Mohana v R

[2023] NSWCCA 61

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Mohana v R [2023] NSWCCA 61

Hearing dates:

10 October 2022

Date of orders:

22 March 2023

Decision date:

22 March 2023

Before:

Simpson AJA at [1]
Davies J at [111]
Wilson J at [112]

Decision:

1. Leave to appeal granted

2. Appeal dismissed

Catchwords:

CRIME – appeals – appeal against conviction – supply of prohibited drug – trial by judge alone – unreasonable verdict – application of Dansie v The Queen – inutility of a ground asserting inadequacy of reasons or fact-finding where verdict is said to be unreasonable

CRIME – appeals – appeal against conviction – unreasonable verdict – Crimes Act ss 93S(1) and 93T(1) – knowingly participate in a criminal group – whether proof of a “criminal group” requires proof of a “shared objective” – whether shared objective must relate to commission of a single serious indictable offence rather than a series of connected offences – where asserted participants in criminal group included both vendors and purchasers of prohibited drug – that purchasers sought to engage in further and distinct supply of drugs does not preclude finding of shared objective – no error

CRIME – appeals – appeal against conviction – unreasonable verdict – knowingly take part in supply of prohibited drug not less than a large commercial quantity – no drugs found by investigating authorities – recorded and intercepted audio and video surveillance sufficient to ground conviction

CRIME – appeals – appeal against conviction – trial by judge alone – failure to make a necessary finding of fact – unreasonable verdict – knowingly deal with the proceeds of crime – asserted failure by trial judge to identify moneys with which applicant dealt – relevant moneys sufficiently identified despite no explicit reference – no error

Legislation Cited:

Crimes Act 1900 (NSW) ss 93S, 93T, 193B

Crimes (Sentencing Procedure) Act 1999 (NSW) s 53A, Pt 4 Div 1A

Criminal Appeal Act 1912 (NSW) s 5

Criminal Procedure Act 1986 (NSW) ss 132, 133, 166

Drug Misuse and Trafficking Act 1985 (NSW) s 25, Sch 1

Surveillance Devices Act 2007 (NSW)

Telecommunications (Interception and Access) Act 1979 (Cth)

Cases Cited:

Czako v R [2015] NSWCCA 202

Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

MFA v The Queen (2002) 212 CLR 606; [2002] HCA 53

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

SKA v The Queen (2011) 243 CLR 499; [2011] HCA 13

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Category:

Principal judgment

Parties:

Bilal Mohana (Applicant)
The Crown (Respondent)

Representation:

Counsel:
P Lange (Applicant)
I Nash (Respondent)

Solicitors:
Kings Law Group (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s):

2017/315559

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

26 March 2021

Before:

Townsden DCJ

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 14 August 2020, Bilal Mohana (“the applicant”) was convicted of one count of supplying a prohibited drug (cocaine) in an amount not less than the large commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW); and one count of dealing with the proceeds of crime (“money laundering”) in excess of $100,000, knowing that the money was the proceeds of crime, contrary to s 193B(2) of the Crimes Act 1900 (NSW). The applicant was tried in a judge alone trial in the District Court under s 132 of the Criminal Procedure Act 1986 (NSW).

The applicant also pleaded not guilty to a charge of participating in a criminal group, knowing that his participation in that group contributed to the occurrence of criminal activity, an offence against s 93T(1) of the Crimes Act. That charge was placed on a certificate under s 166(1)(b) of the Criminal Procedure Act 1986 (NSW). Following the convictions on the two counts on the indictment, the trial judge found the applicant guilty of the further offence, relying, by agreement of the parties, on the evidence in the trial.

The applicant sought leave to appeal against the conviction on each count on the following grounds:

1. the verdict in respect of count 1 [the supply count] was unreasonable;

2. his Honour failed to comply with the requirements of s 133 of the Criminal Procedure Act 1986 by failing to identify the monies with which the applicant dealt [in respect of the money laundering count]; or

3. alternatively, the verdict in respect of count 2 [the money laundering count] was unreasonable;

4. the verdict in respect of the s 166 matter was unreasonable.

The Court (Simpson AJA, Davies and Wilson JJ agreeing) granting leave to appeal, dismissing the appeal:

As to the supply count

1. The applicant’s participation in the supply of a prohibited drug, the identity of the prohibited drug (cocaine) and the relevant quantity of the drug that was supplied was established to the criminal standard. The evidence was thus sufficient in nature and quality to eliminate any reasonable doubt that the applicant was guilty of the offence: [83] (Simpson AJA), [111] (Davies J), [112] (Wilson J).

As to the money laundering count

1. The function of a Court of Criminal Appeal in determining an appeal on the unreasonable verdict ground is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of the offence charged. On an appeal against conviction after trial by judge alone, the Court does not examine the reasons for conviction in order to determine whether error is shown. This raises a question as to the utility of a ground asserting inadequacy of reasons or inadequacy in the fact finding exercise, where the ground is coupled with a ground that contends that the verdict is unreasonable: [14], [33] (Simpson AJA), [111] (Davies J), [112] (Wilson J).

   Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728, applied.

2. In any event, the money the subject of count 2 was sufficiently identified by the trial judge: [88] (Simpson AJA), [111] (Davies J), [112] (Wilson J).

3. The evidence was sufficient in nature and quality to eliminate any reasonable doubt that the applicant was guilty of the offence: [92] (Simpson AJA), [111] (Davies J), [112] (Wilson J).

As to the s 166 matter (participation in a criminal group)

1. Proof of the existence of a “criminal group” requires proof that members of the group (three or more individuals) have a “shared objective”: [102]-[103] (Simpson AJA), [111] (Davies J), [112] (Wilson J).

   Czako v R [2015] NSWCCA 202, applied.

2. The definition of “criminal group” in s 93S(1)(a) of the Crimes Act requires identification of conduct that constitutes a single serious indictable offence. Identification of a series of disparate, even if connected, offences will not be sufficient: [107] (Simpson AJA), [111] (Davies J), [112] (Wilson J).

3. Although the objective of the third alleged participant in the asserted criminal group was to obtain material benefits from selling prohibited drugs to the applicant, and the applicant’s objective was to obtain material benefits from selling prohibited drugs to others, the applicant nevertheless sought to obtain material benefits from the conduct of the third alleged participant in selling the drugs to the applicant. Thus, the supply of drugs by the third alleged participant to the applicant was a serious indictable offence from which each of the three participants shared the objective of obtaining material benefits: [108] (Simpson AJA), [111] (Davies J), [112] (Wilson J).

JUDGMENT

1. SIMPSON AJA: On 6 May 2020 the applicant, Bilal Mohana, was arraigned in the District Court on an indictment containing two counts. The first count was of an offence of supplying a prohibited drug (cocaine) in an amount not less than the large commercial quantity, an offence against s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“the DMT Act”) for which, pursuant to s 33(3)(a) thereof, a maximum penalty of imprisonment for life is prescribed. Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”), a standard non-parole period of 15 years applies. By Sch 1 of the DMT Act, 250 grams of cocaine constitutes a commercial quantity; 1 kilogram constitutes a large commercial quantity. The second count on the indictment was of an offence of dealing with the proceeds of crime (“money laundering”) in excess of $100,000, knowing that the money was the proceeds of crime. That was an offence against s 193B(2) of the Crimes Act 1900 (NSW), to which a maximum penalty of imprisonment for 15 years is applicable. The indictment alleged that each offence was committed between 1 July and 18 October 2017.

