The State of Western Australia v Djekic - [2020] WADC 52

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- DJEKIC [2020] WADC 52
CORAM:   TROY DCJ
HEARD:   30 MARCH - 1 APRIL 2020
DELIVERED          :   Ex tempore
PUBLISHED           :   29 APRIL 2020
FILE NO/S:   IND 2 of 2019
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
DEJAN DJEKIC

Catchwords:

Judge alone trial - Knowledge of drugs - Circumstantial evidence - Turns on own facts

Legislation:

Misuse of Drugs Act 1981 (WA)

Result:

The accused is found guilty as charged

Representation:

Counsel:

The State of Western Australia	:	Mr S Azad
Accused	:	Mr W Burg

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Wayne Burg And Associates

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

Kalbasi v The State of Western Australia [2016] WASCA 144
Kenworthy v The Queen [No 2] [2016] WASCA 207
Lau v The State of Western Australia [2017] WASCA 16
Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176
The State of Western Australia v The Queen (2007) 169 A Crim R 206

TROY DCJ:

[This decision was delivered extemporaneously on 3 April 2020 and edited from the transcript.]

The prosecution allege that on 8 September 2018, near Kojonup, Mr Djekic had in his possession a prohibited drug, namely 55.4 g of methylamphetamine, with intent to sell or supply it to another. The drugs were hidden in a concealed compartment in the centre console of his car. Police officers had arrested Mr Djekic for speeding and reckless driving.
This trial occurred by judge alone. A fundamental difference between a trial by jury and a trial by judge alone is that a jury's deliberations are secret and it does not reveal the reasons which have led to its verdict. By contrast, the judgment in a trial by judge alone must include the principles of law that the judge has applied and the findings of fact on which the judge has relied.
I applied the same principles of law and procedure which would apply if it was a trial before a jury, as far as was practicable, through the course of this hearing.

General legal principles applying to this trial

With one exception, the burden of proving every element of the charge on the indictment is on the State. The burden never shifts.
Mr Djekic chose to give evidence in this trial and necessarily subjected himself to cross-examination, but in the circumstances of this case he did not assume any burden of proving anything.
Every accused person is presumed to be innocent of the charges against him. Any person who stands trial in this country is presumed to be innocent. When an accused person pleads not guilty and where, as is the case here, a judge is trying the matter without a jury, the only person who can remove that presumption of innocence is the trial judge by returning a verdict of guilty. A verdict of guilty necessarily displaces the presumption of innocence.
The standard to which the State must prove this count is beyond reasonable doubt. 'Beyond reasonable doubt' is a term that has its ordinary English meaning. It is a high standard. It is the highest standard that is known to the law. It is to be contrasted with the lower standard of proof that applies in civil cases.
I am obliged, of course, to assess the evidence impartially, analytically and dispassionately and not according to any prejudice, bias or sympathy one way or the other.
I will carefully consider counsel's closing submissions without, of course, adopting counsel's view of the facts, if it differed from my own.
I have regard to the written transcript of the evidence reminding myself that in the event that I have a distinct recollection of a question or answer that differs from that of the transcript my own recollection prevails.
I remind myself that a witness can give evidence which they honestly believe is true but which is nonetheless unreliable. It is open to me to accept all of what a witness said or none of what the witness said or part of what the witness said. I must not guess or speculate about matters that are not in evidence or look for theories unsupported by the evidence.

Elements of the alleged offence

I turn to the elements of the alleged offence. There are four elements. Three of those elements must be proved by the State. Because they must be proved by the State they must be proved beyond reasonable doubt.
The first element which the State must prove is identity, that is the person who the State say offended is Mr Djekic. That is not disputed.
The second element which the prosecution must prove is that methylamphetamine is a prohibited drug as defined in the Misuse of Drugs Act1981 (WA). It is.
The third element which the prosecution must prove is that Mr Djekic possessed the drug. That is the fundamental issue in this trial. A person has possession of prohibited drugs in circumstances that include the exercise of control or dominion over them: Misuse of Drugs Act, s 3(1) definition of 'to possess'.
As explained in Kalbasi v The State of Western Australia,[1] omitting citations:
In order to possess a prohibited drug it is necessary that the accused has knowledge of that drug, being 'knowledge … that he or she had possession of a prohibited drug of some kind, even though that person did not know what prohibited drug he or she possessed'.
[1] Kalbasi v The State of Western Australia [2016] WASCA 144 [92].
Knowledge is established:
[I]f there is proof of a belief by the accused in the likelihood (in the sense that there was a significant or real chance) that he or she had a prohibited drug in his or her physical possession or otherwise in his or her control or under his or her dominion.
In Lau vThe State of Western Australia[2] that concept was broken down into two aspects applying Sgarlata v The State of Western Australia.[3]
[2] Lau vThe State of Western Australia [2017] WASCA 16 [66] - [67].
[3] Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176 [179] ‑ [184].
First, the State must prove that the accused had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that he or she had in his or her physical possession, or otherwise in his or her control or under his or her dominion, a 'substance or thing'.
Secondly, the State must prove that the accused had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the substance or thing was 'a prohibited drug'.
I do not understand there to be any issue that Mr Djekic knew that he had a substance or thing in his control or under his or her dominion. He knew he was transporting a black bag that contained something from Perth to Albany.
The State does not have to prove that Mr Djekic had knowledge that the prohibited drug in his control or dominion was, as a matter of law, a prohibited drug.
The State must prove that Mr Djekic had an intention to possess the prohibited drug.
The elements of knowledge and control must coincide.
The fourth and final element, is intent to sell or supply. 'To supply' has a very wide definition. It includes to deliver, dispense distribute, forward, furnish, make available, provide, return or send. Section 11 of the Misuse of Drugs Act operates to deem a person who is in possession of a specified quantity of a prohibited drug, subject to proof to the contrary, to have it in possession with intent to sell or supply to another. In the case of methylamphetamine, a prohibited drug, the quantity which enlivens the operation of s 11 is 2 g.
Accordingly, given the quantity here, if possession is proved beyond reasonable doubt, the presumption that the possession was with intent to sell or supply applies. Mr Djekic has not sought to offer any proof to the contrary to displace it and so if possession is proved that final element and therefore the offence as a whole would be proved. If possession is not proved I must find Mr Djekic not guilty.

