R v Doncev

IN THE COURT OF CRIMINAL APPEAL 60587/00 SPIGELMAN CJ STUDDERT J IRELAND AJ

Thursday 1 November 2001 REGINA v KOSTA DONCEV

Judgment 1 SPIGELMAN CJ: I agree with Studdert J. 2 STUDDERT J: The appellant, Kosta Doncev, stood trial in August 2000 charged with an offence under s 233B(1)(c) of the Customs Act of having in his possession without reasonable excuse a quantity of 3,4 methylenedioxymethamphetamine (commonly known as ecstasy) which had been imported into Australia in contravention of the Act. The charge alleged a trafficable quantity of the drug was involved. The jury found the appellant guilty and he was sentenced to imprisonment for a period of six years with a non parole period of three years, and the sentence commenced on 31 August 2000. 3 The appellant appeals against his conviction; he does not seek leave to appeal against sentence should the appeal against conviction fail. 4 Before considering the various grounds of appeal, it is desirable to outline the evidence relied upon by the Crown.

Summary of the Crown case 5 On 23 November 1995 Federal police officers seized a parcel which had arrived in Australia addressed to "Victor Dimitrov, 35 Roadshow Drive, Wodonga, Australia." The postmark on the package indicated it had been sent from The Netherlands some days previously. The package contained two photograph albums and close inspection disclosed that there were white tablets that had been hidden inside each of the front and the back covers of the albums. 1900 tablets were found. The nett weight of the tablets was 528.9 grams and analysis revealed that the pure ecstasy content was 159.8 grams. 6 The police removed all but 20.1 grams of the tablets, replacing the tablets removed with some inert substance and the package was then reassembled in preparation for a controlled delivery. 7 The package was delivered to Victor Dimitriyevich at his home in Wodonga. (This recipient stood trial with the appellant on a like charge to that faced by the appellant, but was acquitted by the jury.) Having received the package, Dimitriyevich put it in his car and set off to drive to Sydney. His movements, and subsequently those of a man named Dinic, and the movements of the appellant were observed by police officers who gave evidence at the trial. Upon arrival in Sydney, Dimitriyevich was observed with Dinic and another person at a restaurant in Bondi, but whilst Dimitriyevich was in the restaurant the package remained in the boot of the car. Dinic left the restaurant and went to Dimitriyevich's vehicle. He drove that vehicle to a nearby street where the appellant was standing by a telephone booth. The appellant joined Dinic in the car. Dinic drove the car a short distance down the street, did a U-turn and then stopped. 8 Dinic left the car and removed the package from the boot. Then Dinic was seen standing at the front of the vehicle, urinating at a tree, whilst the appellant remained by himself in the front passenger seat, with the interior light of the vehicle on. Whilst he was so seated, the appellant was observed with a brown cardboard box on his lap, holding a book in his hands. There was a second book seen resting on the centre console of the vehicle beside the appellant. The appellant was observed to throw one of the books into the rear of the vehicle before police approached and arrested both the appellant and Dinic, who had re-entered the car just before the police arrived at it. The books seen proved to be the photograph albums. Both photograph albums were retrieved from inside the car and it was observed that the front and back covers of each had been torn open and the white tablets had been removed. The box earlier observed and one of the damaged photograph albums were located on the back seat of the vehicle. The second photograph album was found between the two front seats in the console area, as was the tablets described earlier. The appellant was searched and he was found to have over $7000 in his possession. 9 An interview was conducted by the police with the appellant. In that interview the appellant denied seeing or looking at the photograph albums and denied any knowledge of the white tablets. He said he did not know Dinic's surname, but he had met with him prior to arrest with the aim of going to see a person with whom Dinic had left some brochures of paintings which had been painted by a person named Suzie, who was described by the appellant as being his nephew's girlfriend.

The evidence of the appellant 10 The appellant subsequently gave evidence at the trial. Just as he had denied in the interview conducted by the police following his arrest that he had seen or looked at the photograph albums whilst he was in the car, and as he had denied knowledge of the white tablets, the appellant in his evidence at the trial gave an account inviting the conclusion that he had not removed any tablets from any photograph albums. He said that he met with Dinic for the purpose of picking up "the photo" (AB 112). He said that he entered the car and observed that there were boxes and bottles of drink and a lock for the steering on the seat so he threw them on the back seat. The appellant denied that Dinic handed anything to him in the car.

