R v Lyberopoulos - [2002] NSWCCA 268

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Lyberopoulos [2002] NSWCCA 268

FILE NUMBER(S):
60650/01

HEARING DATE(S): 26 June 2002

JUDGMENT DATE: 26/06/2002

PARTIES:
R v Peter Lyberopoulos

JUDGMENT OF: Giles JA Dunford J Greg James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0304

LOWER COURT JUDICIAL OFFICER: Stewart ADCJ

COUNSEL:
G Scragg - Appellant
G I O Rowling - Crown

SOLICITORS:
Jeffreys & Associates - Appellant
Director of Public Prosecutions - Crown

CATCHWORDS:
Drug offences - supply prohibited drug - actual supply and deemed supply - whether evidence supported verdicts - depends on facts. ND.

LEGISLATION CITED:

DECISION:
Each of the convictions quashed and verdicts of acquittal entered. Vary the commencement date of the sentence imposed on the appellant by Morgan DCJ on 31 October 2001 on one count of supply prohibited drug to commence on that day.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 60650/01
GILES JA
DUNFORD J
GREG JAMES J
Wednesday 26 June 2002

R v LYBEROPOULOS

Judgment

GILES JA: The appellant was indicted on two counts that on 11 March 2000 he supplied a prohibited drug, an offence under s 25(1) of the Drug Misuse and Trafficking Act 1985. The prohibited drug was cannabis leaf. The first count was left to the jury as an actual supply. The second count was left to the jury as a deemed supply. I will come to actual supply and deemed supply later in these reasons.
The appellant was tried before Stewart ADCJ and a jury on 27-29 June and 2 July 2001, and was found guilty on both counts. He was sentenced on each count to imprisonment for two and a half years commencing on May 2001 with a non-parole period of 15 months. He appealed against conviction. He did not appeal in relation to sentence.
Most of the Crown evidence was not disputed. The appellant did not give evidence, or call evidence beyond the tender of photographs. I will identify the area of dispute as appropriate in what follows.
The appellant arrived in Sydney from Adelaide on an Ansett flight at 4.30 pm on 11 March 2000. He collected a red suitcase from the carousel, and picked up an Avis Rent-a-Car.
The police were conducting surveillance. Detective Sergeant Rowles first followed the appellant’s car, then went direct to the Glensynd Motor Inn in Randwick. The receptionist gave him a plastic card which operated as a key to room 107, and he went to the room. There was a glass sliding door providing access from the room to a balcony at the rear of the motel. Detective Sergeant Rowles gave evidence that he opened the curtain on the door to allow vision into the room from outside. He did not remember the nature of the curtaining or precisely what he did, but said that he opened the curtain about the width of the glass door. His purposes included allowing other police to see into the room. As it happened, whatever he did was of no consequence because, on the evidence of the other police, the curtain was closed when they later began to keep watch at the rear of the motel.
Detective Sergeant Rowles left the room and returned the key to the receptionist. He took up a position watching the front entrance to the motel.
The appellant arrived at the motel at 5.16 pm. He parked his car, took the red suitcase from the boot, and entered the motel. There was evidence that the police had “found out he had a booking” and that room 107 was the room allocated by the motel staff. The appellant collected something from the receptionist and went to the lift.
Benjamin Cullen arrived in Sydney on a Greyhound bus from Adelaide at about 6.45 pm on 11 March 2000. He was carrying an Adidas backpack and collected a black suitcase which had been placed on the footpath by the bus driver. He took a taxi to the Glensynd Motor Inn, arriving at about 7.15 pm. The then Detective Sergeant Breton and Detective Maranesi followed his taxi, and after he entered the motel began to keep watch at the rear of the motel.
At about 7.45 pm Detective Sergeant Rowles went to the door to room 107. He put his ear to the door, and heard voices which he said were those of the appellant and Cullen.
At about 7.55 pm a car driven by Christos Fotiou arrived at the motel and parked next to the appellant’s rent-a-car. Fotiou entered the motel. He was not carrying anything. He went to room 107, knocked, and entered when the door was opened. At about 8.05 Fotiou left the motel room. He was carrying a dark bag which appeared to be full. He returned to his car and drove away. Before he had travelled far he was stopped by the police. A search of his car revealed a black plastic bag containing three vacuum sealed plastic bags themselves containing what was later established to be cannabis leaf. This information was relayed to the police keeping watch on the motel.
Detective Sergeant Breton gave evidence that he was keeping watch on room 107 from the rear of the motel, and that at about 8.09 pm the appellant “drew the curtain open” and looked outside. He gave evidence -
