R v Hawchar; R v El Messelmani

Category: Principal judgment

Parties: Rex (Crown)
Ahmed Hawchar (Accused)
Hussein El Messelmani (Accused)

Representation: Counsel:
Mr W Martin (Crown)
Mr T Edwards SC (First Accused)
Mr I Lloyd KC / Mr J Jiang (Second Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
City Group Legal (Accused)

File Number(s): 2023/00292029
2023/00292039

JUDGMENT

Introduction

1. The accused, Ahmed Hawchar and Hussein El Messelmani, were arraigned at trial on one count of supply not less than a large commercial quantity of 3,4-Methylenedioxymethylamphetamine (the drug known as MDMA), namely 12.41 kilograms.

2. The accused each entered a plea of not guilty.

3. A trial proceeded by way of a judge alone, the Crown having indicated its consent to that course on 20 June 2025 before Judge Hanley SC. The trial commenced on 9 July 2025 and concluded on 11 July 2025.

4. Pursuant to s 133 of the Criminal Procedure Act, my findings have the same effect as the verdict of a jury, and I must take into account any warnings or directions that would have been provided to a jury. My judgment must include the principles of law I have applied, and the findings of fact on which I have relied. In addition to what is required under the provision, it must also include the process of reasoning leading to my verdict.

5. I must find the facts and draw inferences from them, as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it logically, rationally, and dispassionately and not let partiality or prejudice enter into the decision-making process. I may use my common sense and experience in assessing the evidence. I must be extremely careful about drawing any inference. I must examine any possible inference I am asked to draw to ensure that it is a valid or justifiable inference and not one based on speculation or supposition. It must be a rational inference in the circumstances.

6. While I will not refer to every piece of evidence, I have had regard to all the evidence before me. The verdict is to be based on the whole of the evidence. This includes the oral testimony of witnesses as well as the contents of various witness statements that were tendered and not subject to challenge. It also includes the exhibits tendered by the Crown.

Crown Case

7. The Crown relies on the Agreed Facts, being exhibit 20, and its annexures, being:

8. Exhibit 1, a summary of police surveillance and observations;

9. Exhibit 6, a tracker summary for 18 to 21 November 2022 on vehicle DF4XXX;

10. Exhibit 8, a summary of items seized from a bin in a reserve at Rowe Street, Potts Hill on 23 November 2022; and

11. Exhibit 11, a summary of items seized during the execution of the warrant at the garage of unit 13, 10 Fairmount Street, Lakemba on 1 December 2022.

12. The Agreed Facts are as follows:

13. On 7 November 2022, police commenced surveillance on a white Toyota HiAce van with New South Wales registration BT2XXX. Observations from that surveillance continued on 9, 10, 14, 23, 28 and 29 November 2022, and are summarised in exhibit 1.

14. On 8 November 2022, Mr El Messelmani transferred the white Toyota HiAce van into his name. Upon that transfer, the van’s New South Wales registration plates were changed to DF4XXX.

15. As part of their surveillance, police installed a tracking device on the van. Police monitored the van’s movements between 18 and 21 November 2022 (inclusive) and the results of that data are summarised in exhibit 6.

16. During the police surveillance of Mr El Messelmani conducted on 23 November 2022, discussed at pages 11, 12 and 13 of exhibit 1, police seized a number of items which are summarised in exhibit 8.

17. At around 12:28pm on 1 December 2021 police executed a search warrant at the garage belonging to unit 13, 10 Fairmont Street, Lakemba. Police seized a number of items from inside the garage which are summarised in exhibit 11.

18. On 13 September 2023, Hussein El Messelmani was arrested by police. He was taken to Campsie Police Station. Mr El Messelmani was cautioned by police. He was taken to an interview room and told police that he resided at unit 8, 1 Minnesota Avenue, Riverwood. He then exercised his right to silence.

19. On 13 September 2023, Ahmed Hawchar was arrested by police. He was taken to Campsie Police Station. Mr Hawchar was cautioned by police. He was taken to an interview room and exercised his right to silence.

20. On 13 September 2023, police obtained samples of DNA from Mr Hawchar and Mr El Messelmani.

21. The Crown further relies on:

22. The evidence of the officer-in-charge, Detective Senior Constable Kimes, and the evidence of Detective Senior Constable Hall;

23. Exhibits 12 and 19, being drug analysis certificates for the residues in the passata bottles and the MDMA pills;

24. Exhibit 16, a statement of Mr Alam, the owner of the garage at unit 13, 10 Fairmount Street, Lakemba, and exhibit 17, being screenshots of the rental agreement and text messages between Mr Alam and Anthony Saidi; and

25. Exhibit 14, a recording of the execution of the search warrant on 1 December 2022.

26. In its case against Mr El Messelmani, the Crown also relies on tendency evidence.

27. A summary of the evidence is appended to these reasons and marked “A”.

Burden and Standard of Proof

12. The accused are presumed to be innocent unless and until the Crown persuades me of their individual guilt beyond reasonable doubt.

13. The obligation of proof of the guilt of the accused is on the Crown. That burden rests upon the Crown in respect of every element or essential fact that makes up the offence with which the accused have been charged and there is no obligation whatsoever on either accused to prove any fact or issue that is in dispute before me.

Joint Trial

14. I am to consider the case against each accused separately, considering them as individuals and giving each separate consideration. The evidence relied upon by the Crown to prove the guilt of each accused differs and I must not take into account in deciding whether the Crown has proved its case against one accused, evidence that was tendered only against the other accused.

Elements

15. The offence has a number of elements and I have to be satisfied beyond a reasonable doubt in relation to each element of the offence before I can convict the accused of the offence.

16. The Crown must prove beyond a reasonable doubt each of the following elements:

17. The accused possessed a substance;

18. The substance was a prohibited drug;

19. The accused possessed the substance for the purposes of supply;

20. The amount of the drug was not less than the large commercial quantity; and

21. The accused knew the amount of the drug was not less than the large commercial quantity.

22. The Crown must prove that the accused intentionally had the substance in their physical custody or control to the exclusion of any other person, except some other person acting jointly with the accused in possessing the substance, or that the accused intentionally had the substance in some place to which they had access and might go to obtain physical custody or control of it to the exclusion of any other person, either alone or together with some other person acting jointly with them in possessing the substance.

23. If the accused possessed not less than 0.75 grams of 3,4-Methylenedioxymethylamphetamine, they are regarded as having possession of that drug for the purpose of supply—that is, to give it or provide it to some other person. It is a defence to the charge if the accused prove, on the balance of probabilities, they had the drug in their possession otherwise than for the purpose of supply.

