R v George Dib
[2013] ACTSC 70
•19 April 2013
R v GEORGE DIB [2013] ACTSC 70 (19 April 2013)
CRIMINAL LAW – PARTICULAR OFFENCES – Drug Offences – two charges of trafficking in a controlled drug – judge-alone trial – whether accused transported or possessed drugs with intention of selling – whether drugs were in accused’s possession – reasonable doubt whether bag transported by accused was bag subsequently found to contain drugs – accused’s DNA on outside of bag containing drugs – possibility that accused’s DNA found on one item inside bag deposited by secondary transfer during police search of bag – reasonable doubt whether accused had possession of bag containing drugs – accused not guilty of either offence.
Evidence Act 1995 (Cth), ss 59 and 165, Dictionary Part 1
Supreme Court Act 1933 (ACT), s 68C
Criminal Code 2002 (ACT), ss 600, 602, 603(7) and 604(1)
Criminal Code Regulations 2005 (ACT), regs 5(1)(a) and 8(1), Sch 1
Drugs of Dependence Act 1989 (ACT)
Fleming v The Queen (1998) 197 CLR 250
R v Meyboom [2011] ACTSC 13
No. SCC 218 of 2009
Judge: Penfold J
Supreme Court of the ACT
Date: 19 April 2013
IN THE SUPREME COURT OF THE )
) No. SCC 218 of 2009
AUSTRALIAN CAPITAL TERRITORY )
R
v
GEORGE DIB
ORDER
Judge: Penfold J
Date: 19 April 2013
Place: Canberra
THE COURT ORDERS THAT:
On Count 1, that on 21 November 2008 George Dib trafficked in a controlled drug other than cannabis, namely cocaine – a verdict of not guilty be entered.
On Count 2, that on 21 November 2008 George Dib trafficked in a controlled drug other than cannabis, namely N, alpha-dimethyl-3, 4-(methylenedioxy) phenylethylamine (MDMA) – a verdict of not guilty be entered.
Introduction
George Dib has been charged with:
(a)one count of trafficking in a controlled drug other than cannabis, namely cocaine, alleged to have been committed on 21 November 2008; and
(b)one count of trafficking in a controlled drug other than cannabis, namely N, alpha-dimethyl-3, 4-(methylenedioxy) phenylethylamine (MDMA), alleged to have been committed on the same day.
The accused pleaded not guilty to both charges.
Judge-alone trials
Election
The accused elected to be tried by a judge alone.
Section 68C of the Supreme Court Act 1933 (ACT) specifies the procedures to be followed for a trial by judge alone. In summary:
(a)the judge can make any findings of guilt that could have been made by a jury, and those findings have the same effect as jury verdicts;
(c)the judge must provide a judgment setting out the principles of law he or she applied and the findings of fact he or she relied on (this requirement has been interpreted as requiring the judge to set out also the reasoning process linking the law and the facts, and a justification for the verdict, Fleming v The Queen (1998) 197 CLR 250); and
(d)the judge must take into account any warnings or directions that would, under a Territory law (which for this purpose includes the Evidence Act 1995 (Cth), applicable at the time of this trial), have had to be given, or any comments that would under such a law have had to be made, to a jury in the case.
Directions
In a judge-alone trial the judge must give herself certain directions equivalent to those that would be given to a jury. Those directions relate to the presumption of innocence, the burden of proof generally and the way evidence should be dealt with, and they are set out in more detail in Appendix A to this judgment. Other specific directions, required by the circumstances of this case are also set out in Appendix A.
Elements of the offences
The offence charged is set out in s 603(7) of the Criminal Code 2002 (ACT), as follows:
(7) A person commits an offence if the person traffics in a controlled drug other than cannabis.
Maximum penalty: 1 000 penalty units, imprisonment for 10 years or both.
Both cocaine and MDMA are controlled drugs other than cannabis (see Criminal Code, s 600 and Criminal Code Regulations 2005 (ACT), reg 5(1)(a) and Schedule 1)
Section 602 of the Criminal Code defines trafficking:
For this chapter, a person traffics in a controlled drug if the person—
(a)sells the drug; or
(b)prepares the drug for supply—
(i)with the intention of selling any of it; or
(ii)believing that someone else intends to sell any of it; or
(c)transports the drug—
(i)with the intention of selling any of it; or
(ii)believing that someone else intends to sell any of it; or
(d)guards or conceals the drug with the intention of—
(i)selling any of it; or
(ii)helping someone else to sell any of it; or
(e)possesses the drug with the intention of selling any of it.
The Crown case was that Mr Dib had trafficked in the relevant drugs because he had transported or possessed the drugs with the intention of selling them (ss 602(c) and (e)). If transporting or possession was established, intention could be presumed from the presence of a trafficable quantity of the relevant drugs (s 604(1)(b) and (d)).
The trafficable quantities were for cocaine, 2 g, and for MDMA, 0.5 gm (Criminal Code Regulations, reg 8(1)(a) and Schedule 1)
The evidence
Outline of case
George Dib was the subject of a police surveillance operation conducted on 21 November 2008. Police had obtained search warrants relating to Mr Dib and to motor vehicles and premises associated with him.
The surveillance began at the Kippax shopping centre. Mr Dib left the shopping centre on a motorbike, and was followed by police officers in several unmarked cars, some of whom observed that Mr Dib had a bag over his shoulder. He rode his motorbike to an address at McKellar (the McKellar house), where he was picked up in a white utility vehicle with an orange stripe (the ute) driven by Tristan Waters. Mr Waters drove the ute to a top level parking area at Belconnen Mall, where he parked it. As he and Mr Dib were in the process of getting out of the ute, they were approached by police officers who had been involved in the surveillance. The ute was searched, and Mr Dib and Mr Waters were interviewed and arrested. A trafficable quantity of each of the two specified drugs, and a set of scales showing traces of cocaine, were found in a bag in the footwell in front of the front passenger seat of the ute. Forensic testing of the bag and its contents suggested a link to Mr Dib. Elsewhere in this judgment, I refer to the police operation at the Belconnen Mall car park as the drugs seizure.
Witnesses
Evidence was given by the police officers involved in the surveillance and subsequent police activity, by various forensics experts, and by Mr Waters.
In summarising evidence, I have at times, for consistency, used descriptions not in fact used by particular witnesses, but only where there was no dispute about the conclusions implicit in those descriptions. For instance:
(a)where there was no dispute that a person mentioned was Mr Dib, I refer to the person as Mr Dib even if a witness referred to him, for instance, as the person who had previously been seen at Kippax;
(b)the vehicle driven by Mr Waters is referred to as the ute even if a particular witness referred to it by a brand name or as “the car” or “the vehicle”.
Exhibits
There were also numerous exhibits, the most significant being the seized bag and a series of photographs taken at the Belconnen Mall car park, as well as reports from various forensics experts.
The bag
The bag was about was about 20 cm wide, 15 cm high and 8 cm deep, with a zipper at the top. A flap about 22 cm long, which extended from the back of the bag, could be closed over the zipper area and fastened to the front of the bag by two pieces of velcro. The bag had one small unsealed pocket on one narrow side, and two more unsealed packets inside the zipped section of the bag.
The bag was made of fabric which on the outside surface was black with white stripes and had a woven appearance; the other side of the fabric (inside the bag) was black and smooth, looking more like a waterproof fabric. On the outside of the bag, the white stripes ran vertically from the top to the bottom of the bag. On the flap, there was a woven badge, about 2 cm x 3 cm, mainly red, with a “Dickies” logo. The shoulder strap is plain black and also gives the appearance of being made of woven fabric, somewhat coarser than the bag fabric.
The photographs
The following table sets out the captions (apparently provided by police) used in the exhibited bundle of photographs taken at the Belconnen Mall car park, and my descriptions of the photographs. The photographs were numbered 2 to 16 on the exhibited bundle of photographs, but for some reason had been renumbered 1 to 15 for use in court.
No. used in court [No. shown on exhibit] Police caption Description: this photograph shows ... 1 [2] Rear of Holden utility, white in colour, bearing NSW registration [xxxxxx] ... the top floor of the Belconnen Mall car park, the white ute parked in a hatched area of the car park and partly surrounded by several unmarked police cars. A man wearing blue jeans and a black top is standing between the white ute and one of the police vehicles, with his back to the camera. 2 [3] Close up – rear of [xxxxxx] ... the white ute from the rear. The tray is uncovered. The torso of what appears to be the same man shown in photograph 1, still with his back to the camera, is beside the driver’s door of the ute. There is a patch of light blue immediately below his left arm, and black areas are apparent in the area where back pockets would be on his jeans. 3 [4] Front of [xxxxxx] ... the white ute from the front. 4 [5] Interior of [xxxxxx] ... the inside cabin of the white ute looking inside from the passenger door. The striped bag is just visible on the floor in front of the passenger seat. 5 [6] Bag (black with white stripes) on passenger’s side floor of [xxxxxx] ... a closer view of the scene depicted in photograph 4. The striped bag is quite obvious on the floor in front of the passenger seat. 6 [7] Close up of bag on passenger’s side floor of [xxxxxx] ... a closer view of the striped bag in front of the passenger seat. 7 [8] Inside bag ... the striped bag sitting on the passenger seat, being held open by two hands wearing blue gloves. 8 [9] Clip seal bag and contents from inside bag ... in the background, the striped bag apparently sitting on the passenger seat. Above that, two hands wearing blue gloves are holding a plastic clip seal bag containing white items. 9 [10] Close up of clip seal bag and contents ... apparently the same scene as in photograph 8, although the clip seal bag may be a different one (its contents appear to be similar to those of the bag shown in photograph 8, but appear to be arranged slightly differently within the bag). 10 [11] Further contents within bag scales and further plastic bags ... the striped bag being held open by two hands wearing gloves (these are probably the same blue gloves as shown in earlier photographs but this photograph is overexposed and they appear to be mainly white). The bag has the seat behind it, but the relative sizes of the bag and the seat, compared with those apparent in photograph 7, suggest that the bag is being held above the seat rather than resting on it. Inside the bag, sitting on the bottom, is a black, apparently rectangular, item that may be a small set of scales. 11 [12] Scales ... the striped bag sitting on the passenger seat, with a clip seal bag apparently containing white contents sitting on the seat beside the bag. In the foreground above those items, a black rectangular item, apparently a small set of electronic scales, is being held up in two hands wearing blue gloves. 12 [13] Close up of scales A scene almost identical to that shown in photograph 11, except that the scales have been rotated 180° and are being held closer to the camera. 13 [14] Plastic bags containing pills ... the scales sitting on the passenger seat, with a clip seal bag apparently containing white contents also sitting on the seat. Two hands wearing blue gloves are visible, one of them holding up three small plastic bags or wraps containing white contents. 14 [15] Plastic bag containing pills ... a scene almost identical to that shown in photograph 13, except that the gloved hand is holding one small item, possibly a bag with white contents formed by wrapping the contents in clear plastic wrap and tying or knotting the plastic at the top. On the seat, partially obscured by the gloved hand holding the bag, is what appears to be a small clear plastic bag of tablets. 15[16] Plastic bag containing pills ... a gloved hand holding the same item as is shown in photograph 14, or a similar one, and in a similar setting, except that the hand is closer to the camera and so it occupies more of the photograph
The surveillance team
Detective Sgt Michael Pearce
DS Pearce gave evidence that for the purposes of the surveillance he was in an unmarked police car with Detective Senior Constable Wiggins. They left the police station at 1.15 pm; other police officers had left earlier. DS Pearce was in charge of the whole operation. He said that the officers involved in the surveillance would usually have operated by themselves but due to a lack of “plainclothes vehicles” they were operating in pairs, meaning that there were four teams of two people each.
By the time DS Pearce left the police station, “the target of the operation was moving and the operation had begun”. Other officers involved in the surveillance communicated with DS Pearce about what was happening and he used that information to formulate a plan of action, but he was not directly involved in the surveillance until after Mr Dib arrived at the McKellar house.
DS Pearce drove past the McKellar house. He saw the motorbike but didn’t recall seeing Mr Dib or the motorbike helmet.
