Kaddour v Commissioner of Police
[2023] QDC 247
•27 October 2023 (ex tempore)
DISTRICT COURT OF QUEENSLAND
CITATION: Kaddour v Commissioner of Police [2023] QDC 247 PARTIES: KADDOUR, Bassam
(Appellant)
v
COMMISSIONER OF POLICE
(Respondent)FILENO/S: 1983 of 2022 DIVISION: Appellate PROCEEDING: 222 Appeal ORIGINATING COURT: Magistrates Court at Brisbane DELIVEREDON: 27 October 2023 (ex tempore) DELIVEREDAT: Brisbane District Court HEARINGDATE: 27 October 2023 JUDGES: Chief Judge Devereaux SC ORDER: 1. Orders of the Magistrate confirmed.
2. Appeal against conviction is dismissed.
3. Release on parole to be calculated in accordance with the Order made by the Magistrate.
4. Parties have liberty to apply on question of parole release date.
CATCHWORDS: CRIMINAL LAW – APPEAL – s 222 Justices Act 1886 (Qld)
– appeal against conviction on the ground that the verdict was unsafe and unsatisfactory – where the appellant was charged with possessing tainted property – appellant gave evidence at trial – whether appellant’s evidence should have satisfied the court that there were no reasonable grounds for suspecting that the property was tainted property or derived from any form of unlawful activity
LEGISLATION: A New Tax System (Goods and Services Tax) Act 1999 (Cth)
Criminal Code 1899 (Qld)
Criminal Proceeds Confiscation Act 2002 (Qld)
Drugs Misuse Act 1986 (Qld)
Justices Act 1886 (Qld)
CASES: DeVries v Australian National Railways Commission (1993) 177 CLR 472
Holland v Jones [1917] 23 CLR 149 COUNSEL: Di Carlo S for the appellant. Minuti RD for the respondent. SOLICITORS:
Grasso Searles Romano Lawyers for the appellant. Office of the Director of Public Prosecutions for the respondent.
THE CHIEF JUDGE: The appellant faced four charges in the Magistrates Court. The first was an offence against section 205A of the Criminal Code 1899 (Qld), contravening an order about information necessary to access information stored electronically. Although he pleaded not guilty to that, it really was not contested before the learned Acting Magistrate. He was convicted and that conviction is not challenged on appeal. The facts of it, nonetheless, are relevant to the learned Acting Magistrate’s decision with respect to other charges, particularly the second charge. The second charge, brought under the Criminal Proceeds Confiscation Act 2002 (Qld), section 252, was one of possessing tainted property. Charge 3 was, under the Drugs Misuse Act 1986 (Qld), section 10A, possessing property suspected of having been used in connection with the commission of a drug offence. Charge 4, under the Drugs Misuse Act 1986 (Qld), section 10A, possessing property suspected of having been acquired for the purpose of committing a drug offence.
The charges are all dated 23 April 2021. That is the day on which police executed a search warrant at the appellant’s residence. The learned Acting Magistrate convicted the appellant of all the charges. Most attention has been paid, properly, in my view, today to charge 2. Section 252 of the Criminal Proceeds Confiscation Act 2002 (Qld) provides that:
A person must not –
relevantly:
…possess property that may reasonably be suspected of being tainted property.
Subsection (2) provides that:
If a person is charged with an offence against this section, it is a defence to the charge if the person satisfies the court that the person had no reasonable grounds for suspecting that the property mentioned in the charge was either tainted property or derived from any form of unlawful activity.
As to what is tainted property, section 104 of the same Act provides, relevantly, that tainted property:
…for a confiscation offence –
means, relevantly, (c):
property or another benefit derived by a person from the commission of the offence.
For completeness, I should include (a) and (b) of that subsection. Paragraph (a) is:
property used or intended to be used, by a person in, or in connection with, the commission of the offence.
(b):
or property or another benefit derived by a person from property mentioned in paragraph (a).
Section 104 used the term “for a confiscation offence”. That is defined in section 99 of the same Act, and among the definitions is:
A serious criminal offence or another indictable offence, whether dealt with on indictment or summarily.
What was alleged in this case was that the appellant was in possession of a number of items and money which were, in effect, the proceeds of drug offending. What was required to be proved is that he was in possession of the items, and that was not really in dispute below or on appeal. Then what must be proved is that the property may reasonably be suspected of being tainted property.
