R v Kaddour (No 3)

[2019] NSWDC 737

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Kaddour (No 3) [2019] NSWDC 737
Hearing dates:	26 March 2019, 10 May 2019, 21 June 2019, 10 July 2019, 31 July 2019, 15 November 2019
Date of orders:	15 November 2019
Decision date:	15 November 2019
Jurisdiction:	Criminal
Before:	Bright DCJ
Decision:	Verdict of not guilty on all counts.
Catchwords:	CRIMINAL – Judge Alone Trial - judgment
Legislation Cited:	Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985
Cases Cited:	Fleming v R (1998) 197 CLR 250 R v Kaddour [2019] NSWDC 243 R v Kaddour (No 2) [2019] NSWDC 405
Category:	Principal judgment
Parties:	Regina (Crown) Ahmed Kaddour (Accused)
Representation:	Counsel: Mr Lange for the Accused   Solicitors: Mr Whitaker for the Crown Lange Law for the Accused
File Number(s):	2015/371832
Publication restriction:	Nil

Judgment – JUDGE ALONE TRIAL

1. On 26 March 2019 Ahmed Kaddour (the ‘accused’) appeared before Gosford District Court for trial.

2. A judge alone election had been filed. The Crown consented to the trial proceeding judge alone.

3. The accused was arraigned on the following counts:

Count 1

Between the 14th day of December 2010 and the 13th day of December 2011, in Berkeley Vale in the State of New South Wales, produced a prohibited drug, namely, 4-bromo-2,5-dimethoxyphenethylamine, in an amount of 24.868 kilograms, which was not less than the large commercial quantity applicable to that prohibited drug.

(s24(2), Drug Misuse and Trafficking Act, 1985)

Count 2

On the 13th day of December 2011, in Berkeley Vale in the State of New South Wales, supplied a prohibited drug, namely, 4-bromo-2,5-dimethoxyphenethylamine, in an amount of 24.868 kilograms, being an amount which was not less than the large commercial quantity applicable to that prohibited drug.

(s25(2)/s29, Drug Misuse and Trafficking Act, 1985)

Count 3

On the 13th day of December 2011, in Berkeley Vale in the State of New South Wales, supplied a prohibited drug, namely, methylamphetamine, in an amount of 2.8463 kilograms, being an amount which was not less than the large commercial quantity applicable to that prohibited drug.

(s25(2)/29, Drug Misuse and Trafficking Act, 1985)

Count 4

Between 14th day of December 2010 and the 13th day of December 2011, at Berkeley Vale in the State of New South Wales, produced a prohibited drug, namely, 3,4 methylenedioxyamphetamine.

(s24(1), Drug Misuse and Trafficking Act, 1985)

Count 5

On the 13th day of December 2011, in Berkeley Vale in the State of New South Wales, supplied a prohibited drug, namely, 3,4 methylenedioxyamphetamine in an amount of 41.26 grams.

(s25(1)/s29, Drug Misuse and Trafficking Act, 1985)

4. The accused pleaded not guilty to all counts.

5. On 26 March 2019 the Crown made an application to lead tendency and coincidence evidence. On 10 May 2019 the application was granted (R v Kaddour [2019] NSWDC 243).

6. On 21 June 2019 the Crown made an application to reopen the Crown case. On 31 July 2019 the application was declined (R v Kaddour  (No 2) [2019] NSWDC 405).

General directions

7. In compliance with section 133(2) and (3), Criminal Procedure Act and as required by the decision of the High Court in Fleming v R (1998) 197 CLR 250, I remind myself of the following principles of law.

8. As the accused has pleaded that he is "not guilty" to all counts and elected trial by Judge alone it becomes my duty and responsibility to consider whether the accused is "guilty" or "not guilty" of these charges and to return my verdicts according to the evidence that I have heard.

9. The Court notes that 5 separate trials have been conducted although they have run concurrently. The evidence relating to each count is different and the Court in considering each count has only had regard to the evidence admissible on each count.

