Julius Yates V Regina [2016] NSWDC 326

District Court New South Wales

Medium Neutral Citation: Julius Yates V Regina [2016] NSWDC 326 Hearing dates: 3 November 2016 Date of orders: 24 November 2016 Decision date: 24 November 2016 Jurisdiction: Criminal Before: Judge AC Scotting Decision: Appeal against conviction is dismissed. Catchwords: CRIMINAL LAW – drugs – supply prohibited drug APPEAL – appeal against conviction OTHER – definition of supply – take part in supply prohibited drug Legislation Cited: Crimes (Appeal and Review) Act 2001 s.18(1) Drugs (Misuse and Trafficking) Act 1985 ss. 3, 6, 25(1) Cases Cited: Gianoutsas v Glykis [2006] NSWCCA 137 Charara v R [2006] NSWCCA 244 Fox v Percy (2003) 214 CLR 118 Director of Public Prosecutions (SA) Reference no 2 of 1995 65 SASR 508 Deng v R (1996) 91 A Crm R 80 R v Zaiter [2005] NSWCCA 61 Category: Principal judgment Parties: Julius yates (Appellant) Regina (Respondent) Representation: Solicitors: Mr Gould (Appellant) C Hyland, Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/00271970

Judgment 1. Julius Yates (the appellant) appeals against a conviction entered by her Honour Magistrate McIntyre at Downing Centre Local Court on 11 May 2016. On that day the appellant was convicted of an offence of knowingly take part in the supply of a prohibited drug contrary to section 25(1) Drug Misuse and Trafficking Act 1985. 2. On 27 August 2015 the appellant was working as a bar attendant at the Lobo Plantation, licensed premises situated at 209 Clarence Street, Sydney (the premises). At about 6pm 2 undercover police officers codenamed "Natasha" and "Layla" entered the premises intending to purchase prohibited drugs pursuant to a Controlled Operation Authority. 3. At about 7pm Layla went to the entrance to the premises and spoke to a security guard named Jay (the security guard). At that time Natasha had a conversation with the appellant that was recorded in Natasha's statement as follows: Appellant: Do you want another drink? Natasha: Nah, my friend's upstairs trying to get us some stuff. Appellant: Some special stuff? Natasha: Yeah, are you into the special stuff? Appellant: Yeah. Natasha: Do you know anyone that can help us out 'cause I think my friend is having trouble. Appellant: I know someone that can probably help you out, he didn't come through last week, but he can probably sort you out. 1. Layla returned and showed the screen of her mobile phone to Natasha and the appellant. Layla had been given a mobile telephone number by the security guard at the entrance to the premises, stored under the contact "A1 Taxis" and recording the number 0451 102 171 (the mobile number). The appellant looked at it. 2. Layla then had a conversation with the appellant in the presence of Natasha that was recorded in both of their statements as follows: Layla: Is this your guy? Appellant: Oh yeah that's him. I'm in a bit of trouble with him at the moment. Layla: Oh I just got his number off Jay upstairs. I spoke with him, he said he was coming by and could help us out, he said to ask Joe behind the bar for prices. Is that you? Appellant: Yeah, that's me. Layla: How much are we looking at for a gram? Appellant: It's $300 for 1 Layla: OK, cool. That's fine. 1. About an hour later, Layla was approached by the security guard and they went out to the street. Layla then received a text message from the mobile number that said "Outside", to which she replied by text message "I'm with Jay". Layla then approached a man of between 25-30 years of middle eastern appearance wearing a black t-shirt and jeans. The man supplied her with approximately 1g of cocaine for $300 in cash. 2. Layla came back inside the premises. Natasha then went outside and was met by a man of middle eastern appearance aged about 25 years, with facial hair and wearing a black t-shirt and blue jeans. The man supplied her with approximately 1g of cocaine for $300 in cash. Natasha then returned to the bar. 3. When Layla returned to the bar area she had a conversation with the appellant in the presence of Natasha that was recorded in their statements as follows: Appellant: How did you go? Layla: Yeah, all good. I think we are going off to the casino, we might see you guys tomorrow night though. Appellant: No worries, good luck ladies. 1. The matter proceeded in the Local Court by the prosecution tendering the police statements. The prosecution witnesses were not required for cross-examination. The appellant did not lead any evidence.

