New South Wales Court of Criminal Appeal CITATION : Regina v Zaiter [2004] NSWCCA 35 HEARING DATE(S) : 25/02/04 JUDGMENT DATE : 25 February 2004 JUDGMENT OF : Ipp JA at 1; Sully J at 28; Adams J at 29 DECISION : (1) Appeal upheld (2) Verdict of the jury set aside and in lieu thereof there be entered a judgment of acquittal. CATCHWORDS : CRIMINAL LAW - Supply of methylamphetamine and ecstasy with knowledge - Intermediate fact that was an indispensable basis for an inference of guilt - Where trial judge did not give a direction that such fact must be proved beyond reasonable doubt - PRACTICE AND PROCEDURE - Whether a new trial should be ordered - Probability that Crown would run the case in a different manner - Whether a reasonable jury would be able to return a verdict of guilty. LEGISLATION CITED : Chamberlain v The Queen (No 2) (1984) 153 CLR 521 CASES CITED : Gipp v The Queen (1998) 194 CLR 106 Shepherd v The Queen (1990) 170 cLR 573 PARTIES : Regina v George Zaiter FILE NUMBER(S) : CCA 60495/03 COUNSEL : G Rowling (Crown) S Odgers SC (Appellant) SOLICITORS : S Kavanagh (Crown) J Nicopoulos (Appellant) LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/1043 FILE NUMBER(S) : LOWER COURT Ainslie-Wallace DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60495/03 IPP JA SULLY J ADAMS J Wednesday 25 February 2004 REGINA v GEORGE ZAITER Judgment 1 IPP JA: On 21 February 2003 the appellant was found guilty on two charges of between 1 November 1998 and 1 September 1999 knowingly taking part in the supply of methylamphetamine and ecstasy between those dates. The appellant appeals against those convictions. He also applies for leave to appeal against sentence. 2 In the light of the conclusion to which I have come in regard to the appeal against conviction, it will not be necessary for me to deal with the application for leave to appeal against sentence. 3 The critical issue at the trial was whether the appellant knew, in August 1999, that a man called Pedavoli was using a flat of which the appellant was a lessee, to keep drugs for supply. The other elements of the offences were, in reality, not in issue. The case was fought, essentially, on the basis of whether the requisite knowledge had been proved beyond reasonable doubt. 4 On 19 April 1999 the appellant leased certain premises in Albert Street in a false name. The Crown case at the trial was that he entered into the lease and did so under a false name, because he knew Pedavoli was going to use the flat to store drugs for supply there. 5 Bearing this in mind, the basic facts on which the Crown relied for an inference of knowledge to be drawn beyond reasonable doubt are the following: (a) tapes of telephone recordings made between December 1998 to early April 1999 showed that the appellant knew that Pedavoli was a supplier of drugs; (b) on 19 April the appellant entered into the lease in the false name with the specific purpose of allowing Pedavoli to use the flat to store drugs for supply; (c) Pedavoli, with the consent of the appellant, lived in, or used, the flat at least for some time in August 1999; (d) on 27 August 1999 the appellant was in the flat in the early afternoon while Pedavoli was there for a period of some fifteen minutes; (e) Pedavoli was arrested on the evening of 27 August 1999 and the drugs in question were found in the flat; (f) after Pedavoli's arrest, the appellant, in telephone calls, made anxious enquiries as to the circumstances of Pedavoli's arrest, the police case against Pedavoli and police searches. The anxiety displayed by the appellant was extraordinary and it was open to infer from these telephone calls that the appellant had knowledge that he might be suspected of having committed some offences and, further, that he may have himself supplied drugs to Pedavoli for general onward supply by Pedavoli. 6 The Crown relied on inference to prove the factual elements relating to the purposes with which the appellant entered into the lease. The appellant did not give evidence. 7 There are a number of primary facts which the Crown contended were capable together of giving rise to the inference that the appellant entered into the lease for purposes of allowing Pedavoli to supply drugs there. However, the essential link in the chain of inferences to be drawn for purposes of proving the guilt of the appellant on the two charges has to be that at the time the lease was entered into, the appellant knew that it was to be used as a supply base by Pedavoli. 