R v Saffo

District Court of NSW|2023-01-30

Solicitors: Director of Public Prosecutions (NSW) (Crown) Eliopoulos Lawyers (accused) File Number(s): 2021/00182259

Introduction

On Monday 30 January 2023 Zeki Saffo appeared for trial in the District Court, Sydney upon an indictment alleging an offence of supplying a commercial quantity of the prohibited drug gamma butyrolactone contrary to s 25(2) Crimes Act 1900.
The accused elected to have the trial before a judge alone pursuant to s 132 Criminal Procedure Act 1986 to which the Director of Public Prosecutions agreed. The election form signed by the accused and on behalf of the Director became Exhibit A in the trial. His Honour Judge Hunt made the order for the trial to proceed so, upon the Notice of Motion presented in his court before the trial was allocated.
The Crown submitted that the foundation for the agreement of the Crown to the trial proceeding before a judge alone arose from the admissibility of evidence of recorded telephone conversations between the accused and Vural Can, and CCTV recording the two of them associating with each other between 9 September 2020 and 11 October 2020. The evidentiary purpose of the evidence [1] , and impermissible use [2] , were the subject of submissions.

General Directions

To comply with ss 133(2) and 133(3) Criminal Procedure Act 1986, and as required by authority such as the decision of the High Court in Fleming v R (1998) 197 CLR 250, I remind myself of the following principles of law.
As the accused pleaded not guilty and elected trial by Judge alone it becomes my duty and responsibility to consider whether the accused is guilty or not guilty of the charge, and to return my verdict according to the evidence.
It is for me to assess the witnesses and decide whether they are reliable. Reliability depends upon two different but overlapping considerations, namely the witness's honesty and the witness's accuracy. The honesty of a witness involves considering not only what the witness said, or did not say, but also the impression that the witness made upon me.
I have the benefit of submissions from the Crown and the accused's counsel. I have considered them and give such weight as I think they deserve. I note that they are not evidence in either case.
As the tribunal of fact, I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense.
I acknowledge the importance of matters I must decide, not only for the accused but also for the whole community. I must act impartially, dispassionately, and fearlessly. I must not let sympathy or emotion sway my judgement. I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence presented during the course of the trial. This includes the oral evidence of witnesses and exhibits.
I am not obliged to accept the whole of the evidence of any one witness. I may accept part and reject part of a witness's evidence.

The Burden of Proof

This is a criminal trial. The Crown has the onus of proof, to the standard beyond reasonable doubt in respect of every element of the charge. It is not for the accused to disprove those elements, but for the Crown to prove them beyond reasonable doubt. Suspicion is not a substitute for proof beyond reasonable doubt.
The words "beyond reasonable doubt" are ordinary everyday words and that is how I understand them. If at the end of my deliberations I am not satisfied that the Crown has established those essential matters beyond reasonable doubt, having taken into consideration the evidence both for the Crown and for the accused, and the submissions by the Crown and the accused's counsel in their addresses, it is my duty to bring in a verdict of not guilty because the Crown will have failed to do what the law requires.
I understand that the accused must be found not guilty if any one of the essential ingredients of the charge has not been proved to my satisfaction beyond reasonable doubt. It follows that if I am left unable to decide whether the Crown has proved its case beyond reasonable doubt, even though I might suspect that the accused engaged upon conduct upon which the charge is brought, the accused is entitled to the benefit of that doubt and I must find him not guilty.
The Crown does not need to prove every single fact arising from the evidence in the case beyond reasonable doubt; I am not required to resolve every conflict arising from the evidence. The onus, which rests upon the Crown, is to prove the ingredients of the offence.

Circumstantial Evidence

I may, in my role as Judge of the facts, draw inferences from the direct evidence. Inferences may be valid or invalid, justified, or unjustified, correct, or incorrect. I may only draw an inference adverse to the accused from proven facts if such inference is a reasonable inference that can be properly drawn from the proven facts.
This is a criminal trial, and as I noted, I must be satisfied of each essential ingredient beyond reasonable doubt, and, that the accused committed the offence before he may be found guilty. Amongst other things, this means that I should be extremely careful about drawing any inference. I should examine any possible inference to ensure that it is a justifiable inference. I should not draw any inference from the direct evidence as to the existence of an essential ingredient, or as to the guilt of the accused, unless it is the only rational inference in the circumstances.
This direction is foundational to what I must understand regarding circumstantial evidence upon which the Crown relies to prove that the accused was in constructive possession of the gamma butyrolactone, although the physical custody was in Vural Can when it was seized, that the accused's liability extended between 13 October 2020 to 15 October 2020 when Vural Can was arrested and the drugs seized, and that the accused and Vural Can were during this period in a partnership in the exercise of joint dominion over the gamma butyrolactone, which the accused knew was a prohibited drug and knew or believed was more than one kilogram.
To prove beyond reasonable doubt the accused's guilt the Crown must first prove that the inference or conclusion it relies upon is a reasonable one to draw from the facts established by the evidence. It then must prove that the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts viewed in combination and not individually or in isolation is that the accused is guilty of the offence. If there is any other reasonable conclusion open on those facts that is inconsistent with the conclusion for which the Crown contends, the Crown's circumstantial case fails [5] .

The Accused did not Give Evidence

The accused gave no evidence in the trial.
The Crown bears the onus of proof beyond reasonable doubt that the accused is guilty of the offence.
The accused bears no onus of proof in respect of any fact that is in dispute. Although the accused was entitled to give or call evidence, there was no obligation upon him to do so. He is presumed to be innocent unless and until I have been satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty. It follows that the accused was entitled to say nothing and make the Crown prove his guilt to the high standard required.
The accused's decision not to give evidence cannot be used against him in any way during deliberations. His decision cannot be used as amounting to an admission of guilt. I must not draw any inference or reach any conclusion based upon the fact that the accused decided not to give or call evidence. His decision cannot be used to fill any gaps that might exist in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt.
One must not speculate about what might have been said in evidence if the accused had given evidence.
In his submissions the accused brought to attention the decision in Weissensteiner v The Queen (1993) 178 CLR 217 and submitted that this is not one of those rare or exceptional cases where a Weissensteiner direction ought to be given. I raised question with the parties at the conclusion of the evidence when they sought to provide written submissions [6] but the Crown made no submissions on the point.
According to the accused's submission it is to be emphasised that failure by an accused to give an account may be used only sparingly [7] . … if failure of an accused person to give evidence has any significance at all, it can only be in very limited circumstances. That is because regard must always be had to the presumption of innocence and the duty of the prosecution to prove guilt beyond reasonable doubt. In the light of those considerations, if failure to give evidence has significance, it can only be because it is reasonable, given the circumstances of the case, to expect that an innocent person would offer an explanation of the events in question and an explanation has not been advanced in some way, either before or during the trial.
Not every case calls for an explanation from the accused [8] . 28. We have quoted rather more extensively from the cases than would otherwise be necessary in order to show that it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused. 29. Of course, an accused may have reasons not to give evidence other than that the evidence would not assist his or her case. The jury must bear this in mind in determining whether the prosecution case is strengthened by the failure of the accused to give evidence. Ordinarily it is appropriate for the trial judge to warn the jury accordingly. 30. Not every case calls for explanation or contradiction in the form of evidence from the accused. There may be no facts peculiarly within the accused's knowledge. Even if there are facts peculiarly within the accused's knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution. Much depends upon the circumstances of the particular case and a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them.
The accused referred to R v Bayden-Clay [2016] HCA 35 at [51], 51…. The significance to be attached to what was said in Weissensteiner must be understood in its context, as explained in Azzopardi v The Queen (citation omitted). Weissensteiner was not simply a case in which the accused failed to contradict direct evidence of other witnesses. It was a case in which, if there were facts which explained or contradicted the evidence against the accused, they were facts which were within the knowledge only of the accused and thus could not be the subject of evidence from any other person or source.
The accused submitted that the present case, given the evidence of other uncharged offending and an alternative inference that the drugs in question were in the sole possession of Vural Can found with physical custody of them, it was not reasonable to expect that the accused, presumed to be innocent, would explain the events in question. There was a competing explanation advanced to the extent possible during this trial, in which the Crown did not call Vural Can, who would have been in a position to give relevant evidence on the question of the alleged joint possession.