2. Jointly arraigned with the applicant on the same indictment were Hussein Mousselmani (who was charged with identical counts) and the applicant’s brother, Hassun Mohana, who was charged with one count of knowingly taking part in the supply of an amount (unspecified) of a prohibited drug (cocaine) under s 25(1) of the DMT Act, and one count of money laundering, in an amount in excess of $50,000, knowing that it was the proceeds of crime (an offence against s 193B(2) of the Crimes Act).

3. Each accused entered a plea of not guilty to each count. Pursuant to s 132 of the Criminal Procedure Act 1986 (NSW), each accused elected for, and the Crown consented to, trial by judge alone. By s 133(1) of the Criminal Procedure Act a judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury. By subs (2) of s 133, a judgment by a judge following trial by judge alone must include the principles of law applied and the findings of fact relied upon for the verdict delivered.

4. Evidence and submissions in the trial concluded on 8 July 2020. On 14 August 2020, the trial judge delivered his verdicts. His Honour found both the applicant and Hussein Mousselmani guilty of each count on the indictment against them, and Hassun Mohana not guilty of the counts against him. His Honour gave reasons for the verdicts.

5. Additionally before the court, pursuant to s 166(1)(b) of the Criminal Procedure Act, was a certificate that the applicant was also charged with participating in a criminal group, knowing that his participation in that group contributed to the occurrence of criminal activity, an offence against s 93T(1) of the Crimes Act, to which the applicant also entered a plea of not guilty. The parties agreed that, following the verdicts of guilty on the two counts on the indictment, that count could be dealt with on the evidence in the trial. The trial judge found the applicant guilty of that offence.

6. On 23 March 2021 the trial judge, pursuant to s 53A of the Sentencing Procedure Act, sentenced the applicant to an aggregate term of imprisonment of 8 years and 1 month, with a non-parole period of 4 years and 5 months and, as required by subs (2) of s 53A, stated the sentences that, if sentencing separately for the offences, he would have imposed. These were, with respect to the supply offence, imprisonment for 7 years and 7 months with a non-parole period of 4 years and 2 months; with respect to the money laundering offence, imprisonment for 3 years and 7 months; and with respect to the offence of participating in a criminal group, imprisonment for 1 year and 10 months.

7. The applicant now seeks leave to appeal against the conviction on each count. Leave is required because the grounds on which he seeks to appeal involve questions of fact, or, at most, questions of mixed fact and law: Criminal Appeal Act 1912 (NSW) s 5(1)(b). He has not sought leave to appeal against the sentence imposed.

Grounds of the proposed appeal

8. The grounds of the proposed appeal are pleaded as follows:

“(i)   the verdict in respect of count 1 was unreasonable;

(ii) His Honour failed to comply with the requirements of s 133 Criminal Procedure Act 1986 by failing to identify the monies with which the applicant dealt; or

(iii)   alternatively, the verdict in respect of count 2 was unreasonable;

(iv) the verdict in respect of the s 166 matter was unreasonable.”

Ground (ii) may be taken to be directed to the second count, money laundering.

9. As was accepted in written submissions, the function of an appellate court determining a ground of appeal that asserts the unreasonableness of a guilty verdict is well established: see M v The Queen (1994) 181 CLR 487; [1994] HCA 63 ("M”); MFA v The Queen (2002) 212 CLR 606; [2002] HCA 53; SKA v The Queen (2011) 243 CLR 499; [2011] HCA 13 ("SKA”); The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 (“Baden-Clay”); Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12. Those principles (as originally stated by Mason CJ, Deane, Dawson and Toohey JJ in M at 493, and repeatedly reaffirmed in subsequent decisions) are:

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a Court of Criminal Appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the Court must ask itself is 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. But in answering that question the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the Court must pay full regard to those considerations.”

10. The function of the appellate court is to make its own:

“… independent assessment of the evidence, both as to its sufficiency and quality”:

SKA at [11]-[14], [37], [80]; Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 at [12].

11. In undertaking that task, where the verdict is the verdict of a jury, the appellate court must bear in mind the constitutional role of the jury in determining questions of guilt or innocence and the advantages of the jury in having had the opportunity to observe the witnesses as they gave their evidence: (Baden-Clay at [65]).

12. The function of the appellate court is not different where the verdict has been given following a trial by judge alone: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [12], [82]-[83]; Dansie at [15]. The consideration that the trial judge has had the advantage of seeing and hearing the witnesses remains apposite. Both Filippou and Dansie involved charges of murder heard and determined in judge-alone trials.

13. In Dansie at [7] the High Court unanimously stated that the function of a Court of Criminal Appeal in determining an appeal on the unreasonable verdict ground is:

“…to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of [the offence charged].”

The Court expressly cautioned against over reliance on the reasons of the trial judge, urging “circumspection” in that respect at [16]. That is because findings of fact made by the trial judge might “distract” or “divert” the appellate court from its task of undertaking “the requisite independent assessment of the evidence” (at [16]), and of determining for itself “whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused was guilty of the offence” (at [7]).

14. The due application of these principles raises a question as to the utility of a ground asserting inadequacy of reasons or inadequacy in the fact finding exercise as is to be found in proposed ground (ii), where the ground is coupled with a ground that contends that the verdict is unreasonable. That is because, if the unreasonable verdict ground is upheld, a verdict of acquittal must be entered; if the unreasonable verdict ground is rejected, the appellate court has satisfied itself, on its own independent assessment of the evidence, that the applicant was guilty of the offence charged and was properly convicted. In doing so, it has necessarily made the relevant findings of fact, and rectified any deficiency in the trial judge’s fact finding exercise. In those circumstances, there is little scope for grounds complaining of deficiencies in fact finding or inadequacy of reasons when it is also contended that the verdict is unreasonable.

15. As I have already said, the task of this Court in determining an unreasonable verdict ground after a judge alone trial is not to examine the trial judge’s reasons for the guilty verdict or verdicts, but, rather, to determine for itself whether the applicant has been shown, on the evidence, to be guilty of the offence or offences charged: Dansie at [16]. In doing so, the court is entitled to take into account, and rely on, findings of fact made by the trial judge about which no issue is taken in the appeal. But:

“… the question for the court in every case will remain whether the court’s assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence in the trial”: Dansie at [16].

16. Bearing all this in mind, I proceed to my assessment of the case brought by the Crown against the applicant.

The Crown case

17. Put briefly, the Crown case was that the applicant and Hussain Mousselmani were engaged in a joint criminal enterprise that involved the supply of not less than the large commercial quantity of cocaine. It is apparent from the evidence in the Crown case that the applicant and Mousselmani were under suspicion of drug dealing from about June or July of 2017. For some time they were under physical surveillance. On 25 July 2017 warrants were issued under the Surveillance Devices Act 2007 (NSW) authorising video and audio surveillance of, inter alia, a Mitsubishi Lancer motor vehicle registered to Victoria Kerr (the applicant’s partner), and used by both the applicant and Mousselmani. Pursuant to the warrants, tracking devices were installed in that (and another) vehicle. A number of warrants were also issued under the Telecommunications (Interception and Access) Act 1979 (Cth) authorising members of the NSW Police Force to intercept communications made on mobile telephones used by the applicant and Mousselmani. Video and audio recordings from the device or devices installed in the Mitsubishi Lancer of conversations between the applicant and Mousselmani on a number of days in September and October 2017 constituted the bulk of the evidence against those two accused.

