Elsleiman v The Queen

[2015] NSWCCA 192

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Elsleiman v R [2015] NSWCCA 192
Hearing dates:	22 May 2015
Decision date:	22 July 2015
Before:	Macfarlan JA at [1]; Johnson J at [74]; Button J at [75]
Decision:	(1) Leave to appeal granted. (2) Appeal dismissed.
Catchwords:	CRIMINAL LAW - drug offences – attempt to possess substance reasonably suspected of being unlawfully imported – circumstantial case – appeal against conviction – whether jury verdict unreasonable or cannot be supported having regard to the evidence – s 6 Criminal Appeal Act 1912 – appeal dismissed
Legislation Cited:	Criminal Appeal Act 1912 (NSW), s 5(1)(6) Criminal Code 1995 (Cth), ss 5.2, 5.3, 11.1(1), 307.9, 307.9(1), 307.9(1)(c), 307.11
Cases Cited:	Chamberlain v The Queen (No 2) [1984] HCA 7; 153 CLR 521 Lau v R [2014] NSWCCA 179 M v The Queen [1994] HCA 63; 181 CLR 487 R v Hillier [2007] HCA 13; 228 CLR 618 SKA v The Queen [2011] HCA 13; 243 CLR 400 Wood v R [2012] NSWCCA 21; 84 NSWLR 581
Category:	Principal judgment
Parties:	Gabriel Elsleiman (Applicant) Regina (Respondent)
Representation:	Counsel: M Smith (Applicant) P McGuire (Respondent)   Solicitors: McGirr Lawyers (Applicant) Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):	2012/114537
Decision under appeal	Court or tribunal: District Court Jurisdiction: New South Wales Date of Decision: 13 September 2013 Before: Flannery DCJ File Number(s): 2012/114537

Judgment

1. MACFARLAN JA: Following a plea of not guilty and a 12 day jury trial in 2013 in the District Court, the applicant was convicted of the following offence under subsections 307.9(1) and 11.1(1) of the Criminal Code 1995 (Cth):

“On or about 11 April 2012 at Sydney in the State of New South Wales, [Gabriel Elsleiman] did attempt to possess a substance, being a substance that is reasonably suspected of having been unlawfully imported, the substance being a border controlled drug, namely cocaine, and the quantity of the substance being a marketable quantity”.

2. The offence arose out of the intended shipment from the United States to the applicant’s motor vehicle workshop in South Strathfield, Sydney, of a motor vehicle engine containing a pure net weight of 1,720.2 grams of cocaine secreted in seven canisters. Authorities in the United States seized the consignment and despatched it to Australia after removing the cocaine. Australian Federal Police (“AFP”) Agents then substituted an inert white powder in the canisters, reconstructed the consignment and delivered it to the workshop. The applicant removed the canisters from the engine and delivered them to Mohamed Metleg on whose instructions he was acting. The applicant’s case at the trial was that he had, at most, a suspicion that the engine, and the canisters in it, contained illegal substances. The issue at the trial was whether the Crown had proved beyond reasonable doubt that the applicant had the requisite intention or knowledge applicable to the offence. The Crown presented a circumstantial case to which the applicant responded by giving evidence.

3. The applicant seeks leave under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to appeal against his conviction on the ground that the jury’s verdict was “unreasonable, or cannot be supported, having regard to the evidence” (see s 6(1) of that Act). In determining such a ground of appeal, this Court must make “an independent assessment of the evidence, both as to its sufficiency and its quality” and determine “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty” (SKA v The Queen [2011] HCA 13; 243 CLR 400 at [14] and [11] quoting M v The Queen [1994] HCA 63; 181 CLR 487). The “central question” to be answered in making such an independent assessment is whether the court is satisfied that the applicant is guilty of the offences (SKA v The Queen at [20]).

4. Having made an independent assessment of the record of the trial, I consider, for the reasons stated below, that the Crown proved its case beyond reasonable doubt and that it was thus open to the jury to convict the applicant. Whilst leave to appeal should be granted, the appeal should therefore be dismissed.

Relevant statutory provisions

5. The Criminal Code provisions under which the applicant was charged are in the following terms:

“307.9 Possessing marketable quantities of border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported

(1) A person commits an offence if:

(a)   the person possesses a substance; and

(b)   the substance is reasonably suspected of having been unlawfully imported; and

(c)   the substance is a border controlled drug or border controlled plant; and

(d)   the quantity possessed is a marketable quantity.

Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.

(2) Absolute liability applies to paragraphs (1)(b) and (d).

(3) The fault element for paragraph (1)(c) is recklessness.

(4) Subsection (1) does not apply if the person proves that he or she neither intended, nor believed that another person intended, to sell any of the border controlled drug or any of the border controlled plant or its products.

(5) Subsection (1) does not apply if the person proves that the border controlled drug or border controlled plant was not unlawfully imported.”

“11.1 Attempt

(1)   A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.

6. The following provisions of the Criminal Code concern the fault elements relevant to s 307.9(1):

“5.1 Fault elements

(1)   A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.

(2)   Subsection (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence.

5.2 Intention

(1)   A person has intention with respect to conduct if he or she means to engage in that conduct.

