R v LYBEROPOULOS [2002] NSWCCA 280

New South Wales Court of Criminal Appeal

CITATION : R v LYBEROPOULOS [2002] NSWCCA 280 FILE NUMBER(S) : CCA 60935/01 HEARING DATE(S) : 1 July 2002 JUDGMENT DATE : 24 July 2002

PARTIES : Regina Peter Lyberopoulos JUDGMENT OF : Mason P at 1; Hulme J at 2; Simpson J at 71

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/41/0317 LOWER COURT JUDICIAL Morgan DCJ OFFICER :

COUNSEL : Crown: GIO Rowling Appellant: G Scragg SOLICITORS : Crown: SE O'Connor Appellant: Jeffreys & Associates

DECISION : Appeal against conviction dismissed. Leave to appeal against sentence granted, but appeal dismissed.

- 22 - IN THE COURT OF CRIMINAL APPEAL

File No: 60935/01

MASON P HULME J SIMPSON J

Date

PETER LYBEROPOLOUS v REGINA JUDGMENT 1 MASON P: I agree with Hulme J. 2 HULME J. On 29 October 2001, the abovenamed Appellant was tried before Morgan DCJ and a jury with supplying a prohibited drug, viz. 4.930 kilograms of cannabis leaf. He was convicted and, on 31 October 2001 sentenced to imprisonment for a period of 2 years from 11 August 2002 with a non-parole period of 12 months. The supply was a deemed supply: The Crown case was that the Appellant had been in possession of the cannabis. 3 The cannabis was found in 2 travel bags in the boot of a motor vehicle stopped by a Senior Constable White near Yass. In the vehicle at the time were the Accused, a Mr Konstantinou (known as Bill) and a Mr Geogiadis (known as Nick). The vehicle had been rented by the Accused but Mr Konstantinou was driving at the time the vehicle was stopped. All three occupants were arrested at the scene. In due course charges against Messrs Konstantinou and Georgiadis were dropped pursuant to an arrangement whereby they agreed to give evidence against the Accused. In fact the only witnesses against the Accused were these 2 persons, Constable White and a Ms Mittiga from Avis Rent-A-Car in Adelaide. 4 Ms Mittiga gave evidence to the effect that the rental agreement showed the renting of the car to a Peter Lyberopoulos and that he had produced a driver's licence and credit card in his name with an address of 350 Montague Road, Para Vista. She also gave evidence to the effect that it was her company's practice to clean out cars between hirings. In cross-examination she effectively conceded that the credit card may have been in the name of Mr George Lyberopoulos and that sometimes cars were not completely emptied of prior hirer's belongings. 5 Mr Konstantinou gave evidence to the following effect. The Appellant, whom he had known for some 15 years contacted him and asked if he wished to go to Sydney for 2 or 3 days. In due course, Mr Konstantinou agreed and the Accused said that he would pick Mr Konstantinou up that evening. The Appellant arrived at the time stated, opened the boot and Mr Konstantinou placed a suitcase and suit cover in the boot. Already in the boot was what Mr Konstaninou described as "his suitcase and another 2 bags in deeper". Mr Konstantinou then entered the driving seat and they drove off. On the road the Accused spoke on a phone to Mr Georgiadis and they then drove to his place. Mr Georgiadis came out with a small bag and put that in the boot and the three then drove off. 6 During cross-examination, Mr Konstantinou denied that he had put the 2 travel bags in the boot. He denied a variety of suggestions to the cumulative effect that he was the person who asked the Accused to go to Sydney with him and was concerned in the obtaining of the car. He adhered to his evidence that Mr Georgiadis' bag was a small one saying it was a plastic one and contained "one pair of jocks and one pair of socks". 7 Mr Georgiadis agreed that the other 2 had picked him up but it was after the Accused and then Mr Konstantinou had spoken to him in a phone call. He said that while he had put his clothes in the boot, the clothes were loose and not in a bag. It was dark at the time and he said that he did not see what else was in the boot. 8 Constable White gave evidence of stopping the vehicle, speaking to the occupants and searching the boot. He detected an odour similar to that of cannabis. He said that in the boot were 2 sports bags, 2 suitcases, a blue one of which the Appellant identified as his, a suit protection type bag, some loose clothing, a toiletries bag but no small plastic bag containing clothing. 9 When he asked who owned one of the sports bags, a brown and beige one, the Accused said "that's Bills". Constable White opened the bag and saw it contained green vegetable matter. When Mr Konstantinou was then asked a similar question, he said he didn't know. Mr Georgiadis said that he had never seen the bag before. 10 Constable White again said that he then opened the bag. He then gave evidence that he said to the 3 men "what can you tell me about this. I'm going to ask you some questions in relation to this matter. You are not obliged to say anything unless you wish to do so, but whatever you do say will be recorded and may be later used in evidence. Do you understand that? 11 According to Constable White, the three men replied "yes" and the accused added "Nothing. I don't know about this". 