18. It is fair to say that the conversations recorded are in a largely unfamiliar argot. Some of the recordings are indistinct. As is common, transcripts were prepared by the prosecution and marked for identification. After some negotiation, a substantially agreed version (MFI 57) was produced. Having regard to the nature of the language used in the conversations, a police officer (Detective Inspector Alasdair Dipple) expert in the illicit drug trade gave evidence. Detective Inspector Dipple’s evidence was admitted over objection and was subject to repeated objections during the trial. No proposed ground of appeal challenges the decision to admit his evidence, or the individual components of his evidence to which objection was taken.

19. On 18 October 2017 a search warrant was executed at the applicant’s residence at an inner west Sydney suburban address. No cocaine was located. An amount of Australian currency was located. Also located was a cardboard box containing numerous resealable plastic bags.

20. The applicant was arrested at about 1.15 pm on 18 October 2017 at a café at Arncliffe. The arresting officer told the applicant that he was under arrest for supplying prohibited drugs. He was searched. No drugs were found in his possession. He declined to take part in an interview.

17. As indicated above, the principal basis of the Crown case was the video and audio recorded pursuant to the surveillance device warrants placed in the Mitsubishi Lancer, together with the interpretation placed on some of the language used in the recorded conversations by Det Insp Dipple, and some evidence by Det Insp Dipple as to practices within the illicit drug trade. It will be necessary to set out, in some detail, some of the conversations recorded. The majority of those relevant are conversations between the applicant and Hussein Mousselmani, although there are, at times, other participants.

18. To be clear from the outset, it is common ground that, in no conversation recorded, can the word “cocaine” be heard.

Count 1:   Drug Supply

Ground 1: was the verdict on the drug supply count unreasonable?

23. Proof of the offence the subject of Count 1 on the indictment necessitated proof of three elements:

1. that the applicant supplied (or was engaged with Mousselmani in the supply of) a prohibited drug;

2. that the prohibited drug was cocaine, and

3. that the quantity supplied was not less than the large commercial quantity (that is, one kilogram).

   24. At trial, while no express admissions or concessions were made, it was not seriously disputed that the recorded conversations established, beyond reasonable doubt, that the applicant and Mousselmani were together engaged in the supply of a prohibited drug or drugs. The issues at trial were identified by counsel in closing submissions as:

   “Firstly, the Crown has failed to establish on the balance of probabilities that the Court has jurisdiction with respect to the charge; secondly, the drug has not been established beyond reasonable doubt; thirdly, an act of supply has not been established beyond reasonable doubt; and fourthly, the Crown’s circumstantial case does not assist on the critical elements.”

   25. The “jurisdictional issue” concerned whether the Crown had established that any drug supply had taken place in New South Wales. It was resolved against the applicant and does not arise in the proposed grounds of appeal. It can be put aside. The fourth identified issue was and is somewhat mysterious. The second identified issue concerned the identification of the drug the subject of the conversations. That became a – if not the – principal issue in the present proceeding. No submissions in this application were directed to the third identified issue, that is, whether “an act of supply” was established to the requisite (criminal) standard.

   26. The applicant’s position in relation to what was established by the recorded conversations did not change. In this Court, when asked directly about this, counsel replied:

   “My recollection, as confirmed by those instructing me, is that there was no direct concession that there was drug dealing involved because your Honours may recall the submission being advanced that this was mere puffery, I think might’ve been [the] expression used by counsel below, but the thrust of the argument of course was concerning the capacity of the Crown to prove the nature of the substance. I approach the argument today on the basis that it was open, to use the old expression, to his Honour to find that the applicant was engaged in drug dealing and I don’t suggest that your Honours would make a different finding.”

   27. I have read with care the transcripts of the various conversations contained in MFI 57 and viewed the video footage. On this application no issue was taken as to the accuracy of the transcripts as contained in MFI 57. I am amply satisfied that the conversations recorded implicate the applicant (and, to the extent that, on this application, it is relevant, Mousselmani) in the supply of a prohibited drug or prohibited drugs.

   28. The Crown sought to prove that the drug the subject of the supplies was cocaine through the evidence of Det Insp Dipple, to which I will refer below.

   29. The Crown sought to prove the quantity of the drug supplied on two alternative bases. First, it contended that the recorded conversations established, on at least one occasion, a single supply of cocaine in excess of 1 kilogram. That would be sufficient to prove the applicant’s guilt of the offence charged. The alternative approach was what was called “the aggregation approach” – proof of a number of supplies, each of less than 1 kilogram, but together totalling more than 1 kilogram.

   30. On either approach, the Crown had to prove, to the criminal standard, that the drug the subject of the conversations was cocaine. That was necessary for two reasons – first, because cocaine was expressly asserted, in the indictment, to have been supplied; second, because Sch 1 of the DMT Act prescribes, in respect of different prohibited drugs, different quantities that constitute a large commercial quantity. This was the first, and principal, issue debated in this application. To prove the applicant’s guilt of the offence the subject of Count 1, it was necessary that the Crown prove that the quantity supplied was not less than 1 kilogram.

   31. The trial judge explained how and why he came to the conclusion that the drug supplied was cocaine. In written submissions, the applicant invited this Court to find error in his Honour’s reasoning. That invitation can be found in several paragraphs of the written submissions. For example, at pars 17 and 18 it was submitted that the trial judge relied upon three principal facts to reach his conclusion, and that those facts, even taken together, were incapable of establishing the conclusion reached. (The three facts were (i) that cocaine is packaged in a brick form, (ii) that in 2017 the price of cocaine was approximately $200,000 per kilogram, and (iii) that, in a conversation recorded in October 2017, the applicant spoke about “the rack” in the context of a drug transaction, “rack” being language used to denote cocaine. The significance of these “facts” will emerge below.)

   32. At par 29 it was submitted that an observation made by the trial judge (that there was no reference to any other drug on the surveillance footage) was erroneous. At par 34 criticism was made of what was said to be the trial judge’s failure to refer to a particular argument advanced by counsel for the applicant.

   33. The approach so taken was to invite this Court into error. It is quite clear that, on an appeal against conviction after trial by judge alone, this Court does not examine the reasons for conviction in order to determine whether error is shown. As indicated above, the task of this Court is to make an independent assessment of the evidence in order to determine whether it is sufficient, in nature and quality, to prove beyond reasonable doubt that the accused person was guilty of the offence charged. In doing so, it is legitimate for the Court to take into account any findings of fact that are not challenged, and, particularly, any assessment of the credibility or reliability of witnesses that are influenced by demeanour. In Dansie, the High Court was highly critical of an appellate court (not this Court) that had taken the approach of examining the trial judge’s reasons for the finding of guilt. Although it has been summarised above, it is useful to set out the whole of [16] of the reasons in that case. The High Court said:

   “16   Where the trial has been by judge alone, the reasons of the trial judge must be approached by the court of criminal appeal performing that function with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence. The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue was taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings. But the question for the court in every case will remain whether the court’s assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial.”

