R v Elkhouri

Case •

[2020] NSWDC 741

•

01 October 2020

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Elkhouri [2020] NSWDC 741
Hearing dates: 16 July 2020; 22 July 2020; 1 October 2020
Date of orders: 1 October 2020
Decision date: 01 October 2020
Jurisdiction:Criminal
Before: M Adams QC ADCJ
Decision:

Not Guilty Verdicts

Catchwords:

TRIAL BY JUDGE ALONE - knowingly deal with proceeds of crime

Legislation Cited:

Crimes Act 1900

Category:Principal judgment
Parties: Office of Director of Public Prosecutions (Crown)
Christopher ELKHOURI (Accused)
Representation:

Counsel:
J Bowers of C (Crown)
T Hughes of C (Accused)

Solicitors:
ODPP (Crown)
Sayad Sahinovic Legal (Accused)
File Number(s): 2015/98606
Publication restriction: None

Judgment

INTRODUCTION

  1. Chris Elkhouri stands charged with offences connected with rebirthing of motor vehicles and dealing with the proceeds of stolen goods. The particulars of the charges are as follows –

(i) Between 29 July 2014 and 6 August 2014, in Alexandria and Concord in the State of New South Wales, he did facilitate car rebirthing activity that was carried out on an organised basis, knowing that it was a car rebirthing activity and it was carried out on an organised basis.

(ii) Between 29 July 2014 and 6 August 2014, in Alexandria in the State of New South Wales he did deal with the proceeds of crime, namely two Compair brand Superlight mobile lighting towers knowing that they were the proceeds of crime.

(iii) On 6 August 2014, in Concord in the State of New South Wales, did deal with the proceeds of crime namely a red Ferrari knowing that it was the proceeds of crime.

(iv) On 6 August 2014 in Concord in the State of New South Wales did deal with the proceeds of crime, namely a maroon VN Holden Commodore SS Group A sedan, knowing that it was the proceeds of crime.

  1. The first charge alleged an offence under s154G of the Crimes Act 1900 (unless otherwise indicated, all statutory references are to this Act), whilst the other three charges allege offences under s193B(2).

  2. Mr Elkhouri elected to be tried by Judge alone.    

  3. So far as the first count is concerned, s 154G provides as follows –

154G FACILITATING ORGANISED CAR, BOAT OR TRAILER REBIRTHING ACTIVITIES

(1) A person who facilitates a car, boat or trailer rebirthing activity that is carried out on an organised basis knowing that –

(a) it is a car, boat or trailer rebirthing activity, and

(b) it is carried out on an organised basis,

is guilty of an offence.

Maximum penalty--imprisonment for 14 years.

(2) For the purposes of this section, a car, boat or trailer rebirthing activity is an activity involving one or more of the following –

(a) the stealing of a motor vehicle, vessel or trailer or the receiving of a stolen motor vehicle, stolen vessel or stolen trailer,

(b) the interference with a motor vehicle, vessel or trailer, or a part of a motor vehicle, vessel or trailer, or a unique identifier, for the purpose of concealing the fact that a motor vehicle, vessel or trailer, or any part of a motor vehicle, vessel or trailer, is stolen,

(c) the affixing of stolen parts to a motor vehicle, vessel or trailer,

(d) the interference with a unique identifier, being a unique identifier that wholly or partly identifies a motor vehicle, vessel or trailer for registration under a law of any jurisdiction, for the purpose of disguising or misrepresenting the identity of a motor vehicle, vessel or trailer,

(e) the registration, in this or any other jurisdiction, of a stolen motor vehicle, stolen vessel or stolen trailer, or of a motor vehicle, vessel or trailer that has had stolen parts affixed to it,

(f) the supply of, or offering to supply, a stolen motor vehicle, stolen vessel or stolen trailer.

(3) A person facilitates a car, boat or trailer rebirthing activity if the person –

(a) takes, or participates in, any step, or causes any step to be taken, that is part of the activity, or

(b) provides or arranges finance for any step that is part of the activity, or

(c) provides the premises in which any step that is part of the activity is taken, or allows any step that is part of the activity to be taken in premises of which the person is the owner, lessee or occupier or of which the person has the care, control or management.

(4) A car, boat or trailer rebirthing activity is carried out on an organised basis if –

(a) it is planned, organised, structured or otherwise carried out in such a manner as to indicate that the activity is carried out on more than one occasion and involves more than one participant, and

(b) it is carried out for profit or gain.

(5) In proceedings for an offence against this section, for the purpose of proving that an activity was carried out on an organised basis, or that the accused knew it was carried out on an organised basis, it is not necessary to prove –

(a) that the accused knew any of the participants in the activity or that any of the participants knew each other, or

(b) that the activity was planned, organised, structured or otherwise carried out under the direction of any particular person or persons or in any hierarchical manner, or

(c) that the same participants were involved on each occasion on which the activity was carried out.

  1. So far as the other three counts are concerned the relevant provision is as follows –

193A DEFINITIONS

In this Part –

deal with includes –

(a) receive, possess, conceal or dispose of, or

(b) bring or cause to be brought into New South Wales, including transfer or cause to be transferred by electronic communication, or

(c) engage directly or indirectly in a transaction, including receiving or making a gift.

…

proceeds of crime means any property that is substantially derived or realised, directly or indirectly, by any person from the commission of a serious offence.

…

193B MONEY LAUNDERING

(1) …

(2) A person who deals with proceeds of crime knowing that it is proceeds of crime is guilty of an offence.

Maximum penalty--imprisonment for 15 years.

(3) …

(4) …

  1. Although s193B is headed “money laundering” the definition of “proceeds of crime” makes it clear that it is not confined to the possession of or dealing with money.

  2. The impugned cars and car parts that are alleged to have been involved in count 1 were discovered by police on the execution of search warrants on 29 July 2014 at a warehouse in Alexandria and on 6 August 2014 at residential premises in Concord. The lighting towers and Ferrari respectively referred to in counts 2 and 3 were found at the former location and the Commodore referred to in count 4 at the latter. Aside from descriptions of those items and the improper changes and proof of theft, the case focused essentially on the evidence which, the prosecution submitted, linked Mr Elkhouri with them in ways that demonstrated his guilt of the charged offences.

  3. The Crown must prove beyond reasonable doubt that Mr Elkhouri knowingly facilitated a car rebirthing activity that was carried out on an organised basis. In respect of the particular matters specified in s154G(2) it is alleged that he did one or more of the following things, showing that he was involved in car rebirthing: receiving stolen motor vehicles; interfering with unique identifiers for the purpose of disguising or misrepresenting the identity of a vehicle (or parts of a vehicle); or supplying or offering to supply stolen motor vehicles. Pursuant to s154G(3) the Crown alleges Mr Elkhouri facilitated the rebirthing activity by allowing steps that were part of the activity to be taken in premises of which the accused had care, control and management. The steps alleged to have been taken by the accused are one or more of those listed above. The Crown’s opening was somewhat wider. It was submitted that the accused and his sister “ran this business together in which they sold partially stripped vehicles and car parts”.

  4. Under s154G(4) a car rebirthing activity is carried out on an organised basis if the activity is carried out on more than one occasion, involves more than one participant, and is carried out for profit or gain.

