Director of Public Prosecutions v El-Ali
[2023] VCC 90
•31 January 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 19-01086
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMMAD EL-ALI |
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JUDGE: | HER HONOUR JUDGE SYME |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12-16 December 2022 |
DATE OF JUDGMENT: | 31 January 2023 |
CASE MAY BE CITED AS: | DPP v El-Ali |
MEDIUM NEUTRAL CITATION: | [2023] VCC 90 |
REASONS FOR JUDGMENT
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Subject: CRIMINAL LAW
Catchwords: Trafficking in a drug of dependence: commercial quantity; trafficking in a drug of dependence – possession of a drug of dependence
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic); Criminal Procedure Act 2009 (Vic) & Evidence Act 2008 (Vic).
Cases Cited: R v Filippetti (1978) 13 A Crim R 335 & Fleming v The Queen [1998] HCA 68. ---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Albert | Ms D. Tang |
For the Accused | Mr D. Edwardson KC | Ms T. Milides |
HER HONOUR:
1On 12 December 2022 the accused, Mohammad El-Ali was arraigned on an indictment charging that:
2Charge 1: In Brunswick West on 15 November 2018, he trafficked in a drug of dependence namely methylamphetamine in a quantity (306.8 grams) that was not less than the commercial quantity applicable to that drug of dependence (s 71AA of the Drugs, Poisons and Controlled Substances Act [the Act]).
3Charge 2: On 28 November 2018, he trafficked in a drug of dependence namely methylamphetamine (10.5 grams) (s 71AC of the Act).
4In the Alternative Charge 3: On 28 November 2018, he had in his possession a drug of dependence namely methylamphetamine (s 73 of the Act).
5Charge 4: On 28 November 2018, he had in his possession a drug of dependence namely testosterone (s 73 of the Act).
6Charge 5: On 28 November 2018 he had in his possession a drug of dependence namely boldenone (s 73 of the Act).
7Upon his arraignment, the accused pleaded not guilty to Counts 1 and 2, the supply charges, and guilty to Count 3 as the alternative to Count 2. He also pleaded guilty to Counts 4 and 5.
8An order for trial by judge alone was made by consent on 14 September 2022 by Her Honour Judge Marich who considered that it was in the interests of justice for such an order to be made. Her Honour's reasons are available.
9Pursuant to s 420F of the Criminal Procedure Act, a Judge who tries proceedings for the prosecution of a person on indictment without a jury may make any finding that could have been made by a jury as to the guilt of the accused person. Such a finding has, for all purposes, the same effect as a verdict of a jury. The judgment of the court in such a case must include the principles of law that I, as the judge, apply, and the findings on fact on which I rely.
10In Fleming v The Queen [1998] HCA 68; the High Court stated that it is necessary for the judge to expose the reasoning process linking the principles of law with the findings of fact and justify the process and ultimately the verdict that the Court has reached.
11In considering my verdict, I am therefore required, as the trial judge, to take into account any warning, direction or comment that the law requires to be given or made to a jury in such circumstances. There are general directions that I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial according to law.
12Having brought the charges, it is the Crown who bears the onus of proving them. The high standard to which such charges must be proven is the standard of beyond reasonable doubt.
13In order to sustain a conviction for the offences charged, the Crown bears the onus of proving beyond reasonable doubt each element of each of the offences.
14In addition to the fundamental principle that the Crown must prove the charges beyond reasonable doubt, it is necessary to bear in mind a number of other principles.
15The accused is presumed, by law, to be innocent of the charges brought against him unless, and until, the evidence satisfies the tribunal of fact that each and every element of the relevant offences have been proven beyond reasonable doubt.
16If the evidence fails to satisfy the court to that standard of any or all of the elements of a particular offence charged, then the presumption of innocence continues and a verdict of not guilty on that count must be returned.
17If there is an explanation consistent with the innocence of the accused of any charge or if the court is unable, in the circumstances, to determine whether a particular element has been proven, then the accused must be found not guilty accordingly. The evidence before the court must be approached with an open and unbiased mind. The court must proceed logically and rationally, without acting capriciously.
18In assessing the evidence, it is necessary to bring the common sense of the court into account and to deliver any verdict according to the evidence.