(2)   A person has intention with respect to a circumstance if he or she believes that it exists or will exist.

(3)   A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.

5.3 Knowledge

A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.

5.4 Recklessness

(1)   A person is reckless with respect to a circumstance if:

(a)   he or she is aware of a substantial risk that the circumstance exists or will exist; and

(b)   having regard to the circumstances known to him or her, it is unjustifiable to take the risk.”

7. By reason of these provisions and in the circumstances of this case, and given the manner in which it was conducted by the parties at trial, it was sufficient for the Crown to prove in relation to s 307.9(1)(a) and (c) that the applicant believed that the engine contained a border controlled drug. Whether the applicant had that belief was the sole issue at the trial (see [2] above). As indicated by s 307.9(2) absolute liability applies in relation to s 307.9(1)(b) and (d).

Principles applicable to circumstantial cases

8. As stated by the plurality in R v Hillier [2007] HCA 13; 228 CLR 618, in a circumstantial case, “all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence” (at [46]) and:

“48 Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal”.

9. Having emphasised that the prosecution must prove its case beyond reasonable doubt, McClellan CJ at CL (with whom Latham and Rothman JJ agreed) stated in Wood v R [2012] NSWCCA 21; 84 NSWLR 581:

“53 At the same time, the trier of fact must bear in mind that a circumstantial case is to be considered holistically: R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [48]-[49] (Gummow, Hayne and Crennan JJ). Putting to one side for the moment ‘indispensable’ intermediate facts … it would be wrong for a jury to acquit an accused merely because it harbours reasonable doubts about some inculpatory evidence, though it ignores or unduly minimises other, more compelling evidence of the accused's guilt. As it is often the case that ‘one piece of evidence ... resolves doubts as to another’ (Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521 at 535 (Gibbs CJ and Mason J)), it is necessary to weigh and consider the totality of the evidence: Hillier at [48]-[49]. In doing so, the finder of fact ought not stretch credulity or engage in tortuous reasoning in order to explain away each and every individual circumstance as being consistent with innocence: R v Micallef [2002] NSWCCA 480; (2002) 136 A Crim R 127 at [42] (Dunford J); Burrell v R [2009] NSWCCA 193 at [55] (Giles JA).

The evidence at the trial

10. The applicant owned and operated a motor vehicle mechanic and auto electrical business under the name “Strathfield Auto Electrical” at South Strathfield in Sydney. He is a qualified mechanic and auto electrician.

11. He gave evidence that Mohamed Metleg approached him three or four weeks prior to 11 April 2012 (the date of the applicant’s arrest) to discuss the stripping of an engine. He said that he had known Mohamed Metleg for about six months, having met him once or twice through his brother, Omar Metleg, the applicant’s accountant. Roy Malouf, for whom the applicant had done some motor vehicle work, was present when the following conversation occurred.

“Well, he approached me about, say, three to four weeks prior to my arrest. He asked me if I was a – ‘I heard you’re a good mechanic.’ I said ‘Yeah’. I go, ‘What do you need done?’ He said, ‘I’ve got a V8 engine I need stripped.’ I said, ‘What do you mean stripped?’ He goes, ‘I need the pistons taken out of them and I’ll give you 500 bucks for them.’ I’m like, ‘Yeah … I can’t – I won’t be able to do it today. Possibly tomorrow. I’m a bit busy today.’ He goes, ‘I don’t need it done today. I will let you know when I need it done’. I’m like, ‘Yep. No worries’” (Transcript pp 316-317).

12. On 5 April 2012 the United States Customs and Border Protection Service in Nashville, Tennessee, seized a large cardboard box scheduled for consignment to “Ron” at “Motor Sports” at the applicant’s work address in South Strathfield. The DHL Express label on the box described its contents as a “New Chevy 350 Engine” valued at USD $6,900. The Service removed seven steel canisters from the engine containing, in plastic bags, a white powder that subsequently tested positive for cocaine.

13. On 8 April 2012 the Service despatched the engine (in its original packaging but without the white powder) to the AFP in Sydney where it was examined by AFP Crime Scene Scientist Nathan Green on 10 April 2012. His examination revealed that:

“(a)   the engine was inoperable;

(b)   the spark plugs had been welded closed;

(c)   the 16 valve heads had been welded shut, which would prevent air from being introduced for combustion and exhaust gases being expelled;

(d)   there were no pistons;

(e)   canisters were inserted inside seven of the chambers, where the pistons would normally be located;

(f)   the canisters did not look like pistons;

(g)   there was one open-ended steel canister in one of the chambers;

(h)   a layer of white or grey residue and a metal plate covered the bottom of the eight chambers;

(i)   the residue and metal plate would inhibit the engine from operating;

(j) each end of the crank shaft had been cut off and the remainder of the shaft had been welded into position, rendering it inoperable” (Crown’s Written Submissions, [17]).

14. At 10.59 am on 10 April 2012 a DHL employee in Sydney received a telephone call from a person describing himself as “Ron Bayless” who paid for the taxes associated with the consignment with a credit card. Detective Senior Constable Nilon of the New South Wales Police gave evidence that she believed that “Ron Bayless” was a false name but accepted that there was no evidence that the applicant was the person purporting to be Ron Bayless (Transcript p 294).