The Accused's Silence upon Arrest

Police arrested the accused on Thursday 24 June 2021 in Queen Street, Newtown. They informed him that it was for drug supply. He was cautioned that he did not have to say anything if he did not want to and he remained silent. Police conveyed him to Newtown Police Station and entered him into custody.
About 10:45 pm the accused participated in an interview but the Crown announced on the first day of the trial that this would not form part of the Crown case. I am unaware of the reasons for this.
I shall approach this as if the accused exercised his right to silence. I accept that it would be wrong if the accused, having listened to what the police said when he was arrested and having decided to exercise his right to silence, to use that fact against him. I must not do that. The accused's silence cannot be used against him in any way. The fact that he took note of the caution given by the police and chose to remain silent cannot be used against him, if that is what occurred.

The Essential Elements

The accused is charged with one count of supply of the commercial quantity of a prohibited drug. The sole count on the indictment is expressed thus: Between 13 October 2020 and 15 October 2020, at Eastlakes in the State of New South Wales, did supply a prohibited drug, namely, 3,356 grams of Gamma Butyrolactone being an amount which was not less that the commercial quantity applicable to that prohibited drug. S 25(2) Drug Misuse and Trafficking Act 1985 Law part code 3183
In Schedule One to the Act the commercial quantity specified for the drug is one kilogram. The Crown alleges that the accused between the dates specified possessed the drug for the purposes of supply.
The term supply is defined in s 3 Drug Misuse & Trafficking Act 1985. Supply includes (my emphasis), … sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things.
The Crown case does not include direct evidence that the accused was in possession of the prohibited drugs but is presented upon the evidence of facts and circumstances from which the Crown contends that the only rational conclusion to draw is that the accused was at the material times in possession of the drugs jointly with Vural Can, during their joint criminal enterprise of possession for the purposes of supply.
The nature of the substance Gamma Butyrolactone as prohibited drug is not disputed. Nor is the quantity of the drug. The issue is whether the Crown has proven that the drug was in possession of the accused.
The Crown must prove that the accused intentionally had the substance in his physical custody or control to the exclusion of any other person, except some other person acting jointly with the accused in possessing the substance. In this instance the Crown case is that the accused was acting jointly with Vural Can.
The Crown must also prove that when intentionally having such custody or control of the substance, the accused knew or believed at the time that the substance was a prohibited drug. The Crown does not have to prove that the accused knew that the drug was the particular one specified in the charge, but it does have to prove beyond reasonable doubt that the accused knew or believed that it was a prohibited drug. The Crown may do so by proving the accused actually knew or believed that what he had custody or control of was a prohibited drug or was aware that there was a significant or real chance that it was.
It is the accused's actual knowledge or belief which must be proved, not what some person in the accused's position might have known or believed. Knowledge or belief may be inferred or concluded from consideration of the surrounding circumstances, provided any such inference or conclusion is a rational one and is not based on speculation or suspicion. Because of the requirement that the Crown proves this beyond reasonable doubt, any inference or conclusion about the accused's knowledge or belief must be the only rational inference or conclusion open on the evidence.
I may bring to account, as one of the circumstances to be considered, what a reasonable person in the position of the accused would have known or believed as to the nature of the substance that the person had in his custody or control, but the question to be resolved is whether the Crown has proven beyond reasonable doubt that the accused had the knowledge or belief that the substance was a prohibited drug.
The offence will be complete if the accused had possession of the drug for the purpose of supply, as provided in the definition of the term 'supply', except that if the accused proves that he had the drug in possession otherwise than for the purpose of supply the prosecution must fail. If the Crown proves that the accused was in possession of more than the traffickable quantity of the drug he is deemed to have it in his possession for the purposes of supply, unless he proves that he had possession for a purpose other than for supply [9] . In Schedule One, Drug Misuse and Trafficking Act 1985 the traffickable quantity specified for Gamma Butyrolactone is 30 grams.
The term supply, as used in the phrase possession for the purposes of supply, has its ordinary meaning, namely, to give or to provide the drug to somebody else, whether by way of sale or otherwise. What the accused must prove to discharge his burden, if the Crown proves that he possessed the drug, is that he had the drug in his possession for some purpose other than to give it or provide it to somebody else.
It is sufficient if the accused meets his burden on the balance of probabilities.

