Court of Appeal (WA)|2006-05-29|Before: Smith JA

Musarri v The Queen [2006] WASCA 92 (29 May 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MUSARRI -v- THE QUEEN [2006] WASCA 92

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Appeal - Application for leave to appeal against conviction - Conspiracy to possess heroin with intent to sell or supply - Evidence - Intercepted telephone conversations - Admissibility - Whether earlier conversations related to heroin or some other drug - Propensity evidence - Whether probative value outweighed prejudicial effect - Relevance showing context and content of conspiratorial agreement

Criminal law and procedure - Offence - Conspiracy - Whether agreement about heroin or some other drug - Whether agreement that conspirators jointly possess with intent to sell or supply or that only the applicant possess with that intent

Buck v The Queen [1983] WAR 372

Carter v The Queen (1997) 19 WAR 8

Director of Public Prosecutions Reference under s 693A of the Criminal Code; Re Y & Ors (1998) 19 WAR 47

Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122

Fursman v The Queen, unreported; CCA SCt of WA; Library No 7414; 5 December 1988

Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590

Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202

Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108

O'Brien v The Queen [1963] WAR 70

O'Leary v The King [1946] HCA 44; (1946) 73 CLR 566

R v Garner [1964] NSWR 1131

R v Marinovich & Ors (1990) 46 A Crim R 282

R v Rhodes [1899] 1 QB 77

Silvestro v The Queen, unreported; CCA SCt of WA; Library No 970468; 7 August 1997

The State of Western Australia v Marchesi & Anor [2005] WASCA 133; (2005) 30 WAR 359

VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1

1 ROBERTS-SMITH JA: Following trial before her Honour Judge Kennedy (now Chief Judge Kennedy) and a jury in the District Court of Perth between 12 and 21 August 2002, the applicant was convicted of an offence that between 16 and 27 May 2000 he conspired with Justin Paul Vodanovich, Dimi Pande Delovski and Saso Delovski to possess a quantity of a prohibited drug, namely heroin, with intent to sell or supply it to another, contrary to s 6(1) and s 33(2)(a) of the Misuse of Drugs Act 1981 (WA).

2 The co-offender Vodanovich had pleaded guilty at the commencement of the trial.

3 The Delovskis lived in Melbourne. Vodanovich and the applicant lived in Perth. Vodanovich was the applicant's assistant. The prosecution case was that police telephone intercepts and surveillance revealed the applicant and Dimi Delovski arranged the supply of the drugs by the Delovskis to the applicant. The drugs were couriered to Perth by one Veselinov who was to receive $5000. He eventually gave evidence at the applicant's trial. On 26 May 2000, police arrested Saso Delovski and seized 524 grams of heroin which was 26 per cent pure. Both Delovskis eventually pleaded guilty to possession of heroin with intent to sell or supply. Veselinov pleaded guilty to possessing heroin with intent to sell or supply, as did Vodanovich. The latter obtained a benefit by way of reduction of sentence for his plea and for his cooperation with the authorities.

4 On 3 September 2002, her Honour sentenced the applicant to imprisonment for 5 years with eligibility for parole. She ordered that sentence be cumulative on one of 8 years' imprisonment without parole imposed on the applicant on 25 July 2002 (backdated to 4 October 2000) which he was then serving for other drug offences.

5 On 4 October 2002, the applicant filed an application for leave to appeal against conviction dated 6 September 2002, together with an application for extension of time dated 30 September 2002. The applicant was represented at that time by Messrs Pryles & Defteros. However, that firm later ceased acting and for a very considerable period the applicant represented himself. There were numerous appearances before a single Judge but despite that, the application and appeal were not progressed until mid-2005 due to what the applicant explained were his difficulties in dealing with it himself and in attempting to obtain legal representation. In the event, the applicant was represented by Messrs G A Lacerenza & Associates, and when the applications came on for hearing before us on 15 December 2005, Mr Traczyk appeared as counsel on his behalf.

6 The grounds of appeal have been amended from time to time in the course of progression of the matter generally and leave to make a further amendment was granted on 15 December 2005. The grounds as they stand are:

"1. The Learned Trial Judge erred in admitting evidence of telephone conversations between the Applicant and Dimi Delovski which showed that the Appellant had previously engaged in criminal activity other than that charged.

2. The Learned Trial Judge erred in failing to exercise a discretion not to allow defence Counsel to have the right of final address to the jury.

3. The Learned Trial Judge misdirected the jury as to the elements of the offence in that:-

[a] She directed the jury that they could convict if the Crown established that there was an agreement between the Appellant and Dimi Delovski that the Appellant alone have possession of heroin with intent to supply.

[b] She directed the jury that if such an agreement was found proven, it was open to convict if the Crown proved that the Appellant alone intended to supply.

4. The verdict is unsafe and unsatisfactory.

PARTICULARS

(a) It was not open to the jury to find that the Applicant and Dimi Delovski had engaged in a previous heroin transaction which let to the conspiracy charged as being for the purposes of replacing that previous heroin delivery.

(b) It was not open to the jury to find that there was any concluded agreement as opposed to negotiations simply preparatory to such an agreement.

(c) It was not open to the jury to find that if there was any concluded agreement as was particularized, specifically that there was an intention that he supply to others.

5. The Learned Trial Judge erred in her discretion and/or erred in law or in her direction to the Jury in that:-

[a] There was no evidence or sufficient evidence to go to the jury on the question of 'continuity' of what was seized (drug) from the Hotel room to establish that what was ultimately analysed as being heroin was the same material, and/or alternatively whether heroin and amphetamines mixed together both being prohibited drugs lose their individual characteristics as a prohibited drug.

6. The Learned Trial Judge erred in the direction to the Jury on the elements of conspiracy and/or at Law that the direction to the jury should have been that the Jury had to be satisfied that the agreement at the date when made there had to be actual knowledge on the part of the parties that it:-

[a] was for the supply of the drug heroin as particularized, and

[b] that the jury having agreed on (a) above first then had to be satisfied that the drug found in the Hotel room was the heroin that the parties had earlier made agreement upon.

7. The Learned Trial Judge erred in Law or in her discretion in allowing the issue to go to the Jury as all the elements of the offence had not been proven and that the Defendant's submission of no case the [sic to] answer should have been upheld."

7 A large part of the Crown case concerned telephone conversations between the conspirators which were intercepted and recorded by police. There were many of those in evidence, but for the applicant it was submitted that the Crown case depended critically on the interpretation that could properly have been placed on four telephone conversations between Dimi Delovski and the applicant.

8 The issues sought to be pursued under grounds 3, 4, 6 and 7 were explained by counsel for the applicant as being that:

(a) the three telephone conversations and part of the fourth were inadmissible in their entirety;

(b) the evidence as a whole was incapable of leading to satisfaction beyond reasonable doubt that the agreement was about heroin;

(c) related to (b), that the trial Judge failed to properly direct the jury that the conspiratorial agreement charged was one relating specifically to heroin;

(d) at its highest the evidence was capable of establishing no more than an incomplete agreement (that is, that no actual agreement was reached); and that

(e) the trial Judge's directions to the jury were to the effect that it would be sufficient for them to find the applicant alone had the intent to sell or supply whereas what had to be proved was that each conspirator had to have had the intent that the applicant had possession of the heroin with intent to sell or supply.

9 In relation to (e), I note Mr Traczyk quite properly made the concession that it was sufficient for the Crown to prove an agreement between the applicant and Dimi Delovski.

10 Before dealing with the grounds of appeal, it is necessary to outline the pertinent evidence at trial and the way in which the Crown case was put.

11 In May 2000 the applicant was under police surveillance. That included telephone intercepts.

12 At 1923 hours on 17 May 2000, there was a telephone conversation (CSN 1119) between the applicant in Perth and Saso Delovski in Melbourne. The applicant claimed something supplied by Saso Delovski had been "cut" and that Saso had done the "Caribbean shuffle" on him. The applicant stated that it was 1 gram over and he had been "touched". He demanded Saso Delovski's brother Dimi, ring him back.

