R v Bechara - [2013] SADC 141

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BECHARA
Criminal Trial by Judge Alone
[2013] SADC 141
Reasons for the Verdicts of His Honour Judge Chivell
22 March 2013
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
Accused charged with two counts of trafficking in a controlled drug (methylamphetamine) and one count of trafficking in a commercial quantity of a controlled drug (cocaine).
Evidence given by two accomplices - whether corroborated by independent evidence on each of the three counts. Whether adverse inference to be drawn from refusal of witness to answer questions on the ground of self-incrimination - distinction between collateral and central issues.
Verdict: Guilty on all counts.
Controlled Substances Act 1984 s 4, s 32(2), s 32(3), s 33P; Juries Act 1927 s 7(1); Evidence Act 1929 s 34, s 34P, referred to.
Azzopardi v R (2001) 205 CLR 50; R v Weetra [2010] SASCFC 52; R v B, P [2006] SASC 229; R v Liddy [2002] SASC 19; R v Von Heytmanek [2006] SASC 338; R v Baskerville [1916] 2 KB 658; R v Kalajzich and Orrock (1989) 39 A Crim R 415; R v Duke (1979) 22 SASR 46; R v Lindsay (1977) 18 SASR 103; R v Colless [1964-5] NSWR 1243; R v Webbe and Brown [1926] SASR 108; R v Rigney (1975) 12 SASR 30; Pappas & Anor v New World Oil Developments & Ors (1993) 117 ALR 304; R v Power (1996) 87 A Crim R 407; R v Ciantar (2006) 167 A Crim R 504, considered.

R v BECHARA
[2013] SADC 141
Introduction
General Directions
Elements of Offences
Trafficking in a Controlled Drug (Counts 1 and 2)
Trafficking in a Commercial Quantity of a Controlled Drug (Count 3)
Multiple Counts
Accomplice Warnings
Discreditable Conduct
The Prosecution Evidence
Count 1
Police Search
Conclusion – Count 1

Count 2
The Surveillance Evidence
The Telephone Interception Evidence
Conclusion – Count 2

Count 3
The Surveillance Evidence
Conclusion – Count 3
- Defence Address – Count 3

Verdicts

Introduction

Antoine Bechara is charged with trafficking in a controlled drug (s 32(3) of the Controlled Substances Act 1984 (‘CSA’)) – two counts, and trafficking in a commercial quantity of a controlled drug (s 32(2) of the CSA) – one count.
Mr Bechara elected to be tried by a judge sitting without a jury pursuant to s 7(1) of the Juries Act 1927. He was represented by Mr Boucaut SC with Mr Ey. Ms Costi with Ms Fong appeared for the Director of Public Prosecutions.
Particulars of the charges are as follows:
Count 1:
Trafficking in a Controlled Drug. (Section 32(3) of the Controlled Substances Act, 1984)
Particulars of Offence
Antoine Bechara between the 13^th day of August 2010 and the 30^th day of August 2010 at Adelaide and other places, knowingly trafficked in a controlled drug, namely methylamphetamine.
This count relates to a consignment of methylamphetamine which the prosecution alleges was sent to a woman named Shayne Palliaer in Queensland. It is alleged that this was one of a number of such packages sent to her from August to November 2010 as part of a commercial enterprise orchestrated by Mr Bechara.
Count 2:
Trafficking in a Controlled Drug. (Section 32(3) of the Controlled Substances Act, 1984)
Particulars of Offence
Antoine Bechara on the 10^th day of January 2011 at Adelaide and other places, knowingly trafficked in a controlled drug, namely methylamphetamine.
This count relates to a consignment of methylamphetamine concealed in a cavity in laminated board which was allegedly consigned to a man in Queensland as part of the same enterprise.
Count 3:
Trafficking in a Commercial Quantity of a Controlled Drug. (Section 32(2) of the Controlled Substances Act, 1984)
Particulars of Offence
Antoine Bechara on the 2^nd day of February 2011 at Manningham and other places, knowingly trafficked in a commercial quantity of a controlled drug, namely cocaine.
This final count relates to a quantity of cocaine (333.08 grams, of which 196.09 grams was pure cocaine) found by police in a van on 2 February 2011 after the arrest of George Vrynios. It is alleged that Mr Vrynios was an associate of Mr Bechara, and that his possession of the cocaine was part of the same commercial enterprise referred to above.
The prosecution led a substantial body of circumstantial evidence, in the form of police surveillance and observations by police officers, recordings of intercepted telephone conversations, video images from closed-circuit television cameras installed at Mr Bechara’s business premises, Imagine Kitchens, at 85 Main North Road, Nailsworth, and documentary evidence of various types. I will refer to the premises at 85 Main North Road as ‘the factory’.
In addition, Mr Vrynios gave evidence of the part he says he played in the commercial enterprise, as did his wife Nicole Bechara, who is Mr Bechara’s sister. Both gave direct evidence implicating Mr Bechara. Both alleged that Mr Bechara was the ‘mastermind’ of the operation, and that everything they did was on Mr Bechara’s instructions. Being accomplices, the evidence of Mr Vrynios and Ms Bechara must be subject to the warnings usually given to juries about the dangers of acting upon such evidence (see [18]-[43] of these reasons).
Further, a number of other witnesses gave direct evidence of relevant events, and there was a substantial body of evidence agreed and admitted pursuant to s 34 of the Evidence Act 1929 (SA) (Exhibits P54 and P55).
General Directions
I remind myself of the following fundamental principles:
·The accused is entitled to the presumption of innocence - he is to be regarded as innocent unless and until his guilt has been proved by the prosecution beyond reasonable doubt.
·The burden of proving guilt rests on the prosecution. There is no onus on the accused to prove or explain anything. Any uncertainties or gaps in the prosecution case must be resolved in favour of the accused.
·In this case the accused elected not to give evidence. He was under no obligation to do so. No adverse inference may be drawn from the fact that he has exercised that right. In particular, the silence of the accused does not constitute any form of admission, may not be used to fill gaps (if any) in the prosecution case, and may not be used as a ‘makeweight’ in assessing whether the prosecution has proved its case beyond reasonable doubt (Azzopardi v R;[1] R v Weetra[2]).
·Proof beyond reasonable doubt means what it says and needs no further elaboration. A mere suspicion of guilt, or even that there is a probability of guilt, is not sufficient. Nothing short of proof beyond reasonable doubt is sufficient.
·Each element of the offence must be proved beyond reasonable doubt, and if any one element is not so proved, the appropriate verdict is ‘not guilty’.
Elements of Offences
[1] (2001) 205 CLR 50 at [51]
[2] [2010] SASCFC 52 at [67]
Trafficking in a Controlled Drug (Counts 1 and 2)
The prosecution must prove each of the following three elements beyond reasonable doubt:
1.The substance in question was a controlled drug.
It is an agreed fact (Exhibit P54, Nos 1-3) that the substances seized by the police in Queensland, and which were allegedly sent by Mr Vrynios, were methylamphetamine. Methylamphetamine is a controlled drug (CSA s 4, Regulation 5, Schedule 1, Part 2).
2.The accused ‘trafficked’ in the drug.
‘Traffic’, by virtue of s 4 of the CSA, is a verb which means to:
(a)sell the drug; or
(b)have possession of the drug intending to sell it; or
(c)take part in the process of sale of the drug.
There is no dispute that the methylamphetamine in counts 1 and 2 was sent to Queensland. The clear inference to be drawn from that is that this was part of the process of sale of the drug. The central issue which is in dispute in each count is whether Mr Bechara took part in the process of that sale.
3.When the accused took part in the process of sale of the drug, he did so knowing that the substance was methylamphetamine, or at least that it was a controlled substance, or was reckless about that (s 33P of the CSA).
In this case, the evidence of Mr Vrynios and Ms Bechara made it clear that all parties knew the identity of the substances in question.
Having regard to the way the defence was conducted, it is clear that this element stands or falls with element 2.
Trafficking in a Commercial Quantity of a Controlled Drug (Count 3)
The prosecution must prove beyond reasonable doubt, in addition to the three elements described above, the following additional element:
4.The quantity of the drug was a ‘commercial quantity’.
Pursuant to CSA s 4 and Regulation 6(3), Schedule 1, Part 2, a commercial quantity of cocaine is 0.1 kilograms (or 100 grams) (pure), or 0.2 kilograms (or 200 grams) (mixed).
It is an agreed fact (Exhibit P54, Nos 7-8) that the total amount of cocaine was, in mixed form, 333.08 grams and, in pure form, 196.09 grams.
I am satisfied beyond reasonable doubt, on the basis of these agreed facts, that this element has been proved.
Multiple Counts
Each of the three counts on the information must be considered separately upon its own merits. On the prosecution case, each of the three counts occurred in separate circumstances, but in the context of ongoing commercial dealing in drugs of various kinds.
If I am satisfied beyond reasonable doubt that Mr Bechara is guilty of one or two counts, it does not necessarily follow that he is guilty of the other(s). The same applies if I am not satisfied of Mr Bechara’s guilt beyond reasonable doubt on one or two counts.
That is not to say that evidence used in consideration of count 1 may not also be used in relation to the other counts. Some of the evidence was common to all three counts – the nature of the business relationship between Mr Bechara, Mr Vrynios and Ms Bechara, for example, is relevant to all three counts. The position of Ms Palliaer and the nature of her business relationship with Mr Bechara, and the lack of evidence of a business relationship with Mr Vrynios, are relevant to counts 1 and 2.
Since the evidence of Mr Vrynios was a common factor in all three counts, it might have been suggested that if I have a doubt about one count, that should carry over into the other two counts. However, the evidence of Mr Vrynios was, on the prosecution case, corroborated to different degrees by other evidence in each count. In those circumstances, particularly as Mr Vrynios was an accomplice of Mr Bechara (see discussion later in these reasons), different verdicts in these counts might result (see R v B, P;[3] R v Liddy;[4] R v Von Heytmanek[5]).
[3] [2006] SASC 229
[4] [2002] SASC 19
[5] [2006] SASC 338
Accomplice Warnings
It is well-settled law that it is dangerous to convict a person upon the uncorroborated evidence of an accomplice. Accomplices may lie to serve their own interests, whether those interests are apparent or not. The witness may be:
·    acting out of malice;
·    seeking to shift the blame to the accused;
·    shielding someone else;
·    seeking to curry favour with the authorities to improve their own situation;
·    acting from some other motive which may not be apparent.
There is no doubt that, on their evidence, Mr Vrynios and Ms Bechara were accomplices in Mr Bechara’s activities. Mr Vrynios said he acted on Mr Bechara’s instructions in a number of criminal activities associated with commercial drug dealing (T 109, T 232). Ms Bechara knew, or at least suspected, on her evidence, that her trips to Queensland and money-collecting activities were drug-related (T 542).
It is enough if there are reasonable grounds to believe that a witness may be an accomplice (R v Glastonbury[6]). Such reasonable grounds have been established in this case.
[6] [2012] SASCFC 141
As to whether the evidence of Mr Vrynios or Ms Bechara was corroborated, I start with the well-known explanation of the meaning of corroboration in R v Baskerville[7], where their Lordships said:
We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it. ... The nature of the corroboration will necessarily vary according to the particular circumstances of the offence charged. It would be in high degree dangerous to attempt to formulate the kind of evidence which would be regarded as corroboration, except to say that corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused. The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime. A good instance of this indirect evidence is to be found in Birkett (1839) 8 C & P 732; 173 ER 694. Were the law otherwise many crimes which are usually committed between accomplices in secret, such as incest, offences with females, or the present case, could never be brought to justice.
This passage was quoted by the New South Wales Court of Criminal Appeal with approval in R v Kalajzich and Orrock[8].
[7] [1916] 2 KB 658 at 667
[8] (1989) 39 A Crim R 415 at 426-7
Mr Boucaut pointed out that his client was involved in legitimate businesses at the time of these alleged offences: the kitchen business, the finance companies, the transport company and the board game. He submitted that many of the telephone conversations intercepted could have just as easily been discussions about business as about drugs.
This submission raises the question of the application of the principle enunciated by Bray CJ in R v Lindsay[9], where his Honour said, after referring to R v McConnon[10] and R v Yates[11]:
… nothing consistent with both the case for the prosecution and the case for the accused can amount to corroboration.
Later, at 113, his Honour said:
The question of whether corroboration is like circumstantial evidence in that a combination or accumulation of items can constitute potential corroboration, even though none of them taken separately would achieve that status, is not, in the view I take, one that directly arises here and I express no opinion on it.
[9] (1977) 18 SASR 103 at 107
[10] (1951) SASR 22
[11] [1970] SASR 302
Zelling and Wells JJ had no such reservations, quoting with approval, at 118, the statement of the New South Wales Court of Criminal Appeal in R v Colless:[12]
To look separately at each element said to constitute corroboration may lead to error, particularly as corroboration need not be, and rarely is, direct evidence that the accused committed the crime, but may be merely circumstantial evidence of his connection with the crime.
Zelling and Wells JJ went on to emphasise, at 119, that the individual items of circumstantial evidence must be:
… so connected with one another, either directly, or indirectly through their relationship with other facts or bodies of fact in the case, that the suggested inference (of guilt) is fairly open. It is axiomatic that unless that connection sufficiently appears, the circumstances will present themselves as nothing more than a group of isolated facts that have no bearing the one upon the other.
Their Honours then went on to distinguish the dicta, said to be to the contrary, in Thomas v Jones.[13]Their Honours continued, at 120:
The case, however, stands as a warning to the trial judge who is minded to direct the attention of the jury to a number of items of evidence as potential corroboration of one sort of [sic] another. It behoves him, in our view, to leave the jury in no doubt as to whether each item is, standing alone, fit for their consideration as corroboration, or whether the several items are placed before them as a group of facts from which a further fact may be inferred that has the necessary cogency as corroboration. It would, in our opinion, be a misdirection to instruct the jury in the first sort of case that even if, in the result, each of such items is found to be equivocal and unrelated to any other, they can nevertheless attribute to them as a whole a cumulative force that may amount to corroboration.
[12] [1964-5] NSWR 1243 at 1245
[13] [1921] 1 KB 22
In Kalajzich and Orrock (ibid, at 429), the court quoted King CJ in R v Duke[14]:
It would be a mistake, in my opinion, to consider these items (of circumstantial evidence) separately and to treat those which in themselves do not confirm the applicant's guilt, but are merely consistent therewith, as having no corroborative value (The Queen v. Lindsay, per Zelling and Wells JJ. at p. 117 et seq.) The potential corroboration is to be found, not in the items considered separately, but in the combined weight of the circumstantial evidence …
[14] (1979) 22 SASR 46 at 52
It is also well settled that the evidence of an accomplice cannot corroborate the evidence of another accomplice (R v Baskerville, ibid, per Lord Reading CJ at 664; R v Webbe and Brown[15]; R v Rigney[16]).
[15] [1926] SASR 108 at 117
[16] (1975) 12 SASR 30 at 36
So it is necessary to examine the other evidence said to corroborate the evidence of Mr Vrynios and Ms Bechara, and examine whether it fits either of the two categories identified by their Honours in the above quotation.
Mr Boucaut submitted that Mr Vrynios was motivated to lie in order to do a ‘deal’ with the authorities in order to gain a lighter sentence. He pointed out that Mr Vrynios did not begin cooperating with police until after his wife, Nicole Bechara, was charged. I am unaware of any evidence of the date on which Ms Bechara was charged, if that in fact occurred.
Mr Vrynios gave his first statement to police on 14 April 2011 (Exhibit P54, Agreed Fact No. 11). It is true, as Mr Boucaut submitted, that Mr Vrynios told several lies in that initial statement, which he acknowledged in evidence. In later statements, in October 2011 and February 2012, his evidence was more consistent with his sworn evidence in court.
Mr Vrynios was granted an immunity from prosecution on 28 May 2012, on condition that he gave truthful evidence in court in the trial of Mr Bechara.
Mr Boucaut described Mr Vrynios as a ‘gun-toting criminal’ who was in serious trouble and had ‘no other motive than to reduce his sentence’ (T 818).
I do not accept Mr Boucaut’s submission that Nicole Bechara is motivated by a desire to assist her husband, Mr Vrynios. She did not get an immunity from prosecution, in the same terms as that offered to Mr Vrynios, until 9 August 2012, three months later.
I cannot see that Ms Bechara giving evidence helps her husband at all. He already had his immunity. It was not necessary, in order to fulfil his obligations, that Ms Bechara should also give evidence. All he had to do was give evidence.
It was not until after this trial commenced, on 8 August 2012, that Ms Bechara gave her first statement to police. This resulted in the trial being adjourned. The trial resumed on 3 December 2012 and proceeded from there.
In those circumstances, it does not follow that Ms Bechara was helping her husband by cooperating with the police.
I accept that Ms Bechara may have had her own motives for giving false evidence, whether they be malice towards her brother, or to avoid the legal consequences of her own behaviour, or another motive which has not been ascertained.
Ms Costi acknowledged the criticisms of the credibility of Mr Vrynios and Ms Bechara. She observed that Ms Bechara’s lies and equivocations can be characterised as attempts to avoid implicating others, for example ‘Zoki’ and Mr Assiotis. The defects in Mr Vrynios’ evidence might constitute an attempt to avoid implicating his wife. This may provide some explanation for the fact that they have been less than truthful on occasion.

