R v Jumikis

[2014] NSWDC 300

District Court

New South Wales

Medium Neutral Citation:	R v Jumikis [2014] NSWDC 300
Decision date:	09 October 2014
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	The orders sought in the notice of motion filed on 26 May 2014 are refused and the notice of motion is dismissed.
Legislation Cited:	Confiscation of Proceeds of Crime Act 1989 (NSW), ss 13, 18 Drug Misuse and Trafficking Act 1985 (NSW)
Category:	Principal judgment
Parties:	Regina (Crown) Peter John Jumikis (defendant)
Representation:	Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) Churchill Lawyers (defendant)
File Number(s):	2012/00158382

Judgment

Introduction

1. This is a case involving a convicted drug supplier, a gambling addict and an artist who needed cash in a hurry. Added to this, all three have admitted to behaving in a morally questionable way. The gambler had lost his job and had quickly fallen into a life of drinking and gambling. The drug supplier held $10,000 of money due to a friend but kept it back as security for trading to increase his own wealth. The artist promoted paintings as recently completed when some had been stuck in his studio for years.

2. All three have given evidence before me and the case turns on the acceptability of their evidence. To introduce the case as I have suggests an obvious outcome; but, as it happens the outcome is not so obvious at all.

Background

3. I should first provide some background to what happened. The police had intelligence which directed their attention to a unit in Redfern Street, Redfern. They took up a surveillance operation over the place and saw people coming and going. They obtained a search warrant and on 12 May 2012 searched the unit. Their suspicions were proved right. They found nearly eight and a half grams of MDMA (commonly known as ecstasy) and nearly five and a half grams of cocaine.

4. The occupier of the unit was Mr Peter Jumikis. Police charged him with supplying both the drugs. Both the drugs were prohibited by the Drug Misuse and Trafficking Act 1985 (NSW). The amounts found by the police were such that a person in possession of those amounts is deemed to have them in their possession for supply.

5. Mr Jumikis pleaded guilty to the offences and was sentenced by his Honour Judge Hanley SC.

6. I should add one further piece of information. When the police were searching Mr Jumikis’s unit, they asked whether he had any cash. He said that he did not. Undeterred by that answer, the police continued to search and discovered $19,000 in cash. It was kept in a folder and comprised $100 notes.

7. This case is about that cash.

The proceedings

8. The Director of Public Prosecutions has issued a notice of motion naming Mr Jumikis as defendant. The Director is asking me to make a forfeiture order - under s 18 of the Confiscation of Proceeds of Crime Act 1989 (NSW) - over the $19,000 cash. The Director is able to make such an application under s 13 of the same Act. I have been considerably assisted by both legal representatives - Ms T Kuppusamy who appeared for the plaintiff Director of Public Prosecutions and Mr G Stewart who appeared for Mr Jumikis.

9. As Ms Kuppusamy pointed out in her written submissions which became (MFI 1), I have to be satisfied “on the balance of probabilities that the property was used in, or in connection with, the commission of the offence” : s 18(4)(b) of the Confiscation of Proceeds of Crime Act.

The opposing positions

10. In her helpful written submissions, Ms Kuppusamy approached the case by pointing to evidence that suggests that the $19,000 in cash was “circulating capital of the defendant’s drug supply business at the time of his arrest.”

11. The evidence which Ms Kuppusamy pointed to is cogent. As she argued, Mr Jumikis had pleaded guilty to both charges of supplying a prohibited drug. The cocaine was found in eight small plastic resealable bags and two of the ecstasy tablets were found in small resealable plastic bags. In addition, there were a number of new small plastic resealable bags found in the premises and, as I mentioned, Mr Jumikis said that he did not have any cash on the premises.

12. Ms Kuppusamy points to the intelligence which the police relied on. It suggested that the occupant of Mr Jumikis’s premises was dealing in drugs. The surveillance exercise also highlighted people approaching the front door and knocking and then walking away. Sometimes they called out the defendant’s name.

13. In particular, there were SMS messages on Mr Jumikis’s phone which the police confiscated. They were tendered. As Ms Kuppusamy pointed out, the “text messages start from about 6 May 2012 and go to his arrest on 17 May 2012 - a period of 11 days. In that time, there were about 140 text messages between the defendant and various people who wanted to see if he was home and if they could come over.” Hence, Ms Kuppusamy submitted that “on the balance of probabilities...the $19,000 was the circulating capital of the defendant’s drug supply business.”