13 At 1930 hours on the same day, there was a telephone discussion between the applicant and Dimi Delovski (CSN 1123) in which the applicant stated "it's not what he showed me". He asked Delovski who had access to "it" and said "that other guy Mick ... was selling your stuff in ounces for three eight. How many did you bring over." Delovski replied "One and a half". The applicant said that someone at the Delovskis' end got the half, fixed it and "made one out of it" and that it was "different" and "not gluey". They discussed how to establish who had done that and Delovski mentioned shooting the person responsible.

14 At 1004 hours on Thursday 18 May 2000, there was a further telephone conversation (CSN 1184) between the applicant and Demi Delovski. The applicant said "I think he done it" and that a friend of his helped him" to cut one ounce". He stated that he would buy one from "him", take a sample of each and send it to Delovski. In the course of the call, Delovski told the applicant that Delovski's brother would be there Wednesday night "with the V8", that it was very good and would be there in Perth Thursday morning. The applicant told him not to say anything. Delovski said the applicant would be happy. The applicant referred to being stuck with the thing, that he had not looked at it prior to paying or he would not have given the money over, and that when he saw it, it was in a "big hunk" and had "gone hard" and "must have been in the fridge or freezer". Delovski told him that next time "first straight it goes boom to your hand", then they would sit down and afterwards it could be passed to others. The applicant said he was not greedy but could give it to people straight away and they all wanted to do business with him. They then attempted to disguise the conversation with a discussion about cars. Delovski repeated that the applicant would be happy on Thursday morning and the applicant told him "it" was not to be brought to the house. Referring again to the thing he had been stuck with, he said "I'll try and uh sell this car cheap" and "I'll save some for you to look at".

15 In fact, Saso Delovski did fly to Perth that Wednesday night. He was subsequently observed leaving an address at Marangaroo where Vodanovich lived at that time. He and Vodanovich left in a tow truck owned by Malaga Holdings Pty Ltd which was a company owned by the applicant. Vodanovich took Saso Delovski to an address in Dianella where Delovski spent the night.

16 The following morning Saso Delovski took a taxi to the East Perth train station where he was observed to meet Slobodan ("Bobby") Veselinov, who had been hired in Melbourne by Dimi Delovski. Veselinov had been approached by Dimi Delovski the previous Monday, given a package and promised payment of $5000 if he took the package to Perth. Bobby Veselinov did that. He went by car to Adelaide and then took the Indian Pacific train from Adelaide to Perth, where he was met at the station by Saso Delovski.

17 In a telephone conversation at 0848 hours on 25 May 2000 (CSN 1749), the applicant spoke to a person believed to be Adrian Resmini. The applicant said he needed Adrian to bring "two untouched" for someone and that "my mate from Melbourne came down. Do you understand? I've got a whole heap". The Crown case was that that was a reference to the amount which was to be involved and which was more than half a kilo of heroin.

18 After Bobby Veselinov and Saso Delovski met at the East Perth train station, they travelled to the Pacific Motel in Highgate. Delovski tried to register in a false name but did not have identification in that name, so Veselinov registered in his own name. When they got to their room, Delovski asked him for "the thing" and Veselinov produced the package. Delovski opened a corner of it, exposing a white substance. Delovski tasted it and took a small part of it with him, leaving the room. The package was then hidden within the room and Veselinov went to sleep. Later that Thursday morning, Saso Delovski was seen at the Morley Galleria, obviously waiting for someone. After about five minutes Justin Vodanovich arrived. The two men spoke briefly and then began walking through the shopping centre before parting.

19 The police officer who was observing them did not see anything change hands but did not have them within his sight at all points.

20 When both Veselinov and Delovski were out of the motel room the officers placed a listening device there. The following morning, about 10 am, that device picked up a telephone call placed by Vodanovich to Saso Delovski's mobile phone within the motel room. In essence, Justin Vodanovich asked Saso Delovski "Do you want to come and see us down the car yard, just to talk?". He explained the car yard was Eagle City Motors in Beaufort Street which was a very short distance away and Delovski asked "The old man's going to be there?" Vodanovich answered "yep". It was the Crown case that was a reference to the applicant. It was arranged that they would meet there within half an hour.

21 Delovski left the motel room and was observed to take a taxi to Eagle City Motors. He alighted from the taxi and walked through the car yard. He was in that vicinity when the police arrested him. Approximately 25 minutes later the applicant arrived in a vehicle at Eagle City Motors. Vodanovich also arrived there and then the two, after about ten minutes, left.

22 The Crown said that was a significant incident because of later telephone conversations which explained what happened.

23 Having arrested Saso Delovski the police took him to the motel room which they secured. They searched it and found hidden under a bedside table between the two beds, a package which, on analysis, was found to contain 524 grams of heroin. There were in fact two packages contained within the one, but the total was 524 grams of heroin. They also found in a bin, some tape which had been initially taken off the package by Delovski. There were two mobile telephones.

24 In the meantime the applicant drove himself and Vodanovich to an address owned by the applicant in Balga. Shortly afterwards, Vodanovich and another man went to a nearby public telephone box and made a very short, unsuccessful, call to the mobile telephone which had been held by Saso Delovski but was then in police custody.

25 On the Crown case, the arrangement between Saso Delovski and the applicant and Vodanovich was that they would simply meet at Eagle City Motors. Delovski was not meant to have the heroin on him at that time and so it was a surprise to the applicant and Vodanovich when Delovski was arrested. Some of the subsequent telephone calls which took place between them reflected that.

26 At 1251 hours on Friday 26 May 2000, Dimi Delovski telephoned Justin Vodanovich from Melbourne and said he had heard that something happened. Vodanovich said:

"[W]e rocked up to where we were supposed to meet him, he shouldn't have anythink [sic], but we rocked up there a couple minutes, a couple of minutes before we got there apparently coppers have rocked up, grabbed somebody, fucken threw them to the ground with guns, handcuffed him, threw him in the [car] and fucked off."

27 Delovski asked "That was it? He didn't suppose to bring anything". Vodanovich said he did not know if the other had anything; he was not supposed to because what they were doing was catching up to have a talk, so they were hoping he had not had anything on him. Delovski asked for "the old man" and Vodanovich said that they had just got home, then he had tried ringing his phone from a phone box but it was just ringing out. He said "we did not know if it was him" but they took that it was and if that was the case he was being watched over there as well. They agreed to keep in contact and Dimi Delovski said he wanted "the old man" to call him to arrange a solicitor. They both agreed it did not "smell nice" but were unsure of what had happened.

28 In similar vein, in a telephone call just before 1300 hours on Friday 26 May 2000, between the applicant and a man called "Willy", the applicant advised Willy to:

"[F]orget it, the cops have just grabbed one of our boys outside where we were ... We're just trying to fucken work out who it was and why, right? We were s'posed to meet him, you understand? ... there's no way we can fucken move, we're being tagged everywhere and I mean fucken tagged. ... the boys from Melbourne are ringing us back in a few minutes to find out what's going on."

29 It was the Crown case that those calls were simply reflective of their arrangement and the agreement which had been made, which was that Saso Delovski accompany and supervise the courier Veselinov who brought heroin to Perth, to subsequently meet with the applicant Musarri and Vodanovich at Eagle City Motors.

30 It is unnecessary to rehearse what occurred subsequently, other than that in the early part of October the applicant was arrested by police. A video record of interview was conducted with him on 4 October 2000. It was relatively brief, lasting for just under 20 minutes. During the course of it, the applicant was asked about his recollection of the events of the day on which he went to Eagle City Motors. He said he did know Saso and Dimi Delovski because the two Melbourne men wanted to do business with him, but he did not want to do business with them. He said he remembered going to Eagle City Motors. It was suggested to him that he went there to meet Saso Delovski but he denied that. He said that he went there to organise a car for his son. At various other points in the interview he denied having anything to do with Saso Delovski's visit to Perth, nor indeed knowing anything about it. He said the first he knew of Saso Delovski being in Perth was when he heard that Delovski had been arrested. It was the Crown case that that denial was false and that he told that lie because he knew that if he told the truth it would incriminate him.