Summary of facts

There were relatively few (or no) factual disputes between the prosecution and defence. In deciding what evidence I accept I have to try and resolve any disputes that I might discern. But the prosecution case really revolves around what conclusions, if any, can be drawn from the proven facts.
It was common ground that it was not necessary to give myself a 'Liberato' direction.

Mr Djekic stopped for speeding

On 8 September 2018 Senior Constable (SC) Main and his colleague Sergeant Loch were advised that a car had been observed travelling at a very high speed in the vicinity of Williams, some 80 km ‑ 85 km to the north. SC Main detected Mr Djekic's car travelling at 192 km an hour.
The officers stopped the vehicle approximately a kilometre further south from that location and arrested the sole occupant, Mr Djekic for reckless driving. Mr Djekic, along with his car, were taken to Kojonup Police Station.

The examination of Mr Djekic's car

Mr Danny McGrath, the owner of Premier Smash Repairs in Katanning, examined the car. He went to open up the lid of the centre console and it became very apparent that although the console was the right shape for the vehicle, the interior of the centre console was unusually shallow.
SC Main had driven the car back to Kojonup Police Station but did not take any notice of the compartment. It did not stand out.
Mr McGrath drew the compartment to SC Main's attention. SC Main poked and prodded at it for several minutes, hitting it with clenched fist on SC Main's evidence, and then a compartment popped open.
SC Main took the drawer outside, the inside drawer out and opened that up and found a bag of what turned out to be methamphetamine. He likened it to a little drawer:
… like a cassette player coming out of a VCR. It just pops up and then you take it out and then you've got this compartment.
Within the compartment there was an opaque black bag, which contained a tissue paper package within which was a clipseal bag containing the methylamphetamine. The weight of the powder was 55.4 g at a purity of approximately 79%.

Value of drugs

Senior Sergeant Emmett gave evidence based on his expertise. His evidence was not disputed, but I remind myself that an expert in an area can give evidence of their opinion if they are qualified by training or experience to give an expert opinion and the facts upon which they give that opinion are proved. Although it is expert opinion evidence, it is still evidence and as the judge of the facts, it is my responsibility to decide whether I accept or reject that evidence.
I accept Senior Sergeant Emmett's unchallenged evidence that an ounce of methylamphetamine would cost about $4,500 ‑ $7,000. Accordingly the drugs found in Mr Djekic's car were worth around $9,000 ‑ $14,000. The peak period for the use of methylamphetamine in the Albany area was 2018. I conclude therefore that demand was high which would have a bearing on price.
In respect of indicia such as clipseal bags, scales and smoking implements, in relation to mere couriers themselves, Senior Sergeant Emmett would not expect to see this indicia every single time stating, 'it is always case-specific.'
Mr Djekic's mobile phone was seized at about 1.45 pm when the drugs were found. Some of the messages retained on the phone were produced.[4]
[4] Exhibits 6.2 ‑ 6.5.
Mr Djekic's was first interviewed at Kojonup[5] and then Albany,[6] both on the same day. I remind myself, of course, that he did not have to participate in either interview nor did he have to give evidence in the trial before me. When I consider the issues that arise for consideration, I will set out the explanations Mr Djekic gave for why it was that he had 55 g of methylamphetamine concealed in the centre console of his car.
[5] Exhibit 3.
[6] Exhibit 7.

Principles of circumstantial evidence

As explained in Kenworthy v The Queen[No 2],[7] when the case against an accused person rests substantially upon circumstantial evidence, a jury or judge alone cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.
[7] Kenworthy v The Queen[No 2] [2016] WASCA 207 [18] - [21] (citations omitted).
To enable me to be satisfied beyond reasonable doubt of Mr Djekic's guilt, it is necessary not only that his guilt should be a rational inference, but that it should be the only rational inference that the circumstances enable me to draw.
For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent me from finding Mr Djekic guilty if the inference of guilt is the only inference open to a reasonable person upon a consideration of all the facts in evidence.
In considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. I must not look at the evidence in a piecemeal fashion.
I must decide whether I accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence.
I can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference.
There is a distinction between the drawing of inferences from facts proved by the evidence and mere speculation or conjecture. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.
Where an intermediate fact constitutes an indispensable step upon the way to an inference of guilt, that fact must be proved beyond reasonable doubt if the ultimate inference of guilt is to be the only reasonable hypothesis left open by the evidence. Otherwise, it is not necessary for each of the individual facts or pieces of evidence from which an inference of guilt is drawn to be proven beyond reasonable doubt.
Circumstantial evidence is no less valid or cogent than direct evidence. Regardless of the type of evidence the question is always whether it is of sufficient strength that it leads to a conclusion that the prosecution has proved its case beyond reasonable doubt.
I must examine any inference or deduction that I draw. I must see whether it is logical and reasonable. I must ask myself whether there are any other explanations that common sense and human experience tell me are not fanciful.
The critical issue for me is whether I can properly be satisfied beyond reasonable doubt that the only rational inference which could be drawn from the primary facts established by the evidence was that Mr Djekic had knowledge of the drugs in the sense explained in Kalbasi v The State of Western Australia and therefore possessed them.

