R v Marko Ljubic and Amanda Mary Damoulakis
[2013] ACTSC 180
R v MARKO LJUBIC and AMANDA MARY DAMOULAKIS
[2013] ACTSC 180 (29 August 2013)
CRIMINAL LAW – trial by judge alone – trafficking in a controlled drug – Procuring the commission of an offence
CRIMINAL LAW – Judge alone trial – Standard of proof – Prasad direction
Criminal Code 2002 (ACT), ss 45, 59, 602, 603, 604, 605, 636A
Criminal Code Regulation 2005 (ACT), reg 5
Supreme Court Act 1933 (ACT), s 68C
R v Prasad (1979) 23 SASR 161
R v Filippetti (1984) 13 A Crim R 335
R v Carey (1990) 20 NSWLR 292
Alliston v R [2011] NSWCCA 281
R v Sienczuk (1981) 5 A Crim R 243
R v McCaul and Palmer [1983] 2 VR 419
Doney v R (1990) 171 CLR 207
No. SCC 316A of 2011
No. SCC 317 of 2011
Judge: Higgins CJ
Supreme Court of the ACT
Date: 29 August 2013
IN THE SUPREME COURT OF THE )
) No. SCC 316A of 2011
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 317 of 2011
R
v
MARKO LJUBIC and AMANDA MARY DAMOULAKIS
ORDER
Judge: Higgins CJ
Date: 29 August 2013
Place: Canberra
THE COURT ORDERS THAT:
In each a verdict of not guilty be entered.
The two accused stood trial before me on 17 July 2013. It was a trial by judge alone thus attracting the provisions of s 68C of the Supreme Court Act 1933 (ACT):
(1)A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.
(2)The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.
(3)In criminal proceedings tried by a judge alone, if a Territory law would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict.
An indictment was presented against each accused as follows:
The DIRECTOR OF PUBLIC PROSECUTIONS, who prosecutes in this behalf for Her Majesty the Queen, INFORMS THE COURT AND CHARGES THAT on 25 February 2011 at Canberra in the Australian Capital Territory MARKO LJUBIC procured the commission of an offence by Amanda Damoulakis, namely trafficking in a controlled drug other than cannabis, namely cocaine.
SECOND
COUNT
AND FURTHER THAT on 25 February 2011 at Canberra aforesaid AMANDA DAMOULAKIS trafficked in a controlled drug other than cannabis, namely cocaine.
Pleas of not guilty were entered.
The accused Amanda Damoulakis is charged with an offence against s 603(7) of the Criminal Code 2002 (ACT) (‘the Code’) namely:
(7)A person commits an offence if the person traffics in a controlled drug other than cannabis.
Maximum Penalty 1000 penalty units, imprisonment for 10 years or both.
A “controlled drug” is a substance prescribed by the regulations. Criminal Code Regulation 2005 (ACT) reg 5 prescribes the substances contained in schedule 1 thereto. Item 16 prescribes “cocaine”. A trafficable quantity is two grams.
The term “trafficking” is defined by s 602 of the Code. It provides:
Meaning of 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 offence alleged against the accused Marko Ljubic is contained in s 45 of the Code.
Also relevant are ss 604 and 605 of the Code.
604 Trafficking offence—presumption if trafficable quantity possessed etc
(1) If, in a prosecution for an offence against section 603, it is proved that the defendant—
(a) prepared a trafficable quantity of a controlled drug for supply; or
(b) transported a trafficable quantity of a controlled drug; or
(c) guarded or concealed a trafficable quantity of a controlled drug; or
(d) possessed a trafficable quantity of a controlled drug;
it is presumed, unless the contrary is proved, that the defendant had the intention or belief about the sale of the drug required for the offence.
Note A defendant bears a legal burden of proving that the defendant did not have the intention or belief mentioned in this subsection (see s 59 (c)).
(2)This section does not apply to a single charge under section 629 (Single offence for trafficking etc on different occasions) if the conduct on each occasion to which the charge relates did not involve a trafficable quantity of the controlled drug.
