El Bayeh v The Queen [2011] VSCA 44 (25 February 2011)

Last Updated: 25 February 2011

SUPREME COURT OF VICTORIA

COURT OF APPEAL

	S APCR 2009 0500

TOREQ EL BAYEH	Applicant
v
THE QUEEN	Respondent

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JUDGES	NETTLE, NEAVE and TATE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	14 February 2011
DATE OF JUDGMENT	25 February 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 44
JUDGMENT APPEALED FROM	[2008] VSC 636 (Curtain J)

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CRIMINAL LAW – Conviction – Trafficking in a drug of dependence and possession of equipment relating to trafficking – Evidence – Evidence destroyed by Forensic Services Centre prior to trial – Whether destruction of evidence lawful – Trial – Whether judge erred in refusing to stay trial or alternatively failing to exclude evidence – Fair trial – Whether destruction of evidence deprived applicant of fair trial – Application for leave to appeal against conviction refused – The Queen v Edwards [2009] HCA 20; (2009) 255 ALR 399, R v Lobban [2000] SASC 48; (2000) 77 SASR 24 considered.

CRIMINAL LAW – Sentencing – Double punishment – Whether drug the subject possession the same as drug trafficked – Role – Amount of drug trafficked – Whether judge sentenced on basis of correct amount – Manifest excessiveness – Whether three and a half years with a non parole period of two and a half years manifestly excessive – Application for leave to appeal against sentence refused.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr C B Boyce	Robert Stary & Associates

For the Respondent	Mr A Tinney SC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

1 Following a trial in the Criminal Division of the Supreme Court, the applicant was convicted of one count of trafficking in a drug of dependence and one count of possession of equipment relating to trafficking, and was sentenced to a total effective sentence of three and a half years’ imprisonment with a non-parole period of two and a half years. He now seeks leave to appeal against conviction and sentence.

The Crown case at trial

2 The applicant was presented for trial on a count of trafficking in a drug of dependence in not less than a commercial quantity (Count 1); as an alternative count, the count of trafficking simpliciter (Count 2); and the count of possessing equipment relating to trafficking (Count 3).

3 The Crown alleged that between 10 and 11 April 2006 the applicant was engaged in the movement of not less than a commercial quantity of phenyl-2-propanone (‘P2P’) (which is a precursor chemical to the manufacture of methylamphetamine and itself a drug of dependence) and that, on 11 April 2006, he was in possession of various items and chemicals (namely, the P2P, methylamine, two Buchner funnels and filter papers) with the intention that they be used for the purposes of trafficking in a drug of dependence, in particular, in the manufacture of methylamphetamine.

4 The offending was said to have arisen in the context of Horty and Milad Mokbel's alleged drug trafficking activities. Horty Mokbel was alleged to be the applicant’s co-offender and was presented on a count of trafficking, between 1 November 2004 and 30 April 2006, in not less than a commercial quantity of methylamphetamine. He was, however, acquitted.

5 In support of its case against the applicant, the Crown adduced evidence that on 10 April 2006 he was observed by surveillance police to drive a car he had hired to the JB Hi-Fi store in Keilor. He entered the shop and then very shortly afterwards returned to the car and drove off. The next day he was observed at the BP Service Station at Brunswick. Other evidence established that he had telephoned Akl Hammoud and asked him to meet him there. The two of them were subsequently seen at the petrol station and then to drive off in convoy to a laneway nearby. After that, the applicant and Hammoud were observed at the rear of Hammoud's car and then both cars were seen to exit the laneway.

6 The police followed Hammoud's car and some 12 minutes later intercepted him at the Caltex Service Station in Coburg. A search of the boot of the car located two red jerry cans of liquid, a white container of liquid and a box containing the Buchner funnels and filter papers. The contents of the two red jerry cans were analysed and found to contain a total of 12.3 litres of liquid which contained 11.2 kilograms of P2P. A commercial quantity of P2P is 2 kilograms. One jerry can contained 2.5 litres of the P2P and the other 9.8 litres of the P2P. The purity of the contents of each of the individual containers was never analysed. The jerry can with the larger amount of P2P was said to have been found within a sports bag inside the boot.[1] There was, however, no photograph of that container in situ in the sports bag.

7 The applicant conceded that he had placed the box containing the white container of methylamine, the filter papers and the Buchner funnels into the boot of Mr Hammoud's car, but denied being in possession of the P2P or trafficking in it.

8 In final address to the jury, defence counsel raised for the jury's consideration, as an alternative possibility, that the applicant had only the red jerry can with the lesser amount of P2P in his possession and, since there was no evidence as to the purity of that P2P in that jerry can, the jury could not be satisfied as to whether he was trafficking in a commercial quantity.