   34. As it happens, in this case there are few, if any, findings that fit into the category of facts dependent on the assessment of the credibility of witnesses that are sustained by the advantage of the trial judge in seeing and hearing the witnesses. The conversations on which the Crown relied (and relies) to establish that the applicant was engaged in the supply of in excess of the large commercial quantity of cocaine were the recorded conversations – as to the content of which, ultimately, there was little or no dispute – and the interpretation placed on them by Det Insp Dipple. Det Insp Dipple’s evidence was, in some respects, contested. But the trial judge’s acceptance of Det Insp Dipple’s evidence does not appear to have depended on any assessment by reference to demeanour; rather, his Honour appears to have relied on Det Insp Dipple’s expertise. In the performance of the task committed to this Court, nothing is to be gained by parsing and analysing the reasoning of the trial judge. It is best to turn directly to the evidence in the trial.

Det Insp Dipple’s evidence in chief

35. The following is what I draw from the transcript of Det Insp Dipple’s evidence. At the time of the trial Det Insp Dipple was in his 30^th year of service in the NSW Police Force. Since 1998 he had specialised in drug and organised crime work. That involved what he called “the full myriad”:

“… all the different types of drugs, networks, from – go from the street user up to the importers of drugs from overseas. Working with – working throughout the mid-level, through local agencies and interstate agencies and overseas agencies. Dealt with them all. I am working at – yeah – the whole money, cash out/drugs in; different areas, yes.”

36. Det Insp Dipple had spent six years in the Drug Squad, as well as some time in a joint agency taskforce which worked with the Australian Federal Police (“AFP”) to investigate crime and corruption on the waterfront, including the importation of drugs. He has completed a number of specialist courses and trained as an undercover supervisor to manage “undercover operatives”. He has received a number of awards including the Police Medal for ethical and diligent police service; the National Medal for ethical police work and (he said modestly) “for being in for 20 years maybe”; and a Rotary Policing Award and a Commissioner’s Unit Citation for outstanding achievement in the investigation of organised crime.

37. Det Insp Dipple said that he had obtained information about “drug price lists” from a variety of sources; for example, drug price lists published by the NSW Drug Squad, the AFP, and the NSW Crime Commission and the Australian Bureau of Crime Intelligence. This information is, in turn, derived from, inter alia, information provided by criminal informants and undercover operatives. Det Insp Dipple gave evidence that his investigations had brought him into contact with drug users and mid-level suppliers and that he had, by this means, learned about the “general overall lay of the drug markets currently working in that area or in that cultural group”. Information in these investigations was sourced from undercover operatives, criminal informants, and physical and electronic surveillance. By this means, and others (including even YouTube), he had derived information about the use of codes used by those operating in the drug world.

38. With this background, I am satisfied that Det Insp Dipple was amply qualified to give cogent evidence about, in general, the drug trade, and the interpretation of language used by those in the drug trade. There is no reason to doubt his expertise.

39. Notwithstanding the relatively confined subject matter of his evidence, Det Insp Dipple’s evidence was given over ten days (with one brief interlude when another witness was interposed) and occupies no fewer than 539 pages of transcript. Of these, examination in chief occupies 217 pages. The evidence was subject to repeated objection. The remainder is taken up in cross-examination, on behalf of each of the three accused. Examination of the transcript reveals a great deal of repetition, and a great deal of irrelevancy. In order to perform the function of this Court in determining for itself whether the evidence was sufficient in nature and quality to eliminate any doubt that the applicant was guilty of the offence charged, I have found little assistance from vast swathes of the cross-examination, which did nothing to cast doubt on Det Insp Dipple’s evidence.

40. An attempt was made in cross-examination to undermine the credibility of Det Insp Dipple’s evidence on the basis of what was suggested to be a lack of objectivity. It was suggested to him, for example, that he was too closely aligned with the officer in charge of the investigation, Det Sergeant Walke, and was intent on supporting Det Sergeant Walke’s belief that the drug the subject of the applicant’s conversations was cocaine. So far as I can discern from the transcript, the attempt to impugn Det Insp Dipple’s credibility failed. The transcript shows that Det Insp Dipple made a number of concessions, specifically with respect to whether some of the language used in the conversations could be related to cocaine as distinct from other prohibited drugs.

41. The attempt to cast doubt on Det Insp Dipple’s credibility was not maintained in this Court. I accept his evidence in full.

42. Det Insp Dipple’s evidence fell into two broad categories. First, he gave general evidence about practices in the drug trade, and language used by participants in that trade. Then, having spent a good deal of time examining the transcripts of the conversations recorded on the surveillance devices, he gave specific opinion evidence about what the participants could be taken to have intended. In a sense, his evidence in this category amounted to a translation or interpretation of an otherwise unfamiliar (and at times unintelligible) argot. At times, his evidence as to specific aspects of the conversations placed the verbiage used in the context of the drug world. At other times, his evidence helpfully confirmed what I would, in any event, have taken from the recorded conversations.

43. Det Insp Dipple said that “end” drug users do not normally use drugs in their purest form. The purity of cocaine is usually about 40% but can come “in the high eighties/nineties”. That provides leverage for suppliers to “adulterate”, which is done by mixing the drug with some “cutting agent” such as icing sugar, thus reducing the quality but increasing the quantity. The word used for adulteration by those in the business is “jump” (which can, it seems, be used as a noun or a verb). Det Insp Dipple said that cocaine is traditionally bought and sold in one kilogram blocks of compressed powder that are “rock hard” and in a “brick format”, and referred to as a “brick”. A “brick” is about 30 centimetres by 15 centimetres by 3 centimetres and can be wrapped in plastic or cling film and have an insignia (such as a horse, a Ferrari or a triple 9). The insignia allows consumers to identify the source of the drug. In manufacture, cocaine can be in liquid form, but is sold in “brick form” and used in its powdered form by end users. In later evidence, in the context of interpreting the audio recorded conversations, Det Insp Dipple said that a typical price in 2017 for one kilogram of cocaine was $200,000 and that cocaine was commonly referred to as “rack”.

44. Investigators investigating a person suspected of breaking drugs down would look for certain items, for example, original packing; new bags; cutting agents; items for mixing the cutting agent with the drug; scales; blenders; metal presses (used to recompress the cocaine into hard form after cutting (that is, after it’s been “jumped on”); money; “run phones”; hard lists of drivers and vehicles. A “run phone”, it seems, is a phone dedicated for use in a particular geographic area, or for particular “end users” (which I take to be customers).

45. Det Insp Dipple said that cocaine is often sold in half kilogram amounts, and “at the bottom end” (of the market) in “ounce amounts” (28 grams). He said:

“There’s an amount called the three and a half gram amount which is often referred to as a ‘ball’, which is one-eighth of an ounce and that’s a common supply level amount, down to grams and then down to the small supply being what the end user gets which is, you know, the point 2, point 3 amounts.”

46. With that background, I turn to the three elements of the offence the subject of Count 1.

1. Did the Crown prove that the applicant took part in the supply of a prohibited drug?

47. Proof of the first element of the offence charged required proof that the applicant was engaged in the supply of a prohibited drug. Since, as indicated above, it was not seriously in dispute that the recorded conversations implicated the applicant in the supply of prohibited drugs, I can deal relatively briefly with the evidence that persuades me that he was so involved. I have, however, taken into account the whole of the recorded conversations.

48. Even without the benefit of Det Insp Dipple’s evidence, I would have inferred, beyond reasonable doubt, that the video and audio recordings establish that the applicant and Mousselmani were engaged in dealing in prohibited drugs to a substantial degree. A few sample extracts from the transcript of the recordings will suffice to explain why that is so. In the extracts that follow, I have endeavoured to replicate the transcription as it appears in MFI 57.