Ground 1 - Intercepted telephone conversations inadmissible

31 The four telephone conversations the subject of this ground are those identified as CSN1119, CSN1123, CSN1124 and CSN1184. Mr Trasczyk submitted that the Crown had contended initially that evidence of the calls was admissible on the basis they reflected a previous heroin transaction between the applicant and Delovski which had gone bad and that the two of them had agreed that Delovski would then provide a substitute amount of drugs to placate the applicant for that previous transaction. He said it had been, and conceded that if such an interpretation could be placed on those calls, then they would be admissible; he submitted, however, that the Crown later narrowed its position to one of asserting that the first three calls went to show that the association between the applicant and Delovski was not an innocent one and that the first three calls put the fourth in context. The submission is, that the first three calls could not be shown to relate to a previous heroin transaction and accordingly, to the extent the admissibility of the evidence of them was reliant upon disproving "innocent association", it demonstrated no more than a propensity on the applicant's part to be involved in drug dealing and it should have been excluded because its prejudicial effect completely outweighed its probative value. It is submitted that the nature of the association between the applicant and Delovski was not in issue - the defence never denied there was a drug dealing association between the applicant and Delovski. The ultimate issue, it is said, was what was the nature of that association. It is said it was always the defence case that in those telephone calls the applicant was talking about amphetamines.

32 After the jury was empanelled and before the Crown's opening address, objection was taken by counsel for the applicant to the Crown leading evidence of these four telephone conversations. The objection was on the ground of relevance and alternatively sought the exercise of the trial Judge's discretion to exclude it, on the ground its prejudicial effect outweighed its probative value.

33 The Crown prosecutor told her Honour that the Crown proposed to lead the evidence on two bases. The first was to negative the suggestion of innocent association between the applicant and the other three men. The second was because the fourth conversation actually contained the conspiratorial agreement and the three earlier conversations showed the content of that agreement, how it had come about and the nature of it. The way it was put was that (t/s 104):

"... it shows the terms of the transaction in the sense that because something had gone wrong on this previous occasion, the arrangement was that Delovski assured Musarri, 'It would go first to your hand, then you make your price.' They are talking about clearly something was going to happen the following Wednesday night and it's expressed in terms that they, the Delovskis, were going to get everything together and bring it over on the Wednesday night and Musarri would be happy on Thursday morning because Saso Delovski would meet with him, and he would then be happy.

It relates specifically to the transaction which goes on. It also shows that there was a relationship between the four men, that it obviously was a business type of relationship, but the crown says it was not innocent. ..."

34 In response, counsel for the applicant, submitted to her Honour that it was "clear" that for a large part of the earlier conversations, the applicant and Delovski were talking about a transaction which had nothing to do with the particular heroin which was delivered to Perth on 24 May 2000. The earlier transaction concerned illegal drugs other than heroin, and so although it may have had some relevance to show the nature of their association, and was admissible to that extent, the prejudicial effect of that evidence was so great as to demand its exclusion.

35 In response to counsel's query whether the ground was asserting that the drug transaction being discussed in the first three conversations was heroin, Mr Dempster said that the reference to someone coming the following Wednesday evening and being there on Thursday morning, and the applicant being happy, was all clearly a reference to the transaction the subject of the conspiracy. He added that there was "no differentiation", as he could see it, between the parties to the conversations as to what it might be, "other than a previous consignment had gone wrong" and Delovski had to assure the applicant as to that.

36 Mr Traczyk then reiterated to her Honour his submission that the reference to price in conversation 1184, clearly indicated the applicant and Delovski were talking not about heroin, but about some other drug, possibly amphetamine, but that her Honour did not know what it was and the Crown would not say. There was then the following exchange (t/s 113):

"KENNEDY DCJ: No. The crown have said. The crown say it's heroin. The crown are saying, it's quite obvious, whatever - the first heroin deal went bad and Musarri was complaining and as a result Delovski said, 'Look, we'll send you some better stuff.' That's what the crown case is.

TRACZYK, MR: If that's the crown case, then as I conceded to your Honour, I can see some force in their argument that it discloses a particular relationship between the accused and Delovski.

KENNEDY DCJ: Yes.

TRACZYK, MR: If that's the crown case then I won't press on with the application that I'm making to your Honour because it seems to me that it would fall within the principles espoused in Harriman's case where this sort of evidence was held admissible.

KENNEDY DCJ: Yes.

TRACZYK, MR: But if it turns out that that's not the crown case or it can't be considered by the jury as amounting to evidence showing a previous dealing between Musarri and Delovski in heroin, then I reserve my rights to consider what applications I can make to your Honour at that stage.

KENNEDY DCJ: All right. I understand that. I mean, I can't say in advance what my decision would be, but I would understand that perfectly and certainly I'm making it on the basis that that's going to be borne out - it's going to be borne out that this was a previous heroin deal that went bad and that now they're saying to him, 'Don't worry about it. We'll make it up to you this time."

37 Her Honour made it clear she understood that Mr Traczyk was foreshadowing a possible application to abort the trial if the evidence did not bear out that the subject of the earlier discussion was heroin, to which the Crown prosecutor reiterated that the Crown could only go on the intercepted conversations themselves, and so far as the Crown was aware, there was no reason to differentiate between the substances concerned and the Crown believed the previous dealing was in heroin. He said he could not take it any further than that because there was no other evidence available to the Crown as to that previous dealing.

38 Her Honour then recalled the jury and the trial proceeded.

39 Detective Sergeant Colin Stanbury was the last witness for the prosecution. It was his role to monitor the intercepted telephone conversations. Following the completion of his testimony and prior to counsel's addresses, Mr Traczyk revisited his objection to evidence of the four telephone conversations. He contended that on the evidence as it had been given, it was not open to the Crown to argue, nor for the jury to consider, that the four conversations were about a heroin transaction gone wrong. He said that the substance the subject of the previous transaction was said by the applicant to have gone "gooey" or "gluey", which Detective Sergeant Stanbury said was in all probability a reference to amphetamine and was unlikely to be a reference to heroin. He submitted further that the earlier transaction appeared to have involved Ivanov selling for $3800 an ounce, "gooey" or "gluey" drugs provided by Delovski, when, according to Stanbury's evidence, $3800 per ounce was the going price for amphetamines. Further, although in Detective Sergeant Stanbury's opinion, the references to imported cars were coded references to heroin, they could just as easily have been reference to amphetamines. Mr Traczyk submitted that in light of these considerations, it could now be seen that it was not open to the jury to use the earlier conversations as evidence of a previous transaction relating to heroin, and that being so, the evidence was not admissible, the prejudice was substantial and the jury should be discharged.

40 In response, the Crown prosecutor submitted to her Honour that the "principal purpose and probative value" of the first three conversations was to show not merely that there was a relationship and an association between the four principal parties, namely the two Delovskis in Melbourne and the applicant and Vodanovich in Perth, but that it was not an innocent association. He said the evidence did have additional value because the Perth conversation on the following morning would be difficult to understand were it not for the three preceding it. They put the fourth conversation - in which the specific heroin transaction was discussed - in context. He reiterated that the Crown contention was that the talk in all four conversations was about drugs.

41 In reply, Mr Traczyk submitted that if all that could be said about the previous transaction was that it involved an illicit drug, evidence about it would not be admissible and the only effect of it would be to show bad character on the part of the applicant.

42 Her Honour ruled the evidence of the first three conversations to be admissible. She said the defence conceded the fourth conversation was about heroin (because that was what the police seized from Saso Delovski's hotel room on the Thursday), but that a proper understanding of that conversation could only be had in the context of the three which preceded it. She said the police witness had not conceded the earlier transaction concerned amphetamine and he believed it was about heroin. The conversations were relevant and admissible because they were close in time and showed the relationship between the applicant, the Delovskis and Vodanovich.

43 The argument now advanced by the applicant against the admissibility of the telephone conversations is the same as that of the appellant in Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590, namely that the disputed evidence revealed the commission by the applicant of an offence other than that with which he stood charged.