I am satisfied on the material that upon my own review of all of the evidence that the appeal should be dismissed because the evidence supported the charge, as it did the other two charges, charges 3 and 4. The appellant gave evidence. In terms of the statute, he undertook to satisfy the Court that he had no reasonable grounds for suspecting the property was tainted or derived from any form of unlawful activity. The learned Acting Magistrate had the benefit of seeing the appellant as well as all of the witnesses, and I have had the benefit only of reading the record, including the exhibits and the benefit of submissions from counsel.
It is enough to say that it was open to the Acting Magistrate to reject the appellant’s attempt to satisfy the Court under subsection (2). That is enough to dispose of the
appeal. What I now intend to do is traverse briefly the evidence and then the arguments, particularly of the appellant, and then traverse, not in too much detail, but in some detail, the Acting Magistrate’s reasoning to explain more fully why I reached the conclusions that I just announced. The result will be that the appeal against conviction is dismissed and that, therefore, there is no issue to consider on the sentence appeal.
The appeal is brought under section 222 of the Justices Act 1886 (Qld). The appeal is by way of re-hearing of the evidence in the proceeding below. There has been no application or need to consider fresh evidence. In such an appeal, the Court must allow or afford respect to the decision of the Acting Magistrate, particularly where that decision is affected by an impression of the credibility of a witness and the Acting Magistrate has had the advantage of viewing it firsthand. That witness, relevantly in this case, though, is the appellant himself. As I have outlined, the primary facts that the Prosecution rely on are not in dispute. I will come to those soon.
On the appeal, the Court must conduct a real review of the proceeding below and the Acting Magistrate’s reasons to weigh any conflicting evidence. Again, in this case, the question is with respect to charge 2, upon the uncontroversial evidence, ought the appellant be convicted, which means was it and is it that the property may reasonably be suspected of being tainted property. It is worth repeating the joint statement of Brennan, Gaudron and McHugh JJ in DeVries v Australian National Railways Commission (1993) 177 CLR 472 at 479:
More than once in recent years, this Court has pointed out that a finding of fact by a trial judge based on the credibility of a witness is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his (or her) advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
The ground of appeal is that the verdict was unsafe and unsatisfactory. It is difficult, really, to articulate in a case like this and in an appeal which is styled by the legislation
as a re-hearing what exactly that ground of appeal means. Under the Criminal Code, it would, on the authorities, require the appeal Court to consider whether the verdict was open to the tribunal of fact. In the circumstances of this case and this legislation, it requires an assessment of the record to confirm or otherwise the correctness of the Acting Magistrate’s conclusion that on the evidence that judgment - that the property may reasonably be suspected of being tainted property - is correct, that is with respect to the second charge – and of course, whether the case is made out on charges 3 and 4.
I have spoken so far, really, only of charge 2. I will come back to the evidence relating to it in a minute. Charge 3, under section 10A of the Drugs Misuse Act 1986 (Qld), relates to the finding of packaging and gloves. The learned Acting Magistrate did not find beyond reasonable doubt that the appellant was guilty of charge 3 in respect of the gloves. Charge 4, under the same provision but a different subparagraph, was that the appellant had in his possession property reasonably suspected of having been acquired for the purpose of committing an offence. That property was plastic bags and digital scales.
The search warrant was obtained on 21 April 2021. The search warrant included authority to require a person to give a police officer access to a storage device and information. The refusal to do that at the time of the execution of the warrant on 23 April 2021 gave rise to the first charge. The warrant was executed at the appellant’s house where he resided with his parents; although, only his mother was present at the time.
The Prosecution called 10 witnesses, largely police officers. The appellant gave evidence as well. With respect to charge 2, the Prosecution, to succeed, had to satisfy the Acting Magistrate that the property, which was Australian currency, a cryptocurrency wallet, gold ingots, a proof of age card, mobile phones, a book with the word “Index” embossed on the cover, and rubber bands, may reasonably have been suspected of being tainted property.
The evidence from officers included the following. This is from the officers who executed the warrant. There was cash in the appellant’s jumper, which was hanging in a wardrobe. A police dog led police to that. There was cash in the appellant’s shorts, which were in a laundry basket. There was a cryptocurrency device in the
drawers. Police discovered what is described in the evidence as a “hide” within the wardrobe, in which there were two phones, one a Samsung brand and the other a Blackberry, two one ounce gold bars wrapped in a receipt from a gold bullion sale, a Queensland identification card, and a notebook in which names had been crossed out.
