Regina v Noe

[2007] NSWDC 312

CITATION:	Regina v Noe [2007] NSWDC 312
HEARING DATE(S):	26 - 30 November 2007
JUDGMENT DATE:	30 November 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Murrell SC DCJ
DECISION:	Verdict of guilty
CATCHWORDS:	Deemed supply of prohibited drug - judge alone trial - circumstantial evidence of possession - lies evidencing consciousness of guilty
PARTIES:	Regina Antonio Noe
FILE NUMBER(S):	07/41/0077
COUNSEL:	Ms J Healey (Defence)
SOLICITORS:	Ms K Ratcliffe (Crown) Ms N Keay (Defence)

JUDGMENT

Uncontested Facts

1 At about 6.40pm on 17 August 2006, a black Nissan vehicle arrived at 13 Hercules Street, Coniston, where Leo Efstathiadis resided. The vehicle entered the underground carpark. The driver got out of the vehicle and stood in the driveway with Efstathiadis.

2 At about 7pm, the accused arrived in a blue Commodore vehicle. The accused and Simo Todorovski exited the rear of the Commodore vehicle and met with Efstathiadis and the other man. The garage door opened and the four men entered the garage.

3 A few minutes later, a maroon Nissan vehicle left the garage with four occupants. The accused and Todorovski were in the rear seat. After a short drive around the immediate area, the vehicle returned to near 13 Hercules Street, where it parked for a few minutes.

4 The accused and Todorovski got out of the maroon Nissan. They re-entered the blue Commodore, and that vehicle drove off. The accused was in the near-side rear seat and Todorovski was in the off-side rear seat. Luke Borg was the driver. Clay Trevena was the front passenger.

5 Police followed the Commodore for a short distance (Exhibit C). At about 7.15pm, they stopped the vehicle. All occupants were fidgeting. The accused had his right hand behind his right buttock.

6 The police found three heat-sealed bags containing methylamphetamine (the bags weighed 6.9g, 2.31g and 0.87g) behind the seat that the accused had occupied. The bags had been jammed into the fold between the seat upright and the seat horizontal, and were not readily visible until the seat upright was held back (Exhibit D). On the floor well in front of that seat, the police found a film canister containing a resealable bag of crystal methylamphetamine (weighing 0.28g). Crystal flakes were scattered on the seat itself. A small package of crystal methylamphetamine (weighing .11g) was found in the accused’s underpants. The accused admitted ownership of that package, stating that it was for personal use. He denied knowledge of the other drugs.

7 A glass pipe and small resealable bag of a crystalline substance were concealed in Trevena’s pants. Borg admitted that, before driving, he had smoked crystal methylamphetamine.

8 At about 9.30pm, the police conducted an electronically recorded interview with the accused (Exhibits J and K).

9 On 7 August, the blue Commodore had been cleaned. Other than Borg’s mother, between 7 August and the evening in question, no one had driven it (Exhibit O).

Trial Proceedings

10 On 26 November 2007, the accused elected to be tried by judge alone and the Crown consented. I was satisfied that, before making the election, the accused had sought and received advice from his barrister, Ms Healey.

11 On 27 November 2007, the accused pleaded not guilty to the charge that, on 17 August 2006 at Coniston, he supplied not less than the trafficable quantity of a prohibited drug (methylamphetamine). The Crown alleged a “deemed supply”, i.e. that the accused was in possession of the drug in the three heat-sealed bags. The Crown alleged that the accused was in possession of the drug in the film canister, but this allegation is not critical to the Crown case.

12 At the close of the Crown case, I rejected the accused’s application for an acquittal by direction. I rejected the accused’s contention that, inter alia, because it had led evidence from the other three occupants of the Commodore that they knew nothing of the heat-sealed bags, the Crown was obliged to rely on sole exclusive possession, i.e. the Crown had to eliminate the possibility of shared exclusive possession. I found that the Crown could prove it’s case by establishing exclusive possession per se, and did not have to show one way or the other whether it was sole or shared possession.

13 I now set out the principles of law that I apply and the findings of fact that I make for the purpose of arriving at a verdict.