24. The large commercial quantity is 0.5 kilograms.

25. The Crown does not have to prove the accused knew what the law prescribes as the large commercial quantity, but it is the accused’s actual knowledge or belief that is relevant, not what some person in the accused’s position may have known or believed. However, knowledge or belief may be inferred from a consideration of the surrounding circumstances. If I am satisfied the accused were aware there was a significant or real chance the substance was a prohibited drug it would be open for me to draw the inference that this element has been proved. Any inference or conclusion I draw about the accused’s knowledge or belief must be the only rational inference or conclusion open on the evidence. In this context, I may consider as one of the circumstances to be taken into account what a reasonable person in the position of the accused would have known or believed as to the quantity of the substance being supplied. However, what I am concerned with is whether I am satisfied beyond a reasonable doubt the accused themselves had this knowledge or belief.

26. If I am not satisfied the element of knowledge as to a large commercial quantity is established beyond a reasonable doubt, the statutory alternative is available, being the offence of supply prohibited drug.

27. There is no dispute the substance was a prohibited drug, being MDMA, and the quantity, being 12.41 kilograms, is such that were the Court to find it was in the possession of the accused, it would be deemed to be for the purposes of supply. It is accepted what is in issue in this trial is whether the accused were each in possession of the prohibited drugs, and, if so, whether they knew they were in possession of a large commercial quantity.

Directions

23. There are further directions I am to give myself in determining the matter.

Silence

24. Neither accused gave or called evidence, nor did they participate in a record of interview upon arrest. The fact they took note of the caution given by the police and chose to exercise their right to silence cannot be used against them. Similarly, the decision not to give evidence cannot be used against them in any way at all; it cannot be used as amounting to an admission of guilt or to fill any gaps I perceive in the evidence tendered by the Crown or to otherwise strengthen the Crown case. I must not draw any inference or reach any conclusion based upon the fact the accused decided not to give or call evidence or speculate about what might have been said in evidence if the accused had given evidence.

Circumstantial Evidence

25. The Crown relies on circumstantial evidence to prove its case against each of the accused, asking me to find certain basic facts established by the evidence and then from those facts to draw a conclusion as to the existence of further facts in a staged approach. The ultimate fact the Crown asks me to find based upon the basic facts is that the accused is guilty of the offence charged.

26. Where those basic facts are not essential to proving the guilt of the accused, they do not have to be proved beyond a reasonable doubt. I am first to determine what facts I find established by the evidence and then consider all of those facts together as a whole and determine whether I can conclude from those facts that the accused are guilty of the offence charged. If such a conclusion does not reasonably arise, then the Crown’s circumstantial case fails.

27. If such a conclusion is a reasonable one to draw based upon a combination of those established facts, then, before I can convict the accused, I must determine whether there is any reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused—in which case, I could not be satisfied of guilt beyond a reasonable doubt.

28. Where a fact relied on as part of the Crown’s circumstantial case is essential to my reasoning in coming to a conclusion in favour of the Crown, I first have to be satisfied as to the existence of that fact beyond a reasonable doubt. If I am satisfied beyond a reasonable doubt as to the existence of the intermediate fact, then I can take that fact together with all other facts I find established and ask whether I can draw an inference in favour of the Crown from those facts considered as a whole. If, however, I am not satisfied beyond a reasonable doubt as to the essential fact, I must find the accused not guilty.

Identification Evidence

29. There is a special need for caution with respect to the identification of the accused by Detective Senior Constable Hall as a result of the potential unreliability of this type of evidence, which is well known to the courts, as well as any shortcomings of the specific evidence in question.

Character

30. The accused are persons of good character, which I am entitled to take into account in their favour on the question of whether the Crown has proved their respective guilt beyond a reasonable doubt. The fact the accused are persons of good character is relevant to the likelihood of their having committed the offence alleged and I can take it into account by reasoning that such a person is unlikely to have committed the offence charged by the Crown. Whether I do reason in that way is a matter for me. It does not provide the accused with a defence but is one of a number of factors I am to take into account.

Submissions of the Parties

31. While I will not refer to all of the submissions of the parties, I have had regard to those submissions, including both written and oral submissions.

32. In summarising the submissions of the parties, I understand that the closing addresses are not evidence, however, I should have regard to the closing addresses and arguments made. It is a matter entirely for me as the tribunal of fact whether I accept or reject those arguments.

Crown Submissions

33. The Crown submits generally that:

34. Whoever hired the garage, the purpose was to store prohibited drugs, as evidenced by the false details provided by the tenant and the furniture being moved in to give the appearance of normalcy;

35. The bags and crates were all possessed by one group, which can be inferred from the fact the bags were all similar, the passata bottles were identical, almost all contained prohibited drugs, all items were located close together, and the implausibility that a group would store their drugs in a garage someone else had access to; and

36. Bags one and two were a set, based on the fact they appeared to be identical, being the same brand and material and having the same clasp and zips.

37. The Crown in its closing arguments submitted the accused were working together and their relationship was not limited to Mr Hawchar providing the garage to Mr El Messelmani, and the Court would so find based on the planned meeting on 28 November 2022 at the Canterbury Road units in Campsie, with both arriving and leaving at the same time, rather than meeting at the garage. That location was attended upon by the unknown male from 9 November 2022. The meeting at the units, the Crown submits, suggests organisation, planning and teamwork. Further, if Mr El Messelmani was found to be in possession of the bag containing colanders, the fact Mr Hawchar stored his orange bag in there suggests agreement or sharing between them.

38. With regard to the case against Mr El Messelmani, the Crown directs the Court to evidence suggesting the drug bag was moved into the garage on 28 November 2022, being:

39. Police observed more than one bag;

40. The attendance for around seven minutes suggests he had the opportunity to move a number of bags;

41. Parking the van right up to the garage is consistent with multiple trips; and

42. The drug bag was found beneath the other bag Mr Hawchar must have opened to put the Louis Vuitton bag in, and the bags were a set.

43. The Crown submits that the movement of bags on 28 November 2022 may explain when the drug bag got there, but is not an essential fact, the Crown case being that Mr El Messelmani was in control of what came in and what went out of the garage, with Mr El Messelmani being the only person seen moving bags in or out of the garage.

44. The Crown submits that if the bags are found to belong to or be in the possession of one group, then it can be inferred Mr El Messelmani was in possession of all the bags.

45. In terms of his knowledge of the drugs being inside the bag, the Crown relies on the suspicious nature of the circumstances of moving sports bags into a residential garage, the location of the bags being hidden and out of sight, the fingerprints on the passata bottle containing residue of MDMA and the tendency evidence.

46. The Crown submits that Mr El Messelmani was in charge of what went in and out of the garage and therefore maintained possession of the drugs in between the time the bag was moved into the garage on 1 December 2022.

47. With respect to the knowledge of the weight of the drugs, the Crown submits given Mr El Messelmani physically carries the drug bag, he would have known it weighed well over 0.5 kilograms.

48. With respect to the case against Mr Hawchar, the Crown submits the Court would find Mr Hawchar leased the garage based on the fact he is of a similar description to that given by Mr Alam, Mr Alam gave the tenant a key, and Mr Hawchar attended the garage on two occasions. Further, a photograph depicts Mr Hawchar locking or unlocking the garage, which means he must have had the key. The Crown submits there is potential inaccuracy with descriptions given the lapse of time between the events and statements.