49. In a conversation recorded between the applicant and Mousselmani on 14 September 2017, the applicant is recorded as saying:

“He told me he was going to jump it and give it to him for fifteen hundred.

With the assistance of Det Insp Dipple’s evidence I am satisfied that this was a reference to an acquaintance who intended to adulterate (jump) a prohibited drug and supply it for $1,500. It does not directly implicate the applicant in supply but demonstrates a familiarity with the language associated with drug supply, and the process of adulteration to maximise profit.

50. A little later, Mousselmani is recorded as saying:

“…he’s got a guy who takes seven a week, eight a week already … he has got a guy that takes seven to eight a week. He already took three and he wants another five. But look at the price cuz. Faddy’s giving them to him for fifty five hundred.”

Det Insp Dipple interpreted this as a conversation about quantities of prohibited drugs; he took the drug to be cocaine because “fifty five hundred ($5,500) was consistent with the price of an ounce of (adulterated) cocaine. Unadulterated cocaine sold for $6,500-$8,000 an ounce.

51. Still later in the same conversation, Mousselmani is recorded as saying:

“But what for cuz? We might as well give him three. We are making three grand profit cuz. We are making ten grand off one hit.”

This is the first part of the conversation that directly implicates the applicant and Mousselmani in supply.

52. Later in the same conversation, Mousselmani is recorded as saying, with reference to somebody called Weis:

“Yeah he moved four and left one, he gave me one back.”

Det Insp Dipple does not appear to have commented directly on this statement. Consistently with his evidence, and with what can be heard in the recorded conversations as a whole, it is reasonable to take it as a reference to an acquaintance who obtained drugs from the applicant and/or Mousselmani for resale.

53. Finally in that conversation, Mousselmani is recorded as saying to the applicant:

“So he owed us six grand right? He paid us eight hundred and two grand that’s fifty eight hundred.”

This also directly implicates the applicant and Mousselmani in supply.

54. In a conversation recorded on 15 September, in which an unknown male, referred to as “Moe” also participates, the applicant is recorded as saying:

“We have given you one piece. We broke it off. Cuz he broke it off for you.”

Det Insp Dipple interpreted this as meaning that a piece had been broken off a block or brick of cocaine. He said that cocaine in its purest form is “rock hard” so when purchasers are supplied with rock–hard chunks of cocaine they believe they are getting a purer amount of drug which can then be adulterated, or sold “as is”, but the drug supplied is of good quality.

55. In a conversation recorded on 17 September 2017, again involving the applicant with an unknown male and unknown female (a conversation to which Mousselmani was not a party) the following is recorded:

“Unknown male:   And one MDMA

Applicant:      Ounce?

Unknown male:   1 occa yeah … is it like, a rock?

Applicant:      It’s all rocks

Unknown male:   No powder?

Applicant:   I don’t even, we don’t even know what powder is cuz, it’s all like rocky and … its actual the whole thing, it was sealed … But what happened when we stashed it, when we stashed it like it broke a bit, you know what I mean. It’s all rock.

Unknown male:   How much you going to get rid of it for?

Applicant:      I don’t know how much, just whatever, we got heaps but.

Unknown male:   Can use [sic - youse] get me one?

Applicant:      Yeah, when you need it by?

…

Unknown male:   And I got two guys for that, for you guys, for occas… Three occas a week rather.”

Det Insp Dipple said that “occa” (sometimes spelled “okka”) is terminology for an ounce; it does not refer to a particular drug; the drug MDMA comes in a “rocky, hard format” with hard bits in it and can still be crumbly. In context, it may be taken (as was accepted by the Crown) that this passage is evidence implicating the applicant in the supply of the prohibited drug MDMA.

56. A little later in that conversation, the applicant is recorded saying:

“In one month we made fucking probably more than those cunts made in 6 months … . Like a lot man, like $400,000 … . But it takes not long cuz, you know what it is, it takes just someone to give us a shot, a guy gave us something and he gave us a shot at it. Was so cheap bro.”

It is not necessary to resort to Det Insp Dipple’s evidence to understand this as a claim that, from the sale of drugs in one month, the applicant and Mousselmani had made $400,000.

57. The unknown male is then recorded asking:

“And you still doing it with him?”

to which the applicant replied:

“Yeah but he is running out, has last little bit left, but we’ve still … fucked it into whole of Sydney anyway (Inaudible) fucking pfft.”

I interpret this as an expression of concern by the applicant that his supplier is running out of stock.

58. In a conversation that took place on 20 September 2017 and involved the applicant, Mousselmani, Victoria Kerr, and an unknown male, the applicant is recorded saying:

“I don’t need to do anything. I don’t even need to cross the road. I made four hundred thousand dollars this month. Two hundred thousand for me and two hundred for. Honestly for both of us. Like we haven’t collected it yet, but we made the sale. Just got to wait to collect. That’s how this game works. You sell then you get paid … .”

No further explanation of this passage is necessary. Plainly in the context of the previous passage, the applicant is claiming to have made $400,000 from the sale of prohibited drugs, although he had not yet received the money.

59. Later on the same day Mousselmani is recorded saying:

“He asked me now if, ‘I can give a gram as a sample.’ I said: ‘Bro, look. Just do it this time, Bro. But just, don’t give any grams as samples because …’ He said, ‘Bro, I’ve got a new guy for seven grand.’ I said, “Bro, you can’t give grams as samples because they’re fucking two hundred dollars. Two hundred and fifty bucks they cost us.’ ”

Det Insp Dipple explained that, where larger quantities of drugs are supplied, a sample may be requested for the purpose of testing for quality. It seems clear that a potential purchaser of smaller quantities had asked for a sample, which Mousselmani declined. This passage clearly implicates Mousselmanni and the applicant in a discussion about the sale of prohibited drugs in which thy were actively engaged.

60. Still in the same conversation the following exchange is recorded:

Mousselmani:   … we’ll go to the suit guy. Who we going now, suit guy?

Applicant:   Yeah. The suit guy man, wallah. ‘Cause wallah, I started to think about it. I sell lots of cars, that’s three hundred grand. Then we gotta outlay two hundred for a brick. Yeah, you always gotta buy one alright? Let’s add like two hundred. That’s two hundred I should have in my pocket, right? Plus, our profit!

… where’s the actually profit? Shouldn’t we … don’t we make profit? Like, where’s the actual profit? Like, do we have anything?

Mousselmani:   It’s just, every ounce we make three grand. Where’s that? … I’ve moved over a hundred ounces.

Applicant:   You have! Yes. One hundred …

Mousselmani:   I’ve moved over a hundred ounces.

Applicant:   You have! Yes. One hundred …

Mousselmani:   I’ve moved over a hundred ounces. Cous …

Applicant:   In less than week. In less than two weeks.

Mousselmani:   … where’s three hundred grand? Where is that?

Applicant:   Lucky we’re collecting and paying off …

This exchange is of considerable significance. I accept, as Det Insp Dipple said, that the applicant was not speaking of sellng cars; “cars” was code for “drugs”. The sentence “then we gotta outlay two hundred for a brick” is a clear statement of intention to purchase a kilogram of cocaine (a “brick”) for $200,000. The subsequent claim by Mousselmani to have “moved over a hundred ounces” is a clear claim to have sold that quantity of a prohibited drug.