Shortly after the ute was driven away from the McKellar house, DS Pearce drove after it. He followed the ute at certain points, but was not close to it as it approached Belconnen Mall, and did not see the ute again until he got to the top level of the Lakeside carpark at Belconnen Mall. The ute was stopped in the car park with the passenger’s and driver’s doors open, there was a male person standing beside each door, and there were police in attendance. DS Pearce said that he thought he and DSC Wiggins were the last officers to arrive.
DS Pearce recognised the person beside the driver’s door as Tristan Waters, and George Dib was beside the passenger door.
DS Pearce stood outside the car on the driver’s side, and looked inside the ute. He saw, in the footwell on the front passenger side, a black and white bag. He had a conversation with the driver, Mr Waters, and told him that he was going to search the vehicle. Mr Waters asked about his power to do so and DS Pearce referred to s 188 of the Drugs of Dependence Act 1989 (ACT) (which permits emergency searches where drug offences are suspected). DS Pearce explained at trial that he had warrants for Mr Dib and his motor vehicles but not for Mr Waters’ motor vehicle, so he had had to use emergency powers to search that vehicle.
DS Pearce got into the ute from the driver’s door, and sat in the driver’s seat. He picked up the bag with his left hand and put it on the passenger seat where Mr Dib had been sitting, in order to open the bag. He remained sitting on the driver’s side seat while he opened the bag; he opened the velcro tab on the bag and then the zip and looked inside. Inside the bag he saw a large plastic bag containing a number of other smaller plastic bags. He moved that bag to the side and underneath could see other bags inside.
When DS Pearce shook the bag, he could see the scales below the larger bag. He did not remove any item from the bag but did not close it. He did not go further into the bottom of the bag, but called DSC Roscoe to take possession of it. He left the bag sitting on the passenger seat and got out of the car.
In cross-examination, DS Pearce demonstrated how he had handled the bag, leading to the following exchange:
MR ARCHER: Yes?---I picked the bag up from the floor with my left hand and pulled the straps aside, and I opened it, the Velcro flaps and then opened the zip. I pulled it open and looked inside. I put the bag back, called Simon Roscoe to the area and told him to take possession of the bag.
Now if I can stop you there. Just stop there and leave it in your hands where you just had it, please. Could I just indicate that you are touching the bag on the outer portions of it?---That’s correct.
And until I told you to put it back, the strap was underneath your hand?---Well, that’s in relation to this - - -
On both sides, constable? On both sides the strap was underneath your hands, do you agree with that?---No, I don’t agree. I can’t agree with that, because I don’t recall it happening, even though it was only an instant ago.
I just asked you, constable, what you just did, and you had your hands around the outside of the bag - - -?---Are you talking about now or - - -
Now, constable. You were demonstrating - - -?---And I’m a detective sergeant, sir, too, not a constable.
Sorry, I didn’t mean to offend. I’m just describing what you did, constable - detective sergeant. Don’t be offended by it?---I’m not offended, sir, but - - -
Just direct yourself to my questions?---Yes, go ahead.
Don’t make speeches, just direct yourself to my questions. You had your hands around the outside of the bag around the outer portions of the straps, do you agree with that, when you were showing her Honour how you were handling the bag?---I agree I had both hands on each side of the bag. Where the strap was at that time, I can’t honestly say.
I’m asking you to accept for the purposes of my question - and direct yourself to the question - - -?---I accept that for the purpose of your question.
Okay. Do you accept that you had your hands around the outside of the bag and that the straps were underneath your hands just now?---I find difficulty in answering that, your Honour.
HER HONOUR: If the witness can’t remember, then he can’t remember.
MR ARCHER: Well, if he can’t remember - he is just got to give that answer, your Honour. That’s all he needs to do?---I already have.
DS Pearce said he did not examine the small outside pocket of the bag, because he didn’t know it was there until defence counsel pointed it out in cross-examination. He did not close the zip or fold over the top of the bag when he left it, and he didn’t see what DSC Roscoe did with it.
Later, DS Pearce said, he saw the black and white bag being put into an audit bag. DS Pearce saw the photographs being taken of the bag in situ, but did not see the other photographs, showing the contents of the bag, being taken. He said that the gloved hands shown in the photographs belonged to DSC Roscoe. He denied that the bag was pushed under the seat “a little more than is depicted in the photographs”.
DS Pearce said that he had not heard of Egon Struss or Michael Slavitza.
DS Pearce said that in the car park, he did not talk to Mr Dib and did not touch him.
Detective Senior Constable Simon Roscoe
DSC Roscoe drove an unmarked police car to Kippax with Detective Constable Kylie Eggins, and parked outside the Jabal Halal Market. About 1.00 pm, they saw Mr Dib leave the market, cross the road and walk through the car park towards the Kippax shopping centre. DSC Roscoe followed him at a distance of about 20 to 40 metres and saw Mr Dib go into a bank. Mr Dib was wearing a black motorbike jacket and blue pants, and carrying a blue, silver and white motorbike helmet. Mr Dib left the bank and returned towards the market. DSC Roscoe returned to his car, and as he got into the car he lost sight of Mr Dib.
Shortly afterwards DSC Roscoe saw a blue motorbike with New South Wales registration leave from the rear of the market. The rider was wearing blue jeans and a black jacket and the same motorbike helmet DSC Roscoe had seen before, and he believed that Mr Dib was the rider.
DSC Roscoe gave evidence that when he had followed Mr Dib at Kippax, he had not seen Mr Dib carrying a bag or with a bag on his person, and nor did he see Mr Dib with a shoulder bag or wearing a shoulder bag while he was on the motorbike.
DSC Roscoe didn’t see the motorbike again until it was parked on the gravel nature strip outside the McKellar house. He drove past the house without stopping, and, from a distance of about 10 metres, saw Mr Dib standing nearby in the driveway without his helmet on. The helmet was on the brick letterbox.
After driving past the house, DSC Roscoe turned into the second street to the right, did a U-turn and parked on the corner facing out in the direction of the McKellar house. From there he could not see the McKellar house but could see, at a distance of about 60 metres, the motorbike and the letterbox, and at times he could see Mr Dib’s legs. A white vehicle with an orange stripe on the front of the bonnet (the ute) arrived and pulled up at the house. Mr Dib approached the ute and seemed to have a quick conversation with the driver. He went back to the letterbox, picked up the helmet and walked towards the house, where DSC Roscoe lost sight of him. A short time later Mr Dib came back to the ute without the helmet, and got into the passenger seat. At that point he didn’t see Mr Dib carrying anything or with a bag on his person.
DSC Roscoe said that he waited until the ute had gone, then followed other police cars which were following the ute towards Belconnen Mall. The first time he saw the ute after it left the McKellar house was on Ginninderra Drive. He followed the ute towards the top level of the Belconnen Mall car park, losing sight of it for a bit until he got to the top of the car park, but then saw that it had just parked at the end of one of the parking bays. DSC Roscoe believed that his was the first police car to get to the top level of the car park.
When he and DC Eggins arrived, the doors of the ute were opening, and the two people inside were getting out. DSC Roscoe stopped the unmarked police car next to the ute, with his passenger side next to the driver’s side of the ute. He got out of the police car and walked around both cars and spoke to Mr Dib. Mr Dib was out of the ute, one to two metres away from it with the door still open. DC Eggins got out of the police car and spoke to the driver of the ute.
Mr Dib was still wearing the black jacket and blue jeans. DSC Roscoe identified himself and told Mr Dib that they had a search warrant and they were going to search him. He gave evidence that Mr Dib might have asked some questions about why he was to be searched. While DSC Roscoe was speaking to Mr Dib, other police officers arrived.
DSC Roscoe asked Mr Dib to come to the rear of the ute, and to remove his jacket. DSC Roscoe then conducted a frisk (or pat-down) search. He said that he searched the jacket and put it down somewhere, he supposed on the rear of the ute, while he searched Mr Dib. DSC Roscoe said that he did the frisk search wearing a pair of black gloves that were not disposable gloves but were made of “black wetsuit material” or “neoprene”.
DSC Roscoe said that he didn’t look in the ute before taking Mr Dib to the rear of the ute. He saw DS Pearce start a search of the ute and find a black bag with white stripes. DS Pearce touched the bag, opened it and told DSC Roscoe that he had found some drugs in it. DS Pearce put the bag back down where he had found it.
DSC Roscoe took over the process of seizing the drugs, while DC Eggins took photographs. The first thing that DSC Roscoe saw was a large clip seal bag which had six smaller bags inside containing a white powder substance. He put each item on the seat, and once they had been photographed he put each item into a property seizure audit bag. He wore the same pair of blue gloves throughout. DSC Roscoe said that photograph 4 in Exhibit A showed exactly where the bag was when DSC Roscoe first approached the ute and saw the bag. Photograph 7 showed DSC Roscoe opening the bag.
DSC Roscoe said that photograph 10 showed the black bag being opened so he could take the next things out; he thought he might have put the clip seal bag onto the seat next to it. Photograph 11 was of scales found in the bottom of the bag, which could not be seen when the bag was initially opened. Photograph 13 showed three bags containing pills with a teddy bear motif on them. Photograph 14 showed another bag with a white powder substance in it.
DSC Roscoe was not able to say what had happened to the black gloves he wore when searching Mr Dib, although he said he would have disposed of them since then. He said that using such gloves was a practice in the AFP, but conceded that he didn’t mention the gloves in either of his two statements, made in January 2009 and February 2009. He said that photograph 2 showed him having removed his black gloves (which he said were visible in his back pocket) and putting on blue gloves.
DSC Roscoe gave evidence about the handling of the black and white striped bag, saying that he had seen the bag in the front passenger footwell and had seen DS Pearce pick it up, look inside, and then replace it in the footwell. He believed that DS Pearce put the bag back where he had found it, which was in the footwell. He did not recall seeing DS Pearce put the bag on the seat. When DSC Roscoe began to search through the bag it was on the floor.
DSC Roscoe said that Mr Waters was interviewed under caution, and that he thought at one stage Mr Waters wanted to speak to a member of his family (possibly his uncle), and his lawyer. Mr Waters’ uncle’s name was Egon Struss. DSC Roscoe was unaware of any subsequent investigation of Mr Struss. He agreed that Mr Waters had been searched, and that he had found $1,005 in Mr Waters’ wallet. Mr Waters had said that:
(a)he owed some people some money;
(b)he was also paying for some work to be done on his car; and
(c)he got the cash from his mate Michael Slavitza on the previous night to pay Daniel Phillips.
DSC Roscoe was not aware whether any statement had been taken from Michael Slavitza.
In cross-examination, DSC Roscoe said that police don’t tailgate the vehicles they are conducting surveillance on, but stay the furthest possible distance away consistent with not losing the target.
Federal Agent Anna Wronski
Agent Wronski gave evidence that she was the driver of one of the surveillance vehicles, with Sally Nayda as her passenger. At Kippax she saw Mr Dib walking through the car park from a fair distance away. He was wearing a dark coloured leather jacket and denim jeans, but she didn’t recall seeing him carrying anything at that stage. Her car became the “eyeball” car after turning right onto Ginninderra Drive, and at that point she could see Mr Dib’s motorbike. At one point, when Mr Dib indicated a left turn off Ginninderra Drive, she had no cover and was directly behind the motorbike, no more than 10 or 15 metres away. Later, she said that coming off Ginninderra Drive she was “directly behind” the motorbike. From there, Agent Wronski was able to observe the registration number and the rear of the motorbike. She saw that the rider was wearing denim jeans, a dark-coloured jacket and a multicoloured helmet. He had a black bag over his left shoulder that was resting on the right-hand side of his lower back, rather than on the side.
Agent Wronski said that the bag was a rectangular-shaped bag, not large, probably around the size of an A4 piece of paper (just less than 30 cm x 21 cm). Agent Wronski said she could only see a black bag, and could not see the colour of the strap. She agreed that the witness statements she had made did not assert that the bag she saw Mr Dib carrying was the bag found in the ute.