Analysis

The fundamental question boils down to whether a conclusion that Mr Djekic believed that there was a significant or real chance that he had a prohibited drug in his control or under his dominion is the only rational inference that the circumstances enable me to draw.

Is it reasonable to conclude that Mr Djekic's suspicions were aroused?

The first question I ask myself is whether there is evidence from which I might reasonably conclude that Mr Djekic's suspicions were aroused as to what it was he was being paid to transport to Albany.
Based on his two interviews Mr Djekic met a person known as 'JC' at JC's Northbridge apartment in the context of Mr Djekic's job as an Uber food delivery person.
In his second interview, in Albany, Mr Djekic described meeting JC two weeks earlier at his bottom floor apartment on the corner of Palmerston and Bulwer streets in Northbridge.

Mr Djekic himself

As of 8 September 2018, Mr Djekic was an adult male, 33 years of age, educated to a tertiary level and a resident of Western Australia. Whilst there is no basis for me to disregard Mr Djekic's observations in his first interview that he does not use drugs[8] he would inevitably be aware, as any other adult in this society would be, just how prolific the drug trade is in Western Australia and also what a valuable commodity drugs can be.
[8] Page 19.
That understanding is underscored in this case by the nature of Mr Djekic's dealings in other substances. By exhibit 6.2 the State adduced 25 messages of what can only be Mr Djekic carrying on the business of selling a variety of prescription medications. In evidence Mr Djekic said he sold Valium on a single occasion for $125. He never sold any of medications found in his backpack or referred to in the text messages.[9]
[9] Exhibit 6.2.
I refer to some parts of Mr Djekic's evidence[10] when Mr Djekic was taken to the following messages[11] that he exchanged with a person called 'Dave'.
Dave:Where collect from?
Mr Djekic:From me. What location are you?
Dave:Work Applecross, live Maylands.
Mr Djekic:I can come to Applecross now.
Dave:I do not need for another week. Will get 20 pills of 200 mg then of Viagra. Also tell me about the weight loss one.
Mr Djekic:Okay.
[10] ts 191.
[11] Exhibit 6.2.
Mr Djekic was then asked:
Q:Those messages are you selling Viagra to that person, aren't they? A: No.
Q:How do you explain those messages, Mr Djekic? A: I'm just giving him advice.
Q:A random person has messaged you about Viagra and Cialis and within a short period of time you're going to go and meet him? A: Yes
Mr Djekic then said[12] that he was involved in giving but not selling medicine:
A:Yes, I can give him the medicine but I'm not selling the medicine to him. He's made the order for himself.
Q:Sorry, so you would give him the medicine but not sell it to him? A: Yes.
Q:So you would supply him the medication? A: Yes.
Q:But you wouldn't take money for it? A: Yes.
[12] ts 192.
Finally, Mr Djekic, was asked:
Q:your evidence is that you were providing some sort of generous service to people who would randomly message you for this medicine? A: Yes.
Q:And you would receive no money? A: Yes.
Q:And you would operate at a loss? A: Yes.
I emphatically reject Mr Djekic's evidence in this regard. The material shows:[13]
•Mr Djekic's ability to source prescription medications online, determine an appropriate price for each item[14] and sell them for profit;
•The fact that he had apparently developed a website for this business;[15]
•His decision to trade using a false name; and
•His awareness of the risk that customs would seize such goods if too much is brought into Australia.[16]
[13] Exhibit 6.2.
[14] Page 8.
[15] Page 13.
[16] Page 6.
I am satisfied that as of the period August/September 2018 Mr Djekic was in the business of covertly selling various medicines for profit when not entitled to do so. It is not necessary to make any particular findings as to what particular law such conduct may have contravened. I remind myself of the direction I gave myself on 1 April 2020 concerned the limitations on propensity evidence such as this.
I became aware during the course of closing argument that this evidence had been the subject of an earlier application in this court and that therefore a judgment had been reached as to its significant probative value. It is for me, however, to form my own independent assessment as to what, if any, probative value this evidence has.
The relevance of the evidence is that it makes it objectively more likely, but does not of itself prove, that Mr Djekic had the knowledge contended for. It does so, in my view, because it reveals a degree of business acumen and tells against any suggestion that Mr Djekic is particularly naïve.