10. I have heard and received final submissions from the Crown and Mr Lange of Counsel. I will consider the submissions that have been made in the addresses and give to the submissions such weight as I think they deserve. I note that in no sense are those submissions evidence in the case.

11. I note that as the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense.

12. I acknowledge that I have very important matters to decide in this case - important not only to the accused but also to the whole community. I must act impartially, dispassionately and fearlessly. I must not let sympathy or emotion sway my judgment.

13. As the sole judge of the facts, I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence that has been presented during the course of the trial. That evidence includes the oral evidence of the various witnesses called and the various exhibits including the statements of numerous witnesses not called to give oral evidence, tendered in the Crown case.

14. I remind myself that I may, in my role as judge of the facts, draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw an inference from proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts.

15. I now direct myself on the onus of proof. This is a very important direction. This is a criminal trial of a most serious nature and the burden of proof of guilt of the accused is placed on the Crown. That onus rests upon the Crown in respect of every element of the charges. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. I warn myself that suspicion is not a substitute for proof beyond reasonable doubt.

16. It is, and always has been, a critical part of our system of justice that persons tried in this court are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt. Unless the Crown succeeds in proving each and every one of the essential ingredients or elements of the charge beyond reasonable doubt, then the accused must be found "not guilty" of the charges.

17. The words "beyond reasonable doubt" are ordinary everyday words and that is how I understand them. If, at the end of my deliberations, having taken into consideration the evidence both for the Crown and for the accused in respect of any matter which the Crown must establish to make out its case, and after also taking into consideration the submissions made to me by each of the counsel in their addresses, I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt then it is my duty, as I have said, to bring in a verdict of "not guilty", because the Crown will have failed to do what the law requires it to do.

18. I remind myself that it is vitally important that I clearly understand that the accused must be found "not guilty" if his guilt has not been proved to my satisfaction beyond reasonable doubt. It follows from this, of course, that if I am left unable to decide whether the Crown has proved its’ case in relation to any such essential element, even though I may feel that the accused may be guilty, if I have a reasonable doubt in respect of that matter, the accused is entitled to the benefit of that doubt and I must find him not guilty. This is so in respect to the Crown case against accused for each count.

19. The accused did not give evidence during the trial. I remind myself that although an accused person is entitled to give or call evidence in a criminal trial, there is no obligation upon him to do so.

20. It is the Crown that bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offences charged.

21. The accused bears no onus of proof in respect of any fact that is in dispute. I remind myself that he is presumed to be innocent until I am satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of the offences charged.

22. Therefore, it follows that the accused is entitled to say nothing and make the Crown prove his guilt to the high standard required.

23. I remind myself that the accused’s decision not to give evidence cannot be used against him in any way at all during the course of my deliberations. That decision cannot be used by me as amounting to an admission of guilt. I must not draw any inference or reach any conclusion based upon the fact that the accused decided not to give or call evidence. I cannot use that fact to fill any gaps that I might think exist in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt.

24. I must not speculate about what might have been said in evidence if the accused had given evidence (or what might have been said by other witnesses if they had been called by the accused as a witness in the trial).

The elements of the offences: Counts 1 and 4 - Produce prohibited drug

Counts 2, 3 and 5 – Supply prohibited drug

25. In relation to counts 1 and 4, I must be satisfied beyond reasonable doubt that:

1. the accused produced;

2. a prohibited drug;

3. in relation to count 1 – in a quantity not less than the large commercial quantity applicable to that prohibited drug.

26. In relation to counts 2, 3 and 5, I must be satisfied beyond reasonable doubt that:

1. the accused supplied;

2. a prohibited drug;

3. in relation to counts 2 and 3 – in a quantity not less than the large commercial quantity applicable to that prohibited drug.

27. A “prohibited drug” means any substance, other than a prohibited plant, specified in Schedule 1 to the Drug Misuse and Trafficking Act.

