The State of Western Australia v Messiha - [2024] WADC 23

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- MESSIHA [2024] WADC 23
CORAM:   BOWDEN DCJ
HEARD:   27 MARCH 2024
DELIVERED          :   17 APRIL 2024
FILE NO/S:   IND 2067 of 2021
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
REDA MESSIHA

Catchwords:

Application to withdraw plea of guilty - Plea entered on morning of trial - Other charges discontinued - Alleged coercion by his lawyer - Turns on its own facts

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

The State of Western Australia	:	Ms S J B Perera
Accused	:	In person

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Not applicable

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

Birch v The State of Western Australia [2017] WASCA 19; (2017) 51 WAR 454
Borsa v The Queen [2003] WASCA 254
Glover v Reyne [2001] WASCA 305
Harman v Ayling (Unreported, WASC, Library No 960633, 5 November 1996)
Law v The State of Western Australia [2009] WASCA 193
Liberti v The Queen (1991) 55 A Crim R 120
Maxwell v The Queen [1996] HCA 46
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Nutall v The Queen (Unreported, WASCA, Library No 920090, 26 February 1992)
Pilkington v The Queen [1955] Tas SR 144
Rahimi v The State of Western Australia [2024] WASCA 13
Snook v the State of Western Australia [No 2] [2015] WASCA 29
The Queen v Nerbas [2011] QSC 41
The State of Western Australia v Randall [2024] WADC 15
Wright v McMurchy [2012] WASCA 257

BOWDEN DCJ:

Introduction

This is an application by Mr Messiha to change his plea of guilty to a charge of possession of a trafficable quantity (approximately 1.5 kg) of methylamphetamine with intent to sell or supply it to another.
On 7 August 2023, Mr Messiha was to stand trial on an indictment containing five counts, being two counts of possession of money reasonably suspected of being unlawfully obtained, two counts of possession of methylamphetamine with intent to sell or supply it to another, and one count of possession of a trafficable quantity (approximately 1.5 kg) of methylamphetamine with intent to sell or supply it to another (count 3).
On that day the State requested an adjournment to the following day as there were still evidentiary matters outstanding, including a dispute between the parties over edits to the electronically recorded execution of the search warrant and the electronic record of interview, and an issue of law as to whether the State could open on an Edwards' type lie which in turn was relevant to the editing of the search warrant.
Her Honour Judge Barone adjourned the trial to the following day after counsel had made submissions and she had ruled on the Edwards' lie issue.
The court record clearly shows that on the morning of 8 August, the court started at 10.34 am. Mr Catalano who then appeared for Mr Messiha indicated that he had written instructions for a plea of guilty to count 3 but did not want the plea taken until the State had finalised a notice of discontinuance in relation to the other counts. He advised he would be calling for a psychological report. Mr Messiha does not dispute that this occurred as a result of his instructions, and he understood the report was for sentencing purposes.
The court adjourned at 10.39 am and reconvened at 12.30 pm. Shortly thereafter, Mr Catalano told the court that Mr Messiha had been saying things in the dock which put him in a position where he needed to obtain instructions before he could proceed and indicated that he may have to withdraw.
The court adjourned at 12.30 pm and reconvened at 12.35 pm and a minor amendment to count 3 was made (the words '16 November 2020' was inserted in place of 'on the same date and at the same place', an amendment made necessary by the discontinuance of counts 2 and 4), the amended count was put to Mr Messiha and he pleaded guilty and a notice of discontinuance was then accepted in relation to counts 1, 2, 4 and 5, the notice of discontinuance being filed on 'public interest grounds'.
Judgment of conviction was entered by her Honour in respect of count 3 and she ordered a psychological report and remanded the matter to a sentencing date.
Subsequently, Mr Messiha applied to set aside his plea of guilty.