About 13 Samsung mobile phones and the Blackberry were found in the chest of drawers in the appellant’s bedroom with rubber bands. Nine white envelopes with cash in them were found in the interior lip of a laundry tub. An officer gave evidence that of these nine, two had writing on them. A different officer gave evidence of locating folded-up brown paper bags with some gold dots on it, which had cash in it. Another officer gave evidence that there were four distinct areas where the cash was located through the house.
The Australian Taxation Office witness gave evidence in relation to the appellant’s previous tax returns and the income he declared, and the document examiner gave evidence in relation to the notebook. That document is in evidence. It was exhibited and is part of the record. There is what purports to be a transcription of entries in that. It includes names, lists of names next to the amounts, as in numbers. It is enough for me to say that it is consistent with notes or an account book which one might use if dealing in drugs. It is not alone inconsistent with other explanations.
With respect to the other charges, an officer gave evidence of locating a white plastic bag in a large toolbox in the appellant’s utility vehicle. The evidence was that within the large bag, there were items including two pieces of packaging and gloves. A forensic analysis statement was tendered in proof that one piece of plastic packaging, which was labelled “Esmeralda” had traces of cocaine on it. With respect to charge 4, the property was clipseal bags and digital scales. The digital scales were found in the appellant’s bedroom. The scales were found in the hide in the walk-in wardrobe. I will come back to the appellant’s evidence later. At short notice and during the adjournment of the matter today, the Prosecution prepared a document entitled “Indicia giving rise to reason of suspicion”, and that has been marked for identification in the proceedings, but I will read some of it into the judgment:
The defendant was in possession in total of $84,070, the submission being made that it was a large sum of money to be retained in cash. Twenty-five thousand
dollars was located under a laundry sink, concealed within the frame. Eighteen thousand dollars was hidden in a manhole.
The evidence about that was that the manhole was in the laundry, and the officers searched inside the ceiling, in effect, above the laundry, and that is where an officer found the small brown paper bag or parcel with some gold dots in it, which contained some cash. When asked by police at the start of the search, the appellant positively asserted that there was no money in the house. That was relied on as a guilty lie. When shown the first bundle of cash located, the appellant positively asserted that he kept some money in his bank. The evidence was that police could not locate cash holdings in the appellant’s name at a financial institution.
The Prosecution points to the packaging, which tested positive for cocaine, which was located by the drug detection dog. The Prosecution points to the possession of the clipseal bags, scales, rubber bands, these being relied on as items to weigh and package drugs, and the notebook, which I have referred to, which, on the Prosecution case below and on appeal, was of the form of what is sometimes called a tick sheet, and the evidence that the appellant declared income of a little less than $7000 in financial year 2018 to 2019 and a little more than $35,000 in financial year 2019 to 2020.
Upon my review of the material presented to the learned Acting Magistrate, I am satisfied first in respect of charge 2 that the appellant was proven to be in possession of the property, and that in the circumstances, the property may reasonably be suspected of being tainted property on the basis that it may reasonably be suspected of being property obtained from or for the purpose of drug offending. There was some discussion during the hearing today about the identification and proof of a particular foundational charge, which gave rise to the possession of the property and then the suspicion.
I accept that it is not essential to prove guilt of that charge. Were that the case, the appellant might have been charged with the, no doubt more serious charges of possession or supply, if not trafficking in drugs.
It then fell for the appellant to exercise subsection (2) of section 252 of the Act. It is enough to say that, having read the appellant’s evidence, it was open to the learned
Acting Magistrate - on the balance of probabilities - not to accept that it discharged the appellant’s onus. I reach the same conclusion. In a moment, I will refer in more detail to the learned Acting Magistrate’s reasons.
It must be accepted that his Honour occasionally used unnecessary language, but it made sure to be stated that his Honour completely rejected as implausible the appellant’s account, and particularly giving such weight to the fact that his Honour had the appellant in front of him, I am really persuaded to the same result. In other words, the appellant’s account did not satisfy the Court that he had no reasonable grounds for suspecting the property was either tainted property or derived from unlawful activity.
