Case against Mr Riscuta
117 Counsel for Mr Riscuta made no submission about the proviso. That is not surprising. The incontrovertible facts were that at 5.40pm on 23 November 1994 the police observed Mr Alupoaie, Mrs Niga's brother-in-law, arriving at 34 Sorrell Street empty handed. He spent about half an hour walking on the street and looking around. At about 6.15pm he entered the building and went to unit 10, still empty handed. When he left he was not empty handed, but was carrying a shopping bag. He was asked by the police what was in it, and said "heroin". Heroin to the weight of 195.3g was in fact found in the bag, together with a ticket to Melbourne and a timetable. Mr Alupoaie also had part of an envelope on which was part of an address in Dandenong. At 6.25pm Mr Riscuta drove up the driveway from the home units. The police arrested him. He denied an allegation of supplying heroin earlier that afternoon; said he lived alone; denied knowing Mr Alupoaie; and denied anyone else was with him at the premises at about 6pm that evening. When the police, having obtained a warrant, searched unit 10 at about 9pm, they found equipment for weighing and packaging heroin. In one of the bedrooms there was a metal press, a metal plate with a small amount of white powder residue on it, and a hollow metal block also with a small amount of white powder residue on it. The press was so large and heavy that four or five police officers were required to carry it back to the Parramatta Police Station. There was no other furniture in the bedroom. A set of scales was found in another room. In the kitchen there was a coffee maker that had white powder residue on the nozzle. There were four metal hot plate rings on the stove that also appeared to have white powder residue on them. There were small flakes of a white substance in the recess directly beneath the hot plates. There was no food in the kitchen at all. There was nothing in the refrigerator except one bottle of soft drink. Heroin was found in the white powder residue on the coffee maker and on the metal plate and metal blocks found in the bedroom. The police denied having "sprinkled" heroin around unit 10. Unit 10 had been leased to Mr Riscuta from 11 November 1994.
118 On that evidence alone the conviction of Mr Riscuta was inevitable, unless the evidence were explained in some way. Mr Riscuta did not enter the witness box to explain it, and no other witness explained it.
119 The chance of Mr Riscuta being convicted was increased by the evidence on the tapes, even if the evidence of Ms Kandic as to the identification of Mrs Niga had been excluded (or subjected to a satisfactory warning) and even if Mr Garde's evidence had been excluded. There was no objection to Mrs Kandic's evidence so far as she translated what was on the tapes. The Crown submitted:
"the voices of both [Riscuta] and Niga were identified by the subject matter of their conversations as follows:
(i) Niga by the female speaker being addressed as 'Maria': tape 'S1', page 1. The evidence of Kandic (Transcript, 9 October 2001, page 49) was that 'Maria' is an abbreviation of 'Mariana';
(ii) Niga, by the female speaker saying that she was with her sister at Cabramatta on tape 'S3', page 1, and going to her sister at Cabramatta on tape 'S8' at page 3 (which is a recording of a conversation which took place on 23 November 1994). The evidence of Detective Sergeant Davis (Transcript, 5 October 2001, pages 3-4) was that at about 10.30pm on 23 November 1994 he executed a search warrant at Flat 21, 73 McBurney Road, Cabramatta the premises of Mrs Rodica Alupoaie the wife of Doru Alupoaie [Riscuta's] brother-in-law, and at the time of the execution of it he saw [Niga] leaving the foyer of that block of flats;
(iii) the appellant by the male speaker's request to borrow a coffee machine and statement that he had scales: tape 'S4'. [Riscuta] then lived at Unit 10, 34 Sorrell Street, North Parramatta (evidence of Saab, Transcript, 2 October 2001, pages 49-50) and a coffee grinder and scales were found at that flat at the time of the search at about 9pm on 23 November 1994 (Exhibit 'J' (Exhibit Log)) and the evidence of Smith, Transcript, 2 October 2001, page 32);
(iv) Niga by the female speaker telling the male speaker that a purchaser was to come in a taxi and the appellant by the male speaker saying that the purchaser should come to his flat: tape 'S9', page 1. Alupoaie arrived by taxi shortly after 5.40pm and walked around until about 6pm, at which time he entered the block of flats at 34 Sorrell Street; see evidence of former Detective Sergeant Bush, Transcript, 26 September 2001, pates 26-7;
(v) Niga by the female speaker informing the male speaking that there was a bus at 7pm and [Riscuta] by the male speaker telling Niga that the purchaser should come at 6pm, on tape 'S10', page 2. See the evidence of Bush that Alupoaie entered the block of units at about 6pm (see subparagraph (d) above) and evidence of Lewis (Transcript, 9 October 2001, page 78) that Alupoaie when arrested held a bus ticket for a trip from Parramatta to Melbourne leaving at 7.40pm on 23 November 1994, and see Exhibit 'U';
(vi) [Riscuta] and Niga by the speakers' reference to a purchaser having already left, to arrive at 6pm, on tape 'S12', at page 1. See also evidence of Fowler (Transcript, 2 October 2001, pages 12-13) that Alupoaie arrived at about 6pm and was arrested at about 6.15pm on 23 November 1994;
(vii) [Riscuta] by the male speaker saying, at 6.19pm on 23 November 1994, that a purchaser had already left, on tape 'S13' at page 1;
(viii) [Riscuta] by the male speaker telling a female telephone caller from Dandenong in Victoria that the purchaser had left and would arrive in Dandenong on the following morning, on tape 'S14', at page 1. When arrested Alupoaie had in his possession a paper bearing a partial address in Dandenong (see evidence of Fowler, Transcript, 2 October 2002, pages 13-4 and Exhibit 'T'); see also evidence of Lewis (Transcript, 9 October 2001, page 78) that Alupoaie when arrested held a bus ticket for a trip from Parramatta to Melbourne arriving in Melbourne at 7.10am on 24 November 1994, and see Exhibit 'U';
(ix) Niga by the discussion on 25 November 1994, of 'Doru' Riscuta and 'Doru' Alupoaie being in Long Bay, they both being in custody at that time: see tape 'S17' page 2, and evidence of Lewis, Transcript, 10 October 2001, pages 8-9; and
(x) Niga by a female speaker's reference to herself, and being addressed, as 'Mariana' and her reference to Alupoaie as her brother-in-law on tape 'S18', at pages 6, and 8. See the evidence of Davis, Transcript, 5 October 2001, page 4, referred to above at sub-paragraph (e)(ii)."
120 These submissions are in substance correct. Hence, even if Mr Riscuta had made out any ground of appeal, his appeal would have had to be dismissed by reason of the proviso.