  5. I should state at the outset that there can be no doubt that car rebirthing activities were carried out at one time or another involving interference with identifying features of vehicles and parts that were found at the warehouse and Concord. Whether those activities were actually carried out at either place is unproved, though it is at least reasonably possible that this was so to a greater or lesser extent. When those activities occurred is (relevantly) incapable of determination. (I return to the question of timing in due course.) It is clear that the items alleged to have been stolen were actually stolen, and the issue is, essentially, what Mr Elkhouri knew about this. The Crown alleges that Mr Elkhouri and his sister Lilian Elkhouri were jointly involved in the car rebirthing activity and had joint possession and control of the vehicles and parts found during the searches of the warehouse on 29 and 30 July 2014 and the premises at Concord on 6 August 2014.

  6. There was no direct evidence of any transactions connecting Mr Elkhouri with the acts forming any of the elements of any of the offences. The Crown case is a circumstantial one, which relies on the inferences said to be available from a number of proved, indeed uncontroversial, facts. The Crown case can be understood as consisting of a collection of strands which, it is submitted, combine to make a cable that establishes Mr Elkhouri’s guilt of each count beyond reasonable doubt.

  7. It can be accepted that the prosecution has proved facts that are consistent with Mr Elkhouri having care, control and management of the warehouse and that this was also possibly true of Concord. The knowing storage of altered parts pending further relevant activity will suffice to prove the offence. The essential problem in this respect is whether the evidence goes further than mere consistency to proof beyond reasonable doubt. An additional problem is the necessity to establish that Mr Elkhouri had care, control or management of the premises in which any step that is part of the activity is taken when there is no evidence as to when or where the improper interference occurred and no direct evidence that he was aware of any particular interference. A cognate problem is whether there is proof to the requisite standard that Mr Elkhouri’s involvement occurred within the time frame specified in each charge.

The warehouse search

  1. These premises in Bowden Street Alexandria comprised a large two-storey decrepit factory building about 60m long and 20m wide, with its roof removed and the ceiling above the ground floor, though having large apparently collapsed gaps, providing cover for that floor. The longer side of the building contained a large entrance facing a large car park. A padlocked double doored steel gate barred access. The premises were leased by Exoticars Parts Pty Ltd, for a term from 11 March 2013 to 11 March 2014, with an option to renew. The permitted use under the lease was "storage of cars and car parts only". The lease was signed by Lilian Elkhouri, Mr Elkhouri’s sister. There is no evidence that Mr Elkhouri had any connection with the lessee company as officer, shareholder or employee or that he had anything to do with the lease.

  2. When police arrived at about 8:45am on 29 July 2014, an unregistered white van was parked across the doors preventing access to them. It had been registered to “Exoticar Pty Ltd” (about which there is no evidence and it may be doubted whether a company with this name actually existed). Police attempted to contact Mr Elkhouri at about 8.30am, leaving a message for him to respond. He sent a text asking, “What you’re after?” and was informed that he needed to come to the premises as police had a search warrant to execute. He replied that police should contact another person (a lawyer) and provided a telephone number. Shortly afterwards, the lawyer, informed police that he had contacted Mr Elkhouri, who would come to the premises but it might take him about an hour to do so. He told police that Mr Elkhouri wished to co-operate and would open up the premises for them. Mr Elkhouri arrived shortly before 10am.

  3. Detective Sgt Bamford introduced himself and showed him the warrant and the occupier’s notice. He explained that police were looking for stolen motor vehicles, stolen motor vehicle parts, motor vehicles with identifying parts removed, parts used in the rebirthing of motor vehicles, machines and tools used in the rebirthing of motor vehicles and any documentation relating to the sale of stolen motor vehicles. DS Bamford pointed to the van and asked if it was registered to Exoticar. Mr Elkhouri said, “It was at some stage …”. He was asked if Exoticar was his company and responded, “No”. Bamford put it to him that he was listed as a director, which he (correctly) denied. DS Bamford said, “Okay, well, you were and you have been in the past, correct?”. Mr Elkhouri said, “Past is past.” (There is no evidence, should the prosecution have relied on this matter, that Mr Elkhouri ever held office or even shares, in any company whose name included “Exoticar” or “Exoticars”. I do not accept the reliability of DS Bamford’s information or that Mr Elkhouri’s response amounts to an admission that he had held any office in the company.) After several other exchanges, Mr Elkhouri said, “… I refuse to be interviewed … and answer any questions”. Notwithstanding, Bamford said, “I was just going to ask you, is there anything illegal that you’re aware of in the factory, anything stolen?” Mr Elkhouri said, “Not that I’m aware of, no, not at all”. To DS Bamford’s next question, “Okay, are they your cars in there?” Mr Elkhouri responded, “No comment”.

  4. (Although Mr Elkhouri answered a number of questions that were directed to him, he responded to others either with, “No comment” or other words indicating that he did not wish to answer. In some cases, the giving of selective non-responses can justify adverse inferences. The prosecution, however, has (rightly) not submitted that such reasoning is appropriate in the present case. Accordingly, I disregard all the non-responsive answers and draw from them no inference adverse to Mr Elkhouri. Any references to them are simply to make sense of a conversational exchange. A transcript was tendered by consent of the videoed search. I have listened to the recording and made certain changes to the transcript – as set out in this judgment – on the view that the primary evidence is the CCTV itself. It is that corrected transcript which is excerpted in what follows.)

  5. DS Bamford asked Mr Elkhouri whether he had the keys to the van parked in front of the entrance gates, to which Mr Elkhouri replied, “I’ll move the van, I’ll let you in, no problem”. After further short conversation, Mr Elkhouri produced a bunch of keys and indicated the key to the van to a nearby police officer. One of the keys was coloured green and, when asked what it was for, Mr Elkhouri replied, “Oh, something else … old lock or something”. He said that a blue coloured key was for one of the locks on the entry gate and identified another key as fitting the other lock. He thought that other keys were for “more locks inside”. DS Bamford asked, “So you have keys to Maddox Street as well?” To which Mr Elkhouri replied, “Yep”. (The reference to Maddox Street was to other premises occupied by Mr Elkhouri’s sister where a search would also take place that day. I deal with these premises and the search below.)

  6. When the doors were opened, and DS Bamford said, “So, what I’ll get you to do is just explain to me what we’ve got in here. Like what is this?” Mr Elkhouri said, “Used second hand car parts … and cars as you can see.” He declined to answer a question about being licensed and was then asked a number of questions as follows –

Q. Do you have any ledgers or receipt books or anything for the sale, all your inventory or anything like that? A. Not here.

Q. Not here. Whereabouts are they? A. Office.

Q. Maddox Street. What I’ll probably, what I’m going to ask you to do is accompany some other police down to Maddox Street and open that up. I’ve got some officers from Fair Trading and they are just going to do an inspection of a business and books. A. No problem.

Q. Okay. I’ll get the officers from Fair Trading to come in, and I’ll just get them to explain, as what …

…

Q. How many cars do you reckon you’ve got all up in here? A. 100 … 85 at the moment.

Q. Any cars that have just turned up that you don’t know about, someone wanted just dropped off, and you’ve got no idea? A. Not that I can think of at the moment, no.

  1. Further (irrelevant) conversation about of the role of the RMS occurred and two officers (Ms Gold and Mr Hammond) from the Department of Fair Trading were introduced. Ms Gold then had a conversation with Mr Elkhouri –

Q. … [We need to inspect records], so you’ve got a form 2 register [a register required to be kept by motor vehicle repairers which includes information about second-hand car parts]? A. I don’t know what that is. I don’t know that sort of things, but whatever it is, it’s all on the computer, it’s entered in, it’s all … spare parts, inventory.

