153 CLR 521
Lau v R [2014] NSWCCA 179
M v The Queen [1994] HCA 63
181 CLR 487
R v Hillier [2007] HCA 13
228 CLR 618
SKA v The Queen [2011] HCA 13
243 CLR 400
Wood v R [2012] NSWCCA 21
Source
Original judgment source is linked above.
Catchwords
153 CLR 521
Lau v R [2014] NSWCCA 179
M v The Queen [1994] HCA 63181 CLR 487
R v Hillier [2007] HCA 13228 CLR 618
SKA v The Queen [2011] HCA 13243 CLR 400
Wood v R [2012] NSWCCA 21
Judgment (4 paragraphs)
[1]
The applicant's submissions on appeal
The applicant submitted that the matters relied upon by the Crown did "no more than support an inference that at some point during the deconstruction [of the engine], the [a]pplicant became suspicious about what the canisters contained" (Applicant's Written Submissions, [77]). Although acknowledging that a circumstantial case requires the evidence to be considered as a whole, the applicant understandably addressed the individual matters that the Crown relied upon, asserting their irrelevance or seeking to minimise their significance.
First, the applicant submitted that there was no evidence that he was aware of many of the matters relied upon by the Crown, for example, the fictitious consignee name and business ("Ron" and "Motor Sports") and the role of the fictitious person "Ron Bayless". This does not however render those matters irrelevant. Evidence of them properly formed part of the large volume of material that the jury was required to consider in order to assess the applicant's conduct and determine whether the Crown had proved beyond reasonable doubt that the applicant believed that the consignment contained border controlled drugs.
The applicant particularly emphasised that there was no evidence that he had read any of the documentation associated with the engine or was otherwise aware that the engine had been shipped from overseas. It was however open to the jury to conclude that the applicant must have read, or at least have seen, sufficient parts of the shipping documents which he burned for him to appreciate that the shipment was from the United States. The surveillance footage showing the applicant holding the documents out in front of him before he burned them (Exhibit DD, Transcript p 324). As well, immediately adjacent to the plastic sleeve from which he removed those documents was a prominent bar code document clearly indicating that the shipment was from overseas (see [25] above).
In any event, the Crown did not need to prove separately that the applicant knew that the shipment was from overseas. As observed in Wood v R, quoting Chamberlain v The Queen (No 2) [1984] HCA 7; 153 CLR 521 at 535, "it is often the case that 'one piece of evidence resolves … doubts as to another'" (at [53], see [9] above). This is an aspect of the requirement that the evidence be looked at as a whole. Thus, if the remainder of the Crown's case were regarded as proving the applicant's knowledge or belief that the engine contained concealed drugs, it could readily be inferred that he obtained that knowledge from Mohamed Metleg or some other participant in the enterprise and that he became aware by the same means that the drugs were border controlled drugs that had been intended to be illegally imported from overseas.
Thirdly, the applicant submitted that it was not of significance that Mohamed Metleg arrived at the applicant's workshop at 2.53 pm (and again at 4.31 pm) on the very afternoon that the engine was delivered because an obvious possibility was that Mohamed Metleg made arrangements for the delivery. Thus, it was said that there was no inconsistency with the applicant's case.
Fourthly, the applicant submitted that his instruction to Dominic Dos Santos to sign the delivery docket is not of significance because the surveillance video showed that the applicant was busy doing other things when Dominic Dos Santos was signing. However, this submission does not negate the possibility that the applicant instructed Dominic Dos Santos to sign in order to avoid a record of the applicant's involvement being created.
Fifthly, the applicant submitted that his burning of the consignment documents indicates nothing more than a suspicion on his part and in any event that he did not burn the bar code document that was affixed to the box.
Sixthly, the applicant submitted that no adverse inference could be drawn from the fact that the applicant drove his customer's BMW on 11 April 2012.
Seventhly, the fact that the lights were turned off at 6.48 pm (if the automatic light switch explanation were rejected), the failure immediately to turn on the car lights, the failure to turn the office lights on (see [31] above), the applicant's use of the name George and his flight when the police arrived are all equally consistent with the applicant being highly suspicious as they are with him having the relevant knowledge or belief required for the offence.
Eighthly, the applicant's communications with Omar Metleg are said not to be significant because there is no evidence except "for the very phone calls that the Crown rely upon, that Oma[r] Metleg was ever involved in the importation of the Cocaine" (Applicant's Written Submissions, [99]). However, it was not necessary for the Crown to prove Omar Metleg was involved in the importation. The applicant's conversations with him stood as part of the evidence against the applicant without it being necessary to draw any conclusion about Omar Metleg's complicity.
Ninthly, the applicant submitted that although "it is demonstrably obvious that [Roy] Malouf was involved in the importation", there was no evidence that he had any conversation with the applicant about the importation.