61. Also in that conversation, the following exchange is recorded:

Mousselmani:   We should now be able, me and you, no me and you should be able to spend ten grand a week, laughing. Laughing … I moved twenty ounces a week. Me and you should spend ten grand a week and we should still be making twenty grand each.

Applicant:   Cous’ we sold … Cous’ we sold three things. Three whole things. You know what that makes? That’s, that’s … a hundred grand each.

…

Applicant:   It started at two hundred anyway.

Mousselmani:   Fifteen grand is the … I can sell it now, we make fifteen grand. It’s got nothing to do with that even … So we don’t have to do it that even. Really.

Applicant:   Yeah! They start at two … they start at two hundred anyway … A car starts at two hundred, you know what I’m saying?

Det Insp Dipple’s opinion was that “three whole things” was a reference to three one kilogram lots, each of which sold for $200,000 (the standard or common price for a kilogram of cocaine), each yielding $100,000 for each of the applicant and Mr Mousselmani.

62. On 21 September, in a conversation involving the applicant, Mousselmani, and others, the following exchange is recorded between Mousselmani and the applicant:

Mousselmani:   Who has $1500 to fork out, remember I told all of them, whoever wants two (or ten) bags, get me $1500 and I will get you all bags. Cash (Inaudible) cash up, no tick.

… Bro, this better not be for use [sic – youse] (Inaudible) Walla (Inaudible) … I am getting rid of them (Ind)

…

6 grand, 6 grand is an ounce (Inaudible) … 2 grand, so we are making 4 grand an ounce.”

Det Insp Dipple’s evidence was that drugs are supplied in “bags”. This was an offer by Mousselmani to supply drugs in bags, without credit – that is, on payment of cash.

63. On 22 September the following exchange between the applicant and Mousselmani is recorded:

Applicant:   Less the better. 1500 x 36. Even better it’s 55. Make 1500 bucks average, plus 54 grand cuz. Costs ya 31, 32, that’s still 22 thousand profit. From 36 ounces. That’s 36 ounces cos it’s not jumped, nothing, that’s 36 ounces straight.

Mousselmani:   That’s very good money cuz. 36 thousand dollars.

That’s why one looks shit the (Inaudible)

Applicant:   I thought they looked good. But I don’t know rock.

Mousselmani:   You know that rock bit, you know that rock bit that we had. You know that rock bit? That’s what the whole thing looks like. More rocks like that.

Applicant:   After we get paid let’s go. (Inaudible)

It’s actually good money If we can sell one in two weeks … Even if we sell one a week then. One a month sorry.

In the light of what has been said above, this exchange calls for no further explanation. It is a reference to the proceeds of supplies of drugs.

64. On 28 September, the following exchange between the applicant and Mousselmani is recorded:

Mousselmani:   I just want to give Maroon money so he can give us more stuff. You know what I mean?

Applicant:   I agree we should get more anyway, but we should try and sell what we have.

Mousselmani:   Yeah, but we don’t have much left. We’ve got 15 ounces left. If O’Dea asked us for a ten pack next week, what have we got left? Four?

As Det Insp Dipple said, it is clear enough that “Maroon” is a person from whom the applicant and Mousselmani received supplies of the drugs they were selling. They were discussing replenishing their stocks.

65. Later on the same day, the following exchange is recorded:

Applicant:   So they paid $1900 off the tick, I wrote paid next to all of them. (Inaudible) This is for Nabs’ rack.

As mentioned above, “rack” is “everyday terminology” for cocaine. This is a clear indication that the applicant and Mousselmani were supplying cocaine to a person called “Nab” or “Nabs”.

66. In a conversation on 11 October, Mousselmani is recorded saying to the applicant:

“Yeah I spoke to him, his mates waiting for us he wants ounces cuz, he told me how much would I give it to him for … six … his mates got cash I’m going to give it to him right … he told me he takes three at a time at a time, I’ll wave three off the bill then, I’ll give youse all the 21 thousand … and the two grand.”

Later, Mousselmani is recorded as saying:

… You pay for the bags upfront, when you make the first 5 grand. Here’s the 5 thousand dollars give me more bags.

In the light of what has been said above, these passages require no further explanation. It is a reference to those who purchased the drugs from the applicant and Mousselmani.

67. On 12 October, in a conversation that involved the applicant, Mousselmani, and two unknown males, the following exchange between the applicant and Mousselmani is recorded:

Applicant:   … What I will do0 [sic] is give him a sample. If we want to take out one of one. One gram. (Inaudible) That way you get a nice base. (Inaudible) Or, I said sell him a hole [sic] ounce, if he’s happy here’s the product. There. He said yeah I am going to jump on it one to one, up to 14 grams on one.

… I said you know what to do, I told him I said pull out the big rocks. All the little rocks, crush them, jump it, shake it and the big rocks breaks all into little small ones.

…

I told him because he didn’t want to do that. He want it to be rockys. So I told him that way. I want to leave him, leave the … I want him to jump it, that’s what I’m trying to make him do. And otherwise he said I’m gonna jump on it for me boys. I said, you know what you do, I told him, I said pull out the big rocks. All the little rocks, throw it on there, crush them up a little bit, shake it and give it to the guy. Once he jumps it, he thinks it’s his fault.

…

That’s what I’m trying to do, I’m trying to tell him to jump it, jump it. He’s got a guy, he’s got a guy, he’s got four new people.

…

Yeah, and I told him, I go to him honestly I’m giving you a good price, six grand. I said honestly they are costing Muzzie, they are costing Muzzie 205 bro. I’m not lying, that’s 5750 each one. And not even this one bro shit (Inaudible).

Mousselmani:   And he’s buying a kilo.

In Det Insp Dipple’s opinion (with which I agree) in this exchange the applicant was stating his intention to replace half a quantity (14 grams) of prohibited drug with an equal quantity of a cutting agent, and to provide a sample of the product to a potential purchaser.

68. A little later in the same conversation the applicant is recorded as saying:

“Come on bro. Cuz it’s good rack. It’s like that you won’t get a headache bro.”

As indicated above, “rack” is terminology for cocaine.

69. Det Insp Dipple was taken painstakingly through the transcripts of the recorded conversations. In summary, he confirmed the conclusion I would in any event have come to, that, taking the conversations as a whole, they clearly related to dealing in prohibited drugs. No other rational interpretation could be placed on the discussions of large sums of money, in particular the claims by the applicant to an unidentified male on 17 September and again to Victoria Kerr on 20 September that, in one month, he had made $400,000; and Mousselmani’s claim (on 20 September) that, for every ounce, they made “three grand”, and had moved “over a hundred ounces”.

70. The first element of the offence charged was proved beyond reasonable doubt.

1. Did the Crown prove that the drug supplied was cocaine?

71. Proof of the second element required proof that the drug involved was cocaine.

72. I accept that the indicators that the drug involved was cocaine were less numerous than those pointing to drug supply; they were, nevertheless, powerful. I will refer to them briefly. In this exercise, the evidence of Det Insp Dipple is particularly enlightening. Much of what is relevant to this element has already been identified, at some length.