15. On 10 or 11 April 2012 Mohamed Metleg and Ray Malouf visited the applicant at his workshop. At Mohamed Metleg’s suggestion, he and the applicant went for a walk to get a coffee. On the applicant’s evidence, the following conversation occurred:

“… He said, ‘When can you do that engine?’ I said, ‘Is it ready?’ He said ‘Yep’. I said, ‘Okay. I can probably do it today or tomorrow.’ He said, ‘All right. No worries. I’ll organise for it to be dropped off and take – I’ll organise for it to be dropped off”, and I said then, ‘All right. No worries. Let me know exactly when it comes, that way I can organise time for it.’ He said, ‘Yep. No worries. I will let you know.’ And we just pretty much finished it, finished that is.’

…

[The applicant said] ‘What do you need exactly?’ [to which Mohamed Metleg replied:] ‘Just the pistons taken out of it.’

‘ … I recall that he said, ‘Can you do it today?’ I said, ‘I can’t, I can’t be a hundred – I can’t guarantee that it – I can do it today, though.’ I said I will let him know either today or tomorrow. He goes, ‘Look, if you, if you can do it today for me, I’ll chuck in a bottle of scotch for you. Whisky.’ I laughed and said, ‘Yeah. All right. No worries. I’ll get it done as soon as I can then.’” (Transcript pp 319-320)

16. At 1:56, 2:56 and 3:57 pm on 11 April 2012 an AFP Agent posing as a DHL employee had three telephone conversations with the person purporting to be Ron Bayless. That person told the Agent that the applicant’s workshop would be open until 5.30 pm for delivery purposes.

17. At 2:53 pm Mohamed Metleg arrived at the workshop and had a conversation with the applicant in the office. He then left (Transcript p 320).

18. At 4.10 pm AFP Agents posing as DHL delivery drivers delivered the reconstructed consignment to the applicant’s workshop. At the time of the delivery the workshop was under electronic surveillance via two video cameras in the rear laneway, two video cameras installed inside the workshop, a listening device in the workshop’s office and a video camera covering the front of the workshop. New South Wales Police Officers and AFP Agents were also conducting physical surveillance.

19. Dominic Dos Santos, the applicant’s only employee at that time, gave evidence that the applicant told him to sign for the delivery. The applicant did not recall making that request but accepted that the surveillance footage shows Dominic Dos Santos signing for the consignment (Transcript p 323).

20. The delivery truck left the workshop at 4.29 pm and at 4.31 pm Mohamed Metleg and Roy Malouf arrived at the rear of the workshop. The applicant was unable to explain how they came to arrive so soon after the delivery truck departed (Transcript pp 345-346).

21. The applicant said that he then had the following conversation with Mohamed Metleg:

“[Mohamed Metleg] said, ‘Is the engine here?’ I said, ‘Yep.’ He said, ‘Can you do it - can you do it tonight?’ I said ‘Yep.’ No, sorry. He said ‘Can you do it tonight? What time can you drop off the pistons?’ I said, ‘From 7 to 8.’ He said, ‘Okay.’ Just before he left, he said, ‘Get rid of the paperwork for me’” (Transcript p 323).

22. The applicant’s evidence was that he understood that he was to remove the pistons and deliver them to Mohamed and Omar Metleg’s house in Greenacre. He said that when he was asked to “get rid of the paperwork” he became “a bit suspicious”:

“I just had second thoughts, like, what’s going on? Why does he want me to get rid of the paperwork? But I didn’t think too much into it” (Transcript p 324).

23. At 4.35 pm and 4.46 pm respectively Dominic Dos Santos and Zac Ahmed (the applicant’s cousin) left the workshop in separate vehicles in order to return one of the cars to a customer. Zac Ahmed was driving a black BMW owned by another customer.

24. At about 5.15 pm the applicant was alone in the workshop and closed the front roller door. Between 5.14 and 5.17 pm the surveillance cameras recorded him removing documents from a clear plastic sleeve on the consignment box and setting fire to them in the workshop using brake cleaner. Once the documents were burnt, the applicant swept up the ashes, placed them in a garbage bin, took the bin outside and emptied its contents into a large wheelie bin.

25. The documents in the sleeve comprised a bill of lading, an invoice and a packing list. Photographs of those documents that were taken when the United States Service seized the consignment show that the documents referred to the consignment of a “New Chevy 350 Engine” to “Motor Sports” at the address of the applicant’s workshop. They also show that, in a prominent position, on the side of the box adjacent to the plastic sleeve containing the bill of lading and other documents, there was a DHL Express document with the words “EXPRESS WORLDWIDE” and “AU – SYD” affixed. The consignee was listed on it as “Ron” at “Motor Sports” at the workshop address in “AUSTRALIA”. The consignor was shown as a person with an address in Merryville, Tennessee, “UNITED STATES”.