19It is also necessary to recall that the accused does not have the burden of producing any evidence. He does not have to disprove the Crown case; it is for the prosecution to prove its case and to do so beyond reasonable doubt. The abovementioned principles of law must be applied to the facts as I find them to be. Additional specific self-directions will be noted as relevant.
20In this case, the parties filed a notice of agreed facts.I accept that, pursuant to s 191 of the Evidence Act, this court requires no further evidence of the subject of that notice. It is convenient, at this point, to refer to this notice. The contents give a useful summary of the background and context of the charges.
21The relevant part of the agreed facts can be summarised as follows:
Agreed facts
22Ross Latina resided at 2/7 Tabilk Street, Fawkner with Christine Murdia. Latina owned and drove an Audi Coupe registration SPYDR8.
23From 31 August 2018 to 28 November 2018, police intercepted calls and messages to and from Latina’s mobile telephones. The intercepts evidenced significant drug trafficking by Latina, including the supply of the drug methylamphetamine.
24In addition, undercover police officers, one known as UCO 298, attended Latina’s home on several occasions for the purpose of controlled purchases and surveillance.
25Between 26 July 2018 and 15 November 2018, Latina supplied about 701.2 grams or 31 and a half ounces of methylamphetamine to the covert operatives. The average purity was 80 percent. The total price for the quantity supplied was $113,800.00.
26On 15 November 2018, Latina supplied 306.8 grams or 11 ounces of methylamphetamine mixture of 80 percent purity (i.e., 245.4 grams of pure methylamphetamine) to UCO 298. UCO 298 paid the sum of $40,900.00 for the quantity supplied that day, and the day before. The details are as contained in the agreed facts. As I understand it, Latina has pled guilty to a supply charge possibly related to this transaction.
27The accused resided at 11 Foden Street, Brunswick West. He drove and owned a Jeep Grand Cherokee wagon registration AMB452, and was the subscriber to mobile phone number, 0473 114 559.
28Latina and the accused resided approximately 8.3 km from each other, a drive of about 20 minutes.
29The s 191 notice contains details of a number of calls intercepted on Latina’s telephone between 7 and 27 November 2018. These will be referred to below as relevant to further considerations.
30On 22 November 2018, Latina deposited a bank cheque for $35,000.00 into the accused’s bank account.
31Other matters do not appear to be in issue. The suburb, Craigieburn, is about 15 km north of Latina’s residence: and payments made by the UCO to Latina were in cash.
Elements
32As I noted, in order to prove the charges it lays, the prosecution must prove each of the elements to the required criminal standard. In the context of this case, much is agreed. I do not propose to detail those matters which are not in dispute.
Count 1: Supply a commercial quantity of the drug methylamphetamine
33(1) – The accused intentionally committed an act of trafficking. In the context of this case, trafficking means Selling, Offering or Agreeing to Sell a Drug of Dependence. This is in issue. In order to prove this element, the prosecution must prove that the accused committed the act of trafficking.
34In the context of this case, the prosecution alleges that an actual supply of the drug from the accused to Latina occurred between the hours of 13.09 and 13.19 on 15 November 2018, at the accused’s address. They suggest payment was made some days later.
35The prosecution relies on a number of pieces of circumstantial evidence to establish an agreement for sale. This will be discussed below.
36(2) – The prosecution must also prove that the accused intentionally trafficked in a drug of dependence. In the context of this case, there is no dispute that methylamphetamine is such a drug, in the event that the court is satisfied as to element 1.
37(3) – The prosecution must further prove that the accused intentionally trafficked in not less than a commercial quantity of that drug.
38In the context of this case, there is no dispute that a commercial quantity of methylamphetamine is prescribed under the Act to be 250 grams when in a mixture or 50 grams pure. It is the Crown case that the 306.8 grams of mixed methylamphetamine trafficked by Latina to UCO 298 was supplied by the accused.
39There is no suggestion that if the court finds that the accused did supply this quantity of drugs to Latina, then he would have been aware that the quantity was over the commercial quantity.