28. The “large commercial quantity” of a prohibited drug is specified in Schedule 1.

29. In relation to “supply” a person who has in their possession an amount of a prohibited drug which is not less than the trafficable quantity of that prohibited drug shall, as a matter of law, be deemed to have it in their possession for supply (section 29, Drug Misuse and Trafficking Act

30. The “trafficable quantity” of a prohibited drug is specified in Schedule 1.

The evidence led in the Crown case

31. On 21 June 2019 the Crown tendered the following evidence in the trial:

• Exhibit A - 4 photographs of 4-bromo-2,5-dimethoxyphenethylamine (24.868 kilograms)

• Exhibit B – 3 photographs of methylamphetamine

• Exhibit C - 4 photographs of 3,4 methylenedioxyamphetamine

• Exhibit D – 10 photographs of pill press and punches

• Exhibit E – 5 photographs of location of 3,4 methylenedioxyamphetamine

• Exhibit F1-26 – remainder of Crown brief containing:

1. Statement of Andrew Browning dated 14 December 2011

2. Statement of Michael Riashi date 6 October 2015

3. Statement of David Sinden dated 30 March 2016

4. Search Warrant (Other than Part 5 Search Warrant) dated 8 December 2011

5. Statement of Detective Sergeant Benjamin Whitmore dated 3 September 2013

6. Statement of DSC Melanie Marshall dated 9 February 2012

7. Statement of DSC Bashford dated 6 January 2012

8. Statement of SC Benjamin Bailey dated 7 February 2012

9. Statement of DSC Gary Adams dated 7 February 2012

10. EFIMS exhibit custody report (19 pages)

11. Statement of DSC Clint Geelan dated 11 October 2016

12. Analyst Certificate – Todd McBriar dated 11 May 2012

13. Analyst Certificate – Una Cullinan dated 3 May 2012

14. Analyst Certificate – Una Cullinan dated 18 May 2012

15. Analyst Certificate – Una Cullinan dated 3 May 2012 (2)

16. Analyst Certificate – Una Cullinan dated 3 May 2012 (3)

17. Analyst Certificate – Brendan Trotter dated 8 June 2012

18. EFIMS Summary identifying DNA profile – printout date 23 September 2015

19. Statement of Erin Ellis dated 27 October 2016

20. Statement of Erin Ellis dated 2 February 2018

21. Analyst Certificate – Lisa Anne Wedervang dated 16 May 2015

22. Analyst Certificate – Lisa Anne Wedervang dated 16 February 2017

23. Statement of Cameron Creary dated 25 March 2019

24. Internet searches re Nikolovski Goran

25. Statement of Agreed Facts – R v Ahmed Gezar Kaddour Court Ref: 2015/00239598

26. Search warrant videos (NSW Police)

32. The search warrant videos were played during the trial (Exhibit F26). Evidence was called from the following witnesses:

1. Detective Sergeant Benjamin Whitmore; and

2. Lisa Anne Wedervang (Analyst, FASS).

33. There was no cross examination of either of these witnesses. The Crown case was closed. There was no defence case.

34. In circumstances where there was no challenge to the evidence led in the Crown case, I am satisfied that such evidence establishes the following facts:

The events at Berkeley Vale in 2010-2011

35. On 13 December 2011 ICAC investigators executed a search warrant at 336 Lakedge Avenue, Berkley Vale. This property is a residential home with a garage that was owned and occupied by Cameron Creary and his family.

36. At the rear of the property was a large detached garage fitted with a padlocked metal security door and metal bars on the windows. Inside the security door was a timber door secured with a standard lock which was locked at the time.

37. Cameron Creary told investigators that he did not have a key to the garage as it was currently leased to a friend of his father that he knew only as “Joe” or “Sam”. He stated that he had known Ahmed Kaddour for about 20 years. He was a friend of his father. In 2011 he borrowed some money from him for a business. He never saw Ahmed Kaddour near the workshop when “Joe” was renting it. He was not aware whether “Joe” and Ahmed Kaddour knew each other. He never knew that Ahmed Kaddour was involved in the drug trade.

38. ICAC Investigators forced entry into the garage and, unexpectedly, found a tablet press and other evidence of drug manufacture. Upon this discovery they immediately secured the garage and contacted New South Wales police.