Mr Boucaut submitted that there may be other factors, involving, for example, the mysterious Zoki, which are not apparent. I accept that. The evidence of Nicole Bechara’s dealings with Zoki in Sydney only two weeks before the trial (T 472) is an example of that. Ms Bechara said that she went to Sydney because Zoki wanted to speak to her. There is a clear inference in this evidence that Zoki was a man of considerable importance or influence, at least as far as Ms Bechara was concerned.
Ms Bechara denied that she went to Sydney to show Zoki her husband’s statements. She denied telling anyone that Zoki wanted to know whether Mr Vrynios had implicated him in relation to the cocaine (T 489). Then she admitted telling Detective Wright that very thing (ibid). She admitted that was a lie (T 490). She refused to explain the reason for the lie (ibid).
Clearly, there is more to this than meets the eye. Ms Bechara is obviously prepared to lie when it is convenient or necessary to do so. Whether it is due to her fear of Zoki, or for some other reason is not clear. I accept her credibility is seriously diminished as a result.
So, for all those reasons, I remind myself that it is dangerous to convict a person in Mr Bechara’s position unless the evidence of Mr Vrynios and Ms Bechara is corroborated in a material way.
Ms Costi submitted that Mr Vrynios’ and Ms Bechara’s evidence is not relied upon to prove the prosecution case; the circumstantial evidence is sufficient to do that.
I will consider the evidence of the accomplices as only having weight if that particular evidence is corroborated in a material way by independent evidence.
Discreditable Conduct
Mr Boucaut acknowledged that his client had been involved in commercial dealing in cannabis in 2010, and that Mr Vrynios and men named Donjerkovic and Bednarz were also involved.
There was also evidence that a number of other shipments of methylamphetamine to Queensland took place in 2010 and early 2011 apart from the two instances charged in counts 1 and 2. It was alleged that Mr Bechara was knowingly concerned in all of these shipments.
I accept that this evidence is ‘discreditable conduct’ within the meaning of s 34P of the Evidence Act, and that the purpose for which it was admitted must be clear. The evidence was led without objection. Indeed, Mr Boucaut elicited some of it in cross-examination (T 247, T 252).
Ms Costi identified one use to which the evidence might be put. Evidence of previous commercial dealing, in a general sense, is admissible in proof of commercial dealing in the particular instance charged and, in particular, in proof of the interpretation to be placed upon the intercepted telephone conversations, the speaking in code, in vague and indirect terms. I accept that submission. For example, the evidence relevant to count 1, in particular Mr Bechara’s business relationship with Ms Palliaer and their previous drug dealing, and the lack of any such relationship between Ms Palliaer and Mr Vrynios, is relevant to count 2, for the same reasons.
I agree with Mr Boucaut that it is necessary that I warn myself specifically about impermissible propensity reasoning. In particular, it does not follow that because Mr Bechara was involved in commercial dealing in cannabis in the past, or methylamphetamine for that matter, he is the type of person who deals in drugs generally, and so more likely to have committed these offences. I accept that it does not follow, as a matter of logic, or fairness, that such reasoning is appropriate in this case.
At one stage in cross-examination, Ms Bechara told the court that, during the time when the group was involved in cultivating cannabis, Mr Vrynios went ‘missing’ for several days. Mr Vrynios gave evidence to similar effect. Both witnesses alleged that Mr Bechara held a gun to Mr Vrynios’ head after that incident, and threatened him with dire consequences if he ever did that again (T 303, T 536).
Ms Costi submitted that if I accept that evidence, it would be relevant to the nature of the relationship between Mr Bechara and Mr Vrynios and others, and go to explain why they obeyed his orders without question.
Having regard to the view I take of the credibility of Mr Vrynios and Ms Bechara, and since there is no objective evidence to corroborate that evidence, I do not accept it, and make no use of it.
The Prosecution Evidence
Ms Costi submitted that the prosecution case is built upon circumstantial evidence, and does not rely on the evidence of the accomplices, Mr Vrynios and Ms Bechara.
To the extent that the accomplice evidence carries weight after considering the warning about the dangers of relying on such evidence, Ms Costi submitted that it ‘joins the dots’ in the circumstantial evidence.
For those reasons, I will examine the evidence in relation to each count.
Count 1
On 16 October 2009 Kaya Palliaer, the daughter of Shayne Palliaer, deposited $5,500 in the Westpac account of Allstate Loans Pty Ltd, a company operated by Mr Bechara through his accountant, Mr Battistella (Exhibit P45, Annexure WG2). This was the first of several similar payments, the last of which was on 14 February 2011. It was not suggested that these payments were for, or involved, illegal drugs. Rather, Ms Costi submitted that the evidence shows that there was an ongoing business relationship between Mr Bechara and Ms Palliaer which extended over a substantial period. There was no such relationship between Ms Palliaer and Mr Vrynios.
On 27 May 2010 a package was sent from the Nailsworth branch of the freight forwarding firm ‘Pack & Send’. The recipient was ‘Shayne Palliaer’ of 90 Hogan Road, Tarzali, Queensland. The consignment note, Exhibit P2, shows that the consignor was ‘George Palliaer’ of 15 Glengyle Terrace, Glandore.
George Vrynios gave evidence that he sent this parcel, using the name George Palliaer, on Mr Bechara’s instructions (T 113). He said that he and Mr Bechara assembled the package, which contained cosmetics, and secreted in the cream and oils ‘about an ounce’ of methylamphetamine. He said that Mr Bechara paid the freight cost, $170.
The records of Pack & Send in Cairns (Exhibit P44) indicate that the package was collected by a person using the name Shayne Palliaer on 28 May 2010.
A similar package was sent to Shayne Palliaer through the Unley branch of Pack & Send on 7 July 2010. The consignor’s name was given as George Papas, of 13 Almond Grove, Glandore.
Mr Vrynios said that he was also involved in assembling and sending that package, which this time contained a ‘couple of ounces’ of methylamphetamine (T 115). He said this was all done on Mr Bechara’s instructions, and he reported back to him after the package was sent (ibid).
The package was, according to Exhibit P44, collected the following day by ‘Shayne Palliaer’.
On 12 August 2010 the first of many telephone conversations involving Mr Bechara was intercepted. The interception was pursuant to Warrant No. F11011-00, and the call is number 1016. The calls are recorded on Exhibit P1. The transcripts are Exhibit P1A.
The call was made just after 6 p.m. The caller’s voice was recognised as Mr Bechara’s by Mr Vrynios. He was not cross-examined about this identification, nor was it disputed in Mr Boucaut’s address.
Like many of these conversations, the participants used very guarded language, were deliberately vague, and interspersed the conversation with repetitive and apparently pointless inquiries about the receiver’s health.
The receiver’s voice was identified by Detective Fincham as Shayne Palliaer. Detective Fincham, a member of the Queensland CIB stationed at Mareeba and who had spoken to Shayne Palliaer, identified her voice, which is quite distinctive and she spoke with a broad Australian accent.
Detective Fincham was not cross-examined about this identification, nor was there any dispute in Mr Boucaut’s address on the topic, so I accept it as accurate.
During that call, Mr Bechara asked Ms Palliaer:
Mr Bechara:               How’d you go with the man across-down the road?
Ms Palliaer:        No, I haven’t heard anything from him, hey?
Mr Bechara:               Okay.
Ms Palliaer:        I was just thinking about that. I’m gonna give him a call.
Clearly, both people knew what was being referred to, and that Mr Bechara’s inquiry was directed to the topic and prompted her to decide to call this person again.
On 13 August 2010, Mr Bechara called Ms Palliaer again. This is call number 1115 on the same warrant. The call was made at about 8:55 p.m. After some small talk about not returning his call, the following was said:
Ms Palliaer:        I ran out of pink stuff today.
Mr Bechara:               Oh, did you?
Ms Palliaer:        Yes. (chuckles)
Mr Bechara:               Well… it’s okay.
Ms Palliaer:        That’s all good, but.
Mr Bechara:               You still got the other ones, haven’t you?
Ms Palliaer:        I do, yeah.
Mr Bechara:               Well just – you gotta… do that now, love.
Ms Palliaer:        Well, no they won’t take ‘em.
Mr Bechara:               Yeah, but, uh, you don’t know how to do it, do you?
Ms Palliaer:        (chuckles)
Mr Bechara:               Oh… okay.
Ms Palliaer:        I haven’t got too much of that other stuff left, though.
Mr Bechara:               As well?
Ms Palliaer:        No.
Mr Bechara:               Oh.
Ms Palliaer:        Yes.
Mr Bechara:               You much [sic] have plenty of what’s-it-called put away?
Ms Palliaer:        I do.
Mr Bechara:               Oh-How’d you go with the expert across the road?
Ms Palliaer:        Uh, he’s coming on the weekend. He had a hiccup or something. I   saw him today.
Mr Bechara:               Oh, okay.
Ms Palliaer:        So.. yeah.. tomorrow or Sunday.
Mr Bechara:               Okay, love. I’m on to it. Okay?
Ms Palliaer:        Heh, too easy. You take care..
Mr Bechara:               Alright.
Ms Palliaer:        …anyway. There’s no big drama. Hey? They can (spoken over) do                    without for a while.
Mr Bechara:               Take it easy, darling. It’s good sometimes to have a little break.
Ms Palliaer:        Yes, yes. I agree.