Count 2: Possession for sale
40(1) – The accused must have intentionally committed an act of trafficking. In the context of this charge, the relevant act of trafficking is possessing a drug of dependence for sale. This requires the prosecution to prove two matters beyond reasonable doubt:
i) that the accused possessed a drug of dependence. There is no dispute that methamphetamine is a drug of dependence. In the context of this case, the possession is admitted by the accused’s plea to Count 3.
41According to the law, a person is said to have an item in their possession if they have knowledge that it is physically in their custody or under their control. To place the accused’s admission in context, it is noted that the drugs (total 10.5 grams) were found in a part of the house apparently occupied by the accused, that is, his bedroom.
ii) The prosecution must also prove that he intended to sell that drug, rather than possess it for another reason, such as personal use.
42It is not necessary for the prosecution to prove that the accused had a particular sale in mind or knew who he was going to sell the drugs to.
43In this case, the prosecution allege that the accused had an intention to sell the drug primarily based on the quantity of the drug in his possession. The relevant quantity prescribed in the Act as a traffickable quantity is 3 grams and the possession of that quantity is prima facie evidence of the offence.
44Before stating and considering the evidence before the court, there are several specific self-directions that are now convenient to state.
Separate consideration to the charges
45The prosecution has brought five charges against the accused. While these are separate matters, they are all being dealt with in the one trial for convenience. This is especially important where the accused enters pleas of guilty to some charges and not guilty to others.
46I remind myself to be careful not to allow convenience to override justice. Both the prosecution and the accused are entitled to have each charge considered separately in light of the evidence which applies to it only.
47It would therefore be wrong to say that simply because I may find the accused guilty or not guilty of one charge, that he must be guilty or not guilty, as the case may be, of another. However, in the context of this case, much of the evidence relates to both outstanding charges. This is not challenged.
Circumstantial case
48To find an accused guilty in a circumstantial case, requires the circumstances to be inconsistent with any reasonable hypothesis other than guilt. Guilt is to be the only rational and reasonable inference that the circumstances permit.
49I acknowledge the difference between direct and indirect evidence. As far as the law is concerned, it makes no difference whether evidence is direct or indirect. The strength of the entirety of the evidence is important.
50The evidence is not to be looked at in a piecemeal fashion. All the evidence of the circumstances are to be considered and weighed in determining whether there is a reasonable hypothesis consistent with innocence.
51A hypothesis, including the prosecution hypothesis, should be considered by weighing all the relevant evidence. The requirement to consider all the evidence means that a hypothesis that may appear reasonable when viewed in isolation may be excluded or may not be reasonable when all the relevant evidence is weighed.
52If inferences are to be drawn from any part of the evidence, I should examine any possible inference to ensure that it is a justifiable inference.
53Where an inference is sought to be concluded about an issue that is an element of a charged offence, I should not draw such an inference unless it is the only rational inference in the circumstances.
Discussion of evidence
54The prosecution relies on what they have referred to as 'context evidence', much of which is the subject of the section 191 document.
55The prosecution submits that the conclusions that may be drawn from the context evidence is as set out in paragraph 4 of their submissions. It is accepted that these conclusions do not have to be drawn to the criminal standard.
56In reality, all of this evidence is part of the circumstantial case. It is convenient to separate it as context evidence, but it will all be considered as part of the whole.
57The prosecution submit that conclusions may be drawn from this so-called context evidence. A discussion of the available conclusions now follows:
58Mr El Ali was found in possession of a traffickable quantity of methylamphetamine two weeks after the supply referred to in Charge 1 by Latina to UCO 298. This is not in dispute. The prosecution suggests that this is significant. The relevance will be considered along with other evidence.
59The prosecution submit that other items located in the accused’s bedroom, including – zip lock bags, digital scales, a large amount of cash and a cash counter, are accoutrements or indicia of trafficking.
60Counsel for the accused submit that there was no evidence, such as expert evidence, to support the proposition that these items are frequently used by drug dealers.
61In considering the relevance of these items, I note there is ample evidence that both Latina and Murdia used small plastic zip lock type bags to distribute drugs. Latina would double bag the drugs. UCO 298 referred to the use of these zip lock bags. The drugs found on Mr El-Ali’s possession were contained in such bags. Further, there is evidence that when supplying drugs, Latina used scales to weigh the product.