Nature of the package

The size and weight of the package is consistent with a quantity of drugs.
Given the size of the package there is no discernible reason why it should be transported by car to Albany as opposed to being sent by post, assuming that its contents were legitimate.
The cost of transport, namely the payment of $1,000 to Mr Djekic, is an enormously disproportionate amount unless the payment encompasses recompense for a substantial risk that the person transporting the package is willing to bear. Contrary to his evidence, Mr Djekic could not possibly have thought that $1,000 to transport a package weighing 55 g was a fair price.
At no point either in the two interviews or in his evidence has Mr Djekic ever said what he thought he was transporting.
It is improbable that a person in JC's position would entrust drugs to a value of $9,000 ‑ $14,000 to Mr Djekic unless there was a reason for JC to trust Mr Djekic.

Circumstances in which Mr Djekic received the package

According to Mr Djekic's answers in his second interview, at the time JC gave him this package there were a number of other empty black bags at JC's apartment.[17]
[17] Pages 21 ‑ 23.
I note Mr Djekic's comparative lack of knowledge of JC. I remind myself that having come across the drugs, the police in Kojonup arrested Mr Djekic on suspicion of possessing a prohibited drug at 1.45 pm and then interviewed him at 2.02 pm. It seems that the police advised Mr Djekic off-camera that the drugs were located in a black bag and on that premise police asked Mr Djekic[18] how the black bag got into the secret compartment console of his car.
[18] Page 7.
In his evidence Mr Djekic said that he delivered some food to JC's apartment in Criterion Street in Northbridge. They started talking about Mr Djekic's car which was parked 10 m away. It was a new 2016 model. JC went to have a look at it. Mr Djekic showed him all its features including the engine bay and the lockable box he had installed in the centre console. JC admired the car saying it was 'really nice and had cool features.' He told Mr Djekic he ran an electronic company and occasionally used two Uber drivers to do deliveries. To do so was cheaper than employing a full‑time driver. He asked Mr Djekic if he was interested in extra money having found out Mr Djekic was experienced. Mr Djekic told him he was very interested. Mr Djekic assumed any such deliveries would be in the metropolitan area.
Mr Djekic testified he was not told on that occasion he would be paid $1,000. He was confused, stressed and scared during the interviews. He assumed that Signal was the app JC would use to contact him. Signal was a more sophisticated delivery app and downloaded it.
Mr Djekic's case is that the true position is as outlined by him in his evidence given during the course of this trial. He had met JC a total of four times when JC contacted him and told him to go to a different location than the previous four occasions, albeit still in Northbridge.
According to Mr Djekic's answers in his first interview, JC gave him the package on the first and only time he met JC. According to his answers in his second interview, JC gave him the package on the second of two occasions they met. According to his answers in his evidence, JC gave him the package on the fifth of the five occasions that he met him. The details concerning the suggested second, third and fourth meetings with JC comes entirely from Mr Djekic's evidence.
The second meeting was a week later. JC contacted him via the app and asked him to come to his house which Mr Djekic did. He went inside. He saw a lot of electrical equipment, a sophisticated TV and laptops. It all looked very advanced, all consistent in Mr Djekic's mind with an electronic business.
Mr Djekic did not describe this set up in either interview. Mr Djekic said that the police only asked about the house where he picked the package up from. He never suggested that the house where he first met JC and house where he got the package were the same.
On this occasion they just talked, primarily about the fact that each was trying to get a visa to bring a partner who lived overseas to Australia.
On a third occasion Mr Djekic visited briefly, chatting and talking about visas but more about cars. JC said that there were some jobs coming through but they did not lock in any date.
On a fourth occasion, JC contacted Mr Djekic by Signal regarding a possible job. Mr Djekic went to JC's house but when he got there the job was cancelled. JC told him he would have to wait for the next job. JC did not tell Mr Djekic why.
Returning to the interviews, in his first interview Mr Djekic stated that he did not have JC's contact number but JC had his.[19]
[19] Page 10.
He had not dealt with JC before.[20] So at this point the job offer was extended and accepted on their only meeting.
[20] Pages 10 ‑ 11.
JC asked him if he would take the bag to Albany for payment of $1,000. Mr Djekic did not ask what was inside the bag. He did not know what was in black bag. He had put it in the compartment previous night. He does not use drugs at all. He had never seen a bag with a title like 'skunk sack' before.
JC asked him if he wanted to do this job to earn extra money. JC did not tell him what was in the bag. JC told him there would be someone in Albany who would contact him when he got there and give him another package of some sort to bring back to Perth. On his return to Perth he would receive the thousand dollars from JC. He had not received any money to date.
He had the phone number of the person in Albany saved in his contacts to message them when he arrived. He did not have a contact number for JC but he provided his number to JC.
In his second interview in Albany Mr Djekic said that he met JC two weeks earlier[21] at a bottom floor apartment on the corner of Palmerston and Bulwer.[22] He had not been into that apartment before.[23] JC asked if he wanted to make some extra coin.[24]
[21] Page 10.
[22] Page 11.
[23] Page 12.
[24] Page 10.
They discussed Mr Djekic's car which JC was thinking of getting.[25] Mr Djekic explained the specifications of the engine and showed him the hidden compartment.[26] JC said: 'we can use that for my job. You can do a job for me if you don't mind driving long distance'.[27]
[25] Page 15.
[26] Page 16.
[27] Page 16.