39. New South Wales police obtained a crime scene warrant. It was executed with the assistance of the Chemical Operations unit, forensic chemists and Hazmat.

40. Within the garage police located a 19 stage tablet press regulated by a speed controller, a large metal hopper (used to feed the mixture into the tablet press), multiple press punches with varied logos on them and dies used for dying the tablet mixture.

41. The following prohibited drugs were found in the garage:

1. Green tablets mark with the ‘M’ McDonalds logo (24.868 kg of 4-bromo-2,5-dimeth-oxyphenethylamine) (count 1, 2);

2. 488.3 g of pink tablets and 2.358 kg white tablets mark with a ‘Playboy” logo. Total quantity 2.8463 kg methylamphetamine (count 3); and

3. 39 g of pale pink powder and 4 purple tablets marked with a “playboy bunny” logo which weighed 2.26 g. Total quantity 41.26 grams of 3,4-methylenedioxy-amphetamine (counts 4, 5).

42. Also located within the garage were large quantities of inactive compounds that are mixed with the prohibited drugs in order to produce tablets. Those inactive compounds included the following:

1. 33 boxes weighing 825 kg of Comprecel microcrystalline cellulose (a filling and binding agent);

2. Three garbage bags containing 60 kg of magnesium stearate (used as a lubricant to reduce adhesion to prevent tablets from sticking to tablet press);

3. A 20 litre container 50% full with lactose;

4. 23.1 kg of silica powder;

5. 3.365 kg of bright green cellulose (colouring agent); 6.280 kg of pink lumpy powder which contained sysamol; 20 litres of black food colouring.

43. A forensic chemist was of the opinion that the quantities of inactive compounds had the capacity to produce at least a large commercial quantity of prohibited drugs in tablet form.

44. Police also located a number of items with drug residue on them that had previously been used in the tableting process; a 19 stage tablet press in functioning order; a cement mixer; a KitchenAid mixer; a food processor; and a coffee grinding machine.

45. The forensic chemist who analysed the scene was of the view that tableting of MDA had occurred at the premises. There was likely to have been at least a large commercial quantity of tablets containing MDA produced at the premises. This was the tableting process most recently undertaken at the premises.

46. The tableting of 4-bromo-2,5-dimethoxyphenethylamine had also occurred at the premises. Further, the items and equipment at the premises were capable of producing the 24 kg of 4-bromo-2,5-dimethoxyphenethylamine located at the premises. The preparation of tableting mixtures containing MDA and/or 4-bromo-2,5-dimethoxyphenethylamine had occurred at the premises.

DNA analysis

47. A number of items of personal protective equipment commonly found in drug manufacturing premises were located in the garage including:

1. A half face purifying respirator with two filters attached (Exhibit E – A023). A mixed DNA profile was found on the underside of the respirator from the edge portion that would come in contact with the face. The major component of the mixture had the same profile as the reference sample in the name of the accused. The minor component was of such a low level that further testing was not carried out. The respirator would have been used to minimise the inhalation of airborne particles and hazardous vapours in the tableting process. The filters attached to the respirator were analysed and found to contain d,1-MDA.

2. 29 latex gloves containing staining from use. Pink residue on fingers from one of the gloves was found to contain d,1-MDA. DNA testing was carried out on 3 of the used latex gloves. From the first glove examined, the DNA recovered was the same profile as the reference sample in the name of the accused (Exhibit E -AO12).

3. From the second used latex glove examined a partial DNA profile was recovered from the tip of the middle finger (both inside and out) which had the same profile as the reference sample in the name of the accused. The inside of the palm and/or back of the hand of the glove revealed a mixed DNA profile with the major component of the mixture having the same profile as the reference sample in the name of the accused (Exhibit E – AO15).

4. From the third used latex glove examined a mixed DNA profile was recovered from the inside of the glove (palm/back hand area) with the major component of the mixture having the same profile as the reference sample in the name of the accused (Exhibit E - 0- AO25).