605 Complicity, incitement and conspiracy offences do not apply to buyers of drugs
A person does not commit any of the following offences only because the person bought or intended to buy a controlled drug from someone else:
(a) an offence under section 45 (Complicity and common purpose);
(b)an offence against section 47 (Incitement);
(c)an offence against section 48 (Conspiracy).
Note For an additional offence relating to possessing controlled drugs, see the Drugs of Dependence Act 1989, s 169 and s 171 and the Medicines, Poisons and Therapeutic Goods Act 2008, s 36.
Save insofar as s 604 applies, the Crown bears the onus of proving each element of the alleged offences to the satisfaction of the court to the criminal standard. That is, beyond reasonable doubt.
The accused are each entitled to a presumption of innocence. That not only acknowledges the onus and burden of proof borne by the Crown it also acknowledges that, subject to s 604, the accused at no time have any burden or onus to disprove or challenge the evidence relied upon by the Crown. Indeed, that evidence must be viewed and evaluated with the presumption of innocence in mind. No adverse inference should be drawn against an accused unless on all the evidence no other inference is reasonable.
Generally, knowledge and intent are to be proved to the criminal standard.
It is important that the elements to be proved are placed in the context of the Crown case.
The Crown case relied on conversations and messages intercepted between the two accused and a Mr Ivankovic.
Mr Ivankovic and Ms Damoulakis did meet. Both of them then drove to another car park in the same area where Mr Ivankovic left the vehicle and then the area. She reported the meeting to Mr Ljubic by telephone.
Thereafter, she was stopped by police and a search of the vehicle was conducted pursuant to a warrant.
There was a storage drawer under the front passenger seat of the vehicle which was found to contain a snap-lock bag containing smaller snap-lock bags. There was another snap-lock bag containing white powder. The weight of the powder was 25.876 grams, containing, on analysis, 4.18 grams of cocaine. There was also, in that drawer, a Myer gift card with traces of cocaine adhering to it and a set of scales, also with traces of cocaine upon it. Also located between the passenger seat and the central console was a small snap-lock bag, apparently empty, but found to contain traces of cocaine. There was, as well, a gray plastic bag containing another set of electronic scales with traces of cocaine adhering to them found in the glove box of the vehicle.
Ms Damoulakis participated in an interview with police. She stated that she had gone to O’Connor shops at Mr Ljubic’s request to give to Mr Ivankovic an MP3 CD. She denied any knowledge of the contents of the drawer. The vehicle was not hers but the property of a brother of Mr Ljubic. It was available to be driven by any of four persons, including herself.
She denied having seen the empty snap-lock bag before. She admitted using cocaine but declined to say who supplied her with it. The bags in the drawer were different from the bag next to the passenger seat. She did acknowledge that documents at the bottom of the drawer and underneath the incriminating items were documents which belonged to her and her partner Mr Marko Ljubic.
Mr Ljubic also submitted to an interview and also denied knowledge of the drugs and drug paraphernalia. He declined to comment on the other small bag found next to the passenger seat.
Each of the accused consented to provide and did provide a DNA sample.
In that scenario, it was necessary for the Crown to prove that Ms Damoulakis, knowingly transported the cocaine found in the storage drawer, knowing or believing it to be cocaine, with the intention of selling any of it. The presumption under s 604(1) of the Code is that “unless the contrary is proved” the accused had an intention to sell all or part of the drugs found.
Foundational to the presumption applying is the element of knowledge on the part of Ms Damoulakis that she was transporting a quantity of cocaine. It is not an element of the offence that she knew or believed that it was a traffickable quantity of the drug.
That burden is a legal burden as defined by s 59(c) of the Code.
59 Legal burden of proof—defence
A burden of proof that a law imposes on the defendant is a legal burden only if the law expressly—
(a) provides that the burden of proof in relation to the matter in question is a legal burden; or
(b) requires the defendant to prove the matter; or
(c) creates a presumption that the matter exists unless the contrary is proved.
Example for par (b)
The XYZ Act 2002, section 10 (1) creates an offence of exhibiting a film classified ‘R’ to a child. Section 10 (2) provides—
(2) It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that the defendant believed on reasonable grounds that the child was an adult.