26. At 5.24 pm, Zac Ahmed and Dominic Dos Santos arrived back at the workshop in the same black BMW in which Zac Ahmed had earlier left. At 5.50 pm the applicant drove away in the black BMW with Zac Ahmed as his passenger, (on his evidence) leaving the workshop unlocked when he left (Transcript p 325). Dominic Dos Santos appears to have left at or before this time.

27. After three missed calls from Omar Metleg to the applicant’s telephone, the following conversation was recorded at 6.00 pm:

“[Applicant]: Yeah

[Omar Metleg]: (unintelligible)

A: Hello

O: Yeah where are you at?

A: Why?

O: Where are you?

A: I’m playing with my dick, what am I doing? I’m at work.

O: How long are you going to be, I want to eat, are you going to be long?

A: Yeah hala I’m on the way, I’ll be there in ten minutes.

O: Yallah, Bye

A: Bye

O: Bye”

28. In cross-examination, the applicant accepted that the terms of this conversation (particularly the applicant’s response “I’m playing with my dick” to the question “Where are you?”) suggest a degree of familiarity between him and Omar Metleg but asserted that his relationship with Omar Metleg was on a professional level only (Transcript p 401).

29. It appears that the applicant returned to the workshop by himself at 6.33 pm and turned on the lights. It is not clear from the evidence where he had been in the previous half hour.

30. Between 6.34 pm and 6.48 pm an interior surveillance camera filmed the applicant dismantling the engine using various power tools whilst wearing white gloves. He said in evidence that when he saw the canisters inside the engine he knew that they were not pistons and became concerned and worried, and thought that “something wasn’t right here” (Transcript p 327-328). That concern continued until he arrived at the Metlegs’ house with the canisters (Transcript p 359). However, he did not raise that concern with anyone.

31. At 6.48 pm the surveillance camera recorded lights (or a light) in the workshop turning off. The applicant said that an automatic timer had caused them to do this and that only the lights at the back of the workshop, and not those at its front, turned off (Transcript p 329). He said that he did not turn the lights back on because he only had about 10 minutes remaining until he completed removing the canisters. He denied in cross-examination that the surveillance camera recording appears to show a torch being used in this period (Transcript p 383).

32. At 6.52 pm, whilst the applicant was removing the canisters, he received another call from Omar Metleg which was recorded as follows:

“A: Hello George speaking

O: How far are you going to be? How long are you going to be?

A: Huh?

O: How long are you going to be?

A: I don’t know. I’ll be there soon.

O: How long?

A: I’ll be there as quick as I can. I don’t know bro.

O: (Speaking to person in background ‘He doesn’t know’. Ten, fifteen, twenty?

A: Fifteen.

O: Fifteen.

A: Bye.

O: Bye.”

33. The applicant agreed that the name “George” that he used was not his name but denied that he used it to avoid being detected by the authorities (Transcript p 376).

34. Of the eight canisters in the engine, the applicant removed only the seven that were sealed and that contained the inert white powder. The eighth canister was empty and “open ended” and he said that he did not remove it because “it wouldn’t come out” (Transcript p 378). Nathan Green’s evidence was however that each of the canisters was inserted and secured in the same way with the inference being, as asserted by the Crown on appeal, that there was no reason why any canister would be more or less difficult to remove than any other (Transcript pp 80-81).

35. At 6.56 pm the applicant opened the workshop’s rear roller door and placed the canisters in the same black BMW.

36. At 7.01 pm the following telephone conversation between the applicant and Omar Metleg was recorded:

“A: Yeah

O: Yeah

A: Yeah

O: No

A: All right, bye

O: Well hey, um …

A: Huh?

O: (Whistling) wait for my call

A: Huh?

O: Just wait for my call

A: Bye

O: Bye”

37. At 7.05 pm the applicant drove the BMW along the laneway behind his workshop with the headlights turned off. He denied that he did this in order to avoid detection (Transcript p 393), asserting that it was instead “just a habit” (Transcript p 406). He then began to drive to the Metlegs’ house.

38. At 7.13 pm the following telephone conversation between the applicant and Omar Metleg was recorded:

“A: Gab?

O: Yeah what are you doing?

A: Nothing, I’m at yours

O: Yeah?”

39. The applicant gave evidence that when he arrived at the Metlegs’ house Mohamed Metleg, Omar Metleg, Roy Malouf and Mohamed’s aunt were sitting on the front balcony (Transcript p 332). He put the canisters on the balcony floor and said: “They’re the – that’s what you wanted?” to which Mohamed Metleg responded “All right” (ibid). Roy Malouf then handed the applicant $500 and the applicant took the bottle of whisky that was there for him (ibid).

40. The applicant gave evidence that, as he was leaving the Metlegs’ house, Roy Malouf told him that he wanted to go back to the workshop and pick up the rest of the engine parts. He said that he did not ask Roy Malouf why he needed to do this that night because he “just wanted to get it out of the way” and that although it was “inconvenient” he wanted to “get rid of the stuff so I can start tomorrow afresh” (Transcript pp 334, 361, 359).

41. At 7.36 pm the applicant arrived back at the front of the workshop followed by Roy Malouf in another vehicle. At 7.38 pm a hidden listening device in the workshop recorded the following conversations between the two:

“V1: Where am I going to move it

V2: Huh

V1: Where am I going to move

V2: Where

V1: It’s in a holding space

V2: Where are you going to move the car to?