12 Constable White asked, "is there anything else like this in the vehicle" indicating parcels of green vegetable matter and the accused replied "Yes". The accused then grabbed a black sports bag which was directly behind the rear seat and next to the brown and beige sports bag. 13 Noticing a small padlock locking the two zippers of the bag shut, Constable White said to the accused "Can you open this bag? I need it open." According to Constable White the accused said "Yes" and walked to the front nearside door of the vehicle. He returned a short time later with some keys and an unlocked small padlock. (In cross-examination -T58, Constable White gave an answer that suggested that it was after he returned with keys that the Appellant opened the padlock.) 14 Constable White then opened the top flap of the bag, noticed a odour of cannabis, moved some clothing in the bag aside and noticed parcels of green vegetable matter. Constable White then said to the accused "what can you tell me about this." The accused replied "I don't know, I don't think I should say." 15 A little later Constable White gave the three men a further caution. Each said they understood and Constable White then said, indicating the two bags containing the green vegetable matter "who owns these two bags?" The accused said "I don't think I should say until I talk to my solicitor." 16 Some time after this the 3 men were arrested and conveyed to a police station. The Appellant was interviewed, at which time the Appellant said that he did not want to answer any questions. Her Honour then gave to the jury an explanation as to the Appellant's rights in that regard and instructed them that no inference adverse to the Appellant could be drawn. Her remarks were in general terms, not restricted to the attitude of the Accused at the formal interview. Constable White went on to say that the other 2 men had taken the same stance as the Appellant. 17 The evidence referred to in the immediately preceding paragraph occurred about 2 pages of transcript after the evidence of the conversations and statements of the Accused which I have recounted. 18 A later more thorough search of the vehicle revealed another small bag of green vegetable matter in the tool compartment. All of the green vegetable matter was found, when analysed, to be cannabis leaf. 19 In cross-examination, Constable White rejected suggestions that there had been no conversation between him and the Appellant concerning a key or black bag, that he had not asked the Appellant to open the black bag and that the Appellant had not obtained a key and brought it back. 20 The Appellant gave evidence. He said that the ideas of going to Sydney and hiring a car were those of Mr Konstantinou who asked the Appellant to go with him. He said that his brother, Mr George Lyberopoulos went with them to hire the car because his brother had a credit card. Mr Konstantinou handed Mr George Lyberopolous $200. The Appellant added that he had never hired a car before . 21 According to the Appellant, his wife packed his bag and put it in the boot and he never saw into the boot prior to it being opened by Constable White. Prior to Mr Konstantinou putting his things in the boot, the Appellant saw him with 2 sports bags, one light and one dark, in his right hand and something else, maybe a suit or some clothes in his left hand. He denied having had any key to a bag as Constable White had suggested. 22 In cross-examination, he said that he was not asked by the Avis people whether there were going to be any other drivers and didn't know that there had to be any such nomination. He had no problems with his eyesight. He repeated his evidence that he had never hired a car prior to that used at the time of his arrest but after being shown some documents acknowledged that he had signed an additional driver's form in connection with a car rented on 30 July 1998. He indicated that he must have been mistaken as to dates. 23 Also called on behalf of the Appellant were his de-facto wife and brother. She agreed that she had packed his suitcase and placed it in the boot which previously had nothing in it. She said that the Appellant had driven to Sydney a couple of weeks before he was arrested. And that he did have problems driving at night. Mr George Lyberopoulos said that Mr Konstantinou went with him and the Appellant to hire the vehicle and gave him $200 towards the cost of the car. Mr George Lyberopolous agreed that he had hired a car on 30 July 1998. 24 The Grounds of Appeal were:- 1. (a) Her Honour erred in law in admitting into evidence the conversations at the scene particularly the alleged admission. (b) Her Honour failed to exercise any discretion in respect of the said conversations and alternatively should have rejected the said conversations in the exercise of her discretion.