“Q. What did you then observe?
A. I saw the black suitcase that we saw from the bus being handled by Cullen into the hotel, I saw that suitcase was on the bed and Cullen was passing Lyberopoulos plastic bags, not like shopping bags, plastic square shaped bags.
Q. What was the accused doing with those?
A. He was putting them into a red, white and blue shopping bag that you can buy at shops, a cheap plastic one.
Q. And then what did the accused do?
A. He looked outside the window and he moved the big black suitcase I referred to as Cullen’s suitcase then from the bed to the foot of the bed.”
In cross-examination Detective Sergeant Breton said that Cullen passed bags to the appellant on at least three occasions. He said that he could not remember whether he saw Cullen open the black suitcase and he “basically … saw the physical action of the passing”. It came out in the cross-examination that in a video taken when the appellant and others were apprehended it was said to the appellant that “police saw person who has identified himself here as Peter through the window opening this black bag which was on the bed before”. This was otherwise unexplored in the evidence.
Detective Maranesi gave evidence that when he took up his watching from the rear of the motel at about 7.15 pm the curtain was closed. He said that at about 8.09 pm he saw the curtained opened by the appellant, and -
“Q. And during the period the curtain remained drawn, what did you see?
A. I saw the accused standing there. He walked back into the room area. Saw the person Cullen in the unit, standing in the vicinity of the accused. I saw a black coloured bag situated on a bed within the room. I saw that the top flap or the lid part of the bag was opened. I then saw the person Cullen removing bags and items from that bag and handing them to the accused who at the time was holding a red, white and blue striped shopping bag or canvas shopping bag.
Q. Where was the black coloured suitcase?
A. Well it appeared to me that it was lying or situated sitting on a bed.
Q. And then later did you see the accused standing at the glass sliding door?
A. Yes.
Q. Looking out on to Abbotsford Road?
A. Yes.
Q. And what did he do next. Do you recall how long he was there?
A. Looking out, not very long at all. It was just basically, the curtain was drawn up, had a look outside had a glance and returned back into the main stream of the unit.
Q. Well what happened to the black coloured suitcase on the bed?
A. I don’t know.
Q. Well if you read your statement on 20 March, would you have a look at paragraph 11?
A. The accused, having drawing [sic] the curtain open, moved the black coloured suitcase from the bed.”
Detective Sergeant Breton’s evidence of what he saw occurring in the motel room was directly challenged in cross-examination as “totally untrue”. Detective Maranesi’s evidence was also directly challenged in cross-examination; it was put to him that he “never saw the accused with that bag through the window on 11 March, being handed items by Cullen and putting them in”.
Cullen left room 107 at about 8.10 pm. He met Daniel Warren, and at about 8.19 pm Cullen and Warren went to room 107. Cullen opened the door to the room using a key card. Detective Sergeant Rowles, Detective Sergeant Breton and Detective Maranesi challenged Cullen and Warren, and entered the room.
The black suitcase was on the floor at the foot of a bed. The appellant was standing next to it. It was open, and contained a number of heat sealed plastic bags containing vegetable matter later established to be cannabis leaf. The red suitcase was on a bag shelf at the rear of the room. It was open, and on top of some clothing in the red suitcase was a plastic bag containing one heat sealed plastic bag in turn containing cannabis leaf. The plastic bag had Ed Harry Menswear written on it. On the top shelf of the built-in wardrobe was a red, white and blue plastic bag containing a number of heat sealed plastic bags in turn containing cannabis leaf. The appellant said that he had placed the plastic bag which was in the red suitcase in that position before the police came into the room, but that he did not know what was in it.
The plastic bags of cannabis leaf found in the black suitcase were described as “the same as the ones, well appear to be very, very, nearly identical to … I‘d say they’d be identical to look at” as the plastic bags of cannabis leaf found in Fotiou’s car.
All bags were subjected to finger print analysis. No finger prints were detected, save for “something” which “wasn’t suitable for identification, that is, we couldn’t establish whose print it was” on the Ed Harry Menswear bag.