9 That suggestion was based on evidence of Akl Hammoud and his previous conflicting statements as to how many red cans he saw the applicant place in his car, the absence of evidence as to the purity of the liquid in the red can containing the smaller amount of P2P, the location of the can holding the larger amount inside the sports bag, and the speed with which the exchange was said to have taken place. Having regard to the way in which the case was conducted, there was nothing in the evidence which would have permitted the jury to return the verdict of guilty to the alternative count of trafficking simpliciter unless they accepted defence counsel’s suggestion.

10 The count of possession of equipment related to the methylamine, the P2P, the Buchner funnels and the filter papers located in Akl Hammoud's car. The Crown case was that the applicant was in possession of those items before he gave them to Akl Hammoud for safekeeping, and knew that those items and chemicals were intended for use in the manufacture of methylamphetamine.

11 The applicant was acquitted on Count 1 and convicted on Counts 2 and 3.

Appeal against conviction

12 The sole ground of appeal against conviction is that the trial judge erred in refusing to stay the trial or, alternatively, in failing to exclude evidence of the items found in the boot of Akl Hammound’s car, on the basis that they had been destroyed by an officer of the Forensic Services Centre before the trial.

13 At trial, defence counsel argued that the destruction of the items had been unlawful, and in any event that the inability of the defence to inspect the items would deprive the applicant of a fair trial, and for that reason the trial should be stayed or, alternatively, that any evidence of the discovery, identity and nature of the items should be excluded as a matter of fairness.

14 The judge ruled that the destruction of the items was not unlawful but that, even if it were unlawful, the officers concerned had acted in good faith, in accordance with established practice, in the belief that they were acting lawfully and without any intention of prejudicing the applicant, and that the destruction of the items would not deprive the applicant of a fair trial. Thus, her Honour concluded, a stay of the trial was not warranted and fairness did not require that evidence of the items be excluded.

15 Before this court, counsel for the applicant attacked the judge’s ruling at two levels. He contended that the judge was wrong in holding that the destruction of the items was not contrary to s 83 of the Drugs Poisons and Controlled Substances Act 1981 (‘the Act’). Further or alternatively, he submitted that, whether or not the destruction contravened s 83 or was otherwise unlawful, it was not open to the judge to conclude that the destruction of the chemicals would not deprive the applicant of a fair trial.

Section 83

16 It is convenient to deal first with the scope of s 83. At relevant times, the section provided as follows:

83. Forfeiture of drug of dependence or substance before conviction
(1) Upon application in that behalf by a member of the police force the Magistrates' Court may upon proof that—
(a) a substance is or contains a drug of dependence or a poison or controlled substance; or
(b) an instrument, device or substance is an instrument, device or substance that is or has been used or is capable of being used for or in the cultivation, manufacture, sale or use or in the preparation for cultivation, manufacture, sale or use of a drug of dependence—
and upon such notice being given to such persons as the court directs, order that the instrument or device or the whole or any part or parts of the substance, drug of dependence or poison or controlled substance be forfeited to Her Majesty and either destroyed or disposed of in such manner as is provided in the order, and may also make a finding of fact as to—
(c) the quantity of the drug of dependence, substance or poison or controlled substance produced to, or inspected by, the court, the quantity ordered to be destroyed or disposed of, the quantity remaining, and the fact that what remains is part of what was produced to, or inspected by, the court; or
(d) the nature of any instrument or device produced to, or inspected by, the court—
and may also order that the quantity remaining of the substance, drug of dependence or poison or controlled substance be forfeited to Her Majesty and either destroyed or disposed of in such manner as is provided in the order when no longer required for the purpose of any subsequent proceedings.
(1A) The Magistrates' Court has power—
(a) to give any directions; or
(b) to authorise the Minister to give any appropriate directions—
necessary to give effect to any order made by it under sub-section (1).
(2) Where a finding of fact is made under sub-section (1), production in any subsequent proceedings of an order containing the finding of fact shall be conclusive evidence of the matters to which the finding relates.

(3) In sub-section (1) "cultivation", in relation to a drug of dependence that is a narcotic plant, includes—
(a) the sowing of a seed of a narcotic plant; and
(b) the planting, growing, tending, nurturing or harvesting of a narcotic plant.