The law

The court has inherent jurisdiction to set aside a plea of guilty even after conviction is entered until such time as sentence is passed.
In Birch v The State of Western Australia [2017] WASCA 19; (2017) 51 WAR 454, the court set out the principles in relation to a plea of guilty. Insofar as they are relevant, they can be briefly stated as follows.
A plea of guilty constitutes an admission of all of the essential elements of the offence: Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 (Meissner); Maxwell v The Queen [1996] HCA 46, and negates all defences: Law v The State of Western Australia [2009] WASCA 193; The State of Western Australia v Randall [2024] WADC 15 (Herron DCJ).
For a plea to be valid it must be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt.
A person may plead guilty upon grounds which extend beyond the person's belief in his or her guilt: Meissner. A person can plead guilty even though they have an arguable defence and of itself the existence of such a circumstance does not invalidate the plea.
The principles applicable to a change of plea were recently stated by the court of appeal in Rahimi v The State of Western Australia [2024] WASCA 13:
28… it is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty, particularly when, as here, the appellant was legally represented when the plea of guilty was entered. There is a strong public interest in the finality of proceedings and a guilty plea is taken to be an admission by an accused person of the necessary ingredients of the offence charged.
29For these reasons, the courts approach attempts on appeal that, in effect, seek to change a plea of guilty with caution bordering on circumspection. The appellant must satisfy the court that there has been a miscarriage of justice. While the categories of miscarriage of justice are not closed, the cases reveal that there are three well‑recognised circumstances in which courts are prepared to set aside pleas of guilty, being cases in which the appellant did not understand the nature of the charge or intend to admit guilt, cases in which, upon the admitted facts, the appellant could not, in law, have been guilty of the offence and cases where the guilty plea has been obtained by improper inducement, fraud, intimidation or the like.
(footnotes omitted)
Although it has been said that there must be a strong case and exceptional circumstances: Borsa v The Queen [2003] WASCA 254; Nutall v The Queen (Unreported, WASCA, Library No 920090, 26 February 1992); Pilkington v The Queen [1955] Tas SR 144 and Harman v Ayling (Unreported, WASC, Library No 960633, 5 November 1996) (Parker J); this is more a statement of the factual position that has occurred in successful applications than a prerequisite at law as ultimately the court should allow a change of plea where not to do so would result in a miscarriage of justice.
The courts are also aware of the possibility that a person who pleads guilty may later regret it and wish to falsely attribute blame for their voluntary plea to bad or inadequate advice or improper pressure. Liberti v The Queen (1991) 55 A Crim R 120; Borsa v The Queen;Snook v the State of Western Australia [No 2] [2015] WASCA 29.
It is not a sufficient basis to set aside a plea to merely demonstrate an accused may not have committed the offence in question. It is not enough for the appellant to demonstrate, on appeal, that he was innocent of the charge to which he pleaded guilty. That is because an accused person may enter a plea of guilty for reasons other than a belief as to their guilt. A person may plead guilty for many reasons, for example, to avoid publicity, to protect family, or to obtain the benefits of a discount at sentencing for a plea of guilty: Meissner.
A conviction based on a plea of guilty may be set aside on the basis that an appellant satisfies the court that he had an arguable defence with a reasonable prospect of success: Glover v Reyne [2001] WASCA 305.
A fact to consider is whether when the plea was entered the accused had the benefit of legal advice: Wright v McMurchy [2012] WASCA 257.
A distinction is to be drawn between argument or advice to a client by a lawyer to plead guilty and improper pressure or harassment. Reasoned argument or advice from a lawyer, not amounting to improper pressure or harassment, no matter how strongly given, does not involve the use of improper means and does not distract from the accused's ability to make voluntary choices as to whether to plead guilty.

The application

The sole ground for the application is that Mr Messiha says his lawyer coerced his plea of guilty, thereby depriving him of his ability to exercise his free will.

The evidence

The evidence heard in the application consisted of the affidavit of Mr Messiha sworn 22 January 2024 (the affidavit) and his oral evidence given at the directions hearing on 27 March 2024. The court record and the prosecution brief are also materials to be considered.
Mr Messiha is unrepresented. Accordingly, a degree of latitude was extended to him in respect of the exhibits he tendered. For example, he would tender one page of a witness statement and not the statement in its entirety.

Mr Messiha's affidavit of 22 January 2024

Mr Messiha claims that he 'believed he was coerced' into changing his plea by his then legal representative.
He says that two weeks before the trial he spoke to Mr Catalano on the phone to discuss the evidence. Mr Messiha says he raised a query about the police switching off the search video whilst a locksmith attempted to open the safe where the drugs the subject of count 3 were located and Mr Catalano told him it did not matter.
Mr Messiha says that he was told approximately 20 times during the phone call that Mr Catalano could see the jury was going to find him guilty. He maintained that he told Mr Catalano numerous times he had no knowledge of the drugs. He says Mr Catalano was dismissive and did not care about his case. He even accused Mr Catalano of working for the police.
Mr Messiha says about one week before the trial he again spoke to Mr Catalano who advised him that the Director of Public Prosecutions (DPP) wanted to make a deal, and they would drop everything else if he pleaded guilty to count 3.
Mr Messiha responded that he would plead guilty to the rest of the counts on the indictment if the prosecution dropped count 3, to which Mr Catalano responded that the DPP would not do that. Mr Catalano told him he was 100% sure the jury were going to find him guilty. Mr Messiha says Mr Catalano had an uncaring tone.
Mr Messiha says that he spoke to Mr Catalano about seven to eight times by telephone in the week before the trial and recalls being told that he would be found guilty by the jury and that he should take the plea deal.
On 7 August 2022 being the first morning of the trial, he said he spoke to Mr Catalano and his paralegal downstairs. Mr Catalano expressed concern about what Mr Messiha would say when he gave evidence. Mr Messiha says he told Mr Catalano that he did not know where the drugs came from. He queried Mr Catalano as to whether the CCTV footage showed two people being at the warehouse and queried why the CCTV footage then went blank. He says that Mr Catalano told him not to worry about it.
Mr Messiha says that his mental health was wrecked. He was anxious as his lawyer was not following his instructions.
Mr Messiha says that on 8 August Mr Catalano brought a piece of paper to him telling him he was pleading guilty, and to sign the paper so the judge could make the deal. He said, he did not have his glasses on, and Mr Catalano did not read the document to him, and whilst he did not know what it said he felt he had no choice but to sign.
Mr Messiha says that later when they were in court he said to Mr Catalano in front of his paralegal that he wanted his signature back to which Mr Catalano said 'I can't give it to you', which he understood to mean that he could not change his plea because he had signed the paper.
Judge Barone then read the two charges to him, and he pleaded guilty because he had no choice.
Mr Messiha says Mr Catalano did not follow his instructions, did not prepare his defence, did not organise his witness and kept on repeating to him that the jury would find him guilty and put it into his head that he was guilty.
Mr Messiha says he always maintained his innocence throughout his dealings with Mr Catalano and still does.

