Sabek v The State of Western Australia - [2009] WASCA 195

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SABEK -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 195

CORAM: MARTIN CJ
WHEELER JA
PULLIN JA

HEARD: 23 OCTOBER 2009

DELIVERED : 23 OCTOBER 2009

FILE NO/S: CACR 26 of 2009

BETWEEN: AMRO MAHMOUD SABEK
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :O'SULLIVAN DCJ
File No  :IND 254 of 2008

Catchwords:

Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr L M Levy SC & Mr S Nigam
Respondent: Ms L Petrusa

Solicitors:

Appellant: S C Nigam & Co
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Bahn v The State of Western Australia [2008] WASCA 40
R v Swaffield (1998) 192 CLR 159
The State of Western Australia v Toothill [2007] WASCA 236

MARTIN CJ: I agree with Wheeler JA.
WHEELER JA: This is an appeal against conviction. On 10 February 2009, the appellant was convicted following trial of supplying a prohibited drug, namely heroin, to another. He was sentenced on 11 March 2009 and on 22 June 2009, Miller JA granted leave to appeal on the sole ground of appeal in the appellant's case.
The facts of the offence are as follows. On 11 May 2007, a surveillance device was installed at the home of the appellant. On 25 May 2007, through the use of that surveillance device, the appellant was observed providing Ms Bretea with three packages. A package apparently indistinguishable from one of those three was located by police in the boot of Ms Bretea's car on 13 June 2007. It was found to contain 276 grams of heroin of approximately 20% purity. The State also relied on other surveillance evidence of certain conversations not relevant to this appeal and on other evidence relating to Ms Bretea which I will shortly discuss.
The appellant was convicted, apparently, on the basis that all three packages contained heroin and that he had thereby supplied it to Ms Bretea. The State, in written sentencing submissions, accepted that the capacity in which he supplied heroin to Ms Bretea was unknown and that he must be sentenced on the basis which was submitted to be the most favourable one for him; that is, that he was holding it as bailee.
The appellant gave evidence at trial that he had been in possession of the packages for about two or three months, that he believed that they contained $50,000 in cash that Ms Bretea had won at the casino and that she could not put it in the bank as she was on Centrelink benefits. He said he was merely holding onto the packages for her as she was concerned that her "ex" would take the money and that he had placed the packages in his safe and had never unwrapped them, nor seen them unwrapped by Ms Bretea.
The appellant appeals on one ground which reads:
The Appellant's trial miscarried by the admission of evidence that was irrelevant and prejudicial or, alternatively the probative force of such evidence was outweighed by its prejudicial effect.
The particulars of that ground are the following:
(a)The evidence that the Appellant was the target of an operation targeting alleged drug dealing.

(b)The evidence relating to the alleged drug dealing activities of Ms Bretea in the period between 1 June 2007 and 13 June 2007.
(c)The evidence relating to the search of Ms Bretea's vehicle and home and subsequent seizure of drug‑related paraphernalia on 13 June 2007.

