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26
Court of Criminal Appeal 18 December 2007

Germakian v R

[2007] NSWCCA 373

Also reported as (2007) 70 NSWLR 467
Drugs
CRIMINAL LAW CONVICTION APPEAL DRUG IMPORTATION R 4 GUILTY VERDICT UPHELD.

Citation: Germakian v R [2007] NSWCCA 373
Court: New South Wales Court of Criminal Appeal
Date: 18 December 2007
Judge(s): Giles JA; Hulme J; Hislop J

Background

The appellant was convicted in the District Court following a jury trial before Murrell SC DCJ on a charge of importing a commercial quantity of cocaine into Australia, contrary to s 233B of the Customs Act 1901. On 18 May 2005, the appellant arrived at Sydney Kingsford Smith Airport from Jamaica carrying a suit bag in which customs officers discovered approximately 3.2 kilograms of cocaine sewn into the bag's lining. The cocaine had a purity of approximately 70 to 73 per cent and a wholesale value estimated at over $548,000.

The appellant made several admissions during the customs examination, including that the bag had remained in his exclusive possession throughout the return journey from Jamaica through Los Angeles to Sydney. The sole issue at trial was whether the Crown had proved beyond reasonable doubt that the appellant knew the cocaine was concealed in the bag, and therefore intended to import it.

The appellant lodged a notice of appeal against conviction, filed a few days outside the applicable time limit. The Crown did not oppose a short extension being granted.

  • Whether there was sufficient evidence upon which the jury could be satisfied beyond reasonable doubt that the appellant knew the cocaine was present in his bag and therefore intended to import it
  • Whether the conviction should be set aside as unreasonable or unsupported by the evidence (rule 4 of the Criminal Appeal Rules)

Decision

The Court identified the relevant test as whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. The appellant argued that the Crown's circumstantial case was insufficient, and advanced a number of individual propositions: that professionals could have entered his hotel room to conceal the drugs without his knowledge, that the additional weight of the cocaine was not especially noticeable, that his apparent over-confidence in demeanour could not reliably indicate knowledge, and that his mistaken description of where he bought the bag was not significantly probative.

The Court rejected that line of analysis. It held that such an approach failed to recognise a fundamental principle of circumstantial evidence cases: the probative force of the evidence derives from its accumulation, not from each item assessed in isolation. When all circumstances were considered together, the inference of knowledge was compelling.

The Court found it extremely unlikely that a commercial quantity of cocaine valued at over half a million dollars would be entrusted to an unwitting carrier with no apparent mechanism for recovering it from that person. It also found it improbable that a third party could have entered the appellant's hotel room, sewn cocaine into the lining of his suit bag, and returned the bag undetected. Those conclusions, taken with the appellant's false claim about where he purchased the bag, his exclusive custody of the luggage, and the nature of his responses to customs officers, supported the jury's verdict.

Orders Made

  • The time in which to file the notice of appeal is extended to the date the notice of appeal was filed.
  • Appeal dismissed.

Key Takeaways

  • In a circumstantial case, the probative force of the evidence arises from its cumulative weight, not from any single item of evidence assessed independently.
  • The Court of Criminal Appeal confirmed that a conviction will be upheld under rule 4 of the Criminal Appeal Rules where it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt of guilt.
  • Where the sole issue is a defendant's knowledge of concealed drugs, the combination of exclusive custody of the bag, implausible explanations, and the commercial value and logistical improbability of entrusting valuable contraband to an unwitting courier can support an inference of knowledge beyond reasonable doubt.
  • Sufficient evidence existed for the jury to conclude that a person in the appellant's position knew cocaine was secreted in his own bag, which had remained in his sole possession throughout the relevant journey.
  • The Court observed that juries have the advantage of seeing and hearing witnesses give evidence, a factor that carries significant weight when assessing credibility-dependent circumstantial evidence.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), s 233B
- Criminal Appeal Rules, r 4

Cases Cited
- R v Abusafiah (1991) 24 NSWLR 531
- R v Tripodina (1988) 35 A Crim R 183
- R v Jeffrey (Court of Criminal Appeal, 16 December 1993, unreported)
- R v DH [2000] NSWCCA 360
- R v Soto-Sanchez [2002] NSWCCA 160; (2002) 129 A Crim R 279
- R v Button (2002) 129 A Crim R 242
- M v The Queen (1994) 181 CLR 487