Tenthly, the applicant submitted that he was closely monitored by the Metlegs and Roy Malouf during the time that he had the engine. This was not however the case between approximately 4.30 pm and 7.00 pm when the applicant had ample opportunity to deal with the cocaine in a manner inconsistent with Mohamed Metleg's interests or to report the delivery to the police.
Eleventhly, the applicant submitted that the applicant's remuneration for his role in the operation ($500 and a bottle of whisky) was completely inconsistent with his knowing participation in the importation of drugs with a street value in the order of $1.2 million. However, although $845.00 and a bottle of whisky were found in the BMW that the applicant was driving (Transcript p 309), the only evidence of the remuneration was given by the applicant and it was therefore open to the jury to disbelieve him in relation to that (and other matters) as there was no objective or corroborating evidence to support his contention.
Twelfthly, the applicant submitted that the proposition that he had no idea what the canisters contained was supported by the fact that it took some hours for the "highly trained United States customs officials, searching for something illegal [to remove] the canisters from the engine" and that they "had no idea what the canisters contain[ed] until such time as they had managed to remove the lid[s]" (Applicant's Written Submissions, [118]). However, this submission does not answer the Crown's contention that the whole of the evidence justified the jury's conclusion that the applicant knew or believed that the engine contained border controlled drugs within the canisters. The Crown's case did not depend on the applicant's observation of the canisters in the engine, although that was a material fact because they were clearly not the pistons he had been told to extract. In any event, a comparison with the actions of the United States customs officials is inapt because, whilst no doubt highly trained in searching for drugs, it cannot be assumed that they had a high level of experience in dismantling motor vehicle engines, unlike the applicant who was a trained mechanic.
[2]
Resolution of the Application for Leave to Appeal
As recorded earlier, my independent assessment of the evidence at the trial leads me to conclude that the Crown proved its case against the applicant beyond reasonable doubt and that the applicant was therefore rightly convicted. In reaching that conclusion, I give weight to the advantage that the jury had over this Court in seeing and hearing the applicant give his evidence and in assessing the whole of the evidence during the course of the 12 day trial. In particular, the jury heard and saw the surveillance footage and recordings, none of which the parties showed or played to this Court. Further, because the applicant's sole proposed ground of appeal was that the jury's verdict was unreasonable, it must be assumed that the jury was properly instructed by the trial judge in all respects.
Given that the evidence must be looked at in a holistic fashion, it is unnecessary in a case such as the present to identify any single piece of evidence that is inconsistent with the applicant's innocence. Nevertheless, the evidence of the applicant's careful destruction of the consignment documents contained in the plastic sleeve affixed to the box containing the engine (see [24] above) is particularly notable. This was powerful evidence against the applicant as the destruction occurred well prior to the applicant dismantling the engine and observing that there were no pistons in it, but instead eight canisters, seven being sealed.
Furthermore, the applicant did not seek any explanation (from anyone) of Mohamed Metleg's instruction to him to "get rid of the paperwork for me". Instead, he acted upon it in a way that suggested that he had knowledge, or a belief, that the engine contained an illicit substance. The applicant did not simply "get rid of the paperwork" by disposing of it in a nearby bin, he instead set fire to the documents ensuring that they were completely burnt before disposing of the ashes in a wheelie bin in the rear laneway.
The applicant gave no adequate explanation for this conduct. Moreover, whilst he conceded that the instruction made him "a bit suspicious", he did not raise that suspicion in that conversation with Mohamed Metleg, nor in any of the subsequent conversations that he is known to have had that evening. In particular, he did not raise it with Omar Metleg, with whom his recorded communications show that he had a degree of familiarity. Further, he did not suggest that he was too frightened to raise his concerns nor otherwise satisfactorily explain his conduct.
I consider the following matters to be particularly significant. I mention them only briefly as they are referred to more fully above, at least once. I do not suggest that any one of them is itself inconsistent with the applicant's innocence. Rather, it is their cumulative effect, when taken with the applicant's destruction of the consignment documents and the remainder of the evidence, that constituted a powerful Crown case against the applicant.
The applicant's instruction to his employee to sign for the delivery.
The applicant's failure to communicate to the Metlegs, Roy Malouf or the police the concern that he asserted that he developed when asked to "get rid" of the consignment documents.
The similar lack of communication when he again became concerned upon dismantling the engine.
The applicant's removal and delivery of the canisters when he had been asked only to remove and deliver pistons.
His failure to remove the canister that was empty.
His continuation of work in partial darkness after the workshop lights went off or were turned off.
His wearing of gloves when dealing with the engine, including after returning to the workshop with Roy Malouf at 7.36 pm.
His removal of the gloves between the time that the police entered the workshop and his arrest.
Proceeding with the removal of the canisters despite his asserted concern that something "wasn't right".
His use of the false name "George" when he answered the telephone call from Omar Metleg at 6.52 pm and his failure to explain why he did so.
