SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Poulakis (No 2)	
Citation: 	[2015] ACTSC 190	
Hearing Date: 	15 July 2015	
Decision Date: 	15 July 2015	
Before:	Murrell CJ	
Decision: 	The jury will be directed to return verdicts of not guilty to counts 1, 2, 3 and 4 in the indictment.	
Category:	Interlocutory application	
Catchwords: 	CRIMINAL LAW – Procedure – Verdict – Power of judge to direct verdict  	
Legislation Cited: 	Criminal Code Act 1995 (Cth) s 11.2(3)	
Parties: 	The Queen (Crown)
Peter Edward Poulakis (Accused)	
Representation: 	Counsel
Ms P McEniery (Crown)
Mr J Nicholson SC with Mr D Berents (Accused)	
	Solicitors
Commonwealth Director of Public Prosecutions (Crown)
Kamy Saeedi Law (Accused)	
File Number:	SCC 273 of 2014	

MURRELL CJ:

1.	At the close of the prosecution case the accused applied for a verdict by direction in relation to counts 1, 2, 3 and 4 in the indictment. 
2.	The charges are as follows:
(a)	On or about 22 June 2014 at Canberra, the accused aided and abetted the commission of an offence by an unknown person, namely that the unknown person imported the border controlled drug cocaine, the quantity imported being a marketable quantity (count 1).
(b)	On or about 22 June 2014 at Canberra, the accused aided and abetted the commission of an offence by an unknown person, namely that the unknown person imported the border controlled drug cocaine, the quantity imported being a marketable quantity (count 2).
(c)	On or about 26 June 2014 at Canberra, the accused aided and abetted the commission of an offence by an unknown person, namely that the unknown person imported MDEC, an analogue of a border controlled drug, the quantity imported being a marketable quantity (count 3).
(d)	On or about 26 June 2014 at Canberra, the accused aided and abetted the commission of the offence by an unknown person, namely that the unknown person imported MDEC, an analogue of a border controlled drug, the quantity imported being a marketable quantity (count 4).
Each of these charges relates to a parcel of imported drugs that was addressed to Jason Causer at the Mantra Hotel or Rex Hotel in Canberra, but which was seized by the Australian customs service in Sydney and did not make its way to Canberra. There is no evidence directly linking the accused with the particular parcels in question.
3.	In relation to each of these offences, the prosecution must prove:
(a)	The elements of the principal offence; that an unknown person imported a border controlled drug (or an analogue of a border controlled drug).
(b)	That the conduct of the accused in fact aided and abetted the commission of the principal offence.
(c)	That the accused intended that his conduct would aid and abet the commission of the principal offence.
4.	This last element is governed by s 11.2(3)(a) of the Criminal Code Act 1995 (Cth), which provides:
(3)	For the person to be guilty, the person must have intended that:
(a)	his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed.
Submissions of the Accused
5.	The submissions of the accused in support of a verdict by direction focussed on the last element. The accused submitted that there is no evidence that the accused intended that his conduct would aid and abet the commission of the principal offence.
6.	The element in question addresses the accused's state of mind. It is necessary to examine whether there is evidence that the accused had the relevant intention in relation to each of the four charges in question. There would need to be evidence in relation to each count that the accused believed that there was to be an importation of a border controlled drug. As each of counts 1 to 4 refers to a particular date, it is necessary to consider whether there is evidence that the accused had the relevant belief in relation to an importation occurring on or about those dates. 
Evidence
7.	There is evidence that, on or about 11 June and 18 June 2014, the accused attended the Mantra Hotel to collect a parcel addressed to Jason Causer. “Jason Causer” was a false identity adopted by the accused in relation to the collection of parcels from hotels in Canberra. Police inquiries revealed that there is no such person as “Jason Causer”. There is a substantial body of evidence that the accused used that false identity to collect parcels from the Mantra Hotel on 11 and 18 June 2014. The circumstances surrounding the collection of those parcels arouse considerable suspicion about the legitimacy of the activity that the accused undertook, but there is no direct evidence that illicit substances were contained in those parcels, and no evidence that the parcels were imported. For example, there is no evidence that anybody saw overseas postage stamps on the parcels.
8.	Chronologically, the first evidence which goes to the accused's state of mind in respect of the importation of illicit substances into Australia is the evidence that, on 14 July 2014 somebody (whom the prosecution contends was the accused) conducted suspicious internet activities relating to a thwarted attempt to import illicit substances to Australia from the United States. The associated email thread dated from about 8 July 2014. There is no evidence that suggests that the accused knew anything about the importation of illicit substances prior to the commencement of the email thread.
9.	The evidence shows that, on 7 and 8 August 2014, the accused engaged in various activities in an attempt to gain possession of a parcel of imported drugs that had been imported into Australia and delivered to the Mantra Hotel for collection by “Jason Causer”. He was arrested as he was collecting the parcel at the Mantra Hotel.
10.	The prosecution seeks to rely upon the events of 7 and 8 August 2014 (when the accused attempted to collect the parcel of imported drugs from the Mantra Hotel) as coincidence evidence. The prosecution argues that the coincidence evidence supports the contention that, on or about 22 and 26 June 2014, the accused proposed to collect parcels from the Mantra Hotel and/or Rex Hotel in Canberra that he knew or believed contained illicit substances, and that he also knew or believed that those illicit substances had been brought into Australia from overseas. 
Consideration
11.	Insofar as the evidence of the activities of 7 and 8 August 2014 may provide coincidence evidence of some matters, it cannot reasonably be relied upon as having probative value in relation to the accused's state of mind (belief) at a significantly earlier point in time; on or about 22 and 26 June 2014.
12.	There is always a first time that somebody forms a belief that a parcel may contain an illicit substance and a first time that they form a belief that the substance is not only an illicit substance but also an imported illicit substance. In this case, there is no evidence that the accused knew anything about the intended arrival in Canberra (or Australia generally) of the particular parcels that arrived on or about 22 and 26 June 2014, let alone that he knew or believed that any parcel contained illicit substances that had been imported into Australia from overseas. Consequently, there is no evidence to support the fault element required to establish counts 1 to 4 in the indictment. 
13.	I will direct the jury to return a verdict of not guilty on each of those counts.
	I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.
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