44 It is important to appreciate that in this State the law in relation to this has significantly changed since the applicant's trial in August 2002. Questions concerning the admission of "similar fact" evidence or evidence showing criminal propensity on the part of an accused now fall to be resolved under s 31A Evidence Act 1906 (WA), which came into operation on 1 January 2005. The effect of this provision was discussed by this Court in Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 and VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1. However, as the common law applied at the time of trial, whether or not the evidence was properly admitted must be determined on that basis. Given the conclusion to which I come about that it is not necessary to consider what the position might be were there to be a retrial to which s 31A Evidence Act would apply.

45 In Harriman, Brennan J said the case had been argued as though the evidence in dispute was evidence of similar facts, but that was a misconception because they were different types of offence and so the probative force of the evidence objected to was not to be found in factual similarity between those previous offences and that charged. Nonetheless, his Honour observed (at 593) that the two principles which apply to similar fact evidence, as stated in Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108 at 116 - 117, apply equally to evidence revealing other offences which are not similar to that charged. The first principle articulated in Markby was that evidence of similar facts is not admissible if it shows only that the accused had a propensity to commit crime, or crime of a particular kind, or that he was the sort of person likely to commit the crime charged. The second principle was that such evidence is admissible if it is relevant in some other way, that is, if it tends to show the accused is guilty of the offence charged for some reason other than that he has committed offences in the past or has a criminal disposition.

46 In elaboration, Brennan J expressed it (at 593 - 594) this way:

"Evidence that an accused has committed other offences of the same or similar character is inadmissible unless the evidence is of such probative force in the instant case that it would be an affront to common sense not to admit it. Or, to put it another way, unless the probative force of the evidence clearly transcends the merely prejudicial effect of showing that the accused has committed other offences."

47 His Honour made it clear that where the evidence does show more than the mere commission of another offence or criminal disposition, and is otherwise probative of the offence charged or a fact in issue, there is no rule of evidence which compels its exclusion. The criterion for admission of the evidence is that its probative value clearly transcends its prejudicial effect (594; see also Dawson J at 598; Gaudron J at 613 and McHugh J at 633). The evidence was admissible in that case - in the view of Brennan J because to exclude from the body of evidence the fact that the appellant was heavily engaged in illegal drug dealing, when the issue in the case was whether he was knowingly concerned in his co-offenders obtaining of heroin in Thailand and his posting it to addresses in Western Australia, would be an affront to commonsense.

48 As Dawson J explained (at 597), it was not so much the similarity of the previous dealings between Harriman and his co-offender which was important, but instead the nature of the association to which those dealings pointed. Such evidence is permitted precisely because it shows propensity on the part of the accused; the circumstances of each case will determine whether the proposed evidence is of sufficient probative value to warrant its admission (at 600 - 601).

"Propensity evidence is, of course, circumstantial evidence in that the only proof which it can offer is proof by inference. But it is circumstantial evidence of a dangerous kind because of the prejudice which it engenders. That is why the occasions upon which it is admissible are strictly limited. As with all circumstantial evidence in criminal cases, it should not be used to draw an inference adverse to an accused unless it is the only reasonable inference in the circumstances. But more than that, the evidence ought not be admitted at all if the trial judge is of the opinion that there is a rational view of it which is inconsistent with the guilt of the accused: see Hoch (1988) 165 CLR, at p 296."

50 Toohey J held the disputed evidence to be admissible because it went beyond showing merely that Harriman had a propensity to engage in heroin trafficking; it was relevant to the character of the association between him and his co-offender, and in particular that it tended to show the two were acting in concert rather than the co-offender acting alone, which made it admissible.

51 McHugh J was the only member of the court in Harriman who discussed the distinction between circumstantial evidence disclosing other criminal conduct which is part of the transaction or res gestae, and such evidence which itself tends to prove a fact in issue. The latter, his Honour said, is subject to special rules. As to the former, he quoted (at 628) the following passage from the judgment of Windeyer J in R v Makin (1893) 14 LR (NSW) 1, 18:

"... you can give evidence of the commission of another crime when the evidence concerning the other crime is either a part of the res gestae in the case before the Court, or where the evidence about it is so connected with the prisoner as to explain his conduct or motives in the transaction which is the subject of the trial."

52 McHugh J referred to a number of cases in which such evidence had been held admissible because it was integral with, and explained the offence charged (O'Leary v The King [1946] HCA 44; (1946) 73 CLR 566, 575 - 577, 582) or went to events so intermixed with the offence charged that it was impossible to separate them (R v Cobden [1863] EngR 54; (1862) 3 F & F 833), or showed a continuous transaction or a connected series of events (R v Garner [1964] NSWR 1131), or showed the offence was part of a scheme (R v Rhodes [1899] 1 QB 77, 82).

53 If evidence which discloses other criminal conduct on the part of the accused is characterised as part of the res gestae or transaction which embraces the offence charged, it is not subject to any further condition of admissibility (McHugh J at 633). The admission of circumstantial evidence showing other offences or criminal disposition which tends to prove the fact in issue, however, is subject to the requirement that its probative force transcends it prejudicial effect (at 633). Thus, proper classification of the evidence is essential and:

"Great care needs to be taken, therefore, in determining whether evidence, disclosing other criminal conduct, is evidence concerning the res gestae or is merely circumstantial evidence. By applying labels such as 'one transaction', 'connected series of events', 'system', 'history', 'completeness' and 'part of one chain of relevant circumstances', evidence which is in truth purely circumstantial improperly avoids the tests of admissibility which the modern cases expound. Factual situations such as those in Cobden, Rhodes, O'Malley, O'Leary, Garner and Etherington should now be categorized as circumstantial evidence cases and not res gestae cases."

54 McHugh J considered that although the other offences were not so connected with the offence charged as to be treated as part of the res gestae or one transaction, the evidence was nonetheless admissible. In his Honour's opinion, any evidence which tended to prove that the co-offender and the appellant were jointly involved in the sale of heroin in Western Australia and obtained their supply from overseas, was admissible as circumstantial evidence which tended to prove that at the relevant time the two of them journeyed to Thailand for the purpose of obtaining heroin and sending it to Australia.

55 I return to the conversations in the instant case.

56 CSN 1119 was the "Caribbean shuffle" conversation. It begins with the applicant obviously angry with Sasa Delovski, asking "What the fuck you do to me?" and "You done the fucken Caribbean shuffle on me mate." Delovski asks what had happened. The applicant said "You fucken cut the fucken thing". In similar language, he says "it" was not what Delovski had shown them and Delovski had better send "Jimmy" down or otherwise he would send someone there. He continued to accuse Delovski of cheating him and Delovski continued to deny that. The applicant tells Delovski that someone of Delovski's had got to it and the applicant was going to get him over (to Perth) and put a gun in his mouth. The applicant says he had been trying to call Jimmy for three, four or five hours.

57 The conversation went on in this vein for sometime. The applicant spoke to Vodanovich who was there with him, and asked him to talk to Delovski. Vodanovich came on the line. Delovski says again he had "never touched it". Vodanovich says that was the way he got it and that from what Delovski had shown him, and "those foils", it was totally different. They talk more about it and what might have happened. Delovski suggests it must have been done by someone else. Vodanovich tells him to get Jimmy to telephone them. Delovski says he will.

58 At 1931 hours on 17 May 2000, Dimi Delovski telephoned the applicant. This is CSN 1123. The applicant calls him "Jimmy". He says "[s]omeone touched the fucken thing Jimmy". Delovski says "[d]on't tell me that man". The applicant says he is going "to keep it like that as it is" until Delovski returns. Delovski swears it was not different. The applicant repeats it was not what Delovski had shown him; it was different. Delovski asks the applicant to let him call the applicant back because he wants to speak to his brother. The applicant tells him to ask who had access to it, and "that other guy Mike was selling Delovski stuff in ounces for three eight". He asks how many did Delovski bring over. Delovski tells him it was one and a half. The applicant replies:

"One and a half, I am telling ya now he got the half, fixed it up, made one out of it and give us that one ..."