(4) Without limiting the manner in which evidence may be given on an application under sub-section (1), the Court may inspect any place, process or thing.
(5) If an order is made under sub-section (1) requiring the destruction or disposal of an instrument or device or the whole or any part of any substance, drug of dependence or poison or controlled substance, the order may be executed before the end of any appeal period applicable under section 90 if a sample of the thing to be destroyed or disposed of is taken in accordance with this Act and kept until the end of that appeal period and the determination of any appeal made within that period.
* * * * *
* * * * *

17 The judge held that the destruction of the drugs and equipment was not authorised by s 83, but that s 83 was facultative and did not exclude other lawful means of destroying drugs lawfully seized by police in the execution of their duties, and that in this case it was or may have been authorised by s 122 of the Police Regulation Act 1958. Her Honour reasoned that:

Section 83 has apparently operated in much the same form since 1983, it is not expressed in mandatory terms, it does not say in every case other than where the destruction or disposal is sought in the interests of health and safety, nor does it state that the procedure applies to items seized without a search warrant, indeed, s.82 only requires that those items be dealt with according to law. Although the Hansard Report of the Second Reading Speech of the Bill which introduced s.83 in June of 1983 stated that the Bill provides any drug of dependence which is seized either under a warrant or by members of the police force exercising [their] power to search vehicles and persons in a public place without a warrant, is immediately forfeit to the Crown and may be destroyed or otherwise dealt with in accordance with the Act ... [i]n fact, the Act does not provide for immediate forfeiture and s.82 does not state that the drugs are to be dealt with according to the provisions of the Act. As s.81 refers specifically to drugs seized under warrant, one might expect the legislation to expressly state in s.83 that it also refers to drugs not seized under warrant if that is what was intended. Further, s.82 does not stipulate that drugs seized without warrant should be dealt with pursuant to the procedure laid down by s.83, it refers only to the obligation to deal with it according to law. Further, s.83 does not provide that notice must be given to interested persons, indeed, one could envisage situations where the identity of persons to whom notice might be given would not be know, and yet despite that, a conclusive finding of [fact] can be made by the magistrate.
...
Section 91 covers the situation where police enter public lands or premises and locate a drug of dependence or enter any other land or premises with the consent of the owner or occupier. It does not require that the drugs be sized pursuant to warrant. Section 91 was enacted in May 2007 ... if s.83 applied in mandatory terms to every case where the drugs were seized without a warrant or the search conducted with the permission of the owner occupier, there would be no need to enact s.91, s.91 does not replace an previous enactment. These considerations suggest that the procedure for destruction envisaged in s.83 is not applicable to every case and is not mandatory .
...
Technically, the disposal of the drugs may be covered in the absence of a warrant and where s.91 does not apply, which is the case here, by the provisions of s.122 of the Police Regulation Act. Although s.122 clearly has a far wider scope and ambit than dealing with and destroying exhibits and would not be the normal situation envisaged under that provision, however, they [the seized chemicals] are unclaimed goods and the police no doubt would be very interested if someone were to come forward and claim them...

18 I agree with the judge that s 83 did not apply but that it is facultative. The context of words and circumstances do not dictate that ‘may’ be read as ‘must’.[2] The means provided for in s 83 are not the only way in which drugs which have been seized by police pursuant to the powers conferred by ss 81 and 82 of the Act may lawfully be disposed of. As the judge said, in cases where health and safety considerations apply, s 91 provides a means of disposal. There is also s 77 of the Confiscation Act 1997, which enables the Director of Public Prosecutions to apply upon conviction for an order that the drugs and equipment be forfeited to the State and destroyed or disposed of as ordered.

Police Regulation Act, s 122

19 Unlike the judge, however, I do not consider that s 122 of the Police Regulation Act[3] applied in the circumstances of this case.

20 Section 122 provides for a means of disposal of goods and chattels which are unclaimed. Prima facie, goods and chattels is wide enough to cover the drugs and equipment which were seized in this case. The term is not defined in the Act but, according to ordinary acceptation, it is a term of wide import which includes all personal estate of whatever description.[4] The difficulty however, is in conceiving of drugs and related equipment which have been seized by police from an alleged offender as unclaimed. For the reasons which follow, I do not consider that drugs and equipment seized pursuant to ss 81 or 82 of the Act are unclaimed.

21 According to the natural and ordinary meaning of claimed, unclaimed goods and chattels suggests goods and chattels which have been lost or abandoned, or left for safekeeping or unattended, and not later sought to be recovered. It does not appear to extend to goods and chattels of which custody has been lost as the consequence of seizure by police in execution of compulsory powers. Nor do I see anything in the Police Regulation Act or otherwise to suggest that s 122 should not be construed in accordance with the natural and ordinary meaning of its terms.

22 If so, it follows that the destruction of the drugs and equipment in this case might not have been lawful, in the sense that they were not forfeited to the Crown at the time of their destruction and were not disposed of pursuant to any statutory provision or order of court which authorised their destruction. I say ‘might’ not have been lawful because, although we were not referred to any other power under which the drugs and equipment may have been lawfully disposed of, counsel had not researched the point closely and were unable to offer full argument on it.

