Mohana v R

1. [1]

   SIMPSON AJA: On 6 May 2020 the applicant, Bilal Mohana, was arraigned in the District Court on an indictment containing two counts. The first count was of an offence of supplying a prohibited drug (cocaine) in an amount not less than the large commercial quantity, an offence against s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“the DMT Act”) for which, pursuant to s 33(3)(a) thereof, a maximum penalty of imprisonment for life is prescribed. Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”), a standard non-parole period of 15 years applies. By Sch 1 of the DMT Act, 250 grams of cocaine constitutes a commercial quantity; 1 kilogram constitutes a large commercial quantity. The second count on the indictment was of an offence of dealing with the proceeds of crime (“money laundering”) in excess of $100,000, knowing that the money was the proceeds of crime. That was an offence against s 193B(2) of the Crimes Act 1900 (NSW), to which a maximum penalty of imprisonment for 15 years is applicable. The indictment alleged that each offence was committed between 1 July and 18 October 2017.

2. [2]

   Jointly arraigned with the applicant on the same indictment were Hussein Mousselmani (who was charged with identical counts) and the applicant’s brother, Hassun Mohana, who was charged with one count of knowingly taking part in the supply of an amount (unspecified) of a prohibited drug (cocaine) under s 25(1) of the DMT Act, and one count of money laundering, in an amount in excess of $50,000, knowing that it was the proceeds of crime (an offence against s 193B(2) of the Crimes Act).

3. [3]

   Each accused entered a plea of not guilty to each count. Pursuant to s 132 of the Criminal Procedure Act 1986 (NSW), each accused elected for, and the Crown consented to, trial by judge alone. By s 133(1) of the Criminal Procedure Act a judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury. By subs (2) of s 133, a judgment by a judge following trial by judge alone must include the principles of law applied and the findings of fact relied upon for the verdict delivered.

4. [4]

   Evidence and submissions in the trial concluded on 8 July 2020. On 14 August 2020, the trial judge delivered his verdicts. His Honour found both the applicant and Hussein Mousselmani guilty of each count on the indictment against them, and Hassun Mohana not guilty of the counts against him. His Honour gave reasons for the verdicts.

5. [5]

   Additionally before the court, pursuant to s 166(1)(b) of the Criminal Procedure Act, was a certificate that the applicant was also charged with participating in a criminal group, knowing that his participation in that group contributed to the occurrence of criminal activity, an offence against s 93T(1) of the Crimes Act, to which the applicant also entered a plea of not guilty. The parties agreed that, following the verdicts of guilty on the two counts on the indictment, that count could be dealt with on the evidence in the trial. The trial judge found the applicant guilty of that offence.

6. [6]

   On 23 March 2021 the trial judge, pursuant to s 53A of the Sentencing Procedure Act, sentenced the applicant to an aggregate term of imprisonment of 8 years and 1 month, with a non-parole period of 4 years and 5 months and, as required by subs (2) of s 53A, stated the sentences that, if sentencing separately for the offences, he would have imposed. These were, with respect to the supply offence, imprisonment for 7 years and 7 months with a non-parole period of 4 years and 2 months; with respect to the money laundering offence, imprisonment for 3 years and 7 months; and with respect to the offence of participating in a criminal group, imprisonment for 1 year and 10 months.

7. [7]

   The applicant now seeks leave to appeal against the conviction on each count. Leave is required because the grounds on which he seeks to appeal involve questions of fact, or, at most, questions of mixed fact and law: Criminal Appeal Act 1912 (NSW) s 5(1)(b). He has not sought leave to appeal against the sentence imposed.

Grounds of the proposed appeal

1. [8]

   The grounds of the proposed appeal are pleaded as follows:

2. [9]

   As was accepted in written submissions, the function of an appellate court determining a ground of appeal that asserts the unreasonableness of a guilty verdict is well established: see M v The Queen (1994) 181 CLR 487; [1994] HCA 63 ("M”); MFA v The Queen (2002) 212 CLR 606; [2002] HCA 53; SKA v The Queen (2011) 243 CLR 499; [2011] HCA 13 ("SKA”); The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 (“Baden-Clay”); Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12. Those principles (as originally stated by Mason CJ, Deane, Dawson and Toohey JJ in M at 493, and repeatedly reaffirmed in subsequent decisions) are:

3. [10]

   The function of the appellate court is to make its own:

4. [11]

   In undertaking that task, where the verdict is the verdict of a jury, the appellate court must bear in mind the constitutional role of the jury in determining questions of guilt or innocence and the advantages of the jury in having had the opportunity to observe the witnesses as they gave their evidence: (Baden-Clay at [65]).