5. DNA was also located on the outside rim of a plastic drinking cup (Exhibit E – AO 34). The DNA recovered had the same profile as the reference sample in the name of the accused.

48. It is alleged by the Crown that the owner and occupier of the Berkeley Vale premises was known to the accused relying upon contact details for the accused being found in the occupier’s telephone and further emails being found on a hard drive forwarded by the occupier to the email address [email protected].

The events at Bingara in 2015 (tendency and co-incidence evidence)

49. The Crown relied upon the following facts as tendency and coincidence evidence in circumstances where the accused had pleaded guilty to the related charges and a statement of Agreed Facts was signed by his legal representatives (Exhibit F – TAB 25).

50. On 15 December 2011, 2 days after the execution of the search warrant at the Berkeley Vale premises, the accused left Australia. He returned to Australia on 10 January 2012 before again departing on 16 July 2012. He did not return to Australia until 22 February 2014.

51. After his first return to Australia in January 2012 the accused purchased a large removalist truck. Sometime before his departure in July 2012 the accused drove that truck to Bingara. It contained drums of acetone, methylated spirits, which are chemicals which can be used in the manufacture of the prohibited drug MDA. The accused sought permission of David Rafter to store the truck on his property at Keera Street, Bingara. It was ultimately agreed that the truck could be stored at another house at 33 Bowen Street, Bingara.

49. The accused and David Rafter had attended school together as children and had also worked together on occasions as adults.

50. Sometime after the accused return to Australia in February 2014 he also took the trailer section of a truck to Bingara. It was also stored at Bowen Street.

51. In the months leading up to the accused arrest in August 2015 he visited Bingara with increased frequency. He brought additional chemicals and equipment with him to be used in the manufacture of MDA.

52. Over this period the accused was engaged in the manufacture of MDA at Keera Street, Bingara with his co-accused Rafter. Various stages of the manufacture process were undertaken in a front garage and a rear shed. Precursors were also stored at the premises.

53. The MDA manufactured at Keera Street was taken to Bowen Street. The truck trailer was used as a workshop for processing the MDA into tablet form. Both the accused and Rafter were involved in this process. The removalist truck was also used to store bulk quantities of chemicals.

54. On 8 August 2015 police received information about the operation of a drug laboratory and the involvement of the accused and Rafter. An investigation commenced.

55. On 13 August 2015 police began covert surveillance of the accused in the vicinity of his home address in Telopea. The accused’s ute was parked at the front of the house. There were 2 wooden crates in the tray of the ute. The crates were later found to contain solvent reclaiming units which were intended for use as part of the second stage of the MDA manufacture.

56. On 14 August 2015 the accused travelled from Telopea to Bingara with the 2 wooden crates in the ute. He arrived at Bingara on 15 August 2015 and the crates were unloaded by the accused and Rafter.

57. On 16 August 2015 the accused attended Bowen Street. For a period of 4 hours and 40 minutes the accused was engaged in a process of preparing MDA powder for conversion to tablets, converting the powder into tablet form and packaging them. This occurred inside the truck trailer but also involved accessing material in the removalist’s truck. During this time Rafter also attended Bowen Street on several occasions during which time he was also engaged with the accused in the process of preparing MDA powder for conversion to tablets, converting the powder into tablet form and packaging them.

58. On 16 August 2015 Police executed search warrants at Keera Street and Bowen Street, Bingara. Both the accused and Rafter were inside the house. They were arrested and cautioned. Rafter provided the keys for the front garage and the shed each of which was locked.

59. Inside the front garage police located equipment that was an active manufacture of MD P2P. The estimated total amount of pure MD P2P from the liquid was 1.2227 kilograms. Police also located 1.961 kilograms of saffrole and palladium chloride.

60. A number of other chemicals essential to the first stage of the manufacture process, although not scheduled precursors, were also found in the front garage and had been brought there by the accused (22.581 kg of benzoquinone and in excess of 27 kg of N,N - dimethylformamide (liquid).