The Relevant Law 1. Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31]. 2. The principles governing appeals from judges sitting without a jury apply in that the appellate judge is to form his or her own judgement of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record: Charara v R [2006] NSWCCA 244 at [17]-[22]. 3. The Court is obliged to give the judgement which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23]. 4. "Supply" as defined in section 3 Drug Misuse and Trafficking Act 1985 includes sell and distribute, agreeing to supply, or offering for supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things. 5. Section 6 Drug Misuse and Trafficking Act 1985 provides that a person takes part in the supply of a prohibited drug if the person takes or participates in any step, or causes any step to be taken in the process of that supply. 6. Section 25(1) Drug Misuse and Trafficking Act 1985 provides that a person who knowingly takes part in the supply of a prohibited drug is guilty of an offence. 7. A person can be guilty of taking part in a supply notwithstanding that no actual supply takes place, so long as a supply was in contemplation: Director of Public Prosecutions (SA) Reference No 2 of 1995 (1995) 65 SASR 508. 8. Knowingly take part in supply has a degree of remoteness in point of time or place from the actual transaction amounting to supply. It is intended to cover the case in which the accused has not or cannot be shown to be guilty of the offence of supply, and it applies even though the contemplated supply does not take place: Deng v R (1996) 91 A Crim R 80. 9. The word "supply" in section 6 has the extended meaning given to it by section 3 Drug Misuse and Trafficking Act 1985: R v Zaiter [2005] NSWCCA 61. 10. In Zaiter the appellant was recorded as saying that he could arrange for the supply of a kilogram of cocaine to a third party, although no substantive details had been agreed for the actual supply of the drugs. The appellant gave evidence on an application to withdraw his plea that he did not have access to that quantity of the drug. The Court of Criminal Appeal upheld the trial judge's ruling, refusing to allow the withdrawal of the guilty plea, on the basis that he had knowingly participated in a supply of drugs by offering to supply the cocaine, notwithstanding that there was no actual supply arranged and it was only in contemplation.

The appellant's submissions 1. The appellant submitted that he did no more in the conversations with the officers than say that he might know someone who could sell them drugs and to pass on information to them about that process from his own experience. It was contended that there was no evidentiary link between him and the ultimate supply. 2. It was further contended that the appellant did not take part in a supply because he assisted the proposed buyers of the drugs.

Consideration 1. In this matter there were no witnesses called and the magistrate was not required to make any credit findings to which I must have regard. 2. The appellant did not challenge the prosecution evidence as to the officers' conversations with him and I am satisfied that the conversations occurred in the terms set out. 3. Having conducted an independent review of the evidence I am in agreement with the magistrate's conclusion for the reasons that follow. 4. The evidence makes it clear that the appellant knew that the officers were speaking to him about the purchase of prohibited drugs. The appellant then proceeded to take the following steps: 1. He told the officers that he knew someone who may be able to supply them; 2. He confirmed that the information they had been given as to the identity of the supplier was correct; 3. He volunteered that he was the person "Joe" referred to by the supplier as the person who could give information about the price of cocaine; and 4. He then told them that the price was $300 for a gram. 1. These were all steps taken in the process of the supplier offering the cocaine for supply or agreeing to supply the cocaine for the price of $300 for a gram. 2. It was not necessary for the appellant to be a third party to the supply to the officers, or in fact that any supply actually take place. In other words, the prosecution was not required to prove that the appellant was part of the joint criminal enterprise of the supply that occurred. 3. Nevertheless, I am satisfied beyond reasonable doubt that the appellant was involved in the particular supply because he made an admission to the officers that he was the person referred to by the supplier who could tell them the price of the cocaine and did so. The officers were both then supplied the cocaine for that price. 4. I do not accept it as a reasonable possibility that the appellant knew the price or would have been referred to by the supplier by reason of the appellant's past purchases from the supplier. That is not to say that the appellant profited from the drug supply that took place. There is no evidence on this point and I cannot draw that inference from the other evidence. 5. I am satisfied beyond reasonable doubt that the appellant knew that cocaine was being supplied by others at the premises and that he was a knowing participant in the supply to the officers, by taking the steps I have referred to. 6. The appellant's second submission is misconceived for 2 reasons. First, as a matter of fact the appellant assisted the supplier by referring the officers to him and by quoting a price. Second, in the ordinary course the purchaser of a prohibited drug is guilty of the offence of knowingly taking part in the supply because they cause the sale or distribution of the drug to occur by requesting the sale, accepting the offer to supply that is made and/or providing payment. 7. The orders I make are: 1. Appeal against conviction is dismissed.

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