Director of Public Prosecutions (NSW) v Zaiter

Director of Public Prosecutions (NSW) v Zaiter - [2016] NSWCCA 247 - NSWCCA 2016 case summary — Zoe

Alleged offences between 2 May and 16 October 2015 at Sydney

The respondent is charged with knowingly taking part in the supply of a large commercial quantity of cocaine and knowingly dealing with the proceeds of crime between 2 May and 16 October 2015. The broad allegation is that in that period of time the respondent was involved in the supply of just over 2.6 kg of a prohibited drug and dealt with some $142,000 in cash which is alleged to have been the proceeds of drug supply activity.
The police investigation involved the installation of audio and video surveillance devices in various hire cars that the respondent is alleged to have used within this period. According to the police statement of facts, on about 20 occasions within this period the respondent was seen to be involved in handling quantities of cocaine and sums of money which he concealed beneath the centre console of the vehicle. For example, on some occasions he was seen to retrieve a quantity of what was alleged to have been cocaine and leave the vehicle and then to return to the vehicle empty handed. On various occasions he was seen to produce bundles of money from his pants and store it underneath the centre console.
On most of these occasions it is the police contention that the respondent supplied the cocaine to an unknown person. However, on one occasion he engaged in sexual activity with a woman in his car and then provided her with a small quantity of cocaine (0.25 grams). She subsequently made a statement to police confirming the supply to her of the cocaine. On another occasion he threw two bags of cocaine out of the car which police recovered and confirmed that it was in fact 0.26 grams of cocaine.
The most significant supply is said to have occurred on 5 July 2015 where the respondent is alleged to have taken from the car quantities that are asserted to be half a kilogram and one kilogram of cocaine and leave and then return empty handed.
In a conversation with an unknown male on 27 May 2015, which the police assert was in relation to the large scale supply of cocaine and the profits that were being made by the respondent, he was recorded as having said, "I sell it for one eighty … I'm still making thirty grand on occas". ("Occas" is apparently common drug terminology for ounces.)
The police facts assert that there are other recordings (that are not particularised in the statement of facts) that show the involvement of the respondent in the large scale supply of cocaine and knowingly dealing with the proceeds of crime.
The submissions by counsel for the respondent pointed out that the prosecution case was heavily dependent upon electronic surveillance evidence. There was speculation by police as to the substance being cocaine and as to quantities. It was submitted that the substance "was not cocaine but something else, perhaps powdered steroids". As to the sums of money seen in the recordings, it was contended that the police had provided mere estimates of the amounts.
The submissions did not suggest any innocent or alternative explanation for the respondent using various hire cars and being seen to be in possession of significant sums of money, including the police assertions that on 20 May 2015 he handed an unknown male three large bundles totalling about $50,000 in fifty dollar notes and that on 16 October 2015 he removed about $25,000 from his pants.
At the hearing of the application on 26 October 2016 the Crown played to the Court an excerpt of the surveillance device recording of the incident on 5 July 2015 referred to above. In my perception, it bears out the assertion in the police facts that the respondent retrieved plastic-wrapped white rectangular thin block-like objects that had the appearance of compressed powder from underneath the centre console of the car and put them into a bag. He was careful to avoid his fingerprints being left on the objects by holding them within a cloth-type object in his hands.

[5]

Offences on 19 January 2016 at Manly

At about 3pm on 19 January 2016, Sevastopoulos was seen to go to a café in North Sydney where he met with Kale Dempsey, who is described as being an associate of the respondent and Sevastopoulos. Dempsey provided a pink Telstra bag to Sevastopoulos who then drove to the respondent's home in Manly. He entered the respondent's home carrying an object which could not be identified by surveilling police. The police facts assert that the respondent was home but that is, apparently, disputed. Sevastopoulos left about an hour later carrying a brown bag. He caught a taxi but was pulled over at Mosman. The bag was searched and found to contain the pink Telstra bag in which there was 488 grams of cocaine in a "Foodsaver" vacuum sealed bag. He was also in possession of an encrypted Blackberry phone.
Police then executed a search warrant at the respondent's home. The police facts assert that the respondent "was still at home". They found 19.55 grams of cocaine in two bags behind a picture frame. They found a further 2.44 grams of cocaine in four bags hidden under a kitchen drawer. They also found a Sunbeam Foodsaver vacuum heat sealing machine in a cupboard above the refrigerator. A subsequent examination identified this machine as having been used to seal the 488 grams of cocaine that were found in Sevastopoulos' possession at Mosman. The expertise of the police officer who carried out this examination is an issue.
Police also found a set of electronic scales, 18 vials of steroids, and another encrypted Blackberry phone. Analysis at the Forensic and Analytical Science Service revealed DNA consistent with being the respondent's on the packaging of cocaine found within his premises, on the electronic scales and on the "Sunbeam Foodsaver" machine.
In written submissions, counsel for the respondent contended that the evidence suggested that the 488g of cocaine was supplied by Dempsey to Sevastopoulos and that the visit by the latter to the respondent's home could have been for any number of reasons, including the supply of the small quantities of cocaine later found there. This is obviously at odds with the assertion that the respondent was not home when Sevastopoulos attended.
It was submitted that there was no DNA evidence linking the respondent to any of the packaging of the drug. DNA consistent with being that of Sevastopoulos was in fact found on the Telstra bag but none at all was detected on the Foodsaver vacuum sealed bag. It was also pointed out on the respondent's behalf that there were no large sums of money found at the respondent's home.
Evidence tendered in the respondent's case included that his solicitor had been told that Sevastopoulos intended to rely upon a Carey defence (he was "simply returning the drugs to their rightful owner"). Thus, it was submitted, given he was arrested when travelling away from Manly, the respondent could not have been the owner. Section 31 of the Bail Act 2013 (NSW) provides that the rules of evidence do not apply but the evidence as to Sevastopoulos' intentions as to his plea and his defence is not at all soundly based.
It was also contended that the steroids found at the respondent's home come in a powder form to which liquid is added for injection. Accordingly, the substance apparently seen in the respondent's possession on the various occasions between 20 May and 16 October 2015 could also have been steroids.

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Judgment (17 paragraphs)

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Cited By (22)