5. [12]

   The function of the appellate court is not different where the verdict has been given following a trial by judge alone: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [12], [82]-[83]; Dansie at [15]. The consideration that the trial judge has had the advantage of seeing and hearing the witnesses remains apposite. Both Filippou and Dansie involved charges of murder heard and determined in judge-alone trials.

6. [13]

   In Dansie at [7] the High Court unanimously stated that the function of a Court of Criminal Appeal in determining an appeal on the unreasonable verdict ground is:

7. [14]

   The due application of these principles raises a question as to the utility of a ground asserting inadequacy of reasons or inadequacy in the fact finding exercise as is to be found in proposed ground (ii), where the ground is coupled with a ground that contends that the verdict is unreasonable. That is because, if the unreasonable verdict ground is upheld, a verdict of acquittal must be entered; if the unreasonable verdict ground is rejected, the appellate court has satisfied itself, on its own independent assessment of the evidence, that the applicant was guilty of the offence charged and was properly convicted. In doing so, it has necessarily made the relevant findings of fact, and rectified any deficiency in the trial judge’s fact finding exercise. In those circumstances, there is little scope for grounds complaining of deficiencies in fact finding or inadequacy of reasons when it is also contended that the verdict is unreasonable.

8. [15]

   As I have already said, the task of this Court in determining an unreasonable verdict ground after a judge alone trial is not to examine the trial judge’s reasons for the guilty verdict or verdicts, but, rather, to determine for itself whether the applicant has been shown, on the evidence, to be guilty of the offence or offences charged: Dansie at [16]. In doing so, the court is entitled to take into account, and rely on, findings of fact made by the trial judge about which no issue is taken in the appeal. But:

9. [16]

   Bearing all this in mind, I proceed to my assessment of the case brought by the Crown against the applicant.

The Crown case

1. [17]

   Put briefly, the Crown case was that the applicant and Hussain Mousselmani were engaged in a joint criminal enterprise that involved the supply of not less than the large commercial quantity of cocaine. It is apparent from the evidence in the Crown case that the applicant and Mousselmani were under suspicion of drug dealing from about June or July of 2017. For some time they were under physical surveillance. On 25 July 2017 warrants were issued under the Surveillance Devices Act 2007 (NSW) authorising video and audio surveillance of, inter alia, a Mitsubishi Lancer motor vehicle registered to Victoria Kerr (the applicant’s partner), and used by both the applicant and Mousselmani. Pursuant to the warrants, tracking devices were installed in that (and another) vehicle. A number of warrants were also issued under the Telecommunications (Interception and Access) Act 1979 (Cth) authorising members of the NSW Police Force to intercept communications made on mobile telephones used by the applicant and Mousselmani. Video and audio recordings from the device or devices installed in the Mitsubishi Lancer of conversations between the applicant and Mousselmani on a number of days in September and October 2017 constituted the bulk of the evidence against those two accused.

2. [18]

   It is fair to say that the conversations recorded are in a largely unfamiliar argot. Some of the recordings are indistinct. As is common, transcripts were prepared by the prosecution and marked for identification. After some negotiation, a substantially agreed version (MFI 57) was produced. Having regard to the nature of the language used in the conversations, a police officer (Detective Inspector Alasdair Dipple) expert in the illicit drug trade gave evidence. Detective Inspector Dipple’s evidence was admitted over objection and was subject to repeated objections during the trial. No proposed ground of appeal challenges the decision to admit his evidence, or the individual components of his evidence to which objection was taken.

3. [19]

   On 18 October 2017 a search warrant was executed at the applicant’s residence at an inner west Sydney suburban address. No cocaine was located. An amount of Australian currency was located. Also located was a cardboard box containing numerous resealable plastic bags.

4. [20]

   The applicant was arrested at about 1.15 pm on 18 October 2017 at a café at Arncliffe. The arresting officer told the applicant that he was under arrest for supplying prohibited drugs. He was searched. No drugs were found in his possession. He declined to take part in an interview.