49. In terms of his knowledge and possession, the Crown directs the Court’s attention to the false details provided to Mr Alam at the time of the lease agreements, the meeting with Mr El Messelmani at the Campsie unit after the unknown male from the surveillance on 9 November 2022 had attended, the fingerprints on the passata bottle containing residue of MDMA, the fingerprints on the colander in the second bag which was part of the set to the drug bag, and Mr Hawchar’s orange bag being found in the second bag which was part of a set to the drug bag.

50. With respect to knowledge of a large commercial quantity, the Crown directs the Court’s attention to the significant steps taken to conceal his identity, suggesting the knowledge of large commercial quantity as opposed to a smaller amount, and his relationship and association with Mr El Messelmani.

Defence Submissions

Mr Hawchar

44. The defence case of Mr Hawchar is set out in a written summary, being MFI 4, supplemented by the oral submissions of Mr Edwards SC. It is submitted that:

45. I should direct myself in accordance with Shepherd v R (1990) 170 CLR 573; [1990] HCA 56 with respect to the question as to whether Mr Hawchar was the person who rented the garage as it is central to the liability of Mr Hawchar in circumstances where it cannot be said that he handled any of the black bags. Given it is not the Crown case that prohibited drugs were ever physically in his possession, the Crown relies on evidence as to control: that he rented the garage with the intention to store drugs with Mr El Messelmani and provided him access with the key he was given. It was submitted the mode of control is intrinsically linked to the renting of the garage and the use of the key to allow Mr El Messelmani to store drugs there;

46. There is insufficient evidence to conclude that the accused was the person that rented the garage from Mr Alam. Specifically, the unchallenged evidence of Mr Alam that Anthony Saidi was clean shaven is inconsistent with the evidence of Detective Senior Constable Hall, who said he had a large beard only days afterwards. Further, the description is not otherwise consistent, Mr Alam having stated Mr Saidi was tall, when Mr Hawchar is actually 177 centimetres tall. This is in light of evidence in exhibits 16 and 17, from which I would likely draw the inference that Mr Alam saw Mr Saidi on two or three occasions. There is no evidence of positive identification;

47. It is submitted I would reject the Crown’s assertion that the purposes of the renter were nefarious, noting that he allowed Mr Alam to take a photograph of his driver’s licence and gave him an operative phone number. There are no call charge records linking use of that phone to anywhere near the accused’s residential address or anywhere else he was seen while under surveillance;

48. With the Crown’s concession that it cannot prove beyond a reasonable doubt it was the black bag containing the drugs that was deposited in the garage on 28 November 2022, what the Court is left with is that, perhaps at some other time that there is no evidence of, Mr Hawchar, with knowledge that Mr El Messelmani was going to store 12.41 kilograms of MDMA in the garage, allowed him to do so. This, it is submitted, is complete and utter speculation;

49. The fact there was no surveillance on the garage between 4:45pm on 28 November 2022 and the execution of the search warrant at 12:28pm on 1 December 2022 would on its own cause me to have reasonable doubt. A reasonable hypothesis consistent with innocence is that some person other than the accused put that bag in the garage during that time or even prior to 28 November 2022, and that the accused did not even know it was there, let alone had an intention to exercise control of it to the exclusion of others;

50. The fact that the drugs the subject of the indictment were found in a black sports bag that was never in the physical possession of Mr Hawchar at any time would cause reasonable doubt. There was no direct evidence that anyone else had that bag while in Mr Hawchar’s presence, or if they did, that he knew what was inside, or evidence of his communicating with anyone about the bag, or evidence of him being forensically linked to the bag;

51. There is insufficient evidence to determine that Mr Hawchar was at the garage on 10 November 2022 as identified retrospectively by Detective Senior Constable Hall, noting the fairly distinctive orange vehicle was not seen near the garage that day. There was no surveillance log and only a very generic description of Mr Hawchar in his statement 18 months later. Only in the witness box did Detective Senior Constable Hall provide the addition of sunglasses and a fat build. According to Detective Senior Constable Hall, essentially a lineup of one was conducted in which he viewed a driver’s licence photo of the accused after being told he was linked to the vehicle, and he recognised him;

52. Even if I was able to infer that the black sports bag containing the drugs was placed in the garage in the presence of Mr Hawchar by Mr El Messelmani on the afternoon of 28 November 2022, I would reasonably doubt that Mr Hawchar knew that the drugs were in the bag, knew the quantity of the drugs in the bag was a large commercial quantity, and intended to exercise control of the drugs inside the bag;

53. With respect to the evidence of Detective Senior Constable Kimes that Mr Hawchar locked the garage, based on the photograph at page 20 of exhibit 1, it is submitted there is no evidence of the key in Mr Hawchar’s hand and that he might have been using a handle to pull the garage door down, and even if he was using the key, it could have been given to him by Anthony Saidi, Mr El Messelmani, or any other person, to access the garage on that day only;

54. Mr Hawchar’s fingerprints and palm prints on the outside of a single passata bottle, which had traces of three different drugs including MDMA, is a distraction in that it may lend itself to a weak inference the accused was involved in some other unlawful conduct but is not probative of whether he had knowledge and control of the drugs seized on 1 December 2022. The evidence is that the residue in the single bottle with Mr Hawchar’s prints does not have the same chemical composition as the pills in the drug bag. The evidence cannot be used for a tendency purpose to say he had an association with the drugs. The evidence can only be circumstantial evidence linking Mr Hawchar to the passata bottle found in the tub in the garage;

55. With respect to the presence of fingerprints on the colanders and the presence of the Louis Vuitton bag, it is submitted I would question whether I could draw the inference that it was the same Louis Vuitton bag that Mr Hawchar had been seen with three days before, and even if I did, that does not mean that Mr Hawchar put it in that bag, just as it does not mean he put the colanders in the bag. Those items, it is submitted, could have been touched by him anywhere and placed in the black bag by someone else. Even if I was to draw an inference that the accused placed those items at some stage in the black bag, I would reject the Crown’s submission that that bag and the bags containing the drugs are a set, reasoning that if someone placed an item in one of the bags that they necessarily knew the contents of the items in the other bag;

56. I would reject the Crown’s submission that from Mr Hawchar entering the unit block at Canterbury Road, Campsie on 28 November 2022 an inference can be drawn that he met the third person in a unit that was a drug house, there being no evidence he knew or communicated with that third man or even met him on that day, let alone evidence Mr Hawchar was aware of Mr El Messelmani’s past dealings with him;

57. With respect to knowledge of quantity, it is submitted I would reject a finding of knowledge beyond reasonable doubt on the basis that the accused knew something “really bad” was going on; and

58. Good character has a role to play in circumstances of a significant criminal undertaking involving 24 times the large commercial quantity, the use of apparently false identification and a Crown case in which the Court is being asked to draw so many inferences adverse to the accused.