61. Inside the rear shed police located 3.352 kg of pure MD P2P and in excess of 111 kg of formamide inside four plastic 25 litre cubes. The formamide had been brought to the premises by the accused.

62. A number of other items were also found in the rear shed which had been used in various stages of the manufacture of MDA including metal stock pots, plastic buckets, a solvent reclaiming unit, a core condenser, a cement mixer (used to combine solid MDA with other dry substances to obtain an impure form of the drug), an industrial size metal dehumidifier unit, two face masks which had been worn to limit exposure to chemicals during the manufacture process. The DNA of Rafter was recovered from a swab taken from the face seal and head strap of one mask.

63. A number of substances were also located that were identified as “cutting” agents as follows; 21.74 kg of microcrystalline cellulose and 18 bottles of food colouring.

64. Commonly available chemicals also used in the manufacture process were located including dichloromethane (3 plastic jerry cans), methylated spirits, potassium hydroxide and caustic soda.

65. There was also scientific and improvised glassware as well as household items located that are frequently used in the manufacture of MDA including metal apparatus, metal stock pots, condenser, electric plates, electric scales, electric motor and pump, pH indicator strips, thermometers, plastic measuring cylinders and jugs, plastic funnel, plastic tubing and coffee filter papers.

66. Upon arrest the accused denied any involvement in the manufacture.

67. A search warrant was also executed at Bowen Street, Bingara. Inside the truck trailer at the premises police located an industrial multi-functioning 9 stage tablet press on a metal stand. The tablet press had been brought to Bingara by the accused. Police also located white buckets containing MDA in both powder form and fragmented tablets (7.869 kg), and plastic shopping bags holding multiple vacuum sealed bags containing MDA in tablet form (7.450 kg). In total 15.32 kg of MDA was seized from Bowen Street, Bingara.

68. There were also many items relating to the tableting process including funnels, scoops and sieves, an electric juicer, an electric tablet dispenser, a coffee grinder, buckets, a vacuum sealer with vacuum sealed bags, a drill press, metal staring bars, plastic jugs, two digital balances and a metal wok.

69. Also located were plastic gloves including one which had earlier been used in the handling of MDA and which had a mixed DNA profile, the major profile being that of the accused. The accused’s DNA was also identified as a contributor to a mixed profile lifted off a screwdriver taken by police from inside the truck trailer.

70. Inside the large removalist truck registered to the accused police located 21 boxes and a garbage bag containing benzoquinone in total exceeding 540 kg. This had been brought to Bingara by the accused. Benzoquinone is an essential ingredient in the first stage of the manufacture of MDA.

71. A number of other chemicals were found inside the removalist truck that are chemicals often used in the drug manufacture process including 1400 litres of acetone stored in nine 200 L metal drums; 2400 litres of N-N-Dimethylformamide stored in thirteen 200 litre metal drums; 900 litres of dychloromethane stored in seven 200 L metal drums; ethanol in two 200 L metal drums each about 25% full; and methanol in a 20 L capacity container about 33% full.

72. Various tablet press parts were also located inside the removalist truck. Two other single stage pill presses which had earlier been used in a MDA tableting process were also found in two other sheds on the property. Four glass coil condensers were also found inside the truck trailer, being scheduled drug manufacture apparatus, two discarded large metal heating vessels, similar in appearance to the solvent reclaiming unit found in the back shed at Keera Street were also located at Bowen Street.

73. Further quantities of substances used in the tablet conversion stage of the manufacture of MDA were also found inside the removalist truck, the truck trailer and inside a tool shed including 19 kg of microcrystalline cellulose and over 75 kg of magnesium stearate.

74. The accused declined to participate in a police interview.

Directions in relation to tendency and co-incidence evidence

78. The Crown sought to rely upon the events at Bingara in 2015 as tendency and coincidence evidence. The Crown sought to establish that the accused had a tendency to act in a particular way, namely to produce prohibited drugs into tablet form by adding filters and binders, lubricants and colouring agents, missing the drug for cement mixers and creating tablets with the resulting powder through a tablet press, to possess methylenedioxyamphetamine in powder form, to possess MDA in tablet form and to possess large quantities of prohibited drugs.