5. [21]

   As indicated above, the principal basis of the Crown case was the video and audio recorded pursuant to the surveillance device warrants placed in the Mitsubishi Lancer, together with the interpretation placed on some of the language used in the recorded conversations by Det Insp Dipple, and some evidence by Det Insp Dipple as to practices within the illicit drug trade. It will be necessary to set out, in some detail, some of the conversations recorded. The majority of those relevant are conversations between the applicant and Hussein Mousselmani, although there are, at times, other participants.

6. [22]

   To be clear from the outset, it is common ground that, in no conversation recorded, can the word “cocaine” be heard.

Count 1: Drug Supply

1. [23]

   Proof of the offence the subject of Count 1 on the indictment necessitated proof of three elements:

2. [24]

   At trial, while no express admissions or concessions were made, it was not seriously disputed that the recorded conversations established, beyond reasonable doubt, that the applicant and Mousselmani were together engaged in the supply of a prohibited drug or drugs. The issues at trial were identified by counsel in closing submissions as:

3. [25]

   The “jurisdictional issue” concerned whether the Crown had established that any drug supply had taken place in New South Wales. It was resolved against the applicant and does not arise in the proposed grounds of appeal. It can be put aside. The fourth identified issue was and is somewhat mysterious. The second identified issue concerned the identification of the drug the subject of the conversations. That became a – if not the – principal issue in the present proceeding. No submissions in this application were directed to the third identified issue, that is, whether “an act of supply” was established to the requisite (criminal) standard.

4. [26]

   The applicant’s position in relation to what was established by the recorded conversations did not change. In this Court, when asked directly about this, counsel replied:

5. [27]

   I have read with care the transcripts of the various conversations contained in MFI 57 and viewed the video footage. On this application no issue was taken as to the accuracy of the transcripts as contained in MFI 57. I am amply satisfied that the conversations recorded implicate the applicant (and, to the extent that, on this application, it is relevant, Mousselmani) in the supply of a prohibited drug or prohibited drugs.

6. [28]

   The Crown sought to prove that the drug the subject of the supplies was cocaine through the evidence of Det Insp Dipple, to which I will refer below.

7. [29]

   The Crown sought to prove the quantity of the drug supplied on two alternative bases. First, it contended that the recorded conversations established, on at least one occasion, a single supply of cocaine in excess of 1 kilogram. That would be sufficient to prove the applicant’s guilt of the offence charged. The alternative approach was what was called “the aggregation approach” – proof of a number of supplies, each of less than 1 kilogram, but together totalling more than 1 kilogram.

8. [30]

   On either approach, the Crown had to prove, to the criminal standard, that the drug the subject of the conversations was cocaine. That was necessary for two reasons – first, because cocaine was expressly asserted, in the indictment, to have been supplied; second, because Sch 1 of the DMT Act prescribes, in respect of different prohibited drugs, different quantities that constitute a large commercial quantity. This was the first, and principal, issue debated in this application. To prove the applicant’s guilt of the offence the subject of Count 1, it was necessary that the Crown prove that the quantity supplied was not less than 1 kilogram.

9. [31]

   The trial judge explained how and why he came to the conclusion that the drug supplied was cocaine. In written submissions, the applicant invited this Court to find error in his Honour’s reasoning. That invitation can be found in several paragraphs of the written submissions. For example, at pars 17 and 18 it was submitted that the trial judge relied upon three principal facts to reach his conclusion, and that those facts, even taken together, were incapable of establishing the conclusion reached. (The three facts were (i) that cocaine is packaged in a brick form, (ii) that in 2017 the price of cocaine was approximately $200,000 per kilogram, and (iii) that, in a conversation recorded in October 2017, the applicant spoke about “the rack” in the context of a drug transaction, “rack” being language used to denote cocaine. The significance of these “facts” will emerge below.)

10. [32]

    At par 29 it was submitted that an observation made by the trial judge (that there was no reference to any other drug on the surveillance footage) was erroneous. At par 34 criticism was made of what was said to be the trial judge’s failure to refer to a particular argument advanced by counsel for the applicant.