62In both their opening and closing submissions, the prosecution state:
'Significant cash transactions are the norm in Criminal transactions to minimise records of these transactions'.
63This was not seriously challenged. Courts with experience in such matters know this to be largely accurate. In further support, it is noted that the transactions between Latina and UCO 298 were in cash.
64I therefore accept that the items such as zip lock bags, digital scales, cash counter and cash (about $4,000.00) found in the accused’s bedroom can be some evidence or indicia of supply generally.
65The accused has pled guilty to possession of 10.5 grams of methylamphetamine, more than three times the traffickable quantity (three grams). The prosecution submit that this is prima facie evidence of trafficking, therefore, these circumstances support a conclusion that the accused was, at that time, a drug trafficker.
66This is accepted to some extent. It is certainly highly relevant to Count 2. However, the court must take care not to use this evidence as tendency evidence. The prosecution concede that it cannot be so used. I accept that it impermissible to reason that because there is evidence of trafficking in the items found in his possession of the accused on 28 November, that he tends to be involved in trafficking.
67The indicia of supply, including the presence of methamphetamine in the home with a certain purity may be relevant as circumstantial evidence insofar as both Counts 1 and 2 are concerned.
Evidence contained in telephone intercepts
68Latina was a drug trafficker. This is not in dispute. This is part of the agreed facts (Fact 3). The prosecution submits that the nature of El-Ali and Latina’s relationship was that El-Ali was an upline supplier to Latina. In a contextual sense, the prosecution sets out in their written submissions (pp 4-13 of the closing submissions), a number of telephone calls which, they say, show a pattern of Latina being asked to sell to customers and subsequently seeking contact with the accused. The prosecution say that is consistent with Latina needing to see the accused before he supplied to his own customers.
69For example, for the series of phone calls on the 7 November 2018, Latina advises several presumed customers not to come before 18.30 hrs and/ or that he is 'in Brunswick'. Latina had arranged to see the accused at the accused’s residence at 1700-1800 hrs (call 1680).
70While it may be that arrangements to meet the accused before the arranged meeting with customers is consistent with collecting drugs to distribute, there is another call which is inconsistent. This is the call to Linda.
71At 18.48 (call 1761) Latina tells her that he has, 'just got a new one and is 30-40 minutes away'. It is an agreed fact that the accused’s residence is 20 minutes away.
72The series of calls on 10 and 11 November records Latina telling El-Ali that he would see him in a couple of hours and that they would, 'do what we did last time'. On the 11 November 2018 at 15.56, Latina told the accused he will see him soon. In between these calls, Latina tells presumed customers that he is in the process of 'getting it' and mentions Brunswick. He is overheard to say that he, 'had a smoke at Mohammad’s.' This is consistent with the accused being a drug user.
73In call 4333 on the 17th of November, Latina tells the accused that he [that is, the accused] is the 'first he will go to.' It is submitted that this means that El-Ali is the first up line supplier he would go to. This is a brave submission, even in the context of the balance of the telephone intercepts.
74There are other calls of which similar observations can be made: 17 November 2018; 19-20 November 2018 and 27 November 2018 are those calls. In those calls, it is fair to observe that Latina talks in code for drugs and does not always have sufficient amounts at home to satisfy the needs of his customers. He speaks to El-Ali several times over those days to arrange meetings. These calls do not directly or indirectly refer to drugs.
75On several occasions, Latina makes reference in calls to others to 'going to Brunswick.' He also referred to going to other suburbs, such as Docklands. Murdia referred to him going to Craigieburn.
76There is no dispute that this evidence may be interpreted either in the way the prosecution suggests, that is, that the accused was involved in drug supply. It may also point to a different relationship between the accused and Latina. This evidence will be considered as part of the whole along with other evidence referred to below.
Evidence in relation to Count 1
77It is not in dispute that Latina was significantly involved in the supply of drugs to others, during and prior to 15 November 2018. It is not in dispute he was assisted by his girlfriend.
78He supplied UCO 298 with a total of 334.8 grams (269.2 grams pure) on 14 and 15 November. Specifically, he supplied the UCO with 306.8 grams (254.4 grams pure) on 15 November 2018.
