Ryan KAPRAL v Federal Agent Joshua BUNTING - [2009] NSWSC 749 - NSWSC 2009 case summary — Zoe

NSWNSWSC

Ryan KAPRAL v Federal Agent Joshua BUNTING

[2009] NSWSC 749

Supreme Court of NSW|2009-08-03|Before: Howie J

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Source facts

Court

Supreme Court of NSW

Decision date

2009-08-03

Before

Howie J

Source

Original judgment source is linked above.

Judgment (41 paragraphs)

[1]

Introduction 1 HIS HONOUR: On 31 March 2009 Townsden LCM (the Magistrate) made an order, pursuant to s 24 of the Crimes (Forensic Procedures) Act 2000 ("the Act"), that an intimate forensic procedure be carried out on the plaintiff. The forensic procedure was a buccal swab to be taken for the purpose of DNA analysis. A buccal swab taken by another person from a suspect is an "intimate forensic procedure"; see the definition in s 3(1) of the Act. The applicant for the order, the defendant in these proceedings, was an officer of the Australian Federal Police ("the AFP"). 2 Before the Magistrate could make the order sought by the defendant he had to be satisfied, on the balance of probabilities, both that there were reasonable grounds to believe that the plaintiff had committed a prescribed offence and that there were reasonable grounds to believe that "the procedure might produce evidence tending to confirm or disprove that the plaintiff had committed" that offence: see s 24(2) of the Act. The offence nominated in the present case was one against s 25(2) of the Drug Misuse and Trafficking Act 1985 being knowingly take part in the supply of not less than a commercial quantity of a prohibited drug. 3 If the Magistrate were satisfied of the two matters set out in s 24(2) of the Act, he then had to determine whether or not the carrying out of the procedure was justified by balancing "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 a number of matters set out in s 24(4) of the Act. In the present case there was no issue as to the justification of carrying out the procedure if the Magistrate had been satisfied of the matters set out in s 24(2). 4 The only issue before the Magistrate was whether there were reasonable grounds for believing that the plaintiff had committed the nominated offence. The Magistrate held that there were such grounds and hence made the order against which the plaintiff has appealed to this Court. The appeal 5 The plaintiff appeals against the order pursuant to of s 115A(1) of the Act and ss 52 and 53 of the Crimes (Appeal and Review) Act 2001 ("the Appeal Act"). Section 115A(1) provides for an appeal against the making of an order as if it were a sentence imposed in the Local Court. There is an appeal against a sentence imposed in the Local Court to this Court under the relevant provisions of the Appeal Act. A question arose at the outset of the proceedings before this Court as to whether the plaintiff required leave to appeal as he sought in his summons. Whether leave is necessary depends upon the nature of the question raised before this Court. He does not require leave if the ground "involves a question of law alone": see 52(1) of the Appeal Act. He requires leave on a ground that involves "a question of fact" or " a question of mixed fact and law": see s 53(1) of the Appeal Act. 6 The grounds of appeal were stated as being:

[11]

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:

[15]

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"

[30]

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:

[31]

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.

[40]

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.