Mr El Messelmani

45. The defence case of Mr El Messelmani is set out in written submissions in reference to admissibility of tendency and coincidence evidence, being MFI 3, and its supplementary closing submissions, being MFI 1—further supplemented by the oral submissions of Mr Lloyd KC.

46. In summary, it is submitted:

47. With respect to the fingerprint evidence, it does not establish whether or not the accused innocently attended the garage or came into contact with items in the garage by way of legitimate work or while unknowingly assisting others;

48. There is no evidence the bags seen on 28 November 2022 are the same bags seized by police on 1 December 2022 given the lack of surveillance from 4:45pm on 28 November 2022 to 12:28pm on 1 December 2022. Further, police cannot say if persons other than Mr El Messelmani and Mr Hawchar went in or out of the garage in that period, or from 2 to 10 November 2022 and 10 to 28 November 2022;

49. The Court could not be satisfied beyond reasonable doubt that Mr El Messelmani either possessed the bag or that he knew it contained prohibited drugs;

50. The Court was directed to what was submitted to be important evidence elicited in cross-examination of the two police witnesses that was not addressed by the Crown in its closing, including, but not limited to, limitations on the tracking device and the observations of police on 10 November 2022, namely that Detective Senior Constable Hall did not at any stage see Mr El Messelmani in the garage, he could not say that the bag he saw Mr El Messelmani carrying came from the garage, and there could have been a third person in the garage. Further:

(a) There were no still photos or videos of Mr El Messelmani at the garage on either 10 or 28 November 2022; (b) The surveillance log does not indicate that Mr El Messelmani was seen to carry more than two bags on 28 November 2022; and (c) Police cannot say when any of the five black sports bags, including the bag containing the drugs, were placed in the garage;

5. With respect to the passata bottles, police cannot say when or in what circumstances Mr El Messelmani’s prints came to be placed on the single passata bottle found by police in a plastic bin on 1 December 2022, which may have been placed there prior to the bottle finding its way into the tub or the tub being placed in the garage. Police cannot say that the bags Mr El Messelmani was seen to move from the rear of the van on 28 November 2022 were not bags containing passata bottles and police cannot say when the plastic tubs were placed in the garage;
6. The lack of DNA or fingerprints on any of the five bags is consistent, as an alternative inference, with Mr El Messelmani having never touched any of the black bags found in the garage on 1 December 2022, given he was not witnessed to have worn gloves on 10 or 28 November 2022, and especially considering access by others to the garage cannot be ruled out between 28 November 2022 and 1 December 2022. One cannot rationally infer in the circumstances that Mr El Messelmani moved the drug bag into the garage and in turn was alert to its contents or weight;
7. With respect to the Crown’s closing argument that it need not establish the bag with the subject prohibited drugs was moved into the garage on 28 November 2022, it is submitted there is no cogent evidence of Mr El Messelmani moving bags into the garage other than on 28 November 2022, as there is no evidence of him accessing the garage at any time, apart from 10 November 2022 when no bags were seen to be loaded into the garage; and
8. If it was found that Mr El Messelmani may have moved only bags of passata bottles on 28 November 2022, that could not prove his possession and knowledge of the content or weight of the drug bag on the Crown case.

Tendency Evidence

47. In its case against Mr El Messelmani, the Crown seeks to rely on tendency reasoning pursuant to a notice served on the accused on 19 June 2025, contending the following evidence is capable of establishing he had a state of mind, being an interest in prohibited drugs, and a tendency to act in a particular way, being to possess prohibited drugs:

48. Surveillance observations on 9 November 2022 of an unknown male parking DF2XXX and entering the van with registration DF4XXX (the accused’s vehicle), the van then driving around the block and returning. Having parked the van, the driver interacts with the unknown male who retrieves a Coles shopping bag from the van, placing it in his vehicle, then returns to the driver’s side of the van briefly before driving away in his own vehicle;

49. Surveillance observations on 23 November 2022 of the accused attending a unit complex in Potts Hill. From that complex an unknown male emerged with a Woolworths bag, entering Smail Reserve and exiting a short time later without the bag. Some 15 minutes later he was observed with the accused in his vehicle. A Woolworths bag was retrieved from a bin in the park and it contained various items including drug paraphernalia and 2.71 grams of what is presumptively indicated to be methylamphetamine. Silver coloured packaging wrapped in brown tape and a vacuum sealed bag tested positive for methylamphetamine and the brown tape yielded fingerprints of the accused; and

50. The fingerprint on the passata bottle seized on 1 December 2022 containing residue of MDMA. The surveillance observations on 28 November 2022 included the accused taking the black sports bags out of the van and placing them inside the garage. Items seized from the garage on 1 December 2022 included passata bottles inside plastic crates, on one of which was the fingerprint of the accused with the residue of MDMA, MDA and MDEA inside of it.

Crown Submissions

48. The Crown submits that, while there is no direct evidence of drug involvement, the inference as to tendency can be drawn from a combination of evidence and that the evidence has significant probative value with no risk of unfair prejudice. The Crown argues the tendency is not an essential fact and it need not be established beyond a reasonable doubt.

Legislation and Principles

49. The relevant provisions of the Evidence Act 1995 (NSW) are as follows:

55 Relevant evidence

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2) In particular, evidence is not taken to be irrelevant only because it relates only to—

(a) the credibility of a witness, or

(b) the admissibility of other evidence, or

(c) a failure to adduce evidence.

97 The tendency rule

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2) Subsection (1) (a) does not apply if—

(a) the evidence is adduced in accordance with any directions made by the court under section 100, or

(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.

101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

…

(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.

(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.

(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.

50. In considering admissibility, I am to undertake a two-stage process: I am to determine firstly the extent to which the evidence supports the asserted tendency and secondly, the extent to which the asserted tendency makes more likely the essential facts making up the charge: Hughes v R (2017) 263 CLR 338; [2017] HCA 20 at [41]. See also Director of Public Prosecutions (Vic) v Roder (a pseudonym) (2024) 281 CLR 18; [2024] HCA 15 at [24].

51. Assessment of the probative value of evidence requires that the possible use to which the evidence might be put be taken at its highest, that is, assuming that the evidence is reliable and credible. This assumption will only be displaced where the evidence could not be accepted by a rational jury: TL v R (2022) 275 CLR 83; [2022] HCA 35 at [28].

Defence Submissions

52. Mr El Messelmani submits the evidence is inadmissible, lacking in probative value and rises to no more than a suggestion of general bad character of the accused by way of suspicions regarding the alleged uncharged conduct so as to reason he must have committed the index offence. Specifically:

53. With respect to 9 November 2022, there is no evidence as to positive identification of either man or as to the contents of the Coles bag which was never recovered;

54. With respect to 23 November 2022, the relationship to the unknown male is not known, nor is there any evidence as to the communications between them or any prior meeting. There is no evidence as to how the fingerprints came to be deposited or as to the accused having any knowledge of the contents of the discarded package such that they cannot be shown to have ever been in the possession of the accused. Further, the drug is not the same drug in relation to which the accused is presently charged; and

55. With respect to 28 November 2022, there is no evidence as to how, when or in what circumstances the fingerprint was deposited, nor the contents of the bottle when the print was deposited onto it.