79It is the prosecution case that the discrete amount of 306.8 grams supplied on 15 November was earlier supplied to Latina by the accused. In order to analyse this proposition, it is necessary to summarise the contact between Latina and others in the days before and on 15 November 2018.
80The prosecution rely on a number of telephone intercepts between Latina and other customers, surveillance logs and evidence of surveillance officers attached to Latina including UCO 298.
81Some of the intercepts which the prosecution rely on are referred to in submissions as context evidence, and summarised above. I will not repeat them here.
Evidence of UCO 298
82The evidence of UCO 298 was provided by way of surveillance recordings when the UCO was purchasing product from Latina and subsequent summaries taken. His evidence was pre-recorded shortly prior to the trial. There is little factual dispute as to its content.
83UCO 298 had built up a relationship with Latina over some weeks. He attended at his home to collect drugs which he paid for in cash.
84On 14 November 2018, UCO 298 attended Latina’s home to purchase methamphetamine (covert recording contained in pp 1950-1957). UCO 298 requested half a kilo at an unspecified time in the future. Latina replied, 'Done! I’ve got it now'. UCO 298 responded that he did not have the money to buy that day.
85Arrangements were made for the half a kilo transaction to occur the next day and UCO requested 28 grams immediately. In order to provide this quantity, Latina accessed a Tupperware container from a kitchen cupboard.
86In oral evidence (p 48 of the transcript), UCO 298 said that Latina looked into that container, showed that there was not much in it, walked outside toward the back of the house and then turned toward the garage. He returned minutes later with a bigger Tupperware container which contained more crystals, later analysed as methamphetamine.
87He weighed out 28 grams and double bagged it. UCO 298 said the Tupperware 'tub' of crystals retrieved by Latina was 'the size of an A4 [piece] [of] paper' and there was a "considerable amount" of drugs contained therein'. No estimate was given as to its weight.
88In oral evidence, UCO 298 said it was his understanding that when Latina said 'Done, I’ve got it now', he was referring to another person and actually said 'He’s got it now'. The prosecution submit that this meant that Latina could source this quantity from another.
89However, the entirety of the evidence does not support this conclusion. A close listening to the recording shows the words are clearly 'I’ve got it now'. UCO 298’s memory appears to be incorrect. Both the words in the recording and the UCO’s subsequent summary referred to Latina exclaiming that he had it now, not that another individual had the quantity, or that Latina could obtain it.
90In any event, they ended that conversation with the UCO stating he would call later to arrange a time for the half a kilo transaction. Eventually, it was arranged for the next day.
91The prosecution submit that this sequence of events supports their conclusion that Latina did not have the substance in his possession to provide half a kilo the next day. They submit that this supports an inference that his trip to the accused’s residence was for this purpose.
92This is a submission that simply is not supported by the evidence. Evidence is available that Latina was able to access a store of the substance from somewhere in the backyard of the house or in the garage. No evidence is available as to how much or where it was stored. The court may assume that at some stage, a search warrant was executed at Latina’s residence. There is no information before the court as to what was located.
Other relevant evidence
93The informant told the court that there was no evidence that Latina had a legitimate source of income. I accept this. It does not assist the prosecution case. No evidence was proffered as to the accused’s sources of income or his financial position. This lack of evidence may be relevant when considering how to assess the bank cheque payment. But I must not speculate.
94Other evidence relied on by the prosecution was in the form of intercepts of a large number of telephone calls between Latina and others. Many of the calls related to Latina discussing the supply of drugs to his customers. Methamphetamine is the usual topic, but GHB is also mentioned. As there is no dispute that Latina was in the business of drug supply. There is no need to refer to those calls.
Events on 15 November 2018
95Of interest are the calls made between Latina and the accused relative to the morning of 15 November 2018 (Exhibit 3). The relevant calls are:
96(1) 14 November 2018 at 21.24, call 3438. Latina tells accused he will, 'see him in the morning' and that he 'has both things’.
97(2) 15 November 2018 at 08.53, call 3516. Communication between Latina and accused to arrange a meeting in '30 to 40 minutes'; and
98(3) 15 November 2018 at 11.59, call 3545 relates to more arrangements to meet. El-Ali says he will be home in '10 minutes'.