Q. Okay. So you’re using electronic records? A. I’m not sure how they are doing it.

Q. Okay. All right. Well, we’ll have a look when we go up there. There’s my card. A. Thank you.

Q. So, no records are kept here at all? A. No, no. This is, this is not open to the public.

Q. Okay. So what do you use these premises for? A. Storage.

  1. The investigating officers had by now entered the warehouse. DS Bamford then conducted a further conversation with Mr Elkhouri –

Q. Yeah. As I’ve explained to you, Chris, I’ve got all those officers, forensic examination, RMS and detectives from the motor unit. So we’re going to do a search of this place. What’s this shipping container here with the windows? A. It’s just got tools in it.

Q. Tools? A. Yeah, like, just tools.

  1. Mr Elkhouri was invited either to watch the search as it took place or to go to the Maddox Street premises to assist there and return to the warehouse. The container was locked and Mr Elkhouri did not have the key. He said he would need to call someone and get the key. DS Bamford said that, whilst Mr Elkhouri was at Maddox Street, he was going to get the RMS investigators and the vehicle examiners to start going through the inventory, all of which would be recorded on video. Mr Elkhouri indicated assent. DS Bamford indicated that they would be starting in one corner and working their way back through the building whilst he (Mr Elkhouri) was away. The following conversation then occurred –

A. This is going to make life easy for you.

Q.. So what do you mean? Q. So the way that the cars are laid out … starts from A,B,C so your Alpha, your BMW, Citroens, A,B,C,D,E,F,G [indicating by a sweep of a hand and pointing].

Q. Ferrari. A. Ferraris, yeah, but there is another Ferrari there. Mercedes …

Q. All the way down to --- A. … Mercedes, the Peugeot, the Porsche, Volkswagen, Volvo. So it’s, yeah, but, but there’s a couple that are just in the middle that are mixed up. So ---

Q. No worries. Okay. Well, if you’re happy to go to Maddox Street with the other officers … Well do that. And then we’ll bring you back here … Then you can do some more … rest of the day.

He said that some of the vehicle were locked and some not. He indicated a couple of vehicles that were locked and some that were not.

  1. DS Bamford then raised with Mr Elkhouri the issue of safety of his officers, given the condition of the premises. Mr Elkhouri, in effect, indicated the premises were safe except for “pigeon shit … probably broken glass, holes …” He said that asbestos had been removed, adding it “is an old abandoned factory … And there used to be like junkies here, drifters there, they used to come, there’s syringes, but, yeah, we’ve cleaned what we can”. Senior Constable Luke Simpson, attached to the property squad motor unit, then spoke to Mr Elkhouri, informing him that he, with other officers attached to the motor unit, the RMS and Forensic Services, proposed to undertake a systematic search through the premises and inspect its contents. Mr Elkhouri said that he would not answer any questions, adding, “If you need keys to the cars, I can probably just assist you to do that, and that’s about it”. He said that he would not make any comment whatsoever about the premises.

  1. Mr Elkhouri told him that he had the key to the container, which was then searched. It contained a quantity of miscellaneous articles, cabinets and office equipment, including a range of tools conventionally to be found in a car repair shop. On a shelf was found a Toyota box containing a proprietary radio decoder that was available only to authorised motor dealers. (How it came to be in the warehouse is unknown but there is no evidence that it had anything to do with Mr Elkhouri.) A box of business cards for “Exoticars Parts Centre” was also found, which showed a business address in Asquith Street, Silverwater and the same 1300 contact number indicated in the application for restoration of the Motor Dealers Licence for Exoticars Autohaus Pty Ltd (see below). During the search of the container, Mr Elkhouri said, “Everything’s moved, that’s why its … stored… [further indistinct conversation]”.

  2. After some search activity, police located a Holden V8 engine under a table and a sheet of cardboard and asked Mr Elkhouri, “RMS inspectors just conducted a check on it and it’s come up as a stolen engine. Anything you want to say about that engine?” Mr Elkhouri replied, “Didn’t even fuckin’ know it was here …” The officer said, “We will just get DS Bamford”. Mr Elkhouiri asked, “Can you tell me when, do you know the date, do you know the date when it was stolen?” The officer responded that they would have to do some checks. Mr Elkhouri asked how far the RTA records went back and when the car was last registered, explaining –

“I am just trying to think if this is one of my cars that I changed the engine … Because if you can go back, I think that car was registered to my sister’s name or my mum’s name, 94 VR Statesman V8. That’s the engine out of another [indistinct] … You can see I’m not talking shit if you pull the sump off and as you can see it hasn’t been touched and it’s picked up a [indistinct]. If that’s the engine, I’m not sure if that’s the engine or not, because I’ve done dozens and dozens of this.

Q. [Directed to another officer, indicating a computer screen] What’s the, what was the last one? A. If you, if you, yeah, because it could be stolen after my sister sold it, so that’s why we don’t know [indistinct conversation] Was it registered to a … address … If that’s the same car … Could be a different car, I don’t know.”

  1. Sometime later, whilst police were examining a strut tower cut from a Holden Commodore, the number of which, though decipherable, had a line ground through it, Mr Elkhouri said –

A. This one has already been taken by Flemington. Ashfield crime, whatever, gave it back … Back in 99 … Have you got that that? … They’ve put a line through it and they gave it back. And I picked it up from Ashfield police station. It was an exhibit under Elkhouri.

Q. Oky doke, thanks. A. Yeah mate.

[Searching activity]

Hello, hello. hello. That [another item] belongs to the white Mitsubishi over there … The same sticker all over it, it belongs to that.

Q. So what was the circumstances it was struck out? … A. This struck out … struck down … The officer [indistinct]. Okay, stop. When I got out of, when the court finished and everything, I had to pick up all the exhibits that they took from the premises. I picked them up from Ashfield Police Station.

Q. So why are you retaining it? Why have you still got it? A. They gave it back. Well, why did they give it back then, if I’m not allowed to have it? That’s just ---

Q. Yeah, but why keep it? What are you going to do with it? A. You can’t do nothing with it, it’s got a line through it.

A. Yeah, so why have it? Q. … sometimes … they bump and they bend …

Q. So you are going to use it again? A. If I had to, probably.

Q. Okay. A. But you can’t use it because of this [indicating the striking out].

[More searching, conversation between officers.]

Q. [Looking underneath an open hood] You can see it doesn’t have any tags on it? A. No comment.

Q. And we’ll just see on the firewall there, we have a spot here where it looks as though the rivets have been chiselled out … and it doesn’t have a VIN plate …? A. No comment.

Q. … Any reason why there is no VIN number displayed on the window there? A. No comment.

[Conversation between officers about a missing number] .

Q. It should have an inventory number on here? A. [Indistinct answer.]

Q. So how come a lot [indistinct]. A. No comment … Probably had and it’s come off or … It’s, people do different things and different work things. I don't know. Like which car doesn't have an inventory number?

Q … rego. A. Whatever doesn’t have an inventory number it’s not, it’s not mine. It’s not, not, not to do with the business, not to do with the spare parts side of things.

A. This [not shown on video] … only came in the other day.

Q … Fair Trading … got 24 hours to put your inventory number on it. A. Fucking Fair Trading … Not my car mate. Its not, not, not advertised for stock, it’s not to do with us. A bloke stored it here.

Q. Who’s that bloke? A. Doesn’t matter, it’s irrelevant. I keep telling you, no comment, you’re trying to back drag one word, two words, three words out of me.

[Conversation between officers and, to a limited extent, with Mr Elkhouri whose answers are indistinct and incompletely recorded. Lunch break. Continued searching. In what seems to be a joking conversation, Mr Elkhouri perhaps saying something like, “I got it because when I read about coppers going shopping and carjacking”, but its actual sense is impossible to make out. He asks, “Are you serious officer?” It is not possible to make sense of this. Mr Elkhouri then adds, not in response to a question –

A. When I sell a body [a suffix or an additional word is added, perhaps, “body short”] or cut, whatever”, okay, I cut the numbers off, so that nothing falls back on us.