The Crown Case

The Crown alleges that the accused was engaged in a joint criminal enterprise with Vural Can in circumstances where on 14 and 15 October 2020 they were in an apartment in the city together in possession of the prohibited drugs for the purposes of supply. The charge avers the date range beginning on 13 October 2020 and concluding upon the arrest of Vural Can on 15 October 2020.
Surveillance evidence was led to show their presence together in the apartment, until about 7:47pm on 15 October 2020 when Vural Can was observed leaving the building to take a taxi from Liverpool Street, Sydney to an address at Eastlakes where he was arrested. The prohibited drugs were found in containers in a laptop computer bag and a Woolworths shopping bag retrieved from the taxi in which Can travelled.
The Crown must prove that the accused was a participant in the joint criminal enterprise with Vural Can. The Crown case is that both were in possession of the drug at the apartment, and thereafter when, upon the Crown case, the drug was with Vural Can as he travelled by taxi to Eastlakes to be arrested.
The Crown must establish both the existence of the joint criminal enterprise to possess the prohibited drug and participation in the joint criminal enterprise by the accused.
The joint criminal enterprise may be inferred from all the facts and circumstances surrounding the commission of the offence that are found proved on the evidence. The agreement in this instance must be shown to have been reached before the time when the accused and Vural Can were at the apartment on 14 October 2020.
The circumstances in which the accused and Vural Can were participating together in the commission of the crime might establish that an agreement was reached between them that the crime should be committed. It does not matter whether the custody of the drugs was by only one or other of the participants in the joint criminal enterprise, or whether they both played an active part throughout. Both participants in the enterprise are equally guilty of committing the crime regardless of the actual part played by each in its commission. Hence, if the finding is that the drugs were in the custody of Vural Can when he left the apartment as part of the agreement with the accused to participate in possession of the drug, the accused could be found to have been a participant in the possession of the drug during that time, as well as in the apartment.
The Crown concedes that to succeed it must prove beyond reasonable doubt the following elements: 1. Gamma butyrolactone is a prohibited substance [direction as a matter of law]; and 2. The accused was in joint possession of the prohibited substance with Vural Can; and 3. The accused knew or believed that the prohibited substance was not less than the commercial quantity applicable to that prohibited drug.
The Crown argues that since the accused exercised his right of silence, upon a finding beyond reasonable doubt that the accused was in joint possession with Vural Can, he failed to discharge his onus of proof of the circumstances provided in s 29(a) of the Act. The Crown relied upon the deeming provisions. The Crown submitted that it may rely upon evidence of actual supply by the accused, subject to an appropriate warning such as in R v Agic NSWCCA, 18 May 1992, unreported, where the evidence of actual supplies by the accused was held relevant to whether the accused had the drug for his own use.
In R v Agic [10] , Kirby P with whom Allen and Abadee JJ agreed wrote, Suggested inadmissibility of evidence of supply The fourth ground was that McLachlan DCJ erred in failing properly to direct the jury in relation to the statement of Detective Gould "We have been watching you and I believe you have been selling heroin to persons". The fifth ground was that the trial Judge failed to direct the jury upon the proper use that might be made of the alleged immediate past heroin transactions and possession of a sum of money by the appellant. The appellant complained that the statements of Detective Gould were hearsay and inadmissible in regard to the issue for trial in the way the Crown ultimately brought its case, namely on the basis of deemed and not actual supply. Reliance was placed upon the instruction of the High Court of Australia in Maric v The Queen (1978) 52 ALJR 631. It was submitted, alternatively, that any marginal relevance of the evidence of Detective Gould was outweighed by the prejudice that could be caused by such evidence, given that the Crown was not in a position, on its own concession, to prove what was in the bags allegedly provided to unknown third parties, and given further that the Crown's case brought solely on the basis of deemed and not actual supply. In my view the evidence was not inadmissible. Maric is distinguishable. In that case what was reported was the out of court reputation of the accused. In this case Detective Gould was giving evidence of his own statement made to the appellant and exposed to cross-examination by counsel for the appellant both as to the fact that it was said and or fundamentally as to the actual observations of the witness. If the evidence was relevant to an issue for trial, as I think it was, it was admissible and properly received before the jury. By the same token, there is force in the complaint about the apparent confusion in the way in which the prosecution's case was presented. It was ostensibly, in the terms of the indictment, one of deemed supply. However, this evidence, in part at least, might be seen as suggesting actual supply to unnamed persons. The prosecutor at the trial made it plain that the real case being presented was one of deemed supply only. In these circumstances, because the appellant was found in possession of three times the traffickable quantity of heroin, and did not dispute such possession, nor did he dispute that the substance was heroin, the only issue to which the added evidence could be addressed was that which the applicant raised in explanation or defence. That was the issue of possession for his own use. The evidence was not relevant to establish actual supply for that was not charged. This point should have been made clearly by the Judge giving an appropriate instruction to the jury concerning the use of the evidence. If, on a retrial, such evidence is again tendered, it would be highly desirable that a clear and explicit warning about it should be given.
In the present case there is no direct evidence that the accused supplied any drug within the period of time charged or proximate to it.
The Crown referred to the subtle difference between joint criminal enterprise and a Crown case based upon joint possession, as discussed in Mogilevsky v R [2010] NSWCCA 92. The case concerned an accused charged with supply of cannabis, also charged with cultivation of cannabis as part of a joint criminal enterprise. The supply charge was in respect of bags of cannabis and loose cannabis found in a house. There was no evidence to show that this was from the cannabis cultivation in which the accused participated. There was no evidence connecting her to the cannabis other than where it was found in premises to which she had some connection with her sons with whom she was charged. At para [5] Latham J, with whom Fullerton and Schmidt JJ agreed, wrote (my emphasis), 5. A good deal of confusion was introduced into the Crown case by the framing of the indictment and by the trial advocate's opening. Both counts were expressed in terms of "knowingly take part in" the relevant offence, between the dates of 22 April and 19 July 2006. In the closing stages of the trial, the charges were amended to refer simply to "cultivate" and "supply". That amendment arose in part out of the no-case submission by the appellant's counsel, but the amendment did not address the fundamental problem with respect to the supply charge. Regardless of whether the appellant was a party to the joint criminal enterprise to cultivate, the supply charge was based on the appellant's possession, jointly with her sons, of the 8.5kg of cannabis found in number 80. Proof of that possession depended upon her knowledge of the cannabis in the house, including the cupboard. That knowledge could not be inferred from the mere fact that the appellant participated in a limited way in the enterprise to cultivate.
At para [22], 22. The trial advocate submitted in response to [trial judges comment regarding the lack of connection between the cannabis and the cultivation] that there was ample evidence allowing the jury to infer that the cannabis found on 18 July "came from the crop site". The trial advocate referred to the packaging device and the loose quantities of cannabis in other rooms of number 80, together with evidence from the integrated listening device that one of her sons was in the premises four days before the execution of the search warrant. Once again, the trial advocate stressed that "the Crown case is based on joint criminal enterprise". 23. The difficulty with this latter submission is that the trial advocate opened on a joint criminal enterprise to supply the cannabis harvested from all three premises, but by the time of the no-case submission, the Crown case had been confined to joint possession of the cannabis in number 80. The trial advocate appears to have confused the two concepts and used the terms "joint criminal enterprise" and "joint possession" interchangeably. They were not one and the same thing. In any case, if it was the former, the Crown was required to prove the appellant's participation in an agreement between the appellant and her sons to possess the relevant quantity of cannabis, which in turn required proof that the appellant knew of the existence of the cannabis in number 80. If it was the latter, the Crown was still required to prove that the appellant knew the cannabis was in number 80 in the relevant quantity. There was no evidence that the appellant knew of the existence of the packaging device or of the harvested cannabis, all of which were located in rooms other than the main room of the house, where she was depicted spraying and cleaning.
In the present case the Crown opened upon the basis of joint possession as discussed. The Crown submitted that the distinction between this as the basis of liability and joint criminal enterprise is not material as it was in Mogilevsky [11] since the parties agree that the Crown must prove the accused knew of the specific substance charged.
I understand this submission to rest upon the proposition that whereas in Mogilevsky [12] the evidence did not extend to allow a finding that the cannabis the subject of the supply charge was of the product harvested from the cultivation with which the accused was charged, in the present case it is not disputed that the gamma butyrolactone found in Vural Can's custody was the drug with which this accused is charged to have had joint possession at the material times.
The Crown submits the accused was in constructive possession of the drug, though the physical custody of the substance in the hands of Vural Can when it was seized, with the accused's liability extended between 13 October 2020 to 15 October 2020 when Vural Can was arrested and the drugs seized. It is the Crown case that prior to his arrest Vural Can was with the accused in an apartment in the city in an illicit partnership, in circumstances that prove joint physical custody including control of the substance and knowledge of it in their joint possession.
The Crown accepts that it must prove as essential facts underpinning its case of joint possession, that the accused and Vural Can were within the timeline charged in a partnership that involved the exercise of joint of dominion over the gamma butyrolactone, that the accused knew the substance was a prohibited drug and knew or believed it exceeded the weight of one kilogram.
The Crown relies upon circumstantial evidence to establish the content and nature of the relationship between the accused and Vural Can, and to prove joint possession of the drug. The direct evidence upon which the Crown relies for these inferences includes covertly recorded conversations between the accused and Vural Can in the days leading to Vural Can's arrest, and immediately after it, and physical surveillance during the entire period.

Summary of Evidence

The Crown submits that is has proven its case beyond reasonable doubt by the combined force of the items of evidence listed hereunder that give rise to inferences that together amount to the irresistible conclusion of guilt. I am not sure of the accuracy of this expression. I understand the contention to be that the combined effect of the basic items of direct evidence is the irresistible conclusion that the accused is guilty. 1. Telephone intercepts from 9 September to 11 October 2020 (Exhibit B @ pp 20 - 45). 2. CCTV recording footage of 9 September 2020 (Exhibit C). 3. Telephone intercepts 15 October 2020 (Exhibit B @ pp 47 - 50). 4. CCTV recording footage from inside Meriton apartments from 14 October 2020 (Exhibit D). 5. CCTV recording footage outside Meriton apartments - departure of Vural Can ([Exhibit E). 6. Telephone intercepts after apprehension of Vural Can - evidence of consciousness of guilty and implied admissions (Exhibit B @ pp 51 - 63). 7. Statements of police (Exhibits G, H, J, M) - (surveillance and apprehension of Vural Can). 8. DNA evidence (Exhibit F). 9. Fingerprint evidence (Exhibits Q & R).
Facts are not in dispute, save for contention agitated in respect to the fingerprint evidence [Exhibits K, L, N, O, and P]. These exhibits were adduced in fairness to the defence, and their relevance is invoked for the purpose of resolving the dispute by the tribunal of fact.
At the close of the Crown case, the sworn evidence of witnesses given at the trial (including the voir dire), was tendered. As a result, the transcript of evidence is, incorporated in the exhibits list.