Section 10 (2) provides a defence to an offence against section 10 (1). A defendant who wishes to rely on the defence has a legal burden of proving that the defendant believed on reasonable grounds that the child was an adult.
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
The Crown case proceeded upon the evidence of intercepted conversations and messages, the admissions made by the accused and the forensic evidence covering the discovered and seized items in the motor vehicle Ms Damoulakis had been driving.
Photographs were tendered showing the items discovered in the vehicle.
There was no challenge to the authenticity of the telephone intercepts or to the identity of the participants.
The conversations do not in terms enable one to conclude that Ms Damoulakis knowingly either brought drugs to, or obtained drugs from, Mr Ivankovic. It is clear that Mr Ljubic was concerned to ensure that Ms Damoulakis met Mr Ivankovic. Clearly, it is possible that some drug related transaction was in contemplation. Unfortunately, there was no evidence from Mr Ivankovic to shed light on the matter one way or the other.
In cross-examination, Mr Hassall, for Ms Damoulakis, elicited from Constable Challenger that she had no criminal history.
An affidavit of Mr Ljubic’s brother, Ante Ljubic, was also tendered by the prosecutor. He was called as a witness. That constituted evidence from him that he was the owner of the vehicle Ms Damoulakis had been driving on 25 February 2011. He deposed that each of the accused used the vehicle from time to time. He also disclosed that his cousin used the vehicle from time to time as well as other people more casually. That included his “boss” who now owned the car.
Counsel for each of the accused then submitted that there was no case to answer, alternatively, that the court should return a verdict of not guilty upon the application of the principle affirmed in the case of R v Prasad (1979) 23 SASR 161, that is, that, even if there be a prima facie case, the evidence is insufficient for a finding of guilt beyond reasonable doubt.
Mr Theakston for the accused, Mr Ljubic, made that application, pointing out the uncertainty in the Crown case as to whether the cocaine was the object of purchase or of sale. Secondly, there was an issue as to whether it was proved that the accused or either of them, had knowledge of its presence. In that respect there was no DNA evidence to support an inference that either of them had handled the drugs or their packaging. The third problem was that the number of persons who might have placed the drugs in the concealed compartment under the passenger’s seat was not confined to the accused nor even the brother of the accused who gave evidence that he had not placed the drugs there and had no knowledge of them. Even so, Mr Theakston submitted, how could a tribunal of fact be satisfied beyond reasonable doubt that one of the three must have known of and been in charge of the drugs under the seat and, even if so, which of them. None of the documents found in the concealed drawer was, as Mr Theakston pointed out, dated before 25 February 2011. They were, at latest, two months older than that.
There was evidence that each of the accused used cocaine but that merely offered some explanation for the proposition that the empty small bag had contained cocaine but was not linked with the cache located underneath the passenger seat.
Whilst, of course, “CD” could be code for cocaine, that would imply transportation to supply Mr Ivankovic whereas the Crown case seemed to be the opposite of that. There was no evidence to suggest whether even on that assumption the purpose was to buy cocaine or to sell it.
Of course, that would not foreclose the issue. There is the presumption as to intent to supply. Ms Damoulakis might well have collected from Mr Ivankovic a quantity of cocaine to be on-sold. However, there was no evidence of any transaction between Mr Ivankovic and Ms Damoulakis. Clearly, the issue raised in R v Filippetti (1984) 13 A Crim R 335 is relevant.
Mr Theakston also submitted that the presumption of intention to supply does not apply in respect of the trafficking of a trafficable quantity of a drug other than cannabis. Certainly absolute liability is applied to the circumstance that the quantity is a certain quantity for the purposes of sub-sections (2), (4) and (6). There is no such declaration in respect of s 603(7). However, on the evidence in this case, there is no doubt that the quantity was a trafficable quantity.
That raised a question as to the application of s 604 of the Code to Mr Ljubic. It is not proved that he transported, guarded or concealed the drug or prepared it for sale. It is suggested he, knowing it was in the vehicle or knowing that it was to be provided to her, sent Ms Damoulakis to sell or to collect it.