In written outline, the appellant asserts that there were errors of law which the learned Acting Magistrate made which make the convictions unsafe and unsatisfactory: the first said to concern an opinion given by the police officers which were not properly admissible as expert evidence, and the second – the learned Acting Magistrate’s misunderstanding of what it means to take judicial notice of a fact. As to the first point, this concerns the packaging on which was found the trace of cocaine. The learned Acting Magistrate said this to one of the officers:
...made mention of his purported knowledge that the word “Esmeralda” endorsed on the packaging seized by police is a street name for cocaine, which he had learned at the drug enforcement agency seminars and the like.
This is what is referred to as a conclusory statement by a police officer that was wrongly taken into account, but as the appellant notes, the learned Acting Magistrate expressly said he did not believe it appropriate to place any weight on that uncorroborated evidence and did not take it into account. Nonetheless, reliance is placed on other statements during the evidence where officers referred to packaging being consistent with their training and experience.
I am not satisfied that it has been shown that this diverted the learned Acting Magistrate from considering the material and the proper test on the admissible material, and in any case, as I have said on my review of the case, leaving aside any such inadmissible opinions, the verdict should be confirmed.
With respect to the wrong taking of judicial notice, I am helpfully referred to the reasons of Isaacs J in Holland v Jones [1917] 23 CLR 149 at 153 to this effect:
The only guiding principle – apart from statute – as to judicial notice which emerges from the various recorded cases appears to be that wherever a fact is so generally known that every ordinary person may be reasonably presumed to be aware of it, the Court “notices” it, either simpliciter if it is at once satisfied of the fact without more, or after such information or investigation as it considers reliable and necessary in order to eliminate any reasonable doubt.
The basic essential is that the fact is to be of a class that is so generally known as to give rise to the presumption that all persons are aware of it. This excludes from the operation of judicial notice what are not “general” but “particular” facts. As to “particular” facts, even the Judge’s own personal knowledge is not to be imported into the case. To import knowledge of a particular fact in issue would be to import evidence, in the strict sense, regarding a matter as to which the Court is supposed to have no knowledge whatever of its own.
But if the fact is of such “general” character as to give rise to the presumption mentioned, then a Judge is justified in “noticing” it. He must, however, be fully satisfied of the fact and must be cautious to see that no reasonable doubt exists.
One of the matters that the learned Acting Magistrate referred to – and this was when dealing with the appellant’s evidence – concerned BAS statements and the assertion that businesses are required to lodge quarterly BAS statements, the relevance apparently being that there was no evidence that the appellant lodged such statements. His Honour was wrong about that. I need not go into the provisions of the legislation A New Tax System (Goods and Services Tax) Act 1999 (Cth). There is no dispute that that was an incorrect statement, but, again, the learned Acting Magistrate expressly excluded it from his ultimate considerations. In the reasons, after referring to the evidence of the ATO witness and the tax returns over several years – for completeness, I will quote a whole paragraph:
As an aside, I observe that whereas from the perspective of tax returns per se, I have no argument with that confirmation made by the – [the witness] to
[counsel’s] question. It was not altogether correct. As a matter of judicial notice, I have an awareness that quarterly business activity statements have to be lodged by all businesses and so, to that extent, there would be a need for the defendant to disclose income earned from employment or other services in accordance with the dates BAS were due; however, I think nothing critical turns on any of that.
It is that last statement which the respondent relies on to submit that no error was made with respect to the BAS statement. I am quite satisfied that no operable error arose. The other errors in exercising judicial notice referred to statements about the appellant ’s use of express post to transfer cash and statements about the appellant’s evidence that he conducted all of his businesses in cash. The relevant parts are collected in one area of the reasons, so I will read the whole paragraph:
I move to issues of significant concern arising expressly out of the evidence provided by the defendant. I take judicial notice of the fact that, in the usual course of business, credit card and offline transfers from a bank account are convenient, safe measures of paying for items where the transaction ensures there is a record of the transaction, and further, it is set out plainly and chronologically for tax preparation purposes. Accordingly, the excessive and/or strict use of cash clearly appears to be counterintuitive and/or atypical for a legitimate business dealing in retrofitting of phones.
I take judicial notice of the fact that every piece of transaction document I have received for many years, no matter how complex the product coding number might be, sets out, among other things, the date of purchase, the time of purchase, the product and how much was paid. In stark contrast is the defendant’s purported, legitimate business for which he did not produce a single business record.
The appellant submits that the phrase that the learned Acting Magistrate used, “the usual course of business”, of course, allows for other courses to be employed and that this is an impermissible jump. And, in particular, the use of the learned Acting Magistrate’s own personal experience breached the Court’s capacity to take judicial notice of a fact.