Mr Messiha's evidence

Mr Messiha agreed that Mr Catalano told him that all of the evidence pointed to him being guilty.
Mr Messiha agreed that about one and a half weeks before the trial Mr Catalano advised him that the DPP had made a plea offer and told him to take the deal because based on all of the evidence Mr Catalano believed he would be convicted.
Mr Messiha said that although he did not want to plead guilty to anything, he told Mr Catalano that he would plead guilty to everything except the trafficking charge. He said he was just joking, but there is no evidence that he told Mr Catalano he was joking. He agreed he instructed Mr Catalano to make that counteroffer.
Mr Messiha said he spoke to Mr Catalano about the plea deal both on 7 and 8 August and Mr Catalano told him all the fingers are pointing at him, the gear was in his safe, in his workshop, and referred to his fingerprint, an envelope with his DNA and a prescription in his name also being located inside the safe. Significantly these conversations which occurred over two days were not referred to in Mr Messiha's affidavit.
Mr Messiha said that on 8 August Mr Catalano told him it was a good deal, to take it, it would easier for him, and he was doing the right thing and said 'mate, they're going to find you guilty, they're all police witnesses and I have not got much to cross examine them on'. Mr Messiha said that when he asked Mr Catalano about his witnesses, Mr Catalano would not reply. He said Mr Catalano kept repeating that it was a good deal, and he was doing the right thing by pleading guilty.
Mr Messiha said he was confused and told Mr Catalano that he had no knowledge of the drugs but ultimately, said 'do whatever you want to do, let's go'. He said he pleaded guilty to finish off that day and hurry up and because he was scared. He just wanted to get rid of Mr Catalano 'from his face' and was scared of disrespecting the judge. He later told Mr Catalano on 8 August that he did not want him to act but it took him until November to get rid of Mr Catalano.
Mr Messiha said that when he signed the 'instructions' his brain was not functioning properly, and his head was all over the place. He did not know what he was signing and did not understand it but signed it because of the pressure and did not know he was pleading guilty to the charge.
Mr Messiha did not dispute that he told Mr Catalano he was pleading guilty but says he changed his mind and regretted entering the plea the very day he entered it, and wanted to go to trial. He said there were 'no strong prospects' of being convicted. He maintained that he told Mr Catalano that he wanted his signature back and Mr Catalano said that he was not going to give it back. He said he told Mr Catalano he had no knowledge of this charge but could not recall when that was said.
He agreed that Mr Catalano followed his instructions by requesting a psychological report and he knew that by pleading guilty to the one charge the other charges were being discontinued and took on board that he would get a lesser sentence for a plea of guilty.
Mr Messiha said he understood that by his plea he was accepting possession of the drugs but says he did not comprehend that he was pleading guilty to the possession with intent to sell or supply or trafficking.
He tendered an exhibit, a letter sent to him dated 8 August 2023 from Mr Catalano.
Mr Messiha said Mr Catalano never followed his instructions to challenge the electronic record of interview. He told Mr Catalano he had been smoking cannabis and had taken medication and had not finished the interview as a result of chest pain and told him the police had threatened that if he did not do the interview he would go to jail. I note that in the visual record of interview (conducted on 10 December 2020) Mr Messiha told the police that about half an hour before he had smoked cannabis and he did not know if that affected him in any way but when asked if he was okay to sit and talk replied, 'let's get this done'. Mr Messiha also told the police he had taken medication but maintained he was 'alright' - and after telling the police he had chest pains, chest tightness and shortness of breath told the police its 'all good and to get on with this' and maintained he was alright and repeatedly said 'it will be right for now and let's get this done' (pages 5 ‑ 9).
He said that he did not agree with the sentencing basis that Mr Catalano referred to in his letter of 8 August 2023.

