Alhassan v R [2017] NSWCCA 73

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Alhassan v R [2017] NSWCCA 73 Hearing dates: 3 April 2017 Decision date: 20 April 2017 Before: Leeming JA at [1]; RA Hulme J at [28]; Beech-Jones J at [29]. Decision: 1. Extend the time within which to apply for leave to appeal to 14 November 2016. 2. Grant leave to appeal. 3. Appeal allowed. 4. Set aside the guilty verdict on count 1, and set aside the sentence imposed on 31 March 2016. 5. In lieu thereof, substitute a verdict of guilty of an offence under s 25(1) of the Drug (Misuse and Trafficking) Act 1985 (NSW), and remit the proceedings to the District Court for the imposition of sentence. 6. The proceedings be listed for mention in the District Court, at Parramatta, on Thursday 27 April 2017. Catchwords: CRIMINAL LAW - conviction appeal - supply of commercial quantity of prohibited drug - applicant charged with supply of commercial quantity of methylamphetamine and with supply of cocaine - both drugs found in vehicle owned and driven by applicant - jury convicted on first count and acquitted on second count - whether verdicts inconsistent - whether conviction on first count unreasonable - whether prosecution had shown to criminal standard that applicant knew or believed that the transaction involved a commercial quantity of a prohibited drug - appeal allowed and different verdict substituted Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 5, 6, 7 Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 32, 33, 44 Cases Cited: Allan v R [2017] NSWCCA 6 MacKenzie v The Queen (1996) 190 CLR 348 Nguyen v R [2015] NSWCCA 78 R v Baden-Clay [2016] HCA 35; (2016)90 ALJR 1013 Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 Yousef Jidah v R [2014] NSWCCA 270 Category: Principal judgment Parties: Hudu Abdulai Alhassan (Applicant) Regina (Respondent Crown) Representation: Counsel: P Lange (Applicant) M Cinque SC (Respondent Crown)

Solicitors: O Juweinat (Applicant) C Hyland (Respondent Crown) File Number(s): 2012/00105672 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 31 March 2016 Before: Colefax DCJ File Number(s): 2012/00105672

Judgment 1. LEEMING JA: The applicant, Hudu Abdulai Alhassan, seeks leave to appeal from his conviction on one count of supplying a large commercial quantity of a prohibited drug, namely, 1980.7 grams of methylamphetamine. He was tried in the District Court before a judge and jury of 12 on an indictment that also included a count of supplying 184.2 grams of cocaine. The jury returned a verdict of not guilty on the latter count. 2. The single ground of appeal is that the guilty verdict on the first count was unreasonable within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW). That ground had two aspects: 1. that the evidence did not support a finding beyond reasonable doubt that he knew or believed that there was a large commercial quantity of a prohibited drug in his vehicle, and 2. that the verdict was inconsistent with the acquittal on count two. 1. The applicant requires a minor extension of time within which to seek leave to appeal. The explanation is that there were difficulties obtaining the transcript and the judge's summing up. The explanation is reasonable, and the proposed grounds of appeal are not without substance. In the circumstances there should be an extension of time. 2. Neither ground involves a question of law alone, and so in accordance with s 5 of the Criminal Appeal Act 1912 (NSW), leave is required for both. 3. The events in question took place on the afternoon of 3 April 2012 in Bankstown in south western Sydney. Between 1.40pm and 2.02pm that afternoon, unchallenged surveillance evidence established the following matters: 1. At about 1:40pm, the applicant arrived at a block of units at Meredith St Bankstown driving a black Jeep Cherokee. He walked into the driveway of that block of units. There was no dispute at trial that Moses Alozie lived in that block. 2. At about 1:45pm two men (Icechukwu Ojimba and Kelvin Ndiokwelu) left the block of units in a white Toyota Corolla and drove to nearby premises at Reynolds Avenue Bankstown, some 300 metres away. The Corolla was parked on the street and the men entered the premises (where surveillance did not capture what they did). 3. The applicant followed the Corolla for a short period of time in his Jeep, but returned to the Meredith St block of flats and drove down the driveway. 