V1: I’ll do it now. Can you fit?

V2: Nah I can’t. Move the car ya fuckin idiot.

[The applicant was then observed to move a white Camry and Roy Malouf reversed his white utility into the workshop. The applicant put on a pair of white gloves].

V1: Look, Look

V2: Cuz, do me a favour

V1: Anything

V2: Shut the fucking roller door

V1: Shut it?

V2: I didn’t say lock it, shut it

V1: I don’t know what you’re talking about

[The applicant then lowered the rear roller door].

V1: Look, … look this is what you do. Everything in this box, that way it’s covered. This is not heavy enough … This one, lift it up, chuck everything in it.

V2: What the fuck are you gonna do with this box? Burn them you dickhead

V1: Where am I gonna burn em? I can’t burn em here.

V2: Out the back

V1: Where?

V2: In the laneway there … the trick is in the thing there (inaudible) … fuckin’ box how am I going to carry the box.

V1: The box, all right, you know what to do? That was when you put these here … there’s always cars out in this lane.

V2: Yeah alright.

V1: You cover it. So you can hide everything in here.”

42. The applicant said in evidence that he thought that he was “V1” and he expressly identified Roy Malouf as the maker of the statements “Do me a favour, shut the fucking roller door” and “Move the car you fucking idiot” (Transcript p 334).

43. The applicant agreed in cross-examination that at that stage he was not intending to do anymore work that night but when asked why he put gloves on he said “because I’m touching the engine, I’m working” and:

“I wasn’t doing anymore work, but like I said, I don’t like to get my hands greasy and oily stuff, which is why I am wearing gloves again, because I am about to touch an engine” (Transcript p 394).

44. The following exchange then occurred between the applicant and the Crown:

“Q.   Is it your evidence that every single time you touch a part of a car engine you put gloves on?

A   Not every single time, but when I’m doing, for example, heavy engine work, yes, I’m putting gloves on.

Q.   But, sir, this isn’t heavy engine work.

A.   Well it is, it’s dismantling a full engine.

Q   But you have already just dismantled the engine, sir.

A.   I know, but I’m approaching it again, I’m touching it again, like …

Q.   I’m going to suggest to you that the reason you put your white gloves on was so that there weren’t any fingerprints of yours on that engine.

A.   No, it’s not true” (Transcript pp 394-395).

45. At 7.41 pm the police entered the workshop through the front roller door to execute a search warrant and arrest the applicant. On entering, the police shouted:

“Police.” “Search warrant.” “Stay where you are.” “Don’t move.” [and] … “Go on the ground” (Transcript p 169).

46. Senior Constable Hill, who was about the third or fourth to enter the workshop, gave evidence that the two men in the workshop (the applicant and Roy Malouf) “both sort of looked up at us” before the applicant ran away into the workshop office, closing the door behind him (Transcript p 173). Two police officers pursued him and attempted to open the door, which appeared to be jammed in some way. When they entered, the applicant complied with their instructions to lie on the floor with his hands out.

47. The applicant did not have gloves on when the police entered the workshop office. He said that he could not recall when he took them off but denied that he had done so to avoid an inference that he had committed an offence (Transcript pp 396-397). He said that he ran away when the police entered because he thought that he was being robbed, but he agreed that the words “police” “stop” “search warrant” could be heard on the relevant video recording of the police entry (Transcript p 396).

48. A subsequent execution of a search warrant at the Metlegs’ house located a handwritten note that recorded the consignment number, the consignee’s address as “Motor Sports” at the applicant’s workshop, the credit card number given to DHL to pay for the taxes and other information.

49. On appeal, the Crown’s written submissions summarised the evidence given at the trial concerning the value of the cocaine contained in the canisters as follows:

“16 Evidence from a senior AFP agent with experience in valuing narcotics established that the concealed cocaine was valued as follows:

(a)   the street value in Australia as at April 2012 was between AUD $1.2 million and AUD $1.3 million;

(b)   the wholesale value in Australia as at April 2012 was about AUD $550,000; and

(c)   The wholesale value in the United States of America as at April 2012 was between AUD $20,000 to AUD $25,000”.

The Crown’s submissions on appeal

50. The Crown’s written submissions summarised the matters that it contends support the jury’s verdict as:

1. although present at the time the consignment was delivered, the applicant instructed his employee, Dominic Dos Santos, to sign for the delivery;

2. the applicant would have been aware from the labels and documents on the cardboard box and the description of the consignor and the contents, that the consignment had been imported from overseas;

3. the applicant would have been aware from the labels and documents on the cardboard box that the consignment was addressed to a person, Ron, and a business name, Motor Sports, which were not associated with him or the delivery address in South Strathfield;

4. the stated description of the contents and value of the consignment, ‘New Chevy 350 engine’ and ‘USD $6,900’ respectively, were at odds with the actual contents, namely a reconditioned, inoperable engine with multiple mechanical anomalies;

5. the instructions from Mohamed Metleg to strip the pistons were at odds with the stated description of the contents and value of the consignment;

