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District Court 25 July 2025

R v Hawchar; R v El Messelmani

[2025] NSWDC 507

Drugs
CRIME DRUG OFFENCES SUPPLY PROHIBITED DRUG LARGE COMMERCIAL QUANTITY EVIDENCE TENDENCY EVIDENCE

Citation: R v Hawchar; R v El Messelmani [2025] NSWDC 507
Court: District Court of New South Wales
Date: 25 July 2025
Judge(s): Hopkins DCJ

Background

Two accused were separately charged with supplying a prohibited drug (MDMA) in a large commercial quantity, namely 12.41 kilograms. Police discovered the drugs in a black sports bag inside a residential garage in Lakemba during a search warrant executed on 1 December 2022. The Crown's case was that one accused (referred to here as the first accused) leased and controlled the garage, while the other (the second accused) controlled the movement of bags in and out of it.

Neither accused gave evidence or participated in a record of interview upon arrest. The Crown relied entirely on circumstantial evidence, agreed facts, surveillance observations, fingerprint analysis, and, in the case of the second accused, tendency evidence to establish possession and knowledge.

The 12.41 kilograms of MDMA found in the garage far exceeded the large commercial quantity threshold of 0.5 kilograms. The quantity deemed the drug to be possessed for supply by operation of law, leaving possession and knowledge of the large commercial quantity as the live issues at trial.

Legal Issues

  • Whether the Crown established beyond reasonable doubt that the first accused was the renter and controller of the garage, being an indispensable link in the chain of reasoning to guilt
  • Whether the Crown established beyond reasonable doubt that either accused was in possession of the prohibited drugs
  • Whether either accused had knowledge that the substance was a prohibited drug present in a large commercial quantity
  • Whether proposed tendency evidence was admissible against the second accused under ss 97 and 101 of the Evidence Act 1995 (NSW), having regard to its probative value and any risk of unfair prejudice
  • Whether certain intermediate facts in the Crown's circumstantial case required proof beyond reasonable doubt under the principles in Shepherd v R

Decision

Issue 1: Admissibility of tendency evidence against the second accused

The Crown sought to rely on three categories of tendency evidence to establish that the second accused had an interest in and tendency to possess prohibited drugs. The court applied the two-stage test from Hughes v R (2017) 263 CLR 338, assessing first whether the evidence supported the asserted tendency and second whether that tendency made the facts in issue significantly more likely (at [50]).

The court rejected the 9 November 2022 evidence entirely, finding no positive identification of the driver and no evidence of the bag's contents, so the inference sought was not justified (at [54]). The court accepted the 23 November 2022 evidence and the fingerprint on a passata bottle (found to contain MDMA residue) as capable of supporting the asserted tendency when taken together (at [55]-[57]). However, the court found the tendency was framed at too high a level of generality, with no narrowing as to the quantity, type of drug, or circumstances of possession. Combined with dissimilarities between the uncharged acts and the conduct alleged on 1 December 2022, including different drugs and a different location, the probative value was not significant (at [67]-[69]). The tendency evidence was inadmissible (at [70]). The 23 November 2022 evidence was also inadmissible on any other basis, while the passata bottle fingerprint remained admissible as part of the circumstantial case only, and not for tendency reasoning (at [72]).

Issue 2: The Crown's case against the first accused

The court identified the first accused's status as the renter of the garage as an indispensable link in the chain of reasoning to guilt, requiring proof beyond reasonable doubt under Shepherd v R (at [82]). Even the Crown's expanded submission, which relied on the first accused's presence at the garage, his apparent locking of the door on one occasion, fingerprints on items inside the garage, and an orange bag found within the second bag, still ultimately depended on a finding that he controlled the premises (at [81]-[82]).

The court was unable to find beyond reasonable doubt that the first accused was the person who represented himself as "Anthony Saidi" and who leased the garage (at [84]). Presence at the garage on two occasions, including apparently locking it once, did not support the inference of control beyond reasonable doubt, as the equally available inference was that he was providing assistance to the second accused without being in control of the premises (at [85]). The case against the first accused therefore failed (at [87]). For completeness, the court also noted that even if the rental fact were treated as a non-essential circumstantial matter, a reasonable hypothesis consistent with innocence remained open: that the drugs were placed in the garage by a person other than either accused of whom the first accused had no knowledge (at [88]).

Issue 3: The Crown's case against the second accused

The court found the Crown's conceded shortcomings insurmountable (at [90]). The garage was not under continuous surveillance between 28 November and 1 December 2022, and unidentified fingerprints appeared on numerous items within the garage. This left open the real possibility that unknown persons had placed items, including the drug bag, in the garage during that period (at [91]).

The court rejected the inference that the second accused controlled what moved in and out of the garage, noting that his being the only person observed moving bags was of little weight given the gaps in surveillance (at [91]). The similarities between the bags did not support an inference that they formed a set, such that possession of one implied possession of the other (at [92]). The Crown's group-possession submission required drawing inference upon inference, and even if intentional possession were a reasonable inference, a conclusion inconsistent with guilt remained available: that another member of the group placed the drug bag in the garage without the second accused's knowledge (at [94]-[95]). Both accused were acquitted.

Orders Made

  • Mr Hawchar is found not guilty of the offence charged.
  • Mr El Messelmani is found not guilty of the offence charged.

Key Takeaways

  • The District Court confirmed that where a fact forms an indispensable link in the chain of reasoning to guilt in a circumstantial case, it must be proved beyond reasonable doubt before any inference of guilt can be drawn from it, applying the principles in Shepherd v R (1990) 170 CLR 573 (at [82]).

  • Tendency evidence will lack the significant probative value required for admissibility under ss 97 and 101 of the Evidence Act 1995 (NSW) where the tendency is framed at a high level of generality, with no narrowing as to drug type, quantity, or circumstances, particularly where the uncharged acts differ meaningfully from the conduct alleged (at [67]-[70]).

  • In a circumstantial case, surveillance gaps that leave open the possibility of unknown third parties having access to and moving items through a location can be sufficient to prevent the Crown from establishing possession beyond reasonable doubt, even where the accused was the only observed person moving bags (at [91]).

  • A reasonable hypothesis consistent with innocence need not be positively proved by the defence: where the evidence as a whole leaves it genuinely open that another person placed the drugs in the relevant location without the accused's knowledge, the Crown cannot establish guilt beyond reasonable doubt (at [95]-[96]).

  • Presence at a premises on two occasions, including apparent locking of a door on one occasion, does not without more support an inference beyond reasonable doubt that a person controlled those premises, where an equally available inference is that the person was providing assistance to another (at [85]).

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 133, 161A
- Evidence Act 1995 (NSW), ss 55, 97 101

Cases
- BP v R [2010] NSWCCA 303
- Director of Public Prosecutions (Vic) v Roder (a pseudonym) (2024) 281 CLR 18; [2024] HCA 15
- Hughes v R (2017) 263 CLR 338; [2017] HCA 20
- Shepherd v R (1990) 170 CLR 573; [1990] HCA 56
- TL v R (2022) 275 CLR 83; [2022] HCA 35