Q. Yep. A. That number is a [indistinct]. Even if you put it on the car, you can’t do nothing with it, understand?

Q. Okay, that’s why I asked you. A. Yeah, no. You’re asking me. Yeah, I’m going to do your job? …

[Further lengthy time searching.]

[Additional conversation took place between DS Banford and Mr Elkhouri concerning a 1999 Mercedes in respect of which Mr Elkhouri provided the original auction receipt and the purchase receipt from the purchaser and the receipt “when it was sold to us”. These receipts were retrieved by Mr Elkhouri on his mobile. He said that he “did not buy this car”. This was done on 20 February 2012 by a Mr Stupnikar. Mr Elkhouri was concerned because he could not find the key to the vehicle. Further inconsequential conversation occurred about various matters. The search concluded at 5:25pm. DS Bamford informed Mr Elhouri that police would return the following day.]

  1. Police went again to the warehouse at 10:34am on 30 July 2014, and met Mr Elkhouri when he arrived at 12:20pm. DS Bamford asked Mr Elkhouri to help with moving some of the items in order to get access to the lighting tower. A Mercedes was pointed out and Mr Elkhouri asked, “Does that chassis, that chassis, whatever that matches, is that body shell here?” Police said they would have to recheck. Mr Elkhouri offered to move it. He was asked about a BMW engine and protested that he had already been asked about it 6 times. He said the engine had “come out of the blue 325 E46 [I think a BMW] in the top right hand corner [of the warehouse, which he indicated]. Mr Elkhouri pointed to a VK which “doesn’t roll, because the wheels are touching the back guards” so that it had to be picked up with the forklift. He then asked whether paperwork had been taken. DC Bamford said he had looked through the paperwork and commented that it looked as though Mr Elkhouri’s ex-wife was “quite meticulous with the paperwork when you were running the business. Every car has got a folder, everything is written on the inside, all the job invoices, everything is there, so I’m happy with that …” He pointed out (in effect) that subsequent paperwork was missing. Mr Elkhouri said that he did not know where the paperwork was, that, “I’ve moved … three times, four times” and that (though this is not altogether clear because he and DC Bamford were talking over each other) he ran a panel beating shop and he was happy with the way “she [I think, meaning his ex-wife] was doing the paperwork”. In another part of the warehouse to which they had moved, an officer identified an engine as stolen and Mr Elkhouri asked if he could be told what the VIN was because, by checking all the cars “here” it might be found to have come out of one of them, the body of which he had. He said, “I might have the body for the car … So the body might be legit [sic] but the engine might be stolen. I might be able to produce a receipt.” He said that the only motor “that I have here on its own where the shell is not here is that … 308 engine under the table.” He asked again when the engine was stolen, “Because that car, I changed the engine, 2004, 2005. And to prove that the engine’s fucked and to prove I’m not pissing in your pocket, that done 300,000k’s and it’s picked up a [indistinct] bearing. The sump hasn’t been off … the engine, right? ‘Cause that, you told me, ‘cause I think that car was either in my mum’s name or my sister’s name, I can’t remember. It was a VR Statesman … After some further (confusing) conversation, Mr Elkhouri returned, “this one” (ie, the engine that he had been told was stolen) suggested that (another) engine might or might not have come out of a Mercedes (indicating another place in the warehouse), but he did not know. The officer repeated that his information indicated the engine was stolen, to which Mr Elkhouri responded, “You’re saying it stolen, I’ve got no idea of it” and repeated that he might have the body for the engine, adding, “every engine has a body … and every body has an engine”. Shortly after he was referred to another engine (’98, Silver C2-40) and said he would check the computer to see if it was in “our inventory” but needed the VIN to do so. He said that he “might have the body, I don’t know, if I don’t have the body, that means that I haven’t owned it”.

  2. After some time, DC Bamford pointed out to Mr Elkhouri a blue VK which, he said, was missing the identifiers. He said that Mr Elkhouri had earlier told him that he had removed them but Mr Elkhouri immediately denied that he had said this. DC Bamford then pointed out some other issues with the vehicle and said that police would remove it later in the day. He asked Mr Elkhouri whether there was anything he wanted to say about the car. Mr Elkhouri said, “No comment”. Mr Elkhouri was asked about a number of other items to which he responded, “No comment”. (For that reason it is not necessary to identify the items.) The search continued for some hours and an extensive video recording was made of the process. Towards the end, DC Bamford pointed to a maroon Volkswagen transporter van which contained computer cable, office interior partitioning and other odds and ends, put there by Mr Elkhouri because, he said, he was, “going to scrap it”. The number plate on the van had come from another white Volkswagen which Mr Elkhouri owned and placed there because he parked it on the street and the vehicle would otherwise be vandalised. From time to time the car was moved so that it did not get towed away. After further inconsequential conversation, the police departed at 4:50pm.

  3. DS Bamford said there were several hundred items at the warehouse, of which at least 100 were vehicles. In all, six vehicles were seized together with two mobile trailer light towers and eight other vehicle components. (I will deal with the results of those examinations in due course.) I note, at this point, that the number of impugned items was very small compared to that not removed. As to this remainder, there is no evidence to suggest that any of it was suspect.

  4. Ms Tracey Weller is a principal investigator with the New South Wales Department of Fair Trading working in the motor industry team and was an authorised investigator for the purpose of this matter. On 29 July 2014, accompanied by Principal Investigator Anthony Hughes, Ms Weller had also attended at the warehouse with police and RMS officers. They were introduced to Mr Elkhouri when he arrived.

Search of Maddox Street unit

  1. Ms Weller had previously conducted a motor dealer’s inspection in respect of a licensed motor dealer named Exoticars Autohouse Pty Ltd. The license granted to the company had been issued on 15 July 2011, with its business address recorded as being at a unit in Maddox Street, Alexandria. On 10 October 2013, an application by Ms Elkhouri for restoration of the licence had varied the then primary business address from premises in Silverwater to the Maddox Street unit. (No storage facility address, let alone that of the warehouse, was noted on the licence record.) The premises were leased by Exoticars Parts Pty Ltd.

  2. During the search of the warehouse, Ms Weller had spoken to Mr Elkhouri several times. Amongst other things (not presently relevant) he told her that the prescribed records for the dealership were kept in the unit at Maddox Street, Alexandria and agreed to go with Fair Trading Officers to the premises for the purpose of an inspection. Mr Elkhouri gave the officers access to the building, which was a small two level unit. (At one point Ms Elkhouri was present.) Downstairs were a few desks, chairs and computers. Upstairs was a further office area with one desk in a chair. A number of boxes were placed around the walls of the unit and Mr Elkhouri said they were in the process of moving. The unit faced Maddox Street, with no driveway or access to display motor vehicles for sale. There was no signage indicating the business or that of a licensed motor dealer operated from the address as required under clause 9 of the Motor Dealers Regulations 2010.

  3. In the unit, Ms Weller saw a number of certificates displayed on a desk to the right of the room as the premises were entered. These comprised a company registration for Exoticars Service Centre Pty Ltd, which commenced on 29 June 2011, a certificate for a Motor Vehicle Repairer’s Licence of Exoticars Service Centre Pty Ltd, with its place of business in Silverwater, granted on 27 July 2011, a Motor Dealer License in the name of Exoticars Autohaus Pty Ltd with the same Silverwater business address, granted 15 July 2011. Ms Weller had the following conversation with Mr Elkhouri –

Q. Do you have your current dealer license? A. Couldn’t tell you.

Q. Can you produce your prescribed Form 1, Form 2, Form 2A and Form 2B registers and your Form 4 and Form 8 notices? A. No, they are on the computer and I can’t access it.