56. The accused submits that the reasoning sought to be engaged by the Crown is such that there is a significant possibility the act or state of mind would be considered as being essential to reasoning to a finding of guilt, and the Crown ought to establish those uncharged acts beyond a reasonable doubt—that is, engaging the exception in s 161A(3) of the Criminal Procedure Act.

Consideration

54. Turning then to my consideration of the admissibility of the evidence, with respect to 9 November 2022, there being no evidence of positive identification or identification of the contents of the Coles bag, I do not find the evidence has probative value. Specifically in relation to identification, a photograph of the driver is taken shortly after the interaction, who is said to be the same driver as observed earlier, but there is no positive identification of the man in the photograph. The highest the Crown can put it is that a man driving the accused’s vehicle was involved in a suspicious transaction with an unknown male involving a bag with unknown contents. The inference the Crown asks the Court to draw is not justified in the circumstances and the evidence is not admissible.

55. With respect to 23 November 2022, I accept the evidence taken at its highest goes to establish the accused handled an item containing a prohibited drug that was the subject of a transaction on that date and is relevant to the question of whether the accused had a tendency to have an interest in possessing drugs and to possess prohibited drugs.

56. Similarly, with respect to the fingerprint located on the passata bottle on 1 December 2022, I accept taken at its highest the evidence goes to establish the accused at some time handled an item containing a prohibited drug and is relevant to the question of whether the accused had the tendency asserted by the Crown.

57. I accept in combination the evidence supports the existence of the asserted tendency.

58. The question then is whether alone or in combination the tendency evidence, to a significant extent, could impact on the Court’s assessment of the probability of a fact in issue, namely the question as to whether the accused was in possession of the prohibited drugs with the requisite knowledge.

59. The evidence will have significant probative value if it makes more likely to a significant extent, either by itself or together with other evidence, the facts that make up the elements of the offence charged: Hughes v R at [40]. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged: TL v R at [28].

60. The level of generality or specificity with which the tendency is stated will impact on its probative value: BP v R [2010] NSWCCA 303 at [108]; as will dissimilarities between the features of the tendency evidence and the fact sought to be established, the latter being relevant to, but not determinative of, the probative value: TL v R at [29].

61. The starting point is identifying the fact or facts in issue the asserted tendency is adduced to prove: Hughes v R at [16].

62. It is submitted that Mr El Messelmani’s interest in prohibited drugs makes it more likely he knew the drugs were in the bag and the tendency to possess prohibited drugs makes it more likely he in fact possessed them when the police attended on 1 December 2022: Tcpt, 10 July 2025, p 97(25–30).

63. The evidence is put forward as one aspect of the Crown case to establish knowing possession along with other evidence, including the fact the accused was a person with access to the garage (when accompanied by Mr Hawchar), that on 28 November 2022, some three days prior to the execution of the search warrant, he had moved into the garage bags of a similar description to the bag in which the drugs were found, and that in the garage on a passata bottle in a plastic crate his fingerprint was located.

64. The extent to which the evidence can impact on the Court’s assessment of the likelihood of the existence of a fact in issue is to be determined having regard to the particular circumstances of the case and how the Crown has put its case. In this instance, the absence of surveillance of the garage between 28 November 2022 and 1 December 2022, as well as the fact of a number of unidentified prints being located on other items in the bags and the plastic crates found inside the garage, leaves open the possibility of a person other than Mr El Messelmani placing the bags with the drugs inside the garage in that period, or a date prior to 28 November 2022 but after 2 November 2022. This has necessitated the Crown putting an alternative to the accused having taken the bag with the drugs into the garage on 28 November 2022, being that he did so on another unknown date, asking the Court to draw an inference that it must have been the accused who had done so as he was, the Crown says, controlling what went in and out of the garage—or alternatively—from the Crown’s written summary of its submissions—that he was one of a group of persons with access to the garage who exercised control over and had knowledge of the prohibited drugs.

65. In order for the evidence then to have significant probative value with respect to the question of control in the circumstances of this case, it must make more likely to a significant extent that the accused and not some other person moved the bag into the garage on 28 November 2022 or some other time and maintained control until 1 December 2022, or otherwise make it likely the accused had control over what came in and out of the garage throughout the known period.

66. In order for the evidence to have significant probative value with regard to the question of knowledge, it must make more likely to a significant extent the accused knew the black sports bag contained a large commercial quantity of MDMA.

67. In determining the first question, I accept the submission made on behalf of the accused that there is a degree of generality in the tendency as framed—that is, the absence of any narrowing as to the circumstances of possession, or the quantity or type of drug. In the context of a circumstantial case in which the alternative consistent with innocence is that someone else placed the drugs in the garage without the knowledge of the accused, this generality reduces the extent to which the evidence makes it more likely that the accused exercised control over the drugs on 1 December 2022 and the extent to which the same tendency is unlikely to be shared by others with access to the garage. In this latter respect, put another way, it is not capable alone or in combination of separating the accused from any of a number of persons who may have accessed the garage.

68. The generality also in my view reduces the extent to which the evidence makes it more likely that the accused—if he was in fact exercising control over the sports bag—knew of the presence of the drugs, being a large commercial quantity of MDMA.

69. The difficulty the Crown faces in this regard is compounded by the lack of similarity between the uncharged acts and the conduct in question. While the drug said to be possessed on 1 December 2022 is MDMA only, the residue on the passata bottle on which the accused’s fingerprints were found was MDMA, MDA and MDEA, with the drug alleged to be possessed by the accused on 23 November 2022 presumptively being methylamphetamine. Further, the 23 November 2022 incident was not at the Lakemba garage and did not involve the co-accused.

70. In all of the circumstances I am unable to find the probative value of the evidence is such that it can properly be characterised as significant or influential in the fact-finding process. The evidence is not admissible as tendency evidence.

71. In those circumstances it is unnecessary for me to make a finding with respect to the submission as to the evidence falling within the exception in s 161A(3) of the Criminal Procedure Act.

72. The evidence regarding 23 November 2022 is not otherwise relevant and is inadmissible. The evidence of the fingerprint on the passata bottle forms part of the circumstantial case and is relevant and admissible. I direct myself it is not to be used for a tendency purpose.