73. Relevant indicators are:

1. the statement by the applicant to “Moe” on 15 September that:

   “We have given you one piece. We broke it off. Cuz he broke it off for you;”

2. a number of references on 22 September (and others) to “rock” and “rocks”;

3. the rejection on 20 September by Mousselmani of a request for “a gram as a sample” on the basis that grams cost $200 or $250, this being the accepted price for cocaine;

4. the statement by the applicant on 20 September that:

   “I sell lots of cars, that’s three hundred grand. Then we gotta outlay two hundred for a brick.” ($200,000 being the price for a kilogram of cocaine; “brick” being the terminology for a kilogram of cocaine);

5. Mousselmani’s assertion the same day that:

   “Every ounce we make three grand”;

6. the applicant’s claim to have “sold … three whole things” for “a hundred grand each”, ($200,000 being the price for a kilogram of cocaine, the proceeds to the applicant and Mousselmani was $100,000 for each kilogram);

7. the use, on 20 September and 12 October, of the term “rack”, a reference to cocaine.

   74. These circumstances satisfy me beyond reasonable doubt that the drugs (or a drug) in the supply of which the applicant and Mousselmani was engaged was cocaine.

   75. In reaching this conclusion I have not overlooked countervailing arguments advanced on behalf of the applicant. Counsel commenced his submissions in this Court by saying:

   “…the real crux of the argument is the word cocaine was never used, the only word which was said to be synonymous with the word cocaine, the word rack[,] was only used in a single setting. The argument I seek to advance is that one cannot derive from that use on a singular occasion the inference that on all other occasions when no word is used in effect that the applicant must have been speaking about cocaine.”

   76. It was not correct to say that the word “rack” was used on only one occasion; as can be seen from the above, it appears twice in the transcripts of the recorded conversations (28 September and 12 October). And there were, of course, significant other indicators, set out above, to the conclusion that the applicant and Mousselmani supplied cocaine. It is not to the point that the applicant, with or without Mousselmani, may also have supplied other prohibited drugs. Indeed, it was accepted by the Crown that, on at least one occasion, he supplied MDMA.

   77. It was submitted that, in concluding that the substance under discussion was cocaine, Det Insp Dipple placed too much reliance on the common price of $200,000 per kilogram and failed to consider the possibility that another drug, for example heroin, was the subject of the conversations. The answer to that is that, while Det Insp Dipple agreed that he was not aware of the price of heroin in 2017 (although he accepted that it would have been expensive), he said that heroin came in powder form (as distinct from the compressed “brick” form in which cocaine is dealt) and that, although heroin was still used in 2017, he had not seen it around in years. That the drug the subject of the applicant and Mousselmani’s conversations was heroin can, in my opinion, be excluded.

   78. A further argument advanced on behalf of the applicant concerned what were said to be discernible references in the recorded conversations to substances other than cocaine. At the end of the conversation of 11 October the applicant is recorded saying:

   “The whole world knows the money is in the jump. Remember, that use(d) to be our most key line. Yours too walla I never use[d] to say it. There’s no money in the shamet, the money is in the jump.”

That is followed by Mousselmani saying, as recorded in the transcript:

“Obviously when you get some for 140 then … “

79. This was one of the few areas of dispute about the transcription of the conversations. It appears to have been contended on behalf of the applicant that the statement attributed to Mousselmani was, correctly:

“Obviously when you get shamay for around 140 bro”

80. I have been unable to distinguish the word used. In any event, the relevance escapes me. The argument proceeded on the assumption that “shamet” or “shamay” denoted some drug other than cocaine or MDMA. There is no evidentiary support for such an assumption.

81. For reasons set out in detail above, I am satisfied beyond reasonable doubt that the numerous references in the recorded conversations were to the supply of cocaine. That there may have been other drugs supplied, as I have indicated, does not undermine that conclusion.

1. Was the quantity of cocaine supplied not less than a large commercial quantity (1 kilogram)

82. Although an issue appears to have arisen in the trial with respect to this element, no argument was pressed in this Court to that effect. Two references in the recorded conversations are sufficient to satisfy me beyond reasonable doubt that the relevant quantity was established, and, indeed, exceeded. One of those is the assertion by the applicant that “we sold 3 things. Three whole things”, that being a reference to 3 kilograms of cocaine. The second is the reference to the money made by the applicant and Mousselmani (in excess of $400,000) over a short period of time.

83. I am satisfied that this element of the offence the subject of count 1 on the indictment was proved beyond reasonable doubt. It follows that I am satisfied that the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the applicant was guilty of this offence.

84. I would therefore reject ground 1 of the proposed appeal.

Count 2:   Money laundering

Ground 2:   Did the trial judge fail to make a necessary finding of fact?

Ground 3:   Was the verdict on the money laundering count unreasonable?

85. Grounds 2 and 3 concern the conviction of the applicant on the second count on the indictment, of money laundering. That count is framed in the following terms:

“Between 1 July 2017 and 18 October 2017, at Sydney in the State of New South Wales, [the applicant] did deal with the proceeds of crime, in excess of $100,000 knowing that it was the proceeds of crime.”

Count 2 is expressed to be brought under s 193B(2) of the Crimes Act, which is in the following terms:

“A person who deals with proceeds of crime knowing that it is proceeds of crime is guilty of an offence.”

86. By ground 2 the applicant complains that the trial judge failed, as required by s 133 of the Criminal Procedure Act, to include in the judgment the findings of fact on which he relied in proceeding to a finding of guilt on this count. By ground 3, it is asserted that the verdict of guilty on count 2 was unreasonable. No separate argument was advanced, either in written or oral submissions, in support of ground 3. The argument depended simply on the proposition that the trial judge failed to identify the moneys with which he found the applicant dealt.

86. The trial judge dealt briefly with this count. He said:

“The Crown, in part, rely on the video footage of 21 September … showing a large bundle of cash which the Crown submits is consistent with the conversation where there is a discussion about having almost $100,000. Upon viewing the video, Mousselmani is depicted and can be heard counting the money. The Crown also rely on the bundle of cash observed in the video footage of 14 September …, 17 September … and 28 September … together with the conversations on other occasions including 20 September where reference is made to both the accused making $100,000 for selling each of the ‘3 whole things’ being $300,000 in total.

I am satisfied that each accused, as part of a joint criminal enterprise, did deal with the proceeds of crime well in excess of $100,000. I find the offence proved beyond reasonable doubt in respect to both the accused Bilal Mohana and Hussein Mousselmani.”

88. The trial judge clearly identified the money he found to have been the proceeds of crime with which the applicant dealt. That included each of the bundles to which he made specific reference. It is apparent from the passage extracted above, that, although he did not explicitly say so, the trial judge accepted the Crown’s submissions. That was sufficient identification of the money the subject of count 2. Accordingly, proposed ground 2 should be rejected.

89. Although the applicant advanced no submissions directly in relation to ground 3, that ground remains to be addressed. In the context of the ground 2 submissions, counsel pointed to evidence that the applicant had, in 2016, received a substantial award of damages (in excess of $147,000) as a result of a motor vehicle accident. It was submitted at trial that the Crown had not excluded the reasonable possibility that that damages award was the source of the money depicted in the video footage (in September and October 2017).

90. In this Court it was complained that the trial judge made no reference to that submission. That omission is, in my opinion, understandable. Bundles of bank notes depicted in the video footage were in the possession of the applicant and Mousselmani at the time they were discussing the supply of prohibited drugs; it is an inevitable inference that they were connected with that supply. It is far fetched to suggest that, while discussing in clear terms the supply of prohibited drugs, the applicant had in his possession money (in bank notes) received by him in May 2016.