I pause to observe that it does appear to be remarkably coincidental that in a chance meeting between a drug dealer (JC) and an Uber food delivery person (Mr Djekic) the latter would just happen to have such an unusual configuration of his car which suited JC's purposes so neatly.
JC took his number and then called him using Signal. Mr Djekic did not have Signal before that.[28]
[28] Page 19.
I have regard to Mr Djekic's admissions in his records of interview concerning firstly the fact that he was given a bag which he put into the box. Secondly his state of mind when he received this package. I cannot use Mr Djekic's answers in his interviews against him, unless, firstly, I find that the observations were made by him. Secondly that they were truthful and accurate, and thirdly that they relate to the actual allegations now made against him.
Mr Djekic explained that any difference between the accounts in interview about actually seeing JC put something in the box as opposed to his evidence of JC giving him a box which had something in it, is attributable to Mr Djekic being confused.
In evidence Mr Dkekic said that on Friday 7 September he attended a serviced apartment. JC was there alone. JC told him to bring in his box but did not tell him why. Mr Djekic put his box, which was unlocked, on a table. JC took it into his bedroom and returned 1 minute or 2 minutes later. JC gave Mr Djekic back his box and told him to take it to Albany. The lid was closed. Initially Mr Djekic could not see what was in it. He was very surprised when he learned that the job involved him going to Albany. JC told him, for the first time he would pay him $1,000. By contrast, as I have noted, in his second record of interview,[29] Mr Djekic said that JC told him on the first occasion they met that he would be paid $1,000.
[29] Page 10.
There was a small hole in the side of the box so Mr Djekic could see there was something in it.
JC also gave him a little plastic bag which transpired to be the same type as the bag containing the drugs. He did not explain why he did so, other than that these bags were interesting to him. Mr Djekic did not need it but still put it in his bag.[30]
[30] ts 170 ‑ 171.
So, according to his evidence, Mr Djekic did not put the bag which contained the drugs into his compartment but very early in his first interview[31] he said he did. He said it was very dark albeit this exchange is said to have occurred inside JC's apartment when presumably the light was on. Mr Djekic gave minimal details as to where he was at the time[32] saying he was in the city in Perth and then narrowed it down to the suburb of Northbridge. If Mr Djekic knew the street address at that time he did not reveal it.
[31] Page 7.
[32] Page 8.
The police asked Mr Djekic who gave him the bag. There was a very long pause before Mr Djekic said something indistinct and then said that he knew him as JC.
Mr Djekic did not ask what was inside. JC told him he would give him $1,000 to take this bag to Albany. It is significant that Mr Djekic said[33] that JC asked him if he could 'take this bag' as opposed to something unknown that was now secreted in Mr Djekic's box. Mr Djekic told the police, contrary to his evidence, that JC gave him the bag and he put it in box and then car.[34]
[33] Page 8.
[34] Page 9.
Mr Djekic's account in the second interview is similar. JC then called him and told him to go to the apartment at 7.30 pm.[35] Mr Djekic went in and stood in the very small two room apartment.[36] JC was on the couch and had already prepared the black bag. He also had a stack of other bags. JC zipped this black bag up and put it in Mr Djekic's box, from the compartment, which Mr Djekic had brought into the apartment. JC said: 'I'll put it in a box and then put it in the car and tomorrow morning you can go to Albany.' The bag was already prepared.[37]
[35] Page 19.
[36] Page 20.
[37] Page 21.
When the police asked Mr Djekic what he thought was in the bag he said at the time he did not really think it was drugs, without saying what he actually thought it was.[38]
[38] Page 22.
In his Kojonup interview SC Main had asked Mr Djekic if he had any idea or inkling that there might be something 'suss' about it. Mr Djekic said, 'I guess in a way'. He did not ask JC any questions other than to say 'what is it', to which JC said 'just a package something that needs to be delivered, you best not open it.' Mr Djekic had no idea why JC said that.
Mr Djekic just thought that he was getting a thousand dollars. When the police in this interview told him there were drugs in the bag, he agreed it made sense, but at the time he did not think that it would be drugs because he did not 'associate with that stuff.' Mr Djekic was in JC's apartment for about five minutes. He had never done anything like this before.
When police asked him why he did not think to ask JC why he was getting a thousand dollars to deliver this package Mr Djekic said:
[N]ot really it's just like I do every job. I did kind of think about it and then I thought what could it be, its just a small package. I thought he was just paying me because it's so far away.
In his evidence Mr Djekic said that when he was shown the drugs in his first interview he was speechless and shocked.
Mr Djekic said that the reference in his Kojonup interview to an 'inkling that there was something a bit suss about it', was a reference to his state of mind during the course of the interview when he knew that the box contained drugs. As opposed to what he thought when he was given the box.
In each interview Mr Djekic was being asked about events the previous night. I am satisfied that he appreciated that the focus was on the circumstances in which he has come into possession of the small bag found in his console. I do not accept that there was scope for confusion. I accept that Mr Djekic would have been nervous but not scared to the point when he could not rationally answer questions. These were interviews not interrogations as Mr Djekic repeatedly characterised them. His will was not overborne.
I am satisfied that Mr Djekic's answers that he was given a bag as opposed to a box containing some unknown item were truthful and accurate. I am satisfied that when he agreed that he had an inkling that it was 'suss' he was referring to his state of mind at the time of receipt, not during the interview. I am satisfied that these answers relate to the actual allegation now made against him. They amount in the circumstances to an actual admission against interest which he sought to retreat from in his evidence.