The Circumstantial Case without Forensic Evidence

The Crown asserts what it submits is a strong circumstantial case according to the principles for which Shepherd v The Queen [13] is authority, drawing upon the following: 1. The telephone intercept material demonstrates contact between the accused and Vural Can in the weeks up to the period charged (13 October 2020 and 15 October 2020), when they discussed drug supply including gamma butyrolactone to which they referred as "water" and "drink". 2. On 13 October 2020, the accused checked into an apartment in the Meriton apartments in World Square, which he had booked in his name [14] . 3. Exhibit D (CCTV) and Exhibit B (Synopsis from pp 110 to 112) record both the accused and Vural Can regularly entering and leaving the room over the following days, with other unknown persons who would visit the room for a short time and leave. 4. At 1:11am on 15 October 2020, the accused and Vural Can discussed "goods" and "the shop" and how much money each received. Vural Can used the word "bottle" referring to how much money should be exchanged for one or two "goods". He told the accused he had "just come to the room", consistent with him appearing on CCTV at 12:46am. At 1:34am, the accused called another person and asked whether "one" is enough, in something "blue". The other person confirmed that "just the blue bottle" is fine. 5. At 6:22pm on 15 October 2020, Vural Can was captured on CCTV footage when he entered the hotel room. The accused was captured entering the hotel room twenty minutes later at 6:45pm carrying three white shopping bags. They remained in the hotel room for about one hour. 6. Vural Can has left the hotel room with the 3.3kg of GBL in the Woolworths shopping bag commencing at 7:43pm. 7. When arrested Vural Can called the accused from custody and advised him he was at the Police Station and to get out of the room because the Police had found something in the "back seat" while he was sitting in the front seat. The accused asked Vural Can whether he had anything on his person when he was stopped and how Police discovered the hotel room. Vural Can said that he had the card in his wallet.
The Crown submits that the irresistible inference arising from these facts including the content of the phone call is that the accused with Vural Can shared an interest and exhibited consciousness of guilt in respect of the illicit possession of the quantity of drugs found upon Vural Can's arrest, and that they were in commercial partnership in respect of those drugs.
The Crown submitted that there was synchronicity in the transactions between the two men of particular significance.
The Crown referred to evidence from Detective Senior Constable Grant Prior called on 30 January 2023 [15] . The Crown invited attention to the evidence from page 13 line 1 and Exhibit B, pp 121 - 122 which represents a sequence of activity captured by CCTV in the vicinity of the apartment on 15 October 2020 between 15:40 hours and 22:39 hours when the accused was captured leaving carrying a shopping bag, and Exhibit B, pp 51 - 52, the transcript of the telephone call captured in Turkish and English between Vural Can and the accused from the Mascot police station: Q. All right. If you look at exhibit A (as said), I just want to stitch together some facts in the sequence of events. HIS HONOUR: It's exhibit B you mean. CROWN PROSECUTOR: Exhibit B, I'm sorry. Q. You'll see if you open that up there's page numbers on each page at the bottom there. Could you open up to page 122? You'll see that that's the last page in the series of sequence of events-- A. Yes. Q. --relating to the Meriton, And what we've seen from the video is that at 1943, or 7.43pm, on 15 October, Can and unidentified female 6 exit the room and enter the lift with Can carrying a black laptop bag and Woolworths' shopping bag, is that correct? A. Yes. Q. On your evidence, down on Liverpool Street, you had observations of him at 7.45pm, at about which time he caught a taxi? A. Yes. Q. So he leaves Meriton at 7.43, goes downstairs, you see him in the company of another male on Liverpool Street, and he catches a taxi - that is, Can catches a taxi and departs from the area at 7.45? A. The meeting with the male was previous to him coming down with the bag. Q. Right. So am I right to say that he caught a cab at about 7.45? A. Yes. Q. And then he departed the area of Liverpool Street on his way to Eastlakes, not to return? A. Yes. Q. Then that leaves only observations of Mr Saffo upstairs at the apartment complex, correct, if you look at page 122? A. Yes. Q. If you look at page 51 of that exhibit B, do you recognise that conversation that occurred in Turkish between Can and Saffo? A. Yes. Q. That's a conversation that took place as a result of Mr Can calling Mr Saffo at Mascot Police Station? A. Yes. Q. That occurred at 10.35? A. Yes. Q. Then going back to page 122, four minutes later, Mr Saffo leaves the Meriton apartments? A. Yes. Q. Not to return? A. Not to return that evening.
The Crown referred to a selection of telephone intercept evidence, which it submitted highlights the nature of the activity that defined the commerciality of the relationship between the accused and Vural Can: Date of Telephone intercept Terminology Used in Coded Conversation 9 September 2020 "the same stuff" 11 September 2020 "How much money…" 12 September 2020 "The water's run out…" "the previous stuff" 15 September 2020 "same stuff as yesterday" "the other stuff…" 17 September 2020 "drink" "…you can bring some" "Bring one and bring two of the other" 20 September 2020 "…one water and two…." "the water one?" "Do you need anything for…" 23 September 2020 "Food" "…go see the girl" 26 September 2020 "need water" "I'll drop it off to you" 27 September 2020 "I'll come past. Are you gunna get some money?" "…to the girl" 29 September 2020 "There's no water left" "…the girl" "…if you trust them, make a deal with them. Lets make a deal with them…" "...I will negotiate with the girl..." 2 October 2020 "No, don't you see the money that's not the issue, I don't have to negotiate, its new. Always I will negotiate with the girl, lets see if they have money…." "then you offer a higher price…." "…then together as partners we can sell it together…" "Lets concentrate on our own little business…" 5 October 2020 "get drink" "there's no food" "hotel number…" 6 October 2020 "food and water" "I have enough stock and don't think anyone will put a purchase in at this time but will let him know if I needs more water. There's 1 to 1 and a half still left." "If you get any money. I'm going to need it tomorrow" 10 October 2020 "2 boxes with me…" "…come at night" "deposit $3000" 11 October 2020 "more stuff…" "good stock" "…to go pick it up for the stock" "the shop" 15 October 2020 at 1.11am "money" "money" "there's more room to bargain..." "Should I deposit $3000?" 15 October 2020 at 2.14am "My cars got some stuff which is why I don't want to use my car… "more stuff…" "the good stock"

The telephone intercepts are in Exhibit B from page 20 which has the call on 9 September 2020 recorded in its entirety. The call is between Vural Can and the accused in which the accused identifies that he is in the City, "you know Fraser, Kent Street". He identifies Kent Street and Dunn Street corner. When one considers the entirety of content of these phone calls and the context in which those quoted passages appear, the purpose for which the Crown relies upon these exchanges is clearly available.
The Crown submits that these conversations between the accused and Vural Can demonstrate all the constituent components of the commerciality of a marketplace conducted in partnership with each other. In response to the accused's submission the Crown argues that an expert is completely unnecessary to translate the meaning and intent behind the language involved. I agree with this proposition considering the overall context provided by the entirety of the evidence of the basic facts upon which the Crown relies.
The Crown at the outset announced that would argue for the application of Harriman v R (1989) 167 CLR 590 to the evidence of association between Vural Can and the accused as background to prove that the relationship between the two of them was not an innocent one but was based upon the supply of drugs. Items (1) and (2) in the summary of evidence above are relevant to this, as was the evidence led from Detective Senior Constable Grant Prior commencing at page 7 of the transcript: Q. One of those statements is dated 12 January 2023. Could I ask you to look at this document, please? Is that the statement to which I've just referred? A. Yes. Q. It's your signature at the base of each page? A. Yes. Q. Are the contents of that statement correct to the best of your knowledge and belief? A. Yes. Q. Could I ask you to read from paragraph 3, please, slowly so the recording can be taken down and transcribed? A. "On 9 September 2020 I participated in a surveillance operation to observe and monitor the movements of Zeki Saffo. I commenced surveillance duties about 3pm. There were seven other police involved in this operation. About 5.09pm I was part of the observations of vehicle 938 ZNI, Queensland, being a Toyota Camry, at Turrella. This car, with Saffo driving, travelled to Sydney and parked in the Cinema Centre Car Park on Kent Street, Sydney. Saffo was then observed to walk to the foyer of the Fraser Suites Sydney. Continued" - that should say "continued", not "continues" - "observations were made of vehicle 938 ZNI, Queensland, where it was parked in the car parked (as said). About 7.19pm I observed Saffo and another male who I now know, know to be Vural Khan (sic) walk from the direction of Kent Street and approach vehicle 938 ZNI. Saffo goes to the driver's door and opens it briefly before opening the rear driver's side door and leans in to the vehicle and retrieves a white bag. I then saw Khan (sic) go to the rear of the vehicle and Saffo handed, hands him the bag. Khan (sic) looks to the bag and places it inside his zip‑up jacket that he's wearing. Saffo and Khan (sic) then walk towards the exit of the car park towards Kent Street. I video record what happened at the vehicle 3" - correction - "938 ZNI." CROWN PROSECUTOR: Thank you. I'll tender that recording and I'll have my instructing solicitor play it. HIS HONOUR: No objection to the tender? MCMAHON: There's no objection. HIS HONOUR: I'll mark the video recording on 9 September 2020-- Q. This begins at what time? You said 7.19pm, I think. A. Around about that time, your Honour. CROWN PROSECUTOR Q. It started about 5.09, is that right? A. It - I commenced recording as I observed Mr Saffo and Khan (sic) walk into the car park. Q. 7.19. A. 7.19. HIS HONOUR: I'll say at approximately 7.19pm, I'll mark that exhibit C. EXHIBIT #C SURVEILLANCE FOOTAGE FROM INSIDE CINEMA CENTRE CAR PARK ON KENT STREET DATED 09/09/20 AT 7.19PM TENDERED, ADMITTED WITHOUT OBJECTION Q. This is footage inside the car park? A. Correct. EXHIBIT C PLAYED TO COURT CROWN PROSECUTOR: Thank you. If it could be deposited with the Court. Q. If you could continue reading to the end of that statement. A. "Observations were continued. At about 8.27pm I saw Saffo walk from the Kent Street direction and get into vehicle 9" - it should say "38" - "ZNI. There was no‑one else with him. Saffo then drove to Bella Vista. About 9.10pm I saw Saffo go to the front door of 19 Bronzewing, Bronzewing Terrace, Bella Vista, and walk through the front door where he was met by an adult - where he was let in by an adult female. About 9.30pm surveillance was ceased." CROWN PROSECUTOR: Thank you. I'll ask that statement be marked for identification, please. MFI #1 STATEMENT OF DETECTIVE SENIOR CONSTABLE GRANT PRIOR DATED 12/01/23
The witness was not cross examined in respect of those events.
The Frazer suite under surveillance was booked in the accused's name [16] .