Is that sufficient for the presumption to apply only given that the quantity was a trafficable quantity? It is certainly a good point but I do not need to resolve that question in this case. Transportation or possession by Ms Damoulakis could be possession or transportation by Mr Ljubic, if knowledge and intention on his part and hers be proved. I do not need to resolve that either.
It was also pointed out by Mr Theakston that, if Ms Damoulakis was sent by Mr Ljubic to purchase drugs, that is not an intent to sell or to supply the drug (see R v Carey (1990) 20 NSWLR 292 and Alliston v R [2011] NSWCCA 281. The point was that, if Ms Damoulakis held the drugs for the purpose of giving them to Mr Ljubic, that was not a purpose of sale or supply attributable to her. Further, assuming Mr Ivankovic had an intent to sell or supply, the buyer (or the buyer’s agent) is not thereby complicit in that intent (see s 605 of the Code).
605 Complicity, incitement and conspiracy offences do not apply to buyers of drugs
A person does not commit any of the following offences only because the person bought or intended to buy a controlled drug from someone else:
(a) an offence under section 45 (Complicity and common purpose);
(b)an offence against section 47 (Incitement);
(c)an offence against section 48 (Conspiracy).
Note For an additional offence relating to possessing controlled drugs, see the Drugs of Dependence Act 1989, s 169 and s 171 and the Medicines, Poisons and Therapeutic Goods Act 2008, s 36.
Mr Hassall, for Ms Damoulakis, adopted those submissions adding that there was no available inference that the under-seat drawer was open or that she had any knowledge of its contents.
Mr Fernandez, for the Crown, conceded that the Crown case was circumstantial. That, of course, does not mean that the evidence is not sufficient for a prima facie case or for a finding of guilt.
The way in which the meeting at O’Connor shops was arranged undoubtedly raised a suspicion that some illicit transaction was in contemplation.
However, nothing was observed to be exchanged between Mr Ivankovic and Ms Damoulakis. The Crown case really depended upon the hypothesis that the evidence supported a supply of cocaine by Mr Ivankovic. It was the Crown case that, by then transporting the drug, Ms Damoulakis was trafficking in the drug. There was available a presumption that, if Ms Damoulakis was knowingly transporting the drugs found under the seat, the presumption under s 604 would provide the element of intent to sell.
However, part of the conversation Mr Fernandez relied upon was that Mr Ljubic was attempting to source drugs, through Ms Damoulakis’ meeting with Mr Ivankovic, from a person called “Ivan”.
Of course, if the meeting was to arrange for the supply of drugs to Mr Ljubic, and, perhaps, Ms Damoulakis, each drug-users according to the recorded conversations and interviews, it may well have been that the drugs in the car were not supplied by or there for supply to Mr Ivankovic.
Mr Fernandez suggested that the reference to “Ivan” could be construed as referring to a deal in which Mr Ljubic and Mr Ivankovic had a secret deal which “Ivan” was not supposed to find out about.
Was the reference to the CD a cover for cocaine? If so, was it the cocaine in the vehicle or a sample taken by Mr Ivankovic to Ms Damoulakis? The evidence does not enable those questions to be answered.
The evidence did, however, disclose that, over two months before the events in question, three other people had access to and used the vehicle. That left unexcluded the hypothesis that some person other than the two accused or Mr Ivankovic deposited the drugs in the seat drawer. That hypothesis is an insuperable obstacle to the Crown case as was pointed out by R v Filippetti (1984) 13 A Crim R 335 (per Street CJ, Slattery and Maxwell JJ). In some cases other potential possessors can be excluded by the evidence of those other persons, or the accused may be implicated by fingerprint or DNA evidence, or it may appear that the several potential possessors are jointly in possession of the items in question.
It is fair to comment that the positioning of the drugs in the car was more likely to have been by one or other of the accused or Mr Ljubic’s brother, the owner of the vehicle than their cousin, Ms Anna Ljubic. Mr Ante Ljubic gave evidence denying that the drugs were his. Thus, if his evidence was to be accepted that would make it more likely that the drugs belonged to the accused. It is, however, apparent that the drugs in the drawer were different from whatever drugs had been used in the vehicle as represented by the empty snap-lock bag next to the passenger’s seat and to the gift card with traces of cocaine on it. The second set of scales was not connected with the items in the drawer in any event.