The learned Acting Magistrate did not demonstrate qualification for saying that using cash was atypical for a particular business, such as retrofitting phones. It is submitted by the respondent that the appellant did not take judicial notice of these matters. The real resolution of this point, in my opinion, is that it is open, these days, to consider that the strict use of cash is unusual in businesses. And, ultimately, the Acting Magistrate did nothing more than that.
I am not satisfied that this demonstrates an error in the reasoning, such that it infects, fatally, the learned Acting Magistrate’s conclusion in rejecting the appellant’s evidence and, thereby, rejecting – thereby being unsatisfied that the appellant had satisfied his onus under subsection (2) of section 252 of the Act. As I have just stated, I, myself, would consider it unremarkable to be aware of the ubiquitous use of non- cash transaction facilities. As to the use of the post for transferring large amounts of cash – which was part of the appellant’s evidence –again, I am not satisfied that this demonstrates some error in the Acting Magistrate’s reasoning.
At one point in the reasons, the learned Acting Magistrate strayed into consideration of what his Honour understood to happen when one uses the registered post and said:
I use judicial notice to confirm that the centre must disclose in writing the contents of the package being sent.
In this paragraph, his Honour, in my respectful opinion, strayed close to not just irrelevant reasoning, but a reasoning that could have been dangerous because it was to the effect that, had the appellant used registered post, and that was not the evidence, the appellant would have had to declare the contents of the packaging, and there was no evidence of that, and that it was not properly judicial notice but was the learned Acting Magistrate’s expression of his Honour’s own experience. And so the danger is that the reasoning goes further, the appellant did not use registered post because he did not want to disclose the contents because he knew that he was conducting something unlawful. All of that would have been a wrong use of judicial notice. The import by the bench of evidence was irrelevant – but it is fortunate that in the next paragraph, his Honour said:
In any event, in my view, one need not be too concerned with Australia Post or registered post or Aus Track, because I find that the entire story is a fanciful,
uncorroborated, unbelievable fiction fabricated by the defendant. However, at first instance, lied freely to police and freely and extensively thereafter to his lawyers.
I have traversed the evidence led in the Prosecution case. In the appellant’s evidence, the Court was told that he was self-employed and qualified as a plumber, that he owns property at Browns Plains, Marsden and Logan with tenants and mortgages owing, his plumbing work is variable, that he has no household living expenses, that he earned additional income from selling Samsung mobile phones and that he had been running this business for two to three years. The phones would be bought by him, or sent to him by his cousin, whom he named and whose address he gave, which was in Victoria. His cousin left the business in 2021 and another person replaced his cousin as the source of the phones.
The appellant did not know the other person by name. They communicated by encrypted messaging. The appellant had that many phones at the home because was stockpiling them. The business, in effect, was, having purchased new phones, he would install on them an application called CypherChat. When that business closed, the application he installed was called Stealth. These are both encryption software and he would then sell the phones. The phones would be sold for $1500. The phones cost between $200 and $300 dollars to purchase from shops. Customers would contact him directly, or he would receive orders by his cousin.
He would receive a message to deliver a phone or, according to the language used, do drops. He sold approximately 10 phones a month. His profit personally being
$150 to $200. He would keep that at his home in cash. The fee would be the same, whether this came through his cousin or directly to him, that is, he would send money to his cousin in any case, as I understand the evidence. When the cousin ceased operating, another person replaced him, as I have already said. The appellant gave a reason why his cousin stopped taking part in the business, which was not controversial. The company, CypherChat, shut down in 2021, and, as I have said, the appellant used a different program after that, called Stealth. Now, the appellant said he would send his cousin cash in Express Post envelopes. He would remove his fee for participating in the business before sending his cousin the cash. He would wait
until he had a significant amount of money before posting, for example, $5000, $6000 or $7000:
Ten sales worth.
As to the envelopes which were found which had letters and numbers on them, the appellant said they are records of persons who were buying phones. He said that the envelopes, cash and phones were variously hidden in the manhole cover, cabinets and cupboards. As to the book with the index written on it, it was used to keep business records for the phone business. The clipseal bags he said were used, individually portioned marijuana, which he recreationally used. He denied using the scales or rubber bands for any drug-related purpose and he denied any involvement with cocaine. He denied knowledge of the packaging and the term “Esmeralda”. He said he used the gloves for work.