The evidentiary dispute was over what Detective Sergeant Breton and Detective Maranesi saw from outside room 107. Detective Sergeant Breton had at the committal given a description of the curtaining which had differed from that given by Detective Maranesi. He acknowledged that he had not been correct; he said that he had returned to the motel to check it. He also acknowledged error in his initial evidence concerning the positioning of a double bed as distinct from single beds in the room. All of Detective Sergeant Rowles, Detective Sergeant Breton and Detective Maranesi were cross-examined in relation to the preparations to see into the room, the ability of the latter two to see into the room from the positions in which they were, and what happened about opening the curtain. It was open to the jury to accept the evidence of what Detective Sergeant Breton and Detective Maranesi saw from outside room 107, and for the jury to decide whether or not they did so.
The appellant’s grounds of appeal were not drawn precisely. What follows was, in my view, within them. It is necessary to take each of the counts separately.
The first count, that left to the jury as actual supply, required proof beyond reasonable doubt that the appellant supplied the cannabis leaf taken by Fotiou from the motel. The Act had an inclusory definition of “supply” namely that it -
“ … includes sell and distribute, and also includes agreeing to suppy, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things.”
This extended the meaning of supply. But the jury was not directed as to the statutory definition. The direction, presumably according to the manner in which the Crown addressed, was that a supply was “what is alleged, a handing over”.
The full directions in that respect began -
“The first count relates to the actual supply, the Fotiou matter. That is an actual supply on the Crown case. The law is, members of the jury, that to supply something you have to have that something in your possession. A dictionary might tell you that to possess something means that you have it. In law the essence of the concept of possession is that at the relevant time the individual intentionally has control over the object in question. You may have this control or domination, I think Mr Jeffreys may have called it, alone or jointly with some other person or persons. Here the Crown case is that this accused had possession of the cannabis that we are talking about now, those three that Mr Fotiou picked up, jointly with Cullen. If you were the persons in this case, the accused and Cullen, if they did have possession in the way that I am speaking of, they must have had the right to exclude other people from that cannabis. If these conditions are fulfilled then you may be said to have possession of the object whether it is in your own sole possession or whether it is a joint possession with somebody else. It is not necessary for you to have something in your hand or your pocket or your wallet or your purse before the law says you have it in your possession. Furthermore, you do not need to own something in order to possess it. You an possess something temporarily or for some limited reason, and you could possess something jointly with one or more others.”
Some examples of possession were then given, and his Honour continued -
“Now, members of the jury, in the first count in this indictment the Crown alleges not an actual sale. That is not correct. There is no allegation that money passed hands and it does not have to be proven. A supply is what is alleged, a handing over. The Crown asks you to infer from the direct evidence that you have heard and from the circumstances that there was an actual supply. You have heard evidence that the man Fotiou came to the Glensynd Motel, carrying nothing but a set of keys. He went inside through the back entrance. He was seen to go up the back stairs. There is evidence that Mr Roles [sic] had seen the accused go into that room, there is evidence that the accused had been seen in the reception area, evidence that he received something, evidence that he went upstairs, there is evidence that he was in room 107. There is evidence that Fotiou emerged from the motel, from the door which he had entered with a black carrier bag in his hand and he got into the car he had arrived in and drove off. He was followed by Detective Adams and his colleague who had been waiting for just such an occurrence. He was stopped by those police and in his car in the front passenger seat foot well was found the black carrier bag. Inside that bag which is an exhibit here, were found three vacuum sealed plastic bags containing what appeared to be to Adams, an experienced observer of such things you might think having been in the drug squad for so long to be green vegetable matter, and he thought it was cannabis. Adams was right; it was. The certificate of analysis shows that and it shows that, there were 1.119 kilograms of it. When these bags were taken back to room 107 later, where the accused and others were, and when it was compared with the other bags there, the evidence is that they appeared to be very similar if not identical. The Crown asks you to infer from these circumstances that Fotiou had not gone to the Glensynd Motel by chance but that he went there for the very purpose of picking up this cannabis. The Crown asks rhetorically, in effect, is there any other reasonable explanation you must find the accused not guilty on that count. If there is not, and you are satisfied beyond reasonable doubt that the accused, in concert with Cullen, supplied those three plastic bags to Fotiou it is open to you to find him guilty.” (emphasis added)