79. The Crown also sought to rely upon the same evidence as coincidence evidence.

80. In relation to relying upon that evidence as tendency evidence, I remind myself that the accused is only charged with the offences stated in the indictment.

81. The Crown says that the evidence in relation to Bingara in 2015 reveals that the accused had a tendency to act in the particular way that I have identified and that makes it more likely that he committed the offences charged in the indictment.

82. I remind myself that the evidence suggesting that the accused had that tendency can only be used by me in the way the Crown asked me to use it if I make two findings.

83. The first finding is that one or more of the acts occurred. In making that finding I do not consider each of the acts in isolation but consider all the evidence and ask myself whether I find that a particular act or acts relied upon actually took place.

84. If I do find that one or more of the acts occurred then I go on to consider whether from those acts that I have found occurred I can conclude that the accused has the tendency asserted by the Crown. If I cannot draw that conclusion then again I must put aside any suggestion that the accused had the relevant tendency.

85. So if you having found one or more of the acts attributed to the accused occurred and if I also conclude that the accused had the tendency relied upon by the Crown I can use that fact of the existence of the tendency in considering whether the accused has committed the offences charged.

86. I remind myself that I should bear in mind that this is just one part of the evidence relied upon by the Crown and I should give it what weight I think it deserves in the context of all the evidence before me.

87. I remind myself that the evidence of the other acts must not be used in any other way, it will be completely wrong for me to reason that because the accused has committed one crime he is therefore generally a person of bad character and for that reason must have committed the offences charged.

88. I cannot punish the accused for other conduct attributed to him by finding him guilty of the charges in the indictment, that is not the purpose of the evidence being placed before me and I must not reason in that way. I cannot use it in any way against the accused unless I accept the Crown’s argument that it discloses a tendency and therefore makes it more likely that the accused committed the offences charged against him. Even if I accept that the accused has the asserted tendency I need to consider whether or not he acted in that particular way on the occasion the Crown alleges.

89. In relation to the evidence being relied upon as coincidence evidence I remind myself that that evidence is placed before me because sometimes there may be such a strong similarity between two different acts and the circumstances in which they occur that I would be satisfied that the person who did one act or set of acts must have done the others. That is to say there is such a significant similarity between the acts and the circumstances in which they occurred that it is highly improbable that the events occurred simply by chance, that is by coincidence.

90. The improbability of two or more events occurring by chance or coincidently may lead me to conclude that an accused committed the act or had the state of mind the subject of the charge.

91. In this case the Crown says that having regard to the similarities between the events in 2010, 2011 and 2015 that I would conclude beyond reasonable doubt that the accused must have committed the offences with which he has been charged.

92. I remind myself that the evidence of the pattern of behaviour can only be used in the way the Crown asks me to use it if I find two matters, firstly that the accused did the other acts and, secondly, that they are so similar to the acts giving rise to the charges that I find that it is highly improbable that both acts were committed by a different person.

93. If I accept those two matters then I can use that evidence together with the other evidence in the Crown case to be satisfied beyond reasonable doubt that the accused committed the acts giving rise to the offences charged in the indictment.

94. However this is the only way I can use the evidence of the other acts. I cannot reason that because the accused may have committed other acts he is the type of person who would commit criminal activity generally or that he is a person who is likely to have committed the offences charged. The evidence is not placed before me for that type of general reasoning. I cannot punish the accused for other conduct attributed to him by finding him guilty of the charges on the indictment.

95. I note that the coincidence evidence is only relied upon in relation to counts 4 and 5.

Closing Addresses

96. The Crown and defence closing addresses were completed.

97. During the Crown closing address the Crown submitted that the fact in issue in the trial is the accused’s participation in the tableting process and his possession of the prohibited drugs.

98. The Crown submitted that his participation in the tableting process is established by the finding of his DNA on the half face purifying respirator, gloves (3) and drinking cup in combination with the tendency and coincidence evidence.