59 Delovski says if it was that, he would send his brother over that night to get the other half. If he (Mike) had something else he would go there and shoot him. The exchanges continued. The applicant reiterates that "it" was different, it was not gluey. They discuss what they could do about the person selling it. The plan was to have someone buy half from him and then get someone else to ask for more. if he had more, then they would know what was going on. The applicant says he knows the person sold a few the previous night and had "gone mad" at Delovski's brother and asked what they were doing giving it to other people "... that price they sell em for three thousand eight hundred in the street". Dimi Delovski warns the applicant not to talk. He tells the applicant to order it, but the applicant tells him to speak with his brother first and find out everything. He says they will keep in touch and will find out and if "he" had done it they could do something. Delovski says he would shoot him. The applicant says "[w]e'll do something too" because they were in trouble with this one now. The conversation ends with Delovski saying he would call right back.

60 Delovski did call back a few minutes later, at 1938 hours. This is CSN 1124. He tells the applicant "he" had said "no way". The applicant's response is angry and abusive. He said "it" had been offered to him in the street the night before. Delovski says it was not his brother. The applicant says maybe it was not Delovski's brother, but the other person. They talk further about what they could do, then Delovski says "[w]hat do you ask for more?" The applicant says he would work it out. Delovski says "Ask for ten, ask for ten or fifteen" then they would know where they stand. They are obviously discussing asking the person to supply more of the drug than had been given to him.

61 Conversation 1184 was at 1004 hours the following morning, 18 May 2000. The Crown case was that it contained the conspiratorial agreement. Mr Trasczyk concedes that portion is admissible, but objects to the rest of it.

62 The call is from Dimi Delovski to the applicant. Delovski begins by saying he thinks "he done it". He had ordered the "whatever" and the person said he had six left, but he must have known it was Delovski. The applicant asks how he would know, whether Delovski's friend told him. Delovski rejects that, saying the friend stayed with him, but had told him (the friend) he had helped the person to cut one ounce. They discuss how else they might deal with the problem. The applicant says they had to find out properly, then:

"... he said he's got six, six left, what am I gonna do I got to fix my stuff up mate."

63 He tells Delovski to tell the person that the applicant would "buy one off him". Then he would get a sample of his own, take a sample of each one and send it to Delovski and he could have a look at it. Then follows the portion which the Crown says was the concluded agreement:

"DD Listen, listen uh my brother's gonna come there Wednesday night.

PM Yeah.

DD Yeah uh, you know the you know what did you ask me for the V8, whatever is fixed?

PM Yeah yeah yeah.

DD Okay is very good, okay um is gonna be there on Thursday morning.

PM Yeah yeah don't don't say nothing, that's alright.

DD Listen, if you'll be, you'll be happy just tell me that?

PM Yes of course I will be.

DD You'll be alright with that?

PM Yeah but I'm stuck with this thing Jimmy.

DD Okay what I do we collect everything on Wednesday night and bring it over.

PM Yeah listen.

DD Yeah.

PM Ah you gonna collect this one Wednesday night are ya?

DD Yes we gonna collect then bring it to you.

PM Yeah now listen."

64 They then agree to say nothing, to "the guy". The applicant says "I'm gonna break his legs, I'm gonna hurt him". Delovski agrees that if he had done it, he deserved it, but as the conversation continues, he appears to be trying to persuade the applicant that the person could not have done it because Delovski's brother had told him he had it himself at all times. He then suggests the person may be "chopping it up and fucking you up". The applicant says he is not worried about the person selling, but then says the person "has put a price down that we can't make any money", and that the person would have to sell for at least four thousand two hundred, but he was selling for three thousand eight hundred. He said that would not bother him because the stuff was not that good and no-one wants it and that "I have to fix it up with another good one ...".

65 The applicant tells Delovski it was not a problem, he was only doing Delovski a favour when he got this one. He says he collected "that bit of money, whatever I could ..." because he was "square with Melbourne now". He then says:

"... now what I want to do, well now this one is fucked so I've got to try and do whatever I can, I'm gonna lose a lot of money over this one ..."

66 Delovski says he had spoken to his brother who told him the thing was in the applicant's hands, "the day before, one day two days before that". The applicant says he had never looked at it, otherwise he would never have given him the money. There is some conversation about when Delovski's brother had given "it" to the other person. Delovski says "He asked my brother for it", to which the applicant replies "No, Justin said keep it not now he didn't want to take it". A little later, the applicant says:

"He grabbed it and when he seen it he rang me and said blah blah blah and it was a big hunk it's gone hard, right, must have been in the fridge or freezer, whatever, do you understand."

67 They continue to discuss what to do about the problem. Then, in an apparent reference back to the next transaction in which they have just agreed for something to come over on the Wednesday, Delovski says:

"... just listen, what we used to do, first thing after I put my legs down there, it's the first I have to call you.

... And from there first straight it goes boom to your hand, then after we sit down we talk what's the best to do. ... [A]fter you'd done it we can pass it to other [sic others]."

He repeats that it would be "... first your hand, then it's nobody else".

68 Delovski goes on to say "this is what we used to do". He says he is surprised the applicant did not get it the first time it arrived. In this part of the conversation he is clearly indicating the best way to get the item directly to the applicant and after that talking about what it would be best to do and afterwards whatever it is can be passed to others.

69 The applicant says he is not greedy and does not want too much, but he can give it to people straight away, if it is good. He says he knows too many people and they all want to do business with him.

70 They then start to talk in terms of buying and selling cars, in a way which clearly relates to what they have previously been discussing.

"... but the thing is now Jimmy I've got to get out of this thing to get out of the shit right now"

to which Delovski responds that he thinks the applicant will be out this time because he would be there by Thursday morning and the applicant would be "very happy"; he would be very happy when his "hands can touch it".

72 The applicant repeats not to let the other know anything and they would find out somehow and then asks when he would see Delovski's brother. Delovski says he will be there by Wednesday night to see the applicant Thursday morning. The applicant says they will work something out when Delovski's brother comes to see him, then "it's nobody else". He says he knows what to do, he used to do it and there were "never hassles" because if the paint is good and the engine is good, it "doesn't matter where it's come from the car, you can always sell it ... import cars are easier to sell if they look good and go good". They agree that this time they are going to do it the right way.

73 Then the applicant tells Delovski to tell his brother not to drive the car down to the applicant's house, but to come by himself and they would put the car in the workshop. Delovski says he knows what the applicant means, and then the applicant says "... we'll get it towed after, do you understand?", to which Delovski replies that he does.

74 The applicant says he will try and sell this car, "cheap cheap cheap", that it "[d]oesn't matter", he will lose what he has to but would save some for Delovski to look at and then Delovski would know. The conversation then concludes.

75 Each of these conversations is clearly about illicit drugs being supplied by Delovski to the applicant, for him to sell on. The applicant is very angry about the first transaction. The quality of the drug provided to him and which he has passed on, is very poor and nothing like the sample he was shown. He is in trouble with those to whom he supplied it. He is going to lose money. Someone has substantially cut the product before it got to him, but he does not know who nor how they did it. He thinks "Mike" took the "one and half "that Delovski brought over, kept the one, cut the half to make up one and passed that to the applicant. Further, "Mike" was undercutting the applicant's price by selling it for $3800 per ounce and would have to be persuaded to sell for at least $4200.

76 The two of them are preoccupied with ways of finding out what happened. The applicant is also concerned to retrieve his position with his customers, who he will have to fix up with another good "one".

77 Delovski says his brother is coming over Wednesday night and, "what did you ask me for the V8, whatever is fixed?" and it "was very good" and would be there Thursday morning. This is the conspiratorial agreement. The subject of it is heroin. That is what was brought over on the Wednesday night and seized by police the following morning. I return to this point below.

78 Mr Trasczyk's submissions on the effect of Detective Sergeant Stanbury's evidence are not borne out by the transcript of his testimony.

79 The first proposition Mr Trasczyk put to Detective Sergeant Stanbury in cross-examination was that the Detective Sergeant had suggested to Vodanovich when interviewing him in prison, that the package Vodanovich had brought to Perth on 25 May contained amphetamine. The Detective Sergeant denied that.