The proposed delivery

I note Mr Djekic's almost total lack of knowledge of the person to whom he would be delivering the package. While he was at the apartment JC did not tell him where he was to take it or who he was to give it to. Later that night JC messaged him that the person he was to deliver it to was called Levi. He was provided with Levi's mobile number but not his address.
Not only did Mr Djekic, on his account in his record of interview, not know what was in the bag but when he left JC's apartment he did not know where he was bringing it, other than Albany generally, nor did he know to whom he was bringing it. He stated in his first interview that he did not even know whether he would have to stay the night in Albany.[39] He had that person's phone numbers in his phone,[40] saved in his contacts.[41]
[39] Page 18.
[40] Page 10.
[41] Page 19.
He said in that interview that there was a further obligation to bring another, unidentified package, back to Perth. He had no idea about what might be in that package.[42]
[42] Pages 9 and 12.
In his Albany interview Mr Djekic said that he anticipated that when he got to Albany JC would tell him where to go.[43] JC gave him Levi's number the night before.[44]
[43] Page 9.
[44] Page 32.

The concealed compartment

The package was concealed in a box or compartment within the central console that was designed so as not to be easily opened and indeed not visibly apparent. In his Albany interview, Mr Djekic explained that if he worked a seven-day week he might earn $1,000 a week. If he worked part-time he would only earn about $400. His car cost him $38,000 and loan repayments were $250 a week. His rent was $150 a week. In evidence Mr Djekic said he was earning $1,200 a week. He tendered bank statements showing his wages[45] and his 2017/2018 tax return.[46]
[45] Exhibit 9.
[46] Exhibit 10.
Mr Djekic has given three slightly different explanations concerning this unusual feature. In his Kojonup interview, Mr Djekic agreed that the box comes with the car. One can put a wallet in there in case someone tries to break in. It was a design feature of car.[47]
[47] Page 12.
In his Albany interview, Mr Djekic said if someone was to break in, they would not be able to get into this box so it was there for him to put valuables in. He got it just recently at a cost of a few thousand dollars. He had it fitted before he met JC. He wanted the box because he wanted to be safe. He did not want someone to smash his window in and break things.[48]
[48] Pages 17 ‑ 18.
In his evidence Mr Djekic tendered as exhibit 11 a receipt showing payment (he said for the box) of $1,000 on 7 August 2018. He said he also had to pay $400 cash. He needed a loan to pay for it. He wanted somewhere to store his valuables when he left his car to deliver food. His counsel asked him, 'Would you lock it when you got out of the car typically?' Mr Djekic answered, 'sometimes I would unlock it'.
In cross-examination he said that by valuables he meant wallet, phone and house keys. He would not put them in his pocket because they might fall out when he was running to a house delivering food.
I reject Mr Djekic's evidence as to why he acquired this compartment. Even if it cost him $1,400 (which I observe is different from the 'few thousands' that he referred to in his second interview) that would be a very substantial outlay, based upon his financial position. It would be completely unnecessary when all he would need to do is to remotely lock his car by pressing a button and put his wallet, keys and phone into one of his pockets.
A person in Mr Djekic's position would not choose to wear clothes which have pockets so shallow that these items were liable to fall out. Nor do I accept that as an Uber Eats driver it was necessary for him to run to different houses. I note that on Mr Djekic's evidence when he met JC for the first time his car was parked 10 m away from JC's apartment.
I find that Mr Djekic deliberately chose to install this somewhat singular feature at a significant cost for a reason that he has not disclosed.
I find it highly unlikely and I reject Mr Djekic's evidence that he would have revealed the existence of this compartment to a complete stranger as he says JC was when he first met him.
Mr Djekic provided no explanation for why he brought his security box into JC's apartment as he accepted[49] that he did. When his counsel asked him what he understood about why JC told him to bring in the box from the console in your car. Mr Djekic said that he was not too sure why JC would want him to bring the box, but 'I brang it anyway'.[50]
[49] Page 23 of his second interview.
[50] ts 164.
Mr Djekic failed to examine the contents of the bag in the 16 hours or so it was in his sole possession.

Mr Djekic's behaviour after his arrest

I find that Mr Djekic deliberately refrained from removing this package from his car when given the opportunity by police to remove all personal items from his impounded car prior to his arrest for possession of drugs. I reject Mr Djekic's evidence[51] that when he was stopped by the Kojonup police, and upon arrest his car was taken into their possession, he did not give any thought to the substance or thing that was concealed in the box in the central console.
[51] ts 229.
Mr Djekic's evidence in that regard was absurd. He was driving for the first time to Albany, a journey that would take any driver adhering to the speed limit at least 4½ hours or 5 hours each way plus breaks. He might have to stay overnight. He was being paid for one day's work the equivalent of a week's wages. The sole purpose of driving such distance and for that duration was to deliver the item that was secreted immediately next to him in the centre console.
Mr Djekic never retrieved the package although he was at liberty to retrieve all his personal items. I am quite satisfied that this was because he did not want police to become aware of the package that he was transporting.
Finally, there is Mr Djekic's decision to contact Levi when his car was impounded as opposed to a family member. In his Albany interview, Mr Djekic said that having taken the package home he left it in the compartment overnight. He left for Albany at 9.30 am. He had never been to Albany before. He had told the police in Kojonup that he was prepared to stay in Albany overnight but did not know whether he would have to.
Exhibit 6.5 shows that at 8.27 am on 8 September Mr Djekic messaged Levi, who he said he had never previously communicated with, in this way:
Hey this is aleks [Mr Djekic's nickname]. Let me know when you are awake haha.
After his arrest for reckless driving but before the drugs were discovered Mr Djekic messaged Levi in these terms:
D:Hey mate. I was speeding and my car is seized for 28 days.
L:Really?
D:Yep.
D:Have to catch bus back to Perth, unless you can take me. I'm at Kojonup. Next bus at 7.30 pm.
L:You can go chill at my mate's house. Call me.
D:Is it near Kojonup?
L:It's in Kojonup.
D:No worries, bro.