99. It was submitted that the tendency and coincidence evidence was relevant to rebut any suggestion of transference and was also relevant to his role in the production.

100. In relation to counts 1 and 4, the Crown relied upon the adding of admixtures and the tableting process to establish that the accused had “produced” each prohibited drug. The Crown submitted that whilst the term “produce” is not defined in the Drug Misuse and Trafficking Act, some assistance with respect to the meaning is found in section 3 of the Drug Misuse and Trafficking Act and the definition of “tablet press” which states:

“tablet press” means a device that is capable of being used to produce a prohibited drug in a pill, tablet or other similar form...”

101. Further, the Crown relied upon section 11B, Drug Misuse & Trafficking Act which states:

“(1) A person who has in his or her possession a tablet press that is capable of being used to produce a prohibited drug in tablet form is guilty of an offence.”

102. In relation to counts 2, 3 and 5 (deemed supplies) the Crown relied upon the accused’s presence at the premises (as established by the DNA evidence) and the coincidence and tendency evidence to infer possession.

103. During the defence closing address, Mr Lange submitted on behalf of the accused, inter alia, that there was no evidence to establish that it was, in fact, the accused’s DNA profile found on the items located at the Berkeley Vale premises in circumstances where no evidence had been led in the Crown case to establish that the reference sample used by FASS for comparison purposes was taken from this accused.

104. The DNA evidence admitted in the trial is contained in a FASS Certificate (Exhibit F21). In the FASS Certificate the reference sample used for comparison purposes is identified as follows:

“Buccal sample from Ahmad Kaddour (Barcode No. 52022773)”

105. On the application to reopen the Crown case, the Crown conceded firstly, that no evidence was led in the Crown case to identify that the reference sample used for DNA comparison purposes was taken from this accused and secondly, that without the DNA evidence there is insufficient evidence to establish each of the offences beyond reasonable doubt there being no other evidence sufficient to link the accused to the Berkeley Vale premises.

106. It is against that background that the Crown had sought to reopen the Crown case to lead the evidence of Detective Senior Constable Brest to establish that the reference sample used for DNA comparison purposes was obtained from the accused on 18 December 2015 (Voir Dire Exhibit G).

107. I declined the Crown application to reopen the Crown case.

108. It was further submitted on behalf of the accused that the tableting of prohibited drugs does not come within the ordinary meaning of the word “produce” in circumstances where tableting does not alter the chemical composition of the prohibited drug. Specifically, it was submitted that compression is not sufficient to be a production.

109. It was also submitted that the Court could not be satisfied that the accused actions related to these particular drugs in circumstances where there is no accepted scientific method to “age” DNA that is found. Specifically, it was submitted that the DNA could have been “old”. Also, even if he was involved in the production of prohibited drugs, it was submitted that he may not have been involved on these occasions.

110. In relation to the finding of D1-MDA on the mask and gloves, it was submitted that in circumstances where there was residue found over a lot of the contents of the garage, that the Court could not be satisfied that the residue was deposited on the mask and gloves during the production process.

111. In relation to the production of 4-bromo-2,5-dimethoxyphenethylamine (count 1) it was submitted that there was no evidence linking the accused to the production of this prohibited drug. Whilst there was a link to D,I-MDA, it was submitted that the MDA had to relate to these particular prohibited drugs and not some earlier production (count 4).

Consideration

112. Having considered the available evidence, I am not satisfied that there is sufficient evidence to link the accused to the Berkeley Vale premises given the absence of evidence in the Crown case to establish that the reference sample used for DNA comparison purposes was taken from the accused.

113. The Crown has conceded that in the absence of such evidence, the Crown case cannot be proved beyond reasonable doubt.

114. Accordingly, I am not satisfied beyond reasonable doubt that the Crown has established counts 1, 2, 3, 4 and 5.

Orders

115. In relation to count 1, 2, 3, 4 and 5 I find the accused not guilty.

Amendments

11 December 2019 - Renamed No 3

Decision last updated: 11 December 2019