14. However, there was an alternative explanation put forward by Mr Jumikis for the presence of $19,000 in cash in his premises on the day that he was arrested.

15. He said that an artist friend was in some financial crisis and needed to sell some paintings in a hurry. Mr Jumikis offered to do just that and he sold three paintings to a third man for $20,000 cash. The third man paid that amount over time.

16. Once the $20,000 in cash was accumulated, Mr Jumikis took $1,000 for his own expenses. Of the remaining $19,000, $10,000 was the amount which Mr Jumikis had agreed to pay to the artist and $9,000 was for himself. But instead of passing the $10,000 straight on to his artist friend, Mr Jumikis kept it for the time being as a form of security for trading in the financial market, something he had some experience in. Mr Jumikis intended to pass the cash on to the artist, whose financial crisis had since abated, but was still trading when his house was searched and the cash was found.

17. So Mr Jumikis says that the $19,000 had not been used in connection with the commission of his drug offences but was somebody else’s cash which he was holding for the time being.

18. In support of this explanation, Mr Jumikis himself gave evidence and called as witnesses the artist and the third man who eventually became the claimed purchaser of the paintings.

19. Because the artist and the purchaser made frank admissions during their evidence, some of which were against their interests, I do not propose to name them in this judgment. I do not need to and will refer to them simply as “the artist” and “the purchaser.”

The issue

20. So the question for me is whether the Director of Public Prosecutions has satisfied me on the balance of probabilities that the $19,000 in cash was connected with Mr Jumikis’s drug offending. Obviously, if I accept that Mr Jumikis’s account is true, as supported by his witnesses, then I cannot be so satisfied by the Director. So the focus is, as Ms Kuppusamy correctly acknowledged, on the credibility of those three witnesses.

Consideration

21. Ms Kuppusamy argues that Mr Jumikis’s explanation is implausible and that the evidence of all three witnesses “ought to be put to one side for reasons of inconsistency, unreliability and implausibility.”

22. Ms Kuppusamy put to the witnesses that the paintings were not sold by Mr Jumikis to the purchaser at all. For me to find that the $19,000 were proceeds of drug sales, I would need to reject their account as being unlikely. That would be consistent with finding that all three men had fabricated an elaborate deception. Mr Jumikis had been caught with prohibited drugs and cash so he enlisted two other men to join him in fabricating a reasonably elaborate explanation so that Mr Jumikis could keep the $19,000, perhaps sharing some of it with the other two.

23. There are two main problems with this. One is that the explanation is so unusual - involving questionable behaviour by all three men - that one would think that these intelligent men would fabricate a far more convincing and acceptable explanation. The second problem is that all three men were very thoroughly tested. Ms Kuppusamy’s very competent cross-examination was persistent and incisive, probing inconsistencies and implausibilities. However, not once did I get the impression that there was a crack in the explanations. Not once did any one of the witnesses show any sign that they had been exposed. All three men must be accomplished liars. Indeed, I would have to find that, in order to be satisfied on the balance of probabilities of the Director’s case.

24. Ms Kuppusamy over a couple of pages of her written submissions developed her reasons for me to find that the evidence of the three men should be rejected as containing inconsistencies and as being unreliable and implausible.

25. Ms Kuppusamy points to inconsistencies regarding the names of the three paintings. She is right about that but, on the other hand, it would be remarkable if these three men had fabricated an account that included such basic errors as the names of the paintings which were to be the subject of their deception.

26. Ms Kuppusamy points to inconsistencies in two sets of the same emails. They are emails which the artist sent to Mr Jumikis, pointing out his predicament and asking for his help. Ms Kuppusamy pointed to omissions of words which were not omitted in the other set of emails. She described it as “selective deletions.” However, when she quite fairly put that point to the artist who was the author of the emails he pointed out, correctly in my opinion, that the deletions did not make sense. They did not advance the case for Mr Jumikis at all.

27. Ms Kuppusamy pointed to evidence that paintings which had been purportedly sold to the purchaser still appeared on the artist’s website. Again it would be extraordinary if such a basic error had occurred, assuming that the three men had conspired to concoct this explanation in order for one of them to keep the $19,000 or to share it. The explanation given by the artist had a sense of plausibility in that his website had been overlooked for a period of time for reasons which he had explained.

28. Ms Kuppusamy pointed to the implausibility of the arrangement between Mr Jumikis and the artist and indeed the arrangement between Mr Jumikis and the purchaser as being not supported by any documentary evidence. There was, for example, no receipt issued to the purchaser for the money which he was providing to Mr Jumikis. But these men were not lawyers. It became apparent that, for better or worse, they trusted one another. The purchaser was obviously used to dealing in cash because of his gambling habit. Mr Jumikis was obviously used to dealing in cash by the very fact that he had so much cash on his premises.