Factual Findings

73. Having regard to all of the evidence I make the following findings of fact in addition to those agreed in exhibit 20:

74. Mr Alam, the owner of the garage at unit 13, 10 Fairmount Street, Lakemba, met with the person representing himself as Anthony Saidi regarding renting the garage on two occasions—the initial meeting on 2 November 2022 when he rented the garage to Mr Saidi and the day Mr Saidi moved the items into the garage on 5 November 2022. On 2 November 2022, Mr Alam took a copy of Mr Saidi’s driver’s licence, describing him as 23 to 25 years old, Lebanese, tall and fat, and clean shaven with short black hair;

75. The visual surveillance of the garage is limited to the attendance by the accused on 10 and 28 November 2022. While I have regard to the lack of detail in the description of the accused in Detective Senior Constable Hall’s statement and the fact the identification involved an array of one, being a sighting of the accused’s driver’s licence, and I direct myself on the unreliability of identification evidence generally, I find Mr Hawchar attended the garage with Mr El Messelmani on 10 November 2022. Specifically, on 10 November 2022, Mr El Messelmani drove his van (DF4XXX) in convoy with vehicle DTNXXX, driven by Mr Hawchar. Three to five minutes later, DF4XXX was parked in the driveway of 10 Fairmount Street, Lakemba with its rear door open. Mr El Messelmani carried a large black sports bag and loaded it into the van. Mr Hawchar was observed standing near the garage. On the afternoon of 18 November 2022 and the morning of 19 November 2022, the GPS tracker attached to DF4XXX recorded the vehicle as being at 10 Fairmount Street, Lakemba. It is not known who was the driver of the vehicle at these times. On 28 November 2022 at 4:01pm, Mr El Messelmani and Mr Hawchar entered the Campsie unit complex a short time apart, Mr Hawchar carrying an orange Louis Vuitton bag. Both Mr El Messelmani and Mr Hawchar soon after returned to their respective vehicles, Mr Hawchar still carrying the orange bag, and drove away in convoy. At 4:38pm, both cars parked in the driveway of 10 Fairmount Street, Lakemba, Mr El Messelmani’s van having reversed into the driveway. Both men went inside the garage of unit 13. Mr El Messelmani removed black sports bags from the rear of the van and placed them inside the garage while Mr Hawchar stood inside. Mr Hawchar crouched down in front of the garage door, either closing or locking the door. Both Mr Hawchar and Mr El Messelmani entered their vehicles and drove away. There is no description as to how many bags were moved or where they were placed or any description beyond “black sports bags”;

76. The surveillance of the garage by police halted at 4:45pm on 28 November 2022 and resumed at 12:33pm on 1 December 2022, at which time the garage was searched by police and the subject prohibited drugs were discovered inside one of the five sports bags found inside the garage;

77. On 29 November 2022, Detective Senior Constable Kimes conducted further surveillance of the van. Surveillance ceased at 4:00pm. Police attempted to conduct further surveillance of the van between 29 November 2022 and 1 December 2022, but there was no activity;

78. No DNA of the accused was found on any part of the five sports bags and/or their contents. Mr Hawchar’s fingerprints were identified on two colanders found in one of the sports bags which also contained a Louis Vuitton bag. This sports bag was located on top of the bag containing the subject drugs, the two bags being located at the back of the garage, separate to the other three bags; and

79. A single fingerprint of Mr El Messelmani was identified on a passata bottle in a plastic tub within the garage. Two fingerprints and one palm print belonging to Mr Hawchar were also found on an unidentified passata bottle or bottles. The passata bottles contained the residue of MDMA, MDA and MDEA.

Consideration

Mr Hawchar

74. A preliminary issue for determination with respect to Mr Hawchar is whether the evidence as to the leasing of the garage is an indispensable link in the chain of reasoning to guilt such that it needs to be established beyond a reasonable doubt in accordance with Shepherd v R.

75. A further argument was made with respect to whether the Crown was bound by the way it put its case in its opening remarks—that is, that Mr Hawchar was the person representing himself as Anthony Saidi. For reasons that will become apparent, it is unnecessary for me to determine this issue.

76. The Crown case, as developed during the course of the trial, is that Mr Hawchar was the renter of the premises or was otherwise in control of the premises.

77. With regard to the question of control over the premises, outside of the fact he was the renter, the Crown relies on the fact Mr Hawchar was present at the garage on 10 and 28 November 2022, and his appearing to lock the garage door on 28 November 2022.

78. Even if I am to infer from the photograph from 28 November 2022 that Mr Hawchar is locking the garage door, evidence that he does so on one occasion, coupled with his presence on that occasion and one other separate occasion does not, in my view, support the rational inference he had control over the premises at the relevant time. The alternative inference is equally available that he was providing assistance to Mr El Messelmani but was not in control of the premises.

79. In the absence of evidence he was the renter, on the Crown case as framed during the course of the trial, there would be no case to put to the jury—that is, essential to any finding he was in control of the garage is a finding he leased the garage.

80. In closing argument, the Crown submitted that, beyond his having control of the premises, there is other evidence that links Mr Hawchar with the offending, including his presence, the fingerprints, the location of the bag and the fact the bags are the same, or part of a set—their relationship extending beyond “mere landlord providing space for Mr El Messelmani”. This, the Crown says, is evidenced by Mr Hawchar’s attendance at the Campsie unit block on 28 November 2022, where there was suspected association with drug activity, and thereafter driving in convoy to the garage. This, the Crown, says “might say something about El Messelmani and Hawchar’s relationship, and Hawchar’s role in all of the this”: Tcpt, 10 July 2025, p 103(4–6). Combining this with the fact of his orange bag and the colanders with his fingerprints being in the black sports bag, the Court would find he was clearly in possession of that bag, and further, that with that bag being identical to the bag containing drugs, the bags being a set, and the palm prints being on the passata bottle, he “not only knew what was going on in that garage, but he had some involvement in it”: Tcpt, 10 July 2025, p 103(24–25).

81. Even this expanded submission with respect to possession relies on Mr Hawchar being in control of the garage: “He was in charge of the garage. He knew what was in there, and he was exercising joint possession over what was in there, including the drugs,” with knowledge, the Crown submits, being able to be inferred from those same circumstances—being the other evidence linking him to the offending as outlined above—and the hiring of the garage using false pretences and for a nefarious purpose.

82. While in this way the Crown relies on other evidence that links Mr Hawchar to the offending, that evidence alone would not in my view support a case to go to the jury. The fact of his being the renter of the premises remains essential to the Crown’s case. Without that evidence, even on the Crown case as it is framed in its expanded submission, it could not establish the elements of the offence. As an indispensable link in the chain of reasoning to guilt, it is to be established beyond a reasonable doubt.

83. I turn then to the question as to whether the Crown has established beyond a reasonable doubt that Mr Hawchar was the renter of the premises. For the following reasons, I would answer that question in the negative:

84. The inconsistency in the description of Mr Hawchar with the description of Mr Hawchar on 10 November 2022 provided by Detective Senior Constable Hall, in circumstances in which more than one meeting with Mr Alam took place, providing ample opportunity of observation. I do not accept the submission that the description was broadly consistent;

85. The fact the mobile number that was provided was operative and there are no call charge records linking the number with Mr Hawchar; and

86. Mr Hawchar is a person of good character, with the Crown case in this respect including the allegation of his use of false identification.

87. In all of the circumstances, I am unable to find beyond a reasonable doubt Mr Hawchar was the person representing himself as Anthony Saidi and the renter of the premises.