4. Ojimba and Ndiokwelu returned from the premises on Reynolds Avenue, with Ojimba carrying a white shopping bag which he had not previously been carrying. They got into the Corolla and returned to Meredith St and drove into the driveway of the block of flats at 1:52pm. 5. As will be seen, a white shopping bag containing some 1.9kg of methylamphetamine ultimately made its way into the applicant's Jeep. There was no surveillance evidence establishing precisely when this occurred. There is a very powerful inference that this took place when both the Corolla and the Jeep had driven down the driveway of the Meredith St block of flats, between around 1.52pm and 1.54pm. The agreed facts on which the applicant was sentenced included that the bag of methylamphetamine was transferred to the Jeep at this time. On one view, that inference is the most favourable available to the applicant, because the alternative is that the methylamphetamine was in his vehicle for a considerably longer period prior to the attempted transaction with the undercover operative at the Three Swallows Hotel. However, there was no evidence that the applicant himself at any stage physically handled the bag containing the methylamphetamine. 6. At about 1:54pm, the applicant drove the Jeep from the driveway of the Meredith St block of flats and stopped and parked immediately outside until, at around 1:56pm, the Corolla drove down the driveway, turned northwards and headed towards the Princes Highway. 7. The applicant in the Jeep then followed the Corolla northwards to the Princes Highway and then to the Three Swallows Hotel in Bankstown. 8. The Corolla entered the hotel carpark and parked next to a Volkswagen Golf in which there was an undercover police operative. 9. The applicant drove his Jeep into the carpark, past the Corolla and the Golf, then out of the carpark where for around 35 seconds he parked on the road. At about 1:58pm, he did a three point turn and re-entered the carpark and parked in a separate row of parking spaces directly looking onto the Golf and the Corolla. 10. At around 2pm, Alozie got out of the front passenger seat of the Corolla and walked to the Jeep, where the applicant remained sitting inside. Alozie opened the front passenger door and appears to have gotten into the Jeep. 11. Some 15–20 seconds later, Alozie left the Jeep carrying the white shopping bag of methylamphetamine in his left hand. He returned to the Golf, got into the front passenger seat and handed the bag to the undercover operative. A recording device hidden inside the Golf recorded a short conversation between the two men, in which the undercover operative sought confirmation that the methylamphetamine supplied was "gold class". 1. Seconds thereafter, officers from the Tactical Operations Unit arrested Alozie. As the officers emerged the applicant fled in the Jeep, driving at speed, nearly colliding with an oncoming vehicle (which was driven by a police officer) and then crashing into a fence. The applicant left the car and fled on foot. He was ultimately arrested in a shop in a nearby building. 2. In addition to the methylamphetamine the subject of the guilty verdict, there was also located in the rear pocket of the front passenger seat of the applicant's Jeep a black plastic bag containing 184.2 grams of cocaine. 3. The applicant gave evidence and was cross-examined at the trial. He maintained that he was a friend of Ojimba and intended to give him a lift to the airport. He said that he was not involved in the supply of drugs, and that someone else had put the methylamphetamine and cocaine in his Jeep without his knowledge. He said that he met Ojimba at Meredith St, and initially followed the Corolla but lost them at the roundabout, and so returned to Meredith St. He denied he was performing counter-surveillance. He could not recall why, after following the Corolla to the carpark of the Three Swallows Hotel, he left the carpark, parked on the street, and then returned to the carpark. He denied checking that he was being followed by police. He said he took the first available parking spot. He said that he was using his mobile phone when Alozie came to his car, opened the front passenger door, and removed the white bag very quickly. 4. The applicant denied knowing that the police were pursuing him until he was arrested. He said he panicked because he saw men running with uniforms, helmets and guns. 5. The applicant called Ojimba in his case, who maintained that the applicant was "absolutely innocent of all this". He also called character evidence from a former police officer who had known the applicant for some nine years and regarded him as "one of the straightest guys I've met since I've been here in Australia".