The following inferences can be drawn from this conversation:
·    Ms Palliaer was not happy with Mr Bechara because she had run out of ‘pink stuff’;
·    She still had the ‘other ones’ but ‘they won’t take ‘em’;
·    She didn’t have much of the ‘other stuff’ left anyway;
·    She had plenty of ‘what’s-it-called put away’ (a clear reference to money);
·    The ‘expert’ over the road is coming on the weekend;
·    ‘They’ will have to do without for a while (a clear reference to her customers).
Any doubt about what these indirect references were about is dispelled by what happened next. On 17 August 2010 at about 7:31 p.m. Mr Bechara called Ms Palliaer again, and after extended pleasantries, he asked her if there was anything new, and she said:
Yeah, yeah, yeah, yeah. I’m … doing that… big thing with Matey down the road right about… now. I’m just… yeah. I’ve just been and got it all and its (a) happening thing.
Ms Palliaer was unusually hesitant and choosing her words very carefully during that passage (call number 1572, page 2).
Only 42 minutes later, at 8:13 p.m., Mr Bechara rang back. This is call number 1576. Ms Palliaer sounds somewhat anxious, but Mr Bechara reassures her, saying:
Nah, dont worry. It’ll be good. It’ll be alright.
and later:
So don’t worry. You’ll be happy very shortly.
(page 2).
On 24 August 2010 a package was sent to a ‘Megan Peltzer’ of Lot 1, Gillies Highway, Yungaburra, Queensland by a person named ‘John Palios’. The package was sent from the Norwood office of Pack & Send (Exhibit P2). Mr Palios gave his address as 23 Pleasant Avenue, Glandore.
Mr Vrynios said that he went to various branches of Pack & Send as it was ‘somewhere different’ and therefore more secure. He said he made up all these consignors’ names.
Mr Vrynios said the package contained ‘skin care products’, namely ‘moisturisers and creams’ (T 117). He could not say positively that this package contained methylamphetamine. He had earlier given evidence that he could recall sending three packages containing methylamphetamine, and a couple of other packages were sent as ‘dummies’ to see if they arrived safely. He was unable to remember which ones were dummies and which ones contained drugs (T 115).
I found this a factor in favour of the credibility and reliability of Mr Vrynios’ evidence. It would have been easy for him to have made it look more serious for Mr Bechara by saying that all the packages contained methylamphetamine. I thought his evidence on this topic was prompted by a desire to be accurate and careful. His uncertainty about this particular package was resolved by subsequent events.
Mr Vrynios said that Megan Peltzer’s name and address were given to him by Mr Bechara (T 117). This appears to be the first time that Ms Peltzer’s name was used for the name of the recipient.
At about 2:35 p.m. that same day, 24 August 2010, Mr Bechara called Ms Palliaer again. This is call number 2225 on the same warrant. After the usual prolonged, pointless pleasantries, Mr Bechara said:
Mr Bechara:               Uhm.. that friend of yours.. that you … sent me her thing?
Ms Palliaer:        Yes, yes?
Mr Bechara:               She should get a call tomorrow.
Ms Palliaer:        Oh that would be excellent.
Mr Bechara:               Okay?
Ms Palliaer:        People driving me crazy. (chuckles)
Mr Bechara:               Alright, love?
Ms Palliaer:        Yes, that would be lovely. Thank you very much.
Clearly, Ms Palliaer knew immediately what Mr Bechara was referring to when he said ‘you … sent me her thing’. On the prosecution case, ‘her thing’ refers to identification cards in the name of Megan Peltzer.
On 25 August 2010, at about 11:29 a.m., Mr Bechara called Ms Palliaer again. This is call number 2289 on the same warrant. Mr Bechara said:
Mr Bechara:               Is it all, uh… happening, or… it’s all slowed?
Ms Palliaer:                Oh, no. Uhm, well… yeah, about the same with the… last lot as usual. Just waiting for me mate down the road, but…
Mr Bechara:               What’s he saying?
Ms Palliaer:        …every – everybody else likes it.
Mr Bechara:               Oh, okay.
Ms Palliaer:        yes. Yeah. Got rid of a few little ones.
Mr Bechara:               Oh, okay.
Ms Palliaer:        Hopefully some big ones, but I wouldn’t… you know… not til,   probably…the weekend or something I reckon.
Mr Bechara:               Oh, okay.
Ms Palliaer:        That’s about usual.
Mr Bechara:               Alright. Uhm..
Ms Palliaer:        I’ve – I’ve still got heaps here for you, but. (sniggers)
Mr Bechara:               What have you got there for me?
Ms Palliaer:        Oh, geez, I don’t know. One twenty, something like that.
The prosecution argued that this is a discussion about selling previous consignments of methylamphetamine. Detective Sergeant Hanssen gave evidence that, in his experience, the reference by Ms Palliaer to having ‘one twenty’ for Mr Bechara indicated that she was holding $120,000 in cash for him (T 743-4).
Mr Bechara then proceeds to give Ms Palliaer instructions:
· ‘your boy’ should ‘take the day off’;
· ‘your other lady friend … got a call yesterday’ and ‘she better head down too’.
Ms Palliaer told Mr Bechara that her ‘boy’ may have already left. Mr Bechara instructed her to ring him and he would call back in five minutes (page 4). Also in that call, Mr Bechara said to Ms Palliaer:
Mr Bechara:               And… uhm.. can you do me… fifty?
Ms Palliaer:        Yup.
Mr Bechara:               Okay?
Ms Palliaer:        Yup, yup.
Mr Bechara:               Now, you know where we’re standing, don’t you?
Ms Palliaer:        Uhm, yes I do. Yes.
Mr Bechara:               it’s really high up, now.
Ms Palliaer:        I know. (chuckles)
Mr Bechara:               And it’s gonna get a lot higher.
Ms Palliaer:        A lot higher? I gathered that.
Mr Bechara:               Okay?
Ms Palliaer:        No, that’ll all be good.
In my opinion, it is obvious from this passage and from the tone of each voice and their language, that these two people are doing business, that large amounts of cash are involved, that the activity is clandestine, and that Mr Bechara is telling Ms Palliaer what is happening, not the other way round.
In any event, about 10 minutes later, at about 11:39 a.m., Mr Bechara called Ms Palliaer again. This is call number 2290 from the same warrant. Ms Palliaer told him that ‘he’s gone riding’, and that the girlfriend (an obvious reference to the ‘lady friend’ referred to by Mr Bechara in the previous call) was actually her daughter, and that she would accompany Ms Palliaer. This was accepted by Mr Bechara. He then said:
Mr Bechara:               … And… do sixty two for me, okay?
Ms Palliaer:        Sixty two?
Mr Bechara:               Yup.
Ms Palliaer:        Yup. That’ll be easy.
Mr Bechara:               And that’ll give you the big five hundred.
Ms Palliaer:        Heh.
Mr Bechara:               After everything, uh, you get today.
Ms Palliaer:        Yup. Oh, God.
Mr Bechara:               Is that good?
Ms Palliaer:        Yup, that’s good. That’s all good.
If ‘the big five hundred’ refers to $500,000, as Detective Sergeant Hanssen suggested, this is an indication of the enormous amounts of money involved.
Finally, Mr Bechara gave Ms Palliaer instructions to start ‘heading there’. He then asked her, after checking with someone in the background:
Mr Bechara:       … (to background) She got all the information? The girl. She needs                    ID doesn’t she? (to phone) Yeah, she just needs an ID, love.
Ms Palliaer:        Yeah, I’m on… going to the same place, aren’t I?
Mr Bechara:               Yeah, that’s right. Yup.
Clearly, Mr Bechara was giving Ms Palliaer instructions as to what to do. He checked with somebody in the background, probably Mr Vrynios, who said he sent the parcel, and confirmed that Ms Palliaer’s daughter needed ‘ID’ to collect the parcel. This is obviously a reference to the need to take Megan Peltzer’s card with them.
Ms Palliaer’s reference to ‘going to the same place’ is consistent if she had previously attended at Pack & Send, Cairns branch, to collect parcels.
Detective Fincham, the Queensland detective, said that Ms Palliaer’s residence in Tarzali is about an hour’s drive from Mareeba, which is in turn about a 40-minute drive from Cairns (T 63).
The records of Pack & Send (Exhibit P44) show that the package from Norwood Pack & Send was collected by a person using the name Megan Peltzer at 2:20 p.m. on 25 August 2010. This is about two hours and 30 minutes after Ms Palliaer’s last conversation with Mr Bechara.
At about 6:09 p.m. Mr Bechara called Ms Palliaer again. This is call number 2328. Ms Palliaer said she had ‘just walked in the door’ and Mr Bechara boasted that he had ‘timed it to perfection’. Ms Palliaer said:
I – Home safe and sound. Well I’m just about to have a look and then I’ll decide, won’t I. I know I’ll be happy.
(page 1). Mr Bechara said he would call back in half an hour.
At about 7:04 p.m. Mr Bechara called back. This is call number 2329. Part of the conversation between Mr Bechara and Ms Palliaer is as follows:
Ms Palliaer:        Yeah good, good. (sniggers) Yes, I’ve just, uhm… had a look at all   my little pressies that you sent me.
Mr Bechara:               Yeah?
Ms Palliaer:        Lovely, lovely.
Mr Bechara:               Did you get ‘em all?
Ms Palliaer:        I think so. Five?
Mr Bechara:               Yup.
Ms Palliaer:        Yup, yup. Sweet.
Mr Bechara:               They’re all good?
Ms Palliaer:        Yes, yes. Lovely, lovely.
Mr Bechara:               You should be happy.
Ms Palliaer:        Yes, I am happy.
Mr Bechara:               Yup.
Ms Palliaer:        A lot of other people are happy too.
Mr Bechara:               Oh, okay.
Ms Palliaer:        (chuckles)
Mr Bechara:               (clears throat) Alright, you have a good night, okay?
Ms Palliaer:        Is there… just one in each of those? Or is there…
Mr Bechara:               Uh… there should be… yes, yes, yes, yes, yes,
Ms Palliaer:        Yes, yes?
Mr Bechara:               Yup.
Ms Palliaer:        Okay. All good. All good.

