R v Lyberopoulos [2002] NSWCCA 268

New South Wales Court of Criminal Appeal

CITATION : R v Lyberopoulos [2002] NSWCCA 268 FILE NUMBER(S) : CCA 60650/01 HEARING DATE(S) : 26 June 2002 JUDGMENT DATE : 26 June 2002

PARTIES : R v Peter Lyberopoulos JUDGMENT OF : Giles JA at 1; Dunford J at 37; Greg James J at 38

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0304 LOWER COURT JUDICIAL Stewart ADCJ OFFICER :

COUNSEL : G Scragg - Appellant G I O Rowling - Crown SOLICITORS : Jeffreys & Associates - Appellant Director of Public Prosecutions - Crown CATCHWORDS : Drug offences - supply prohibited drug - actual supply and deemed supply - whether evidence supported verdicts - depends on facts. ND. DECISION : Each of the convictions quashed and verdicts of acquittal entered. Vary the commencement date of the sentence imposed on the appellant by Morgan DCJ on 31 October 2001 on one count of supply prohibited drug to commence on that day.

IN THE COURT OF CRIMINAL APPEAL CCA 60650/01

GILES JA DUNFORD J GREG JAMES J

Wednesday 26 June 2002 R v LYBEROPOULOS Judgment 1 GILES JA: The appellant was indicted on two counts that on 11 March 2000 he supplied a prohibited drug, an offence under s 25(1) of the Drug Misuse and Trafficking Act 1985. The prohibited drug was cannabis leaf. The first count was left to the jury as an actual supply. The second count was left to the jury as a deemed supply. I will come to actual supply and deemed supply later in these reasons. 2 The appellant was tried before Stewart ADCJ and a jury on 27-29 June and 2 July 2001, and was found guilty on both counts. He was sentenced on each count to imprisonment for two and a half years commencing on May 2001 with a non-parole period of 15 months. He appealed against conviction. He did not appeal in relation to sentence. 3 Most of the Crown evidence was not disputed. The appellant did not give evidence, or call evidence beyond the tender of photographs. I will identify the area of dispute as appropriate in what follows. 4 The appellant arrived in Sydney from Adelaide on an Ansett flight at 4.30 pm on 11 March 2000. He collected a red suitcase from the carousel, and picked up an Avis Rent-a-Car. 5 The police were conducting surveillance. Detective Sergeant Rowles first followed the appellant's car, then went direct to the Glensynd Motor Inn in Randwick. The receptionist gave him a plastic card which operated as a key to room 107, and he went to the room. There was a glass sliding door providing access from the room to a balcony at the rear of the motel. Detective Sergeant Rowles gave evidence that he opened the curtain on the door to allow vision into the room from outside. He did not remember the nature of the curtaining or precisely what he did, but said that he opened the curtain about the width of the glass door. His purposes included allowing other police to see into the room. As it happened, whatever he did was of no consequence because, on the evidence of the other police, the curtain was closed when they later began to keep watch at the rear of the motel. 6 Detective Sergeant Rowles left the room and returned the key to the receptionist. He took up a position watching the front entrance to the motel. 7 The appellant arrived at the motel at 5.16 pm. He parked his car, took the red suitcase from the boot, and entered the motel. There was evidence that the police had "found out he had a booking" and that room 107 was the room allocated by the motel staff. The appellant collected something from the receptionist and went to the lift. 8 Benjamin Cullen arrived in Sydney on a Greyhound bus from Adelaide at about 6.45 pm on 11 March 2000. He was carrying an Adidas backpack and collected a black suitcase which had been placed on the footpath by the bus driver. He took a taxi to the Glensynd Motor Inn, arriving at about 7.15 pm. The then Detective Sergeant Breton and Detective Maranesi followed his taxi, and after he entered the motel began to keep watch at the rear of the motel. 9 At about 7.45 pm Detective Sergeant Rowles went to the door to room 107. He put his ear to the door, and heard voices which he said were those of the appellant and Cullen. 10 At about 7.55 pm a car driven by Christos Fotiou arrived at the motel and parked next to the appellant's rent-a-car. Fotiou entered the motel. He was not carrying anything. He went to room 107, knocked, and entered when the door was opened. At about 8.05 Fotiou left the motel room. He was carrying a dark bag which appeared to be full. He returned to his car and drove away. Before he had travelled far he was stopped by the police. A search of his car revealed a black plastic bag containing three vacuum sealed plastic bags themselves containing what was later established to be cannabis leaf. This information was relayed to the police keeping watch on the motel. 11 Detective Sergeant Breton gave evidence that he was keeping watch on room 107 from the rear of the motel, and that at about 8.09 pm the appellant "drew the curtain open" and looked outside. He gave evidence - "Q. What did you then observe? A. I saw the black suitcase that we saw from the bus being handled by Cullen into the hotel, I saw that suitcase was on the bed and Cullen was passing Lyberopoulos plastic bags, not like shopping bags, plastic square shaped bags. Q. What was the accused doing with those? A. He was putting them into a red, white and blue shopping bag that you can buy at shops, a cheap plastic one. Q. And then what did the accused do? A. He looked outside the window and he moved the big black suitcase I referred to as Cullen's suitcase then from the bed to the foot of the bed." 12 In cross-examination Detective Sergeant Breton said that Cullen passed bags to the appellant on at least three occasions. He said that he could not remember whether he saw Cullen open the black suitcase and he "basically … saw the physical action of the passing". It came out in the cross-examination that in a video taken when the appellant and others were apprehended it was said to the appellant that "police saw person who has identified himself here as Peter through the window opening this black bag which was on the bed before". This was otherwise unexplored in the evidence. 13 Detective Maranesi gave evidence that when he took up his watching from the rear of the motel at about 7.15 pm the curtain was closed. He said that at about 8.09 pm he saw the curtained opened by the appellant, and - "Q. And during the period the curtain remained drawn, what did you see? A. I saw the accused standing there. He walked back into the room area. Saw the person Cullen in the unit, standing in the vicinity of the accused. I saw a black coloured bag situated on a bed within the room. I saw that the top flap or the lid part of the bag was opened. I then saw the person Cullen removing bags and items from that bag and handing them to the accused who at the time was holding a red, white and blue striped shopping bag or canvas shopping bag. Q. Where was the black coloured suitcase? A. Well it appeared to me that it was lying or situated sitting on a bed. Q. And then later did you see the accused standing at the glass sliding door? A. Yes. Q. Looking out on to Abbotsford Road? A. Yes. Q. And what did he do next. Do you recall how long he was there? A. Looking out, not very long at all. It was just basically, the curtain was drawn up, had a look outside had a glance and returned back into the main stream of the unit. Q. Well what happened to the black coloured suitcase on the bed? A. I don't know. Q. Well if you read your statement on 20 March, would you have a look at paragraph 11? A. The accused, having drawing [sic] the curtain open, moved the black coloured suitcase from the bed."