Q. Aren’t you the manager, why can’t you access the system? A. I don’t know the password. [There were two questions. I do not accept that the answer can properly be construed as an implied agreement to the first.]

Q. Pursuant to section 53B of the Motor Dealers Act 1974 I request those records the produce. They are meant to be produced on demand. A. Give me a list of what you want that I’ll produce it to you at a later date.

  1. No vehicles were present and no prescribed records were produced.

  2. On the afternoon of the same day, Ms Weller sent to Exoticar Autohaus Pty Ltd a notice under s 53B of the Motor Dealers Act 1974 to produce certain records by 5 August 2014. On 4 August 2014 she was contacted by a Mr Stanton on behalf of the company and in due course some of what was requested was supplied. (I mention this as a matter of history. Nothing, as it happened, turns on it.)

  3. A motor dealer license is required for a person who intends to conduct a business dealing in motor vehicles as either a retailer or wholesaler. The licence is granted to local council approved premises and the business is to be carried on at that address. A motor vehicle recycler’s license is required for a person who intends to conduct one or more of the following business: buying or obtaining motor vehicles parts or accessories and demolishing or dismantling the motor vehicles or parts or accessories; and/or buying and selling major body and mechanical components of motor vehicles, major car accessories and parts or accessories of motor vehicles. A motor vehicle repairer’s license is required for a person who intends to conduct the business of carrying out repair work on motor vehicles and, to carry out repair work to a motor vehicle, the person conducting the work is required to hold a tradesperson’s certificate in that class of repair work. There is no evidence that Mr Elkhouri had ever sought or obtained any of these licences, nor that he was legally obliged to.

  4. Clearly, the unit was unable to be used for any storage of vehicles or, practically speaking, major components. Nor, plainly enough, had it been.

Search of the Concord premises

  1. On 6 August 2014 DS Bamford and other police attended premises in Majors Bay Road, Concord to execute a search warrant. This was the home address of the accused’s sister, Lillian Elkhouri. There was no evidence that linked Mr Elkhouri with its ownership or occupation. Ms Elkhouri was present during the search, which was video recorded. A number of vehicles and vehicle parts were found in the garage, backyard and rear shed during the search. A total of 24 items, including nine vehicles suspected of being involved in offences were seized for examination. (I deal with the results below).

Relevant records

  1. The records of the Fair Trading Department applicable to Exoticars Autohaus Pty Ltd showed that on 10 October 2013 Mr Elkhouri was added as a “partner”, “authority on account” and additional contact person. On 19 March 2014 application was made by Ms Elkhouri that her brother be appointed as a manager jointly with her. His residential address was given as premises in the Australian Capital Territory. Mr Elkhouri agreed to the nomination and authorised relevant enquiries to be made. Whether the appointment was actually registered or, indeed, whether it was persisted in, is not known.

  2. The application for the licence restoration indicated that there was council approval to conduct the business of a motor dealer at the Maddox Street address. Email correspondence from the City of Sydney Council regarding development consent for those premises did not include any specific request or consent that the premises could be used as a motor dealership for the sale of motor vehicles and/or parts.

  3. ASIC records as at 19 May 2017 for Exoticars Autohaus Pty Ltd showed that, since 14 December 2011, Lillian Elkhouri has been both Director and Secretary, with an address in Asquith Street, Silverwater. No reference is made to Mr Elkhouri.

  4. EBay records as at 6 April 2016 show, in respect of a user, “exoticarsparts”, with a shipping address to “Exoticars Parts Centre” in Burrows Road St Peter’s, a registration date of 16 March 2010 and, as a contact, Lillian Elkhouri. On 5 March 2012, Mr Elkhouri, with a Carnarvon Street Silverwater address, was added as a contact. On 17 May 2012 the address was changed to Asquith Street Silverwater and then, on 9 April 2013 to the unit in Maddox Street. Mr Elkouri’s credit card details were authorised on 4 July 2014.

  5. Telstra records showed internet registration as at 10 April 2013 for Exoticars Autohaus Pty Ltd having the contact and site address details as Lillian Elkhouri at the unit in Maddox Street.

Examination of items taken from the warehouse

  1. I have not troubled to set out the evidence concerning the particular significance of the alterations which were discovered. There is no dispute that they resulted from “interfering with unique identifiers” within the meaning of s 154G(2) of the Crimes Act 1900.

(a)   A white painted strut tower from a Holden Commodore sedan

The chassis number on the strut tower had a line ground through it. However, this did not in fact obscure the number and was, plainly, not intended to do so. The same number was on a strut tower attached to dark blue VK Holden Commodore found during the search at Concord on 6 August 2008. The chassis number was identified through record checks with the RMS as coming from a Holden VK Commodore sedan with SYC-05L.

When asked about the white strut tower during the search at the warehouse Mr Elkhouri said it had been previously taken by police, who had struck through the number, and returned it to him. There is no evidence suggesting that this was not the case.

(b)   A beige Holden Commodore

This vehicle did not have its VIN number plate, manufacturer’s compliance and identification plates or a number on the engine.

(c)   A silver Mercedes-Benz C class

This vehicle did not have its original VIN number, the manufacturer’s compliance plate or build plate. Compliance plates found in the glove box of this Mercedes were from another C Class Mercedes-Benz.

(d)   A blue BMW E35

This vehicle did not have its original VIN number, as the panel where the number appears had been cut out and replaced. Nor did it have the manufacturer’s compliance plate or build plate.

(e)   A blue VK Holden Commodore (O5G-RP3)

(i) This vehicle did not have an original chassis number on the passenger’s side strut tower, the original engine or engine number, the manufacturer’s compliance plate or build plate.

(ii) The registration number had been issued to a white 1995 Holden Commodore that was previously registered in the accused’s name but expired on 28 December 2005. The accused was seen in premises at Parramatta where the car was housed during an inspection by police on 27 February 2007.

(ii) The engine in the car was identified as belonging to another Holden Commodore GPA-344. A blue VK Holden Commodore with this registration number was found during the search at Concord on 6 August 2014. That car was previously registered to Maria Favero but registration expired on 15 September 2000. Mr Elkhouri was seen by police driving the same car in Wollongong on 12 May 1999 and it was also seen during the inspection of premises at Parramatta on 27 February 2007.

(iii) A fingerprint matching Mr Elkhouri’s right thumb print was found on the outside bottom surface of a cardboard shoe box that was taken from the boot of the blue Commodore with registration plates GPA-344. Another fingerprint matching Mr Elkhouri’s right middle finger was found on a letter taken from an envelope that was inside the same shoe box.

(iv) The vehicle had been modified by the fitting of a series of “HDT” components such that it would be (wrongly) identified as a “genuine HDT/Brock Commodore”, which is a highly collectable and valuable Holden Commodore model.

(f)   A black Holden Commodore

This vehicle did not have the original chassis number due to removal and replacement of the radiator support panel or the original identification plates normally attached to the radiator support panel.

(g)   A Toyota brand radio decoder box

The device was only supplied to Toyota dealers and not available to the general public. There was no evidence as to the dealer to whom this particular unit had been supplied, nor as to how it had come to be in the warehouse.

