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Court of Criminal Appeal 22 July 2015

Elsleiman v R

[2015] NSWCCA 192

Drugs
CRIMINAL LAW DRUG OFFENCES CIRCUMSTANTIAL CASE APPEAL AGAINST CONVICTION S 6 CRIMINAL APPEAL ACT 1912 APPEAL DISMISSED

Citation: Elsleiman v R [2015] NSWCCA 192
Court: Court of Criminal Appeal, New South Wales
Date: 22 July 2015
Judge(s): Macfarlan JA (principal judgment); Johnson J and Button J (agreeing)

Background

The appellant operated a motor vehicle mechanic and auto electrical workshop in South Strathfield, Sydney. In April 2012, he received a motor vehicle engine shipped from the United States. The engine concealed 1,720.2 grams of pure cocaine secreted inside seven canisters. US authorities had intercepted the shipment before it left the country, removed the cocaine, and allowed the consignment to proceed. On arrival in Australia, the Australian Federal Police replaced the cocaine with an inert white powder, reassembled the consignment, and delivered it to the workshop.

The appellant removed the canisters from the engine and delivered them to a man known as Mohamed Metleg, on whose instructions he had been acting. He was then arrested. He had been asked only to remove pistons, not canisters, and he acted in circumstances that included wearing gloves, operating in partial darkness, driving with headlights off, and discussing burning the consignment documents.

After a 12-day jury trial in the District Court in 2013, the appellant was convicted of attempting to possess a marketable quantity of a border controlled drug (cocaine) reasonably suspected of having been unlawfully imported, contrary to sections 307.9(1) and 11.1(1) of the Criminal Code 1995 (Cth). The sole issue at trial was whether the Crown had proved beyond reasonable doubt that the appellant believed the engine contained a border controlled drug.

  • Whether the jury's verdict was unreasonable or could not be supported having regard to the evidence, under section 6(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether the Crown had proved, in a circumstantial case, that the appellant held the requisite belief that the consignment contained a border controlled drug
  • Whether the circumstantial evidence, assessed holistically, was sufficient to exclude any reasonable inference consistent with innocence

Decision

The Court of Criminal Appeal applied the test from SKA v The Queen (2011) 243 CLR 400: the court must make an independent assessment of the evidence, both as to its sufficiency and quality, and determine whether it was open to the jury to be satisfied of guilt beyond reasonable doubt. The "central question" is whether the appellate court is itself satisfied of the appellant's guilt.

Macfarlan JA, conducting that independent assessment, was satisfied that the Crown proved its case beyond reasonable doubt. His Honour identified a series of conduct by the appellant that, considered together, was inconsistent with mere suspicion or ignorance. These circumstances included: the appellant's failure to alert anyone to his stated concerns; his removal and delivery of canisters when he had been asked only to deal with pistons; his use of a false name on a phone call; driving with headlights off; working in darkness; wearing gloves and then removing them before police contact; and a discussion about burning the consignment documents.

Macfarlan JA also noted the significance of Mohamed Metleg leaving a consignment of this value in the appellant's sole care for several hours. Consistent with the reasoning in Lau v R [2014] NSWCCA 179, the Court treated this as an important strand in the circumstantial case, as it indicated the person controlling the consignment was satisfied the appellant understood its illicit nature.

Johnson J and Button J each independently assessed the evidence and agreed with the orders proposed by Macfarlan JA. Button J described the circumstantial case as "very powerful." Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an appellate court must independently assess the totality of evidence when a conviction is challenged as unreasonable, not merely ask whether the jury could rationally have convicted.
  • A circumstantial case is to be assessed holistically. Individual circumstances that might appear ambiguous in isolation can combine to exclude any reasonable inference consistent with innocence.
  • Under sections 307.9(1) and 11.1(1) of the Criminal Code 1995 (Cth), it was sufficient for the Crown to prove that the appellant believed the consignment contained a border controlled drug; this was the operative fault element for the attempt offence in the circumstances.
  • The entrusting of a high-value illicit consignment to another person for an extended period can constitute a significant strand of circumstantial evidence, as it may indicate the consignor's confidence that the other person understood and accepted the illicit nature of what was being handled.
  • No single item of the appellant's conduct was treated as determinative. Taken together, his actions before, during, and after handling the canisters were found to be incompatible with his claimed state of mere suspicion.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
- Criminal Code 1995 (Cth), ss 5.1, 5.2, 5.3, 5.4, 11.1(1), 307.9, 307.9(1), 307.9(1)(c), 307.9(2)

Cases:
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- M v The Queen [1994] HCA 63; 181 CLR 487
- R v Hillier [2007] HCA 13; 228 CLR 618
- Wood v R [2012] NSWCCA 21; 84 NSWLR 581
- Lau v R [2014] NSWCCA 179
- Chamberlain v The Queen (No 2) [1984] HCA 7; 153 CLR 521