Again, the inferences to be drawn from these instructions are obvious:
·    Ms Palliaer had been on a short journey which involved some risk but was home (safe);
·    she had collected a package;
·    when she opened the package it contained her ‘pressies’;
·    she was very happy to receive them;
·    there were five ‘pressies’ in all, one in each of five containers.
The reference to ‘one’, in the opinion of Detective Sergeant Hanssen, suggested that there was one ounce of methylamphetamine in each container. This is consistent with the evidence of Mr Vrynios discussed earlier.
A total of five ounces, according to Detective Sergeant Hanssen, would sell for around $50,000 to $60,000, being at the high end of the range between $25,000 and $65,000. This is consistent with the figures of ‘50’ and ‘62’ referred to by Mr Bechara during the telephone calls.
The figures I have referred to, and the background opinion evidence about methylamphetamine, and the way it is sold and prices, were not challenged by the defence in cross-examination, nor mentioned in Mr Boucaut’s address. I accept that evidence for the purposes of these reasons.
At about 9:10 p.m. that night, Mr Bechara called Ms Palliaer again. This is call number 2343. He began the conversation:
I thought I’d ring up and say Hello.
This was obviously not the reason he had called, having regard to the fact that he had already spoken to her four times that day, the last time only about two hours earlier. He then inquired about whether everything had been ‘tucked away’.
I agree with Ms Costi’s submission that this behaviour is not consistent with the package containing innocent material such as beauty products or diet pills. Mr Bechara was clearly anxious to ensure that appropriate steps were being taken to ensure that whatever had been received was secure.
It is an agreed fact (Exhibit P54, number 14) that Nicole Bechara travelled to Cairns on a direct Jetstar flight on 25 August 2010, and returned the following day. She had previously flown to Cairns and back on Virgin flights on 20‑21 August 2010.
Nicole Bechara’s evidence was that she travelled to Cairns on a total of 14 occasions at the request of Mr Bechara, her brother. The purpose of these trips was to collect large amounts of money in cash. She said she was given specific instructions on where to go, and what to do, and how much to expect, by her husband, Mr Vrynios.
Ms Bechara said she always gave the money to Mr Bechara on her return to Adelaide. She said she collected over $1 million altogether (T 382).
As I mentioned earlier, Ms Palliaer had dealt with Mr Bechara before in relation to Allstate Loans Pty Ltd. Ms Palliaer made regular monthly payments of $5,400 by electronic transfer. If Ms Bechara’s evidence that she collected money in cash on behalf of Mr Bechara, having flown to Cairns specifically for that purpose, is accepted, and if that money came from Ms Palliaer or her agent, the inference is clear that the money was not part of a legitimate business transaction but was being paid for an illegal purpose.
I agree with the submission of Ms Costi that the evidence of telephone conversations between Mr Bechara and Ms Bechara in Exhibit P23 clearly demonstrate that in later trips to Cairns, she collected large amounts of money for her brother on his instructions and dealt with it according to those instructions. For example, in call number 1190 (part of Exhibit P23), a conversation at 1:35 p.m. on 21 January 2011, Ms Bechara tells Mr Bechara about recent dealings with a client. She said:
Ms Bechara:               Yeah, Um they’re expecting another king five today. Yeah, so,   Monday.
Mr Bechara:               Monday?
Ms Bechara:               Yeah
Mr Bechara:               The guy will pay interest on Monday?
Ms Bechara:               Yeah on Monday
Mr Bechara:               Okay
Ms Bechara:               - Overtalk – alright?
Mr Bechara:               Is that a hundred percent?
Ms Bechara:               No, not a hundred
Mr Bechara:               Why?
Ms Bechara:               Uh, because so many things are going on
Mr Bechara:               - Overtalk- alright
Ms Bechara:               Alright?
Mr Bechara:               Okay, alright
Ms Bechara:               Alright, bye
In call number 1197, at 3:37 p.m., Mr Bechara asked Ms Bechara:
Mr Bechara:               How much money does that guy have? – Pause – Did you call him?
Ms Bechara:               Yeah,
Mr Bechara:               -Overtalk- What?
Ms Bechara:               Still the same thing. But –Stutters– Um, Ah, On Saturday, he will                   have from fifty to seventy.
Mr Bechara:               Alright, can you find out?
Ms Bechara:               Yeah, but it will have to be on Saturday.
-Overtalk-
Mr Bechara:               Alright, find out, Okay?
-Overtalk-
Ms Bechara:               It’ll have to be on Saturday, alright?
Mr Bechara:               Alright.
Ms Bechara identified the parties to these conversations as Mr Bechara and herself. There was no challenge to these identifications in cross-examination or in Mr Boucaut’s address. I accept her evidence about that.
It is clear from these conversations that Ms Bechara is reporting back to Mr Bechara the results of her dealings with a person who owed Mr Bechara money, and he gave his approval to what she had negotiated or ascertained.
These conversations were in the context of count 2, but I accept that it is evidence of the nature of the relationship between Ms Bechara and Mr Bechara at the time, and is therefore relevant to all counts, particularly as they are fairly closely related in time.
The clear inference to be drawn is that Ms Bechara was acting on Mr Bechara’s instructions. This inference does not depend upon Ms Bechara’s credibility; it is apparent on the face of these transactions, from the tones of voice of the conversants and from the objective facts – for example, it is an agreed fact that Ms Bechara flew to Cairns on 30 January 2011 (Exhibit P54). The twenty-first of January 2011 was a Friday. If by ‘Saturday’ Ms Bechara meant the following Saturday, then the inference is clear that the money would be available by then, and that provided a reason for Ms Bechara to fly to Cairns to collect it.
Police Search – 90 Hogan Road, Tarzali, Queensland
On 27 August 2010, Queensland police searched the above property, the residence of Shayne Palliaer and her family. Detective Roelof Fincham of Mareeba CIB gave evidence of these events.
Detective Fincham said that the police were acting on information supplied by detectives in South Australia on 25 August 2010, no doubt the information gained from the telephone intercepts referred to earlier (T 63).
Detective Fincham said that Shayne Palliaer, Kaya Palliaer, Nathan Palliaer and Kaya Palliaer’s then boyfriend, David Cline, were present at various stages of the search. The list of exhibits seized is Exhibit P19. Photographs taken during the search are Exhibits P18 and P20. The following exhibits found during the search are relevant:

Exhibit No.

1

A plastic tub containing approximately 30 grams of pink powder found in the refrigerator in the laundry.

It is an agreed fact that this tub contained 20.244 grams of pink crystalline substance containing 1.963 grams of pure methylamphetamine, or 9.7% (Exhibit P54, Agreed Fact No. 1).

2

A clip seal bag containing a small amount of pink powder, also found in the refrigerator in the laundry.

It is an agreed fact that this bag contained 0.06 grams of substance, containing 0.007 grams of pure methyl-amphetamine, or 12.6% (Exhibit P54, Agreed Fact No. 3).

It is noteworthy that the substances containing methylamphetamine were pink in colour, which is the colour referred to by Shayne Palliaer in her conversation with Mr Bechara on 13 August 2010 (call number 1115 in Exhibit P1).

Exhibit No.

12

Small container with trace amounts of pink powder found in the freezer compartment of the refrigerator in the kitchen.

It is an agreed fact that this tub contained 0.083 grams of material, containing 0.029 grams of methylamphetamine, or 35.9% (Exhibit P54, Agreed Fact No. 2)

16

Black leather wallet containing Centrelink card and other cards in the name of Megan Emily Peltzer found in a drawer in the kitchen. (The other cards included a Qantas frequency card and an AustSafe Super card.)

18

Westpac deposit slip dated 19 August 2010, the deposit being to All State Loans in the sum of $5,500.

This is the payment which appears in the Allstate Loans Westpac banking records already referred to, the deposit and resulting credit appearing in the statement on 19 August 2010 (Statement No. 10 page 2 of 4 – part of Annexure WG1, Exhibit P45).

Megan Peltzer gave evidence via video-link from Queensland. She was a friend of Ms Palliaer’s daughter Kaya. She would occasionally drop into the Palliaer house for a drink.
Ms Peltzer identified a Qantas frequent flyer card, an ‘AustSafe’ superannuation card and, although she did not specifically mention it, she also recognised in the group the yellow Centrelink card as being hers as well (T 435). She said these cards may have been in an old wallet. Ms Peltzer denied receiving a package through Pack & Send, or that it was her signature on the Pack & Send delivery manifest (Exhibit P44) (ibid).
Ms Peltzer’s evidence was not challenged in cross-examination.
Clearly, someone at the Palliaer house used Ms Peltzer’s cards to identify herself when the consignment was collected from Pack & Send (Cairns) on 25 August 2010.
Conclusion – Count 1
The clear inferences to be drawn from the conversations between Mr Bechara and Ms Palliaer in calls numbered 1016, 1115, 2225, 2289, 2290, 2329 and 2343 is that Mr Bechara was orchestrating the delivery of the methylamphetamine which the police found in Ms Palliaer’s house on 27 August 2010. He had advised her that the delivery was coming, he instructed her how and when to collect it, and he confirmed that the delivery had occurred and that she was happy with it.
Further, the conversations recorded between Mr Bechara and Ms Bechara in calls numbered 1190 and 1197 make it clear that Ms Bechara was collecting money from Queensland on Mr Bechara’s behalf, as does the agreed evidence about the dates of her trips to and from Queensland. This evidence does not depend upon the credibility of Mr Vrynios or Ms Bechara. I reject the submission of Mr Boucaut to the contrary.
I am satisfied beyond reasonable doubt that Mr Bechara is guilty of count 1. I reject as a reasonable possibility that this was a transaction conducted by Mr Vrynios on his own account, and that Mr Bechara had no part in it. It is proven beyond reasonable doubt that Mr Bechara was a principal in a joint criminal enterprise to commit this offence.
Count 2
The consignment to which this count refers was sent on 10 January 2011. It consisted of a piece of board which had been fashioned to have a hollow compartment at its centre. The drugs had been placed in the hollow, and the entire thing had then been covered with gold-coloured laminate, a striking and unusual material.
Mr Vrynios said he made up the name of the consignor, ‘Arthur Vozzo’, and his address, 102 East Terrace, Henley Beach, and his telephone number.
The consignment note from Pack & Send (Unley) for the 10 January 2011 package is numbered 7242 and is Exhibit P3.
Mr Vrynios said that a previous package had been sent to ‘Mr Tony Archibald’ in Queensland on 4 January 2011. That package did not contain drugs, it was sent ‘just to see if there would be any dramas’ (T 122). That consignment note, from Pack & Send (Norwood), is numbered 10564 and is Exhibit P5.
There is evidence, which I will discuss later (at [158]) that the real Mr Tony Archibald was being impersonated by another man. It is not alleged that Mr Archibald was actually involved.
Mr Vrynios said that in relation to both consignments, Mr Bechara had given him Mr Archibald’s name and address, and he copied it down (Exhibit P17).
Mr Vrynios said that he assisted Mr Bechara to prepare the package sent on 10 January 2011. On Mr Bechara’s instructions, he packaged the methylamphetamine at his house after Mr Bechara gave him some methylamphetamine at the factory. He mixed the methylamphetamine with ‘mixing agent’, which I take to be the process known as ‘cutting’ the drug, so that it made the weight stipulated by Mr Bechara. After returning to the factory, he placed it in plastic bags and sealed them. There were four ounces of material in each bag. He packaged the methylamphetamine with three layers of plastic, then coffee to disguise the smell. He said he did this in a secluded area because George Tzekas was still at work. After Mr Tzekas left, he and Mr Bechara put the methylamphetamine in the void, glued and nailed the two pieces together, then covered the package with gold laminate. He identified the package in Exhibit P4, photograph 5, as the package they made (T 125-8).
Mr Vrynios also said that he wrote ‘SP’ (for ‘speed’) on one plastic package, and ‘CM’ (for ‘crystal meth’) on the other, on Mr Bechara’s instructions (T 128).
George Tzekas is a cabinetmaker who began working at Mr Bechara’s business in October 2010. He obtained the gold laminate from his father, who purchased it in the late ’80s. He said he kept it as a ‘souvenir’, and rarely used it (T 564).
Mr Tzekas said that before Christmas 2010, Mr Bechara asked him to make up two panels to demonstrate that he could make ‘country-style’ doors. His drawing is Exhibit P47. He explained that the wooden package in which the drugs were found appeared to consist of two of these ‘doors’ joined back to back, creating a void between them (T 626).
Mr Tzekas said that as he was leaving work at about 3 p.m. on 9 January 2011, Mr Bechara asked him to come back after dinner and make something for him. He said he was on his way back to work at about 5 p.m. when he had a car accident, and did not arrive (T 627-8).
Mr Tzekas was not cross-examined about this evidence. I accept Mr Tzekas’ evidence, and find that it provides strong circumstantial evidence of Mr Bechara’s central role in the preparation of this consignment for shipment.
Bruno Battistella is a chartered accountant. He was Mr Bechara’s accountant for a number of years, and a director and shareholder in a number of companies set up by Mr Bechara, including AC Loans, Allstate Loans, Signature Games Pty Ltd and BFS Transport Pty Ltd.
Mr Battistella said he often went to Imagine Kitchens’ premises and often saw Mr Bechara doing ‘hands-on’ work. He said that in the course of one of these visits, he saw Mr Bechara cleaning an item similar to that depicted in Exhibit P4, photograph number 5. He described it as covered in gold laminate. It looked ‘very different’. Mr Bechara explained they had made up a sample for someone who wanted a kitchen made out of that material (T 581).
Mr Battistella was cross-examined vigorously by Mr Boucaut about his evidence. He explained that this incident remained in his memory because he was surprised that someone would want a kitchen made out of such material (T 583).
Mr Boucaut attacked Mr Battistella on the basis that he had effectively stripped money out of Mr Bechara’s companies before placing them in liquidation. After answering many questions, and denying these imputations, Mr Battistella eventually declined to answer further questions on the ground that the answers may incriminate him.
Ms Costi submitted that I should draw no adverse inference from the exercise by Mr Battistella of this right. She quoted Pappas & Anor v New World Oil Developments & Ors,[17] where Lee J drew a distinction between a situation where the refusal relates only to a collateral issue, and where the refusal amounts to a ‘failure to adduce evidence on central issues on which the witness may be expected to give evidence (which) will permit a court to be satisfied that inferences adverse to that party may be properly drawn …’ (p 310) (my emphasis).
[17] (1993) 117 ALR 304
It must be observed that Pappas was a civil case before the Federal Court, and Lee J was considering a refusal to answer by Mr Pappas, a party to the litigation.
The questions to which Mr Battistella invoked the privilege are, in my view, collateral to the central issues in this case. They relate only to Mr Battistella’s credit, and not to the charges being tried. Mr Battistella has denied the imputations put, and those denials may not be contradicted (J D Heydon, Cross on Evidence, 8^th edition, paragraphs 17580-17590).
However, this is a criminal trial, and the onus is on the prosecution to prove its case beyond reasonable doubt. If a doubt is raised about the creditworthiness of a witness, then it is for the prosecution to resolve it. In this case, I think it is appropriate, notwithstanding Mr Battistella’s legal right to invoke his privilege, to ignore his evidence on the grounds that he may have the motive to lie which has been identified by Mr Bechara.
The Surveillance Evidence
On 10 January 2011, Detective Brevet Sergeant Lucas was conducting surveillance of Mr Bechara and his associates.
There was very little cross-examination of the prosecution surveillance witnesses, and there was no challenge to the accuracy of their observations in Mr Boucaut’s address. I accept this evidence as accurate and reliable.
Mr Lucas said that on 10 January 2011, at 2:28 p.m., he observed George Vrynios, Mr Bechara and a man named Nick Assiotis get into a Kia Mentor sedan and drive to Unley.
Incidentally, Mr Lucas said that Mr Bechara got into the front passenger seat, and Mr Vrynios got into the rear passenger seat, which is evidence, of slight weight, of the nature of their relationship.
In any event, Lucas saw the vehicle stop outside 33 Unley Road, Unley. George Vrynios got out and walked into the Unley branch of Pack & Send at 29 Unley Road, carrying a ‘box’ covered by a ‘dark jumper’ (T 714). Lucas said the Kia sedan then departed.
At 2:52 p.m., Lucas observed George Vrynios emerge from the Pack & Send holding a yellow A4-sized piece of paper. Soon after, the Kia arrived, now travelling north, and George Vrynios got in. The car then drove off in the direction of the city (T 716).
Mr Vrynios said that the yellow A4 sheet of paper was the consignment note for the package, Exhibit P3 (T 124). The note describes the sender as Arthur Vozzo, and gives his particulars. Mr Vrynios said he made up these details. The receiver is described as Tony Archibald, the same person as described in the 4 January consignment.
I agree with the submission of Ms Costi that there would have been little point in travelling all the way to Unley from Nailsworth just to consign a package through Pack & Send, when there was a Pack & Send nearby. I agree that the inference from this supports Mr Vrynios’ evidence that they used different branches to minimise the chances of detection. He said they ‘Just changed it around so they don’t see your face all the time or be recognised’ (T 112).
In any event, police officers attended at Pack & Send Unley at 3:25 p.m. and intercepted the consignment. Detective Fahy described it as a ‘seemingly solid laminate board’ (T 34). The package was seized, x-rayed at Australian Customs, then taken to the East Adelaide Crime Scene office in the city, where it was ‘deconstructed’. Photographs of this process are Exhibit P4.
When deconstructed, the board was found to have a hollow centre which contained two plastic packages, one marked ‘ICE’ and the other ‘SP’.
It is an agreed fact that the bag marked ‘SP’ (Exhibit P54, No. 4) was a moist crystalline powder weighing 113.2 grams, containing 35.8 grams of methylamphetamine, which is, on my calculations, about 31.625% pure.
It is further agreed that the bag marked ‘ICE’ (Exhibit P54, No. 5), was a crystalline powder weighing 106 grams, containing 55.4 grams of methylamphetamine, which is, again on my calculations, 52.264% pure.
These are very large amounts of methylamphetamine.
The Telephone Interception Evidence