Fair trial

23 That said, however, I doubt that the question of whether there was power to dispose of the drugs and equipment is of much consequence for present purposes. For, as the judge observed, even if the disposal of the drugs and equipment were not lawful, there was no suggestion that the officers involved (Mr Perkal, Mr Singh and Detective Senior Constable Johns) acted with deliberate impropriety. Her Honour was satisfied that all three men acted in good faith and in conformity with established (albeit, as it appears, misguided) practice. There was, therefore, no question of excluding evidence of the drugs and equipment as a matter of public policy.[5] The real question was whether the destruction of the drugs and equipment deprived the applicant of a chance of a fair trial. The judge found that it did not.

24 Her Honour began her consideration of that point with the circumstances of seizure and subsequent disposal. She found that they were as follows:

On 11 April 2006, Mr Perkal, a scientist employed at the Forensic Services Centre, attended at the Brunswick Police Station. He observed and was present when items located in the boot of Mr Hammoud’s car were photographed and inventoried. The contents of the boot were also videoed. The items were transported to the Forensic Services Centre for further analysis. The following day Mr Perkal tested the liquids found in two jerry cans located in the boot of the car. He took two samples measuring 20 to 30 mls and determined that the liquids contained the substance P2P.
[The applicant] was arrested and charged with trafficking in a commercial quantity of a drug of dependence on 26 April 2006.
On 24 January 2007 Mr Perkal made a statement detailing the results of his analysis and the examination of the liquids. He determined that the liquids, which measured 12.3 litres, contained approximately 11.2 kilograms of P2P. The commercial quantity is two kilograms.
Although the statement was not part of the hand-up-brief, it was served on the defence shortly after its making, and I am told that Mr Perkal’s name nonetheless appeared in the list of witnesses in the hand-up-brief.
The committal was held in July 2007, at the conclusion of which [the applicant] was committed to stand trial at the Supreme Court. Mr Perkal was not called to be cross-examined at the committal. It was not until sometime prior to 3 August 2007 that a request was made by Mr Perkal to destroy the items located in the boot of the car. The email from Mr Perkal makes it clear that if the drugs were sized under warrant, then the procedure under s.81(3) of the Drugs, Poisons and Controlled Substances Act would have been applied. However, as they were not, the approval of Inspector O’Brien to destroy the drugs and other items [was] sought and obtained on 3 August 2007. The cardboard box with the ceramic Buckner funnel and filter papers and the aluminium foil were destroyed on 14 August 2007, the 25 litre drum with the methylamine was destroyed on 31 August 2007, and the red plastic fuel container and its contents in a liquid glass bottle were destroyed on 29 October 2007.
It appears that Mr Perkal, Mr Singh, the property manager at the Forensic Services Centre, and Detective Senior Constable Johns, the informant, were acting under the belief that the power to dispose of the exhibits was derived in some way from s.122 of the Police Regulation Act or the Police Manual. Certainly they all regarded themselves as acting in conformity with established practice. Mr Johns, from his experience as a police officer of ten years standing, and Mr Perkal, from his experience having been employed at the Forensic Services Centre for the past 35 years, Mr Singh, who had held his position for 12 months at the time, stated that he acted consistently with his training. Indeed, the paperwork which records the preparation for destruction confirms the practice of, inter alia, ‘acting under an inspector’s authority, or in accordance with s.81(3)(e) or s.91 of the Drugs, Poisons and Controlled Substances Act or a court order’. In any event, as I understand Mr Perkal’s evidence, although these were not regarded by him as s.181(3) [sic] drugs, as indeed they were not, he nonetheless adopted the same process in their destruction as if they were and to that end he took and retained the two samples of clear liquid.

25 Her Honour also found that:

1) The drugs and equipment were destroyed because of limited storage facilities, and not to disadvantage the applicant.

2) It could not be said that the defence had been disadvantaged, because the samples were still able to be subjected to independent analysis.

3) The three containers and the contents in the boot were video-taped and photographed.

4) Mr Perkal was a witness at the trial and it was open to the defence to challenge his methodology and findings.

5) Mr Perkal had 35 years’ experience and it was highly unlikely that he would measure a liquid to be 12.3 litres where it was something considerably less. After making his calculations, the volume by weight was more than five times the commercial quantity.

6) Mr Perkal, Mr Singh and DSC Johns were all called by the Crown at the request of the defence on the voir dire and cross-examined. Mr Perkal gave evidence as to the way he measured the liquids, the taking of the samples, the storage of them in a locked locker, the handling of them in the laboratory under his supervision, the transfer of the samples to the sampling transfer station and the consequent entry of the samples in the system in July 2008, the request for destruction and the manner of destruction.

