Regina v Ozcelik [2000] NSWCCA 495

Reported Decision : 120 A Crim R 12

New South Wales Court of Criminal Appeal

CITATION : Regina v Ozcelik [2000] NSWCCA 495 FILE NUMBER(S) : CCA 60368/00 HEARING DATE(S) : 27/11/00 JUDGMENT DATE : 27 November 2000

PARTIES : Regina v Cumali Ozcelik JUDGMENT OF : Wood CJ at CL at 35 & 37; Dunford J at 36; Carruthers AJ at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/2214 LOWER COURT JUDICIAL Howie DCJ OFFICER :

COUNSEL : (Applicant): A C Haesler (Crown): R A Hulme SOLICITORS : (Applicant): D J Humphreys (Crown): S E O'Connor CATCHWORDS : SENTENCING - Severity appeal - trial counsel did not raise good character - whether miscarriage of justice. LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 R v Birks (1990) 19 NSWLR 677 CASES CITED: R v Ranko Ignjatic (1993) 68 A Crim R 333 R v D (1996) 86 A Crim R 41 Melbourne v R (1999) 198 CLR 1 DECISION : See paragraph 34

IN THE COURT OF CRIMINAL APPEAL 60368/00

WOOD CJ at CL DUNFORD J CARRUTHERS AJ

Tuesday, 28 November 2000

REGINA v Cumali OZCELIK

JUDGMENT

1 CARRUTHERS AJ: Cumali Ozcelik appeals against his conviction on 27 March 2000 at the Sydney District Court on one count of Supply Prohibited Drug (heroin) pursuant to ss 25(1)/29 of the Drug Misuse and Trafficking Act 1985. 2 On 9 June 2000 his Honour, Judge Howie QC, the trial judge, sentenced the appellant to imprisonment for twenty three months to commence on 9 June 2000 and to expire on 8 May 2002. His Honour fixed a non-parole period of eleven months to commence on 9 June 2000 and to expire on 8 May 2001. 3 No application for leave to appeal against sentence has been lodged in the event that the appeal against conviction is dismissed. 4 The appellant was arraigned before Judge Howie and a jury of twelve at the Sydney District Court on 23 March 2000 on an indictment containing only one count which is referred to above. As indicated, the jury returned a verdict of guilty on 27 March 2000. That was at the conclusion of the third day of the trial, the weekend having intervened. 5 The appellant is of Turkish origin having been born on 10 May 1949. At the time of the subject offence he was living on his own in a house at Cabramatta. The relevant evidence at the trial can be relatively briefly stated. 6 On 24 June 1999 police went to the premises where the appellant resided in Cabramatta intending to search those premises, having formed the belief, it was said, that the appellant was supplying drugs from the premises. As it happened police met the appellant in the street as he was about to leave in his motor vehicle. They told him what they believed happened there and requested that they be permitted to search his premises. The appellant complied with this request and also a request that the police be permitted to search his person. 7 Bearing in mind that the appellant is a disability pensioner, the police found a remarkably large sum of money in his wallet. In the front of the wallet they found $905 and in the back of the wallet they found $1,950. 8 Whilst awaiting the arrival of a video camera and an independent officer to view the search in accordance with standard practice, the police officers entered the appellant's unit in order to secure them so that the search could take place. 9 Evidence was put before the court that in the course of this activity one of the police officers accidentally tripped on an object under the carpet. After the carpet was lifted, a round metal tin was located containing sixty one coloured balloon packages and one foil. Later investigation disclosed that the balloon packages and the foil contained a total weight of 12.32 grams of heroin. 10 Thus the Crown had the benefit of the supply provisions of the Drug Misuse and Trafficking Act. In any event the video and the independent officer arrived. An ERISP was conducted during which the appellant was questioned about the source of the money contained within the appellant's wallet. The appellant said that some of the money had been won playing poker machines at his club and part had been lent to him by a relative and some of it was his pension cheque. The appellant denied any knowledge of the existence of the tin. 11 At the trial the accused tendered poker machine slips indicating that he had recently won something to the order of $500 at his local club on the poker machines. He also gave evidence that he had borrowed something in the order of $900 from his brother and that the remainder of the money in the wallet was his, being an accumulation of pension money. 12 During the course of the search the police also located a set of Tanita electronic scales in a bedroom of the appellant's home. 13 Evidence was before the jury by an experienced police investigator in drug matters that the particular make and model of scales found on the premises was used by persons to weigh heroin and other cutting agents used in the packaging of heroin. The scales were capable of measuring up to 100 grams. In essence the appellant's explanation for the possession of the scales, the presence of which unquestionably presented serious difficulties for him, was that he had purchased them some years before in order to send them to an acquaintance in Turkey. This explanation prompted Judge Howie to comment during his remarks on sentence, "Unfortunately for the prisoner he had some difficulty in explaining to the jury why it was in those circumstances he still had possession of the set of scales". 14 At the trial the Crown relied, in order to establish possession, upon the actual finding of the tin with the drugs contained therein, the large sum of money located in the appellant's wallet and the presence of the scales. There were some difficulties in the Crown case which were exposed during the course of cross-examination by Counsel appearing for the appellant at the trial. There was the fact that the police alleged that they had discovered the tin containing the heroin accidentally prior to the video team arriving for the appropriate search in accordance with the normal procedure; further the scales had not been examined by an expert to determine whether the appellant's fingerprints were on them or whether there were traces of heroin on them. There was of course the fact that some explanation had been given for the possession of the scales and some explanation for the large amount of money found in the accused's wallet. 15 In his careful written submissions counsel for the appellant, who was not counsel at the trial said: - "His Honour's summation to the Jury fairly put both the case for the Crown and the defence. It fairly reflects both the evidence, the issues in dispute and the applicable law."