a controlled drug – reasonable doubt as to requisite state of mind – finding of not guilty entered

EVIDENCE – combination of factors with cumulative effect on assessment of evidence – brevity of exchange – differences in recollections – uncertainty as to an offer to sell – not satisfied beyond reasonable doubt









No. SCC 5 of 2010

Judge: Teague AJ
Supreme Court of the ACT
Date: 15 February 2011
IN THE SUPREME COURT OF THE )
) No. SCC 5 of 2010
AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

JEFFREY WAYNE WHITE

ORDER

Judge: Teague AJ
Date: 15 February 2011
Place: Canberra

THE COURT ORDERS THAT:

1. There be a verdict of not guilty recorded in respect of the count on the indictment.

1. Judges instructing juries are well aware as to the limits as to what they should say when asked as to the meaning of “beyond reasonable doubt”. They can be told that the words mean exactly what they say. No elaboration is appropriate. However, juries may be assisted to understand that meaning by the use of the comparison with the lower standard of “on the balance of probabilities”. After hearing the evidence against Jeffrey White, I was satisfied on the balance of probabilities, but not beyond reasonable doubt, that, at the critical time, he intended to sell a controlled drug.
2. Jeffrey White was charged that, on 22 August 2009, in Canberra he trafficked in a controlled drug. The charge gave the full chemical details for what is known as ecstasy. Mr White elected for trial by judge alone. Because of the co-operation between Mr Hiscox for the Crown and Mr Sharman for Mr White, the trial was short. I heard oral testimony from four witnesses. One was a policeman, the other three were not. The three were Liam Sullivan (“Liam”), Samuel Murphy (“Sam”) and Alicia Doubtfire (“Alicia”). The four were cross-examined minimally. Statements from other police members and other formal documentation as to continuity of drug testing and otherwise were admitted, but barely referred to. That was essentially because my attention was drawn by Mr Sharman at an early stage to the central issue, that of intention.
3. The main focus of my attention was on what happened in less than a minute in East Row near the night club called “Shooters” at about 4.30 a.m. on 22 August 2009. Liam and Sam were in a group of five that was approached by Alicia and Mr White (“Jeff”). There was no evidence of previous familiarity between those in the group approached and that approaching. There was evidence from Sam and Alicia of the drinking of alcohol in other than small quantities by each of them. Alicia could recall having had a lot to drink, but had no recollection of the contact with Liam and Sam. Jeff did not give evidence. Through the police, evidence was received that Jeff had told the police a little. It was in short that a clip seal bag containing five pills belonged to a friend. That meant that there was even more focus on the events of a minute or less. Liam and Sam both said that the first words, which included the word “coke” were spoken by Jeff, that Sam queried Jeff and got an answer, and that there was little more said.
4. Mr Hiscox urged me to make the finding that Jeff had the intention to traffic in a controlled drug from what was said and done, taken with the other evidence. He had the advantage of the oral testimony having been given before me by two witnesses in Liam and Sam who were essentially credible witnesses. Further, Sam had put a question. To his recall, the question was put by him in a sarcastic way, rather than as an interested probing query. Both said that Jeff’s opening words were along the lines: “Hey boys, want some coke?” Both said that Sam queried whether Jeff meant coke as in coca-cola.
5. As to what followed, there was not a consensus. Liam’s recall was that Jeff’s reply was: “Nah cocaine.” Sam’s recall that the reply was simply: “Coke”. Liam spoke of Jeff then pulling out, and holding up towards Liam’s face, a plastic bag containing powder and two beige or pink pills. Sam had no recall of any such bag. Mr Hiscox also gained ground from the circumstance that the police who spoke with Jeff shortly afterwards, found on him a clip seal bag containing five yellow pills. The ground was somewhat lost when the later analysis revealed that the pills were ecstasy.
6. The evidence was sufficient to satisfy me, on the balance of probabilities that, Jeff was offering to sell a controlled drug to Liam and Sam. However, there existed a combination of factors that precluded me being satisfied that that had been established beyond reasonable doubt. One of those was the brevity of the exchange in the circumstances. It was a very short exchange at a very early hour when people are generally not at their best in terms of concentration, speech articulation, perception and memory, particularly if they have been enjoying themselves with a few or more social drinks. It further troubled me that Sam said that he had no recall of seeing the clip seal bag that figured in detail in the evidence of Liam. Less troubling, but still of concern was that what Liam said as to the pills he saw differed as to numbers and colour. For quite a different reason, going not to a fundamental but only to the risk of misperception, was that the pills proved to be ecstasy, not cocaine. There were other minor matters, but they can and did have a cumulating impact on my assessment of the evidence. One was that Sam only asked one question. Another was that, as to the substance of the reply, the recalls were different, and in the case of Sam’s recall, ambivalent to say the least. That further clarification was not sought is not a criticism. But it would, or may have assisted to resolve uncertainties as to whether there was an offer to give or sell and as to precisely what was to be exchanged. In the circumstances, there could well have been a misunderstanding about a fleeting flippant remark.
7. In the light of my assessment of the evidence as a whole not being such as to permit me to find beyond reasonable doubt that there was the requisite state of mind, I found Mr White not guilty of the charge of trafficking. I subsequently sentenced him on the charge of possession of a controlled drug, to which he had pleaded guilty.

I certify that the preceding * (*) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Teague.

Associate:

Date: 15 February 2011

Counsel for the Crown: Mr J Hiscox
Solicitor for the Crown: Director of Public Prosecutions for the ACT
Counsel for the defendant: Mr T Sharman
Solicitor for the defendant: Rachel Bird & Co
Date of hearing: 31 January 2011
Date of judgment: 15 February 2011