29. Ms Kuppusamy pointed out that the purchaser was in the implausible position of being able to predict that he should be able to amass enough money to produce the cash - and then in fact did secure the cash. The purchaser was able to acknowledge her questions about that issue and, in the course of his evidence, frankly acknowledged that his life was disordered at the time. He was pushing a lot of cash through poker machines and explained that he could see the cash simply slipping through his hands and that he needed to stem the flow somewhat by putting the cash into what he described as “more tangible assets”.

30. What might have been more plausible as an explanation is that the $20,000 was supplied in one transaction either in cash or by cheque on one occasion. However, the explanation provided by Mr Jumikis and the purchaser was that the $20,000 was supplied over a period of time in cash, and from the proceeds of gambling.

31. As I was rereading my notes of the evidence, I made the following observations about each man’s evidence. It seemed to me that Mr Jumikis appeared to be frank and not evasive in the answers which he gave. At one stage he explained that a former lawyer may have mixed up the names of the paintings. That is the kind of thing that can happen in real life. He was challenged on the verbal agreement he had with the purchaser - but that is an arrangement that may not be regarded as prudent by a lawyer, or indeed by a prudent business person, but may be one that commends itself to persons who deal with a lot of cash.

32. Mr Jumikis was prepared to acknowledge his own behaviour in using his friend’s cash as security for his own trading. He showed himself in a poor light which to my mind added some credibility to his account. He, in terms, admitted his own greed. He explained many of the telephone calls, although not all of his explanations were to my mind credible.

33. The purchaser’s evidence, as I have said, provided quite an extraordinary explanation of the transaction that he had with Mr Jumikis. It was so extraordinary that it was unlikely to be a lie in my opinion. He could not even remember the names of the paintings and indicated frankly that he had no interest in art. It was such an unlikely explanation that in my opinion it is doubtful that it would be fabricated. It would have represented a very poorly fabricated lie. Again the purchaser frankly admitted - against his interests - his own gambling addiction at the time and that he was a desperate man who needed to stem the flow of cash that was passing through his hands.

34. Again the artist was cross-examined about inconsistencies in documents which he had signed. Whereas a lawyer might regard the inconsistencies as important - being in the form of a statement taken - he explained that he did not regard it as a “legal document”. He gave explanations about the change in names or the development in names of paintings which do not appeal to the precision of a lawyer’s mind but appeared to have some plausibility given that the artist painted abstract art. His explanation for coming to Court was simple and straight forward. He had not needed the money after the initial emergency was dealt with, but he knew that he had to come to Court eventually to secure his share of the funds that he was owed by Mr Jumikis.

Resolution

35. For the reasons that I have given, I do not reject the account given by Mr Jumikis and the two witnesses whom he called.

36. The account, although apparently implausible, I find acceptable having seen the witnesses give their evidence and be thoroughly cross-examined. Because the account is so implausible, it is unlikely to be a concoction by three obviously intelligent men.

37. For those reasons, I am not satisfied on the balance of probabilities that the $19,000 in cash was used in or in connection with the commission of the offence.

Order

38. Accordingly the formal order which I make is this. I refuse the orders sought in the notice of motion filed on 26 May 2014 and I dismiss the notice of motion.

I direct a transcript of my reasons for judgment.

HIS HONOUR: Is there anything else that I need to do?

KUPPUSAMY: No, nothing else.

HIS HONOUR: Mr Stewart?

STEWART: I don’t know whether your Honour just needs to formally make an order that the amount of $19,000 be returned to Mr Jumikis. I don’t think you do.

HIS HONOUR: I do not think I do, no, but if he has - I mean, I have dismissed the application seeking a--

STEWART: If there’s any problems procedurally, we can deal with that later.

HIS HONOUR: Yes. What I have done, what I did this morning in another case was my Associate with settle the orders or I will settle the orders, she will type them and I will settle them in chambers and if you wait around for ten minutes or so she will bring down a signed copy for both of you.

STEWART: I thank your Honour and I thank your Associate as well.

HIS HONOUR: So that may assist your client if there is any - I will just give my Associate the exhibits and the exhibit list. Again I thank you both very much for your assistance.

STEWART: Thank you, your Honour.

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Decision last updated: 06 March 2015