91. Even if the applicant were correct in his complaint of failure by the trial judge to identify the money the subject of count 2, in addressing ground 3 in the manner required by Dansie, I would reject the proposition that the money depicted may have been anything other than the proceeds of the drug dealing. Moreover, I would be satisfied that, at the very least, the recorded conversations implicate the applicant in dealing in money which was the proceeds of crime. It is frequently the case that, by the time a charge of money-laundering is brought, the money in question has been disbursed. There is no requirement that specific money be identified. The conversations clearly implicate the applicant and Mousselmani in dealing in money the proceeds of crime, in particular, the claim made twice by the applicant that, in one month, he had made more than $400,000. That money was plainly the proceeds of dealing in prohibited drugs.

92. I would reject ground 3 of the proposed appeal. I am satisfied that the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the applicant was guilty of this offence.

Ground 4:   The s 166 charges: participation in a criminal group

93. By s 166 of the Criminal Procedure Act a court to which a person has been committed for trial or sentence for an indictable offence may also deal with any “related offence” with which the person has been charged and which is identified in a certificate under s 166(1)(b)(i). A “related offence” is defined in s 165(1) as, relevantly:

1. an indictable offence that is capable of being dealt with summarily by the Local Court in accordance with Ch 5 of the Criminal Procedure Act, and

2. that arises from substantially the same circumstances as those from which the offence in respect of which the person has been committed for trial or sentence has arisen.

   94. There was before the trial judge a certificate under s 166 certifying that the applicant had been charged with a “related offence”. The “related offence” identified was an offence against s 93T(1) of the Crimes Act.

   95. Section 93T(1) provides:

   “(1)   A person who participates in a criminal group is guilty of an offence if the person –

   (a)   knows, or ought reasonably to know, that it is a criminal group, and

   (b)   knows, or ought reasonably to know, that his or her participation in that group contributes to the occurrence of any criminal activity.”

“Criminal group” is relevantly defined in s 93S(1) as:

“…a group of three or more people who have as their objective or one of their objectives –

(a)   obtaining material benefits from conduct that constitutes a serious indictable offence, or

… .”

96. There was and is no issue that the s 93T charge was of an offence that satisfies criterion (i) of the definition of “related offence”. Nor was or is there any issue that the s 93T charge arose from substantially the same circumstances as those from which the offences of drug supply and money laundering had arisen. Criterion (ii) was therefore satisfied.

97. Accordingly, the trial judge had jurisdiction to deal with the charge. Because the offence was said to have arisen from substantially the same circumstances as the drug supply and money laundering offences, no further evidence was necessary for the trial judge to determine the charge.

98. The applicant entered a plea of not guilty to the charge. The trial judge dealt with this offence at the same time as he dealt with the sentencing of the applicant, and found him guilty.

99. His Honour’s reasons were as follows:

“For the reasons outlined in my judgment, there was strong evidence in the video surveillance footage that the drugs were sourced by the offenders from a third person referred to as Maroun [sometimes spelled Maroon]. Indeed, there was evidence that the offenders attended his address.

There was an overwhelming inference that both offenders were in an on-going relationship with that individual. Counsel for the accused submitted that the person referred to was the supplier of the drug and his role did not go beyond that. It was submitted that the relevant section concerns an identifiable criminal group and that this was not such a case.

…

Although I would accept that the criminal activity in the present instance covers a wide ranging number of individuals in a supply chain and the section was not designed to cover situations where there are numerous unknown recipients of the prohibited drug, I am satisfied beyond reasonable doubt that both offenders did directly deal with another person who supplied the drug to them on an ongoing basis. I am satisfied that both offenders acted together and were supplied the drug by the person Maroun. I am satisfied beyond reasonable doubt that both offenders did participate in the criminal group with this third person. They did have as their objective the obtaining of material benefit – specifically to obtain financial reward for the sale of prohibited drugs.”

His Honour therefore found the offence proved.

100. By ground 4 of the proposed appeal the applicant contends that that verdict is unreasonable.

101. It is of some importance that the trial judge limited the “criminal group” to three individuals – the applicant, Mousselmani and Maroun.

102. The submission made on behalf of the applicant may be stated succinctly. It was:

1. that proof of the existence of a “criminal group” required proof that members of the group (three or more individuals) have a “shared objective” (citing Czako v R [2015] NSWCCA 202);

2. that the Crown failed to prove that the three identified participants had such a “shared objective”.

   103. The first proposition is correct. In Czako at [44], McCallum J (as her Honour then was) said:

   “In order to establish the first element, the Crown had to prove beyond reasonable doubt the existence of a group of three or more people who had the relevant shared objective.”

That proposition arises in any event from the clear terms of the chapeau to s 93S(1).

104. The applicant’s argument in relation to the second proposition was that, on the evidence, the objectives of the three alleged participants did not coincide: that was because Maroun’s objective was to obtain material benefits from selling prohibited drugs to the applicant and/or Mousselmani; the applicant’s and Mousselmani’s objective was to obtain material benefits from selling prohibited drugs to others. Thus, the objectives of the participants were divergent, not shared.

105. The argument prompted an intervention by the court, which focused attention on the words “a serious indictable offence” in subs (1)(a) of s 93S, with emphasis on the indefinite article. The suggestion was that subs (1)(a) required the identification of conduct constituting a single serious indictable offence from which all participants sought to obtain material benefits. In one sense that was a more precise formulation of the applicant’s original submissions.

106. Both parties assisted with supplementary written submissions. Having considered the submissions, I am now satisfied that ground 4 should be rejected.

107. It is, I think, correct that s 93S(1)(a) requires identification of conduct that constitutes a [single] serious indictable offence. Identification of a series of disparate, even if connected, offences will not be sufficient.

108. At one point, it appeared to me that that requirement could not be met in this case, because the indictable offence constituted by the conduct of Maroun in selling prohibited drugs to the applicant and Mousselmani was not the same indictable offence constituted by the conduct of the applicant and Mousselmani in on-selling to others the drugs they had received from Maroun. However, that is to give too narrow an interpretation to s 93S(1)(a). In practical terms, only one individual offence is necessary to be established. That is the supply, by Maroun, of drugs to the applicant and Mousselmani. There is no doubt, and no issue, that Maroun sought to obtain (immediate) material benefits from that supply. But so also did the applicant and Mousselmani. The material benefits obtained by them were (or would be) directly derived from the on-sale. But the first step on the way – providing the applicant and Mousselmani with the means to on-sell – was the conduct of Maroun in selling the drug to them. Thus, each of the three participants shared the objective of obtaining material benefits from the conduct of Maroun in selling the drugs to the applicant and Mousselmani.

109. No proposition was advanced to the effect that, if the evidence established that a “criminal group” existed, the evidence failed to establish participation by the applicant. The evidence clearly did establish that. I would therefore reject ground 4 of the proposed appeal. I am satisfied that the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the applicant was guilty of this offence.

110. Accordingly, the orders I propose are:

1. Leave to appeal granted;

2. Appeal dismissed.

   111. DAVIES J: On my assessment of the evidence in this matter I do not have a reasonable doubt about the guilt of the applicant in relation to counts 1 and 2, and in relation to the matter on the s 166 certificate. I also agree with the reasons of Simpson AJA and the orders her Honour proposes.

   112. WILSON J: I also agree with Simpson AJA.

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I certify that the preceding 112 paragraphs are a true copy of the reasons for judgment herein of the Honourable Acting Justice Simpson and of the Court.

Date: 22 March 2023

Decision last updated: 22 March 2023