8 If one removes this element from the list of facts on which the Crown relies to prove its case, one is left with an empty shell. Without proof that the appellant entered the lease for purposes of allowing Pedavoli to use the flat to store drugs for supply, the remainder of the factual material, in my opinion, is incapable of proving beyond reasonable doubt the appellant knowingly took part in the supply of a commercial quantity of ecstasy in August 1999, that being the relevant time according to the trial judge's directions to the jury. 9 The other material to which I have referred, particularly the fact that the appellant was the lessee of the flat, and thereby had power to permit entry to it; the fact that before the lease was entered into he knew that Pedavoli was a supplier of drugs; the fact that, from the telephone conversations, he seemed, even at a later date – that is some time in August – to know that Pedavoli was a supplier of drugs, and seemed to be ready to supply drugs himself to Pedavoli, give rise to a very serious suspicion that the appellant was guilty of the offences charged. But suspicion is not enough. 10 The Crown must prove its case beyond reasonable doubt. Beyond reasonable doubt is not constituted by establishing serious suspicion. I therefore conclude that the allegation relating to the purpose for which the appellant entered into the lease on 19 April 1999, was an intermediate fact that was an indispensable basis for an inference of guilt: Chamberlain v The Queen (No 2) (1984) 153 CLR 521; Shepherd v The Queen (1990) 170 CLR 573 at 576 and 579; Gipp v The Queen (1998) 194 CLR 106 at 133. 11 In Gipp, Justice McHugh and Justice Hayne, said, at 133: "Sometimes, a fact may be so indispensable to a finding of guilt that it is necessary to direct the jury that that finding be proved beyond reasonable doubt even though that fact is not one of the ultimate facts that constitute the offence." 12 As I have explained, in the present case I consider that the facts relating to the purpose for which the appellant entered into the lease is a fact so indispensable to the finding of guilt that it was necessary for the trial judge to direct the jury that that fact be proved beyond reasonable doubt. 13 The trial judge did not give such a direction. In my view, by failing to give that direction, the appellant was deprived of a reasonable opportunity of persuading the jury he should be found not guilty. 14 In my view, therefore, on this ground, the verdict of the jury should be set aside. 15 I now come to the question of whether a new trial should be ordered. Having read the relevant material, in particular the submissions provided in writing on behalf of the appellant and the Crown, and having listened to the oral submissions first made by both counsel, I was, at first, of a mind that the issue was finely balanced and was a difficult question. 16 However, towards the conclusion of argument, the Court was supplied with a transcript of evidence relating to testimony given by a police officer who had been qualified as an expert in a code used by the appellant and other persons to whom he spoke in the various telephone conversations that were the subject of the tape recordings that were produced in evidence. 17 In the course of cross-examination, the police officer stated, in effect, that she believed from the material that she had examined, that is, the telephone calls she listened to, her own surveillance and other police surveillance, that, after April 1999 the appellant had a sexual relationship with Miss Orlena Korpina, a person of Russian background, who is the person who he said he wished to rent the flat for, when giving the explanation for renting the flat in a false name. 18 I would say that I am surprised that no objection was taken to the substance of this question by the prosecutor. Be that as it may, no objection was taken and the evidence stood. The same comment that I now make can be made about other evidence which I will proceed to detail, given by the police officer concerned. She agreed that about the time the lease was entered into, it appeared from the tape recording that the appellant was in a relationship with a person called Amanda. 19 This, too, tends to support the explanation given by the appellant for entering into the lease in a false name. The explanation was that he had a long term association with Amanda, and wished to conduct a clandestine affair with Miss Korpina. For that reason, he rented the flat in the false name, that is, the flat in which the drugs in question were found. 20 Later on in her evidence the police officer accepted that from the tapes it appeared that the appellant believed that Miss Korpina was sitting in the flat in question "all day and waiting for him". She accepted that there was nothing to suggest that Mr Zaiter's statements were to the effect that he believed that he was about to move into the flat and keep Miss Korpina "under control" there while he was about to take his other girlfriend, Amanda, to Queensland were incorrect. 