Agent Wronski did not follow the motorbike to the McKellar house, and first saw the ute at the Belconnen Mall car park. When she arrived there, both doors of the ute were open. She parked the police car and approached and spoke to other police already there. She saw Mr Dib out of the vehicle, standing on the passenger side of the ute talking to police. He was wearing a dark-coloured leather jacket, possibly with white stripes down the sleeve. She was aware that Mr Dib had been in the passenger seat of the ute, that another male had been driving, and that drugs had been found in the front passenger footwell in a black satchel-styled bag. She could not recall seeing the bag in the footwell of the ute.
Agent Wronski said she thought DS Pearce got to Belconnen Mall before she did, and she did not recall looking inside the ute when she walked to the front of it. Nor did she see DSC Roscoe take items from the bag and put them on the seat of the ute.
Agent Wronski said she had not observed photographs being taken of the bag and its contents. She could not recall speaking to Constable Edwards about the bag, either in the car park or later, but she was aware that Constable Edwards had seen the bag. Agent Wronski said that she had talked to Constable Edwards before and after she put notes in her notebook.
Agent Wronski said that there were radio and phone communications among police officers during the surveillance, but the radio broadcasts were not recorded. She was driving, so was not making notes, but she had made her notes later, before leaving the Watch House. She had taken notes during the taped record of forensic procedure that she corroborated, and would have made notes on the surveillance before that.
Agent Wronski said that she had written notes in her notebook in the order in which events occurred, and that this did not involve leaving spaces in the notebook and going back later. She said she had made the notes about the surveillance, on the basis of her recollections, when she had the opportunity, which would have been either at the Belconnen Mall car park, or at the Winchester Police Centre before she went to Barton to execute a search warrant.
Agent Wronski thought that DSC Wiggins had prepared the notes recording the observations of the surveillance team, after discussions with other officers, and agreed that the notes were prepared on 25 November 2008.
She said that DSC Wiggins had asked her what she had observed during surveillance while she was the “eyeball”, but she couldn’t recall the particular conversation or who else had been present. Agent Wronski said she had checked that the notes in the surveillance record referring to her observations were accurate, but hadn’t reviewed anyone else’s notes. The notes about her observations would have been written by the person preparing the surveillance notes.
Agent Wronski was cross-examined about the surveillance record. She said that she was aware of other people’s notes, but she had not compared her surveillance notes with those of others. She said that in agreeing to timings for the surveillance sheet, she did not rely only on her own notes, and believed there would be timings in some other people’s diary notes. She also said that the timings recorded would not necessarily be in diary notes. Some of them might have come from radio calls. Agent Wronski said it was common practice to allocate someone to record matters from radio communications, but she could not recall whether that had happened in this case. When the prosecutor advised that no notes of radio communications had been served on the DPP, Agent Wronski said she was not sure where the timings in the surveillance notes had come from. She was not aware of any source document listing timings and, while asserting that 13:23 hours was an accurate reflection of the time when a particular observation was made, could not explain how she would have known that.
Agent Wronski said that Constable Nayda would have been able to see what she saw, because Constable Nayda was sitting in the front passenger seat of Agent Wronski’s vehicle, but she couldn’t recall if Constable Nayda was making notes. Agent Wronski could not recall whether she made a radio communication about the “black satchel bag” mentioned in her own notes, or whether she had pointed it out to Constable Nayda. Agent Wronski said that she and Constable Nayda had talked later, and that Constable Nayda had said that she did notice the bag, which was on the lower right hand side of Mr Dib’s back, above the right hip. Agent Wronski said she remembered the bag sitting flush on Mr Dib’s back on the right-hand lower side, not hanging loose or overhanging out the side.
Agent Wronski rejected the proposition that she did not see Mr Dib with a bag on his back while he was on the motorbike.
Agent Wronski said that the name Egon Struss meant nothing to her.
Detective Constable Kylie Eggins
DC Eggins said that at Kippax she had been in a car with DSC Roscoe. She saw Mr Dib walking from the markets with two other people, wearing blue jeans and a black leather jacket and carrying a motorbike helmet.
When the motorbike came out from behind the markets the rider was wearing a black leather jacket, blue jeans and the silver and grey helmet that she had seen Mr Dib carrying earlier. She couldn’t read the motorbike’s license plates. DC Eggins said she next saw the motorbike when it was parked out the front of the McKellar house. When she and DSC Roscoe drove past the house, she was on the far side of the police car from the house, but she saw a person standing in the driveway area. She saw the motorbike on the gravel nature strip, the helmet on the letterbox, and two other vehicles in the driveway. DC Eggins had a good look at the man standing in the driveway, from about 10 metres away, and she was able to observe that he had not shaved for a period. She believed the man to be Mr Dib. He was wearing blue jeans and a black leather jacket, the same clothes he had been wearing before. Mr Dib was facing the road, but she did not see him holding anything.
DC Eggins said that she lost sight of Mr Dib as they drove away from the McKellar house, and when they pulled up, about a minute later, and she looked back in the direction of the house, she could, even with binoculars, see only legs in blue jeans. After about five minutes a white ute pulled up with an orange stripe running lengthwise. It stopped in the driveway, and DC Eggins saw the legs approach the driver’s side of the ute. The legs appeared to be quite close to the driver’s door, and were there for less than a minute. Then the legs walked back towards the house and returned a minute or so later. Mr Dib got in the passenger side door, without his helmet – DC Eggins said that was when she was able to “fully see him”. He was wearing a black leather jacket and blue jeans, but did not appear to be carrying anything. DC Eggins said she did not use the binoculars to watch Mr Dib getting into the ute, because she could see him without the binoculars. She didn’t see him take a bag from around his neck as he got into the car; all she observed was that he no longer had the helmet.
The ute came towards the car in which DC Eggins and DSC Roscoe were waiting, but did a U-turn before reaching them.
DC Eggins said that she and DSC Roscoe were the main (“eyeball”) car at Kippax until the motorbike left the markets, and at McKellar while they were observing the legs at the house.
After the ute turned at the intersection of William Slim Drive and Ginninderra Drive, DC Eggins and DSC Roscoe became the main car again, travelling about 100 to 150 metres away from the ute, and they could not see the license plates. They were the main car along Ginninderra Drive, into Aikman Drive, onto Emu Bank and Benjamin Way, and then into the multi-storey car park. DC Eggins said she could see the ute at times during that journey but it wasn’t within her sight for the whole time. They had lost sight of the ute after it entered the multi-storey car park and radioed that they would continue to the top level. She believed that other cars were going to the middle and bottom levels. At the top level of the car park, the first car DC Eggins saw was the white ute. Both the driver’s and passenger’s doors were open and the people were getting out. Mr Dib got out the passenger side door.
DC Eggins said that Mr Dib was not fully out of the ute when DSC Roscoe pulled the police car in parallel to the driver’s side of the ute. She was closer than DSC Roscoe to the driver of the ute and also to Mr Dib. The driver had just stood up out of the vehicle. DSC Roscoe got out of their vehicle straight away and went around the back of the ute to the passenger side. DC Eggins got her badge out, said “police”, and got identification, a New South Wales driver licence, from the driver. She saw that Mr Dib was out of the car.
DC Eggins said she conducted a licence check and a “person check” on Mr Waters. The licence check established whether his licence was valid and whether it was subject to any restrictions.
Other police cars arrived. DC Eggins said she thought DSC Wiggins and Constable Edwards were there early on but also that a number of cars arrived pretty much all at once.
After finishing the licence check, DC Eggins put Mr Waters into the back of a police vehicle, and shut the back door but left the front door open. She spoke to DSC Wiggins, then waited with Mr Waters. DC Eggins said that Mr Waters asked if he could contact his lawyer, but she couldn’t recall any other conversation. When she had to take the photographs, someone else would have sat with Mr Waters, but she couldn’t recall who had done so.
DC Eggins said that when DS Pearce asked her to come and photograph stuff in the passenger footwell of the ute, she got the camera and walked in a wide loop towards the ute, taking a far shot of the vehicle on her way, and then got closer. She went to the passenger door of the ute, a black bag in the passenger footwell was pointed out to her, and she took photographs. No-one else was involved in the process of her taking photographs of what DSC Roscoe was doing. DC Eggins saw the black bag placed on the car seat and items being taken out of it. To the best of her recollection, each item was placed on the seat as it was taken out.
DC Eggins said that before taking the photographs, she didn’t know where Mr Dib was. She said she hadn’t touched the white ute before taking photograph 3. She did not open the front door of the ute, but didn’t know who did. DS Pearce had told her there were items in the passenger footwell so that was where she was heading. Between photograph 9 and photograph 10, the clip seal bag would have been put somewhere. Photograph 10 showed what was in the bag underneath the clip seal bag. In photograph 10 the bag was being held up above the seat. Between photographs 10 and 11, DSC Roscoe had pulled the scales out of the bag and that was what she photographed for photograph 11. Photograph 15, DC Eggins said, was just a zoomed-in shot. DC Eggins said there was no conversation with DSC Roscoe about what would be photographed, only conversations about what needed to be done so that she could photograph items (eg “hold it still”).
Then DC Eggins left the area and went to Barton as part of the same operation. She did not speak to Mr Dib at any stage at Belconnen Mall.
DC Eggins said she believed that, as the passenger in the police car, she had made the radio calls, and that apart from what DSC Roscoe had observed when he followed Mr Dib towards the bank, everything she had reported by radio was her own observations. She said that she and DSC Roscoe talked about what they were observing, but that she would have decided what radio calls she made.
DC Eggins said she made her surveillance notes that afternoon, not during surveillance while in the police car, but at the Belconnen Mall car park. The notes she made were of things as they happened, as well as trying to recap what had happened during the surveillance. DC Eggins said that when she made her notes about the surveillance, she had not, as far as she could recall, spoken to anyone about what had happened during the travel from Kippax to Belconnen Mall. If she had spoken to anyone it would have been DSC Roscoe, “to double-check that we agreed on things”, because they had been in the car together. She made more notes in Barton, and also when she returned to the WPC. At that point she finished her “recap” of the earlier events.
DC Eggins said that she had completed her notes on the basis of her own observations. She did not make any notes about times while in the car, but could remember the time they’d left Kippax because she looked at her watch, and also the time they arrived at the Belconnen Mall car park. She would only have spoken to DSC Roscoe about the times that things had happened. DC Eggins said that notes in her notebook show times for the briefing (12:36 pm) and for the time they stopped the ute in the car park (13:45 hours), but no other times. DC Eggins did not know where DSC Wiggins had got the time specified as 13:05 hours for observations recorded in the surveillance running sheet as made by her.
DC Eggins said that later she looked at the surveillance running sheets. She had already prepared her own notes, and possibly some maps. She had not read anyone else’s notes before reading the surveillance running sheet prepared by DSC Wiggins. She compared her notes with the running sheets to make sure the running sheets were accurate.
In cross-examination, DC Eggins said she had heard of surveillance exercises in which a person was allocated to keep a record of things that were said over the radio, but she didn’t believe anyone had been allocated on this occasion. She had discussed the running sheets with DSC Wiggins, who had prepared them, so far as it was relevant to her, and signed relevant portions, checking her notes when doing so. She could not remember changing the draft document given to her by DSC Wiggins. She could not recall whether she gave DSC Wiggins a copy of her notes before he prepared the running sheet document.
DC Eggins confirmed that her notes did not refer to Mr Dib carrying a bag, and that she did not see him carrying a bag.
DC Eggins said that she did not go to the McKellar house to execute a search warrant. Nor was there any search of a residence belonging to Anthony Markovic.
Michael Edwards
Mr Edwards was in November 2008 a constable with the AFP; by the time of the trial he had joined the Queensland police force. He said he had been paired with Senior Constable Shane Lefevre, and they were in an unmarked vehicle which SC Lefevre was driving. Mr Edwards was the primary operator of the radio because he was the passenger. He said that at Kippax he saw Mr Dib walking across the car park towards the Commonwealth Bank. He was wearing a black jacket and blue jeans and carrying a blue and silver motorbike helmet. Mr Edwards did not see him carrying anything else. The closest Mr Dib came to Mr Edwards at that stage was about 40 to 50 metres.