99It is agreed that on 15 November 2018, Latina drove to and arrived at the accused’s residence. There is no evidence that the morning meeting referred to in calls 3438 and 3516 occurred. Latina’s movements are unknown.
100Surveillance of Latina commenced at 12 noon. He was noted to enter Foden Street from Dawson Street. His car was distinctive.
101Surveillance of his vehicle by SO 036 timed Latina's arrival near 11 Foden Street, Brunswick at 13.08 hrs. SO 036 was located about 100 meters away near the intersection of Dawson and Foden Street. He observed Latina’s vehicle enter Foden Street and watched it park on the eastern side (left hand side of the road) facing south (away from SO 036).
102He observed Latina (wearing a dark blue baseball cap, black T-shirt) alight the vehicle, walk around the front of it, and toward 11 Foden Street.
103Shortly afterwards, SO 036 walked past that address and noted a Jeep Cherokee motor vehicle in the driveway. This vehicle is registered in the name of the accused per the Statement of Agreed Facts.
10411 minutes later, from his location in Dawson Street, the surveillance officer observed Latina, wearing the same clothes, exit the area of 11 Foden Street. He did not observe him to be carrying anything, nor to have a bag on his back or shoulder. His available time of observation was said to be about 2 seconds; long enough to see Latina move from the driveway, walk around the front of his car, open the driver's door and get in
105Much was made about when and in what circumstance SO 036 was asked to recall the events of that day. His evidence was that he was 100 meters away and observed Latina for about two seconds on the way in and two seconds on the way out. In neither observation did he see him to be carrying anything in his hand or a shoulder bag or backpack.
106His memory was explored, and his recollections were prompted by revisiting the scene and no doubt proper discussion with prosecution solicitors shortly before giving evidence.
107In oral evidence, SO 036, who is an experienced surveillance operative, confirmed that if he had seen anything being carried, he would have noted it. He had binoculars available but could not recall if he utilised them. There is no evidence otherwise that it was in the middle of the day. I have no information that any weather conditions made observation more difficult than usual.
108An inference can be drawn from this evidence that if SO 036 did not believe he had a good enough view from about 100 meters, he would have utilised the binoculars.
109I accept that about two seconds is not long to observe, however, the observation of a large bag would not need more than two seconds to be obvious. If the white zip lock bag without the satchel was being carried, it would have obviously been in Latina’s hand. Both hands were apparently visible as he re-entered his vehicle. SO 036 had no difficulty in observing and noting what Latina was wearing.
110It is possible, of course, that the drug could have been collected on this visit and somehow hidden on Latina’s person (e.g., down the front of his T-shirt). Such a conclusion, however, is highly speculative. Latina appears to be blissfully unaware that he is under surveillance. There would be no need to resort to such tactics.
111It is equally possible, probably more so, that based on the phone calls before and after the visit, Latina was delivering something, possibly drugs, to the accused. A small quantity could have been secreted in a pocket.
112It is part of the agreed facts that Latina drove from the accused’s residence to his own residence, arriving at 13.39. There is no direct evidence of when he left the premises on that day though.
113On that day, UCO 298 attended at Latina’s residence at approximately 13:00 hrs in order to collect what he hoped to be a half a kilo of methamphetamine, as per the previous day’s order. Latina was not present. Much of the conversation recorded relates to UCO 298 talking to Murdia and observing other visitors at the home. He observed her selling a product (probably methamphetamine) in relatively small amounts to several customers.
114He was told by Murdia that Latina would not be long and was 'picking up' from Craigieburn.
115In oral evidence, UCO 298 recalled that about 40 minutes after he arrived, he heard Latina’s motor vehicle arriving and enter the garage at the side of the house. He explained in detail why he was sure Latina arrived in that way. Eventually, it was of little importance.
116Shortly after he heard the car arrive, Latina entered the house via the rear sliding door, pushing the blinds out of the way as he did so. UCO 298 could not see where he came from, but it was the direction of the garage. No prior surveillance had been carried out either inside or outside the garage.