Mr Djekic told police that his priority was to contact Levi but he did not think about why he was meeting Levi. He told police he was meeting a friend in Albany. Mr Djekic obviously found himself in a difficult situation. During the course of his first ever drive to Albany[52] he had been arrested for reckless driving and as a direct consequence his valuable car had been impounded along with its contents. He was stuck in Kojonup where he himself did not know anyone. Rather than contact friends or family his immediate reaction was to use his phone to get in touch with the person that he understood he would be meeting in Albany, a person who he said he had never contacted until 8.27 am.
[52] Page 32 of second interview.
The way in which he communicated with Levi in each message is entirely inconsistent with a communication for the very first time between two strangers. I am quite satisfied that he had at the very least communicated with Levi before. If Mr Djekic had never met Levi before and if his only dealings with him were to deliver this small package to him in Albany, he would not be so presumptuous so as to ask this person to come from Albany to Kojonup and take him back to Perth, thus subjecting that person to a 10 hour round trip.

Conclusion - Mr Djekic's suspicions were aroused

Given these findings, taken as a whole, I have no hesitation in concluding that as he drove to Albany Mr Djekic's suspicions remained aroused as to what it was he was being paid to deliver.

Lack of enquiries

In his evidence Mr Djekic said that he asked what was inside but JC did not answer him. Mr Djekic did not press the point because it is inappropriate for a delivery driver to ask questions about what he is delivering and if as an Uber driver he was to open a package his employment would be terminated. He was not suspicious nor did he think it a bit suss when he was given back his box which now contained an unknown item. When he asked JC what was inside, initially JC did not answer but then said that Mr Djekic did not need to know and that he should not look inside. JC said that normally and Mr Djekic had no reaction apart from feeling bad about asking him in the first place. He felt comfortable in that moment.
I am quite satisfied that Mr Djekic deliberately refrained from making any inquiries for fear that he may learn the truth.
I stress that there is no doctrine of wilful blindness per se.[53] These findings constitute an evidentiary foundation for my consideration of the question of whether in those circumstances I can be satisfied of knowledge beyond reasonable doubt.
[53] See detailed discussion in The State of Western Australia v The Queen (2007) 169 A Crim R 206.

Credibility of denials

Firstly, I obviously bear in mind that in evidence Mr Djekic has denied ever knowing that the package he was transporting contained drugs and in broad terms the same can be said of his records of interview.
In respect of exhibit 6.2 I am quite satisfied, having compared Mr Djekic's evidence to the incontrovertible evidence of the messages Mr Djekic sent on his phone, that he deliberately lied when he stated that he had never sold these items.
Also, Mr Djekic messaged a person on WeChat in exhibit 6.3: 'I want 5 K back'.
Mr Djekic explained that in evidence in this way:
There was a person that used – that was chatting to me. He thought I was a female originally so I did not really say much about it because he wanted advice on Viagra which I gave him the advice for. That wasn't a problem, but then he started to get really creepy so I made up a story that I'm going to leave Australia and $5,000 got stolen out of my room to sort of push him away, to stop messaging me. he started messaging me every day about how he feels sexually and it was really creepy and I just made up that story to sort of not contact me any more.
TROY DCJ: Did you say that he thought that you were a female?---Yes. Did you then tell him that you weren't a female?---No, I did not tell him I was a female [sic].
I have no difficulty in rejecting Mr Djekic's evidence in this regard in the same way that I reject his evidence concerning the reason for installing the concealed compartment. Just as in the latter case, the easy thing to do would be to put one's wallet, phone or keys in one's pocket, in this case the easiest way to deal with this person would be simply tell him that Mr Djekic was a male not a female and break off the communication. Mr Djekic's evidence in this regard was, I find, deliberately untruthful in order to falsely deny that this person owed him $5,000.
It is not possible for me to make a distinct finding on how many times Mr Djekic met JC before he took delivery of this package. According to the first record of interview he only ever met him once. In his second record of interview he met him on one earlier occasion. In evidence he said that they had met on four previous occasions which he described in some detail.
In each interview, and in his evidence, all the focus was on the circumstances in which Mr Djekic had, unbeknownst to him on his case, come into possession of 55 g of methylamphetamine. If the truth was that he had only met JC once, the night before, there would have been no difficulty in telling the police or this court that. If the truth was that he had met JC on one previous occasion there would have been no difficulty in telling the police or this court that. If the truth was that he had met JC on four previous occasions there would have been no difficulty in telling the police or this court that.
When it comes to the important issue of how many times he had met the person who gave him these drugs I am satisfied that Mr Djekic has lied about that either in interviews or his evidence. It is not possible to determine which.
Although in his evidence Mr Djekic spoke of seeing electrical equipment, a sophisticated TV and laptops, he did not describe this set up in either record of interview. Mr Djekic maintained that the police only asked about the house where he picked the package up from. He never suggested that the house where he first met JC and the house when he got the package were different.
Having regard to his answers in his second interview,[54] I conclude that Mr Djekic undoubtedly allowed police to proceed on the premise that he was referring to one and the same apartment, without correcting them.
[54] Page 19.
As I have already noted there are also critical differences between the description in the two interviews of being given a bag that has something in it, compared to the evidence of JC taking the box away and putting something unknown into it as Mr Djekic described in evidence. I am quite satisfied that this is a significant departure in a matter of important detail. Further I am quite satisfied that the reason for that change arises from Mr Djekic's realisation that the account given in interview presents difficulties to Mr Djekic raising as a reasonable possibility the alternative hypotheses that he had no knowledge of the content of the bag.
I made it abundantly clear however that all the lies that I have discerned, such as the prescription medicine, the number of times that he met JC and his evidence that he was given a box with something in it as opposed to a bag, goes only to credibility as opposed to evidencing a consciousness of guilt.
The fact that Mr Djekic lied in this regard is a factor in my assessment of his credibility. However I remind myself that I must not follow a process of reasoning to the effect that just because Mr Djekic lied in this regard is evidence of guilt. The fact that a person told a lie is not evidence that the person is guilty of a crime.
These various lies do however adversely affect to a very marked extent Mr Djekic's credibility and specifically his denial of knowledge of the contents of his box. I do not accept that this is simply a case of his evidence being a more expansive version of his interviews. Nor do I accept that he was confused and scared in either interview so as to inadvertently mis-state the key events of the previous day.