11. [33]

    The approach so taken was to invite this Court into error. It is quite clear that, on an appeal against conviction after trial by judge alone, this Court does not examine the reasons for conviction in order to determine whether error is shown. As indicated above, the task of this Court is to make an independent assessment of the evidence in order to determine whether it is sufficient, in nature and quality, to prove beyond reasonable doubt that the accused person was guilty of the offence charged. In doing so, it is legitimate for the Court to take into account any findings of fact that are not challenged, and, particularly, any assessment of the credibility or reliability of witnesses that are influenced by demeanour. In Dansie, the High Court was highly critical of an appellate court (not this Court) that had taken the approach of examining the trial judge’s reasons for the finding of guilt. Although it has been summarised above, it is useful to set out the whole of [16] of the reasons in that case. The High Court said:

12. [34]

    As it happens, in this case there are few, if any, findings that fit into the category of facts dependent on the assessment of the credibility of witnesses that are sustained by the advantage of the trial judge in seeing and hearing the witnesses. The conversations on which the Crown relied (and relies) to establish that the applicant was engaged in the supply of in excess of the large commercial quantity of cocaine were the recorded conversations – as to the content of which, ultimately, there was little or no dispute – and the interpretation placed on them by Det Insp Dipple. Det Insp Dipple’s evidence was, in some respects, contested. But the trial judge’s acceptance of Det Insp Dipple’s evidence does not appear to have depended on any assessment by reference to demeanour; rather, his Honour appears to have relied on Det Insp Dipple’s expertise. In the performance of the task committed to this Court, nothing is to be gained by parsing and analysing the reasoning of the trial judge. It is best to turn directly to the evidence in the trial.

13. [35]

    The following is what I draw from the transcript of Det Insp Dipple’s evidence. At the time of the trial Det Insp Dipple was in his 30th year of service in the NSW Police Force. Since 1998 he had specialised in drug and organised crime work. That involved what he called “the full myriad”:

14. [36]

    Det Insp Dipple had spent six years in the Drug Squad, as well as some time in a joint agency taskforce which worked with the Australian Federal Police (“AFP”) to investigate crime and corruption on the waterfront, including the importation of drugs. He has completed a number of specialist courses and trained as an undercover supervisor to manage “undercover operatives”. He has received a number of awards including the Police Medal for ethical and diligent police service; the National Medal for ethical police work and (he said modestly) “for being in for 20 years maybe”; and a Rotary Policing Award and a Commissioner’s Unit Citation for outstanding achievement in the investigation of organised crime.

15. [37]

    Det Insp Dipple said that he had obtained information about “drug price lists” from a variety of sources; for example, drug price lists published by the NSW Drug Squad, the AFP, and the NSW Crime Commission and the Australian Bureau of Crime Intelligence. This information is, in turn, derived from, inter alia, information provided by criminal informants and undercover operatives. Det Insp Dipple gave evidence that his investigations had brought him into contact with drug users and mid-level suppliers and that he had, by this means, learned about the “general overall lay of the drug markets currently working in that area or in that cultural group”. Information in these investigations was sourced from undercover operatives, criminal informants, and physical and electronic surveillance. By this means, and others (including even YouTube), he had derived information about the use of codes used by those operating in the drug world.

16. [38]

    With this background, I am satisfied that Det Insp Dipple was amply qualified to give cogent evidence about, in general, the drug trade, and the interpretation of language used by those in the drug trade. There is no reason to doubt his expertise.

17. [39]

    Notwithstanding the relatively confined subject matter of his evidence, Det Insp Dipple’s evidence was given over ten days (with one brief interlude when another witness was interposed) and occupies no fewer than 539 pages of transcript. Of these, examination in chief occupies 217 pages. The evidence was subject to repeated objection. The remainder is taken up in cross-examination, on behalf of each of the three accused. Examination of the transcript reveals a great deal of repetition, and a great deal of irrelevancy. In order to perform the function of this Court in determining for itself whether the evidence was sufficient in nature and quality to eliminate any doubt that the applicant was guilty of the offence charged, I have found little assistance from vast swathes of the cross-examination, which did nothing to cast doubt on Det Insp Dipple’s evidence.