Forensic Evidence

The Crown also relied upon forensic evidence, namely: 1. The fingerprint said to match that of the accused identified on one of the bottles containing gamma butyrolactone seized from Vural Can. 2. The mixed DNA profile recovered from the same bottle from which the accused cannot be excluded as a minor contributor to a mixed DNA profile recovered from the same bottle.
This bottle alone contained more than the specified commercial quantity of GBL.

Fingerprint Analysis

The results of examinations of the fingerprint impression and comparison with that of the accused were not entirely consistent. There were different results. These were, either that, 1. The recovered fingerprint was consistent with the accused, but insufficient for identification purposes, or in other words was inconclusive, or 2. It was sufficient to positively identify him, and 3. A forensic review of those results some months later determined that the evidence was sufficient to identify the accused.
The Crown referred to evidence from two of the fingerprint analysts, Senior Sergeant Peter Hennessy, and Senior Sergeant Richard Sinclair, both of whom had recorded inconclusive results. Evidence was given about the formation of consensus positions using the ACE-V methodology employed in fingerprint analysis.
The Crown referred to evidence by Senior Sergeant Hennessy that the accused could not be excluded as the source of the fingerprint [17] . CROWN PROSECUTOR: Just this is a matter which his Honour has already raised with you, but part of your procedures and the opinions that you form, you use the term "inconclusive". Is it correct then to say, to state this as an opinion, in respect to that print, the finding is inconclusive but it has detail consistent with the fingerprint of the person listed, that is Saffo, although there is insufficient detail to establish an identification, the person cannot be excluded as the source of this fingerprint, is that a correct statement of opinion in this case? HENNESSY: Yes, absolutely it is.
The Crown referred to the evidence of Senior Sergeant Richard Sinclair regarding inconclusiveness [18] , CROWN PROSECUTOR: Again, the term "inconclusive" has been employed, but is this a correct statement of what your opinion is: that is that the fingerprint, F3, has detail consistent with the fingerprint of the person listed, that is in this case Saffo, although there is insufficient detail to establish an identification, the person cannot be excluded as the source of this fingerprint? SINCLAIR: That's correct. By virtue of the information that I have found that was in agreement which didn't reach that sufficiency threshold for me to say with 100% confidence they came from the same source. However, I'm 100% confident that I cannot exclude them as having come from the same source.
The accused's fingerprint was identified on the bottle following the subsequent forensic review described in the Expert Certificate of Sergeant Narelle Jamieson (Exhibit B p 75). There were two certificates provided Sergeant Jamieson, the first on 24 November 2022 and the second on 31 January 2023. Both expressed the same opinion.
Senior Constable Paul Hubrechsen-Yung provided his certificate on 31 January 2023 in respect of his examination on the 30 October 2020 from which he concluded that the accused's left thumb matched the impression found on the bottle.
The Crown submitted that the full weight of the evidence provides the basis for finding that the fingerprint impression matches the accused's left thumb, but that the Crown case against the accused is overwhelming if one puts the fingerprint evidence to one side.

Evidence of DNA

The Crown relied upon the evidence of analysis of swabs taken from the bottles seized from Vural Can provide by Virginia Friedman in her expert certificate, Exhibit F. The results were, Item Description Results A mixture that originates from at least two individuals. Trace DNA from lid of Icelandic Glaciala Bottle Vural Can cannot be excluded as the major contributor. Zeki Saffo cannot be excluded as the minor contributor. It is greater than 100 billion times more likely to obtain this mixed profile if it originates from Vural Can and Zeki Saffo rather than if it originates from two unknown, unrelated individuals in the Australian population.

Upon the analysis of eight swabs taken from six other items seized from Vural Can DNA identified was in each case a mixture in which Vural Can was a contributor. In seven of them the DNA from the other contributor not suitable for comparison but in one another individual was identified, not this accused.
The Crown submitted that the accused cannot be excluded as a minor contributor to the mixed DNA profile recovered as noted above, the bottle containing more that the specified commercial quantity of gamma butyrolactone.
The Crown submitted that it has proven beyond reasonable doubt that the accused was in joint possession with Vural Can of the drug, and that it was the commodity central to the marketplace they conducted in the Meriton apartment, and that the accused knew or believed the quantity exceeded one kilogram. The Crown submitted that the quantity was such that it would be obvious that it exceeded one kilogram, and that the accused knew the wholesale and retail cost of the units in which it was sold.