Briefly turning to the learned Acting Magistrate’s reasons. His Honour correctly identified that the issue for charge 2 was whether the property may reasonably have been suspected of having been tainted property. His Honour correctly identified the issues for charges 3 and 4, namely, whether the items for charge 3 were used in connection with the commission of the drug offence, and for charge 4, had been acquired for the purpose of committing an offence. His Honour recorded the appellant’s statement, when first confronted with cash, that it was money that had been saved.
His Honour reviewed the evidence by the Prosecution witnesses; it is unnecessary for me to repeat that. It was within that review that his Honour made the aside reference to business activity statements. His Honour referred to the notebook with the word “index” on it and confirmed that it shows columns with names, amounts and weights, and made other remarks about it. His Honour then referred to the appellant’s evidence and recounted it. No point was taken with this aspect of his Honour’s findings, but his Honour did say, with reference to the named person who took part in the phone business with the appellant:
I would have thought that [the other person] was a critical witness of the defendant’s account, however he was not called as a witness, as was the case with [that person’s] successor partner in the business.
No point was taken, perhaps because in giving evidence, the appellant was attempting to discharge an onus. I think it is enough to say that the failure to call that person would not be a matter to give much weight at all to in the particular circumstances of a summary trial, and nonetheless, it was open to the learned Acting Magistrate to make that comment. The learned Acting Magistrate remarked about the absence of the production of any business records. His Honour went over the appellant’s evidence, and as I have said before, it was in this part of the reasons that his Honour referred to the use of online or credit card facilities in businesses. His Honour made strong findings against the appellant, such as:
I am incredulous that the defendant cannot recall for certain then what “SWQ1 return 400” actually meant.
This was a reference to one of the envelopes with writing on it. As to the appellant’s explanation of paying his cousin partner cash sent through the mail in such large amounts, it is enough to say the Acting Magistrate did not find that a credible explanation, and as I have said, that was open to the Acting Magistrate. His Honour said:
It simply defies belief that the money would be hoarded in these amounts rather than dispatched to the former the business partner.
That is, of course, a slightly different matter, but again, a finding open to the learned Acting Magistrate, if there was to be any credence given to the appellant’s implausible account of his possession of the money and phones. In short, the learned Acting Magistrate concluded that the account of the phone business – if I may call it that – was simply inconsistent with the amounts of money found throughout the home. It was inconsistent with the appellant’s evidence about any income he had from that business.
Also, his Honour found that it was not credible that the appellant would pay his cousin partner a fee, even if he himself sourced the sale of a phone, and that the appellant could not say the name of his new partner in that business after his cousin left, the learned Acting Magistrate found implausible and not believable. The appellant’s evidence also included that when he would deliver a phone, he would receive a message, and he would pay the driver. His Honour, not unreasonably, remarked that:
That was hard to understand, that piece of evidence.
But the essence of the findings was that the account of the type of business, the complete use of cash and the failure of record keeping are completely undermined – or was completely unpersuasive. In other words, there was no evidence in support of this so-called phone business except, of course, the presence of the phones, and as I have already found, it was compelling to find that that property may reasonably be suspected of being tainted property, meaning, for the purposes of this charge, the product of an offence or for the purpose of an offence.
The learned Acting Magistrate, in my respectful submission, neatly summarised some of the indicia of a commercial drug sale enterprise. There was the $18,000 found – the initial finding in the home. The evidence was the appellant provided a version that he did store money at home as well as in the bank, and I have already said that there was evidence to undermine that as an assertion and the tax records relating to the appellant’s income.
There was simply too much money in the house for any other explanation. It was not, of course, necessary to find that the appellant was a drug dealer or a drug trafficker. His Honour was satisfied that the use of phones was consistent with drug offending; particularly those so-called Cypher phones, and concluded that they may reasonably be suspected of being tainted property – similarly, the notebook and the other items, the cryptocurrency wallet and the gold ingots.
In my view, those conclusions are open and I confirm them on my review of the evidence, as I do with the events of charges 3 and 4, and that is why, at the outset, I indicated that the appeal would be dismissed. Now, in terms of orders, that requires me to confirm the orders of the Acting Magistrate, and so the appeal is dismissed. The practical effect of that is that the appellant’s bail is expired by his proper attendance today in court, and he is therefore required to return to custody and continue the sentence, and his release on parole is to be calculated according to the order made by the learned Acting Magistrate at first instance.
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