6. the instruction from Mohamed Metleg to ‘get rid of the paperwork for me’ in conjunction with the applicant’s evidence that he acted on this instruction by destroying the documents associated with the consignment;

7. the applicant’s dispatch of Mr Dos Santos and his cousin from the workshop, sending them on errands, before he commenced destroying the consignment documents and before he commenced disassembling the engine;

8. the applicant’s incineration of the bill of lading, the invoice and the packing list associated with the consignment by spraying brake cleaner on the documents, re-applying that agent to keep the documents burning, using his feet and hands to push the documents into the flame to ensure that no skerrick of them remained and disposal of the ashes into a large industrial bin;

9. the discovery by the applicant of numerous mechanical anomalies which rendered the engine inoperable, including welded spark plugs, welded valve heads, the absence of pistons, the presence of metal canisters in the chambers, the metal plate covering the bottom of the eight chambers and the shortened and welded crank shaft;

10. the discovery by the applicant of a layer of white or grey cement or plaster residue covering the bottom of the eight chambers;

11. the inconsistency between the applicant’s evidence that he was instructed to remove and deliver pistons and his discovery that there were no pistons and his concession that the canisters he extracted did not look like pistons, from which it can be inferred that the applicant well understood that his task related to the extraction and delivery of the concealed substance and not pistons;

12. the fact that the applicant removed only the seven canisters which contained a concealed substance and left in situ the empty open-ended canister, from which it can be inferred that the applicant knew precisely which of the objects inside the engine he was required to extract and deliver and that the only item of interest was the substance concealed inside the seven closed canisters;

13. working by himself after normal business hours and in partial darkness, from which it can be inferred that the applicant did not want to be observed dismantling the engine and extracting the canisters;

14. wearing gloves when dealing with the engine and the cardboard box in which it was delivered;

15. proceeding with the removal of the canisters, despite his evidence that he was ‘concerned’, ‘worried’, ‘did not know what they were’ and ‘thought something wasn’t right’ [at least] from the time he had discovered the canisters, the numerous mechanical anomalies and the residue of white or grey cement or plaster;

16. despite the concerns about which the applicant gave evidence, he did not mention those concerns, the absence of pistons, the discovery of metal canisters, the white plaster of Paris-like substance he had observed or the engine’s mechanical anomalies in the telephone conversations with Omar Metleg at 6:52pm, 7:01pm or 7:13pm or at the meeting with Mohamed Metleg, Omar Metleg and Roy Malouf on the balcony at the Metlegs house;

17. using the false name “George” when he answered the telephone call from Omar Metleg at 6:52pm;

18. the coded, cryptic and allusive nature of the telephone conversation with Omar Metleg at 7:01pm;

19. the use of a customer’s car, including travelling for some distance in that car at night-time with the headlights switched off;

20. returning to the workshop with Roy Malouf, at approximately 7:36pm, to remove and destroy the consignment packaging;

21. attempting to minimise the extent of his relationship with Mohamed Metleg, Omar Metleg and Roy Malouf, which is contrary to the tenor and content of their interactions. This establishes that the applicant was very close to, familiar with and entrusted by the others involved with the consignment;

22. attempting to flee from the Police, despite the evidence establishing that when the Police entered the workshop they yelled “Police”, “Search warrant”, “Stay where you are”, “Don’t move” and “Go on the ground”, that the applicant looked directly at them and that the Police were wearing Police overalls with the word POLICE emblazoned prominently on the chest; and

23. inferences arising from the value of the concealed drugs and the apparent trust placed in the applicant by others to extract and deliver the concealed substance.

51. The Crown’s written submissions place particular emphasis on the following matters:

1. the applicant’s extraction of the canisters when his evidence was that he was engaged to remove pistons, and it was obvious that no pistons were present in the engine;

2. the way in which the canisters had been secured in the engine, with a cement or plaster of Paris substance and a secured metal plate;

3. the obvious mechanical anomalies which would have clearly indicated that the engine was inoperable;

4. the applicant’s destruction of the key consignment documents by incineration, and disposal of the ashes;

5. the applicant’s discussion with Roy Malouf about disposal of the cardboard box;

6. the applicant’s attempt to evade the Police; and

7. the apparent trust placed in the applicant by Mohamed Metleg, who on the applicant’s evidence he had met only once or twice, by entrusting him with the extraction and delivery of cocaine with a potential street value of $1.2 to $1.3 million.

52. The Crown pointed out that the importers had left the applicant in sole control of the drugs from about 4.30 pm until 7.00 pm on 11 April 2012. In oral argument, the Crown again emphasised the unlikelihood of importers of drugs with a street value in the order of $1.3 million engaging, then leaving the drugs with, someone who was not complicit in the enterprise and whom the apparent principal (Mohamed Metleg) had only met once or twice before. The Crown submitted that it was highly unlikely that the importers would have taken the risk that on ascertaining that the canisters were not pistons the applicant might have disposed of them in ignorance of their value or might have reported what had occurred to the police.