The grounds of appeal 11 The grounds of appeal first filed were added to in a later document contained in the appeal book, which is undated but which appears at p 5 of the appeal book. Two further grounds were addressed in the appellant's written submissions dated 12 October 2001. Then in a further document, received by the court on 23 October 2001, counsel for the appellant indicated that grounds 1, 3, 4, 5, 6 and 7 of the grounds referred to in the earlier written submissions of 12 October 2001 were not being pursued. 12 In the result, counsel identified three remaining grounds upon which the appellant relied:

(1) that his Honour erred in admitting evidence concerning the transfer of funds by the appellant overseas;

(2) that his Honour erred in refusing to allow further cross examination by the appellant of a witness named Suzanne Georgieve;

(3) that his Honour erred in failing to direct the jury as to lies. 13 Those grounds were addressed in written and oral submissions. 14 I will now consider each of these grounds in turn.

Ground 1: 15 The appellant has submitted that the trial judge erred in admitting evidence that the appellant sent money to the man Dinic in Amsterdam. An application was made before the trial for the exclusion of the evidence as to this but the appellant's application was unsuccessful. The reasons of the trial judge for the ruling that he made appear in the appeal book at pp 7-9. In admitting the evidence, his Honour ruled that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the appellant. 16 The evidence in point was as follows: on 17 August 1995 the appellant sent to Petar Dinic in Amsterdam, Holland the sum of $6000. A record of this appeared in one of the exhibits at the trial in the form of a document entitled "Western Union Money Transfer". Six days later there was a second transfer by the appellant to Petar Dinic, this time in the sum of $2000. Again the transfer was to Amsterdam, Holland and again there was a record of this in a document described as a "Western Union Money Transfer". 17 It was submitted that the transfer of these two amounts to Dinic three months prior to the arrival in Australia of the package containing the drugs was too remote in point of time to assume relevance. Moreover, there was no evidence as to what the money was used for, nor as to what whoever paid for the drugs paid for them. The only evidence explaining the two transfers was an innocent explanation from the appellant later given at the trial. Moreover, whilst the money that the appellant sent to Dinic was sent to Amsterdam, the package was despatched from Eindhoven (a city some 110 kms from Amsterdam). With these considerations in mind, it was submitted that the evidence ought not to have been admitted and it had no probative value. Alternatively, any probative value it may have had was outweighed by the danger of unfair prejudice to the defendant. Mr Thangaraj submitted that there existed the danger that the evidence of the payments made months before the appellant's arrest might be used impermissibly by the jury as indicating some previous drug transaction at about the time the payment was made. This risk, he submitted, amounted to danger of unfair prejudice. I do not regard that risk as being a real risk having regard to the evidence in this case. 18 The Crown case was one which depended essentially upon circumstantial evidence. The payment of these two sums of money three months before the arrival of the drugs was one aspect of the Crown case. The other features of the Crown case can be shortly summarised:

(i) there was the circumstance that the appellant met Dinic at the time and place referred to;

(ii) after the appellant had joined Dinic in the car Dinic was driving and it came to a halt, Dinic removed the box from the boot of the vehicle;

(iii) there were the observations of the appellant then referred to earlier in the outline of the Crown case concerning the appellant's handling of one of the albums, the observation of the box in his lap and the position of the second album beside him on the console. Added to this was the evidence as to the manner in which both books had been disturbed and the finding of the tablets beside the seat that he was occupying;

(iv) there was the circumstance that the appellant was found to have over $7000 in cash in his possession. 19 The critical issue in the case, identified as such in the summing up (AB 155-156), was the issue of possession by the appellant: did the appellant have physical control of the drug with the requisite awareness? It seems to me that the evidence of the transfers to Dinic in Amsterdam was plainly relevant to, and had real probative value in, the context of the Crown case. The money was sent to the same man who met with the appellant at the very time when the ecstasy was found in the car in the circumstances outlined. The submission that the probative value of the evidence was outweighed by the danger of unfair prejudice, considering prejudice in the relevant sense, should, in my opinion, be rejected. 20 In my opinion, ground 1 has not been established.