7) There had been full discovery pursuant to subpoena of Mr Perkal’s notes and various documents relating to the reception and storage of the items.

8) The applicant was represented when he knew the ambit of the charge against him and did not then wish to see any of the exhibits. He had had every opportunity up to at least August 2007 to view equipment and up to October 2007 to view the chemicals.

9) It was not in dispute that the items were in Akl Hammoud’s boot. What was in dispute was whether they were ever in the applicant’s possession.

26 On the basis of those findings, her Honour concluded that

In these circumstances, where the subpoenas have been now appropriately answered, where the notes of the testing and analysis are available, where Mr Perkal has been tested on a voir dire, and where he is available for cross-examination, and where the amount of the chemical measure so clearly exceeds the commercial quantity, it cannot be said that the failure to have available the actual contents of the boot of Akl Hammoud’s car ...renders the trial of the accused unfair...

27 I agree with the judge’s conclusion. The question of whether a criminal proceeding should be stayed or evidence excluded because of the destruction of evidence has been several times considered in recent years by the High Court and state appellate courts. As those decisions make clear, the test of whether proceedings should be stayed is whether in all the circumstances continuation of the proceedings would involve an unacceptable injustice or be so unfairly and unjustifiably oppressive as to amount to an abuse of process. The court will be satisfied of that only in an exceptional or extreme case. The same cases provide guidance as to when the destruction of evidence is to be regarded as so unfair to an accused as to warrant that other evidence be excluded in exercise of the fairness discretion. The judge’s decision in this case accords with those authorities.

28 In The Queen v Edwards[6] the question was whether a trial judge had erred in staying a proceeding in which airline pilots were charged with operating an aircraft recklessly by failing to activate runway lights before take-off. The trial judge had stayed the proceeding because of the destruction before trial of an electronic record of the activation of the runway lighting system. He reasoned that the loss of that evidence coupled with delay constituted an unacceptable injustice or unfairness in the sense essayed in Walton v Gardiner.[7] The High Court held otherwise. Although acknowledging the possibility that there may be cases in which loss of admissible evidence would cause such injustice as to make the continuation of proceedings an abuse of process, the Court ruled that it was not so in Edwards because it was not known what was on the recording. It followed, it was said, that:

It is not correct to characterise their loss as occasioning prejudice to the respondents. The lost evidence serves neither to undermine nor to support the Crown case.[8]

29 In R v Lobban[9] the South Australian Court of Appeal upheld a trial judge’s refusal to exclude evidence of identification of cannabis in circumstances where the cannabis had been destroyed after being seized by police. The Court identified the relevant exclusionary principles as the public policy discretion to exclude evidence where evidence is obtained unlawfully or by improper conduct on the part of law enforcement authorities, or where the charged conduct is induced by unlawful or improper conduct on the authorities’ part, and the general unfairness discretion which is enlivened where destruction of evidence would render reception of evidence unfair in the sense that the trial would be unfair. It was held that the public policy discretion was not engaged, because there was nothing unlawful or improper about the seizure of the cannabis as opposed to its subsequent destruction, and that the general fairness discretion was not enlivened because there was no reason to doubt the reliability of the evidence of identification of the cannabis and the accused did not deny that the material was correctly identified as cannabis.

30 In Police v Sherlock[10] the South Australian Court of Appeal upheld an appeal against an order of a magistrate staying a Magistrates’ Court prosecution for theft of goods from a department store because of destruction before trial of security camera footage of the accused removing labels from goods in the store. Doyle CJ, with whom Sulan and Kourakis JJ agreed, rejected the notion that a trial is rendered unfair simply because possibly relevant evidence is not available to the accused.[11] Consistently with what the High Court said in Edwards, his Honour held that, since it was not known whether the security camera footage would have assisted the accused or the Crown, it could not be said that the trial would be unfair. Doyle CJ also made the point, which is of particular relevance to this case, that the destruction of the security camera footage did not deprive the magistrate of the ability to assess the evidence of witnesses to the theft. As his Honour observed, although the film might have helped the magistrate to make the assessment, it was still open to the magistrate to decide the case in the manner that courts routinely do.

31 In R v Wells[12] this court rejected an interlocutory appeal against a trial judge’s refusal to stay a trial for culpable driving because of the destruction of the car in which the offence was alleged to have been committed. The Crown proposed to adduce evidence of an expert who had examined the car following the accident and determined that it was without any mechanical fault which might have explained the accident. Ashley JA, who delivered the principal judgment, acknowledged that the destruction of the car deprived the accused of the chance of having the car re-tested by an expert of his choice, but held that the applicant was by no means deprived of a forensic answer to the examiner’s evidence. It followed, it was held, that the applicant had not shown that he would suffer prejudice of such a degree as would significantly and irremediably impair his right to a fair trial.