The applicant’s submissions on appeal

53. The applicant submitted that the matters relied upon by the Crown did “no more than support an inference that at some point during the deconstruction [of the engine], the [a]pplicant became suspicious about what the canisters contained” (Applicant’s Written Submissions, [77]). Although acknowledging that a circumstantial case requires the evidence to be considered as a whole, the applicant understandably addressed the individual matters that the Crown relied upon, asserting their irrelevance or seeking to minimise their significance.

54. First, the applicant submitted that there was no evidence that he was aware of many of the matters relied upon by the Crown, for example, the fictitious consignee name and business (“Ron” and “Motor Sports”) and the role of the fictitious person “Ron Bayless”. This does not however render those matters irrelevant. Evidence of them properly formed part of the large volume of material that the jury was required to consider in order to assess the applicant’s conduct and determine whether the Crown had proved beyond reasonable doubt that the applicant believed that the consignment contained border controlled drugs.

55. The applicant particularly emphasised that there was no evidence that he had read any of the documentation associated with the engine or was otherwise aware that the engine had been shipped from overseas. It was however open to the jury to conclude that the applicant must have read, or at least have seen, sufficient parts of the shipping documents which he burned for him to appreciate that the shipment was from the United States. The surveillance footage showing the applicant holding the documents out in front of him before he burned them (Exhibit DD, Transcript p 324). As well, immediately adjacent to the plastic sleeve from which he removed those documents was a prominent bar code document clearly indicating that the shipment was from overseas (see [25] above).

56. In any event, the Crown did not need to prove separately that the applicant knew that the shipment was from overseas. As observed in Wood v R, quoting Chamberlain v The Queen (No 2) [1984] HCA 7; 153 CLR 521 at 535, “it is often the case that ‘one piece of evidence resolves … doubts as to another’” (at [53], see [9] above). This is an aspect of the requirement that the evidence be looked at as a whole. Thus, if the remainder of the Crown’s case were regarded as proving the applicant’s knowledge or belief that the engine contained concealed drugs, it could readily be inferred that he obtained that knowledge from Mohamed Metleg or some other participant in the enterprise and that he became aware by the same means that the drugs were border controlled drugs that had been intended to be illegally imported from overseas.

57. Thirdly, the applicant submitted that it was not of significance that Mohamed Metleg arrived at the applicant’s workshop at 2.53 pm (and again at 4.31 pm) on the very afternoon that the engine was delivered because an obvious possibility was that Mohamed Metleg made arrangements for the delivery. Thus, it was said that there was no inconsistency with the applicant’s case.

58. Fourthly, the applicant submitted that his instruction to Dominic Dos Santos to sign the delivery docket is not of significance because the surveillance video showed that the applicant was busy doing other things when Dominic Dos Santos was signing. However, this submission does not negate the possibility that the applicant instructed Dominic Dos Santos to sign in order to avoid a record of the applicant’s involvement being created.

59. Fifthly, the applicant submitted that his burning of the consignment documents indicates nothing more than a suspicion on his part and in any event that he did not burn the bar code document that was affixed to the box.

60. Sixthly, the applicant submitted that no adverse inference could be drawn from the fact that the applicant drove his customer’s BMW on 11 April 2012.

61. Seventhly, the fact that the lights were turned off at 6.48 pm (if the automatic light switch explanation were rejected), the failure immediately to turn on the car lights, the failure to turn the office lights on (see [31] above), the applicant’s use of the name George and his flight when the police arrived are all equally consistent with the applicant being highly suspicious as they are with him having the relevant knowledge or belief required for the offence.

62. Eighthly, the applicant’s communications with Omar Metleg are said not to be significant because there is no evidence except “for the very phone calls that the Crown rely upon, that Oma[r] Metleg was ever involved in the importation of the Cocaine” (Applicant’s Written Submissions, [99]). However, it was not necessary for the Crown to prove Omar Metleg was involved in the importation. The applicant’s conversations with him stood as part of the evidence against the applicant without it being necessary to draw any conclusion about Omar Metleg’s complicity.

63. Ninthly, the applicant submitted that although “it is demonstrably obvious that [Roy] Malouf was involved in the importation”, there was no evidence that he had any conversation with the applicant about the importation.

53. Tenthly, the applicant submitted that he was closely monitored by the Metlegs and Roy Malouf during the time that he had the engine. This was not however the case between approximately 4.30 pm and 7.00 pm when the applicant had ample opportunity to deal with the cocaine in a manner inconsistent with Mohamed Metleg’s interests or to report the delivery to the police.

54. Eleventhly, the applicant submitted that the applicant’s remuneration for his role in the operation ($500 and a bottle of whisky) was completely inconsistent with his knowing participation in the importation of drugs with a street value in the order of $1.2 million. However, although $845.00 and a bottle of whisky were found in the BMW that the applicant was driving (Transcript p 309), the only evidence of the remuneration was given by the applicant and it was therefore open to the jury to disbelieve him in relation to that (and other matters) as there was no objective or corroborating evidence to support his contention.