80 At t/s 266, Mr Trasczyk drew Detective Sergeant Stanbury's attention to CSN 1123 in which he said there was "a reference to a substance going gluey" (in fact that was incorrect - what the applicant had actually said was that the substance was "... different, it was not gluey" (my emphasis)). Nonetheless, Mr Trasczyk asked (t/s 267):

"And you agree that that's more likely to be a reference to amphetamine rather than heroin?---That comment in its own?

Yes?---Out of context with everything, yes, it could be a reference to amphetamine more than heroin."

81 The Detective Sergeant maintained what he had said earlier, that this conversation did not cause him to suspect that the applicant was involved with Delovski in a transaction involving amphetamine.

82 At Mr Trasczyk's request, the State had provided to him a copy of a table prepared by a police officer (not a witness) and used by police investigators for operational purposes. The table was an indicative guide to the prices of various illicit drugs at different times. Mr Trasczyk put to Detective Sergeant Stanbury that the table showed that for the period April to June 2000, amphetamine was selling at $3800 an ounce. The Detective Sergeant agreed that was what it showed. Counsel then referred to the conversation in which the applicant complained that "Mike" was selling Delovski's product for $3800 an ounce, and put to the witness that the substance had to be amphetamine. Detective Sergeant Stanbury said it was exactly the opposite; he would say it was referring to heroin, not amphetamine. Asked to explain, he said the applicant was irate that "Mike" was selling the drug for that amount. There was then the following exchange (t/s 270):

"Firstly, what do you say is the opposite?---I say that it's not a reference to amphetamine.

Well, what do you reckon it is?---I think it's a reference to heroin.

Even though it nominates the price in ounces that the police force are using as being the price of amphetamines?---That's right, and that's the whole crux of it. Musarri is so upset that this fellow is selling it at three eight he can't believe it's being sold at 3800 and he's angry about that so why be angry if that's the going price and everyone else is selling it for around that at that time?

Because prices do vary, depending on purity and whatever, don't they?---That's correct.

And indeed Musarri later on, I think, in that conversation, or perhaps another one, says that he should be selling it for four two?---That's right, at least four two.

You still say, you still maintain in front of this jury that's not a reference to amphetamine?---That's correct.

At that time April to June, according to this table, of the year 2000, what was the price of heroin per ounce?---6 and a half to 9 thousand dollars."

83 The detective subsequently explained that he understood the exchange between the applicant and Delovski about what "Mike" was selling and what he had been offered the night before in the street was about heroin. As to that (t/s 272):

"Which even though it seems to fit exactly with the police prices for amphetamine, you say is the exact opposite, it's for something that really on the market was retailing at that time for between 6 and a half and 9 thousand?---And that's exactly right, it was retailing for that particular price ..."

84 Pressed further, the detective said the applicant's complaint was that "Mike" was selling the good one for 3800. That was what he was upset about. He was undercutting the applicant. If it was amphetamine being sold, there would be no need for the applicant to be upset - that was the going price. At t/s 274 he elaborated:

"But later on, later on, Musarri says, 'He should be selling it for four two'?---I think he says 'at least four two,' doesn't he?

Otherwise he's not making a profit out of it?---Mm, that's right. Like five grand an ounce, $5000 an ounce - and I know what the table says and there's other things you can go from as well. $5000 is roughly about the average, what we would have considered, at the time. This bloke should be selling it for at least four two and remembering the price on the tables, that's the retail prices whereas the level that we're looking at is above that, we're looking at the wholesaler.

At that level it should be less, shouldn't it?---That's right.

You see, I repeat again the question I asked you just a moment ago. I asked you whether there's anything in those first four telephone conversations passing between Delovski and Musarri which indicate to you as an experience police officer that the transaction they are talking about there, whatever it may be, refers to heroin?---Yes.

And you can't find anything, can you?---I have. I have just explained it to you, because of the price."

85 A little later, taken to the references in the conversation to cars, and imported cars, Detective Sergeant Stanbury said that he took them to be another indication the applicant and Delovski were talking about heroin. That is because heroin is imported into Australia. Although home-bake heroin is made in Australia, the finished "normal" diacetylmorphine is not, so this was a "classic conversation" where the talk about imported cars was talk about heroin.

86 Mr Trasczyk returned to the issue about the price. Detective Sergeant Stanbury reiterated that in his opinion they were talking about heroin and the applicant was complaining that "Mike" was selling it too cheaply. In response to counsel querying that opinion, if the applicant was suggesting that "Mike" should be selling it for a price at least $2000 less than the going rate, the witness pointed out they did not know how much "Mike" had paid for it. The table was merely a guide, based on what information about prices the police had, and they obviously did not know of every transaction that took place. In addition, the table referred to retail prices, not wholesale prices (t/s 278):

"You sell, on the street - you sell packets of drug and a packet will generally be .1 of a gram and you can sell that for $100, so when it's just a simple case of mathematics to see how many point ones of a gram you get out of 28 grams and that's how much an ounce is.

So it's about $1000 for a gram and 28 grams in an ounce?---That's right, so then you've got a possibility of $28,000 and you have brought the ounce for whatever. So you bought the ounce for $10,000; you're going to make a profit of $18,000 but if you sell the ounce on as an ounce - this is where the table comes in. This is sort of retail prices. Wholesalers work differently in the drug trade and it's like any wholesaler; you buy in bulk, you get it cheaper, you sell it on to your retailers, they mark up the price and along you go, so it's the same sort of thing that applies in businesses as does in the drug trade."

87 It is not necessary to canvass this witness' evidence further. Suffice to say he at no time resiled from that which I have set out above. The submission that the effect of his evidence was that the conversation was about amphetamine, simply misconceives the effect of that evidence. It went entirely the other way and tended to confirm the applicant and Delovski were talking about heroin.

88 It is clear enough that this agreement arises out of the conversations and events which preceded it. It was well open to the jury to be satisfied that the previous transaction did involve heroin, but in my opinion, that does not matter. On any view, it involved an illicit drug and it was the problem the applicant had with it that gave rise to the conspiratorial agreement. The agreement was very much a consequence of the problem with the first transaction; the need for it and the details of how it was to be done are explained by what had happened in the earlier transaction.

89 Whether the earlier transaction concerned heroin or amphetamine or some other illicit drug, the evidence was admissible. It went well beyond merely showing the applicant had a propensity to deal in drugs. It showed the criminal nature of the association between the applicant, the Delovskis and Vodanovich and provided the reason for, and circumstances of, the conspiratorial agreement and explained the terms or details of it. It was not necessary that the earlier transaction be shown to have involved heroin (although it was open to the jury to conclude it did). What the prosecution had to prove was that the subject agreement concerned heroin.

Grounds 3, 4, 6 and 7 - whether agreement about heroin; what was intended?

90 The proposition underlying ground 3 is that the trial Judge directed the jury essentially on the basis the applicant had been charged with possession with intention to sell or supply, whereas the charge was conspiracy, so that the parties to the conspiracy had to have agreed that he take possession and with the intent that he would sell or supply. The submission is that her Honour's directions would have led the jury to believe it was open to convict if it was proved the applicant alone had the necessary intent to possess or to possess with intent to supply, rather than the Crown having to prove knowledge and intent being the subject of a concluded agreement between the applicant and at least one other.

91 The submissions on this ground depended upon extracting individual portions of her Honour's directions and asserting they would, or could, have created in the mind of the jury an understanding that it would be enough for them to convict if the evidence showed the applicant alone intended to sell or supply the drug, whereas each of the conspirators had to have that intention as part of the agreement. However, a trial Judge's directions are not to be approached that way. They are to be considered in the context of the directions in which they were given and the issues and evidence of the trial.

92 The first passage which is said to be a misdirection is at t/s 593:

"Conspiracy is an agreement of two or more people to do an unlawful act and it's the fact of the agreement to engage in a common enterprise which is the nub of the offence and it requires this: that the accused entered into an agreement with another person, that the agreement was to carry out the offence specified, in making the agreement the accused person was aware of the precise nature of the agreement; that is, he knew what they were agreeing to and he agreed to carry it out and, finally, that he intended to carry it out."

