By Paul Gregoire and Ugur Nedim
At around 9.30 one morning, NSW police officers were at a flat on Murray Street in Port Macquarie investigating an incident, when the phone rang. An officer answered and told the caller the occupant wasn’t home.
The caller rang again two minutes later. This time, the officer recognised the person on the other end as Michael Amanatidis. The officer told the man he was the occupant’s mate, and that he was “helping him get rid of some gear.”
“Have you got enough? How many are left?” Mr Amanatidis responded. “I’m coming around shortly”, he added.
On his arrival, the police searched Amanatidis. Officers found in his possession foil containing 2.5 grams of powder, and a piece of paper containing 0.09 grams of powder. Both substances contained heroin, but neither were tested for purity.
The officer also located a packet of Longbeach cigarettes on Mr Amanatidis, as well as some keys. When questioned about the keys, Amanatidis initially denied they were his, but later admitted they were his house keys. He also told officers that he hadn’t driven to the residence, but had arrived in a taxi.
If the key fits…
However, officers took Amanatidis out the front of the flats, where they opened a Magna sedan using one of the keys. Police then searched the car and found a Longbeach packet containing 9 grams of a compressed substance, consisting of 73.5 percent pure heroin, underneath the driver’s seat.
Amanatidis denied all knowledge of the packet and its contents.
Officers found a passport and a building society passbook, both in the name of Amanatidis’ daughter Anna, in the glovebox. As the police pulled clothing out of the vehicle’s boot, Amanatidis remarked, “be careful with that, that’s my daughter’s, she might have a syringe in her shirt.”
An unfolding story
Mr Amanatidis participated in an interview at Port Macquarie police station a couple of hours later, during which he claimed not to recall saying he caught a taxi to the Murray Street flat, admitting he drove there.
Amanatidis explained that the car was owned by his mother, and was mainly driven by him and his daughter. He admitted that he carried a key to the car, but said there was another key in a cupboard at his house that his daughter had access to.
Amanatidis reiterated during the interview that the package was not his. When asked who owned it, he said, “No comment.” He said he “didn’t have a clue” how the package came to be under the driver’s seat, and suggested another person may have put it there out of spite.
Section 29 of the Drug Misuse and Trafficking Act 1985 (the DMT) stipulates that if a person is found with more than a traffickable quantity of a prohibited substance in their possession, they may be charged with drug supply, even if there’s no other evidence to prove they were in the process of, or intending to, provide the drugs to another person.
This is known as ‘deemed drug supply’, or just ‘deemed supply. The police applied this provision to Mr Amanatidis, as the weight of the substance containing heroin in the package was greater than the traffickable quantity.
Schedule 1 of the DMT Act outlines that a traffickable quantity of heroin is 3 grams of the substance, while an indictable amount is 5 grams. If a person is alleged to be engaging in the supply – deemed or otherwise – of at least the indictable amount the matter is ‘strictly indictable’, which means it must be finalised in a higher court such as the District Court.
On 17 October 2000, Mr Amanatidis appeared before Port Macquarie District Court charged with supplying an indictable amount of a prohibited drug, contrary to section 25 of the DMT Act. The offence carries a maximum penalty of 15 years imprisonment and/or a fine of $220,000.
The District Court trial
The District Court heard that Mr Amanatidis used heroin about five times per week. This cost him anywhere up to $250. And while his income was only $160 a week, the court was told his father usually made up the shortfall.
The Crown submitted that when the defendant called the flat, he was asking about the amount of heroin possessed by the occupant and implied that he’d bring some more of the drug around.
The Crown further argued that the defendant told multiple lies to the police due to his guilty conscience.
A local police officer testified that, during the month preceding the incident, he’d seen Amanatidis driving the subject car six times, whilst another officer gave evidence that he’d seen the accused driving the vehicle at least 20 times over the three months prior.
Amanatidis’ criminal lawyers made submissions that the heroin could have been their client’s daughter’s. They pointed to evidence which suggested that she’d driven the car on the night prior, that she smoked Longbeach cigarettes and used heroin.
Anna Amanatidis had also been convicted of heroin possession in the past, and been acquitted on seven counts of supplying a prohibited drug.
On 19 October 2000, the jury found Amanatidis guilty of drug supply. District Court Judge Garling sentenced him to 3 years imprisonment, with a non-parole period of 18 months.
Access doesn’t prove exclusive possession
On 6 July 2001, Mr Amanatidis appealed his conviction to the NSW Court of Criminal Appeal (NSWCCA) before a three justice panel. He did so on the ground that the verdict was unreasonable in regard to the evidence.
Mr Amanatidis’ criminal defence team argued that there was a reasonable possibility that the heroin had been left there by a passenger car, or by his daughter.
Justice Giles explained possession in criminal law, “involves physical control or custody of the thing, plus knowledge that you have it in your control or custody.” This control may be shared, but it must also be to the exclusion of all others, besides those who share it.
The court determined that the appellant had physical control of the heroin whilst it was in the parked car and he had keys. However, the justices noted that his daughter’s heroin use, along with evidence she used the car on the night prior to the incident, raised questions regarding Amanatidis’ knowledge of the drugs.
Knowledge must be proven as well
Justice Giles explained that Amanatidis’ phone conversation with the police officer was too obscure to suggest that he was visiting the flat to supply the occupant with heroin. The justice found that nothing the appellant said to police established that he was aware of the drugs in the vehicle.
In relation to the alleged lies Mr Amanatidis told police, his Honour said that these were not necessarily a sign of a guilty conscience, but could just as likely suggest he was fearful that, as his daughter used drugs, she may have left some in the car.
The justice concluded there was insufficient evidence to establish beyond reasonable doubt that the appellant had knowledge of the heroin in the vehicle. He therefore ruled that “the appeal should be upheld, and the conviction quashed.”
Disagreement in the court
However, NSWCCA Justice Hulme disagreed. His Honour reasoned there were too many factors that pointed to Amanatidis’ guilt. “The mere fact that the heroin was in the car being driven by the appellant that day leads me to think that he probably knew of its presence,” he remarked.
According to his Honour, this inference was supported by the fact Mr Amanatidis usually drove the car. The justice further stated that it was unlikely his daughter would store $4,500 worth of heroin under the driver’s seat of the vehicle her father usually drove.
Justice Hulme ordered that the appeal be dismissed.
However, Justice Adams, agreed with Justice Giles. And being a three justice panel, this meant the majority of court prevailed.
On 5 October 2001, the conviction for drug supply was quashed.