Inconsistency of verdicts 1. It is appropriate to deal with ground 2 first, because if accepted, it would lead to an acquittal. 2. The test to be applied is "one of logic and reasonableness": MacKenzie v The Queen (1996) 190 CLR 348 at 366. Gaudron, Gummow and Kirby JJ added that "if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted". In Allan v R [2017] NSWCCA 6 at [84], it was said (by Harrison J, Gleeson JA and Campbell J agreeing) that: "It is not to be assumed too readily that a difference between verdicts returned inevitably demonstrates a want of credibility in the complainant or central witness: R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [219]. In Wingrove-Pryce v R [2014] NSWCCA 290 Hoeben CJ at CL observed at [42]: 'As the authorities cited make clear, the fact that an acquittal has been entered does not necessarily mean that the jury disbelieved the complainant. It may simply mean that the jury was not satisfied beyond reasonable doubt as to some element of the offence or, as was pointed out in MFA, the jury may be looking for some extrinsic element of corroboration.'" 1. This is a straightforward case. In contrast with the surveillance evidence directed to the acquisition, movement and attempted transaction involving the methylamphetamine, there was no evidence relating to the placement of the package of cocaine in the applicant's Jeep. There was no forensic evidence linking the cocaine with the applicant (indeed, there was no evidence that the packaging had been tested for fingerprints or DNA). The large majority of the evidence led at the trial was directed to the methylamphetamine. The purpose of travelling to the Three Swallows Hotel was concerned with the methylamphetamine, not (at least so far as the evidence disclosed), the cocaine. 2. It was established that the applicant was the registered owner of the Jeep, but there was no evidence that established that he was aware that the cocaine was in it. It was a much smaller package, which had been placed in the pocket behind the front passenger seat. In contrast, there was ample opportunity for the applicant to see the methylamphetamine, no later than when it was placed into the Jeep while it and the Corolla were on the driveway of the Meredith St block of units. 3. There is no inconsistency in the jury's verdicts. Although there should be a grant of leave, this ground is not made out.

Unreasonable verdict 1. Methylamphetamine is a prohibited drug. Section 25(1) and (2) of the Drug Misuse and Trafficking Act 1985 (NSW) create separate offences as follows: "25 Supply of prohibited drugs (1) A person who supplies, or who knowingly takes part in the supply of, a prohibited drug is guilty of an offence. (1A) ... (2) A person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence." 1. The penalty for the offence created by s 25(1) is 2,000 penalty units or imprisonment for 15 years: s 32. 2. In 2012, the "commercial quantity" applicable to methylamphetamine was 250g, and a "large commercial quantity" of methylamphetamine was 1,000g (the latter is now 500g, following the making of the Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015, which as authorised by s 44 of the Drug Misuse and Trafficking Act amends Schedule 1 of that Act). The penalty for the offence created by s 25(2) was 3,500 penalty units or imprisonment for 20 years, save that, if the offence involved not less than a large commercial quantity, then the maximum penalty was 5,000 penalty units or life imprisonment: s 33. 3. The mental element of the offences created by s 25(1) and 25(2) may be established by demonstrating either knowledge or belief. However, the offences are structured such that it is necessary for the Crown to prove beyond reasonable doubt that the applicant knew or believed that a large commercial quantity of methylamphetamine was being supplied before the jury could convict of the more serious offence created by s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), as opposed to the offence created by s 25(1). So much was common ground, consistently with Nguyen v R [2015] NSWCCA 78 at [41] and the cases there cited, as well as Yousef Jidah v R [2014] NSWCCA 270 at [34], where the joint judgment of Bathurst CJ, Fullerton and Davies JJ stated: "The elements of the offence under s 25(2) of the DMT Act, applicable to this case, were that the appellant attempted to obtain possession of what he believed to be a prohibited drug, for the purposes of supply in an amount not less than the large commercial quantity applicable to that drug. To establish the count, it was necessary for the prosecution to prove that the appellant attempted to take possession of the drug for the purposes of supply, knowing or believing that the substance in the 45 boxes was a prohibited drug of not less than a large commercial quantity." 