"The only reason, of course, I give you these examples is to make it clear to you what is needed for a conspiracy, that you enter into an agreement with another person to do something unlawful, you know the precise nature of the agreement, you know what's being agreed to and you agree to carry it out and you intend to do your part of it."

94 However, both of those followed her Honour's explanation of the elements of the charge on the indictment, which concluded with her summary (at t/s 592) that:

"So what they're saying is, the agreement was that Paolo Musarri would possess a quantity of a prohibited drug, namely heroin, with intent to sell or supply it to another" (My emphasis).

95 That was an entirely accurate and succinct direction, and there was nothing in what her Honour subsequently said which would have detracted from it or could have misled the jury in the way suggested.

96 The direction complained of at t/s 594 was the conclusion of an explanation by her Honour of the nature of agreement and how that might be proved. She had emphasised that not only did there have to be shown an actual agreement on an object to be achieved, but an intent on the part of the conspirators to carry it out. Her Honour's references to "you" reflect the style of her explanation by describing something upon which the jurors might have reached an agreement about something; she is speaking of an accused person as an individual and what the prosecution has to prove about that individual. The direction was entirely apt in the circumstances.

97 At t/s 595 - 596 her Honour reminded the jury that the Crown had to show that the applicant entered into an agreement with another person, the agreement had to be one to carry out the offences specified on the indictment and that he had to be aware of the precise nature of the agreement - that is, he knew what they were agreeing to and he agreed to carry it out and he intended to carry it out. Her Honour then explained in detail the elements of the offence of possessing a prohibited drug with intent, including that the accused had to have an intent to possess and it had to be possession with intent to sell or supply. Counsel for the applicant submits it is passages such as this which would have been likely to mislead the jury. I disagree.

"Now, it's not enough for this agreement that it might be somebody's expectation that if Mr Musarri got this he got it with an intention to sell or supply. You know, it's not enough that you say, 'Well, there's lots of it; he must have intended to sell or supply it.' It has to be part of the agreement, and the agreement is that Musarri will possess it with intent to sell or supply" (My emphasis).

99 That direction was entirely in accordance with the law and it clearly and squarely identified for the jury the point that the agreement had to be shown to be one that the applicant would possess the heroin with intent to sell or supply.

100 There is no substance in ground 3. These conclusions also dispose of ground 4(a).

101 As presented, grounds 4 and 6 overlapped. They relate to the element of intent to supply as part of the conspiracy. It is first said that in opening the Crown case, the Crown prosecutor asserted the conspiracy "was [sic] an intention to possess heroin". The charge as expressed on the indictment was that between 16 and 27 May 2000 at Perth the applicant conspired with Vodanovich and the Delovskis to possess a quantity of a prohibited drug, namely heroin, with intent to sell or supply it to another. Mr Dempster went through that with the jury at the outset of his opening.

102 The applicant refers to t/s 120 - 121. It is true that Mr Dempster did there describe the "essence" of the agreement which the Crown sought to establish, as being that heroin would be transported from the east so that the applicant could possess it.

103 At the conclusion of the Crown prosecutor's opening and in the absence of the jury, Mr Trasczyk pointed that out to the trial Judge and complained that as a result the defence still had not been apprised of any particulars going to the allegation on the indictment of the intent to sell or supply. He said there were various possibilities as to who the alleged agreement contemplated as having possession with that intent. Mr Dempster confirmed that the Crown case was that the agreement alleged was that the applicant would have possession with intent to sell or supply. When the jury returned, her Honour told them she wanted to make it clear that when the Crown prosecutor spoke to them about a conspiracy to possess heroin, that was his "shorthand" way of referring to possession of heroin with intent to sell or supply.

104 After the Crown case closed and following her Honour's dismissal of the applicant's submission of no case to answer, Mr Trasczyk again raised the issue of the intent aspect of the alleged conspiracy. Her Honour said she understood the Crown case to be that the agreement was that the other participants would get the heroin to the applicant who would then possess it with intent to sell or supply to others.

105 The applicant complains that her Honour wrongly directed the jury that it was open to convict if they were satisfied he alone had the intent to sell or supply, whereas that had to be part of what each of the conspirators was agreeing to, and the directions did not make that clear.

106 I have already referred to the passages from her Honour's directions at t/s 592, 596 and 597. That complaint cannot be sustained.

107 Next it is submitted that there was no, or insufficient evidence, for the jury to find it was part of the conspiratorial agreement that the applicant possess the heroin with intent to sell or supply. It is submitted the case is "identical" to The State of Western Australia v Marchesi & Anor [2005] WASCA 133; (2005) 30 WAR 359.

108 In Marchesi the respondents had been charged on indictment with an offence that between the relevant dates "at Perth and elsewhere" they conspired together to possess methylamphetamine with intent to sell or supply.

109 There were communications between, and conduct of the respondents in Victoria, which resulted in Marchesi (who lived in Perth) consigning cartons of electrical goods to Perth. The methylamphetamine was secreted in them. Prior to trial the State had sent a letter to the respondents' solicitors informing them that the common object alleged by the conspiracy was the possession of methylamphetamine by Marchesi in Western Australia. That was how the prosecution opened the case at trial.

110 The respondents were successful on their submission of no case to answer before a Judge of the District Court, who held that, notwithstanding the State's particularisation of the charge, what was charged was a conspiracy to jointly possess methylamphetamine with a joint intent to sell or supply, that if there was joint possession it was in Melbourne and that there was no evidence of a joint intention to possess or supply the drug to another in Western Australia. It also appears that her Honour considered the jurisdictional prerequisite of s 12 of the Criminal Code had not been met.

111 On an appeal by the State, Steytler P (with whom McLure JA agreed) observed ([40]) it was common cause that the conspiratorial agreement was made entirely in Victoria. He noted all communications, and the only association, between the respondents took place in Victoria. He held that in those circumstances the District Court of Western Australia had no jurisdiction.

112 Notwithstanding that that conclusion was sufficient to dispose of the appeal, his Honour dealt with the other issues raised. He accepted that the provisions of s 33 of the Misuse of Drugs Act were intended to comprehend the commission of an offence by either or both the conspirators. It was therefore wide enough to encompass an agreement between the respondents that Marchesi would possess methylamphetamine in Western Australia with intent to sell or supply it to others. Further, notwithstanding that the charge as set out on the indictment was in the same terms as in R v Marinovich & Ors (1990) 46 A Crim R 282, the particularisation of it in Marchesi made it abundantly clear that what was charged was an agreement between the two men that Marchesi alone would possess the methylamphetamine with that intent. In the former, the Crown chose to put its case as being a conspiracy to jointly possess.

113 Steytler P accepted that as the charge in Marchesi was of a conspiracy that Marchesi would possess methylamphetamine in Western Australia, with intent to sell or supply, it was necessary for the prosecution to prove that both men intended, as part of their agreement, that that would happen. That requirement was well established by authorities such as R v Trudgeon (1988) 39 A Crim R 252, 254, 255 - 256; Marinovich (supra); and Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202, 215.

114 Steytler P acknowledged that as there was no evidence of any expressed term of the agreement between Marchesi and his co-conspirator that Marchesi would take the drugs to Western Australia and sell or supply them, the co-conspirator's intention could only be proved by inference. However, his Honour held there was evidence in that case from which that inference might be drawn. That included evidence that given the quantity of the drug (more than 500 grams) and the fact that it had an estimated street value in Perth of thousands of dollars, it must have been obvious to the co-conspirator that some of the drug at least would be sold or supplied by Marchesi after it had arrived at its destination. His Honour reiterated the distinction he had made earlier, that it was one thing for the co-conspirator to have been shown to have known that would occur, and another for him to have been proved to have intended, as a matter of agreement, that it would. Even so, the case was sufficient to go to the jury, had the court had jurisdiction. In circumstances in which the evidence disclosed such a detailed and active level of participation by the co-conspirator in concealing and packaging the drugs for transport, it was open to a properly instructed jury to conclude that in the absence of any other explanation, the only reasonable inference was that the co-conspirator had not only known, but had intended as part of the conspiracy, that the drugs would be shipped to Perth and sold or supplied there by Marchesi.