The Accused's Submissions

The accused concedes that if the Crown proves that the only reasonable inference is that the drugs were jointly possessed as between the accused and Vural Can, then intention to supply is deemed. The accused has not sought to establish, if he was in possession of those drugs, that he did not have an intention to supply them.
Considering this the accused identified two issues, 1. Has the Crown proven beyond a reasonable doubt that the accused was in joint possession of the 3,356 grams of gamma butyrolactone with Vural Can between 13 and 15 October 2020. 2. If so, has the Crown proven that the accused knew he was in possession of a commercial quantity of gamma butyrolactone, namely greater than one thousand grams.
The accused also relied upon a passage from Mogilevsky v R [19] : [26] In R v Amanatidis [2001] NSWCCA 400, Giles JA, with whom Adams J agreed, said:- Possession of a thing in the criminal law involves physical control or custody of the thing plus knowledge that you have it in your control or custody (He Kaw The v The Queen (1985) 157 CLR 523 at 537- 9, 546, 585-7, 599-600). The physical control or custody may be shared, but must be control or custody to the exclusion of other persons or persons other than those with whom it is shared (R v Dib (1991) 52 A Crim R 64 at 66-7). It is not enough, however that you are one of a number of persons with access to the thing to the exclusion of other persons - that does not constitute your physical control or custody of the thing or physical control or custody shared with the others of the number of persons. So in R v Filipetti (1984) 13 A Crim R 335 finding drugs in the lounge room of a house occupied by six persons, to which all six had access, did not establish physical control or custody of the drugs by one of the occupants, because any physical control or custody of the one occupant was not to the exclusion of the other occupants and shared physical control or custody could not be inferred; see also R v Bazeley (CCA, 23 March 1989, unreported) and R v Sobolewski (CCA, 21 April 1998, unreported). [27] Simpson J (Barr and Hoeben JJ agreeing) in Jackwitz v R; Franklin v R [2006] NSWCCA 419 confirmed these "unremarkable propositions": [34] Reliance was placed on her behalf on R v Amanatidis [2001] NSWCCA 400; R v GNN [2000] SASC 447; and R v Filippetti (1984) 13 A Crim R 335. It may be accepted that, emerging from these authorities, knowledge of the presence of a prohibited substance is not sufficient to establish possession; the Crown must establish that the prohibited substance is not in the exclusive possession of another person; and must establish physical control and an intention to exercise control over it.
The accused submitted that the Crown cannot succeed unless it proves the intention, shared with Vural Can, to control the drug to the exclusion of others. The accused submitted that possession required physical control or custody with the accused's knowledge thereof. Physical control or custody may be shared, but it must be to the exclusion of others with whom it is not shared. Mere access in conjunction with others is insufficient, even if to the exclusion of others. There must be shared physical control or custody of the item to the exclusion of others.
In R v Filipetti (1984) 13 A Crim R 335 drugs were found in a house occupied by six persons, in a place to which all six had access, which of itself did not establish physical control or custody of the drugs by one of the occupants, because it was not to the exclusion of the other occupants. Shared physical control or custody between them could not be inferred. Street CJ wrote at page 338, The difficulty confronting the Crown in this case comes from the large number of persons occupying this comparatively small house and all using the lounge room where the buddha sticks were found. The only Indian hemp found in the appellant's bedroom was the small quantity that has been mentioned and this was not relied upon by the Crown as involving any criminal offence on the part of the appellant. The finding of the buddha sticks in the chair in this lounge room where all six occupants of the house apparently had equally free access, and so far as the evidence goes in fact made equally free use, would not readily establish that there was exclusive physical control of these buddha sticks in any one of the occupants unless there were some other evidence to accompany the finding of the buddha sticks. Ultimately the matter appears to come down to the question of whether the Crown had satisfactorily produced material that the jury could regard as negating possession on the part of the other occupant (sic) of the house, particularly the mother, of those buddha sticks.
Considering these decisions, the accused submitted, 1. Knowledge of the presence of a prohibited substance is not sufficient to establish possession; 2. The Crown must establish that the prohibited substance is not solely in the exclusive possession of another person, in this case Vural Can; and 3. The Crown must prove physical control and the intention to exercise shared control over the substance.
The accused conceded that the combined effect of telephone intercepts and closed-circuit television evidence provided a "reasonably strong" inference of drug activity including supply of drugs at the city apartment before Vural Can left there to be arrested at Eastlakes in possession of the drugs found with him.
Nonetheless, the accused submitted: 1. The Crown's suggestion regarding the use of terms to which it referred in submissions carries little weight in the absence of evidence as to what they might mean as code. 2. The Crown must prove more than that there was supply of some drug occurring at the city apartment, involving the accused, but that the accused was in joint possession of the discrete quantity of the particular drugs found in Eastlakes in the taxi occupied by Vural Can. 3. There is a reasonable basis for inferring that Vural Can left the apartment about 7:42pm on 15 October 2020, with a Woolworths shopping bag containing the four bottles of gamma butyrolactone. Nonetheless, there is no evidence as to how or when those particular drugs came to be in Vural Can's custody or came to be in the apartment. 4. The accused left the apartment approximately one hour before Vural Can's departure [20] and therefore was not present thereafter, it is said, Vural Can left the premises. 5. There is no more than the possibility that when Vural Can arrived earlier that day at 12:36pm he had a comparable but indistinguishable shopping bag [21] . 6. There is little if any assistance for the Crown case in the circumstance of various people, including unidentified females, taking various sorts of bags into the room at different times [22] . 7. The only evidence that might connect the accused to the four bottles containing the drug seized in Eastlakes is the presence of DNA and a single partial fingerprint impression on one of the four bottles which is not conclusive. 8. The opinion given in respect of the DNA evidence was merely non-exclusionary. The sample was mixed with at least two contributors albeit further contributors could not be excluded [23] . Secondary transference remained a possibility [24] . The limited value of this evidence is demonstrated by the consistency in statistical probability, regardless of who is assumed to be a contributor [25] . Accordingly, the evidence of DNA did not contribute meaningfully to the circumstances offered in support of the finding for which the Crown contends. The evidence provides no more than that there is no positive evidence there was not DNA deposited by the accused. 9. The evidence of the single partial thumb print impression on the same bottle is controversial, against the history of examinations made by experts from New South Wales Police Force and inconsistency between the opinions reached. The accused advanced the following points: 1. The first examination of the print returned an "inconclusive" result. 2. There is a distinction between this and a positive conclusion that the print is not that of the accused. 3. Both Senior Sergeant Hennessey [26] and Senior Sergeant Sinclair [27] , notwithstanding some consistency, saw insufficient detail to identify the print as belonging to this accused. 4. The weight to be attached to this evidence is for the tribunal of fact, assessed with reference to the ACE-V methodology. 5. This methodology has been the subject of some validation and scientific rigour [28] . Both experts made their assessments in the verification process prescribed by the ACE-V methodology and upon which the consensus is reported [29] . 6. The process is a subjective assessment with the experience of the examiner an important factor [30] . 7. At transcript p 104 from line 42: Q. That's my point. It's the consensus essentially. It's your decision that becomes the result of the application of the methodology, correct? A. That's right. Our office process is that I make the final determination. Q. That's the application of the ACE-V methodology which you referred to there in the last line as having been validated as accurate and repeatable and reliable? A. Correct, the method, yes. HIS HONOUR: It doesn't follow from that, does it, that the Court is bound by the processes within the office? At the end of the day there are two who say it's inconclusive, in one other direction, and then we've got one in this particular examination-- MCMAHON: It may not bind your Honour, but obviously these protocols are put in place for a reason and that's what-- HIS HONOUR: I understand that, but the formulation of your questions suggest that there's a decision made based upon the 2:1 subjective analysis. MCMAHON: Yes. HIS HONOUR: That still leaves alive the question so far as the Court is concerned. MCMAHON: It may well be. I'll be specific just so there's no-- HIS HONOUR: Sorry it's not "may well be." It is, isn't it? It's ultimately a matter for the Court? MCMAHON: It is but I'm asking the witness about the application of this particular methodology, yes. HIS HONOUR: Yes, that's fine. I just want to make sure you're not-- MCMAHON: I'm not suggesting that binds your Honour per se, no. Q. That's how the ACE-V methodology is designed to operate, correct? A. Those steps, yes. Those steps need to be applied correctly to reach a valid result. 1. The circumstances of this case involve a difference of opinion as to whether the print in question is capable of sustaining an identification, in circumstances where the first application of the ACE-V methodology returned an inconclusive result. 2. The foundation of such evidence both at common law and pursuant to s 79 Evidence Act 1995 is an expertise "sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience": HG v The Queen [1999] HCA 2 at [58]. 3. The tribunal of fact here is not constrained per se in its ultimate fact-finding task, and the question of whether the fingerprint can be attributed to the accused may take account of the overall circumstances. Nonetheless considerable caution must be exercised when considering whether the expert evidence provides independent support for that proposition that the thumb print is that of the accused, considering the differences in opinion between the Crown's own experts. 4. The absence of criteria as to the minimum number of points of comparison required for identification and the subjective nature of the expert assessment leaves difficulty for the tribunal of fact to meaningfully assess the evidence. 5. The Court does not have sufficient information or expertise in the evidence from these experts to resolve these questions and would not be satisfied there is a proper evidentiary basis for concluding with any degree of certainty that the thumb print was that of the accused in the overall assessment of the circumstantial case. 1. If the DNA profile and fingerprint impressions were left by the accused, noting they are on the same bottle, there are alternative explanations that might be inferred given the Crown cannot say when, how, or where the drug came to be in the bottle or in any of the other bottles: 1. It may be presumed that at some time beforehand the bottle with the DNA and fingerprint contained drinking water. 2. It is more than reasonable to infer that the accused might have drunk from it before it came to contain the drug. 3. The accused and Vural Can were together in the hotel room. 4. DNA from two or more contributors, even assuming the accused was one of them, is of limited significance when the liquid would easily pour from one bottle to another. 1. Most significantly of all is the circumstance in which the bottles were located at Eastlakes and the conversation between Vural Can and the accused after Can's arrest. The Crown's contention is that this is evidence of consciousness of guilt in respect of the drug found with Can. However, that whilst it is capable of supporting an inference of wrongdoing in relation to their activities at the apartment in the city, it says little as to whether the accused was in joint possession of the particular four bottles containing GBL located with Can in Eastlakes. 2. The conversation is inconsistent with the accused being in possession of those particular drugs, as contended by the Crown [31] : M1: Vural Can. M2: Zeki Saffo. M1 Hello! Hello! M2 Yeah. M1 They said you are doing things in front of the door. M2 Who said? M1 [IND] get out of there. M2 Who said you are doing what? M1 The police, the police. M1 I'm at Mascot now. M2 Okay. M1 You at the back of the thing … behind the seat …. ahm … I was sitting at the front. There was something at the back, on the back seat. M2 [IND] (talk over each other) M1 I then left and got out of there. I was going home … and then … and then … M2 Did you have something on you? M1 [IND] (slurred talk) I was going home and then … and then … they searched me illegally. [IND] (slurred talk continues) … After that … [IND] M2 Where are you [IND]. M1 At the thing … [IND]. M2 You are there, you mean? M1 Thing … I mean. M2 How did they find the room number? M1 Had card… M2 Anyway, okay bye bye. M1 Okay, see you. M2 Well, bye The phrasing used by the Crown in submissions relying upon this conversation as admissions and/or consciousness of guilt, should be understood to be advanced upon a much more limited basis than would be presented if these were said to be admissions as statements against interest by an accused acknowledging, perhaps to a police officer, participation in a crime. It is also necessary to note that the concept of consciousness of guilt, as I understand the submission by the Crown, does not advance upon the principles for which Edwards v The Queen stand as authority. Nonetheless I am of the view that I should bring to account the following aspects:

There is no dispute that this conversation took place and it is not suggested that what was attributed to the accused and Vural Can were not said by them.
To be used as evidence of consciousness of guilt the exchange must provide some evidence relevant to the offence which the Crown alleges against the accused, in the sense that it must relate to some significant circumstance or event connected with the crime, and the utterances, particularly those by the accused in response to what was said to him by Can must be considered to decide whether he was engaged upon conversation and a course of proposed conduct reflecting an acknowledgement of wrongdoing and a concern that he might be implicated in the offence.
I have brought to account the fact of the phone call between Vural Can and the accused, shortly after Vural Can was arrested in possession of the drugs. I have taken into account that on the face of the conversation Vural Can in my assessment was endeavouring to communicate information to the accused to have him abandon the location where he was and that in response the accused was concerned to know the extent of the discovery by the Police upon the arrest of Vural Can and how they came to be aware of circumstances preceding the occasion of Vural Can's arrest. Contrary to this view submissions on behalf of the accused continued at item 13. 1. First, 1. Whilst aspects of the conversation are said to be indecipherable, it is clear that when Vural Can described what had occurred the accused asked him "Did you have something on you?" 2. This is not consistent with the accused knowing that Vural Can had those particular drugs on him. 3. There is no telephone intercept conversation relating to those particular drugs, or supply of them. I have considered these propositions but in my assessment they require a narrower view than is appropriate when one considers the context in which they occurred, including the time when it occurred proximate to the arrest and after the events, it preceded Vural Can's travel to that location reflected in the evidence contained elsewhere in Exhibit B. 1. Secondly, 1. It is clear that Vural Can was heading to his home and taking the drugs and a quantity of methamphetamine with him. 2. There is no evidence that the entirety of those drugs were being treated as jointly possessed by Vural Can and the accused. 3. The inference is available that those particular drugs were Vural Can's given he was taking them home. 4. This is so regardless of whether they were involved in earlier drug supply activity at the apartment. 5. It cannot be assumed as the only inference to be drawn that because those drugs might have spent some time at the apartment they were jointly possessed. 6. There is a reasonable inference that the drugs might have been brought to the apartment by Vural Can on 15 October 2020 when he arrived carrying a laptop bag and a white plastic bag [32] . If so, they were there for about seven hours, inconsistent with the alleged joint possession. 1. The following propositions were advanced, 1. The conversation seems concerned with the hotel room, what might be there, and the possible apprehension of the accused, all consistent with the later conversations between the accused and others [33] . These are telephone intercepts on 15 October 2023 at 23:26:59 and on 16 October 2020 at 01:25:56 and 16 October 2020 23:44:14. They are conversations between the accused and an unknown male. The first of those includes the accused asking the other person whether he had spoken to "him". The person said he had called but there was no answer. The accused said, "if not, something, please something happened…anyway, I am here with thing-o, you know, Ismael um…here at Cleveland Street. I got out thanks to him, I have run out of the hotel". He was asked by this other person, "do you have anything?" The accused said, "there was some on me [IND], a little like, like small". Then on the third of those calls the accused was asked by the person, "something happened with Victor", to which the accused responded; "yeah. He got picked up, they picked up Victor, but, I still…I had to clean up everything I just have to see you tomorrow". I don't accept the validity of the inference that has been offered in respect of those telephone calls when read within the context of the overall circumstances before me. 1. It does not support consciousness of guilt reasoning after the fact for whether this accused was in joint possession of the particular quantity of gamma butyrolactone [34] . 2. The accused submitted that the Crown must prove the accused knew the quantity to be in excess of 1,000 grams. There is no telephone conversation alluding to the particular drugs. The accused's question of Vural Can, "Did you have something on you" is to the contrary. There are no indicia of possible physical contact with three of the four bottles containing gamma butyrolactone. It is unknown whether the accused touched the bottle with the DNA and fingerprint impressions when it contained the drug, including whether it contained the 1,616 grams found to be in it when it was seized by police in Eastlakes. Once more the ease with which that drug might be transferred or aggregated in the receptacle is advanced in support. 1. The accused conceded that a circumstantial case is to be considered in its totality and not piecemeal. The Crown must nonetheless prove that guilt is the only reasonable inference. 2. The Crown is not relying upon the evidence of earlier supply activity for tendency purposes, but to show an aspect of the relationship between Vural Can and the accused and to put the discovery of the gamma butyrolactone found in Eastlakes in context. As such it is not permissible to reason that the two had any propensity to supply drugs together and to jointly possess the drugs. As I understand it the accused is here asserting in slightly different terms to the Crown that tendency reasoning is not in any event permissible and that is a proposition with which I agree. 3. The accused repeated that aside from the possibility of a fingerprint and the more remote assertion that relevant DNA was found on one of the four bottles, there is no other direct evidence connecting the accused with the drugs seized from Vural Can.

Upon the analysis provided, in the absence of evidence from the accused or presented on his behalf, the defence case is that although: 1. There is a strong inference that Vural Can and the accused were involved in drug supply activity of some sort, including at the apartment, that is not the allegation the Crown has brought. In other words, the Crown case is not one of actual supply from the apartment at the Meriton building. 2. The Crown case alleges that the accused was in joint possession of a specific quantity of gamma butyrolactone found other than in the apartment, when Vural Can was arrested. 3. The drug was in the physical custody of Vural Can. 4. The circumstances leave open at least as a reasonable possibility, particularly in light of the recorded conversations, that the particular quantity of drugs was not jointly possessed as between the two.