Mr Edwards first saw the motorbike about 80 to 100 metres away from him. In the car park at Kippax he saw the motorbike go past the rear of their vehicle, but they were parked on the opposite side of the car park, and the motorbike did not get close to them. Later, Mr Dib was probably 50 metres away on the motorbike. It was a blue motorbike, and the rider was wearing the blue and silver helmet that Mr Dib had been carrying previously, and the black jacket and blue jeans.
Mr Edwards said that shortly after leaving the area of the Kippax shops, the motorbike was stopped due to traffic and his car was two cars back from it, so he was probably 30 metres away from the motorbike. At the intersection where Mr Dib was stopped, the two cars between him and Mr Dib turned left, and Mr Dib turned right. The next time Mr Dib stopped at traffic at “another intersection with a major road”, his police car was, for about 10 seconds, at most 3 to 5 metres away from Mr Dib’s motorbike, and Mr Edwards was able to read the registration plate. As they approached the stationary motorbike, he could also see that Mr Dib was carrying what he described at the time as a “satchel bag”; Mr Edwards said that he thought the common term at the moment was a “man bag”. The bag was not as large as some ladies’ handbags, but was a medium-sized square-shaped bag which had one flap which would open up the bag to enable viewing of its contents. The bag had a long strap so it could be worn over the shoulder. The strap was slung over Mr Dib’s left shoulder, and the bag was positioned on the right side of his body.
Mr Edwards said that the bag was smaller than an A4 piece of paper, and at the trial he tore a piece off an A4 sheet to show the size; the torn sheet became Exhibit I, which is in fact about 15 x 21 cm (almost exactly half an A4 sheet). The bag was on Mr Dib’s right hip or buttocks, and Mr Edwards said he could clearly see the square shape of the bag presented towards him at the back of Mr Dib’s right hip.
After Mr Dib turned right and accelerated away, Mr Edwards’ car was still the “eyeball” car, and they maintained a distance of about 50 metres from Mr Dib. At the next intersection they communicated via the radio that the bike was turning left, but Mr Edwards’ car continued straight on.
Mr Edwards said he then heard through radio communications that Mr Dib was in a white ute, but he did not see the white ute until they reached the top level of the Belconnen Mall car park, where he saw the white ute and, outside it, Mr Dib and the driver.
Mr Dib was standing next to a police officer on the passenger side of the car. Mr Edwards believed there were four other police officers already there, and two police vehicles. Mr Dib was standing right next to the ute, within touching distance of the police officers. The driver was next to the driver’s side of the vehicle speaking to police.
Mr Edwards spoke to DSC Wiggins, who was the officer in charge, and asked what assistance he needed. He was told to prepare for a recorded conversation with Mr Dib. Mr Edwards said that during the recorded conversation with Mr Dib, there was a break when Mr Dib asked to speak to a solicitor.
At one point Mr Edwards, DSC Wiggins and Mr Dib got out of the police car and walked around to the passenger side of the white ute, where DSC Wiggins showed Mr Dib items including what Mr Edwards referred to in evidence as “the satchel bag that was previously on his person”. Mr Edwards said that although he didn’t have a clear view into the ute, he saw the black bag on the passenger seat, closed, and heard DSC Wiggins refer to the black bag. No other police officers were part of that conversation. Mr Edwards said he had not looked inside the ute when he arrived at the car park, but he had seen the bag before, on Mr Dib’s back as he was driving away on the motorbike. Mr Edwards said that the bag identified as Exhibit B is the bag that he saw on the passenger side of the motor vehicle and before that on Mr Dib’s back.
After the drug seizure at the Belconnen Mall car park, Mr Edwards, DSC Wiggins and Mr Dib went to the McKellar house and the motorbike was searched. Later, after a search warrant was executed on Mr Dib’s nominated address in Barton, Mr Edwards and Agent Wronski took Mr Dib to the City Watch House, where a DNA sample was taken from Mr Dib by buccal swab, with his consent.
At the trial Mr Edwards could not recall asking SC Lefevre whether he had seen the bag from about 3 metres away when their car pulled up behind the motorbike. He said he had not asked other police officers whether they had seen the bag.
Mr Edwards could not recall having spoken to SC Lefevre about the bag at any time since the day of the drugs seizure. He said that before giving evidence he had read the surveillance running sheets, but had not discussed the matter with SC Lefevre.
Mr Edwards knew before Mr Dib was interviewed that a bag had been found in the car, because DSC Wiggins had told him. He did not talk to DSC Wiggins about what he had seen during the surveillance, but presumed that DSC Wiggins knew, before the interview with Mr Dib started, because he (Mr Edwards) had made a radio call while in transit from Kippax to McKellar. He did not see the bag at the Belconnen Mall car park until he and DSC Wiggins went with Mr Dib to the passenger side of the ute.
Mr Edwards said he had read the surveillance running sheets prepared by DSC Wiggins, but didn’t know how DSC Wiggins prepared those parts of the notes that were attributed to Mr Edwards. Mr Edwards said he had checked and signed the running sheet, and couldn’t recall asking for any corrections to be made.
Mr Edwards said that he didn’t know whether anyone had been allocated the responsibility of making notes of the radio communications on that day and didn’t believe that the radio communications were being logged or recorded. Mr Edwards didn’t think it was standard practice for anyone to be allocated to make notes of the radio communications.
Mr Edwards did not know when DSC Wiggins created the running sheet, only when it was completed. He could not remember how many times he saw the running sheet, or when he signed it. He said that when he read the surveillance running sheet, he read all the entries where his name was noted in the “Member” column, and agreed with what was written in those entries.
Mr Edwards agreed that his description of the bag given in a radio communication had been recorded by DSC Wiggins as referring to a “black shoulder satchel bag”. He agreed that the bag seized from the ute was black and white, and that he did not mention a black and white bag in any of his earlier notes.
Mr Edwards said that at the McKellar house, the only search made was of the motorbike, and nothing of interest was found. The premises were not searched, and there was no search for the helmet or any other objects that might have been deposited at the house while Mr Dib was there.
Mr Edwards agreed that neither his notes on the day, nor a statement he subsequently prepared, contained a reference to the bag. His statement adopted the surveillance notes, but the surveillance notes contained no assertion that the bag Mr Edwards saw while Mr Dib was on the motorbike was the same bag as was later found in the car.
Mr Edwards said that he didn’t think there was “any correlation between the running notes and any other information”. Mr Edwards agreed that the interview with Mr Dib was suspended several times, and that at one point, he (Mr Edwards) would have gone over and looked at the bag, but he couldn’t recall talking to DSC Wiggins during that time about the bag.
At question 232 of the record of interview, which appears to have been asked after a break in the interview during which, Mr Edwards said, he had gone to the ute and looked at the bag, Mr Dib was told that he had been seen riding the motorbike with the satchel bag on his back. Mr Edwards agreed that that was the first time that it was put to Mr Dib in the interview that he had been seen with a bag before being approached in the Belconnen Mall car park. Mr Edwards said that before his observation of the bag was put to Mr Dib, he didn’t know whether anyone had recorded the observation. He could not recall having spoken to Agent Wronski about the bag. He could not recall having any conversation with Agent Wronski in the context of preparing the running sheets, but said it was possible that he did.
On the surveillance running sheet, there is an entry for 13:17 hours, with Mr Edwards’ signature and attributing to him the observation: “Dib further described as wearing a black shoulder satchel bag over his left shoulder”. Mr Edwards agreed that there was nothing in his notes about this bag, and said he didn’t know where DSC Wiggins got that information. However, Mr Edwards said, he assumed it was from the radio transmission that he had sent (see [94] above). He said that when he signed that entry in the running sheet, without asking for any amendment, he had assumed that:
(a)DSC Wiggins had recorded a description that Mr Edwards said he gave over the radio;
(b)DSC Wiggins had some notes of what was said over the radio; or
(c)DSC Wiggins had a recording of what was said over the radio.
Mr Edwards conceded, however, that DSC Wiggins had never shown him any such notes, and he was not aware of DSC Wiggins having such a recording, so the possible explanation seemed to be that DSC Wiggins had relied on Mr Edwards’ description given by radio.
Mr Edwards could not say where DSC Wiggins got the wording for the 13:17 hours entry, or how the time of 13:17 hours was attributed to a particular occurrence in the surveillance running sheet, and he had no recollection of providing his exact observations to DSC Wiggins. He was not aware of any note in existence matching the wording of that entry.
Mr Edwards initially gave evidence that he didn’t see the motorbike go into Slessor Crescent, but when defence counsel pointed out that there was an entry in the surveillance running sheet for 13:23 hours, with Mr Edwards’ name against it, recording the movement of the motorbike into Slessor Crescent, Mr Edwards said that although he couldn’t recall it, perhaps he had observed it.
Mr Edwards said that he believed Anthony Markovic came to the Magistrates Court the day after Mr Dib’s arrest when bail for Mr Dib was opposed. He had nothing to do with Mr Markovic after that, but before that he had been present, probably a week or two before 21 November 2008, when a search warrant was executed at Mr Markovic’s house. At that search warrant execution, DC Eggins, DSC Wiggins and at least another five or six officers were there. He thought DC Eggins was the case officer for that matter.
Mr Edwards said that 21 November was a clear, fine day, but he could not recall it being hot or cold.
Mr Edwards rejected defence counsel’s proposition that he simply did not see a bag on Mr Dib, saying that was incorrect.
Senior Constable Shane Lefevre
SC Lefevre was the driver of an unmarked police car, and was working with Mr Edwards. In the police car, SC Lefevre did not use the radio, but he heard Mr Edwards using it and heard replies.
SC Lefevre said he saw Mr Dib leaving the market at Kippax wearing a black leather jacket and denim jeans, but didn’t recall him carrying anything at that time. About five minutes after Mr Dib went into the market, he saw a male on a motorbike wearing the same clothing, and a helmet.
He and Mr Edwards, in the police car, followed the motorbike, probably 30 or 40 metres behind it; SC Lefevre didn’t think he got any closer than 30 or 40 metres from the bike. The bike stopped at a Give Way sign at the intersection of Starke Street and Hardwick Crescent, with SC Lefevre’s car two or three cars behind, about 30 metres back. Mr Dib turned right, and in due course SC Lefevre’s car also turned right. They were about 50 metres behind Mr Dib along Starke Street. At Southern Cross Drive the motorbike stopped at the Give Way sign, then turned right onto Southern Cross Drive SC Lefevre said he had to stop at the Southern Cross Drive intersection, about three cars away, and when he turned onto Southern Cross Drive the motorbike was 100 metres or possibly further away.
SC Lefevre said he had talked to Mr Edwards about the direction of travel of the motorbike but not about a description of it. They were the “eyeball” car, and Mr Edwards was broadcasting the direction of the motorbike over the radio. The motorbike turned left at the traffic lights at the intersection of Kingsford Smith Drive and Southern Cross Drive, and SC Lefevre’s car followed. At the Kingsford Smith Drive and Ginninderra Drive intersection, the motorbike stopped at a red light, in the right-hand lane. SC Lefevre said he also stopped his car, but he could not remember how many cars there were between his car and the motorbike at that intersection. His car also turned right onto Ginninderra Drive. The motorbike turned left at William Slim Drive, and SC Lefevre followed it. They did not lose sight of the motorbike at any point. They followed the bike onto Dumas Street, where another team took over the “eyeball” position.
SC Lefevre said that he saw the motorbike turning onto Slessor Crescent, and he then parked on Slessor Crescent out of sight of the motorbike and the other police vehicles. He did not see Mr Dib there. When the ute came past them, they followed it onto William Slim Drive and Ginninderra Drive, but they could not see how many people were in the ute.
When SC Lefevre’s police car got to the top of the Belconnen Mall car park, he saw the ute with both doors open, Mr Dib in the passenger seat and Mr Waters in the driver’s seat. Mr Dib and Mr Waters might have been out of the car before SC Lefevre arrived, but that was not his memory. SC Lefevre and Mr Edwards got out of their car.
DS Pearce, DSC Roscoe and DC Eggins were there. He thought that DS Pearce and DSC Wiggins also arrived before him. DSC Roscoe was with Mr Waters.