Fotiou may well have gone to the motel to obtain the cannabis leaf. Did the appellant supply it? On the evidence, to the time when Fotiou left the motel the appellant was in the same room as Cullen and the black suitcase of cannabis leaf. But even if the evidence of Detective Sergeant Breton and Detective Maranesi were accepted, to that time there was no evidence that the appellant had been given any of the plastic bags of cannabis leaf.
The Crown case was not put as one of accessory liability, as a case in which the appellant was liable because participating with Cullen in a joint enterprise so that it did not matter whether it was the appellant or Cullen who handed the cannabis leaf over to Fotiou. If the case had been put in that way, appropriate directions would have been required. Although at the conclusion of the second passage from the summing-up which I have set out there was reference to the appellant “in concert with Cullen” supplying the plastic bags to Fotiou, I do not think that can be taken to reflect a Crown case of accessory liability. If that had been the Crown case, of course, the directions would be wholly inadequate, and it can not be that all concerned would not have been alive to the complexities of directions in relation to joint enterprise liability. Moreover, when in the course of the trial the Crown was asked to outline “what drugs constitute the first charge and what constitute the second charge” there was no suggestion of accessory liability -
“So, that constitutes the first count: actual supply – and ‘supply’ is an inclusive definition. It includes giving, selling, supply, hand-over, deliver, any of those things and his Honour will talk to you about that definition later. But, for present purposes, this charge arises out of the three packages that were found in the plastic bag, in the possession of the man, Fotiou.
The Crown says that the man, Fotiou, having gone to room 107 and having emerged from that room where the man, Cullen, and the accused were in the room – and we know with hindsight that the man, Cullen, had taken the large black suitcase there containing the green vegetable matter. The Crown would say that the three packages that are found in Fotiou’s possession form part of what was brought there by the man, Cullen. The Crown says that all that was found in the room later on, including the three packages was in the joint possession of the accused and the man, Cullen. So the first count arises out of an actual supply and actual handing over/delivery to the man, Fotiou.”
What can be seen in this explanation is that the Crown did not put its case as one of accessory liability, but one of primary liability on the basis that the appellant had joint possession with Cullen of the cannabis leaf, that the cannabis leaf was handed over to Fotiou, and so that the appellant had supplied the cannabis leaf to Fotiou.
For reasons which I shortly give, I do not think that it was open to the jury to find beyond reasonable doubt that the appellant had joint possession with Cullen of the cannabis leaf found in room 107. Still less was it open to the jury to find that he had joint possession with Cullen of the plastic bags of cannabis leaf which Fotiou obtained, nor was there evidence that the appellant as distinct from Cullen provided the cannabis leaf to Fotiou. On the ordinary meaning of the word “supply” and in the manner it was put as supply being a handing over, I do not think that it was open to the jury to find beyond reasonable doubt that the appellant had supplied to Fotiou the cannabis leaf found in Fotiou’s car. In my opinion, the conviction on the first count cannot be supported having regard to the evidence. It should be quashed and a verdict of acquittal should be entered.
The second count involves some different considerations. The traffickable quantity of cannabis leaf was 300 grams. The total quantity of cannabis leaf found in room 107 was at one point said to be 8.464 kilograms and at another 10.457 kilograms. It was sufficient that it be proved that the appellant had in his possession not less than 300 grams of the cannabis leaf in the room. By the operation of s 29 of the Act he would be deemed to have possession for supply, and there would be deemed supply of the cannabis leaf within the extended definition of “supply” to include having in possession for supply, since there was no question at trial of possession otherwise than supply or for medical purposes whereby the deeming effect of s 29 would be overcome.