Consideration

I have read through the entirety of the evidence before me by way of documents and transcript and sought to bring to account the important features of that evidence in my judgement so far. The guilt of the accused depends upon the circumstantial evidence tendered by the Crown. The accused did not contest the existence of the basic facts or the direct evidence that led to establish them. The accused did not in the conduct of the trial argue that the court should not accept that he arranged for the apartment, that he was captured on the CCTV at those premises when Vural Can was also present, that he engaged with Vural Can in the conversations with Vural Can, or the evidence of the thumbprint impression and DNA with the profile identified on each one of the four bottles found in Vural Can's custody when he was arrested. The accused did not argue against the court finding that the liquid in the four bottles in the quantities specified were gamma butyrolactone. The accused did not argue against the court accepting the CCTV images of the activity at the apartment with other individuals arriving and leaving as depicted throughout the period in which the recordings were captured [35] .
Pages 106 through to 109 contains a table with reference to the video file number specifying the dates and times when activity was captured on the closed-circuit television and pages 110 and following is a further document identifying the activities in the same period but with still images raised from the CCTV. It provides a reliable representation of the movement by the accused and Vural Can to and from the apartment by way of the public areas of the building on that Level, Level 73, as shown on the pictures. It shows the various unknown males and females going to and from the apartment and those of them who were carrying shopping bags as they did so.
The accused's argument is that the basic facts do not lead to a finding beyond reasonable doubt that the accused was in joint possession of the gamma butyrolactone in Vural Can's custody when he was arrested, or at any time before then within the period specified in the sole count on the indictment and whatever the level of suspicion that there was drug supply activity at the apartment the evidence is not sufficient to prove the case which the Crown presented against the accused in the specific terms identified by the accused.
The accused's arguments dealt with the evidence of the basic facts upon which the Crown relied, proffering the possibility of innocent explanation for their existence, and the conclusion that in combination they do not prove the accused's guilt in respect of the particular offence which the Crown alleges.
In a circumstantial case such as this no individual basic fact can prove the guilt of the accused. The court is asked to reason in a staged process. The court first considers whether the basic facts for which the Crown contends are established by the evidence. They need not be proved beyond reasonable doubt. By themselves they cannot prove the accused's guilt.
The accused does not argue against the existence of the basic facts upon which the Crown relies.
The court must thereupon consider whether to infer or conclude from a combination of those basic facts that a further fact or facts existed. The ultimate fact the Crown asks the court to find based upon the basic facts is that the accused person is guilty of the offence it brought against him.
Whether the Crown succeeds in this endeavour depends upon the number and nature of the basic facts relied considered as a whole and not individually or in isolation, and upon whether they all lead to the unavoidable conclusion that the Crown has established the accused's guilt for the offence it alleged.
The court must consider and weigh, as a whole, all the basic facts established by the evidence. The court does not consider any particular fact in isolation and ask whether that fact proves guilt, or whether there is any explanation for that particular fact or circumstance which is inconsistent with guilt.
The court is first to determine the basic facts established by the evidence. As I noted any particular fact to be considered need not be proved beyond reasonable doubt. In this trial the basic facts are not contested, which is unsurprising considering the uncontroversial nature of the evidence of their existence. The court must then consider all of those facts together as a whole and ask whether it can conclude from those facts the accused's guilt of the offence charged. If such a conclusion does not reasonably arise, then the Crown's circumstantial case fails and the court must find the accused not guilty.
I agree with the Crown submissions regarding the events in which the accused and Vural Can participated, described in the evidence of Detective Senior Constable Prior, and revealed in items (1) and (2) listed in the summary of evidence, and the relevance it has to the nature of the association between Vural Can and the accused as background to prove that their relationship was not innocent but was based upon the supply of drugs the subject of the charge before the court. I have not brought this to account as evidence of propensity or tendency but strictly within the terms to which it might be made consistent with Harriman v R (ibid).
I find that the Crown has proven that the accused's guilt is a reasonable conclusion to draw upon the basic facts before the court. Specifically, 1. The accused was engaged in a joint criminal enterprise with Vural Can on 14 and 15 October 2020 when they were in an apartment in the city together in possession of the gamma butyrolactone, later seized by police, for the purposes of supply, within the date range beginning on 13 October 2020 and concluding upon the arrest of Vural Can on 15 October 2020. 2. They were present together in the Meriton apartment, until about 7:47pm on 15 October 2020 when Vural Can left the building to take a taxi from Liverpool Street, Sydney to Eastlakes where he was arrested with the gamma butyrolactone in containers in a laptop computer bag and a Woolworths shopping bag. 3. The accused was a participant in a joint criminal enterprise with Vural Can, both of them in possession of the drug at the apartment and thereafter when the drug was with Vural Can as he travelled by taxi to Eastlakes to be arrested.
The court must thereupon determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown says is established. If there is any other reasonable conclusion arising from those facts inconsistent with the accused's guilt the circumstantial case fails.
There was no explanation offered by the accused for the activities in which he was engaged including the conversations upon which the Crown relies. There was no explanation offered by the accused for the presence of DNA with the identified profile, or for the existence of a fingerprint impression with characteristics consistent with his thumbprint. There were however hypotheses consistent with innocence argued in respect specific basic facts and the ultimate conclusion sought by the Crown. The accused's position was that no matter how grave the suspicion the conclusion that the accused is guilty as the only rational hypothesis to be drawn from the direct evidence of basic facts is not available.
I accept without reservation the accused's right not to advance a case and to remain silent throughout. I do not speculate upon what the accused might have said if he decided to offer an explanation in court or in the course of the investigation. He was entitled to rely upon his presumption of innocence. Considering the guidance given in the authorities to which I referred earlier, and in the absence of any submissions by the Crown on this point, and without any effort made, by the Crown, to lead evidence from Vural Can or anyone else who might have been detected in activities in the apartment building who could have spoken to the accused's role, I put to one side that he chose not to give evidence in the trial. It could not be said that the knowledge to which he might have spoken was uniquely his.
I have weighed what the accused argued regarding the forensic evidence which fell from expert witnesses. It was not argued that they were not qualified to offer the opinions given, save for perhaps Senior Constable Paul Hubrechsen-Yung. Nor was there any challenge by either the Crown or the accused to the individual opinions offered. Each relied upon aspects of the evidence which I accept does not of itself prove beyond reasonable doubt that the fingerprint impression was left by the accused, or how the DNA matching the accused in the combination with that of Vural Can might have been placed there.
It is for the court to decide whether to accept the expert evidence and if so to decide how to act upon it. I accept the opinions offered, and note their limitations as argued by the accused. However, for the reasons advanced by the Crown the evidence provides support for the circumstantial case it presents and when considered with all of the other basic facts which are not disputed I am led to the finding that the accused's guilt is proven.
I am satisfied that the evidence that is before the court establishes the accused's guilt beyond reasonable doubt.

Verdict

I find the accused guilty of the offence charged, that he, Between 13 October 2020 and 15 October 2020, at Eastlakes in the State of New South Wales, did supply a prohibited drug, namely, 3,356 grams of Gamma Butyrolactone being an amount which was not less that the commercial quantity applicable to that prohibited drug.

Endnotes

Evidence negating innocent association, probative of joint possession of the prohibited substance averred on indictment, and indicative of acting in concert in the supply of the prohibited drug.
Evidence of tendency to commit the offence on indictment.
Transcript p 3.
Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590. Transcript pp 3 - 4.
Shepherd v the Queen [1990] HCA 56; (1990) 170 CLR 573
Transcript p 118 line 12.
At page 241 per Gaudron & McHugh JJ.
At page 227 per Mason CJ, Deane, and Dawson JJ.
29 Traffickable quantity - possession taken to be for supply A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall, for the purposes of this Division, be deemed to have the prohibited drug in his or her possession for supply, unless - (a) the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply, or (b) ....
Ibid.
Ibid.
Ibid
Ibid.
Items 13, 14 and 15 in Exhibit B pp 102 - 105..
Trial transcript from page 7.
Exhibit B p 101,
Transcript p 100 from line 33.
Transcript page 111 from line 3.
Ibid @ [26]
Exhibit B p 109.
Exhibit B p 108.
Exhibit B pp101 and following.
Transcript page 106 to 122.
Transcript pages 86-87.
Transcript page 88.
Transcript from p 83.
Transcript from p 102.
Transcript p 104 line 5.
Exhibits K and L @ p 9.
Transcript p 93.
Exhibit B pp 51-52.
Exhibit B page 108.
Exhibit B pages 53 - 57.
Meakin v R [2018] NSWCCA 288 at [131]-[137]; cf Crown Written Submissions at [29].
Exhibit B pp 106 to 122. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 June 2023

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (20 paragraphs)

Parties

Cases Cited (16)