Ryan KAPRAL v Federal Agent Joshua BUNTING

1. That His Honour erred in finding that there were reasonable grounds to believe that [the plaintiff] has committed a prescribed offence, namely the offence of Knowingly Take Part in the Supply of a prohibited Drug (not less than the large commercial quantity), namely pseudoephedrine.

2. That His Honour erred in directing himself as to the test to be applied to establish reasonable grounds to believe.

3. Such other grounds as may become apparent upon review of the transcript of reasons and hearing. The facts 7 There was an affidavit in support of the application made by the defendant. Annexed to it was a statement of facts being Annexure A. The affidavit notes that the plaintiff had been charged with an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act and released on bail. The drug the subject of the charge was alleged to be 603 kilograms of pseudoephedrine that had been imported into Australia in a container. The container had been intercepted by Customs and a benign substance substituted for the drug. The affidavit relied upon the following activities alleged against the defendant (references to paragraphs in Annexure A have not been reproduced):

[the defendant] apparently unloaded the container which contained the consignment of pseudoephedrine substitute;

[the defendant] was present when another co-accused visually checked the consignment containing the pseudoephedrine substitute and confirmed this to a further co-accused via a telephone conversation;

[the defendant] aided the transportation of the consignment containing the pseudoephedrine substitute from the warehouse to another address; and

[the defendant] was present (with the co-accused Yousef Jidah and Daniel Saba) and in control of the consignment containing pseudoephedrine substitute at the time of his arrest in the warehouse. 8 It was alleged that there were at least four persons involved in the importation: Yousef Jidah, Daniel Saba, Eamad Saba and the plaintiff. 9 The affidavit of the defendant contained the following (reference to items numbers have not been reproduced):

8. I believe that there are reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the suspect committed the offence. I am aware that during the police investigation, DNA swabs were taken from the following items which were seized at the warehouse in the vicinity of the consignment of pseudoephedrine substitute; 2 x broken plastic bags with white residue; and 5 x gloves (rubber and latex).

9. A mixed DNA profile was obtained from each of the items. In each instance the profile can be separated into major and minor components. In each instant the major components could have come from the same unknown male.

10. If this application to carry out the proposed forensic procedure is granted, then DNA material from the suspect that can be compared with the DNA found on these items may produce evidence tending to confirm or disprove that the [defendant] committed the offence. 10 The material placed before the Magistrate included a statement of facts. This set out the prosecution's allegations against the plaintiff and other persons alleged to have been his co-offenders. They can be summarised as follows. 11 On 4 August 2008 a vessel arrived at Port Botany, having travelled from Bangkok, Thailand, via Singapore. On board was a container containing various foodstuffs. The consignee of the container was LJ Wilson Imports Pty Limited, which conducted its business in a warehouse at Arndell Park, NSW ("the Arndell Park warehouse"). 12 On 8 August, the container was examined by Customs and an anomaly was identified in relation to 45 of the 390 boxes in the container. The following day, the AFP conducted a forensic examination of the consignment. Found within each of the 45 suspect boxes were four clip seal plastic bags, each of which contained white tablets. The tablets contained pseudoephedrine. The total weight of the tablets was approximately 603kgs. 13 The consignment was reconstructed, and a benign substance substituted for the white tablets. The container was released from Customs clearance on 12 August. On that evening the container was driven to premises in St Peters that were operated by a transport company. There it was unloaded. 14 At about 9.30am on 13 August, Daniel Saba, allegedly the person responsible for co-ordinating the receipt of the container, made a telephone call to Cronulla Customs and Forwarding Pty Ltd and was told that the container had been cleared from Port Botany and that the transport of the container would be organised before 12.00pm. 15 The container was loaded onto a truck and driven to the Arndell Park warehouse, where, at around 1pm, it was unloaded. A short time later a listening device recorded sounds consistent with the container being opened and with persons being inside the container. 16 At around 3.14pm a telephone conversation between Daniel Saba and Eamad Saba was recorded. The conversation included references to "forty five meters squared", "forty five" and "four in each one… so far". 17 At about 3.20pm, a listening device recorded a conversation inside the Arndell Park warehouse, which included the following:

MALE ONE: Here Ryan, sweep it up there. Don't worry if they're - oh just … 18 At 4.03pm the plaintiff and Daniel Saba had a telephone conversation with a person named Alex, during which the following was said:

RYAN: Nothin. 19 Between 3.45pm and 4.01pm and between 5.09pm and 5.38pm a forklift loaded boxes into a Pantec truck (AR68FL) at the Arndell Park warehouse. At around 6.10pm the Pantec truck arrived at Penrith Auction House in Kingswood, where it as unloaded. A white van (AP04EA) was parked nearby. The white van departed the Penrith Auction House, together with a black BMW registered to Ibrahim Jidah. 20 From about 6.30pm to about 7.30pm telephone intercepts recorded conversations that indicated that the persons in the white van thought they were being followed. During this period, the white van and the black BMW were observed undertaking counter-surveillance manoeuvres. 21 At 7.31pm Eamad Saba telephoned Daniel Saba. The following conversation ensued:

UNKNOWN MALE: Hey… Daniel is downstairs; his phone is on charge again.

It is alleged by the AFP that the unknown male voice is consistent with recordings of the voice of the plaintiff. 22 Between 6am and 7.30am on 14 August, a listening device inside the Arndell Park warehouse recorded ripping sounds, consistent with persons opening boxes. Noises consistent with a roll of tape and a number of persons talking were also recorded. 23 At around 8.22am, AFP officers entered the Arndell Park warehouse. They arrested the plaintiff, Daniel Saba and Yousef Jidah. Ibrahim Jidah was observed, parked in the same black BMW, opposite the Arndell Park warehouse. He was subsequently arrested. 24 Within the warehouse, AFP officers found the white van with registration AP04EA. In the rear of the van were 20 boxes containing the substituted pseudoephedrine. A further four boxes, containing the substituted pseudoephedrine were located on a trolley next to the van. Sixteen boxes containing the substituted pseudoephedrine were found in the shipping container and five boxes containing the same were found on the floor of the warehouse. Forty of the 45 boxes had been opened and resealed. All of the 45 boxes containing the substituted pseudoephedrine were recovered. 25 A later search of the warehouse recovered 2 broken plastic bags, 2 pairs of used gloves and single white tablet. Forensic examination showed that the 2 broken plastic bags had contained the substituted pseudoephedrine, and that the white tablet was consistent with the tablets of this substance. One of the 45 boxes was found to contain a large amount of loose white tablets of the substance. 26 DNA was recovered from one of the broken plastic bags and from each of the 2 pairs of gloves. The analysis showed DNA profiles of 3 different males. The DNA of Yousef Jidah, who was arrested with the plaintiff and Daniel Saba inside the Arndell Park warehouse, was tested by consent. As a result, Yousef Jidah was excluded as a donor of the DNA material found on the plastic bag and gloves. 27 The defendant gave evidence before the Magistrate. He confirmed in cross-examination that the warehouse was used for storing foodstuffs and rented by an importer of such products. The defendant indicated his belief that the plaintiff had been asked to sweep up spilled tablets from one of the boxes. The Act 28 Section 24 of the Act is relevantly as follows"

(2) In the case of an intimate forensic procedure: (a) there must be reasonable grounds to believe that the suspect has committed a prescribed offence, and (b) there must be reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence referred to in paragraph (a).

(4) In determining whether or not the carrying out of the forensic procedure is justified in all the circumstances, the Magistrate must balance the public interest in obtaining evidence as to whether or not the suspect committed the alleged offence against the public interest in upholding the suspect's physical integrity, having regard to the following: (a) the gravity of the alleged offence, (b) the seriousness of the circumstances in which the offence is alleged to have been committed, (c) the degree to which the suspect is alleged to have participated in the commission of the offence, (d) the age, cultural background and physical and mental health of the suspect, to the extent to which they are known, (e) in the case of a suspect who is a child or an incapable person, the best interests of the child or person, (f) such other practicable ways of obtaining evidence as to whether or not the suspect committed the alleged offence as are less intrusive, (g) such reasons as the suspect may have given for refusing to consent to the carrying out of the forensic procedure concerned, (h) in the case of a suspect who is in custody, the period for which the suspect has been in custody and the reasons for any delay in the making of an application for an order under this section, (i) such other matters as the Magistrate considers relevant to the balancing of those interests. 29 In Orban v Bayliss [2004] NSWSC 428 Simpson J described the Act as follows:

[30] The Forensic Procedures Act conferred new and unprecedented powers upon, inter alia, magistrates that would have the result of compelling persons suspected of criminal offences (including those against whom charges have not been laid) to cooperate in the investigation of the crime(s) of which they are suspected, and to provide, from their own bodies, evidence which may be used against them (and which, of course, may also be used to exonerate them). The Parliament was, in my view, seeking to maintain a delicate balance between preserving the traditional rights of citizens and individuals, including those suspected of crime, to decline to participate in investigations or to cooperate with investigating authorities, and the overall interests of the community and of justice in facilitating the investigation of crime, and the administration of justice, in securing the conviction of the guilty and the non-prosecution or acquittal of the not guilty. The Act was a specific response to scientific and technological developments, but in the context of valued traditional civil liberties.

The Magistrate's reasons 30 The Magistrate gave ex tempore reasons for making the order at the conclusion of the hearing. He stated the relevant section of the Act and then set out the facts largely as they have been recited above. He noted that the only issue was whether there were reasonable grounds to believe that the plaintiff had committed the relevant offence. 31 He went on:

…………The only real evidence before the court is that the [plaintiff] was there at the scene and of course the fact that he was merely there could not satisfy the court to the level as set out in s 3A (sic). That is to say that one could not be satisfied on the balance of probability there are reasonable grounds to believe, as opposed to mere suspicion. 32 The Magistrate then referred to particular portions of the Statement of Facts including the conversation contained in paragraph 14 above, the fact that some loose tablets were found in one of the cartons, and the general evidence of the plaintiff's presence at the time of the arrest of the persons in the warehouse. 33 The Magistrate, after reviewing the relevant evidence relied upon against the plaintiff, considered the law relating to the distinction between a suspicion and belief. He referred to the decision in International Finance Trust Company Limited v NSW Crimes Commission [2008] NSWCA 291 and quoted the following paragraphs from the judgment of Allsop P:

110 In George v Rockett (1990) 170 CLR 104 the High Court considered s 679 of the Criminal Code (Qld) which provided that if it appeared to a justice that "there are reasonable grounds for suspecting or believing" (relevant matters) the justice may issue a warrant directing a police officer to take steps to enforce the law. The High Court made plain that when legislation took this form the court's task was to be satisfied that there were reasonable grounds for the suspicion but it was not necessary for the court itself to entertain the relevant suspicion. Sufficient facts must exist to induce the relevant suspicion in the mind of a reasonable person (p 112). "It must appear to the issuing justice, not merely to the person seeking the search warrant, that reasonable grounds for the relevant suspicion and belief exist."

111 The High Court also considered the nature of the facts required to be established to demonstrate reasonable grounds for a suspicion or belief. "Suspicion" and "belief" are different states of mind. "Suspicion" is "a state of conjecture or surmise where proof is lacking" ( Hussein v Chong Fook Kam [1970] AC 942 at p 948). The facts sufficient to found a suspicion may be quite insufficient to ground a belief. 34 He then went on:

If it were the case that the [plaintiff] to the application was in fact merely present, I would accept the [plaintiff's] submission in this case. But that in itself would found a suspicion at, in fact, at its highest although perhaps it would also be submitted that that would not even ground a suspicion. But I do not believe that this is the prosecution case at all. It goes significantly higher because of the court, in making the determination, must have regard to the circumstances in which the respondent was found upon arrest, the conditions of which the boxes were found the fact that there were no other persons in the vicinity at the time. The surveillance material in relation to the [plaintiff] that's referred to in the application clearly shows him with Mr Saba at the time, and a strong [inference] that he is working with Mr Saba at the time.

When one looks at the entirety of the material which includes the manner in which the boxes were moved from site to site, from car to car, over a relatively short period of time, the fact that 40 of the 45 boxes had in fact been tampered with, the fact that the respondent, on the Crown case, was at the scene on the first at the premises at Arndell Park and later again upon arrest.