Findings on Mr Messiha's evidence

Mr Messiha's evidence, I find, was tailored to support his case that improper pressure was brought to bear on him by his lawyer.
Mr Messiha has not persuaded me that he was coerced into pleading guilty by Mr Catalano or that the latter placed improper pressure on him such that his will was overborne because I do not accept Mr Messiha's evidence in relation to what Mr Catalano said or did is reliable or accurate.
Mr Messiha's evidence is in some areas inconsistent with his affidavit.
In his affidavit, he swears that he pleaded guilty to two offences on 8 August 2023 being possession of stolen or unlawfully obtained property and possession of a trafficable quantity of methylamphetamine with the intent to sell or supply.
This is demonstrably incorrect. He pleaded guilty only to the trafficking charge. It is an example of Mr Messiha swearing an affidavit which contains inaccurate material.
In his affidavit he says that in a phone call two weeks before the trial Mr Catalano said 'maybe' 20 times, 'I can see the jury is going to find you guilty'. In cross-examination he agreed that this was said to him over a two-week period and not in the one phone call.
In his affidavit he makes absolutely no mention whatsoever that Mr Catalano said he could not act for him. In his evidence he says Mr Catalano said this to him and he told Mr Catalano to 'f' off.
Mr Messiha's evidence is in some areas demonstrably incorrect.
In his evidence Mr Messiha said he instructed Mr Catalano to do many a thing and 'nothing's been done'.
This is demonstrably incorrect. Mr Messiha agreed that on his instructions Mr Catalano put a plea proposal to the DPP, drew their attention to the gaps in the CCTV footage, advised the DPP of what parts of the CCTV the defence wished played during the trial and was in the process of editing the two search videos and seeking clarification of which telephone messages would form part of the State's case (Exhibit 1 and Exhibit 2) and called for a psychological report for sentencing. Mr Catalano also sought from the State the footage they claimed to have of Mr Messiha and a third party. The court record shows Mr Catalano discussed and agreed edits to Mr Messiha's electronic record of interview and made submissions to Judge Barone about further edits.
Many of those issues were raised by Mr Catalano on what should have been the first day of the trial. It is not necessary for the purposes of this application to determine whether Mr Catalano had made those requests previously and they had not been answered by the State or whether this was the first time the requests were made.