32 Similarly, in R v Aydin[13] this court rejected an interlocutory appeal against a trial judge’s refusal to stay a trial for armed assault (in which the Crown relied on a finger print found on the window of the car in which the assault was alleged to have been committed) because of destruction of the police file on the investigation of the offence. The only prejudice which the applicant could identify as resulting from destruction of the file was ‘presumptive prejudice’, the consequence of the applicant being unable to check the file to see if it contained any material which may have detracted from the Crown case or otherwise assisted his defence. As Redlich JA observed, in those circumstances the applicant’s procedural right to disclosure of all material evidence could not be regarded as providing a sufficient basis for a permanent stay.

33 In this case, the judge based her reasoning closely on R v Lobban. Her Honour reasoned that, just as in Lobban, the public policy discretion was not engaged because there was nothing unlawful involved in the seizure of the cannabis itself (as opposed to the subsequent destruction of the cannabis), so too in this case, the public policy discretion was not engaged because there was nothing unlawful or improper about the seizure of the drugs and equipment (as opposed to their subsequent destruction). Similarly, just as in Lobban the general fairness discretion was not enlivened because there was no reason to doubt the reliability of evidence of identification of the cannabis in question, and the appellant did not deny that the material was correctly identified, so too in this case, the general fairness discretion was not enlivened because there was no reason to doubt the reliability of Mr Perkals’ calculations of volume, and the applicant did not dispute the composition of the liquid.

34 It is true that the applicant took issue with the volume of the liquid for the purposes of the exclusionary application. But, as the judge said, the applicant had the opportunity to cross-examine Mr Perkal at the committal hearing, before the drugs and equipment were destroyed, and chose not to do so. The applicant also had many months in which to inspect the drugs and equipment before they were destroyed, and did not do so. Defence counsel had the opportunity to cross-examine Mr Perkal on the voir dire, and did so, but she did not cross-examine Mr Perkal at the trial and she did not otherwise challenge the volume as calculated by Mr Perkal. Nor did she refer to the subject in final address. The central issue, she told the jury, was whether the drugs and equipment had been in the applicant’s possession.

35 Counsel for the applicant contended that so to reason was to engage in ‘bootstraps’ logic which hauled itself up on the basis of its own assumptions. In his submission, it could hardly be expected that defence counsel would challenge Mr Perkal’s evidence as to the quantity or composition of the liquid unless there were evidence with which to contradict it and, because of the destruction of the liquid, the applicant was deprived of the opportunity of obtaining such evidence as there may have been with which to contradict it. Hence, in counsel’s submission, the judge’s reasoning really amounted to saying no more than that, because of the destruction of the liquid and equipment, there was no evidence to contradict Mr Perkal’s testimony, and, since there was no evidence with which to contradict Mr Perkal’s testimony, there was no reason to suppose that the availability of the liquid and equipment would have assisted the applicant in contradicting Mr Perkal’s testimony.

36 I accept that submission up to a point. Self evidently, the destruction of the liquid and the equipment denied the applicant the opportunity (in which he had previously expressed no interest) of examining the liquid and equipment. Logically, the denial of that opportunity entailed the possibility of prejudice to the applicant. But, in view of the authorities to which I have referred, that is as far as it goes. As has been seen, the possibility of prejudice of that kind – the kind of prejudice which Redlich JA referred to in Aydin as ‘presumptive prejudice’ – is not sufficient for present purposes. As the High Court determined in Edwards, and the South Australian Court of Appeal in Lobban made clear, the loss of evidence cannot be characterised as occasioning prejudice to an accused for the purposes of a stay or exclusion application unless it is known what the evidence would have shown. More precisely, a trial is not rendered unfair by reason only that evidence of which it cannot be said whether it would have assisted the accused or the Crown is no longer available.

37 Counsel for the applicant sought to distinguish this case from others referred to in the course of argument on the basis that, in this case, the destroyed evidence was direct evidence of what he described as the very thing in which the applicant was alleged to have trafficked and which he was alleged to have had in his possession. Counsel contrasted that with cases like Sherlock, Wells and Aydin in which, he said, the destroyed evidence went merely to matters which may have cast doubt on direct evidence of the thing which the accused was alleged to have done.