In all the circumstance the evidence before this court goes far higher in my view than what would amount to a reasonable suspicion. In the circumstances I am satisfied that there are in fact, on the material before me today, reasonable grounds to believe that the [plaintiff] has in fact committed the prescribed offence……………. 35 From the judgment It could not be suggested that the Magistrate did not understand the task that he had to perform in order to determine that application brought by the defendant or the difference between a suspicion and a belief. The decision 36 The submissions filed by the plaintiff in support of the appeal state: The singular issue is that the Plaintiff submits the Court below erred in finding that there were reasonable grounds to believe that the Plaintiff committed the prescribed offence…….

This submission does not make clear the nature of the error that it is asserted that the Magistrate made in making the order. 37 In Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 the High Court stated (footnotes omitted):

The distinction between questions of fact and questions of law is a vital distinction in many fields of law. Notwithstanding attempts by many distinguished judges and jurists to formulate tests for finding the line between the two questions, no satisfactory test of universal application has yet been formulated. In Hayes v FCT, Fullagar J emphasised the distinction between the factum probandum (the ultimate fact in issue) and the facta probantia (the facts adduced to prove or disprove that ultimate fact). His Honour said: Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law.

In Collector of Customs v Pozzolanic Enterprises Ltd , the Full Federal Court spoke of the distinction between law and fact in a statutory context as resting upon "value judgement[s] about the range of [an] Act" which, the court said, necessarily raised questions of law.

Some recent Federal Court decisions have attempted to distil the numerous authorities on the problem into a number of general propositions. Thus in Pozzolanic , after referring to many cases, the court identified five general propositions: 1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law. 2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact. 3. The meaning of a technical legal term is a question of law. 4. The effect or construction of a term whose meaning or interpretation is established is a question of law. 5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law.

In Pozzolanic, the Full Court qualified the fifth proposition. The court said that, when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact. 38 In the present matter it was not clear at the hearing of the appeal whether there was an assertion that the error occurred because there was no evidence that would support a finding that there were reasonable grounds to hold the relevant belief, an issue that involves a question of law, or whether, although there was such evidence, the Magistrate erred in reaching that conclusion, an issue that raises a question of fact. Ultimately, however, in further submissions filed with leave after the Court had reserved, the submission made by the plaintiff was that the facts relied upon by the defendant, taken at their highest, could only support a finding that there were reasonable grounds for a suspicion that the plaintiff had committed the alleged offence. Although it was submitted that this was a question of mixed fact and law it seems to me to be a question of law alone. 39 There is a continuum on which a consideration of certain facts may result in differing states of mind as to a conclusion to be drawn from those facts about the existence of another fact. The court here was concerned with inferential reasoning, that is drawing from some ascertained facts an inference of the existence of another fact. The inferred fact was the plaintiff's involvement in the supply of a commercial quantity of the drug. 40 As the magistrate himself understood, certain facts may not support a conclusion that there are reasonable grounds for a suspicion that the inferred fact exists. But the addition of further facts might provide such grounds, yet not support a finding of reasonable grounds for a belief in the existence of the inferred fact. The addition of other facts may however provide a support for a finding of reasonable grounds for belief that the inferred fact exists, yet not support a finding that there is no other reasonable conclusion to be drawn from the ascertained facts other than that the inferred fact exists. This last state of mind is proof, or conviction, of the existence of the inferred fact. 41 There is no bright line between the differing conclusions that may be drawn from the facts considered and minds might differ as to what conclusion should be drawn. The requirement that there be reasonable grounds for whatever state of mind is being considered is to remove the extravagant or excentric findings that might be made by a particular individual. 42 Further there is a subtle distinction that is drawn between the various states of mind as to the existence of the concluded fact. In George v Rockett, in the passage part of which was referred to by the Court of Appeal in the decision referred to by the Magistrate, the judgment goes on to consider "belief" as distinct from "suspicion". It was stated at 116:

The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture. 43 In inferential reasoning, it is not appropriate to consider one particular established fact and ask whether the inference can be drawn from that fact of the existence of the concluded fact. It never will. This is the difference between a circumstantial case and a direct evidence case. In the latter case, provided that the established fact is reliable, it will itself establish the existence of the concluded fact. So a reliable admission of the commission of a crime will prove that the person making the admission committed the crime, the concluded fact. 44 Much of the argument before the Magistrate and before this Court on behalf of the plaintiff falls into the error of considering the established facts individually and arguing that there are explanations for that fact that are inconsistent with a belief that the plaintiff had committed the particular offence under consideration. So it was argued that the conversation in which Ryan (the plaintiff) is asked to "sweep it up there" may be a reference to something unconnected with the packages containing the pseudoephedrine substitute in light of the fact that the warehouse was used for storing foodstuffs. 45 But as the Magistrate appreciated, that fact has to be considered in light of all the established facts taken as a whole. The material seems to me to establish a number of propositions directly or by reasonable inference.

The plaintiff was present at the Arndell Park warehouse at various times over the two days, 13 and 14 August 2008, when the 45 packages containing the ephedrine substitute were unloaded from the container and then dealt with in the warehouse. This included them being opened and resealed.

He was at times on 13 August in the presence of Daniel and Eamad Saba as is shown by the two phone calls on each day when he is referred to. He was under the direction of Daniel Saba and hence asked to sweep up some substance.

Daniel and Eamad Saba had knowledge of the significance of 45 boxes as shown by the phone call between them when there is reference to "forty five metres squared". This is at 3.14pm on 13 August.

Shortly after that phone call, at 3.20pm, there is the conversation where someone refers to something "about to fall apart" and the plaintiff is asked to "sweep it up".

Police assert that the plaintiff is heard on the phone at 7.31pm when Eamad Saba tells Daniel Saba that persons in vehicle AP04EA believe they are being followed.

The next day police located two broken plastic bags that had traces of the substitute substance and a large amount of loose tablets were found in one of the boxes.

In the morning of 14 August between 6am and 7.30am sounds are heard from inside the warehouse consistent with persons opening and then taping closed the cartons.

At 8.22 am police locate the plaintiff and Daniel Saba in the warehouse where the cartons were apparently being removed from vehicle AP04EA.

DNA on items associated with unpacking the cartons is identified as coming from three males. One is Daniel Saba and one is not Yoused Jidah both of whom were in the warehouse with the plaintiff when he was arrested. There is no evidence that Eamad Saba was in the warehouse at the relevant time. 46 All of these matters, when considered together, are in my opinion capable of giving rise to reasonable grounds to believe that the plaintiff was knowingly involved in the supply of a commercial quantity of the drug, in that he was involved in the unpacking and the transportation of the cartons. Of course there may be other inferences arising from these facts and the available inference falls short of proof, or a conviction, of his involvement in the offence. 47 There is a suggestion in the plaintiff's written submissions that the material cannot sustain grounds for a belief that the plaintiff knew that the substance involved not less than a commercial quantity. However, the substance weighed 603kg and the commercial quantity for pseudoephedrine is 1.25kg. On the assumption that the plaintiff was involved in the unpacking and transportation of the packages, it is impossible to see how he could have believed that the substance was less than 1.25kg. He does not have to know the amount of drug that gives rise to the commercial quantity for a particular substance. 48 The parties were not able to refer me to any decision that has considered the grant of leave under the relevant provisions of the Appeal Act in respect of a matter involving a question of mixed fact and law or a question of fact. I have some difficulty in conceiving of a case where leave might be granted on a question of fact. But it should be noted that the particular provision, s 53(1) of the Appeal Act, is actually concerned with appeals against conviction or sentence. It is perhaps possible to imagine that there may in such an appeal be an error of fact of such significance that it might, if not reviewed, result in a positive injustice. It is difficult to see such a situation arising from an appeal against an order of the kind made by the Magistrate in the present case. The Supreme Court should in my opinion be cautious before interfering with a factual decision made by a magistrate who correctly understood and applied the law in an otherwise unimpeachable hearing in the Local Court and where minds might reasonably differ about the finding of fact involved. 49 In any event I am not persuaded that the Magistrate was incorrect in the factual decision that he made. 50 The appeal is dismissed. The plaintiff is to pay the defendant's costs.

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