The significance is that Mr Messiha's evidence that Mr Catalano had done nothing is incorrect. Mr Messiha was aware that Mr Catalano had put a plea proposal to the DPP and was discussing edits to his electronic record of interview, as the latter was done in his presence. He also agreed that he had been asking Mr Catalano about and instructed him in relation to the missing portions of the CCTV footage. Mr Messiha, I find consistently downplayed Mr Catalano's efforts on his behalf. Either he is deliberately minimising Mr Catalano's efforts or on the most favourable interpretation for him, he is not an accurate historian about the events surrounding Mr Catalano's representation.
Mr Messiha misunderstands, or misconstrues witness written statements.
For example, in Exhibit 13, Detective Grace states that on 1 March 'I received footage extracted from the CCTV hard drive, which was seized from 12 Capital Road, Malaga on 16 November 2020. I conducted a review of that footage with Detective Lawson'. Mr Messiha misconstrues this as being a statement from Detective Grace that he reviewed the footage on 1 March.
Detective Slivkoff's statement (Exhibit 17) says that on 26 November 2020, he obtained a search warrant for the Mercedes that had been impounded on 16 November 2022 and arranged to have the vehicle examined and at 5:42 pm a search of the vehicle was conducted. This is misconstrued by Mr Messiha as Detective Slivkoff stating that the search of the vehicle was conducted on 16 November 2020.
These are two examples where Mr Messiha has interpreted the statement in a manner which is either inconsistent with the written statement (Exhibit 17) or in a manner which suits his purposes where the statement is, at the most favourable for him, ambiguous (Exhibit 13).
Mr Messiha's misinterpretation or misunderstanding of written statements causes me to be cautious of the accuracy of his evidence when he recounts verbal conversations involving Mr Catalano.
Significantly in his affidavit Mr Messiha makes absolutely no mention whatsoever that Mr Catalano had discussed with him on both 7 and 8 August the methylamphetamine (Gear) being found in the safe at his workshop, Mr Messiha's DNA and fingerprints being found on objects inside that safe and the prescription in his name found inside that safe. Mr Messiha agreed that those matters had been discussed with him on both 7 and 8 August and yet there is no mention of them in his affidavit. It shows Mr Messiha is prepared to swear an affidavit which omits crucial details of Mr Catalano's advice to support his application.
Mr Messiha's evidence that he thought he was pleading guilty to possession (ts 248) and did not comprehend that he was pleading guilty to possession of a trafficable quantity of methylamphetamine with intent to sell or supply because all he heard was possession, is implausible. It flies in the face of his plea bargain counterproposal and his knowledge that the trial was all about that serious charge. That was the whole focus of the trial. His evidence in that regard is simply implausible and leads to the inference that he is clasping at anything to convince the court to change his plea.
I found Mr Messiha's evidence that he made the counteroffer as a joke implausible. He agreed that he instructed Mr Catalano to make the counteroffer. Mr Messiha's reference to the counteroffer being a joke, I find, was an effort to explain away his preparedness to plead guilty to some of the charges. I find that Mr Messiha was prepared to downplay his preparedness to plead guilty to any charge and minimise anything which he considers may be a barrier to the success of his application.
I found Mr Messiha's evidence relating to the 'instructions' he signed implausible. He said he did not know what he was signing, did not understand it, and did not know he was pleading guilty to the charges. The instructions were not produced in evidence. The inference to be drawn from the discussions which took place on 7 and 8 October and Mr Messiha's statement in the affidavit that Mr Catalano said, 'sign here, this is for the judge to make the deal' and his evidence that he instructed Mr Catalano to plead guilty to finish off the day is that he knew that the document contained instructions to plead guilty to count 3.
The implausibility of those parts of Mr Messiha's evidence, the inconsistencies between his evidence and affidavit, his efforts to consistently downplay Mr Catalano's efforts on his behalf, his misunderstanding or misconstruing of written statements, his failure to fully disclose in his affidavit matters that Mr Catalano discussed with him, lead me to conclude that I cannot rely on Mr Messiha's evidence that improper pressure was put on him to plead guilty by Mr Catalano.
The court has not heard from Mr Catalano. The DPP advised that they had issued a subpoena, but the subpoena was not served. No ruling was sought by Mr Catalano that legal professional privilege had been waived. The onus is on Mr Messiha to satisfy me on the balance of probabilities that Mr Catalano coerced him to enter a plea of guilty. I am not satisfied of the accuracy or reliability of the evidence given by Mr Messiha as to the conversations which took place between him and Mr Catalano.
The basis of Mr Messiha's application is not that he did not understand the nature of the charge or intend to plead guilty or could not in law be guilty of the offence. He says his plea was obtained by improper coercion by his lawyer.
However even if Mr Messiha was unable to establish that the guilty plea had been obtained by coercion or improper conduct by his lawyer the court will set aside the guilty plea if he establishes that there had been a miscarriage of justice.
Accordingly, it is necessary to examine the strength of the State's case. The strength of the State's case may also be relevant in considering + it rather than his lawyers conduct was the real motive for entering the plea: R v Nerbas [2011] QSC 41.
A locked safe contained approximately 1.5 kg of methylamphetamine and a large amount of cash was located in the bedroom of the premises that Mr Messiha told the police he was staying at. A key to those premises was located on a key ring when he was intercepted in his Mercedes motor vehicle earlier that day. When that vehicle was intercepted, it is alleged that he was in possession of an encrypted phone and digital scales were also located in the vehicle.
Inside that safe in addition to the methylamphetamine there was DNA on an envelope that matched Mr Messiha's DNA profile. A fingerprint of Mr Messiha's was on an internal shelf and a prescription in Mr Messiha's name was inside the safe. There was also a set of keys belonging to Mr F.
The containers used to store the methylamphetamine located in the safe were of a similar type to containers located in the kitchen of the residence that Mr Messiha told police he was staying at.
A photo on Mr Messiha's phone showed him holding a large bundle of cash (which Mr Messiha said in his submissions was over $130,000) next to what the State say is the same safe that the methylamphetamine was located in. It is not suggested that this photograph was taken on the day of the police raid.
Indicia of drug dealing including Cryovac bags, a Cryovac sealing machine, tick list, clip seal bags and a cutting agent were found in the residential part of the warehouse/residence that Mr Messiha told the police he was working from and staying at.
Telephone downloads of a phone belonging to Mr Messiha had messages consistent with drug dealing.
CCTV footage from the warehouse/residence shows Mr Messiha involved in activities consistent with drug dealing including on 15 November when Mr Messiha is shown handing a large amount of money and a clip seal bag containing white powder to Mr F, and on 16 November when he is seen making an exchange of bags with an unknown male at the front of the premises.
The essential elements of possession, being knowledge, custody or control over the drug and intention to exercise custody or control of the drug could be inferred from the combined weight of this evidence and the certificates contained in the prosecutorial brief establish both the weight and that the drug was methylamphetamine, activating the presumption of an intent to sell or supply and establishing a trafficable quantity.
Mr Messiha says the State's case was not strong and he relies on the following.
His complaints to the Law Society and the Legal Practice Board about Mr Catalano (Exhibit 4). The mere fact of a complaint is not proof that the matters complained about are in any shape or form substantiated.
Mr Messiha refers to a number of alleged inconsistencies in witness statements or affidavits.
He refers to an inconsistency as to where he was arrested on 10 December 2020 in that Detective Auckland's affidavit says he was arrested at the door of the unit; Detective Grace's statement says he was arrested at the foyer and Detective Slivkoff's statement refers to the arrest occurring at the ground floor/lobby (Exhibit 5).
Leaving aside the issue of whether the foyer and ground floor/lobby are the same location, there is certainly inconsistency between the police evidence as to where Mr Messiha was arrested.
Another inconsistency relates to the amount of money located in the safe with the methylamphetamine the subject of count 3. Detective Auckland's affidavit refers to $28,130. Mr Messiha points to the incident report which refers to $26,730 having been counted. There is reference in the same incident report to money being 'uncounted at time of seizing' (Exhibit 6). It is not apparent from the incident report whether there was $26,730 plus another amount that was uncounted at the time of seizure or if money was uncounted at the time of seizure and later counted to be $26,730.
Mr Messiha has established the inconsistency in relation to recording the amount of money that was seized. That inconsistency may go to the credibility of the police involved and the thoroughness or inaccuracy of the police investigation. The State argues that the quantity of cash is not an element of the offence in respect of the charge relating to that cash and in any event the charge was discontinued.
Mr Messiha also says from the bar table that there was another $130,000 in the safe that was not photographed.
Another inconsistency relied upon by Mr Messiha is where powder was located on his person during a search. Detective Auckland refers to the powder being located in Mr Messiha's shorts. Detective Harmer refers to the powder being located in his underwear (Exhibit 9).
In addition to the inconsistency, Mr Messiha says the fact that ambulance officers conducted the search and not police officers is a matter requiring explanation. The State says that this discrepancy occurred simply because the police officers who provided the statements did not conduct the search as it was conducted by ambulance officers and any inconsistencies as to where the powder was located is of no significance to the elements of count 3.
Another alleged inconsistency relates to when the CCTV footage of the premises was reviewed. Mr Messiha says that Detective Grace's statement says it was reviewed on 1 March and Detective Auckland's affidavit says that Detective Grace reviewed the footage on 29 April (Exhibit 13).
There is in fact no inconsistency because a closer reading of Detective Grace's statement says that he received the footage on 1 March and the statement continues that he conducted a review of the footage, but the statement does not say the date that he conducted the review (Exhibit 13).