115 Pullin JA took a different view about the nature of the offence charged. He considered ([75] - [77]) that the particulars given by the prosecution and what was said in opening the State case contradicted the clear wording of the charge on the indictment, and that could not be done. In his Honour's opinion, the only case which could have been advanced on the indictment was one of joint possession and the trial Judge was right to so hold. As to jurisdiction, Pullin JA agreed the territorial nexus required by s 12 of the Code did not exist and accordingly the District Court of Western Australia lacked jurisdiction.

116 His Honour disagreed with Steytler P and McLure JA on the evidentiary point. He considered that even if the agreement charged had been that Marchesi would possess the drugs with intent to sell or supply in Western Australia, there was insufficient evidence for a jury to be able to be satisfied it had been proved. According to his Honour (at [86]), all that could be said from the evidence was that the co-conspirator might expect that Marchesi would return to Western Australia with the drugs. However, other reasonable inferences were open. These included that it was equally possible that Marchesi, having acquired the goods in Victoria, planned to travel to some other State in order to dispose of them or to travel out of Australia to dispose of them. Thus it was, his Honour said, that the existence of an inference that the co-conspirator expected that Marchesi would possess the goods in Western Australia was not enough to make out the charge.

117 In the present case, as I have already indicated, the State had advanced from the start and sought to maintain throughout, that the agreement was that the applicant would possess the heroin in Western Australia with intent to sell or supply. That was what the jury found. The evidence was sufficient to support that finding. It is apparent from the intercepted telephone calls (and was not disputed) that the applicant, the Delovskis and Vodanovich, were engaged in drug dealing, with the Delovskis supplying the drugs from Melbourne to the applicant in Perth. It was well open to the jury to be satisfied from the conversations that the applicant was a wholesale supplier in Western Australia and the drugs were provided to him for the purpose of selling or supplying them in Western Australia. The conversations indicate the applicant had a problem with his customers because of the poor quality of the drug supplied from the previous transaction, and with "Mike" selling the product also, supplied by Delovski, at a price which was undercutting the applicant. The evidence is capable of sustaining the conclusion that the conspiratorial agreement arose out of those problems and was intended to help the applicant overcome them. That could only have been done by him selling or supplying the heroin which was to (and did) come over with Saso Delovski on the Wednesday night. In CSN 1184, what Dimi Delovski says - about what his brother is bringing over will go first to the applicant's hand and then they can sit down and discuss what is best to do and that afterwards they "can pass it to other [sic others]" - is readily capable of supporting the inference that it was part of the agreement that the applicant would sell or supply the drug to others. Unlike Marchesi, there was no suggestion the applicant might sell or supply the drugs outside Western Australia.

118 Complaint is made about her Honour's directions to the jury to the effect that the quantity and value of the drug was evidence which they could take into account as supporting the inference that there was an intent to sell or supply. At t/s 597 her Honour told the jury it had to be possession with intention. She then reminded them that what the Crown said about that was that they should look at the amount and value of the drug, which was such as to give rise to the inference that whoever got it, must have been intending to sell it.

119 That direction was given in the context of an explanation by her Honour of the elements of the offence of possession of a prohibited drug with intent to sell or supply. That was what the Crown had put to the jury and was an argument that was properly open. Significantly, her Honour went on to direct the jury that:

"... and that must have been what they were both agreeing - intending",

following which she explained it was not enough that it might be somebody's expectation that if the applicant got the drug he got it with an intent to sell or supply, adding the passage from t/s 597 I have already set out above at [98].

120 In his oral submissions, the way Mr Trasczyk put ground 4(b) was that there was no concluded agreement because the applicant wanted to sample the product first. He relied upon Silvestro v The Queen, unreported; CCA SCt of WA; Library No 970468; 7 August 1997

121 There the applicant had been convicted of conspiring with Nino Gangemi to sell or supply a quantity of cannabis to another.

122 Gangemi lived at Mundijong. Police had his property under surveillance. They also had under surveillance a property at North Bannister. In April 1994 they discovered 15 snap-seal bags, each containing one pound of cannabis in each of two blue barrels at the North Bannister property. Later the same morning, Gangemi arrived at that property in a utility, on the back of which were two green 44 gallon drums. He put the two blue barrels into the drums and drove off.

123 Police officers intercepted and taped a telephone conversation between the applicant and Gangemi on 13 May 1994. During the course of the conversation, the applicant told Gangemi that he "was coming there today" and would come around 9 am. As soon as he was ready he would "come up there". The applicant had said, "... and then I'll look at it". He then said, "If it's good ... I'll bring these others there". He then said, "I'll bring him to come and get it with the money". That was the end of the conversation.

124 Later that day, police saw the applicant drive to Gangemi's property and afterwards leave it in Gangemi's utility. There were two green 44 gallon drums on the rear of the utility. The two of them drove to the North Bannister property. Later that day they were seen back at Gangemi's property, standing alongside the utility, near which were two blue barrels similar to those which had been seen at the North Bannister property in April with the cannabis in them. Shortly afterwards, the applicant was seen to walk towards his motor vehicle carrying a small green bag. He then left the property. There was other evidence concerning items found and about the examination of them and of the arrest of the applicant, but none of that bore upon the alleged conspiracy.

125 On appeal, the substance of the applicant's argument was that what was said in the telephone conversation was the only evidence to support the agreement charged, but that was at best ambiguous and could not be sufficient to support a conviction. As Wallwork J (with whom Kennedy and Heenan JJ agreed) mentioned, the analogy submitted was that (at 6):

"... if a person said to a car dealer 'I will take that car for a spin. If it is good I will get my fiancee to buy it. ... I will get my friend to buy it,' there could not be said to be an agreement to sell."

126 His Honour accepted that submission, saying (at 9):

"In my view, the evidence left open a reasonable possibility that the applicant could have been an agent for another or others. It could have been Mr Gangemi who was to sell or supply the cannabis to the applicant coming to the property to buy it. ...

It might have been that the applicant, with the other or others, referred to in the telephone conversation, were acting together in the purchase of cannabis. It might have been that the applicant was an agent on behalf of another or others. The fact that the applicant was to test the cannabis might suggest that he was on the buyer's side. There was not sufficient evidence that there was a concluded agreement or as to the terms of it."

127 As the headnote states, that case turns on its own facts. It is a question of sufficiency of evidence. By contrast, there is no suggestion here that the applicant was acting as agent for Delovski, nor on behalf of anyone else. The conversations between them show clearly enough that Delovski was to provide the drug to the applicant on his own account.

128 For the applicant it is submitted that the evidence "clearly established" that the applicant was not prepared to commit to anything until he had checked a sample of the drug brought over on the Thursday night. This is said to be apparent from telephone conversation CSN 1722.

129 That was a call made by the applicant to Justin Vodanovich at 2150 hours on Wednesday 24 May 2000. Saso Delovski had arrived at Perth Airport at 2040 hours. The applicant asked "how long would you be before you get here?" Vodanovich says he is able to meet Saso Delovski soon and "as soon as he rocks up, and do what we talked about and I'll come over." The applicant tells Vodanovich to tell Delovski, not until tomorrow, and then:

"PM Bring, bring a sample, tell him I'm hot.

JV Yeah I will do.

PM Yeah, get a sample off him.

JV Yep.

PM Right, don't be long.

JV Yeah I'll be as quick as I can mate.

PM Yeah because there's a problem.

JV There is, is there?

PM Well not really in one sense, but there's been a rip off.

JV Ohh you're kidding me?

PM Yeah.

JV Fuck me.

PM Anyway we'll sort it out.

JV Alright mate."

Musarri v The Queen [2006] WASCA 92

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (227 paragraphs)

Musarri v The Queen [2006] WASCA 92 (29 May 2006)

Parties

Legislation Cited (1)

Cases Cited (10)