The directions in that respect were -
“One legal meaning applies to the second count in this indictment. They are both couched in exactly the same terms but they require different proofs. As in the first count the Crown must prove beyond reasonable doubt that the accused did have these bags, that is the remainder of them minus the three that went to Fotiou, in his possession. If it cannot prove that and has not proved that beyond reasonable doubt it cannot prove that he had them in possession for the purpose of supply, and that is the end of that. If the Crown, in your view, has not proven that the accused had these bags in his possession, that is the packages of cannabis in his possession, then that you must find him not guilty. I will say a little bit more in a moment about what possession means. Well how does the Crown go about proving it here? The Crown relies on the evidence of surveillance, the handing over as allegedly seen by the two police officers stationed outside, the circumstances; and having looked at the direct evidence and the circumstances, and putting them together, the Crown asks you to say that you are satisfied beyond reasonable doubt that he had it in his possession for supply. If he did not then he is not guilty of this charge.
Now here, members of the jury, the Crown relies on a particular section of the Drug Misuse and Trafficking Act of 1985, to wit s 29, which reads:
‘A person who has in his or her possession an amount of a prohibited drug which is not less than the trafficable quantity of the prohibited drug shall, for the purposes of this division, be deemed to have the prohibited drug in his or her possession for supply unless the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply’
The last part does not apply here because there is no suggestion that if he had these drugs in his possession he had them legally. There is no suggestion that he had a medical prescription or anything like that. Three hundred grams is the trafficable quantity. Here we have a quantity, according to the certificate of analysis, of 8.815 or some such amount of cannabis leaves. That is more than 300 grams, so that it certainly was a trafficable quantity at law. The issue is did he have it in his possession. What then is the meaning of possession? I have already told you that it is necessary that a person must knowingly have the thing in his physical custody or in some place under his control. He must have the intention and the ability to exercise control and dominion over it to the exclusion of all persons other than those acting in concert with him. Here on the Crown case, the accused had control and dominion over those packages of cannabis in that room, to the exclusion of all persons other than Cullen, because the Crown case is that there was joint possession of this cannabis by the accused and Cullen. By knowingly in this context it is meant that the accused knew either of the existence or the likely existence of the item in question, and was also aware that it was likely to be a narcotic drug. And here members of the jury, the Crown case is that he knew that it was compressed cannabis leaves, and as I have told you, that is within the meaning of being a prohibited drug. Cannabis leaf is a prohibited drug.
The Crown says the circumstances are such that you would have no real problem coming to that conclusion, but Mr Jeffreys, who appears for the accused, says that you would indeed have a doubt in that the Crown has not proved it to your satisfaction beyond reasonable doubt and in effect on the evidence produced, he could not have done it, and has not done it. Now, members of the jury, the Crown relies on the circumstances that she outlined. I am not going to go right through them, but she relies on the fact that the accused arrived from Adelaide on flight 208, he was seen at the airport, he got off the plane, he went to Avis, he hired a car, he drove to the Glensynd Motel, and he was followed. Cullen arrived from Adelaide on a Greyhound bus the same day. He took a taxi to the Glensynd Motel. The accused was in room 107, Cullen ended up in room 107 and I am not going to be pedantic and say whether it was 8.09 or 1.07 or whatever. That is where he went on the evidence, and that is not in contest as I understand it. He went up the back stairs and in he went. Fotiou arrived, Fotiou left – observations, circumstances. The Crown says the circumstances here are such that in combination, not looking at one circumstance or two, but all of them together, which you are entitled to do and which you should do, that the only rational conclusion that you can draw is that that is what he was about and that is what Cullen was about.”