18. [40]

    An attempt was made in cross-examination to undermine the credibility of Det Insp Dipple’s evidence on the basis of what was suggested to be a lack of objectivity. It was suggested to him, for example, that he was too closely aligned with the officer in charge of the investigation, Det Sergeant Walke, and was intent on supporting Det Sergeant Walke’s belief that the drug the subject of the applicant’s conversations was cocaine. So far as I can discern from the transcript, the attempt to impugn Det Insp Dipple’s credibility failed. The transcript shows that Det Insp Dipple made a number of concessions, specifically with respect to whether some of the language used in the conversations could be related to cocaine as distinct from other prohibited drugs.

19. [41]

    The attempt to cast doubt on Det Insp Dipple’s credibility was not maintained in this Court. I accept his evidence in full.

20. [42]

    Det Insp Dipple’s evidence fell into two broad categories. First, he gave general evidence about practices in the drug trade, and language used by participants in that trade. Then, having spent a good deal of time examining the transcripts of the conversations recorded on the surveillance devices, he gave specific opinion evidence about what the participants could be taken to have intended. In a sense, his evidence in this category amounted to a translation or interpretation of an otherwise unfamiliar (and at times unintelligible) argot. At times, his evidence as to specific aspects of the conversations placed the verbiage used in the context of the drug world. At other times, his evidence helpfully confirmed what I would, in any event, have taken from the recorded conversations.

21. [43]

    Det Insp Dipple said that “end” drug users do not normally use drugs in their purest form. The purity of cocaine is usually about 40% but can come “in the high eighties/nineties”. That provides leverage for suppliers to “adulterate”, which is done by mixing the drug with some “cutting agent” such as icing sugar, thus reducing the quality but increasing the quantity. The word used for adulteration by those in the business is “jump” (which can, it seems, be used as a noun or a verb). Det Insp Dipple said that cocaine is traditionally bought and sold in one kilogram blocks of compressed powder that are “rock hard” and in a “brick format”, and referred to as a “brick”. A “brick” is about 30 centimetres by 15 centimetres by 3 centimetres and can be wrapped in plastic or cling film and have an insignia (such as a horse, a Ferrari or a triple 9). The insignia allows consumers to identify the source of the drug. In manufacture, cocaine can be in liquid form, but is sold in “brick form” and used in its powdered form by end users. In later evidence, in the context of interpreting the audio recorded conversations, Det Insp Dipple said that a typical price in 2017 for one kilogram of cocaine was $200,000 and that cocaine was commonly referred to as “rack”.

22. [44]

    Investigators investigating a person suspected of breaking drugs down would look for certain items, for example, original packing; new bags; cutting agents; items for mixing the cutting agent with the drug; scales; blenders; metal presses (used to recompress the cocaine into hard form after cutting (that is, after it’s been “jumped on”); money; “run phones”; hard lists of drivers and vehicles. A “run phone”, it seems, is a phone dedicated for use in a particular geographic area, or for particular “end users” (which I take to be customers).

23. [45]

    Det Insp Dipple said that cocaine is often sold in half kilogram amounts, and “at the bottom end” (of the market) in “ounce amounts” (28 grams). He said:

24. [46]

    With that background, I turn to the three elements of the offence the subject of Count 1.

25. [47]

    Proof of the first element of the offence charged required proof that the applicant was engaged in the supply of a prohibited drug. Since, as indicated above, it was not seriously in dispute that the recorded conversations implicated the applicant in the supply of prohibited drugs, I can deal relatively briefly with the evidence that persuades me that he was so involved. I have, however, taken into account the whole of the recorded conversations.

26. [48]

    Even without the benefit of Det Insp Dipple’s evidence, I would have inferred, beyond reasonable doubt, that the video and audio recordings establish that the applicant and Mousselmani were engaged in dealing in prohibited drugs to a substantial degree. A few sample extracts from the transcript of the recordings will suffice to explain why that is so. In the extracts that follow, I have endeavoured to replicate the transcription as it appears in MFI 57.