Onus and standard of Proof

14 I am aware that the Crown has the task of proving the accused’s guilt beyond reasonable doubt. In other words, the accused is presumed to be innocent unless and until the Crown proves him guilty beyond reasonable doubt.

15 Suspicion must play no part in my function as the judge of the facts. If I feel that the accused may be guilty and even if I feel that he probably is guilty, as long as I have a reasonable doubt about his guilt I must return a verdict of not guilty.

16 I am aware that the Crown does not have to prove the truth of each statement of each Crown witness. What the Crown must prove beyond reasonable doubt is each legal element of the charge and any fact essential to establishing a legal element.

17 I am aware that, in making findings of fact, I must rely upon the evidence, i.e. the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.

Elements of the Offence

18 The Crown must prove each of three legal elements beyond reasonable doubt.

(1) That the substance in the heat-sealed bags was methylamphetamine .
(2) That the quantity exceeded the trafficable quantity of 3 grams.
(3) That the accused had possession of the methylamphetamine.

19 There is no doubt that the substance was methylamphetamine or that the quantity was well over 3 grams: see the analyst’s certificate, Exhibit E.

20 “Possession” means the intentional exercise of exclusive dominion or control over a substance (knowing that the substance is a prohibited drug), or the intentional ability to exclusively control the substance. An individual may enjoy sole or shared (joint) exclusive possession.

21 As a matter of practical reality, in this trial I must be satisfied beyond reasonable doubt that the accused was in possession of the drugs in the three heat-sealed bags.

Circumstantial Case

22 The Crown case on the critical issue of possession of the three heat-sealed bags depended upon circumstantial evidence. The Crown argued that the only rational explanation for the established circumstances is that the accused had sole or shared exclusive possession of the drugs in the bags.

23 Consequently, my first task is to determine the relevant circumstances, as established by the evidence. Then, considering those established circumstances as a whole (together with any direct evidence), I must decide whether I am satisfied that the only available rational inference is that the accused had exclusive possession of the drugs.

Context/ Relationship Evidence

24 Over objection, I admitted the following evidence.

(1) Six txt messages received on the accused’s mobile telephone between 1.15pm on 13 August and 11.05pm on 17 August 2006 (Exhibit N).

(2) Calls and txt communications between Efstathiadis and the accused commencing at 10.03pm on 15 August and concluding at 6.59pm on 17 August (Exhibit F).

(3) Calls from the accused to Efstathiadis at 5.52pm on 18 August, and from Efstathiadis to the accused at 6.07pm on 21 August (Exhibit F).

25 This evidence has limited relevance.

26 As to (1), the evidence was admitted as a circumstance capable of tending to establish that, at the relevant time, the accused engaged in the business of drug dealing.

27 As to (2), the evidence was admitted to provide context to the meeting between the accused and Efstathiadis on 17 August and subsequent events, and to shed light on the statements in the ERISP.

28 As to (3), the evidence was admitted as a circumstance capable of showing that the relationship between the accused and Efstathiadis concerned drug dealing, and (in relation to the conversation at 5.52pm on 18 August) as indicating that the accused accepted that Efstathiadis was unhappy because, on 17 August, Todorovski accompanied the accused to the meeting with Efstathiadis.

29 I am aware that the evidence is to be taken into account only on these limited bases. In particular, it cannot be taken into account as tending to show that, because he had done so on earlier occasions, it is more likely that, on 17 August, the accused was dealing in drugs.

Lies Told in Consciousness of Guilt?

30 The Crown argued that, in the ERISP, the accused lied about a material issue, i.e. the reason for his meeting with Efstathiadis, and the lies evidenced a consciousness of guilt.

31 First, the Crown referred to the accused’s statement that he met Efstathiadis in order to repay a debt incurred in 1996, when Efstathiadis loaned him $10,000 so that he could finance a honeymoon in the Carribean. The telephone intercepts did not refer to such a purpose. Rather, they referred to a meeting for “coffee”. Further, the asserted purpose was improbable in the extreme.

32 Second, the accused said that he partially repaid the debt by utilising that day’s winnings on poker machines at the Unanderra Hotel, but Exhibit H establishes that there were no such winnings.

33 Third, the accused mis-stated his movements on the night of 17 August. He said that Mr Trevena was to visit a person who lived opposite Efstathiadis. He said that, after re-entering the blue Commodore, he exited to apologise to Efstathiadis. Police surveillance established that neither of those movements occurred.

