R v Kokkinos [2004] VSCA 83

R v Kokkinos [2004] VSCA 83 - VSCA 2004 case summary — Zoe

[9]

Before the applications can be considered it is necessary to state in summary form the evidence relating to the first count and the essence of the offending the subject of count 2. Each count alleged one instance of trafficking on a specified date. In May 1999 a member of the Victoria Police attached to the Covert Investigation Unit having the assumed name of Alex Baldwin was involved in an investigation of a suspected drug trafficker named Maxwell Mundy. His role was to purchase drugs and firearms from Mundy. He also had a number of meetings and conversations with Mundy's son, Jason Mundy, relating to the purchase of cannabis, cocaine, amphetamines and firearms. He made an arrangement with Maxwell Mundy for the supply to him, Baldwin, of three ounces of cocaine, to be delivered at a meeting on or about 28 August 1999 for the price of $12,000. Pursuant to arrangements made by telephone Baldwin arrived at the Vibe Restaurant or Café in Acland Street, St. Kilda, on 28 August at a time which police surveillance evidence showed to be 9.27 a.m. Mundy and another man were at a table and he joined them. The other man soon left. Mundy told him that, instead of providing three ounces of cocaine that was about 40 per cent pure, he was going to supply him with 1½ ounces double that strength, 84½ per cent pure, and also glucoden, the powder that is used to mix with the cocaine to dilute it. Mundy asked Baldwin to give him the $12,000 so that he could take that money, go away and obtain the cocaine and then come back to Baldwin with it. Mundy opened the newspaper that he had earlier been seen by police to purchase and Baldwin placed $12,000 in it, having received that money earlier from his police superior. Mundy closed the paper and left the restaurant. About 15 minutes later, according to Baldwin, he returned. He was carrying the newspaper, doubled over, as well as a white paper bag containing glucoden energy powder. The newspaper contained two parcels. One was a ball wrapped in freezer bag-type plastic and containing a white coloured material. The other, slightly larger, was wrapped in brown boxing tape and supposedly contained the near pure cocaine. Subsequent analysis showed that it did. Mundy handed Baldwin the white paper bag and the two parcels. After some conversation about further purchases they left the restaurant and parted company. Baldwin did not meet the applicant or know of his existence until the following day.

[12]

The foregoing evidence relates to count 1. For count 2, on which the applicant does not challenge his conviction, the following description is sufficient. At 8.39 p.m. on 2 September 1999 the applicant parked in front of the house at 32 Rothesay Street, Elwood, where the applicant was staying. Hortis and Enache arrived by car at the house and all three entered it. According to Enache, he had on instructions from his supplier collected from the nature strip a red plastic bag containing cocaine of the order of 1 pound in weight and handed it to the applicant (and possibly Hortis) at the front gate. The applicant put the bag with its contents in the bathroom of the house. The applicant and Mundy later left the premises. Shortly after 11.00 p.m. Baldwin parked opposite the premises and 2 minutes later the applicant and Mundy returned and entered them. Mundy came out and invited Baldwin into the house. Mundy and Baldwin counted (for the second time) the $97,500.00 produced by Baldwin, that sum having been agreed between them as the price payable by Baldwin for a pound of cocaine. The applicant came into the room where they were and Mundy asked him to fetch the cocaine in order to show it to Baldwin, the purchaser. The applicant went out and returned with a parcel containing white powder. The applicant put his finger into it and then into Baldwin's mouth, saying that it was cocaine. Shortly afterwards the police arrived and arrested those present. The foregoing does not account for the whole of the applicant's participation in the transaction. Thus, at meetings at various eating houses in St. Kilda and a St. Kilda park from Sunday 29 August to Thursday, 2 September (both inclusive), he had received in person Mundy's order from him of cocaine for supply to Baldwin, had discussed with Baldwin the availability and price of cocaine and had himself ordered the cocaine from Enache, who was at the time accompanied by Hortis. (Enache claimed he obtained cocaine to fill the order from an ultimate supplier, "John", in Dandenong.) In addition, the applicant had taken part in numerous telephone calls with Baldwin and Mundy arranging the deal.