117When Latina arrived into the house, he was carrying a leather like satchel, described by UCO 298 as '24 inches wide', from which he extracted a large (A4 paper size) zip lock bag containing two or three other bags containing drugs. UCO 298’s observation was that it was 'full of drugs'. Latina told UCO 298 he did not have enough for half a kilo that day and would be short two or three bags.
118The weighing and repackaging process began, with Latina weighing the product on the kitchen bench. He did so separately from the Tupperware container that Murdia was selling from.
119During the weighing process, Latina became aware that the weight of the subject drugs was less than anticipated. He became very upset, exclaiming (at p 1995) '…motherfucker. This is short. Fucking Greek.' Ultimately, there seems to be 3.5 grams less than expected. Arrangements were made to complete the half a kilo deal some days later. UCO 298 paid for the product supplied and left.
120UCO 298 summarised his observations at the conclusion of the day and reported that he left at 2.16 pm.
121There is no evidence that Latina telephoned the accused or anyone else complaining about the short weight. On the next day, a recorded call between Latina and the accused (16 November 2018at 15.26, call 4024) took place. Latina asked, 'seeing if you are OK?'. El Ali responded 'what I gave yesterday, yeah'. Latina said, 'The same as that?' El-Ali responded, 'a little bit.' The accused spoke to Latina about 'product'. This call may well refer to drug supply. There is no reference to short weight.
122The next call in evidence between Latina and the accused is still on
17 November where reference is made by Latina to him, that is, Latina stated: 'still looking for it' in relation to 'the last for yesterday'. This is not consistent with a discussion about short weight of a supply by the accused. I note they appear to be on good terms.123The prosecution case does not improve with an examination of the subsequent calls between Latina and the accused.
124Further intercepted calls:
16-21 November 2018–, various conversations between the accused and Latina about meeting;
16-21 November 2018, there are various conversations between Latina and customers about various issues.
125None of these conversations assist the prosecution case greatly. Call 4024 may be referring to a supply of drugs by the accused the day before, but without any evidence that Latina left the premises with any kind of package, it is not particularly helpful.
Deposit of $35,000.00
126It is part of the agreed facts that on 22 November 2018, Latina made out a $35,000.00 bank cheque drawn from his personal bank account to ‘Mr M El-Ali’. The cheque was deposited in Mr El-Ali’s bank account.
127Evidence from the Informant police officer was that investigations did not reveal a legitimate explanation for that transaction. No evidence was given as to what the investigations consisted of, nor of any information provided by or about Latina, but this evidence was not challenged.
128After the accused’s arrest on 28 of November 2018, police interviewed him. Even though questioning was insistent, this proposition was not put to him to comment on. No admissions were made on any topic.
129The prosecution argue that this deposit, some seven days after the supply of 306.8 grams of methamphetamine to UCO 298, is further evidence of the accused supplying that amount to Latina. The prosecution further submits that this sum ($35,000.00) represents the wholesale price of the substance, affording Latina a profit on the transaction. Although there is no evidence of the profitability of the Latina venture, this is perhaps a plausible submission but somewhat lacking in evidence.
Summary
130In short, the evidence relied on the by the prosecution is:
131The relationship between the accused and Latina, who, it is agreed, is a drug dealer; A visit by Latina to the accused’s residence on 15 November at 13.08; Latina supplying UCO 298 with a quantity of 308.6 grams of methamphetamine at about 2 pm on the same day; $35,000.00 being paid by bank cheque from Latina to the accused a week later; and the location of 10.5 grams of methamphetamine, and other indicia of supply at the accused’s residence on
28 November 2018.132It is possible that, together, this evidence gives some comfort to the prosecution that the accused was an upline supplier. The use of a bank cheque is unusual, even on the prosecution case. It is neither consistent nor inconsistent with the prosecution case theory.
133However, there is evidence which does not support this conclusion.
134Firstly, the words ‘fucking Greek’ in reference to the supplier of the 306.8 grams. It is clear that the accused is not of Greek heritage. There are ample racially abusive terms that Latina could have used if he were referring to the accused as his supplier. The use of the term ‘fucking Greek’ is inconsistent with the prosecution conclusion.