In this section, I refer to the identities of participants in conversations by name. The identities of these people were not disputed. The identities of these people have been established by the evidence, by the context in which the conversations took place, and by the conduct of the defence.
On the evidence before me, the first inquiry made about the package sent on 10 January 2011 and seized by the police occurred on 17 January 2011. At 5:08 p.m. that day, Mr Vrynios telephoned Mr Andrew Dinnison, the owner/operator of Norwood Pack & Send. Mr Dinnison had been given instructions by the police about how to respond to such an inquiry.
In response to Mr Vrynios’ inquiries, Mr Dinnison told him the package was still in transit, that ‘they’ had a ‘huge backlog’, that ‘they’ were ‘swamped’ (Exhibit P22A, call 81, page 1). By ‘they’, Mr Dinnison was referring to Pack & Send in Queensland, in the context of the chaos that had occurred after the Brisbane floods of early 2011.
At 9:45 p.m. the same evening, Mr Vrynios reported to Mr Bechara. The language they adopted is deliberately vague and indirect. Again, this suggests an inference that they were not discussing legitimate topics. The conversation included:
Mr Bechara:               How did that builder go with his sample?
(This is a clear reference to the package sent on 10 January: the consignment note Exhibit P3 referred to it as a sample.)
Mr Vrynios:               Which builder? Oh, that one? It’s, uh, still in transit.
Mr Bechara:               Oh, okay.
Mr Vrynios:               It’s all backlogged.
(Mr Vrynios was there using Mr Dinnison’s word for what was happening in Queensland.)
Mr Bechara:               Alright
Mr Vrynios:               Hey, all the – all those ones – all the smaller ones have all, uh,   backlogged up there. So hopefully its gonna start –
Mr Bechara:               (spoken over) And how long’s that gonna be?
Mr Vrynios:               They – they reckon hopefully she’ll start moving either towards the   end of this week, early next week … it should be all done. (sniffs)
Mr Bechara:               Oh, okay …
(Exhibit P22A, call 163, page 2).
There can be no doubt from the contents of the conversation and their tones of voice that it was Mr Vrynios reporting to Mr Bechara about the situation with the parcel, and not the other way round.
On 19 January 2011, a police undercover operative calling himself ‘Ben Jacobsen’ called the number on the consignment note Exhibit P3 supposedly proved by ‘Arthur Vozzo’. This call confirmed there was no such number (T 95), supporting Mr Vrynios’ evidence that he made it up.
At 3:08 p.m. the same day, ‘Ben Jacobsen’ called the number given for ‘Tony Archibald’, the consignee of the parcel nominated on the consignment note by Mr Vrynios. A man answered, and confirmed he was expecting ‘some timber’. After explaining that the floods were the cause of the delay, ‘Ben Jacobsen’ asked for a description of the article, pretending that the parcels in their depot had become separated from their invoices by the flooding. ‘Archibald’ was unable to describe it further than: ‘It’s only a chunk of fucken solid wood’. ‘Ben Jacobsen’ asked ‘Archibald’ to get the senders to call him (Exhibit P24A, page 3).
It is clear that this man was not Tony Archibald at all. Detective Fahy spoke to the real Tony Archibald in Queensland. He said that the man speaking to ‘Ben Jacobsen’ in that conversation was not Tony Archibald, but was a man named David Cline, to whom he spoke at Shayne Palliaer’s house at Tarzali, Queensland (T 723). Megan Peltzer identified David Cline as the boyfriend of Kaya Palliaer, Shayne Palliaer’s daughter (T 433). She said she also knew a ‘Tony’ who was a friend of the Palliaers, but she was unsure of his last name (T 436).
On 20 January 2011, Mr Vrynios called the number provided by ‘Ben Jacobsen’ to ‘Tony Archibald’, using the name ‘Arthur Vozzo’. He described the package to ‘Ben Jacobsen’, who undertook to make further efforts to find it.
On 21 January 2011 at 12:52 p.m., Mr Bechara discussed the issue with Mr Vrynios again:
Mr Bechara:       You really need to find out about that thing, George.
Mr Vrynios:               Yeah, no, I wanna go today and fin – hopefully get enough today, cuz he said if it’s – if it – if they get the – there today they –
Mr Bechara:       Now, please. Now. Now.
Mr Vrynios:        Alright, no worries.
(Exhibit P6, call number 1173, page 5)
Again, the clear import of this conversation is that Mr Bechara is giving Mr Vrynios orders, and Mr Vrynios is following them. The tone of their voices makes this clear.
Very soon afterwards, at 1:12 p.m., Mr Vrynios called ‘Ben Jacobsen’ again. ‘Ben Jacobsen’ again fobbed him off, with a story about a king tide coming and promising to call back later (Exhibit P22, call number 325, page 1).
On 22 January 2011, Mr Bechara asked Mr Vrynios in another telephone conversation whether the ‘builder’ had received the ‘drawings’ yet. Mr Vrynios reported to him his conversation with ‘Ben Jacobsen’.
On 24 January 2011 at 3:34 p.m. Mr Vrynios called ‘Ben Jacobsen’ again and was again fobbed off. ‘Ben Jacobsen’ offered on behalf of Pack & Send to pay the cost of sending another parcel if it was only ‘a bit of wood’, but Mr Vrynios declined, saying it was a ‘special order’, and a ‘one off’. (Exhibit P24A, document RK 10, pages 2-3).
On 27 January 2011 at 1:08 p.m., Mr Vrynios called ‘Ben Jacobsen’ again. ‘Ben Jacobsen’ told him he had been unable to locate his package (Exhibit P22A, call number 481, page 2).
Later that day, at 5:21 p.m., Mr Vrynios and Mr Bechara were discussing the day’s events on the telephone. Clearly, Mr Vrynios had become suspicious. He said, referring to Pack & Send:
Mr Vrynios:       Before the f___before… they’ve got it and… uh… it’s just been, uh, moved around. And now… it hasn’t… it… it’s left from where its supposed to have left from, and… it hasn’t got there. And I don’t know where it is from there. (pause). And I… questioned him on that and, uh… he was just a bit dumb-founded.
Mr Bechara:       What do you mean?
Mr Vrynios:       He just tried to cover up.
Mr Bechara immediately switched the conversation to a discussion about his father’s care (Exhibit P6, call number 1956, page 12).
This switch of conversation prevented further discussion of the topic. I agree with Ms Costi’s submission that one would not expect this sort of discussion about a legitimate business activity, and it supports an inference that the package in question was illicit.
The other inference to be drawn from these conversations is that Mr Bechara had a strong personal interest in this package, and was supervising Mr Vrynios’ attempts to recover it.
On 30 January 2011, Nicole Bechara flew to Cairns (Exhibit P54, Agreed Fact No. 14). She said the purpose of the trip was to inform a lady that she was responsible for half the cost of the package going missing (T 386). She said she spoke to a woman with a heavy ‘Aussie’ accent. The prosecution suggests this was Shayne Palliaer. There is no evidence that this was Ms Palliaer, but the evidence of previous dealings between Mr Bechara and her concerning illegal drugs in count 1 is relevant to this issue, and makes it likely that it was Ms Palliaer. The woman sent someone ‘down’ to where Nicole Bechara was staying. Several hours later she met a man at a nearby toilet block, who told her ‘She’s not paying, no-one’s paying half the amount. You can tell him where to go’ (T 388). She said the man told her that the woman and her daughter held him (the man in Adelaide) responsible for their arrests, an apparent reference to the arrest of Shayne Palliaer and her daughter in August 2010.
Conclusion – Count 2
The evidence of Mr Tzekas about where the wooden package was sourced from and Mr Bechara’s request to him to come back to work on the night of 9 January 2011, the evidence of the surveillance officers about Mr Bechara’s presence in the car when the package was dispatched from Pack & Send (Unley), and the reports made by Mr Vrynios to Mr Bechara about the progress of the package all demonstrate clearly that Mr Bechara was knowingly concerned in the consignment of the package.
This conclusion is fortified by the evidence in count 1 that Mr Vrynios and Mr Bechara had been engaged in an ongoing criminal enterprise in sending drugs, particularly amphetamines, to Queensland. That evidence, while it clearly corroborates the evidence to that effect of Mr Vrynios and Ms Bechara, is clearly sufficient of itself to satisfy me beyond reasonable doubt that Mr Bechara was a principal in a joint criminal enterprise in relation to count 2. I reject Mr Boucaut’s submission to the contrary.
I reject as a reasonable possibility that Mr Vrynios was conducing this enterprise by himself, or with his wife, as suggested by the defence.
I am satisfied beyond reasonable doubt that Mr Bechara is guilty of count 2.
Count 3
At 1:42 p.m. on 2 February 2011, Mr Vrynios was driving a white van registered number XTX 630 on Benjamin Street at Manningham, a location quite close to the residence of Mr Bechara’s parents in Ways Road, Hampstead Gardens. The van was stopped by police and Mr Vrynios was arrested. Inside the van was a ‘Cheezels’ box, in which was a green Woolworths bag containing two white bags containing white powder.
It is an agreed fact (Exhibit P54, No. 7), that the larger bag contained 298 grams of white powder, of which 59%, or 175.6 grams, was pure cocaine.
Another agreed fact (Exhibit P54, No. 8) is that the smaller bag contained 35.08 grams of white powder, of which 58%, or 20.49 grams, was pure cocaine.
The total weight of the mixture was 333.08 grams. There is no doubt that this is a commercial quantity, within the meaning of s 4 of the CSA.
Mr Vrynios gave evidence that he had been at work at Imagine Kitchens during the morning of 2 February. Mr Bechara and a man with the nickname ‘Zoki’ arrived at the factory mid-morning.