Mr Fernandez also agreed that, the Crown case having been closed, it was open to the Court to conclude, even if there was a prima facie case, that a reasonable doubt as to the guilt of the accused had not been excluded.
Of course, there was, under s 636A, an alternative verdict of possession simpliciter. However, in the present case, if the evidence permits an inference adverse to the accused as to possession, the purpose of the possession is presumed. The alternative verdict option does not arise.
Ordinarily, the rejection of a Prasad direction, as it is called, leads to an option in the accused to call further evidence which may lead to the court concluding that a reasonable doubt exists. If, for example, the accused raised by evidence a lack of any intent to sell any of the drugs in their apparent possession then, despite a prima facie case or a case sufficient for conviction, a court may be left with a reasonable doubt as to the existence of the purpose or intention to sell any of the drugs.
The case of R v Sienczuk (1981) 5 A Crim R 243 is illustrative of the requirement that, for a prima facie case, the evidence must exclude any reasonable hypothesis consistent with innocence. See also R v McCaul and Palmer [1983] 2 VR 419. For the purpose of a Prasad direction, the question is whether, on the evidence thus far presented a court would safely conclude that no reasonable doubt as to the guilt of the accused then existed. If so, the accused might then elect to call further evidence.
In the present case it is, in my view, not open, on the evidence, to conclude beyond reasonable doubt that Mr Ivankovic supplied any drugs to Ms Damoulakis. Nor can there be drawn to that degree of certainty an inference that she supplied drugs to Mr Ivankovic.
If, therefore, that scenario cannot be proved beyond reasonable doubt then, even if Mr Ivankovic was conveying to Ms Damoulakis information as to the availability of drugs from another person, the offence of trafficking in respect of the drugs in the vehicle could not be made out.
One indication, perhaps, is the conversation of 25 February 2011 where the male person, presumably Mr Ivankovic, says to Mr Ljubic:
Hey, I’ve told your missus (presumably Ms Damoulakis) your two terms and conditions so don’t fuck it up.
Ljubic replies: Yeah alright but hey ok dick head don’t fucking talk to her about it.
Clearly, the purpose of meeting was to deliver two “terms and conditions” or “rules” for Mr Ljubic to accept. It neither supports nor contradicts a proposal to receive or provide the cocaine found in the vehicle.
All I can conclude is that the intercepted conversations are suspicious and it may be inferred that they were, in some way, drug related. It also can be inferred that the accused were users of cocaine. However, seeking to obtain drugs for the use of a person alone or with others is not trafficking (see s 605 of the Code).
In the present case, the evidence does not enable me to conclude that the drugs in the car were in the possession of the accused either jointly or otherwise. There is nothing to link those drugs to the arranged meeting with Mr Ivankovic. Had the latter been stopped and searched it is possible that the hypothesis that he received drugs from Ms Damoulakis could have been supported. However, that was not done and it follows that there is no evidence from which it can be inferred that the cocaine, admittedly a trafficable quantity, was being knowingly transported by Ms Damoulakis, whether in concert with Mr Ljubic or otherwise.
It may be possible to support an hypothesis that Ms Damoulakis or Mr Ljubic placed the drugs in the vehicle by rejecting as unlikely the inference that a third person placed the drugs in the vehicle. However, though unlikely, that inference depends not only on the acceptance of Mr Ante Ljubic’s denial of knowledge of the drugs in his car but also on the acceptance of the proposition that no other person with access to the vehicle did so.
Even if, to use the test in Doney v R (1990) 171 CLR 207, there is evidence from which a rational conclusion could be drawn supporting the guilt of the accused, it seems to me that the evidence is not capable of supporting such a conclusion beyond a reasonable doubt. Accordingly, I must find each of the accused “not guilty”.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 29 August 2013
Counsel for the Crown: Mr M Fernandez
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the first Defendant: Mr G Theakston
Counsel for the second Defendant: Mr D Hassall
Solicitor for the first and second Defendants: Kamy Saeedi Lawyers
Date of hearing: 17 and 18 June 2013
Date of judgment: 29 August 2013
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