88. As I have outlined, and acknowledging a circularity in my reasoning, what is then relied on with regard to his control over the premises, is the fact that Mr Hawchar was observed to be present at the garage on two occasions, on one of which he locked the garage. This evidence is not capable of supporting a finding beyond a reasonable doubt that Mr Hawchar was in control of the garage, the alternative hypothesis being equally available that Mr Hawchar was providing a degree of assistance to Mr El Messelmani not properly characterised as enabling his access to and use of the garage.

89. The presence of his fingerprints on items inside the plastic crate and black sports bag along with those of Mr El Messelmani and other identified prints are of little assistance in determining whether Mr Hawchar was in control of the premises.

90. In those circumstances, even if the Crown was not bound by the way in which it initially framed its case against Mr Hawchar, its case against him fails.

91. For completeness, if I am wrong about the fact of his being the renter of the premises being an intermediate fact, the Crown then relies on a circumstantial case consisting of a number of facts from which the elements of the offence are to reasonably be inferred, with the guilt of the accused being the only reasonable hypothesis available on the evidence. Even if the fact of him being the renter of the premises is not intermediate and forms part of the Crown’s circumstantial case, and a reasonable inference was available from all those facts when considered as a whole that the accused was in possession of the prohibited drugs, in that he exercised control over the premises at the relevant time and had knowledge of the existence of the drugs in the sports bag, the Crown case would still fail. That is because there is a reasonable conclusion open on the facts that is not consistent with the guilt of the accused, namely that the prohibited drugs were placed in the garage between 28 November 2022 and 1 December 2022 by a person other than the co-accused in relation to which Mr Hawchar had no knowledge. I will address this in more detail in addressing the case against Mr El Messelmani.

92. I find Mr Hawchar not guilty of the offence charged.

Mr El Messelmani

90. The shortcomings in its case against Mr El Messelmani conceded by the Crown at the commencement of closing arguments are in my view, for the reasons I will outline, insurmountable.

91. Having regard to the lack of surveillance of the garage together with the limited number of attendances on the garage by the accused, the absence of evidence as to communication between the accused, and the presence of unidentified fingerprints on a number of items within the garage, two things follow: firstly, the possibility is left open of any number of unknown persons having access to and moving items in and out of the garage in the period between 28 November 2022 and 1 December 2022; and secondly, there is insufficient evidence to support the inference the Crown asks me to draw that Mr El Messelmani was in charge of what went in and out of the garage and was therefore in possession of any such items in between those times. The fact that Mr El Messelmani is the only person seen moving bags in and out of the garage can be attributed little weight in circumstances in which the garage was not under surveillance other than those times Mr El Messelmani attended the garage.

92. The evidence as to the similarities between the bags and the placement in the garage does not, in my view, give rise to a reasonable inference that they were a set, such that the person in possession of one bag was in possession of the other. In this regard, there is no evidence that the bags travelled together, given that the surveillance on 28 November 2022 did not include observation of the number of bags, the size of the bags, or photo or video evidence of the bags.

93. Having regard to the evidence as a whole, including the evidence of Mr El Messelmani’s fingerprint on the passata bottle, what is left is the Crown submission in its written summary of its closing arguments that if the bags were to be found in the possession of one group, then the Court can infer Mr El Messelmani was in possession of all the bags. During oral submissions I was asked to infer the drugs were in possession of a group from the evidence that “it’s clearly all connected”, that is, the garage was rented for the purposes of storing drugs and the common features of the crates, bags and passata bottles and the placement of the bags in the garage, hidden from view, with the furniture to give the appearance of normalcy. As a matter of common sense, it is submitted it is the one group, not multiple groups. While not clearly articulated, the submission appears to be that it could have been someone else in the group who placed the drugs inside the garage but that because Mr El Messelmani is part of the group, and there is evidence of a degree of organisation between the co-accused, I could infer possession on the part of Mr El Messelmani.

94. In circumstances in which there is no evidence as to the role of the accused in any broader operation, this would necessarily involve drawing inference upon inference in a criminal trial in which I must be extremely careful in drawing inferences from concluded facts.

95. Even if it was accepted on this scenario that intentional possession of the prohibited drugs on the part of the accused is a reasonable inference to draw, there inescapably remains a reasonable conclusion available on the facts that is inconsistent with his guilt, namely that another person in the group placed the subject bag in the garage, the contents of which the accused was not aware.

96. Having regard to all of the circumstances as I have outlined, I find Mr El Messelmani not guilty of the offence charged.

Appendix A

Evidence of Detective Senior Constable Kimes

1. In summary, Detective Senior Constable Kimes stated:

2. In October 2022, police commenced an investigation into a white Toyota HiAce van, initially with number plates BT2XXX. The investigation involved the use of a GPS tracker which had been placed on the vehicle, reviewing CCTV footage depicting the van from time to time, and police surveillance and observation of the van on 9, 10, 14, 23, 28 and 29 November 2022.

3. At 3:45pm on 9 November 2022, the HiAce van, now bearing plates DF4XXX, was located on Russell Street, Greenacre. Police observed a male passenger enter the car, which then drove around the street and returned to Russell Street. The van again stopped on Russell Street, where the male passenger exited the car, retrieving a plastic Coles shopping bag from the passenger side sliding door of the van, which appeared to be approximately half full. Police observed the male place the bag in vehicle DF2XXX, wave to the driver of the van and drive off. The van then also drove off.

4. On 10 November 2022, Detective Senior Constable Hall observed the van parked on Belgium Street, Riverwood. Mr El Messelmani entered the van and drove towards Wiggs Road, where an orange Ford Ranger with registration DTNXXX was seen driving directly behind the van. Detective Senior Constable Hall lost sight of the vehicles in the Lakemba area for about three to five minutes, after which time he located the van reverse parked in front of an open garage of a unit complex at 10 Fairmount Street, Lakemba. Detective Senior Constable Hall observed Mr El Messelmani carry and load a large black sports bag into the rear of the van. A man alleged by the Crown to be Mr Hawchar was observed standing within a few metres of the van and garage. The Ford Ranger was not observed.

5. On the afternoon of 18 November 2022 and the morning of 19 November 2022, the GPS tracker attached to the van recorded the vehicle as being at 10 Fairmount Street, Lakemba. It is not known who was the driver of the vehicle at that time.

6. On the morning of 23 November 2022, Detective Senior Constable Kimes observed Mr El Messelmani enter the driver’s seat of the van, parked at his residence in Riverwood, and drive to Allder Street, Yagoona. Mr El Messelmani exited the vehicle carrying a black backpack and walked to a unit complex located at 2B Rowe Street, Potts Hill. At 12pm, Detective Senior Constable Kimes observed an unknown male exit the unit complex carrying a Woolworths bag and enter Smail Reserve. The male exited the Reserve without the bag, and was seen a short time later in the front passenger seat of the van driven by Mr El Messelmani on Allder St. Shortly after 12:45pm, Detective Senior Constable Kimes and Detective Senior Constable Hall returned to Smail Reserve and retrieved the Woolworths bag from inside a bin. Inside a freezer bag within the Woolworths bag, police found the following items:

(a) A plastic freezer bag containing silver coloured packaging wrapped in brown tape and a vacuum sealed bag. Drug analysis indicated the presence of methylamphetamine residue on the packaging; (b) A white crystalline residue that presumptively tested positive for methylamphetamine; (c) 12 black latex gloves; (d) A measuring cup; (e) 15 empty freezer bags; and (f) A black apron.