(h)   A Mercedes Benz engine

The engine was identified through record checks as having the original factory stamped number and coming from a silver Mercedes Benz 1998 model.

  1. The V8 Holden engine

    Mr David Schmierer said that his green Holden Statesman (UBA-070) was stolen from his front driveway overnight in August 2005. The Holden V8 engine found in at the warehouse was identified as having been an original component of car. Mr Elkhouri was asked about the engine. Part of that conversation is relied on by the prosecution as incriminating. However, the whole conversation is rather confused. I repeat it here for convenience –

    Police asked Mr Elkhouri, “RMS inspectors just conducted a check on it and it’s come up as a stolen engine. Anything you want to say about that engine?” Mr Elkhouri replied, “Didn’t even fuckin’ know it was here … Can you tell me when, do you know the date, do you know the date when it was stolen?” The officer responded that they would have to do some checks. Mr Elkhouri asked how far the RTA records went back and when the car was last registered, adding “I’m just trying to think if this … one of my cars that I changed the engine”, and, “Because if you can go back, I think that car was registered to my sister’s name and my mum’s name. And a 94 VR Statesman V8. That’s the engine out of the car … just under there … I am just trying to think if this … is one of my cars that I changed the engine … Because if you can go back, I think that car was registered to my sister’s name or my mum’s name and mine before VR Statesman V8. That’s the engine out of the car … Just under there … see, I’m not talkin’ shit. You pull the sump off … See, it hasn’t been touched … And it’s picked up … If that’s the engine, I’m not sure if that’s the engine or not, because I’ve done dozens and dozens.”

    Q. What’s the, what was the last one? A. If you, if you, yeah, because it could be stolen after my sister sold it, so that’s why we don’t know [indistinct conversation] 70 and was registered to a … If that’s the same car … Could be a different car, I don’t know.”

    He also said –

    “…it could be stolen after my sister sold it, so that’s why we don’t know.”

    The records produced by Roads and Maritime Services showed that Mr Elkhouri’s sister, Rebecca Obeid owned this car between June 2002 and August 2004. There was nothing that indicated, one way or another, whether the engine had been changed or removed during the period of her ownership. Mr Schmierer obtained registration checks for the car when he bought it in September 2004 and later when he renewed the registration. He was not informed the engine had been changed by those who performed the required inspections of the car. This was consistent with the records from RMS.

    The conversation with police concerning this engine is expressed in speculative possibilities. Parts of the conversation, potentially significant, cannot be made out. Mr Elkhouri correctly surmised that the vehicle had been stolen after that sale. I do not accept that what he said can be relied on as an admission that he had removed the engine after the vehicle had been stolen from Mr Schmierer. What he said only goes so far as suggesting that he might have done so before the vehicle was sold by his sister. There remains the reasonable possibility that, whenever it was done, Mr Elkhouri had not removed the engine at all. In 2006, the pink slip document did not provide for an engine number. Although it may have been the duty of the mechanics who performed registration checks to ensure that the VIN matched the registration, I am not prepared to infer that, in fact, these checks were performed. Thus the evidence does not establish that the engine was in fact taken from the vehicle after it had been stolen from Mr Schmierer, in other words, that it had been stolen at all. It follows that I do not accept the prosecution submission that Mr Elkhouri knew the engine was taken from the vehicle sometime after his sister sold it.

(j)    Two “Compair” lighting towers

These were owned by Complete Hire and rented out for use at building sites and other purposes were found in the warehouse, one at either end of it, during the search on 29 July 2014.

Both towers, each worth about $20,000, were hired in late May 2013 by an engineering company, and delivered on consecutive days to a building site in Mascot. Both towers were shortly after reported as stolen, probably sometime over the long weekend in June 2013. The theft was reported to police.

That these lights were stolen has been established beyond reasonable doubt. I would also accept that Mr Elkhouri was, at some time, aware of their presence in the warehouse. There is no evidence as to how long they had been there. If it be accepted he had joint possession of the contents of the warehouse, it follows that he was in possession of the lights. However, there is no evidence that he was aware of how the lights had come to be there, nor when they arrived. Contrary to the submission of the prosecution, the evidence does not permit a conclusion as to how often he attended the warehouse, let alone whether it was on a daily, weekly or even monthly basis. It is true that, had he inspected the lights, he would have seen documentation indicating their ownership but there is no evidence that he did so and it is at least reasonably possible that he did not. It follows that the prosecution has not proved that Mr Elkhouri knew (or suspected) that the lights were stolen.

Mr Elkhouri’s connection with the warehouse and its impugned contents

  1. There was no evidence that vehicles were in fact being sold from the warehouse and, as mentioned above, Mr Elkhouri told police it was being used to store used cars and parts. Vehicles could not be displayed for sale at the Maddox Street unit. That the licence that was issued was not on public display there as required is immaterial. Although it is submitted that none of the vehicles found at Concord or in the warehouse displayed “required notices”, there is no evidence that they were being held or displayed for sale and thus that any such notices were required. It is also true that no record or inventory that included any of the seized cars or parts was found but that is of no moment unless they were part of a motor dealing or motor repair business. Overall, there is no evidence that, at any relevant time, the lessee of the warehouse or any related entity or person was actually conducting the business of a motor dealer or motor repairer there.

  2. It is submitted on behalf of the Crown that “the evidence strongly suggests that ‘Exoticar Parts’ was in reality a covert business organised and run by the accused and his sister so as to avoid compliance with the law and detection by the authorities”. (On the assumption that this was a business name, there is no evidence that it was registered, nor of its proprietors.) It is contended that this is “another significant circumstance” supporting an inference that the accused knew the cars and parts seized during the searches were either stolen previously or had had their unique identifiers interfered with so as to disguise the true identity of the vehicles. Whilst it is reasonable to infer that the various companies using the name “Exoticars” one way or another were linked to some extent or other by common ownership, there is no evidence that, through office, employment or shareholding, Mr Elkhouri had an interest in any of them. Nor do I accept that the evidence about the Exoticars’ enitities “strongly suggested” any covert business, let alone an illicit one. It is little more than a collection of disorganised data.

  3. The character and extent of Mr Elkhouri’s connection with the management (to use a broad term) of the warehouse must depend on the factual circumstances, including what Mr Elkhouri told the officers, and the inferences that fairly can be drawn from them. What the Exoticars businesses did or did not do is irrelevant except to the extent that those things can be connected with Mr Elkhouri.

  4. The prosecution points to a number of particular matters in aid of the submission that the warehouse was under Mr Elkhouri’s care, control or management. Of course, these must be considered both individually and as a whole. These matters are:

  1. Mr Elkhouri saying to DS Bamford during the warehouse search, "When I sell a body shell or a cut or whatever, OK, I cut the numbers off them, so that nothing falls back on us". I have listened carefully to this passage of the CCTV and, doing the best I can, I hear the following: When I sell a body [a suffix or an additional word, which cannot be made out, certainly added, perhaps, “body short”] or cut, whatever”, okay, I cut the numbers off, so that nothing falls back on us. The context of these words is obscure, given the indistinct prior conversation and the words are, as indicated, indistinct. I am not satisfied that it can be relied on as an admission of making unlawful alterations, nor of any of the alterations found by police in the warehouse items or, more particularly, forming comprising the subject of the charges especially since there is no evidence from which it can be inferred that Mr Elkhouri ever sold any vehicles from the warehouse (or, indeed, elsewhere).