SC Lefevre said that DS Pearce asked him to advise Mr Waters about the emergency search of his vehicle. SC Lefevre approached Mr Waters and asked him to get out of the car so they could conduct a search. SC Lefevre then took Mr Waters to one of the unmarked police cars, where they sat in the rear seats and he conducted a taped record of conversation about an emergency search of Mr Waters’ vehicle. Agent Wronski was also present. Part of SC Lefevre’s role with Mr Waters was to keep him away from Mr Dib, and he did that. He took Mr Waters initially to the vicinity of one of the police cars. He searched Mr Waters. He didn’t recall looking in Mr Waters’ wallet, but said that would have been normal procedure.
SC Lefevre said that Mr Dib was wearing the same clothing he had been in earlier. SC Lefevre was probably standing with Mr Waters at the ute for five or 10 minutes before beginning the recorded conversation.
SC Lefevre looked inside the ute from the driver’s side doorway. There was no one in the ute at that time. He saw a striped shoulder bag, Dickie brand, in the footwell of the passenger side. No one had told him about the bag before that, and he didn’t say anything to anyone else about it at that time. He could not see all of the bag, because part of his view was obscured by the centre console.
SC Lefevre said that he hadn’t seen the bag before he saw it in the car. When he looked in the car he was not looking for anything in particular, just doing a cursory search. There may have been some sort of search before he saw the bag in the well of the car.
SC Lefevre said that his conversation with Mr Waters in the police car was not interrupted by any of his colleagues. The conversation was suspended to allow Mr Waters to make a phone call, but that was the only interruption he could recall. He asked Mr Waters some questions about what was occurring during the search, because he was told about items located in the vehicle and Mr Waters was to be taken to the vehicle to be asked questions. SC Lefevre couldn’t recall who told him about the items that were located.
SC Lefevre said that after the conversation with Mr Waters in the back seat of one of the police cars, he took Mr Waters to the passenger side of the ute and showed him the bag from the passenger side door. SC Lefevre said that he had not touched the bag, or moved it in any way. He knew DS Pearce had opened the bag to look inside at some point. He thought that Agent Wronski was with him when he went with Mr Waters to the passenger side of the ute. SC Lefevre said he did not touch or move the bag, but someone did, because he showed Mr Waters what was inside it; he could not recall who had opened it. He did not touch any of the things in showing them to Mr Waters and Mr Waters did not touch any of them. SC Lefevre said he could see the bag from the driver’s seat, but agreed it was possible that he was looking from the passenger side of the ute.
SC Lefevre said that photograph 4 showed the bag in the position it was when he saw it for the first time, but he saw it from a different angle the first time, from the driver’s side (at [119] above). Photographs 5 and 6 showed where he saw the bag when he returned with Mr Waters later.
SC Lefevre said he had discussed the contents of the bag with Mr Waters. DS Pearce had told him what was in the bag, while they were standing away from the vehicle, but Mr Waters was not with them then.
While he was in the car with Mr Waters, he did not see Mr Dib. Nor did he see Mr Dib when he went to the passenger side of the ute. He did not speak to Mr Dib.
After talking to Mr Waters next to the ute, SC Lefevre said, he and Mr Waters returned to the police vehicle. Later they had a conversation during which Agent Wronski read Mr Waters the contents of the property seizure record. SC Lefevre arrested Mr Waters and took him, with DSC Roscoe, to the Winchester Police Centre for a taped record of interview.
Mr Waters was questioned at the car park about certain items in his vehicle. SC Lefevre did this, and he believed that he recorded this process and that it was transcribed. He said he had seen a transcript, although not recently. While questioning Mr Waters in the car park, he gave Mr Waters an opportunity to contact people, and Mr Waters asked to contact a family member, Egon Struss. SC Lefevre made no further enquiries about Mr Struss.
SC Lefevre couldn’t recall if anything was seized from Mr Waters or if Mr Waters was asked about the money found in his wallet.
Mr Waters was interviewed first at the car park and then at the police station, having been arrested. SC Lefevre said that he did not question Mr Waters during either interview about anything that had arisen from radio communications information. He did not put to Mr Waters that the bag that had been found in the car had been seen by any police officer before they arrived at the Belconnen Mall car park, but he asked Mr Waters if he had seen the bag.
SC Lefevre had asked Mr Waters whether, when Mr Dib got into the car with him, Mr Dib had had a bag, and Mr Waters had denied that Mr Dib had a bag. He did not put to Mr Waters that police had seen Mr Dib carrying a bag before getting into Mr Waters’ car, even though he knew that Mr Dib had been seen in possession of the bag. His intention was to ask Mr Waters when he first saw the bag rather than putting it to him that police had seen the bag previously, because he wanted Mr Waters’ account of when or if he’d seen anyone with the bag. Mr Waters denied ever having seen the bag before, so SC Lefevre didn’t think it was necessary to put it to him that Mr Dib had been seen with it.
During the search of the car, SC Lefevre had become aware that Mr Edwards had seen Mr Dib in possession of the bag. He didn’t think it was Mr Edwards who told him that, because he didn’t speak to Mr Edwards while they were at Belconnen Mall. He was not sure, but it was probably DS Pearce who told him, after searching the bag.
While he was driving Mr Edwards, SC Lefevre said, he was not aware that Mr Edwards had seen Mr Dib carrying a bag. He was concentrating on where Mr Dib was going. SC Lefevre said he had been listening to the radio traffic, but he didn’t recall hearing anyone else indicate that Mr Dib was carrying a bag. SC Lefevre said that he had not seen Mr Dib carrying a bag.
SC Lefevre said that at the briefing before surveillance began, DSC Wiggins was given responsibility for keeping track of the radio traffic, and he understood that DSC Wiggins had made notes of the radio traffic, but he didn’t see them later.
SC Lefevre said that he had reviewed the surveillance notes and they were true and accurate as far as his recollection of what had occurred and what he had observed.
SC Lefevre said he had not heard of Anthony Robert Markovic.
Detective Senior Constable Sally Nayda
DSC Nayda was paired with Agent Wronski, who was the driver of their police car. She did not see Mr Dib at Kippax until she saw him on the motorbike. He was wearing blue jeans and a black leather jacket, but she didn’t recall seeing him carrying anything.
When she first saw the motorbike she was not close enough to see the registration number. The first time she saw the registration number was when she and Agent Wronski were the primary vehicle, around Ginninderra Drive approaching William Webb Drive. Her vehicle was not the primary vehicle when she first saw the motorbike, so they followed the motorbike at a reasonable distance. They were not close to the motorbike along Kingsford Smith Drive, but followed it onto Ginninderra Drive.
DSC Nayda said that until her vehicle was the lead vehicle, there was no need to be close to the target, and good operational reasons not to be. Her car became the lead vehicle as they approached the Ginninderra Drive and William Slim Drive intersection. They were no more than 100 metres away, and that was the closest they had been to the motorbike at that stage. Later they came within 50 metres of the motorbike, and on Dumas Street, when the motorbike turned on to Slessor Crescent and they continued along Dumas Street, they were only 20 to 50 metres away from the motorbike. DSC Nayda was able to confirm the registration number, but did not make any other observations. They turned off onto a side street a few streets past Slessor Crescent, and stopped for a couple of minutes until they heard radio transmission that Mr Dib had got into a vehicle that had driven away from Slessor Crescent. They then followed the other police vehicles, but were not the lead vehicle, and she did not see the vehicle described over the radio until she got to the top of the Belconnen Mall car park.
DSC Nayda thought they were one of the last cars to arrive at Belconnen Mall. When they arrived she saw several other police there. Both the doors of the ute were open, and Mr Waters and Mr Dib were outside the ute and separately speaking to other police. She approached the rear of the ute and talked to DS Pearce. She did not go past the rear of the ute to look inside it. DS Pearce or someone else told her that white powder had been found in the car, but not in what form it had been found. She said she did not speak to Mr Waters or Mr Dib at the car park, and she did not get inside or look inside the ute. DSC Nayda was then sent on other duties, and left within a few minutes.
While driving with Agent Wronski, DSC Nayda said, she was in charge of the radio, including making calls while they were the lead surveillance vehicle, and at that stage she would have been on the radio (to give directions to other cars) more than when they weren’t the lead car. She did not recall any discussions with Agent Wronski in the car. She said she didn’t make notes at the time, but made notes in her diary shortly afterwards on the same day. DSC Nayda said she had looked at the running sheet for the surveillance exercise and was not sure where the exact times shown in the running sheet came from. She said that everyone was responsible for monitoring the radio, but to her knowledge no one was specifically allocated to do that.
DSC Nayda said that she did not see Mr Dib with a black bag while he was on the motorbike.
Detective Senior Constable Stephen Wiggins
DSC Wiggins (at the time of the drugs seizure a Senior Constable) said that he obtained the warrants relating to Mr Dib. He was paired for the surveillance with DS Pearce. DSC Wiggins said he did not take notes while they were travelling. The radios were not being recorded, and were not being monitored by anyone at the call centre.
DSC Wiggins said that he first saw Mr Dib at the Belconnen Mall car park. When he got to the car park, he saw the vehicle that he and DS Pearce had followed from the McKellar house, and Mr Dib and Mr Waters were standing on each side of the vehicle with other police officers around them. The doors of the ute were open; Mr Dib was at the passenger door and Mr Waters was on the driver’s side.
DSC Wiggins believed there were six police officers already on the scene when he and DS Pearce arrived, and that he was one of the last to arrive. He asked Mr Dib to move away from the vehicle so he could speak to him, and he and Mr Dib and Mr Edwards moved towards the rear of the ute. DSC Wiggins told Mr Dib that there was a search warrant in existence for him and that it would be executed. Mr Waters was on the driver’s side of the vehicle being spoken to by other officers; he had not moved.
DSC Wiggins took Mr Dib to another police car and began a taped record of interview with him in the back of the vehicle. Before that, Mr Dib had been searched by DSC Roscoe. His clothing was searched, including the pockets of his jacket. Apart from the jacket, Mr Dib was patted down and his pockets were pulled out. DSC Roscoe had to touch Mr Dib during the search. While DSC Roscoe searched Mr Dib, DSC Wiggins was 2 metres away. DSC Roscoe was wearing black gloves that were not disposable gloves.
While DSC Wiggins was in the police car with Mr Dib, DS Pearce told him that drugs had been found in the ute. He had not previously been aware of that, and had not previously looked inside or otherwise inspected the ute.
In the car, DSC Wiggins asked Mr Dib questions about the “bum bag”. Then they suspended the tape, and he, Mr Edwards and Mr Dib walked towards the passenger side of the ute, with the door still open. The taped record of interview was recommenced. DSC Wiggins saw a black and white striped “bum bag” in the ute, and items in audit bags which he now knows were cocaine and MDMA. The striped bag was on the passenger seat of the ute, not in any other bag. The drugs were already in audit bags. DSC Roscoe was at the passenger door, identifying the items that DSC Wiggins was referring to in the taped interview. DSC Wiggins did not touch any of the items in the ute at any time that day. Mr Dib did not touch any of the items while DSC Wiggins was present with him at the passenger door. At this point he had been with Mr Dib the whole time since he (DSC Wiggins) arrived.
DSC Roscoe was wearing blue latex gloves. DSC Wiggins asked Mr Edwards to question Mr Dib. During that questioning, Mr Edwards told DSC Wiggins that he had seen Mr Dib wearing the “bum bag” earlier.
DSC Wiggins then went to the McKellar house where he saw a blue and white Suzuki motorbike.
DSC Wiggins said that he did not take notes during the car park interview, except that he might have noted his arrival time and Mr Dib’s presence.
He said that he had compiled the running sheet, based on the observations that were made on the day by other members of the surveillance team. He found out what they had observed by asking them, then putting it in the running sheet and getting them to check and sign the document when it was accurate. He started it on the evening of the drugs seizure (Friday) but it took several days, until around the following Tuesday, to get it signed off by everyone as accurate. He said that the descriptions and the times in the running sheet came from the people who saw the events.
DSC Wiggins said he made the surveillance notes by going round and asking people. He did not get notes from anyone, but the timings were not guesses. Nor were the notes intended to suggest that they had been made at the time. The particular times given came from the various people involved, but he did not get a note from any of them in relation to any of the material. There was no note from Mr Edwards about his observation of Mr Dib with a black shoulder satchel bag.