135Secondly, the lack of contact immediately after the complaint of short weight. Such contact as is recorded does not refer to short weight.
136Thirdly, the lack of observation of a package being collected by Latina on 15 November from the accused’s residence.
137Fourthly, the unusual use of a bank cheque for a drug deal. There is no dispute that Latina had cash. All of Latina’s drug sales, including the large ones with UCO 298, were in cash. I remind myself of the submissions of the prosecution that cash is the usual medium for criminal activities.
138Fifthly, of the 10.5 grams of methamphetamine located in the accused bedroom were three separate bags. The purity was 90 per cent, 75 per cent, and 83 per cent, respectively. This is not consistent with the purity of the substance supplied to UCO298, which was 80 per cent.
139Sixthly, another plausible explanation for the evidence is that the accused was purchasing drugs from Latina. Supporting that conclusion, in addition to the above, is that:
140Latina dealt in other drugs. Sometimes he dealt from his home, sometimes he visited others. (Call 4563 and 4272);
141The accused had steroid substances in his possession, suggesting he was an illicit substance user;
142The accused had a relatively small amount of cash in his possession. This amount is more suited to the purchase (or sale) of smaller amounts rather than the sale of very large amounts;
143Latina and the accused appear to be on friendly terms, rather than a business relationship. An observation of the telephone calls reveals a good relationship. Latina evokes a similar friendly tone with most others he supplies. This continues even after the 'fucking Greek' exclamation on 15 November;
144A call on the 11th of November refers to Latina 'having a smoke with Mohammad' (call 2835);
145Call 4333 to the accused refers to Latina looking for something, but Latina does not ask the accused to provide whatever he is missing.
146Latina makes arrangements to visit the accused on several occasions after 15 November. If the accused was his drug supplier, cash funds could have been delivered then (per call 4806 on 19 November 2018; calls 5099 and 5133 - 20/11/2018.) It is not known if those visits occurred.
147Call 3438 on 14 November 2018 documents Latina referring to having 'both things.' This suggests the transaction being from Latina to the accused, perhaps the delivery of two types of drugs, rather than the other way.
148A plausible conclusion from all of this evidence is that the supply, if it occurred, went from Latina to the accused.
149Lastly, the payment of $35,000.00 on 22 November is unexplained. The mode of transfer does not support a conclusion of criminal activity.
150For all of those reasons I do not find that the prosecution has proven the charge contained in Court 1 to the required criminal standard. I find the accused not guilty of Count 1.
151I now turn to Count 2. I repeat the self-directions above. In addition, I remind myself that the accused has no obligation to give or call evidence. The fact that he did not do so does not alter the burden of proof.
152In relation to Count 2, there is no dispute that 10.5 g of methamphetamine was located in the accused’s bedroom. There is no evidence of others who had access to that room, although the evidence of the officer in charge is that others lived in the house. I have considered the case of R v Filippetti (1978) 13 A Crim R 335.
153There is no evidence that there was anyone else with control in the circumstances in which the drugs were found. In three separate bags, the purity was 90 per cent, 75 per cent and 83 per cent. Also located was some indicia of supply, bags, scales and cash. This supports a finding of both use and supply.
154The traffickable quantity for this substance is 3 grams. Section 73(2) provides that the possession of the substance in this quantity, or more than this quantity, is prima facie evidence of trafficking.
155No evidence was offered otherwise. Counsel for the accused urged the court to consider all of the evidence. I have done so. The prosecution case is supported by the presence of the other indicia of supply; that is, as I have explained: cash, bags and scales.
156On the available evidence, it is not submitted that any other conclusion can be drawn other than that the accused had physical custody or control of the drug; and he intended to have custody or exercise control over that drug; and that the accused knew that the substance over which he had custody or control was a drug, or was at least aware of the likelihood that it was a drug. That is, he was aware that there was a significant or real chance that the substance he possessed was a drug.
157There is prima facie evidence of three times the traffickable quantity.
158There are other indicia of supply. There are no other reasonable hypotheses for the possession of this quantity, other than for the purposes of trafficking.
159For those reasons I therefore find Count 2 proven beyond reasonable doubt and find the accused guilty of Count 2.
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