A further inconsistency relied upon by Mr Messiha relates to when the Mercedes vehicle which he was driving was searched. Mr Messiha says that Detective Slivkoff's statement refers to it being searched on 16 November, yet Detective Auckland's statement refers to it being searched on 26 November (Exhibit 17).
Detective Slivkoff's statement is that on 26 November, he was on duty and he obtained a search warrant to search a vehicle that had been impounded on 16 November and then searched the vehicle. The reference to the vehicle being searched clearly relates to 26 November, 16 November being the date it was impounded. There is no inconsistency established.
Mr Messiha points to other persons having access to the safe where the approximately 1.5 kg of methylamphetamine was located and other matters relating to the safe. Exhibit 7 establishes the keys of Mr F were located inside the safe. This is entirely consistent with the State's case of joint possession.
Mr Messiha says Mr F was interviewed by the police but not charged (Exhibit 12) in circumstances where his keys were located inside the safe (Exhibit 7). On Mr Messiha's evidence, the $130,000 that Mr Messiha was photographed with outside the safe was in fact Mr F's (Exhibit 8), and the CCTV footage shows Mr F at the warehouse hiding next to an adjoining business and hiding a cyberphone on 16 November (Exhibit 14).
The fact that Mr F was not charged does not reflect on the strength of the State's case against Mr Messiha. The fact that others had access to the safe, access to the premises and at the highest for Mr Messiha access to the $130,000 was not inconsistent with the State's case against Mr Messiha.
Mr Messiha also points out that in relation to the safe being open, there is no statement from the locksmith who opened it and there is no video of the safe being drilled and opened (Exhibit 18). The State says that there are two statements from the police officers present during the drilling and when the safe was opened.
Mr Messiha points out that the summary of the CCTV footage of 15 Capital Road, Malaga (Exhibit 14), being the premises where the drugs were located shows that nothing was recorded between approximately 2.00 am and 9.30 am and he says this is evidence that the CCTV footage had been tampered with. He says from the bar table that GW and RH visited those premises from about 2.30 am and departed at 9.00 am and alleges that GW was a relative of Detective Grace.
The CCTV footage not recording any vision for a long period of time, is relevant to whether other people accessed the unit at the time. Similarly, the movements and activities of Mr F, GW and RH are relevant to whether other people accessed the premises, but they do not detract from the evidence that the State has against Mr Messiha, and in a case of joint possession, the fact that other people had access to the premises or indeed the drugs is entirely consistent with the State's case. Exhibits 1 and 2 show that Mr Catalano was aware of these issues and had raised some of those issues with the State as Mr Messiha said he had instructed him to.
Mr Messiha says that the police failed to disclose in Detective Auckland's affidavit (Exhibit 10) the address in Scarborough that he stayed at for two and a half weeks from the time he decamped from the ambulance on 16 November to the time of his eventual arrest on 10 December.
The State is unsure of the relevance of this and when one reads the affidavit of Detective Auckland, it gives a list of addresses the police attended in an attempt to locate him and is not purported to be a list of where Mr Messiha was staying. The ready inference to draw is that they did not attend at the address in Scarborough because they did not know he was staying there.
Mr Messiha says that the Scarborough address he was staying at was GW's address and she is related to a detective involved in the investigation. Mr Messiha says this is evidence the police were hiding something.
Mr Messiha says that the taxi logs (Exhibit 14) do not show that he was picked up or dropped off at the Scarborough address. Some of the address locations in Exhibit 14 are in latitude and longitude and it is not clear exactly which address they relate to.
The evidentiary context relevant to these matters is that the police located the drugs the subject of count 3 in a safe in the warehouse and arrested Mr Messiha in a motor vehicle in Malaga. Shortly after his arrest Mr Messiha complained of chest pains and requested medical attention and was unarrested and released to a St John of God ambulance team. That team assessed him and located a small satchel of white powder on his person, shortly after which Mr Messiha spoke to a person on the phone in Arabic and then said he wanted to leave the ambulance, pulled off the monitoring equipment, and left the ambulance despite being told he could be transported to the emergency department. For the next two and a half weeks, from the time he decamped from the ambulance on 16 November to the time of his eventual arrest on 10 December, he says he was staying at an address in Scarborough. Where he was staying for those two and a half weeks has no bearing on whether he was in possession of the 1.5 kg of methylamphetamine the subject of count 3.
Mr Messiha draws attention to Detective Auckland's affidavit which says that a staff member of Airbnb accidentally called Mr Messiha when they intended to call the police (Exhibit 11). This is inadmissible hearsay and could not be lead at the trial. Mr Messiha says it is not in dispute that the room being referred to was not booked in his name and therefore Mr Messiha says the statement by the detective is untrue and reflects on the officer's credibility.
Mr Messiha also points out that Exhibit 20 establishes that there was no request for CCTV footage from the McDonald's drive-through on 16 November 2020. The State makes the point that there is no charge relating to McDonald's and this issue has no relevance to any count on the indictment. I struggle to understand the relevance of that point.
Mr Messiha submits that Detective Grace's statement says that he searched the All Suites Hotel room on 10 December 2020 with two other officers after he arrested Mr Messiha (Exhibit 16). Mr Messiha says that the detective never left his side and in fact later took him up to the room. If it is established that the officer's evidence was incorrect it does not relate to an element of count 3. Although I accept that in a general sense it would go to the credibility of the police officers. The State makes the point this is only relevant to count 5 which was discontinued.
Mr Messiha submits that Detective Coates' statement (Exhibit 19) relating to the manner of intercepting Mr Messiha's Mercedes vehicle is incorrect. If it is established the officer's evidence was incorrect it does not relate to an element of the offence. Although I accept that in a general sense it would go to the credibility of the police officers.
Mr Messiha says that he complained to the Crime and Corruption Commission about a detective involved in his case and that after that complaint the detective left the police force. The fact that a complaint has been made is not evidence of any truth of the complaint. The fact a detective has left the police force by itself establishes nothing.
Mr Messiha also says that the original warrant was issued for Mr F who was the target of the operation. Who was the original target has no relevance to the strength of the State's case against Mr Messiha.
Mr Messiha also says that he requested Mr Catalano to obtain an independent forensic report because the various statements of material facts and police statements give different weights for the drugs seized. The certificates of analysis, which are the evidence as to the composition of the drugs and their weight, are contained in the prosecution's brief.
In addition, Mr Messiha relied on Exhibit 15 which are his written submissions. In those submissions he draws attention to his difficulties with Legal Aid, his unrepresented status and his desire to obtain bail. Mr Messiha said that he had instructed Mr Catalano on all of the matters contained within Exhibit 15 prior to entering his plea of guilty.