DSC Wiggins said that the occupants of police cars are responsible for watching, but they are not required to write notes at the time of the observations if they are unable to do so.
DSC Wiggins had asked SC Lefevre, who was with Mr Edwards, whether he had seen the bag, but he said no. Mr Edwards gave a description of the bag and DSC Wiggins asked him where he was in relation to the motorbike when he made that observation, but he can’t now say where Mr Edwards was. In collating surveillance running sheets, DSC Wiggins said, police don’t put a distance from which people saw things.
DSC Wiggins said that Agent Wronski did not describe the bag, except as a shoulder satchel bag. She had given him a description of the bag that did not differ from what Mr Edwards had said, but DSC Wiggins agreed that her description did not appear in the surveillance notes. DSC Wiggins said he had not made a note of what else Agent Wronski told him. DSC Wiggins confirmed he could not remember what Agent Wronski or Mr Edwards told him about the distance at which they observed the bag on Mr Dib’s back.
DSC Wiggins had noted what DC Eggins and DSC Roscoe had told him about their first sighting of Mr Dib and Mr Waters at the car park. He did not know where DSC Roscoe was when he took off his black gloves, and didn’t see him take the gloves off. DSC Wiggins said he was not involved in photographing the bag or its contents.
On 22 January 2009, DSC Wiggins said, he retrieved the bum bag and took it to AFP forensics for further testing. At that time it was in the sealed bag from the day it was seized. He did not open the sealed bag, and it had an unbroken AFP seal on the packaging.
On 15 February 2011 DSC Wiggins collected the black and white bag and Mr Dib’s black jacket, and had some photographs taken of the bag, at four different distances away from the photographer, being 5, 10, 15 and 20 metres. DSC Wiggins gave evidence that both 15 February 2011 and 21 November 2008 had been fine days, but it emerged that he used “fine” to mean “not raining”; he was sure that 21 November 2008 had in fact been sunny, but conceded that there might have been clouds on 15 February 2011. The photographs were admitted over objection, noting that they would be subject to submissions about weight.
DSC Wiggins did not speak to Mr Waters on 21 November 2008, but other officers did. DSC Wiggins was responsible for following up matters arising from those interviews. He said that to his knowledge no-one seized the money from Mr Waters’ wallet, and no-one followed up what Mr Waters had been doing earlier that morning.
DSC Wiggins said that he did not know that the first person Mr Waters asked to speak to was Egon Struss. DSC Wiggins had met Struss many years ago, but said he was unaware of any investigation into Struss in relation to the distribution and sale of Ecstasy and cocaine, and didn’t know whether Struss had historically been a person of interest in relation to that kind of criminal activity. DSC Wiggins said he had not checked the AFP indices to see whether Struss had been involved in that kind of activity, had not spoken to New South Wales authorities, and was not aware if anyone else associated with this matter had spoken to New South Wales authorities. DSC Wiggins said he was not aware that police had visited Mr Waters’ family home in New South Wales looking for information about Struss. DSC Wiggins was not aware of a New South Wales police operation called “Sloman” in June 2009 targeting methylamphetamine dealing in Newcastle, and maintained that he was not aware of any information held by the AFP relating to Struss’s involvement in distributing amphetamines, Ecstasy and cocaine. The NSW Police “fact sheet” produced by defence counsel was the first DSC Wiggins had heard of it. None of the other officers who had already given evidence in this trial had mentioned to DSC Wiggins that they had been asked about Struss when they gave their evidence.
Tristan Mr Waters
Mr Waters was the driver of the white ute in which the bag of drugs was found. He gave evidence that in November 2008, he had owned the white ute as well as two other vehicles. The ute had two seats and therefore two doors, and a tray. On 21 November 2008, he and Mr Dib had arranged to meet for lunch at Belconnen Mall. Mr Dib had said he was on a bike that day, and that Mr Waters should pick him up from the McKellar house, which belonged to someone Mr Waters knew.
Mr Waters said he had woken up late that day and gone, in his ute, to meet his uncle, Egon Struss, in Watson. Mr Waters was running a painting business for his family and he handled all the quotes, but Mr Struss was the one who organised everything behind it. He and Mr Struss first had a coffee at a cafe in Watson, which took them 15 or 20 minutes. Then they got into Mr Waters’ ute and went to look at a painting job in Watson, just around the corner. That was the first time Mr Struss had been in Mr Waters’ ute that day. Mr Waters said that when he got into the ute, he was not carrying anything, but Mr Struss had “his briefcase and stuff”. Mr Waters clarified that Mr Struss had a big black briefcase but Mr Waters didn’t know if he had anything else with him. The briefcase was a “typical cheap sort of black leather suitcase”, about 50 to 60 cm wide, about 10 cm thick and about 40 cm high. Mr Struss put the bag on the floor of the passenger seat.
Mr Waters said he had had no one else in his ute earlier that day, and he was not aware of having any other belongings of his in the passenger footwell when Mr Struss got in. Mr Waters said that his cars were either really messy or really clean.
The journey to look at the painting job took three to five minutes. On arrival, he and Mr Struss both got out of the ute, had a look at the job and made notes about how big it was and what it would cost. It was a full repaint of a house, and Struss went inside the house. Struss and Mr Waters both spoke to the owner. Mr Waters could not remember the address, or if they got the job. Mr Waters said that he had left the car unlocked, and when they finished, Struss hopped into the car before Mr Waters did. As far as Mr Waters could remember, Mr Struss had left his briefcase in the ute when they went to the house. Mr Waters said he then dropped Mr Struss back to his car at the Watson shops. He had no idea whether Mr Struss brought anything in addition to the briefcase when he got into the ute the second time. They were not given any papers or documents or bags at the job they went to.
Back at the Watson shops, Mr Waters said, Mr Struss grabbed the briefcase and got out of the ute. Mr Waters had no idea whether there was anything in the passenger footwell after Mr Struss got out. Mr Waters had his wallet in his pocket, his phone, and his black A4 diary, which was in the middle of the two seats in a pouch area. Mr Waters said he thought he was due to see Struss later that day, and that they generally used to meet up twice a day.
After that, Mr Waters said, he went to Fyshwick, by himself, to see his friend Dimitri at Fyshwick Paint and Panel. He got out of the ute in Fyshwick; he thought this was to show Dimitri something he wanted repainted on the outside of the ute. Dimitri did not get into the ute, and did not give him anything. Nor did Mr Waters give Dimitri anything. Then he saw a friend, Johnny Dryden, coming out of Ozzy Tyres. Dryden was on foot, and he got into Mr Waters’ ute and sat there for about five minutes as they talked. Mr Waters didn’t notice if Dryden was carrying anything or had anything with him when he got into the ute. After Dryden got out of the ute, Mr Waters did not notice anything about the passenger side of the ute.
During his trip to Belconnen, there was the phone call during which he and Mr Dib arranged to meet for lunch. He had known Mr Dib for about two years, and they used to catch up every week. Mr Waters thought he went directly to the place in McKellar. He didn’t see anyone else, he didn’t make any detours and there was no one else in his ute. In cross-examination Mr Waters said that was all he could remember but he might have gone to other places as well.
When he got to the McKellar house, Mr Waters said, Mr Dib was waiting right outside near the street, and he hopped into the ute. Mr Dib was wearing jeans and a motorbike jacket. Mr Dib had walked over with his helmet, then left it at the house; he didn’t have the helmet in his hand when he got into the ute. When Mr Dib got into the ute, Mr Waters said, he was not carrying anything in his hands or anything on his person. He did not have with him the bag that was in the footwell of the car. At no point did he take a bag off his shoulder. Mr Waters said he would have seen the bag if it had been in the position shown in photograph 4 before Mr Dib got into the car, or while Mr Dib was in the car. Mr Waters said he had never seen Mr Dib with that bag.
In summary, it seems that a person’s DNA can be deposited on an item:
(a)by the person touching the item;
(b)by the person’s biological material falling or being projected onto the item (eg skin cells or blood might fall onto an item without the person being in contact with the item, or saliva might be projected onto an item by a sneeze); or
(c)by being deposited on another item (including another person) and then being transferred from that item to a further item (secondary transfer).
Ms Seymour made the following comments about the likelihood of various forms of transfer:
(a)Generally secondary transfer only transfers a small amount of the DNA that is present to be transferred, but this can depend on the type of DNA, the type of biological material, and the type of contact.
(b)Where secondary transfer from a person to an item involves another person, there is likely to be on the item a mixture of DNA from both people involved.
(c)Usually there needs to be a reasonable amount of DNA for a small portion of that to be moved by secondary transfer.
(d)DNA sources that are wet are more likely than dry ones to be transferred.
(e)Friction or pressure is more likely to facilitate secondary transfer than just passive contact.
(f)If one person has another person’s DNA on him or her, only a portion of that DNA would be expected to be further transferred by secondary transfer. If there is only a very small amount of the other person’s DNA on the first person, then secondary transfer via that first person is less likely.
(g)It is possible that the major contributor of the DNA in a case of secondary transfer could be the original source of the DNA rather than the person doing the transferring; for instance if the transferring person had the first person’s blood or saliva on their hand, the first person might be the major contributor to the blood or saliva-borne DNA that was transferred by the second person.
(h)It is impossible to determine when recovered DNA was deposited.
Ms Seymour, cross-examined further about transfer of DNA, made comments that can be expressed in the following propositions:
(a)DNA might be deposited on a chair by a person who sits on the chair. It would not be within procedures at the DNA testing laboratory to put an exhibit on a seat at the workbench, because of the risks of contamination.
(b)DNA transfer might be increased by prolonged contact between the source of the DNA and the recipient of the DNA.
(c)Repeated contact between two items (including people) would increase the likelihood of DNA transfer.
(d)DNA transfer from clothing onto a chair is less likely than from a hand onto a chair.
Ms Seymour said that in the DNA profiles obtained from the bag samples, there was quite a quantity of DNA present, and if that DNA had been deposited by secondary transfer, she would expect that there had been quite a large amount of DNA transferred to the person or object through which the transfer was effected, or that there was some sort of friction or pressure between the two surfaces concerned. If the DNA found on the bag had got onto the bag from another object, Ms Seymour said, she would expect that there would have been a huge amount of DNA on the other object, or material such as wet blood involved, or prolonged contact or some sort of friction or pressure between the bag and the other object. Ms Seymour considered that the probability of the major component of the DNA coming from a secondary transfer source was quite low because of the amount of DNA on the bag.
Ms Seymour said that secondary transfer was more of a possibility in relation to the scales.
Ms Seymour said there was a large amount of DNA on the bag compared to the amount on the scales. It is possible some of the DNA on the bag came from skin cells or saliva. Coughing could have put saliva onto the bag.
Contributors to DNA profiles
Ms Seymour thought there were at least two contributors to the DNA on the scales. There could have been more than two, but probably no more than four.
Defence counsel questioned Ms Seymour at length about the analysis of DNA profiles, the possibility of different people being the major contributor to a DNA profile at different sites, and the statistical basis on which the probability analysis is conducted. Counsel referred to R v Meyboom [2011] ACTSC 13 and Higgins CJ’s comments about the relationship between aspects of DNA analysis and the presumption of innocence. Since counsel did not press any argument based on a challenge to the DNA evidence, I do not need to address this issue, except to say that his Honour’s remarks at [77] to [117] referred to the difficulties that arose where there was a finding of a major contributor and one or more minor contributors, such that it could not be assumed that any particular minor contributor had provided alleles for all sites at which matching alleles had been identified. This in turn was said to mean that the probability calculations for a minor contributor were not reliable because some elements in those calculations might have reflected alleles in fact provided by another minor contributor, although the analysis could still validly say that a particular person could or could not be excluded as a contributor.
It may be that his Honour’s analysis is equally applicable in relation to a major contributor, as submitted by counsel, but since it seemed to depend heavily on the risks that the appearance of minor contributors could result from inappropriate use of the relevant technology to create “false” peaks, or that the actual existence of multiple minor contributors made it impossible to link various peaks with any particular minor contributor and therefore impossible to conduct a meaningful probability analysis, it was not clear that the same problems were applicable at least in cases involving, apparently, a single major contributor.