(ii) [Of the strut with a number struck through by police], “That number is a … [indistinct]. Even if you put it on the car, you can’t do nothing with it, understand?; referring to one of the vehicles found by police, (a 1999 silver Mercedes sedan 202 model) having been bought by a former employee named Robert Stupnikar, "Yeah this poor fellow. We bought it off him…this guy bought it. This guy used to work for us … this is when I was at Silverwater, ok?"

(iii) on the second day of the search, 30 July 2014 Mr Elkhouri explained to police he didn't know where the paperwork was because, "I've moved…three times, four times…I've moved four times…" and confirmed he had “job cards". DS Bamford and Mr Elkhouri are overtalking each other at this point, so it is not easy to gather what the latter said, but it seems to me that he was referring to the documents described by DS Bamford, amongst which were job cards from the (earlier) time he ran a panel beating shop, that is to say, not anything to do with the warehouse. It may be accepted that Mr Elkhouri had brought the documents there.

(iv) The accused displayed a high level of familiarity with the warehouse and the nature of the business. He attended the premises at the request of police and provided the means and knowledge for entering the premises. He knew the van was parked across the driveway to further impede access. The question is what the extent of Ms Elkhouri’s familiarity with the warehouse and its contents demonstrated about his alleged involvement in the relevant acts. He was aware of the layout of the warehouse and also of many of the vehicles stored there and that it also contained vehicle parts, some of which he knew about. He said there was a body shell for each engine – except one (that which belonged to Mr Schmierer’s vehicle) – but he was unsure about what had happened. Whilst consistent with knowledge of the presence of interfered with items, this familiarity it is also consistent with not being aware of them. After all, they were a tiny proportion of the contents of the warehouse. In short, the extent of familiarity demonstrated by Mr Elkhouri, though relevant, does not go far in establishing that he was aware of or was party to illicit activities.

(v) The accused knew that the warehouse was used “by the business” to store dismantled cars and that it was not intended that the general public would have access to it. This is correct. But in the course of what business?

  1. Overall, the position appears to me as follows. Apart from Mr Elkhouri’s arrival at the warehouse at the request of police, there is no evidence that he was present at the premises at any particular time. He had clearly been there on a number of occasions but how frequently is unknown. His statements disclose knowledge of certain matters but how much further his knowledge went is, essentially, speculative or, at least, doubtful. It also is proved that Mr Elkhouri was familiar generally with the content of the warehouse and more particularly with some items. Some of his vehicles or parts of vehicles had been stored there. Certainly, Mr Elkhouri admitted to removing numbers from body parts but in uncertain circumstances and not, I would infer, where he thought he was committing any crime, at all events not related to anything found in the warehouse. However, his comments do not amount to admissions of or justifying the inference that he was aware of the impugned items or vehicles or, if aware of them, knew they had been altered. Furthermore, there is left open the reasonable possibility that other individuals had access to the warehouse.

  2. At the end, there is no clear evidence as to how or when the items in the warehouse came to be there or what, if anything, was done to them there as distinct from in another location. It seems to be the case that sufficient equipment was present to undertake the alterations that were discovered but this does not carry the prosecution case very far. The references to moving certainly imply joint activity, likely with Lillian, but the extent to which he took part in any business operated from the warehouse remains unclear. I note the records appear (according to DS Bamford’s remarks at the time) to have been well kept at some early, but unmentioned, date and non-existent more recently. There is no evidence as to whether Mr Elkhouri used the computer – he said he did not know the password – nor as to whether any of the records related to any activity in which he was involved.

  3. That Mr Elkhouri had a set of keys to the warehouse, the internal office and the Maddox Street unit may reasonably be explained by his having been given them by his sister Lillian or some other person. It will be recalled that he gave access to police to the warehouse and the Maddox Street unit in response to a request addressed to him by DS Bamford when seeking to execute the warrant. Whilst it is consistent with the evidence that, as at the date of the search, Mr Elkhouri was in occupation of the warehouse, jointly or otherwise, this is far from established. Possession, in the circumstances, of a set of keys provides very limited information about the extent or character of Mr Elkhouri’s actual connection with the premises, or knowledge of the impugned contents or responsibility for them.

  4. Accepting that there would have been a relationship or linkage of some kind between the Exoticars entities, nothing significant arises from the fact that, at one point, Mr Elkhouri was a contact and manager for Exoticars Autohaus Pty Ltd, since, not only is this uninformative as to his actual role but the company’s actual connection with the warehouse and its contents is a matter of speculation. Nor does the fact that Mr Elkhouri’s details are noted in connection with the EBay site carry the matter any further.

  5. These gaps in the evidence comprise a major handicap in accepting the prosecution case in respect of the first charge so far as the warehouse is concerned.

Examination of the items taken from the Concord premises

  1. Lillian Elkhouri was one of the registered proprietors of the residential property at Concord. The evidence linking Mr Elkhouri with the property is, as will be seen, extremely slight. It is submitted by the prosecution that the number and dismantled state of the cars and parts found in the garage, backyard and rear shed during the search on 6 August 2014 were consistent with the property being used to store such items in connection with the business Exoticar Parts. However, this does not establish that it was so used, nor that it was used in connection with the business of Exoticars Autohaus Pty Ltd, with the Motor Dealers Licence of which Mr Elkhouri had some association. The Crown seeks to connect Mr Elkhouri with the vehicles, as it were, via his involvement with Exoticars on the one hand and the case that Exoticars was involved with rebirthing the vehicles on the other. It must be borne in mind that the fundamental question is not the vehicles’ connection with an Exoticars entity but their connection with Mr Elkhouri. One of the significant problems with the Crown case is that quite what the Exoticars’ entities had to do with any of the impugned items is, apart from speculation. One of them was the lessee of the warehouse but no relevant connection is demonstrated with the Concord premises except that they were Lillian Elkhouri’s.

  2. The items taken during that search were as follows.

(a)   A blue VK Holden Commodore (GPA-344)

As already stated the accused was seen by police with this car in 1999 and again in 2007. There was no engine in the car and the original engine for it was found in the blue VK Commodore (05G-RP3) found in the warehouse.

Items found in a shoe box taken from the boot of the car included build and model plates, decals and other items that were suitable for rebirthing a standard VN Commodore into a Group A SS Holden Commodore. A car with its unique identifiers removed and which was suitable for rebirthing using the items from the shoe box was found in the garage. The shoe box also contained a letter of authenticity from Holden Special Vehicles dated 12 August 1999. The letter gave the details for a VN Group A SS Holden Special Vehicle (such a vehicle with its identifiers removed was found in the garage: see below). A fingerprint on the external underneath surface of the shoebox and another one on the front of the letter matched fingerprint impressions taken from the accused. There was no evidence as to where the letter or, for that matter, the shoe box was when Mr Elkhouri had touched them, nor when he did so, nor what it then contained, nor how the letter and the shoe box came to be where they were found.

(b)   Maroon VN “Group A” SS Holden Commodore

The car was found in the garage hidden by coverings and a large number of boxes and other items that surrounded it. The engine and transmission had been removed. The VIN plate from the lower front windscreen, manufacturer’s build, compliance and body number plates and decal from the glove box had all been removed from the vehicle and were found in a plastic bag in the pocket of the driver’s door. They were found to be authentic and to have come from this car.

(c)   An engine for a Holden VN “Group A” SS Holden Commodore

This was found on the garage floor next to the Commodore described in (b). It was suitable for installation in that car. The number on the engine had been ground off and could not be restored.