55. Twelfthly, the applicant submitted that the proposition that he had no idea what the canisters contained was supported by the fact that it took some hours for the “highly trained United States customs officials, searching for something illegal [to remove] the canisters from the engine” and that they “had no idea what the canisters contain[ed] until such time as they had managed to remove the lid[s]” (Applicant’s Written Submissions, [118]). However, this submission does not answer the Crown’s contention that the whole of the evidence justified the jury’s conclusion that the applicant knew or believed that the engine contained border controlled drugs within the canisters. The Crown’s case did not depend on the applicant’s observation of the canisters in the engine, although that was a material fact because they were clearly not the pistons he had been told to extract. In any event, a comparison with the actions of the United States customs officials is inapt because, whilst no doubt highly trained in searching for drugs, it cannot be assumed that they had a high level of experience in dismantling motor vehicle engines, unlike the applicant who was a trained mechanic.

Resolution of the Application for Leave to Appeal

67. As recorded earlier, my independent assessment of the evidence at the trial leads me to conclude that the Crown proved its case against the applicant beyond reasonable doubt and that the applicant was therefore rightly convicted. In reaching that conclusion, I give weight to the advantage that the jury had over this Court in seeing and hearing the applicant give his evidence and in assessing the whole of the evidence during the course of the 12 day trial. In particular, the jury heard and saw the surveillance footage and recordings, none of which the parties showed or played to this Court. Further, because the applicant’s sole proposed ground of appeal was that the jury’s verdict was unreasonable, it must be assumed that the jury was properly instructed by the trial judge in all respects.

68. Given that the evidence must be looked at in a holistic fashion, it is unnecessary in a case such as the present to identify any single piece of evidence that is inconsistent with the applicant’s innocence. Nevertheless, the evidence of the applicant’s careful destruction of the consignment documents contained in the plastic sleeve affixed to the box containing the engine (see [24] above) is particularly notable. This was powerful evidence against the applicant as the destruction occurred well prior to the applicant dismantling the engine and observing that there were no pistons in it, but instead eight canisters, seven being sealed.

69. Furthermore, the applicant did not seek any explanation (from anyone) of Mohamed Metleg’s instruction to him to “get rid of the paperwork for me”. Instead, he acted upon it in a way that suggested that he had knowledge, or a belief, that the engine contained an illicit substance. The applicant did not simply “get rid of the paperwork” by disposing of it in a nearby bin, he instead set fire to the documents ensuring that they were completely burnt before disposing of the ashes in a wheelie bin in the rear laneway.

70. The applicant gave no adequate explanation for this conduct. Moreover, whilst he conceded that the instruction made him “a bit suspicious”, he did not raise that suspicion in that conversation with Mohamed Metleg, nor in any of the subsequent conversations that he is known to have had that evening. In particular, he did not raise it with Omar Metleg, with whom his recorded communications show that he had a degree of familiarity. Further, he did not suggest that he was too frightened to raise his concerns nor otherwise satisfactorily explain his conduct.

71. I consider the following matters to be particularly significant. I mention them only briefly as they are referred to more fully above, at least once. I do not suggest that any one of them is itself inconsistent with the applicant’s innocence. Rather, it is their cumulative effect, when taken with the applicant’s destruction of the consignment documents and the remainder of the evidence, that constituted a powerful Crown case against the applicant.

• The applicant’s instruction to his employee to sign for the delivery.

• The applicant’s failure to communicate to the Metlegs, Roy Malouf or the police the concern that he asserted that he developed when asked to “get rid” of the consignment documents.

• The similar lack of communication when he again became concerned upon dismantling the engine.

• The applicant’s removal and delivery of the canisters when he had been asked only to remove and deliver pistons.

• His failure to remove the canister that was empty.

• His continuation of work in partial darkness after the workshop lights went off or were turned off.

• His wearing of gloves when dealing with the engine, including after returning to the workshop with Roy Malouf at 7.36 pm.

• His removal of the gloves between the time that the police entered the workshop and his arrest.

• Proceeding with the removal of the canisters despite his asserted concern that something “wasn’t right”.

• His use of the false name “George” when he answered the telephone call from Omar Metleg at 6.52 pm and his failure to explain why he did so.

• His driving of the BMW vehicle down the rear lane with its headlights switched off.

• Engaging in a conversation with Roy Malouf about burning the consignment box on their return to the workshop after the applicant delivered the canisters.

72. To these matters must be added the unlikelihood, as asserted by the Crown, of Mohamed Metleg leaving the valuable consignment in the sole care of the applicant for a number of hours unless he was satisfied that the applicant was privy to the nature of the consignment and willing to deal with it on the intended illicit basis. A similar circumstance was regarded as an important aspect of the circumstantial evidence in Lau v R [2014] NSWCCA 179 at [88].

Orders

73. Leave to appeal should be granted but, for the reasons that I have given, the appeal should be dismissed.

74. JOHNSON J: I agree with the judgment of Macfarlan JA and his Honour's proposed orders. Having undertaken an independent assessment of the evidence, I am satisfied that the Crown proved beyond reasonable doubt the applicant's guilt of the offence charged.

75. BUTTON J: Assessing the whole of the evidence in the trial, there was a very powerful circumstantial case against the applicant.

76. I am satisfied beyond reasonable doubt of the guilt of the applicant of the offence of which he was convicted.

77. I agree with the orders proposed by Macfarlan JA, for the reasons given by his Honour.

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Decision last updated: 22 July 2015