Counsel’s questions raised some interesting issues (especially in relation to reliance on a comparison database referred to as a Caucasian database), which may well need to be argued on another occasion, but since as noted there was no serious challenge to the assessment of Mr Dib as the major contributor to the DNA material found on the bag or the scales, there is no need to enlarge on these questions for present purposes.
Character evidence
Mr Dib’s criminal history was tendered as Exhibit 1; it indicated that Mr Dib was 24 at the time of the drugs seizure, and that his criminal history at that time consisted only of two minor traffic offences. These were a low-range drink-driving offence and an offence of driving “unlicenced [sic] for class”, both dealt with in a NSW court in October 2008.
Consideration
Presumption of intention to sell
As noted at [9] above, the Crown needed to establish beyond reasonable doubt that Mr Dib transported or possessed the drugs concerned. The necessary mental element for trafficking (an intention to sell the drugs) could be presumed if the Crown established that the transport or possession involved a trafficable quantity of the drug concerned.
There was no challenge to the ACTGAL certificates referred to at [195] above that showed that the seized bag had contained a total of 85.80 g of cocaine by pure weight (the trafficable quantity being 2 g) and 13.610 g of MDMA by pure weight (the trafficable quantity being 0.5 g).
There was no attempt to rebut the presumption of an intention to sell (s 604(1), Criminal Code).
Did Mr Dib possess or transport the bag?
The only real issue in this trial is whether the bag found in the footwell of the front passenger seat of Mr Waters’ car immediately after Mr Dib had been travelling in the car had been in Mr Dib’s possession.
The prosecutor submitted that Mr Dib’s possession and transporting of the bag was established by:
(a)the observations of two police officers that Mr Dib had a bag on his back as he rode his motorbike from Kippax to McKellar;
(b)the location of the bag containing the drugs in the footwell of the seat in the ute where Mr Dib had been sitting;
(c)the evidence that the ute was neat and the seized bag was the only thing in the footwell;
(d)the identification of Mr Dib as the major contributor to the DNA material recovered from the seized bag and strap; and
(e)the evidence that Mr Dib’s DNA was also found on the scales that were in the bottom of the seized bag.
That is, the Crown case relies heavily on two aspects of the evidence, being:
(a)evidence that the bag in which the drugs were found was carried by Mr Dib over his shoulder when he rode from Kippax to McKellar on his motorbike; and
(b)that forensic analysis of the bag found in the car near where Mr Dib had been sitting indicated extremely strong support for a link between Mr Dib and the outside of the bag and strong support for a link between Mr Dib and a set of scales found inside the bag.
The other matters noted by the Crown, namely that the bag was in the footwell of the seat in Mr Waters’ ute that was occupied by Mr Dib, and that it was the only item in an otherwise tidy footwell, are undisputed, but of themselves would not go far to establishing Mr Dib’s possession of the bag. I note in this context defence counsel’s concession that in an appropriate case, possession could be inferred from the fact that a person has a bag sitting next to him and that in the bag are items apparently connected with the person, but also his submission that in this case, the Crown has relied on Mr Dib’s carriage of the bag from Kippax to McKellar as evidence of possession. I note also that the evidence of the various police officers gives no clear picture of the exact location of the bag when it was first observed by police officers, but in the circumstances there is no need to attempt to resolve that lack of clarity.
In relation to each of the two important matters relied on by the Crown, there are gaps or uncertainties in the relevant evidence that leave me unable to be satisfied, beyond reasonable doubt, that the black and white bag of drugs was transported or possessed by Mr Dib.
Mr Dib’s ride from Kippax to McKellar
The eight police officers involved in the surveillance were paired in police vehicles as follows:
(a)DS Pearce driving, with DSC Wiggins;
(b)DSC Roscoe driving, with DC Eggins;
(c)Agent Wronski driving, with DSC Nayda;
(d)SC Lefevre driving, with Mr Edwards.
DS Pearce and DSC Wiggins were only involved in the surveillance from the point at which Mr Dib left the McKellar house. At that house, DS Pearce saw the motorbike but not Mr Dib. DSC Wiggins did not see Mr Dib until they reached the Belconnen Mall car park.
DSC Roscoe saw Mr Dib walking through the carpark at Kippax and saw the motorbike leave from Kippax, but did not see Mr Dib or the motorbike again until he got to the McKellar house. At the house, he saw Mr Dib standing outside, talking to the driver of the ute, walking towards the house with his helmet, and then getting into the ute. He did not see Mr Dib with a bag at any point either on the motorbike or outside the McKellar house.
DC Eggins saw Mr Dib leave Kippax on the motorbike, and then saw him outside the McKellar house. She had a good look at Mr Dib when they drove past, but didn’t see him holding anything. Nor did she see him holding anything when he got into the ute.
Agent Wronski said that when she saw Mr Dib at Kippax, he wasn’t carrying anything, but when the motorbike turned off Ginninderra Drive, her car was 10 to 15 metres behind Mr Dib and she saw that he had a black bag, with the strap over his left shoulder and the bag resting on his lower right back. At Belconnen Mall she became aware that a black satchel-style bag had been found in the ute where Mr Dib had been sitting. She didn’t mention the bag to DSC Nayda when she saw it, but they did talk about it later and DSC Nayda said that she had seen the bag. Wronski was not sure that she had mentioned the bag over the radio. The bag was mentioned in her own notes, but she agreed that her statement didn’t say that the bag she had seen on Mr Dib’s back was the bag found in the ute.
DSC Nayda didn’t see Mr Dib at Kippax until she saw him on the motorbike, and she didn’t see him carrying anything then. The closest they got to Mr Dib during the trip to McKellar was when the motorbike turned off Dumas Street into Slessor Crescent, at which point they were about 20 to 50 metres away. She did not mention getting any closer at the turn-off from Ginninderra Drive shortly before that, which was where Agent Wronski said she had seen the bag on Mr Dib’s back. She did not see Mr Dib with a bag while he was on the bike.
SC Lefevre saw Mr Dib at Kippax but didn’t see him carrying anything then. During the trip to McKellar, Mr Dib stopped at a Give Way sign and the police car was two or three cars behind, about 30 metres away. That was as close as they got to the motorbike during the trip. The first time SC Lefevre saw a bag was when he looked into the front of the ute at the Belconnen Mall car park. He had not seen Mr Dib carrying the bag at any time. SC Lefevre said he had heard that Mr Edwards had seen Mr Dib with the bag, but he didn’t think Mr Edwards had told him that; it might have been DS Pearce who had told him.
Mr Edwards saw Mr Dib at Kippax, when he was only carrying his motorbike helmet. On the way to McKellar, Mr Edwards said, Mr Dib was stopped in traffic and their car was only 3 to 5 metres away from the motorbike. At that point Mr Edwards saw that Mr Dib had a satchel bag or man bag with the strap over his left shoulder and the bag sitting on his right hip. Mr Edwards saw the same bag in the ute at the Belconnen Mall car park. Mr Edwards said he had made a radio call about the bag during the trip to McKellar, but he hadn’t asked any of his colleagues whether they had seen the bag, and hadn’t referred to it in his notes, or in his statement, as a black and white bag. Mr Edwards agreed that his statement adopted what was in the surveillance running sheet, but that running sheet did not say that the bag he had seen on Mr Dib’s back was the bag he had seen in the ute.
That is, of the six officers who tracked Mr Dib’s motorbike from Kippax, only two said they had seen him with a bag on his back. Each of those officers (Agent Wronski and Mr Edwards) was in a police vehicle with another officer (DSC Nayda and SC Lefevre respectively) who had not seen the bag on Mr Dib’s back. As well, the accounts given by Agent Wronski and Mr Edwards of the circumstances in which they had seen the bag were not consistent with the descriptions of the trip from Kippax to McKellar given by their respective companions. Agent Wronski said her car had been 10 to 15 metres behind the motorbike when it turned left off Ginninderra Drive onto William Slim Drive, but DSC Nayda said that they did not get any closer to Mr Dib than about 20 to 50 metres, which was when the motorbike turned off Dumas Street onto Slessor Crescent. Mr Edwards said that the car he was in had at one point pulled up only 3 to 5 metres away from the motorbike, whereas SC Lefevre said that 30 metres from the motorbike was the closest they got during the trip.
Nor was there any other record of the observations of either officer that was said to be either contemporaneous or made before the officer became aware from other officers that a bag had been found in the car near Mr Dib.
Furthermore, it was quite unclear how the observation of the bag made by each of the officers concerned had been communicated to DSC Wiggins, the informant, who was responsible for putting together the record of the surveillance operation. Mr Edwards claimed to have mentioned the bag in radio communications during the surveillance, whereas Agent Wronski was unsure whether she had done this; such communications had not been heard by other officers, including in each case the officer in the same police vehicle. The officers who said they had seen the bag denied having passed on their notes to DSC Wiggins for his preparation of the surveillance record. SC Lefevre gave evidence that DSC Wiggins had been explicitly given the job of keeping a record of the radio communications made among the officers involved in the surveillance operation. Several of the other police officers gave evidence that they did not understand anyone to have been responsible for that job, and DSC Wiggins said he had no special role in relation to the surveillance, and that no-one was either recording or monitoring the radio communications.
Before considering the effect of the evidence about the bag observed by the two police officers, I note defence counsel’s concession that s 165(1)(b) of the Evidence Act does not apply to evidence purporting to identify a bag, but applies only to purported identification of people (definition of “identification evidence” in Pt 1 of the Dictionary to the Evidence Act), and that there was no other specific ground set out in s 165 for seeking a warning about evidence identifying a bag.
The bag described by the two officers who claimed to have seen it during Mr Dib’s motorbike ride did not completely match the description of the bag found in the ute with Mr Dib. The dimensions and general appearance of the bag described were not so different from the bag seized from the ute as to exclude the possibility that they were the same bag (cross-examination about why the bag was referred to by some witnesses as a “man bag” seems to have been entirely irrelevant), but both police officers referred to a black bag, whereas the bag produced in court had distinctive white stripes, not particularly wide but wider and more obvious than what are normally referred to as pinstripes.
Over objection, I admitted a series of photographs taken by police shortly before the trial began, showing the bag that was seized, worn over the black leather jacket that had been worn by Mr Dib on the motorbike, taken by a photographer positioned at distances of 5, 10, 15 and 20 metres away from the person wearing the jacket and bag. In the photographs, the stripes on the bag became, unsurprisingly, progressively less distinct the greater the distance between the bag and the photographer, but at 5 metres away they were quite visible, and even at 20 metres they did not disappear completely. As well, the photographs appeared to have been taken on a relatively dull day (the shadows cast by trees were not at all sharp, and it was apparent that there was little light being reflected off the leather jacket except around the shoulder area). It seems likely that if, for instance, Mr Dib had been leaning forward on his motorbike in bright sunshine, the reflection off his leather jacket would have made the matte surface of the bag much more obvious at any given distance, and might well have made the white stripes also more obvious.
Thus, in the absence of any useful evidence comparing the light at the date and time of the surveillance operation with the light at the date and time when the photographs were taken, and the absence of any evidence at all about the eyesight of the police officers concerned, I do not consider that the photographs came close to eliminating the possibility that the black bag described by the two police officers was a different bag from the black and white striped bag found in the car occupied by Mr Dib. Given that one of the police witnesses, Mr Edwards, claimed to have observed the bag at a distance of 3 to 5 metres (at [84] above), the photographs left open the real possibility that the bag described by the two police officers was a different bag.
The differences between the police officers’ descriptions of the bag they saw and the actual appearance of the seized bag might not have mattered if there had been other evidence linking the bag said to have been seen by the two police officers with the bag in the car, but neither Tristan Waters, who had picked Mr Dib up from the McKellar house, nor any of the police officers who observed Mr Dib outside the McKellar house, gave evidence of seeing the bag in Mr Dib’s possession when he got into the car. Nor had the McKellar house or, apparently, anything in the vicinity of that house (except the motorbike) been searched after Mr Dib had left there, leaving open the possibility that the black bag observed by the two police officers had been left somewhere at the McKellar house before Mr Dib got into Mr Waters’ ute.