21 I need to refer to one other passage in this evidence. It was put to the police officer in cross-examination that the appellant told another person that he wanted a flat to entertain a girlfriend in it, and he did so because he did not wish Amanda to find out what he was doing. The following exchange then occurred: "Q. Really, that explanation fits in with the circumstances we have just gone through? A. Could do, yes." 22 I repeat, there was no objection by the Crown to this question, and the answer. It follows, then, that the evidence of the expert police officer called by the Crown was that the explanation proffered by the appellant for giving a false name in entering into the lease was an explanation that fitted in with the telephone calls she had listened to from her surveillance, and other police surveillance. 23 On that basis, it seems to me that it would not be possible to say that a jury might not reasonably come to the conclusion that the reason given for the false name was genuine. I accept the submission forcefully put by counsel for the Crown that there was other evidence on which the jury could rely that would discount the testimony of the police officer. I have a great deal of sympathy with that approach, but that does not answer the question that this Court has to ask in addressing the issue of whether a new trial should be ordered, that is to say – would a reasonable jury be able, on the evidence led at this trial, to return a verdict of guilty? 24 I have explained earlier why I came to the conclusion that the purpose for which the appellant entered into the lease was an indispensable link in the chain of inferences on which the Crown relied for its contention that the appellant was guilty as charged. 25 For the same reason I consider the trial judge should have directed the jury that the purpose question was one that had to be established in the matter contended for by the Crown beyond reasonable doubt. I also concede that the fact that there is a reasonable possibility that a jury might find that the explanation given by the appellant was true, makes it impossible for a reasonable jury to come to the conclusion beyond reasonable doubt that the appellant was guilty of the offences with which he was charged. 26 I accept also, I should say, that if the case were to be run at a new trial in a different way, and if other aspects of the Crown case were to be given greater emphasis than they were at the trial, and if appropriate objections were taken to questions of the police officer, to which I have referred, there would be a real prospect of the appellant being found guilty. 27 However, that is not the basis on which a retrial should be ordered. The Crown must be held to the way in which it conducted the initial trial. For those reasons I am of the opinion that a retrial should not be ordered. I, therefore, propose that the appeal be upheld and the verdict of the jury set aside, and in lieu of the verdict of the jury there be entered a judgment of acquittal. 28 SULLY J: I agree with the orders proposed by the presiding judge and with the entirety of the reasons given by his Honour for those orders. 29 ADAMS J: I also agree. I wish to add an observation of my own. 30 In this case the presiding judge, if I may say so respectfully, rightly concentrated upon the opinion evidence of the police officer, which was given without objection. There can be little doubt that the questions asked and the answers given that have been quoted by his Honour were indeed objectionable. This is not to say the questions should not have been asked, or that the answers should not have been given. 31 In many cases where there is extensive police surveillance, including tape recordings made of conversations, the material to be considered can be voluminous, and it is often a convenient course for counsel for the Crown and defence to agree upon the effect of some of that material to avoid the need to call extensive evidence to prove the same, when it is not truly controversial. 32 This is especially so when the point sought to be made is a negative one where, strictly, proof of the whole of the material would be necessary in order to establish the negative. I am not able to say whether, in this case, such a course was either open or appropriate. I simply do not, for myself, wish it to be thought that concessions of the kind made by the Crown Prosecutor here, will always be inappropriate. 33 IPP JA: The orders that I proposed will be the orders of the Court. ********** Last Modified: 03/08/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.