In Exhibit 15 Mr Messiha makes a number of accusations and complaints against Mr Catalano that are not relevant to the issue.
He says that Mr Catalano was aware of his mental health difficulties, including suffering from confusion, poor memory and cognitive difficulties and being overwhelmed when placed under pressure. This is given no weight by me as it is opinion evidence from Mr Messiha. He does not detail any facts establishing the bases for that so‑called knowledge by Mr Catalano.
In relation to matters pertaining to the strength of the State's case I have dealt with most of those issues raised in Exhibit 15 (Mr F's keys being found in the safe, where Mr Messiha was arrested, the search of the All Suites Hotel room, the Airbnb call, taxi records, GW's alleged relationship to one of the investigating officers, non-disclosure of CCTV footage, the absence of the locksmith's statement and footage of the safe being drilled open, and an independent drug report).
Mr Messiha also draws my attention to a police statement saying 28.5 g of cannabis was found and the material facts saying it was 40 g of cannabis. This related to a discontinued charge and has no direct bearing on whether he was in possession of the 1.5 kg of methylamphetamine.
The sole ground of Mr Messiha's application is that he entered a plea of guilty as a result of improper pressure placed on him, but his submissions seemed to be suggesting that based on the evidence he could not be convicted of the offence. I reject that submission. It was a strong prosecution case and clearly in law he could have been convicted of this offence.
Where Mr Messiha was arrested on 10 December 2020 and when and who searched his hotel room on that date has no bearing on whether he was in possession of the drugs the subject of count 3 on 16 November 2020 at a different location.