27. [49]

    In a conversation recorded between the applicant and Mousselmani on 14 September 2017, the applicant is recorded as saying:

28. [50]

    A little later, Mousselmani is recorded as saying:

29. [51]

    Still later in the same conversation, Mousselmani is recorded as saying:

30. [52]

    Later in the same conversation, Mousselmani is recorded as saying, with reference to somebody called Weis:

31. [53]

    Finally in that conversation, Mousselmani is recorded as saying to the applicant:

32. [54]

    In a conversation recorded on 15 September, in which an unknown male, referred to as “Moe” also participates, the applicant is recorded as saying:

33. [55]

    In a conversation recorded on 17 September 2017, again involving the applicant with an unknown male and unknown female (a conversation to which Mousselmani was not a party) the following is recorded:

34. [56]

    A little later in that conversation, the applicant is recorded saying:

35. [57]

    The unknown male is then recorded asking:

36. [58]

    In a conversation that took place on 20 September 2017 and involved the applicant, Mousselmani, Victoria Kerr, and an unknown male, the applicant is recorded saying:

37. [59]

    Later on the same day Mousselmani is recorded saying:

38. [60]

    Still in the same conversation the following exchange is recorded:

39. [61]

    Also in that conversation, the following exchange is recorded:

40. [62]

    On 21 September, in a conversation involving the applicant, Mousselmani, and others, the following exchange is recorded between Mousselmani and the applicant:

41. [63]

    On 22 September the following exchange between the applicant and Mousselmani is recorded:

42. [64]

    On 28 September, the following exchange between the applicant and Mousselmani is recorded:

43. [65]

    Later on the same day, the following exchange is recorded:

44. [66]

    In a conversation on 11 October, Mousselmani is recorded saying to the applicant:

45. [67]

    On 12 October, in a conversation that involved the applicant, Mousselmani, and two unknown males, the following exchange between the applicant and Mousselmani is recorded:

46. [68]

    A little later in the same conversation the applicant is recorded as saying:

47. [69]

    Det Insp Dipple was taken painstakingly through the transcripts of the recorded conversations. In summary, he confirmed the conclusion I would in any event have come to, that, taking the conversations as a whole, they clearly related to dealing in prohibited drugs. No other rational interpretation could be placed on the discussions of large sums of money, in particular the claims by the applicant to an unidentified male on 17 September and again to Victoria Kerr on 20 September that, in one month, he had made $400,000; and Mousselmani’s claim (on 20 September) that, for every ounce, they made “three grand”, and had moved “over a hundred ounces”.

48. [70]

    The first element of the offence charged was proved beyond reasonable doubt.

49. [71]

    Proof of the second element required proof that the drug involved was cocaine.

50. [72]

    I accept that the indicators that the drug involved was cocaine were less numerous than those pointing to drug supply; they were, nevertheless, powerful. I will refer to them briefly. In this exercise, the evidence of Det Insp Dipple is particularly enlightening. Much of what is relevant to this element has already been identified, at some length.

51. [73]

    Relevant indicators are:

52. [74]

    These circumstances satisfy me beyond reasonable doubt that the drugs (or a drug) in the supply of which the applicant and Mousselmani was engaged was cocaine.

53. [75]

    In reaching this conclusion I have not overlooked countervailing arguments advanced on behalf of the applicant. Counsel commenced his submissions in this Court by saying:

54. [76]

    It was not correct to say that the word “rack” was used on only one occasion; as can be seen from the above, it appears twice in the transcripts of the recorded conversations (28 September and 12 October). And there were, of course, significant other indicators, set out above, to the conclusion that the applicant and Mousselmani supplied cocaine. It is not to the point that the applicant, with or without Mousselmani, may also have supplied other prohibited drugs. Indeed, it was accepted by the Crown that, on at least one occasion, he supplied MDMA.

55. [77]

    It was submitted that, in concluding that the substance under discussion was cocaine, Det Insp Dipple placed too much reliance on the common price of $200,000 per kilogram and failed to consider the possibility that another drug, for example heroin, was the subject of the conversations. The answer to that is that, while Det Insp Dipple agreed that he was not aware of the price of heroin in 2017 (although he accepted that it would have been expensive), he said that heroin came in powder form (as distinct from the compressed “brick” form in which cocaine is dealt) and that, although heroin was still used in 2017, he had not seen it around in years. That the drug the subject of the applicant and Mousselmani’s conversations was heroin can, in my opinion, be excluded.