At one stage Mr Bechara and Zoki were standing in the driveway and they called him out and there was some general conversation. He left and went back inside.
Mr Vrynios said he was called out again, this time Mr Bechara and Zoki were standing apart. Mr Bechara told him to go to the (neighbouring) North Road Cemetery and wait for a silver car to come through. He would be given something by someone in the car.
The video surveillance evidence confirms that these movements occurred. Mr Vrynios said that this last conversation with Mr Bechara took place at the point indicated as 12:13:40 p.m. on the video.
Mr Vrynios drove the white ‘Imagine Kitchens’ van to near the cemetery entrance, on Derlanger Avenue, at 12:13:57 p.m. on the video. He parked on Cassie Street.
Mr Vrynios said he walked into the cemetery and waited for 30-60 minutes, but the vehicle did not arrive. He received a text message, and returned to the factory.
Mr Vrynios said that on his return, Mr Bechara told him there was a green plastic bag in a bin. He said there was some ‘coke’ in it. He should retrieve it, take it into the toilet and open it up (T 181).
Mr Vrynios said he did as he was told and waited for Mr Bechara. Mr Assiotis came in, but he told him to get out. Mr Bechara came in and looked at the cocaine. He told him to taste it, but Mr Vrynios refused. Mr Bechara instructed Mr Vrynios to take the cocaine to his mother’s house (in Hampstead Gardens). He closed up the bag and left the toilet. He put the bag in a ‘Cheezels’ box and wrapped it in a towel and put it in the back of the van. He drove off, and was on his way to Mrs Bechara’s house when he was stopped and arrested (T 183).
The reason why Mr Vrynios left the factory and waited in the cemetery was unclear. On his evidence, the cocaine was at the factory when he got back. Whether he was sent on a ‘wild goose chase’ so that he could not see the delivery, or whether there was a late change in the delivery plan, remains unclear.
The Surveillance Evidence
Many of the events of 2 February 2011 were the subject of observation by police officers, and this surveillance was corroborated in many respects by closed circuit television (‘CCTV’) video taken by security cameras installed at the factory and seized by police that day.
On 1 February 2011, at 10:14 a.m., a telephone conversation occurred in which Mr Bechara is heard discussing with another male arrangements for picking him up at the airport at 12:45 p.m. (Exhibit P9, call number 2617). This call was made to telephone number 0412 613 057. It is an agreed fact (Exhibit P54, No. 16) that this number is registered to Djordie Bubanya. It is clear on the evidence that this man is ‘Zoki’.
At 3:23 p.m. Mr Bechara telephoned his wife and told her that his friend Zoki had just arrived from Sydney (Exhibit P9, call number 2684).
At 6 p.m. Mr Bechara is heard speaking to Zoki on the telephone. The conversation was in Serbian, and it is an agreed fact (Exhibit P54, No. 9) that it has been accurately translated. During the conversation, there is a vague discussion about things ‘being organised’, things ‘can be collected’, and ‘he wants to see you’.
In a later telephone call, at 8:28 p.m., Mr Bechara called the Intercontinental Hotel and made a booking in his name on his credit card, obviously for Zoki. This payment appears in the Allstate Loans Pty Ltd bank records (Exhibit P45). All these arrangements were made between Mr Bechara and Zoki. Mr Vrynios played no part. I agree with Ms Costi that it is to be inferred that Zoki was in Adelaide to see Mr Bechara, not Mr Vrynios.
At 10:26:32 a.m. Zoki called Mr Bechara’s mobile number and told Mr Bechara he was ready. Mr Bechara told him he would get someone to pick him up (Exhibit P9, call number 2751). At that time, Senior Constable Cushnie observed Zoki talking on his mobile phone as he was walking into the foyer of the Intercontinental Hotel (T 706-7).
At 11:02 a black Chrysler sedan driven by Nick Assiotis, an associate of Mr Bechara, arrived at the Intercontinental Hotel and Zoki got in the front passenger seat (T 652-3). The black Chrysler was driven to O’Connell Street, North Adelaide and was parked on the western side. Mr Assiotis left the vehicle at 11:07 a.m. and walked down Walter Street, returning at 11:22 a.m. carrying a large white bag which he placed in the boot (T 697).
The black Chrysler was then driven to the Imagine Kitchens factory, arriving at 11:27:56. Mr Assiotis alighted, retrieved the white bag from the boot and entered the factory. Zoki alighted and walked into the laneway next to the factory, where he spoke on his mobile phone (T 654-5).
At about 11:32 Zoki entered the factory through the front door, greeting Mr Bechara as he entered.
The surveillance officers noted that the white van XTX 630 driven by Mr Vrynios was already at the factory when the black Chrysler arrived (T654-5). This is consistent with Mr Vrynios’ evidence.
At about 11:50 a.m. Nicole Bechara arrived at the factory in a red Ford sedan, and entered the factory through the front door (T 658).
At about 12:13 p.m. Mr Bechara, Mr Vrynios and Zoki are seen to exit the side door and speak in a group in the driveway (T 670). Zoki went back inside, leaving Mr Bechara and Mr Vrynios speaking in the driveway. A few seconds later, they also went inside.
At about 12:15 p.m. Zoki emerged through the front door, walked across the car park and looked up and down Main North Road. About 20 seconds later, Mr Vrynios emerged through the front door and walked over to the white van. Mr Bechara then emerged and walked over and spoke to Zoki. Mr Vrynios got in the van and drove to the cemetery (T 673-4).
At 12:18 p.m. Mr Bechara and Zoki were observed walking south and then standing on the corner of Cemetery Road. Mr Bechara is seen pointing in the general direction that Mr Vrynios had gone. They walked back towards Imagine Kitchens again. Mr Bechara went inside, Zoki continued to walk north (T 674‑5).
Zoki was then seen in Edward Street. At 12:22 p.m. he was seen entering a silver car (T661). I agree with Ms Costi’s submission that this evidence about the silver car lends support to the evidence of Mr Vrynios that he was told to wait for a silver car.
At 12:21 Nick Assiotis and Nicole Bechara left Imagine Kitchens and drove towards the cemetery in the red sedan. At 12:25:12 there was a telephone conversation between Mr Vrynios and Nick Assiotis in which Assiotis asked Mr Vrynios where he was. Mr Vrynios said he was ‘inside’. Mr Assiotis said he was ‘near your car’. He said he would ‘wait here alright?’:
Mr Assiotis:               Yes, are they here?
Mr Vrynios:               No I can’t see them.
Mr Assiotis:               Okay then no worries.
Mr Vrynios:               I will sit on the chair now.
(Exhibit D28, page 2).
This is consistent with Mr Vrynios’ evidence that he sat on a park bench in the cemetery (T 178), and the evidence of Nicole Bechara to the same effect (T 446).
At 12:25:44 p.m. Zoki called Mr Bechara’s mobile phone and said, in broken English, ‘Brother, I come there for half an hour, okay?’, indicating he would be there in half an hour.
In the meantime, Mr Vrynios had sent a text message to his wife asking her to get his keys from the factory so he could go straight to Hampstead Gardens from the cemetery (T 179-181). The red sedan was observed by police returning to the factory at 12:35 p.m., Nicole Bechara went inside, then returned to Cassie Street. Ms Bechara was then seen to walk into the cemetery (T 637), which supports her evidence to the same effect (T 447).
At 13:05:17, Zoki was filmed on CCTV walking into the factory carrying a green shopping bag, identical to the Woolworths bag seen later. He had not been seen to have that in his possession previously. Less than a minute later, Mr Bechara called Nicole Bechara’s mobile phone and said, in a foreign language: ‘Tell George to come back home, okay?’ (Exhibit P9, call number 2771).
Mr Bechara must have been still at the factory when Zoki arrived. I accept that the clear inference to be drawn is that it was Zoki’s arrival with the green bag that prompted Mr Bechara’s order or direction to Mr Vrynios, Ms Bechara and Mr Assiotis to return.
I also agree that the tone of Mr Bechara’s directive makes it perfectly clear that it was he who was orchestrating these events, that it was he who was in command.
The CCTV records that the red sedan containing Ms Bechara and Mr Assiotis arrived back at 1:15 p.m., or 13:14:34 to be precise, and the white van driven by Mr Vrynios arrived at the same time.
It is clear on the CCTV video that Mr Vrynios was not carrying anything when he exited the van at 13:15:31 and entered the factory.
At 13:35:55 Mr Vrynios is to be seen on the CCTV video leaving the factory carrying an object under his arm, walking to the rear of the van and putting it inside (T 682-3). This was the position in which it was later found by the police (T 718, and see the photograph Exhibit P25).
At about 1:36 p.m. Mr Bechara, Ms Bechara, Zoki and Mr Assiotis got into the red sedan and drove towards Hampstead Gardens. The red sedan was seen by the police near the Ways Road address and was followed. It was being driven erratically (T 639).
This corresponds with Nicole Bechara’s observations from inside the car (T 452). She said after they evaded the police, Mr Bechara drove back to the factory, the others got out (Mr Bechara, Mr Assiotis and Zoki), and she went home (ibid).
The arrival of the red sedan back at the factory was observed by police (T 700). Mr Assiotis got into his black Chrysler sedan and was followed to Prospect (T 701).
At 1:57 p.m. the red sedan was observed at a BP service station on Prospect Road, which is consistent with Ms Bechara’s evidence that she had to get petrol on the way home (T 452).
Mr Bechara and Zoki walked west on Pulsford Road, Prospect (T 664) and were later seen on Milner Street and Kingston Lane. They were last seen near the Windmill Hotel at 2.14 p.m.