The principles are not in dispute. Evidence is not admissible if it is not relevant. However, even relevant evidence will not be admissible if its probative value is small and it is unduly prejudicial to the accused: see R v Swaffield (1998) 192 CLR 159.
The appellant submits that two comments at trial had the effect of telling the jury that the appellant was the drug dealer that police were targeting in their investigation. The first of those occurred during the prosecution's opening address:
What you'll hear is that between mid 2007, starting about mid 2007, police were conducting an operation targeting alleged drug dealing, and I'm sure you'll hear the name Operation Shillington. As part of that investigation on 11 May 2007, after having secured an appropriate warrant, police put a covert surveillance device in the kitchen of this man's home … in Lockridge. This device enabled police officers to see and hear what was said and done within the kitchen of the accused's house, Mr Sabek's house, and also to record that footage. (ts 9)
The second occurred during re‑examination of Detective Marshall, a prosecution witness. The re‑examination arose out of cross‑examination concerning why Ms Bretea had not been intercepted at an earlier stage. The question and answer are as follows:
Had you spoken to the fellow in the ute who had been caught on surveillance footage or, indeed, had you stopped Ms Bretea what impact would that have had on the ongoing investigation in terms of its - well, you tell us?---Well, it could have, what we call blown the whole operation. The operation had - the target originally had been the accused. Ms Bretea came across the operation, she became a person of interest to us. If we had stopped people that had contact or maybe an associate of Ms Bretea it would've quite - quite possibly have gotten back to her and then our whole operation would have been blown and the expense would have been a complete and utter waste. (ts 195)
The complaint on this appeal is particularly about the words "the target originally had been the accused". No objection was made to this evidence or to the prosecutor's opening at the appellant's trial, nor was a request made to the trial judge to provide the jury with a direction relating to either of those matters.
It is in the nature of a criminal investigation that an accused is suspected of, and investigated for, the commission of a criminal offence prior to being charged and tried for that offence. It is often the case that an accused would be the subject of a police investigation which may include, among other things, telephone intercepts and other surveillance. Where relevant, such evidence has frequently been properly admitted by courts in this State. Examples are Bahn v The State of Western Australia [2008] WASCA 40, and The State of Western Australia v Toothill [2007] WASCA 236. In this instance, and as is the case in many instances, where surveillance evidence is admitted, it was unavoidable that members of the jury would become aware that the appellant was the subject of a police operation, because much of the evidence against him was obtained through surveillance and the recording of conversations.
I accept that it is undesirable to refer to an accused as "the target" of a police operation, as there is a risk that this may be seen as connoting a degree of criminality higher than that which is otherwise suggested by the evidence. However, in the present case, the fact that the appellant was at least one of the targets of the operation must have been obvious, by reason of the fact that police had taken the trouble to install a surveillance device in his house. There was no such device installed in Ms Bretea's house although significant other surveillance was conducted in relation to her.
In my opinion, the evidence concerning surveillance of the appellant as part of an "operation" was relevant and admissible and there was no miscarriage of justice arising out of those matters complained of.
Turning to Ms Bretea's drug dealing activities, at trial evidence of Ms Bretea's activities following her receipt of the packages from the appellant was adduced by the prosecution. This included the evidence of surveillance operatives who observed her, often in company with her mother, meeting with various people at shopping centres and fast food restaurants. Evidence was also adduced regarding her arrest and a search of her home on 13 June 2007 and the discovery there of cash, drugs, bank deposit receipts and various items associated with trade in illegal drugs such as scales and small plastic bags and multiple mobile telephones. Again, no objection was made to this evidence at trial.
In opening, the prosecution had explained the reason for admitting this evidence in the following way:
So why all this evidence about Ms Bretea dealing in drugs when it's simply this. The reason that evidence is there is because it's clearly potentially relevant to your assessment and your consideration of what this man Mr Sabek, was passing to Ms Bretea on the surveillance footage of 25 May 2007. He gives her three black packages and, says the state, tells her to sell them.
She's later found to be selling drugs and a black package very similar in appearance containing heroin is found in the boot of her car. And there's an important point to make, and be wary in this, it's not guilt by association. You don't follow a process of reasoning that says, 'Oh, well, look, because this man's girlfriend or former girlfriend is a drug dealer then he must be, too.'
The evidence in relation to Ms Bretea's drug dealing, if that's what you find it to be, is only relevant to your consideration of what's in these three packages that he's handing over to her on 25 May. (ts 16 ‑ 17)
I note that the appellant's counsel has conceded before us, quite properly, that although there was no direct evidence of drug dealing in the sense that there was no evidence of identified drugs being handed over by Ms Bretea, it was open to the jury to infer from the material which was before them that Ms Bretea had been dealing in drugs.
The learned trial judge directed the jury at pages 409 to 410 in relation to the evidence concerning Ms Bretea's drug dealing, as follows:
Now, [Sorina] Bretea of course, as you have already heard was the accused's girlfriend for want of a better term. They were in some sort of a relationship certainly prior to 25 May 2007.
They you might well think spent a lot of time together, at each other's houses and not unnaturally then in those circumstances the state points to all of that as being a significant part of its part against the accused. The State says, put simply, 'Well, look, Bretea was certainly a dealer in heroin, and the accused who was intimately connected with her then his relationship with her is a matter of relevance that you ought to take into account.'
It's fair enough for the State to say that but, it is important that you bear this in mind: you must not use the evidence concerning Bretea's activities, her crimes if you like, for more than is logical or is justified in judging the case against the accused. The point is this: the accused can't be found guilty simply because he had a girlfriend or partner who was involved in the drug trade. As Mr Whalley said, I think in his opening, this isn't a case of guilt by association.
His Honour went on to warn the jury further about the dangers of reasoning that because the accused's girlfriend was a drug dealer, therefore the accused must be a drug dealer. He noted that such reasoning would be contrary to law.
Although the State did not explain its relevance as clearly as one might have wished, it seems to me that the evidence of Ms Bretea's drug dealing was a strand of circumstantial evidence of some significance. The evidence discloses that three packages had been given to her by the appellant and only one package similar in appearance and containing heroin had been located in her vehicle. If that had been all the evidence, the jury might have wondered had happened to the material in the other packages which the state alleged to have been heroin. In the absence of evidence of other drug dealing by Ms Bretea, they might have more readily considered that it was possible that the package of heroin found in Ms Bretea's car was a package which coincidentally resembled those handed over by the appellant. The evidence of other drug dealing, however, tended to support an inference that the package was what remained of a larger amount.
Even if, as the State conceded was possible, the jury had thought that it was possible that the package in the car was not one of the three packages which was observed to have been handed over to Ms Bretea, the evidence of Ms Bretea's drug dealing was relevant in other ways also. She was actively and frequently involved in the sale of heroin although, as counsel for the appellant points out, the evidence of that activity is subsequent to the handing over of the three packages. It was open for the jury to infer that no‑one intimately associated with her, as the appellant had been, could have failed to notice that she had been engaged in drug dealing. That would be circumstantial evidence relevant to any consideration of his assertion that he believed that the packages contained not drugs, but money.
Evidence of selling on Ms Bretea's part would also potentially be relevant to an issue which arose at trial as to the interpretation of certain of the surveillance evidence. That issue was whether the appellant, at the time of supplying the packages said, "sell it," as the State alleged rather than, "say it," as the appellant alleged. Subsequent evidence of the selling of drugs by Ms Bretea might be considered by the jury to cast light on that conversation.
Finally, at a bare minimum, evidence of Ms Bretea's drug dealing was relevant to drawing an inference as to what in fact had been in the packages, it being more likely that someone engaged in the business of drug dealing had been obtaining drugs, rather than anything else in a transaction of the type observed on the surveillance material.

For all of those reasons, it is my view that the evidence complained of was relevant and admissible and its prejudicial effect did not outweigh its probative value. I would therefore dismiss the appeal.
PULLIN JA: I agree.