56. [78]

    A further argument advanced on behalf of the applicant concerned what were said to be discernible references in the recorded conversations to substances other than cocaine. At the end of the conversation of 11 October the applicant is recorded saying:

57. [79]

    This was one of the few areas of dispute about the transcription of the conversations. It appears to have been contended on behalf of the applicant that the statement attributed to Mousselmani was, correctly:

58. [80]

    I have been unable to distinguish the word used. In any event, the relevance escapes me. The argument proceeded on the assumption that “shamet” or “shamay” denoted some drug other than cocaine or MDMA. There is no evidentiary support for such an assumption.

59. [81]

    For reasons set out in detail above, I am satisfied beyond reasonable doubt that the numerous references in the recorded conversations were to the supply of cocaine. That there may have been other drugs supplied, as I have indicated, does not undermine that conclusion.

60. [82]

    Although an issue appears to have arisen in the trial with respect to this element, no argument was pressed in this Court to that effect. Two references in the recorded conversations are sufficient to satisfy me beyond reasonable doubt that the relevant quantity was established, and, indeed, exceeded. One of those is the assertion by the applicant that “we sold 3 things. Three whole things”, that being a reference to 3 kilograms of cocaine. The second is the reference to the money made by the applicant and Mousselmani (in excess of $400,000) over a short period of time.

61. [83]

    I am satisfied that this element of the offence the subject of count 1 on the indictment was proved beyond reasonable doubt. It follows that I am satisfied that the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the applicant was guilty of this offence.

62. [84]

    I would therefore reject ground 1 of the proposed appeal.

Count 2: Money laundering

1. [85]

   Grounds 2 and 3 concern the conviction of the applicant on the second count on the indictment, of money laundering. That count is framed in the following terms:

2. [86]

   By ground 2 the applicant complains that the trial judge failed, as required by s 133 of the Criminal Procedure Act, to include in the judgment the findings of fact on which he relied in proceeding to a finding of guilt on this count. By ground 3, it is asserted that the verdict of guilty on count 2 was unreasonable. No separate argument was advanced, either in written or oral submissions, in support of ground 3. The argument depended simply on the proposition that the trial judge failed to identify the moneys with which he found the applicant dealt.

3. [87]

   The trial judge dealt briefly with this count. He said:

4. [88]

   The trial judge clearly identified the money he found to have been the proceeds of crime with which the applicant dealt. That included each of the bundles to which he made specific reference. It is apparent from the passage extracted above, that, although he did not explicitly say so, the trial judge accepted the Crown’s submissions. That was sufficient identification of the money the subject of count 2. Accordingly, proposed ground 2 should be rejected.

5. [89]

   Although the applicant advanced no submissions directly in relation to ground 3, that ground remains to be addressed. In the context of the ground 2 submissions, counsel pointed to evidence that the applicant had, in 2016, received a substantial award of damages (in excess of $147,000) as a result of a motor vehicle accident. It was submitted at trial that the Crown had not excluded the reasonable possibility that that damages award was the source of the money depicted in the video footage (in September and October 2017).

6. [90]

   In this Court it was complained that the trial judge made no reference to that submission. That omission is, in my opinion, understandable. Bundles of bank notes depicted in the video footage were in the possession of the applicant and Mousselmani at the time they were discussing the supply of prohibited drugs; it is an inevitable inference that they were connected with that supply. It is far fetched to suggest that, while discussing in clear terms the supply of prohibited drugs, the applicant had in his possession money (in bank notes) received by him in May 2016.

7. [91]

   Even if the applicant were correct in his complaint of failure by the trial judge to identify the money the subject of count 2, in addressing ground 3 in the manner required by Dansie, I would reject the proposition that the money depicted may have been anything other than the proceeds of the drug dealing. Moreover, I would be satisfied that, at the very least, the recorded conversations implicate the applicant in dealing in money which was the proceeds of crime. It is frequently the case that, by the time a charge of money-laundering is brought, the money in question has been disbursed. There is no requirement that specific money be identified. The conversations clearly implicate the applicant and Mousselmani in dealing in money the proceeds of crime, in particular, the claim made twice by the applicant that, in one month, he had made more than $400,000. That money was plainly the proceeds of dealing in prohibited drugs.

8. [92]

   I would reject ground 3 of the proposed appeal. I am satisfied that the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the applicant was guilty of this offence.