(d)   A 1999 model red Ferrari 350 Modena

This car was stolen on 14 February 2014 in North Strathfield from a Mr Bakhos. He could be identified as the registered owner of the vehicle because the unique identifiers were still attached to it. He confirmed that alterations made to the car after the theft included the installation of a device that bypassed the factory fitted engine immobiliser. There was no evidence that Mr Elkhouri was aware of this theft or even of this vehicle, not from which this knowledge can be inferred. Nor does the evidence justify the conclusion that he possessed or dealt with it at any time.

(e)   A dark blue VK Holden Commodore

The original chassis number on the passenger’s side strut tower had been ground off and over-stamped with the chassis number from another vehicle, a white Holden Commodore SYC-05L. Identification plates on the radiator support panel and firewall had been removed. The white painted strut tower found during the warehouse search had the same chassis number printed on it. This was the strut tower which Mr Elkhouri told police during the warehouse search had been taken by police some years earlier, who had struck through the number and returned it to him.

(f)   A red VH Commodore

This vehicle did not have the original engine identification attached and attempts to recover the engine number were unsuccessful. The VIN, compliance and manufacturer’s build plate on the car were original.

(g)   A blue HSV “Walkinshaw Group A SS” Commodore (XKA-948)

The original VIN was ground off and overstamped, the engine number was ground off the engine block and the build and compliance plates had been removed and replaced.

(h)   A blue Holden VL “Walkinshaw” 853 sedan

The original VIN had been ground off and could not be fully recovered and the original engine number was ground off the engine pad.

The partially restored VIN was very similar to the VIN of another blue Walkinshaw WLK-05L. The number on the strut tower of that car was original, the original compliance and build plates had been removed but re-affixed to the car and the engine and engine number were original and authentic.

  1. A blue Holden VL S88 Commodore sedan

    The VIN had been defaced and partially obliterated by drilling and build and compliance plates had been removed

(j)   Four coded car components found in the shed in the backyard.

They came from 4 separate cars.

(k)   Four alloy wheels with tyres fitted

The car from which the wheels came was identified as an unregistered Black Holden Special Vehicle Club Sport R8 sedan which was stolen sometime after it was delivered for upgrading and enhancements to a facility in Olympic Park on 29 April 2004.

Mr Elkhouri’s connection with the Concord premises and its contents

  1. Physical evidence connecting Mr Elkhouri with the contents was limited to the blue VK Holden Commodore (GPA-344) which had, in its boot, a shoe box with his fingerprints on the outside and on a letter dated 1999 found in it. Mr Elkhouri had been seen by police with this car in 1999 and in 2007. The evidence does not permit any inference to be drawn as to how and when the vehicle came to be on these premises or altered or the box or any of its contents came to be in the vehicle, let alone whether Mr Elkhouri was responsible for or even knew of these facts (except, of course, of the existence of the shoebox and the content of the letter). The white painted strut tower found at the warehouse, which Mr Elkhouri identified as having been returned by police, had the same chassis number that was on the dark blue Commodore. But this provides, either by itself or with the other evidence, no evidence connecting him with the vehicle or its location or state over a decade later.

  2. In addition to the above physical evidence, the prosecution, in substance relies on Mr Elkhouri’s links with his sister (who was part owner of the premises) and the Exoticars entities. It is submitted that the number and dismantled state of the cars and parts found in the garage, backyard and rear shed during the search on 6 August 2014 are consistent with the property being used to store such items in connection with the business Exoticar Parts and that the accused had care, control and management of the warehouse and was named in the records for the business licence as manager, partner and as having authority on the licence account.

  3. As I have already mentioned, the relevant records are those which concern the dealer’s licence registered to Exoticars Autohaus Pty Ltd, and not Exoticar Parts. The only reference to the latter entity in the evidence appears on an EBay webpage as a username, in connection with other premises. There is simply no basis upon which it can be tied to the Concord premises or what was found there. Also, as has been mentioned, the warehouse was leased by a company Exoticars Parts Pty Ltd, as to which the same comments apply. The evidence is silent as to the extent of Mr Elkhouri’s connection with these businesses. It is reasonable to infer some connection, which gave him knowledge of where the records relating to them would be and familiarity to a greater or lesser extent with the warehouse building itself, what had been done by way of cleaning, the layout of the warehouse and some of its contents, as I have previously discussed. However, this evidence is far from establishing that he had “care, control and management” of the Concord premises.

Conclusion

  1. The Crown’s case in respect of Count 1 that Mr Elkhouri was involved in car rebirthing, was particularised as facilitating rebirthing activity by allowing steps, namely, receiving stolen motor vehicles, or interfering with unique identifiers for the purpose of disguising or misrepresenting the identity of a vehicle (or parts of a vehicle), or supplying or offering to supply stolen motor vehicles as part of the activity to be taken in premises of which the accused had care, control and management. Although I have referred to the particular matters relied on by the Crown, I have borne in mind that each does not have to be established beyond reasonable doubt; their individual cogency of course must be assessed and, in the end, the question is whether, taken together, they prove the charges beyond reasonable doubt.

  2. Taking the warehouse first, I am not satisfied beyond reasonable doubt that Mr Elkhouri was aware that any of the items shown to have been interfered with were so interfered with. He was aware of the strut with the struck through number but there is no evidence that he did this or that it was done or the strut was kept for any rebirthing purpose. Nor am I satisfied that he took part in or was in any way involved in any of the rebirthing activities disclosed by the police examination of items taken from the warehouse. I am not satisfied, in respect of any stolen items, that Mr Elkhouri knew or suspected that they had been stolen. Whilst he was aware of and used the premises for purposes of his own, I am not satisfied beyond reasonable doubt that he did so exclusively or that his association with the warehouse amounted to having had care, control or management of it or of all the items it contained.

  3. So far as the Concord property is concerned, whilst I accept that Mr Elkhouri may well have visited the premises, I am not satisfied beyond reasonable doubt that he had any knowledge of the impugned items, stolen or otherwise interfered with, that were found there, nor am I satisfied that they were in his care, control or management either solely or jointly with any other person.

  4. Another problem with the Crown case in respect of this count concerns the dates during which it is alleged the offence occurred, namely between 29 July 2014 and 9 August 2014. Even if it be accepted that Mr Elkhouri had, at some time the management, care and control of the warehouse or the Concord property, either solely or with his sister, there is no evidence that would permit the conclusion that this was so during the specified dates. A cognate problem concerns the facilitation of the identified alterations. Since it is not known where or when this occurred it is not possible to be satisfied beyond reasonable doubt that it occurred during the specified dates, of course, additional to the problem as to what Mr Elkhouri had to do with or had knowledge of this activity. In the end, the Crown is left with facilitation by way of storage of the impugned items. Though they were stored at the warehouse and Concord, I am not satisfied, as I have mentioned, that Mr Elkhouri was aware of their altered character or whether, during the specified times, they were in his possession or control, whether solely or jointly with another. There is no evidence that there were any attempts at any time to supply or offering to supply any of them.

  5. As to the counts 2 and 3, respectively concerning the two lighting towers, count 3 the red Ferrari and Count 4 the Maroon VN Group A SS Holden Commodore, I am not satisfied beyond reasonable doubt of Mr Elkhouri’s guilt. Whilst I accept that he knew the light towers were in the warehouse, the evidence does not permit me to conclude beyond reasonable doubt that he knew anything about their provenance, how they came to be there or that they were stolen. The Ferrari and the Commodore were located at Concord. Even if Mr Elkhouri was aware of their presence there, which must remain uncertain, the evidence does not establish beyond reasonable doubt either that they were in his possession or control or that he was aware that they had been stolen.

Verdict

Mr Elkhouri is found not guilty of counts 1, 2, 3 and 4.

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Decision last updated: 09 December 2020

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