The failure of the police to disclose the address that Mr Messiha was staying at for two and a half weeks after he decamped from the ambulance on 16 November 2020 and the absence of taxi records showing he was collected or dropped off at that address has no bearing on whether he was in possession of the drugs the subject of count 3 on 16 November 2020. Nor does the absence of footage from that date of the McDonald's drive-through.
Similarly, whether powder was located in his underwear or his shorts and the reasons why ambulance officers searched him rather than the police on 16 November 2020 and the manner of the interception of his vehicle on that date has no bearing on whether he was in possession of the drugs the subject of count 3 on 16 November 2020.
The fact that Mr F's key was located in the safe and Mr F was not charged, his access or ownership of the $130,000 that Mr Messiha was photographed with (if established), the absence of CCTV footage which may lead to the inference that Mr F and others had access to the safe and its contents is not inconsistent with the State's case that Mr Messiha was in joint possession of the drugs the subject of count 3.
Taken at its highest for Mr Messiha, even establishing other people had access to the warehouse and drugs (based on Mr F's presence at or near the warehouse, keys being in the safe and alleged ownership of the money shown in the photograph, if established) and others were involved in drug dealing (based on the matters I have just referred to and Mr F's presence and activities on 16 November and photos and movements of GW and RH during the missing part of the CCTV footage of 16 November, if established) is not inconsistent with the State's case and some matters that Mr Messiha thought may be favourable to him such as the photograph with what, on his evidence, was $130,000 worth of money which he was holding for somebody else, on one view actually lend support to the State's case that he was involved in drug dealing (subject to that evidence being admissible for those purposes).
The absence of a statement from the locksmith and a video of the police actually drilling open the safe, in circumstances where there are 'still photographs' of the opened safe door and its contents and police officers' statements that they were present whilst the safe was drilled open, does not satisfy me that there has been a miscarriage of justice.
Mr Messiha complaining to the Law Society, the Legal Practice Board, and the Crime and Corruption Commission, and the resignation of a detective from the police force (if established) has no bearing on whether he was in possession of the drugs the subject of count 3 on 16 November 2020.
The mystery surrounding the Airbnb call (if established by admissible evidence) and the discrepancy in relation to the amount of money located in the safe where the drugs were located, either by themselves or in combination with all the other matters raised by Mr Messiha, do not satisfy me that there has been any miscarriage of justice and the State's case in my view can be correctly described as strong.

Conclusions

I find that at all material times, Mr Messiha was legally represented.
I find that Mr Messiha was aware of the nature of the charges, and aware of the seriousness of the charges, and the evidence against him.
I find that Mr Messiha had drawn to Mr Catalano's attention what he says are the deficiencies in the State's case which he articulated in this application and in Exhibit 15.
I find that Mr Catalano was entitled and indeed required to give legal advice and I find that he made it clear to Mr Messiha that based on the evidence his assessment of the case was that a jury would find him guilty. I find this was repeated by Mr Catalano on numerous occasions.
I find that Mr Messiha was aware of and had discussed with Mr Catalano on numerous occasions over a period of approximately at least a week and a half before the commencement of the trial, the plea proposal offered by the prosecution.
I find that Mr Messiha gave instructions to Mr Catalano to make a counteroffer.
I find that Mr Messiha understood that by pleading guilty the other charges on the indictment would be dropped and he would receive the benefit of a reduced sentence in respect of the count to which he pleaded guilty.
I find that he understood that he was pleading guilty and instructed Mr Catalano that he would plead guilty to count 3 and understood that the result would be that he was to be sentenced and he instructed Mr Catalano to obtain a psychological report to assist in sentencing.
I do not accept Mr Messiha's evidence that his will was overborne. I find that he regrets his plea of guilty and falsely attributes blame for his voluntary plea to improper pressure from his lawyer.
I am not satisfied that there was any improper pressure brought by Mr Catalano, nor am I satisfied on the balance of probabilities that any miscarriage of justice has been established.
Robust advice given to an accused is not improper conduct.
Mr Messiha has not established that on the balance of probabilities a miscarriage of justice has occurred. I dismiss the application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KH
Associate
17 APRIL 2024