[17]

Contrary to counsel's assertion, there is considerably more evidence against the applicant here than mere presence in the Canterbury Road premises (and, I would add, in the car and the general area of the restaurant), as I shall endeavour to show. Now, when Mundy received the $12,000 from Baldwin at the restaurant he did not have with him the agreed amount of cocaine to hand over to Baldwin and it is clear, even if one disregards Mundy's statement to Baldwin, that he left the restaurant in order to obtain the cocaine. When he returned he had it. The surveillance evidence shows that he was away from the restaurant from 9.34 a.m. until 9.54 a.m., only 20 minutes. In that period no call was made to or from Mundy's mobile telephone apart from Mundy's call at 9.34 a.m. to the applicant. Further, in that period Mundy went to one place only, the Canterbury Road premises. This appears from three facts. First, to judge from his telephone call Mundy expected to take five minutes to reach the applicant. He in fact entered the house within four minutes if all the timings are accurate, but the drive back took five minutes. Secondly, it is clear from the evidence that Mundy and the applicant were under surveillance from the time they left the Canterbury Road premises until the applicant went his way in Acland Street and Mundy re-entered the restaurant. Whilst the surveillance evidence of the journey to the Canterbury Road premises is not quite so clear, it is likely, and was open to the jury to find, that Mundy was under observation continuously from the restaurant to the Canterbury Road premises. Thirdly, there is no evidence suggesting that Mundy went to any other place during the 20 minute interval and it would seem impossible for him to have had time to do so. The position, then, is that Mundy left the restaurant in order to obtain the cocaine, he returned with it in 20 minutes, he had gone only to the Canterbury Road premises and he had come out from them with the applicant, to whom he had made his only phone call in the 20 minutes.

[20]

Besides the evidence on which I have so far relied there are other telephone conversations between Mundy and the applicant, both earlier and later than the carrying out of the transaction between Mundy and Baldwin. Thus, calls Nos. 88, 91 and 140 show on their face not merely a relationship between Mundy and the applicant but (because care was taken in them to avoid any mention of the subject or substance of their discussions) a relationship that was improper, if not criminal. When it is seen that subsequently Mundy obtained cocaine in the presence of the applicant the relationship is shown to concern illicit drugs. Further, having regard to what occurred the next morning, the expression "the main fella" in call No.88 might reasonably be taken as referring to Baldwin. The applicant should be taken to have known during the call that Mundy had a cocaine transaction arranged with a purchaser for the following morning. Calls Nos.91 and 140, taken together, show that the applicant had merchandise that Mundy from time to time needed and sold to other persons and that, because each was careful not to disclose the nature of the merchandise, it was at least likely that the merchandise was illicit. Finally, call No.91 shows that a transaction between the two speakers was to occur in the early hours of 28 August by which the applicant would deliver to Mundy some of his illicit merchandise. The fact of that proposed transaction, which was to be completed about 1.30 a.m. on 28 August, tends to make it more likely that the applicant's telephone conversation and personal contact with Mundy later that day (from 9.34 a.m. to about 10 a.m.) were for a guilty rather than an innocent purpose and is thus probative of count 1, as was the prior relationship or dealing in Plomp v. The Queen[10] and Harriman v. The Queen[11]. No direction about relationship evidence was given, but, having regard to what the prosecutor put[12] to the judge in answer to the "no case" submission, it appears likely that this view of the first two telephone calls at least was put by him to the jury. That the charge did not deal with those calls does not mean that the jury may not be taken to have so used the evidence either at the prosecutor's invitation or on their own initiative. Be that as it may, the fact that regard is to be had to the charge[13]

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Judgment (48 paragraphs)

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