38 In my view that supposed distinction is untenable. In this case, just as in Sherlock, Wells and Aydin, the Crown proposed to adduce direct evidence of the actus reus. In this case, just as in Sherlock, Wells and Aydin, the evidence which had been destroyed might possibly have assisted the accused to impeach the Crown’s direct evidence of the actus reus. But, in this case, just as in Sherlock, Wells and Aydin, because the destroyed evidence was no longer available, it was impossible to say whether the destroyed evidence would have cast doubt on the Crown’s evidence or supported it. It follows, as a matter of logic and common sense, that each case was relevantly the same.

39 Finally on this point, even if there were a logical distinction of the kind which counsel sought to draw, it could not withstand the High Court’s decision in Edwards, or the South Australian Court of Appeal’s decision in Lobban, in both of which the destroyed evidence was direct evidence of the very thing which the accused was alleged to have done or had in his possession.

Appeal against sentence

(i) Ground 1 – Double punishment

40 The judge sentenced the applicant on Count 2 (trafficking in a drug of dependence) to three and a half years’ imprisonment and on Count 3 (possession of equipment relating to trafficking) to two years’ imprisonment. Although the two offences were discrete, the judge also provided that the two sentences should be served concurrently. In her sentencing remarks, her Honour explained that she did so because she considered that the two counts related to events which occurred within one day and formed part of a single criminal transaction.

41 The complaint made under Ground 1 of the application for leave to appeal against sentence is that, although the judge ordered that the two sentences be served concurrently, her Honour failed to moderate the sentence imposed on Count 3 to reflect that the possession of the P2P which was the subject of Count 3 was the same P2P as was the subject of the offence of trafficking preferred as Count 2. Counsel for the applicant contended that, because her Honour failed to do so on the sentence imposed in Count 3, there is an element of double punishment in the sentence so imposed.[14]

42 I reject that contention. It is apparent from the transcript of the plea that both defence counsel and the prosecutor referred the judge to the need to avoid double punishment when imposing sentence on Count 3. Given the sentence of only two years’ imprisonment which was imposed on Count 3, there is no reason to doubt that her Honour did impose a sentence which was calculated to avoid any element of double punishment.

43 It is true, as counsel for the applicant submitted, that the maximum penalty for Count 2 was 25 years’ imprisonment and that the maximum penalty for Count 3 was only 15 years’ imprisonment and that the sentence imposed on Count 3 was two thirds of the sentence imposed on Count 2. Accordingly, if Count 3 had related solely to the P2P the subject of Count 2, one might have expected a greater difference between the two sentences. But, as the judge took care to point out in her sentencing remarks,[15] Count 3 related not only to the P2P the subject of Count 2 but also to methylamine, Buchner funnels and filter papers possessed with the intention that they be used for the purposed of trafficking in a drug of dependence.

44 I reject Ground 1.

Ground 2: Role

45 During the plea in mitigation of penalty, defence counsel urged the judge to view the applicant’s role in the offending as that of a mere courier and to sentence him accordingly. The judge rejected that contention for reasons which she explained in her sentencing remarks, as follows:

The Crown have submitted that your role is more significant than that of a transporter, that you enjoyed a position of trust and that your role and position is significantly different from that played by Mr Hammoud. Mr Hammoud became involved at your request. You must have become involved at the request of Milad Mokbel. To that end he has entrusted you with a valuable chemical and you were engaged in the movement of that chemical on 11 April intending that it ultimately reach the hands of GP. GP was known to you, as evidenced by the conversation you had with him at the Grove Café on 23 April, and you must have known that he was a drug cook because there would be no other reason for these materials and chemicals to be in his hands.
[Defence counsel] submitted that you were a transporter or courier only and that only in that sense were you a trusted person but in my view that characterisation coats your role in artificiality. A courier as such is usually paid in kind or cash. That did not occur here. You were paid nothing. You were trafficking in a chemical which was to be used in the process of manufacturing. Thus, you were a conduit between the supplier of the P2P and the cook so that you were engaged with the upper echelons of the illicit drug trade. This was not a situation where as might be said of Akl Hammoud he was called to assist only minutes before the offence was committed and was entrusted with the safekeeping of chemicals and equipment at your request, he being told that you would collect it in a day or two. Your initiative in giving those items and chemicals to Hammoud suggests that your involvement was greater than simply that of courier. Further, you had the P2P in your possession on 11 April and you were engaged in the movement of it.

46 Under the heading of Ground 2, counsel for the applicant contended that the judge erred in her assessment of the applicant’s role. He submitted that, whatever might have been the relationship between the applicant and others allegedly involved in the drug syndicate, there was no basis to conclude that the applicant was involved in any criminality other than the charged activity or that his relationship with others affected the colour of his criminal conduct. On that basis, counsel said, the judge should have accepted and sentenced the applicant on the basis that he was no more than a mere courier.