9. [93]

   By s 166 of the Criminal Procedure Act a court to which a person has been committed for trial or sentence for an indictable offence may also deal with any “related offence” with which the person has been charged and which is identified in a certificate under s 166(1)(b)(i). A “related offence” is defined in s 165(1) as, relevantly:

10. [94]

    There was before the trial judge a certificate under s 166 certifying that the applicant had been charged with a “related offence”. The “related offence” identified was an offence against s 93T(1) of the Crimes Act.

11. [95]

    Section 93T(1) provides:

12. [96]

    There was and is no issue that the s 93T charge was of an offence that satisfies criterion (i) of the definition of “related offence”. Nor was or is there any issue that the s 93T charge arose from substantially the same circumstances as those from which the offences of drug supply and money laundering had arisen. Criterion (ii) was therefore satisfied.

13. [97]

    Accordingly, the trial judge had jurisdiction to deal with the charge. Because the offence was said to have arisen from substantially the same circumstances as the drug supply and money laundering offences, no further evidence was necessary for the trial judge to determine the charge.

14. [98]

    The applicant entered a plea of not guilty to the charge. The trial judge dealt with this offence at the same time as he dealt with the sentencing of the applicant, and found him guilty.

15. [99]

    His Honour’s reasons were as follows:

16. [100]

    By ground 4 of the proposed appeal the applicant contends that that verdict is unreasonable.

17. [101]

    It is of some importance that the trial judge limited the “criminal group” to three individuals – the applicant, Mousselmani and Maroun.

18. [102]

    The submission made on behalf of the applicant may be stated succinctly. It was:

19. [103]

    The first proposition is correct. In Czako at [44], McCallum J (as her Honour then was) said:

20. [104]

    The applicant’s argument in relation to the second proposition was that, on the evidence, the objectives of the three alleged participants did not coincide: that was because Maroun’s objective was to obtain material benefits from selling prohibited drugs to the applicant and/or Mousselmani; the applicant’s and Mousselmani’s objective was to obtain material benefits from selling prohibited drugs to others. Thus, the objectives of the participants were divergent, not shared.

21. [105]

    The argument prompted an intervention by the court, which focused attention on the words “a serious indictable offence” in subs (1)(a) of s 93S, with emphasis on the indefinite article. The suggestion was that subs (1)(a) required the identification of conduct constituting a single serious indictable offence from which all participants sought to obtain material benefits. In one sense that was a more precise formulation of the applicant’s original submissions.

22. [106]

    Both parties assisted with supplementary written submissions. Having considered the submissions, I am now satisfied that ground 4 should be rejected.

23. [107]

    It is, I think, correct that s 93S(1)(a) requires identification of conduct that constitutes a [single] serious indictable offence. Identification of a series of disparate, even if connected, offences will not be sufficient.

24. [108]

    At one point, it appeared to me that that requirement could not be met in this case, because the indictable offence constituted by the conduct of Maroun in selling prohibited drugs to the applicant and Mousselmani was not the same indictable offence constituted by the conduct of the applicant and Mousselmani in on-selling to others the drugs they had received from Maroun. However, that is to give too narrow an interpretation to s 93S(1)(a). In practical terms, only one individual offence is necessary to be established. That is the supply, by Maroun, of drugs to the applicant and Mousselmani. There is no doubt, and no issue, that Maroun sought to obtain (immediate) material benefits from that supply. But so also did the applicant and Mousselmani. The material benefits obtained by them were (or would be) directly derived from the on-sale. But the first step on the way – providing the applicant and Mousselmani with the means to on-sell – was the conduct of Maroun in selling the drug to them. Thus, each of the three participants shared the objective of obtaining material benefits from the conduct of Maroun in selling the drugs to the applicant and Mousselmani.

25. [109]

    No proposition was advanced to the effect that, if the evidence established that a “criminal group” existed, the evidence failed to establish participation by the applicant. The evidence clearly did establish that. I would therefore reject ground 4 of the proposed appeal. I am satisfied that the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the applicant was guilty of this offence.

26. [110]

    Accordingly, the orders I propose are:

27. [111]

    DAVIES J: On my assessment of the evidence in this matter I do not have a reasonable doubt about the guilt of the applicant in relation to counts 1 and 2, and in relation to the matter on the s 166 certificate. I also agree with the reasons of Simpson AJA and the orders her Honour proposes.

28. [112]

    WILSON J: I also agree with Simpson AJA.