1. Counsel for the Crown properly accepted that it was necessary to negative as a reasonable hypothesis the proposition that although the applicant knew or believed that he was involved in a drug transaction, he believed (wrongly) that it involved not more than one kilogram of methylamphetamine. 2. The Crown pointed to the close involvement of the applicant in leaving the Meredith St premises at the same time as the white Corolla drove to Reynolds Avenue, in driving into the Meredith St premises once the white Corolla had obtained the methylamphetamine, in following the white Corolla to the Three Swallows Hotel, in performing what were described as "counter-surveillance" activities on both occasions, and in parking nearby in the carpark of the hotel. She pointed to the urgency of the applicant's flight after the police emerged in the hotel carpark. She also pointed to serious inconsistencies and implausibilities in the testimonial evidence given by the applicant and one of his co-offenders. 3. Those submissions may be accepted so far as they go. It was amply open for the jury to reject the explanation given by the applicant and the witnesses called in his case, and to find to the criminal standard that the applicant knew that he was involved in the supply of prohibited drugs. The uncontested evidence of the movement of his car was completely inconsistent with his evidence that he only attended to provide Ojimba with a lift to the airport. In the context of the transaction that took place between the undercover operative and Alozie, the movement of his vehicle was only consistent with his having knowledge that a transaction involving prohibited drugs was to occur. On this ground of appeal, the applicant's counsel candidly accepted that the testimonial evidence in his favour might be put entirely to one side. 4. The difficulty faced by the Crown is that the powerful evidence incriminating the applicant of involvement in the supply of drugs does not of itself bear upon the question, let alone exclude as a reasonable possibility, of the applicant's belief that he was involved in a drug transaction involving less than the commercial quantity of methylamphetamine. There is nothing implausible about all of the steps (including the involvement of two vehicles and the counter-surveillance measures) which were being taken in connection with the supply of a substantial quantity of methylamphetamine, although less than the commercial quantity of that drug (say, 200 grams). 5. The fact that the jury disbelieved the applicant does not establish the Crown case. This is not a case where the applicant's testimony narrowed the range of hypotheses reasonably available on the evidence so as to exclude one which is inconsistent with guilt of the offence charged: cf R v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013 at [54] and [57]. The rejection of the applicant's case does not bear upon whether the Crown has demonstrated a knowledge or belief of the supply of a large commercial quantity, as opposed to the supply of less than a large commercial quantity of a prohibited drug. 6. Counsel for the applicant recognised that success on ground 1 would yield the substitution of a conviction for the offence created by s 25(1), which indeed had been left open to the jury in the summing up of the trial judge. Such a course is authorised by s 7(2) of the Criminal Appeal Act 1912: Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 at [23]-[25] and [43]. 7. This Court was not supplied with evidence or submissions so as to enable it to resentence the applicant in the event that the second aspect of the appeal failed but the first succeeded. Counsel for the applicant submitted that resentencing should be remitted to the District Court. The Crown made no submissions to the contrary. That is the appropriate course to take. The applicant appears to have been refused bail following his arrest on 3 April 2012, then granted bail on 17 September 2012 which was revoked following the jury's verdict on 10 November 2015. 8. I propose the following orders: 1. Extend the time within which to apply for leave to appeal to 14 November 2016. 2. Grant leave to appeal. 3. Appeal allowed. 4. Set aside the guilty verdict on count 1, and set aside the sentence imposed on 31 March 2016. 5. In lieu thereof, substitute a verdict of guilty of an offence under s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), and remit the proceedings to the District Court for the imposition of sentence. 6. The proceedings be listed for mention in the District Court, at Parramatta, on Thursday 27 April 2017. 1. RA HULME J: I agree with Leeming JA. 2. BEECH-JONES J: I agree with Leeming JA.

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Amendments 21 April 2017 - [12] quotation of Mackenzie v the Queen amended from "would generally" to "will generally". Coversheet, [16], [18], [19], title of legislation corrected. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 April 2017