47 That argument is not persuasive. The close relationship and previous contacts between the applicant and Milad Mokbel were relevant to the assessment of the applicant’s level of involvement and thus moral culpability. Her Honour was right to treat them as such and on that basis, and the other objective considerations to which her Honour referred in the passage set out above, to reject defence counsel’s characterisation of the level of the applicant’s involvement in the offences of which he was convicted. There is no substance either in the notion that the judge may have sentenced the applicant, in effect, for offences of which he had not been convicted.[16] As her Honour took care to point out, she intended to sentence him only for the events of 11 April 2006.[17] Viewed objectively, the sentences which her Honour imposed are consistent with that intention.

48 In my view, Ground 2 should be rejected.

Ground 3: Amount of P2P trafficked or possessed

49 The complaint under Ground 3 is that the judge did not make ‘abundantly clear’ that the applicant was sentenced for trafficking in only the smaller of the two quantities of P2P found in the boot of the car.

50 That complaint is also devoid of substance. The judge made clear that, in her view, the jury could not have decided the case as they had unless they had accepted defence counsel’s submission that the applicant had only the red jerry can with the lesser amount of P2P in his possession, and that her Honour intended to sentence the applicant consistently with the way in which the jury had decided the case.[18] Her Honour later emphasised the point by observing:

Even the lesser amount of P2P in the smaller red jerry can, being 2.5 litres, is still a significant amount of a drug of dependence.[19]

That observation would have been pointless if the judge had not considered that she was sentencing the applicant in respect of only the smaller jerry can containing 2.5 litres of liquid.

51 I reject Ground 3.

Ground 4: Manifest excessiveness

52 Finally, under Ground 4, it was contended that, having regard to the overlap between the two counts of which the applicant was convicted, the applicant’s role in the offending, and the amount of P2P in respect of which he was convicted of offending, being the 2.5 litres in the smaller red jerry can, the sentence was manifestly excessive.

53 The sentence was not manifestly excessive. As the judge characterised the applicant’s role in the offending[20] it was serious and, as the judge said, the 2.5 litres

of liquid in the smaller jerry can was a significant amount of a drug of dependence. Further, as the judge elsewhere observed, the applicant had a large number of prior convictions, albeit not for drug offences, and the subject offences were committed during the operational period of a suspended sentence for other offences and within one year of being released from prison after serving the unsuspended portion of that term. It followed that specific deterrence was an important sentencing consideration.[21] Most importantly, however, as the judge observed, when sentencing offenders for the type of offences of which the applicant was convicted, general deterrence and denunciation are at the forefront of sentencing considerations. In this case, they warranted a sentence of at least the order which her Honour imposed.

54 I reject Ground 4.

Conclusion

55 For those reasons, I would refuse leave to appeal against conviction or sentence.

NEAVE JA:

56 I agree, for the reasons given by Nettle JA, that the applications for leave to appeal against conviction and sentence should be refused.

TATE JA:

57 I agree with Nettle JA, for the reasons he gives, that the application for leave to appeal against conviction and sentence should be refused.

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[1] A fact in issue at trial.

[2] Cf Julius v Bishop of Oxford (1880) 5 App Cas 214, 222–3 (Cairns LC); Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106, 134–5 (Windeyer J); and see Pearce & Geddes, Statutory Interpretation in Australia 6th Ed, [11.6]–[11.8].

[3] Section 122 of the Police Regulation Act provides that :

Disposal of unclaimed goods and chattels
(1) Any goods and chattels which have lawfully come into the possession of a member of the force and which are unclaimed may be disposed of in accordance with this section.
(2) Goods and chattels which are of a perishable nature and which are unclaimed after reasonable inquiries have been made as to ownership may then be disposed of.
(3) Subject to subsection (2), goods and chattels left by any person imprisoned or detained at any time in a police gaol under Part 3 of the Corrections Act 1986 which are unclaimed after 12 months after being left may then be disposed of.
(4) In any case to which neither subsection (2) nor subsection (3) applies, goods and chattels which are unclaimed after three months after coming into possession may then be disposed of.
(5) Disposal shall at the direction of an officer, or a person authorised in writing by the Chief Commissioner to direct the disposal of property, be by—
(a) sale by public auction; or
(b) destruction; or
(c) such other means (including sale not by public auction) as are approved by the Minister either in relation to particular goods and chattels or generally in relation to particular kinds of goods and chattels.
(6) A notice of sale by public auction must be published in the Government Gazette before the auction takes place.
(7) The net proceeds of any sale under this section shall be paid to the Consolidated Fund.
(8) Every sale under this section is valid against all persons.
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