At 2.15 p.m. Mr Bechara was observed opening the eastern door of the Windmill Hotel and looking up and down Main North Road. At 2:17 p.m. he opened the southern door of the Windmill Hotel and did the same (T 702-3).
At 2.19 p.m. Mr Bechara and Zoki emerged from the Windmill Hotel and walked into Ballville Street, where they got into a taxi (T 645). The taxi was followed to O’Connell Street, North Adelaide, then to Kermode Street.
At 2:33 p.m. Mr Bechara and Zoki were seen at the Caltex service station near Gover Street, North Adelaide, walking down O’Connell Street. At 2.39 p.m. Mr Bechara made a call on a public phone while Zoki waited on the footpath.
At 2.47 p.m. the two men got into another car and drove away. Police observations ceased in Kermode Street, North Adelaide (T 703).
This behaviour after Mr Vrynios’ arrest strongly supports Nicole Bechara’s evidence that Mr Bechara was aware of his arrest and was taking evasive action. The four people in the red sedan effectively scattered from 85 Main North Road and Mr Bechara’s behaviour strongly suggests flight from the scene.
Ms Costi submitted that it is odd that four people were in the red sedan and Mr Vrynios was alone in the van when they were all heading for Ways Road, Hampstead Gardens. She suggested that Mr Vrynios was being set up so that if he was detected, it could be argued he was alone responsible for the cocaine.
While I accept that is an interpretation of the events which is open on the evidence, I am not satisfied beyond reasonable doubt that was Mr Bechara’s intention. I therefore do not draw that inference to indicate a consciousness of guilt on his part.
Without going through the chronology again, I accept Ms Costi’s submissions that the objective evidence of the surveillance officers, the CCTV and telephone interceptions all substantially correspond with the evidence of Mr Vrynios and Ms Bechara about what happened in and around the cemetery and back at the factory, and Mr Vrynios taking the package containing cocaine to the van.
Ms Costi accepted that there is a discrepancy between the evidence of Ms Bechara and Detective Scutchings about whether the red car or the white van arrived in Cassie Street first. I agree with Ms Costi that Scutchings’ evidence is inconsistent with the telephone evidence, and he must be mistaken about that. In any event, I do not see that as an issue affecting the credibility of Mr Vrynios’ evidence.
Ms Costi submitted that the fundamental point is that the evidence shows that Mr Vrynios did not carry anything out of the cemetery and into the factory. The logical conclusion from that is that the cocaine had arrived at the factory and was in Mr Bechara’s possession and control before Mr Vrynios returned. The clear inference is that it was Zoki, who arrived back at the factory carrying the shopping bag before Mr Vrynios was called back, who delivered the cocaine to the factory. I agree.
Conclusion – Count 3
All of Mr Vrynios’ evidence about the movement of people during the morning is corroborated by the video and surveillance evidence.
The telephone interceptions demonstrate the direct relationship between ‘Zoki’ and Mr Bechara. Their actions in walking to the corner of Cemetery Road, and Mr Bechara pointing in the direction Mr Vrynios had gone, demonstrate Mr Bechara’s knowledge of Mr Vrynios’ movements, and the relevance of Mr Vrynios’ presence in the cemetery. It was obviously of interest to Zoki. Almost immediately after these events, Zoki walked to Edward Street and entered a silver car.
The evidence of the telephone conversations, and the surveillance of the movements of the red sedan, supports Mr Vrynios’ evidence that he remained in the cemetery during the relevant period.
The evidence of Zoki returning to the factory, after telling Mr Bechara he would do so on the telephone, and Zoki carrying a bag similar to that found later in the van containing cocaine, is strong evidence that it was Zoki who brought the cocaine to the factory.
Mr Vrynios was then, almost immediately, directed to return to the factory by Mr Bechara on the telephone to his sister. He returned, not carrying anything. He came out 20 minutes later, carrying something which appeared like the package containing the cocaine found by the police later.
Mr Bechara’s erratic driving after those in the red car, on Ms Bechara’s evidence, had seen the police, which was observed by the police as well as by Ms Bechara, is suggestive of a guilty mind. However, it could be explained as a desire not to be associated with whatever Mr Vrynios may have done, or by a suggestion that Mr Bechara panicked. I will therefore ignore this evidence.
But Mr Bechara’s evasive behaviour after returning to the factory cannot be so explained. The walking up and down side streets, use of multiple taxis, the frequent checking for surveillance, all indicate that he was fleeing with Zoki and attempting to evade detection.
I am satisfied beyond reasonable doubt that there is no explanation for this conduct other than a consciousness of guilt. I am satisfied beyond reasonable doubt there is no such explanation ( R v Power,[18] R v Ciantar[19]).
- Defence Address – Count 3
[18] (1996) 87 A Crim R 407 at 409
[19] (2006) 167 A Crim R 504
Mr Boucaut’s address, insofar as it dealt with specific counts, concentrated on count 3.
I have already referred to Mr Boucaut’s criticisms of the evidence of Mr Vrynios and Ms Bechara in my general remarks about accomplice evidence. I have not recounted all of those criticisms – they include the lack of evidence, in their telephone conversations, of any fear of Mr Bechara; the inconsistencies between them about, for example, Ms Bechara’s knowledge about the amphetamine shipments to Queensland (T 262), Mr Vrynios’ previous dealings with cocaine (T 299, T 469), and Mr Vrynios’ evidence about whether he knew ‘Zoki’s’ real name (T 193-4).
As to count 3, Mr Boucaut pointed out that Mr Bechara made no attempt to disguise his meeting with Zoki, and he used his own credit card to pay for his room at the Intercontinental Hotel. He submitted that the lack of effort to disguise his activities is inconsistent with guilt.
I do not accept this submission, which amounts to an argument that it is surprising that the case against Mr Bechara is not stronger. In my view, the strength of the case against him can be assessed on the objective facts, and that such considerations are not helpful to that process.
Mr Boucaut referred to the evidence of Ms Bechara that Mr Assiotis collected the ‘Cheezels’ box, in which the cocaine was later found, from his car, and that Mr Bechara told him to give it to Mr Vrynios in the toilet. Mr Vrynios said Assiotis retrieved it from the bin.
In neither case is this evidence corroborated, and, as I observed earlier, Mr Vrynios and Ms Bechara cannot corroborate each other. I accept that their evidence cannot be relied on unless it is corroborated. I think such issues take the matter no further.
It may well be that Mr Assiotis had more to do with these events than meets the eye. But that does not divert me from the task of assessing whether the prosecution has proved the case against Mr Bechara beyond reasonable doubt.
Mr Boucaut submitted that there is no evidence linking Mr Bechara with the cocaine in count 3. For the reasons I have already expressed, I reject that submission.
All of this evidence, independent of the evidence of Mr Vrynios and Ms Bechara, is sufficient to satisfy me beyond reasonable doubt of Mr Bechara’s guilt. The suggestion by the defence that Mr Vrynios was acting on his own account in relation to the cocaine is not a reasonable possibility on the evidence.
I am satisfied beyond reasonable doubt that Mr Bechara is guilty of count 3.
Verdicts
My verdicts are as follows:
Count 1     -       Guilty
Count 2     -       Guilty
Count 3     -       Guilty

Exhibit No.
12	Small container with trace amounts of pink powder found in the freezer compartment of the refrigerator in the kitchen. It is an agreed fact that this tub contained 0.083 grams of material, containing 0.029 grams of methylamphetamine, or 35.9% (Exhibit P54, Agreed Fact No. 2)
16	Black leather wallet containing Centrelink card and other cards in the name of Megan Emily Peltzer found in a drawer in the kitchen. (The other cards included a Qantas frequency card and an AustSafe Super card.)
18	Westpac deposit slip dated 19 August 2010, the deposit being to All State Loans in the sum of $5,500.