34 I am satisfied that the accused deliberately lied in the respects alleged. For the reasons advanced by the Crown, the accused’s assertions must be untrue. The statements were not made by accident. They must have been made deliberately.

35 Great caution is required in relation to using a lie as evidencing consciousness of guilt, i.e. as, in effect, an implied admission of guilt. I would have to be satisfied that the lie was told because the accused knew that the truth would implicate him in the commission of the offence in question.

36 In this case, I am not so satisfied. The accused had used methylamphetamine and may have been under the influence of that drug during the ERISP. His own counsel submitted (with justification) that the accused’s answers were non-responsive, hesitant, erratic and/or illogical. I have no doubt that the accused lied because he was in some way concerned about his association with Efstathiadis. However, I am not satisfied that it was the offence in question that was on his mind.

37 Although I do not take the accused’s lies into account as evidencing a consciousness of guilt, I find that his ERISP account of events lacks any credibility. In that context, I assess the rest of the evidence.

Evidence of the Car Occupants

38 I place no reliance on the evidence of Borg, Trevena or Todorovski that they knew nothing of the methylamphetamine in the car. Each had a history of using that substance. Borg and Trevena had used it very recently. I was particularly unimpressed with the demeanour and evidence of Todorovski.

Relevant Established Circumstances

39 The evidence establishes the following circumstances.

40 As at 17 August, the accused was in the business of drug dealing. He received txt messages requesting a “fifty” (I gram deal worth $50), and a “half g” (half gram deal), or stating that the sender had “paper” (money) and wanted something. The references to quantity and price are consistent with the drug being methylamphetamine. (Exhibit N, evidence of Detective Kelly).

41 On 15 August, the accused agreed to “do something” with Efstathiadis. Over the next two days, there were conversations about a meeting, which eventuated on the evening in question. Efstathiadis was anxious for the meeting to occur, and, at 12.50pm on 17 August, warned the accused to “stop gambling and come c me. U don’t know me well to Fuck me”.

42 There were no telephone communications between Todorovski and Efstathiadis.

43 As the blue Commodore had been cleaned recently and had been driven only by Mrs Borg, the methylamphetamine must have been placed in the seat fold on the evening in question.

44 The movements involving the black Nissan, the accused’s arrival at 13 Hercules Street, the maroon Nissan and the accused’s departure from Hercules Street are consistent with Efstathiadis brokering the sale of drugs to the accused and inconsistent with normal social interaction between Efstathiadis and the accused. Although the preceding conversations referred to having a coffee or a “cuppa”, nothing of that nature occurred.

45 The police observed the accused fidgeting in the area where the drugs were found. One officer observed that there was no apparent reason to fiddle as the seatbelt was secured. Another observed that the accused’s right hand was positioned with the palm towards the seat upright, a position consistent with poking the drugs into the seat fold.

46 There were methylamphetamine flakes on the seat occupied by the accused and on the floor well in front of that seat. There was a film canister containing methylamphetamine at the accused’s feet. Methylamphetamine was not found elsewhere in the car.

47 On 18 August, the accused assured Efstathiadis that he would see Efstathiadis unaccompanied. That statement is consistent with the primary relationship being a relationship between Efstathiadis and the accused, rather than between Efstathiadis and Todorovski.

48 The accused’s relationship with Efstathiadis was such that, on 21 August, the accused could tell him that “they got me for 11” (a reference to the quantity of methylamphetamine found in the car).

The Only Available Rational Inference?

49 Based on these established circumstances, I am satisfied that the only available rational inference is that the accused is guilty of the offence. On the evening of 17 August, he purchased the three bags of methylamphetamine through the agency of Efstathiadis. Thereafter, he had exclusive possession of that drug, either alone or with another occupant or occupants of the car.

50 I have considered the hypothesis that Todorovski or another occupant of the car may have possessed the drug to the exclusion of the accused. However, each of the established circumstances implicates the accused as the primary, if not the sole purchaser and possessor of the drugs. Consequently, I am satisfied that all alternative reasonable hypotheses have been excluded.

51 I find the accused guilty of the offence.

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