Again it was the Crown case that the appellant and Cullen had joint possession. The joint possession on which the Crown relied was joint possession of all the cannabis leaf found in room 107, as appears from the same occasion on which the Crown explained what drugs constituted the respective charges. At that time the Crown referred to the various plastic bags of cannabis leaf found in room 107, and summarised as follows -
“So, the second count relates to what was found in the large black suitcase, the 12 packages, the one package that was found in the Eddy Harry bag on top of the red suitcase and the six packages that were found in the red, white and blue soft carry-bag. So, when you add it all together, it comes to 8.4664 kilograms and all the contents of those packages were analysed and weighed and they were found to be cannabis leaf. So, I hope I have made that clear to the jury.”
It was of importance in the appeal, and was properly acknowledged by the Crown, that the Crown case at the trial was not that the appellant had possession, sole or joint, of the cannabis leaf Detective Sergeant Breton and Detective Maranesi said they saw given to him and placed in the red, white and blue plastic bag, or of the cannabis leaf found on top of the clothing in the red suitcase. It was a case of joint possession of all the cannabis leaf found in room 107.
In my opinion, it was not open to the jury to find beyond reasonable doubt that the appellant did have joint possession of all that cannabis leaf. Let it be assumed in favour of the Crown that the appellant had booked the motel room, Cullen handed plastic bags of cannabis leaf to him as described by Detective Sergeant Breton and Detective Maranesi, and even that the appellant knew that the plastic bags contained cannabis leaf. In my opinion, that does not go beyond a case that Cullen brought to the motel Cullen’s suitcase of cannabis leaf and that the appellant acquired from him some of his stock, as Fotiou had also done. I am unable to see that there can be excluded as a reasonable explanation that the appellant was a customer of Cullen, not a joint possessor of all the cannabis leaf brought to the motel or found in the room. The indirect evidence that the appellant opened Cullen’s suitcase, assuming that some weight can be given to it, is not sufficient to take it further.
Again, in my opinion, the verdict can not be supported having regard to the evidence, and the conviction should be quashed and a verdict of acquittal entered.
I have not overlooked the submission at one point made by the Crown to the effect that in the manner the trial was conducted there was no issue that if the appellant had possession of any of the cannabis leaf it was joint possession with Cullen. I must confess that I really do not understand how that distinction could be drawn on the facts as they emerged, but in the end I think the submission was not maintained. It is plain enough, in my opinion, that at the trial the appellant’s position was that he had not had possession of any of the cannabis leaf, with the possible exception of that in the plastic bag on top of the clothing in the red suitcase as to which he said he did not know what it was. It seems to me that that clearly encompassed a case that he did not have joint possession with Cullen.
I therefore propose that orders be made that each of the convictions be quashed and verdicts of acquittal entered. We have received submissions on whether we should order a new trial. I do not think it would be appropriate to do so in the present circumstances. In the manner the Crown case was put, for the reasons I have given the verdicts can not be upheld. Whether or not a further trial is appropriate, with the Crown case being put in a different manner, is not a matter for this Court but for the prosecuting authorities.
DUNFORD J: I agree.
GREG JAMES J: I also agree.
GILES JA: The orders of the Court will be those proposed in my reasons. In addition we vary the commencement date of the sentence imposed on the appellant by Morgan DCJ on 31 October 2001 on one count of supply prohibited drug so that it commences on that date.
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LAST UPDATED: 01/07/2002