6. Four fingerprints and one palm print belonging to Mr El Messelmani were located on the silver-coloured packaging.
7. On the morning of 28 November 2022, Mr El Messelmani was observed by police to drive to Riverwood Plaza, where he entered the shops and returned carrying two Woolworths bags full of unknown items. Mr El Messelmani drove to Chelmsford Avenue, Kingsgrove and exited the vehicle with both bags, walking to a unit complex at 548–568 Canterbury Road, Campsie. At 2:20pm, another male attended the unit complex and was greeted by Mr El Messelmani. Half an hour later, the two men were seen to walk back to Chelmsford Avenue, where Mr El Messelmani entered the driver’s seat of the van and drove away. On 28 November 2022 at 4:01pm, Mr El Messelmani and Mr Hawchar entered the Campsie unit complex a short time apart, Mr Hawchar carrying an orange Louis Vuitton bag. Both Mr El Messelmani and Mr Hawchar soon after returned to their respective vehicles, Mr Hawchar still carrying the orange bag, and drove away in convoy. At 4:38pm, both cars parked in the driveway of 10 Fairmount Street, Lakemba. Mr El Messelmani’s van was being reversed into the driveway. Both men went inside the garage of unit 13. Mr El Messelmani removed black sports bags from the rear of the van and placed them inside the garage while Mr Hawchar stood inside. Mr Hawchar crouched down in front of the closed garage door either closing or locking the door. Both Mr Hawchar and Mr El Messelmani entered their vehicles and drove away.
8. On 29 November 2022, Detective Senior Constable Kimes conducted further surveillance of the van. Surveillance ceased at 4:00pm. Police attempted to conduct further surveillance of the van between 29 November 2022 and 1 December 2022, but there was no activity.
9. On 1 December 2022, police executed a search warrant at the garage of unit 13, 10 Fairmount Street, Lakemba, relevantly locating the following items:

(a) A black “World Gym” sports bag containing 12.41 kilograms of MDMA tablets; (b) A second black “World Gym” sports bag which contained an orange Louis Vuitton bag, two colanders, a pair of gloves, paper cups and plates, and a number of sifters. Mr Hawchar’s fingerprints were located on the two colanders; (c) A further three black sports bags which contained passata bottles with a crystalline residue identified as methylamphetamine in hydrochloride salt form; and (d) Three plastic tubs containing passata bottles with crystalline residue identified as methylamphetamine, MDMA, MDA and MDEA. The bottles were also indicated to contain di[1-(3,4-methylenedioxyphenyl)-2-propyl]amine, piperonal and caffeine. Mr El Messelmani’s fingerprint was located on an unidentified passata bottle. Two fingerprints and one palm print belonging to Mr Hawchar were also found on an unidentified passata bottle or bottles.

10. As to the ownership of the garage at unit 13, 10 Fairmount Street, Lakemba, Detective Senior Constable Kimes took a statement, being exhibit 16, from the owner, Mr Alam, to the effect that:

(a) From 2 November 2022, Mr Alam rented out the garage to a person named Anthony Saidi for $60 per week; (b) Mr Alam photographed Mr Saidi’s driver’s licence, describing him as 23 to 25 years old, Lebanese, tall and fat, and clean shaven with short black hair; (c) On 5 November 2022, Mr Saidi messaged Mr Alam to move his car so he could move furniture into the garage. Mr Alam never saw Mr Saidi again and never saw anyone else access the garage; and (d) On the evening of 1 December 2022, Mr Alam messaged Mr Saidi to advise the police had attended and ask whether Mr Saidi had stored anything illegal in the garage. Mr Saidi said he only stored furniture in the garage.

11. A copy of the rental agreement and text messages between Mr Alam and Mr Saidi are contained in exhibit 17.

12. Mr Saidi provided four weeks’ cash in advance and Mr Alam provided him the key to the garage. Police conducted a subscriber check for the number used by Mr Saidi. It was registered to a person named Ngoc My Thi Huynh. Searches of police computer systems could not locate an Anthony Saidi.

13. Under cross-examination, Detective Senior Constable Kimes accepted that:

14. The text messages between Mr Alam and Mr Saidi indicate they may have also met on 19 November 2022. Detective Senior Constable Kimes did not ask Mr Alam about that meeting;

15. He could not say what was in the Coles bag observed to be carried by the unknown male on 9 November 2022;

16. There was no surveillance log made for 10 November 2022;

17. He could not say whether or not any person accessed the garage between the times police surveilled the garage during November 2022 and could not say with certainty when each bag and tub was placed in the garage;

18. There are no photos or videos of Mr El Messelmani at the garage on either 10 or 28 November 2022 and the surveillance log does not indicate how many black bags Mr El Messelmani moved into the garage on 28 November 2022. There were perhaps no more than two bags moved into the garage on that date;

19. The photo of Mr Hawchar crouching in front of the garage on 28 November 2022 could only be assumed to depict him locking the garage as the photo does not show what he is doing; and

20. He could not say which passata bottle Mr El Messelmani’s fingerprint was on, or how it came to be on the bottle. It is only known that the bottle was taken from one of the plastic tubs.

Evidence of Detective Senior Constable Hall

3. Detective Senior Constable Hall gave further evidence regarding his observations on 10 November 2022. He described the male driver of the Ford Ranger who was observed standing near the garage at 10 Fairmount Street, Lakemba as being in his twenties or thirties, of Middle Eastern background and of large build. He was wearing sunglasses and had a thick beard that extended a few inches below his chin. At the time, Detective Senior Constable Hall did not recognise the male but now knows him to be Mr Hawchar based on comparison of his observations to Mr Hawchar’s driver’s licence photo.

4. Under cross-examination, Detective Senior Constable Hall’s evidence was that:

5. He could not say when it was that he saw Mr Hawchar’s driver’s licence or who showed it to him;

6. He could not recall whether he had regard to a surveillance log when preparing his statement dated 23 April 2024;

7. Detective Senior Constable Hall conceded that he did not mention the male being of large build or wearing glasses in his statement but denied that he added that description because he knew Mr Hawchar was of large build;

8. He denied that the van would have entirely obscured his view of the entry to the garage as he drove past 10 Fairmount Street, Lakemba; and

9. Detective Senior Constable Hall clarified that he did not see Mr El Messelmani or Mr Hawchar in the garage at any stage and agreed there could have been another person in the garage.

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