His driving of the BMW vehicle down the rear lane with its headlights switched off.
Engaging in a conversation with Roy Malouf about burning the consignment box on their return to the workshop after the applicant delivered the canisters.
To these matters must be added the unlikelihood, as asserted by the Crown, of Mohamed Metleg leaving the valuable consignment in the sole care of the applicant for a number of hours unless he was satisfied that the applicant was privy to the nature of the consignment and willing to deal with it on the intended illicit basis. A similar circumstance was regarded as an important aspect of the circumstantial evidence in Lau v R [2014] NSWCCA 179 at [88].
[3]
Orders
Leave to appeal should be granted but, for the reasons that I have given, the appeal should be dismissed.
JOHNSON J: I agree with the judgment of Macfarlan JA and his Honour's proposed orders. Having undertaken an independent assessment of the evidence, I am satisfied that the Crown proved beyond reasonable doubt the applicant's guilt of the offence charged.
BUTTON J: Assessing the whole of the evidence in the trial, there was a very powerful circumstantial case against the applicant.
I am satisfied beyond reasonable doubt of the guilt of the applicant of the offence of which he was convicted.
I agree with the orders proposed by Macfarlan JA, for the reasons given by his Honour.
[4]
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Decision last updated: 22 July 2015
MACFARLAN JA: Following a plea of not guilty and a 12 day jury trial in 2013 in the District Court, the applicant was convicted of the following offence under subsections 307.9(1) and 11.1(1) of the Criminal Code 1995 (Cth):
"On or about 11 April 2012 at Sydney in the State of New South Wales, [Gabriel Elsleiman] did attempt to possess a substance, being a substance that is reasonably suspected of having been unlawfully imported, the substance being a border controlled drug, namely cocaine, and the quantity of the substance being a marketable quantity".
The offence arose out of the intended shipment from the United States to the applicant's motor vehicle workshop in South Strathfield, Sydney, of a motor vehicle engine containing a pure net weight of 1,720.2 grams of cocaine secreted in seven canisters. Authorities in the United States seized the consignment and despatched it to Australia after removing the cocaine. Australian Federal Police ("AFP") Agents then substituted an inert white powder in the canisters, reconstructed the consignment and delivered it to the workshop. The applicant removed the canisters from the engine and delivered them to Mohamed Metleg on whose instructions he was acting. The applicant's case at the trial was that he had, at most, a suspicion that the engine, and the canisters in it, contained illegal substances. The issue at the trial was whether the Crown had proved beyond reasonable doubt that the applicant had the requisite intention or knowledge applicable to the offence. The Crown presented a circumstantial case to which the applicant responded by giving evidence.
The applicant seeks leave under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to appeal against his conviction on the ground that the jury's verdict was "unreasonable, or cannot be supported, having regard to the evidence" (see s 6(1) of that Act). In determining such a ground of appeal, this Court must make "an independent assessment of the evidence, both as to its sufficiency and its quality" and determine "whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty" (SKA v The Queen [2011] HCA 13; 243 CLR 400 at [14] and [11] quoting M v The Queen [1994] HCA 63; 181 CLR 487). The "central question" to be answered in making such an independent assessment is whether the court is satisfied that the applicant is guilty of the offences (SKA v The Queen at [20]).
Having made an independent assessment of the record of the trial, I consider, for the reasons stated below, that the Crown proved its case beyond reasonable doubt and that it was thus open to the jury to convict the applicant. Whilst leave to appeal should be granted, the appeal should therefore be dismissed.
Principles applicable to circumstantial cases
As stated by the plurality in R v Hillier [2007] HCA 13; 228 CLR 618, in a circumstantial case, "all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence" (at [46]) and:
"48 Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal".
Having emphasised that the prosecution must prove its case beyond reasonable doubt, McClellan CJ at CL (with whom Latham and Rothman JJ agreed) stated in Wood v R [2012] NSWCCA 21; 84 NSWLR 581:
"53 At the same time, the trier of fact must bear in mind that a circumstantial case is to be considered holistically: R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [48]-[49] (Gummow, Hayne and Crennan JJ). Putting to one side for the moment 'indispensable' intermediate facts … it would be wrong for a jury to acquit an accused merely because it harbours reasonable doubts about some inculpatory evidence, though it ignores or unduly minimises other, more compelling evidence of the accused's guilt. As it is often the case that 'one piece of evidence ... resolves doubts as to another' (Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521 at 535 (Gibbs CJ and Mason J)), it is necessary to weigh and consider the totality of the evidence: Hillier at [48]-[49]. In doing so, the finder of fact ought not stretch credulity or engage in tortuous reasoning in order to explain away each and every individual circumstance as being consistent with innocence: R v Micallef [2002] NSWCCA 480; (2002) 136 A Crim R 127 at [42] (Dunford J); Burrell v R [2009] NSWCCA 193 at [55] (Giles JA).