DNA link between Mr Dib, the bag and the scales
The other link between Mr Dib and the bag seized from Mr Waters’ car was provided by forensic analysis of the bag and its contents.
Ms Seymour gave very detailed evidence of the DNA testing of the bag and its contents, and she was cross-examined at length (although many aspects of the cross-examination seemed to lead to dead-ends).
In summary, there was evidence providing extremely strong support for the proposition that DNA material found on the outside of the bag, had come from Mr Dib, and evidence providing strong support for the proposition that DNA material found on a set of scales in the bottom of the bag had come from Mr Dib.
However, there were a number of matters that undermined the strength of this evidence in terms of linking the bag, and more specifically the drugs found inside it, to Mr Dib.
The forensic evidence about the probability that Mr Dib was the major contributor to the DNA material found on the bag and on the scales was not seriously challenged, and a line of questioning raising the possibility that different people could be the major contributor of DNA at different loci was effectively abandoned in written submissions by defence counsel, except for some general musings in an extended footnote (at [228] above). However, the possibility that the DNA material was on either the bag or the scales as a result of secondary transfer was pursued, and does raise some real issues.
The suggestion of secondary transfer arose as a result of the seizure technique adopted by the various police officers when they approached Mr Waters’ car, but may be more generally relevant.
First, it seems that the officer who frisk-searched Mr Dib (Roscoe) was wearing non-disposable gloves. Roscoe was also the officer who was then involved in removing individual items from the black and white bag for them to be photographed. Although it seemed clear, including from photographs, that he was wearing blue disposable gloves by the time he removed individual items from the bag, the only evidence about when he took off the black non-disposable gloves and put on the blue disposable gloves was photograph 2, which DSC Roscoe said showed him in the process of putting on the blue gloves, with the black gloves protruding from his back pocket. My description of that photograph (at [18] above) indicates that it requires an act of faith to accept the photograph as clear evidence of the change of gloves.
However, even if it is accepted that DSC Roscoe had replaced the black gloves used to frisk-search Mr Dib with blue disposable gloves at the beginning of the search of the bag, DSC Roscoe himself gave evidence (at [42] above) that he had kept the same blue gloves on throughout the search of the bag.
As well, it is clear from both oral evidence and the police photographs that on one or more occasions the striped bag was placed by investigating police on the leather seat on which Mr Dib had been sitting during the trip from McKellar to the Belconnen Mall car park. It is also clear from the photographs and other evidence that when the scales were removed from the striped bag they were placed briefly on the leather seat in order to be photographed.
Noting Ms Seymour’s evidence that she could not say whether DNA material recovered from the bag, the strap or the scales had come from all over the item concerned or only from particular parts of it (at [210] above), and about methods of transferring DNA (at [221] to [223] above), there were several possible routes by which Mr Dib’s DNA could have found its way onto the striped bag and onto the scales found at the bottom of the striped bag.
For instance, Mr Dib’s DNA from his jeans could have been transferred directly to the striped bag as he sat in the car seat with the striped bag behind his legs, or, even more indirectly, to the car seat, and from there onto the striped bag when it was placed on the car seat to be photographed. Each of these possibilities seems remote, having regard to Ms Seymour’s evidence that secondary transfer to the bag or the strap was unlikely in the absence of quantities of biological material such as blood or saliva or substantial friction or prolonged or repeated contact between the “carrier” and the item concerned, given the quantity of Mr Dib’s DNA found on the bag and the strap.
Alternatively, if the striped bag was in Mr Waters’ car before Mr Dib got in (which, in the absence of any defence suggestion that the bag had been placed in the car by police after Mr Dib got out of the car, would seem to be the only alternative to the Crown case), then Mr Dib’s DNA could have been transferred directly to the striped bag via a sneeze or a cough or, perhaps more likely, as a result of Mr Dib moving the bag, using bare hands, either while or after getting into the car. As demonstrated by counsel in cross-examination of DS Pearce (at [27] above), picking up the bag could easily have involved contact with both the strap and the body of the bag.
As to the scales, the possible explanations, other than direct transfer, for the presence of Mr Dib’s DNA on the scales were:
(a)that the DNA had come from the car seat on which the scales were placed to be photographed (probably the least likely possibility given Ms Seymour’s evidence and the fact that none of the plastic bags also apparently placed on the car seat had acquired reportable levels of DNA);
(b)that the DNA had come from the outside of the bag as the scales were removed from the bag to be photographed (perhaps less unlikely, given the large quantity of DNA that had been on the bag); and
(c)that the DNA had been transferred from the outside of the striped bag to the scales via the blue gloves that were worn by DSC Roscoe throughout the search of the bag, from the time when he first opened the striped bag until the end of the search, including at the time when he removed the scales from the bottom of the striped bag to be photographed (more likely than either of the possibilities mentioned above, given the repeated contact there would have been between the blue gloves and the outside of the bag).
Ms Seymour’s evidence was that the scales had yielded far less DNA material than the bag, and that the DNA material from the scales had not provided nearly such a strong link with Mr Dib. This supports the possibility that Mr Dib’s DNA had been deposited on the scales by secondary transfer.
Finally in this context I note the absence of reportable levels of DNA on the various plastic bags of drugs inside the striped bag. As well as making secondary transfer via the car seat less likely, it suggests that whoever had packed those plastic bags into the striped bag was careful to avoid depositing biological material on the bags. If Mr Dib had done that packing, or knew or suspected what was in the bag, he might have been expected to take the same kind of care to avoid leaving his biological material on the outside of the striped bag. Ms Seymour’s evidence suggests that Mr Dib’s DNA was more likely to have been deposited on the striped bag by a direct and deliberate touching of the bag by Mr Dib than by secondary transfer. However, a finding in favour of direct contact between Mr Dib and the bag, for instance when he got into the car, could lend support to an argument that Mr Dib did not know what was in the bag.
Other people possibly linked to the bag
Given the conclusions I have come to about the identification of the bag and the significance of the DNA evidence, the evidence that there were other people who might have been linked with the seized bag deserves some consideration.
The evidence linking Mr Struss with drug trafficking was not nearly as strong as defence counsel suggested. The only direct evidence of Mr Struss’s involvement in drug dealing consisted of very general allegations made by Mr Waters. DSC Wiggins was the only police officer who had heard of Mr Struss, and he denied any knowledge that Mr Struss was involved in drug dealing.
Defence counsel’s rather peculiar tactic in asking DSC Wiggins to read out a paragraph about Mr Struss from what appeared to be a NSW Police document and then later withdrawing the tender of the document, did not in my view have the effect contended for by counsel, namely that the information about Mr Struss’s involvement in drug dealing was in evidence by reason of DSC Wiggins having read it onto the record. The only evidence before me relevantly arising from the cross-examination of DSC Wiggins was that the document counsel had given to DSC Wiggins contained the relevant representations. As far as I can see, those representations were inadmissible as evidence of the asserted facts about Mr Struss under the hearsay rule (Evidence Act s 59) and, since counsel abandoned any attempt to establish that the document was a business record of the NSW Police, did not seem to fall within any of the exceptions to that rule.
There was, however, evidence before me that Mr Struss had been sitting in the same seat of Mr Waters’ ute earlier that day, and that he might have expected to see Mr Waters again that day. Perhaps more significantly, the fact that the bag was found in Mr Waters’ vehicle, that Mr Waters denied that he had seen Mr Dib bring it into the car, that Mr Waters twice tried to speak to Mr Struss after the bag was seized, that he was evasive when asked at trial why he was so keen to speak to Mr Struss, and that by his own admission he was questioned by police after the drugs seizure about his own possession of a drug of dependence (at [182] above), make it hard to ignore the possibility that the bag had in fact been put into the ute by Mr Waters or Mr Struss. Once it is accepted that there were circumstances consistent with Mr Dib’s innocence in which Mr Dib’s DNA could have been deposited on the bag and the scales, the possible link between the bag and either or both of Mr Waters and Mr Struss further weakens the impact of the evidence linking Mr Dib with the bag and the scales.
Character evidence
Finally, I note the evidence of Mr Dib’s prior good character as indicated by his almost clean criminal record (at [231] above). I accept that I may take the absence of any prior drug-related offending into account in assessing the likelihood of him committing the offences now charged. However, I should say that the criminal record evidence does not strike me as a particularly useful indication of substantive good character, especially in relation to an alleged offence of drug-trafficking that has no necessary or apparent connection with offences involving drug use, and would not have been enough to raise a reasonable doubt in my mind about his guilt if the specific evidence of Mr Dib’s involvement in an offence of drug trafficking had been less equivocal.
Conclusions
In summary, it may well be the case that the black and white bag seized from Mr Waters’ car was in fact in Mr Dib’s possession. However, the weakness of the evidence linking Mr Dib to the bag that was found in the ute where he was sitting, having regard to the alternative scenarios for how the bag came to be there and the various explanations for the presence of Mr Dib’s DNA in significant quantities on the outside of the striped bag and in far less significant quantities on only one of the several items found inside the bag, mean that I must reject the Crown’s submission that the only rational inference in this case is that the bag belonged to Mr Dib and that he had possession of its contents. Therefore, I cannot be satisfied beyond reasonable doubt that Mr Dib transported or possessed the trafficable quantities of cocaine and MDMA that were found in the seized bag.
Verdicts
Accordingly, there must be verdicts of not guilty on both counts.
I certify that the preceding two hundred and seventy-seven (277) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate: Kerri-Anne Duval-Stewart
Date: 19 April 2013
| Counsel for the applicant: | Ms S Jowitt |
| Solicitor for the applicant: | ACT Director of Public Prosecutions |
| Counsel for the respondent: | Mr K Archer |
| Solicitor for the respondent: | Kamy Saeedi Lawyers |
| Date of hearing: | 21, 22, 23, 24, 25 February 2011; 1 April 2011; 27 May 2011; 5, 15 August 2011 |
| Date of judgment: | 19 April 2013 |
Appendix A – Directions for a judge-alone trial
General directions
The general directions that I gave myself for the purposes of Mr Dib’s trial are set out below.
The prosecution has brought this charge and the prosecution bears the burden of proving it. Guilt must be proven. The accused does not have to prove innocence. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his innocence. He is entitled to be presumed innocent of any charge until his guilt has been proven to the standard of proof that the law requires, namely beyond reasonable doubt. To prove guilt, the burden of proof rests upon the prosecution to prove each and every element or ingredient of the offence charged beyond reasonable doubt.
It is not enough for the prosecution to persuade me that the accused is probably guilty or even that he is very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events, and the prosecution does not have to do so.
If the accused offers or suggests an explanation which is consistent with his innocence, he is not required to prove that explanation. It is for the prosecution to disprove the explanation, or show that it is irrelevant; if the prosecution does not do so, the prosecution has not proved its case to the required standard of proof.
In deciding what evidence I accept and what evidence I reject, I may take account of all manner of things, including what a witness had to say; the manner in which the witness said it; and the general impression which the witness made upon me when giving evidence. I am not obliged to accept the whole of a witness’s evidence. I may, if I think fit, accept part and reject part of the same witness’s evidence.
Noting that the accused has not given any explanation by himself giving, or by calling, evidence in response to the prosecution’s case, I remind myself that the accused bears no onus, and that although the accused may give or call evidence in relation to the whole or any part of the prosecution’s case, he may equally choose not to give or call any evidence in that regard; he is entitled to say nothing and make the prosecution prove his guilt. I remind myself that the accused’s silence in court and the accused’s choice not to call evidence cannot be used against him, and constitute no admission by him, and that no such inference must be drawn from that silence and that choice. As well, I may not use the accused’s silence to fill gaps in the evidence tendered by the prosecution, or as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt. Nor may I speculate about what might have been said in evidence if the accused had himself given evidence, or what might have been said by any other person who might have been called by the accused as a witness in the trial.
There is no need for the verdicts on the two counts to be the same. Each count must be considered separately in the light of the evidence that applies to it.
Other directions
I direct myself that evidence of Mr Dib’s good character may be seen as a factor affecting the likelihood of him having committed the offences with which he is charged.