Speeding

I accept that by driving at an extraordinarily high speed, 192 km per hour at one point at least, Mr Djekic substantially increased the risk that he would be pulled over by police. I am not satisfied that he distinctly knew that if he exceeded a certain speed his vehicle would be impounded as opposed to being issued a speeding ticket but he must have known that if he passed a police vehicle at such a speed he would be stopped as indeed he was.
Mr Djekic testified that he put his foot down at that moment (when his speed was detected at Kojonup) because the road was very straight and empty and he had not driven long distances in this car. Mr Djekic said,
I was going by the speed limit up until that point. And sometimes when I would overtake cars, I would go a little bit fast but I would still remain in the speed limit.
So you weren't driving at 190 kilometres an hour for a long period of time?---No, not at all. No.
Mr Djekic's deliberate decision to drive at such a high speed certainly at Kojonup and quite possibly near Williams is obviously capable of sustaining the reasonable possibility that he did not believe that there was a significant or real chance that he had a prohibited drug in his control or under his dominion.
In my view it is the only factor in this case which gives rise to this possibility.
Against that, Mr Djekic was driving, on his own case, on a relatively empty stretch of road in an expensive new car clearly capable of very significant speeds. I am quite satisfied that driving at the speed was something that Mr Djekic found to be exhilarating. He was by this point closer to Albany than Perth and therefore closer to delivering this package. I am satisfied that in his mind the enjoyment gained from driving at that speed outweighed the potential risk.

Post 8 September events

Mr Djekic testified that he received an implied threat via Facebook messenger from a John Crew, who he perceived to be JC on 12 September 2018.[55] Mr Djekic said he then sold his car for $26,000 on 10 October 2018 because he was afraid.[56] Whilst the message on Facebook might circumstantially reveal a lack of familiarity by JC with Mr Djekic, that does not assist Mr Djekic. The fact that Mr Djekic subsequently sold his car is irrelevant.
[55] Exhibit 13.
[56] Exhibit 14.

Motive

I am satisfied that the $1,000 was a very significant sum to Mr Djekic at that time. In essence Mr Djekic told police in his first interview[57] that he got involved because it was easy money, repeating[58] that he really needed money.
[57] Page 11.
[58] Page 23.
Similarly in his second interview,[59] Mr Djekic said:
I try my best to make money and I took an opportunity to take this package to Albany to make money so I get my girlfriend here.
[59] Page 43.

Conclusion

I have carefully considered the issue of Mr Djekic driving at such an excessive speed. Against that there is the enormous cumulative force of the suspicious circumstances coupled with the failure to make any real enquiries of the contents of this package. I am satisfied beyond reasonable doubt that the only rational inference that the circumstances enable me to draw is that Mr Djekic believed that there was a significant or real chance that he had a prohibited drug in his control or under his dominion.
Given my satisfaction beyond reasonable doubt that Mr Djekic had knowledge that the substance was a prohibited drug, it follows and I conclude beyond reasonable doubt that the prosecution have proved an intention to control the substance. In my judgment there is no reasonable inference that I can draw which is consistent with Mr Djekic's innocence.
The presumption that applies has not been displaced and I further find that Mr Djekic possessed these drugs with intent to supply, that is to deliver to a person he believed to be called 'Levi' in Albany.
Accordingly, I find Mr Djekic guilty as charged and enter a judgment of conviction.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MW
Associate to Judge Troy
29 APRIL 2020