Ground 2 21 The Crown called Suzanne Georgieve at the trial but led no evidence from her apart from her name and address. It was submitted on behalf of the appellant that her evidence assumed importance in his case because, consistently with what the appellant told the police after his arrest, he claimed that the meeting with Dinic was with a view to endeavouring to retrieve her brochures that he had spoken of to the police at the time of his interview. Presumably then, the Crown called the witness at the request of the appellant and thus made her available for cross examination by the appellant. 22 In cross examination the witness agreed that she had given a statement to the police to the effect that the appellant had assisted her in trying to sell some of her paintings. The witness said that she handed an album of photographs of her work to the appellant on the understanding that the album would be returned to her. In the course of her evidence the witness was asked this question and gave this answer at AB 70: "Q. When was the last time you saw that album of photographs? A. It was the day me and Mr Doncev went to Bondi to meet Pero." 23 The transcript records that counsel appearing for the appellant at the trial then tendered the album identified by the witness and the subject of the above question and answer. The tender prompted the Crown Prosecutor to seek permission to ask a question on the voir dire. The appellant's counsel took exception to this being done in the presence of the jury. His Honour then said: "It is not necessarily the case that a voir dire has to be held in the absence of the jury." 24 The judge then permitted the prosecutor to ask these questions, and the transcript records the questions as being asked on the voir dire (AB 72-73): "Q. Is this actually the album that you handed over to Pero? A. Yes it is.

Q. You got it back at some stage did you? A. No I didn't.

Q. These aren't the actual pieces of plastic and the actual photographs that you handed over? A. Yes it is because I have never got it back.

Q. You've brought this to court today, correct? A. No it's not that. HIS HONOUR: Q. Between the time you gave it to Pero and when you were given it in the witness box, have you seen it? A. No.

Q. You haven't had it? A. No I didn't." 25 Following the above questioning, counsel for the appellant asked these questions: "Q. Maybe I should do this before I tender it ['it' presumably being the album tendered before the Crown Prosecutor asked the above questions], do you have another photographic album with you? A. Yes.

Q. Have you got it there now? A. I've got it in my bag.

Q. Is it in the white plastic bag." 26 His Honour then queried the need for the introduction of the second album: "HIS HONOUR: Why does she need to get that out? BAFFSKY: I'll clear this up your Honour. The Crown has cross-examined his own witness in front of the jury on an important matter.

HIS HONOUR: She's given the answer, she says she hasn't seen that one from the time she gave it to Pero and when she was shown it in the witness box today.

BAFFSKY: I'm cross-examining this witness your Honour with respect, this is the way I would like to proceed.

HIS HONOUR: I can't see the relevance of asking her about some other thing which has got nothing to do with this case…" 27 Eventually his Honour gave this ruling (AB 74): "I'm not going to allow it Mr Baffsky, she has given the answer and there's nothing to contradict it and it's quite clear what she said you haven't got a problem lets get on with it." 28 Thereafter the photo album tendered before the Crown Prosecutor's questioning was admitted into evidence without objection. 29 Mr Thangaraj submitted that it was irregular for the Crown to have asked questions on the voir dire in the presence of the jury. He referred to s 189(4) of the Evidence Act. Moreover, he submitted that the Crown ought not to have been permitted to ask questions which took the form of cross examination. Neither of these points was taken as a discrete ground of appeal but it was not appropriate for the Crown to ask questions as though by way of cross examination without leave. However, I am not persuaded that the questions asked by the Crown were asked in such a way as to indicate a challenge to the credibility of the witness. Whether this be so or not, it does not seem to me that what occurred involved any risk of a miscarriage of justice. 30 The point of the ground of appeal presently being considered was the appellant's complaint that he was prevented from seeking to introduce the second album into evidence or to ask further questions about it. I do not accept that there is any substance in this complaint. His Honour expressed his reasons before the jury for stopping the further questioning. The evidence that the witness had given to the effect that she had not seen the exhibited album between the time that she handed it over in October 1995 and the time that she saw it in the witness box was uncontradicted, as his Honour observed. I see no basis for apprehension that the questions asked may have discredited the witness in the minds of the jurors. I detect no error in the ruling that his Honour gave because the other album the witness had with her in the witness box was relevant to no issue at the trial. 31 In my opinion, this ground fails.

Ground 3 32 In the course of cross examination of the appellant, questions were asked of him which, it was submitted, gave rise to the need for the trial judge to give the jury instruction concerning the subject of "lies". 33 Mr Thangaraj referred to the following extracts in the transcript concerning this ground: [AB 121] "Q. You lent him [Dinic] money because he was a very good friend of [y]ours? A. Because I lend him many times before.

Q. Did you lend him many times because he was a very good friend of yours? A. Yes…"

And linked with the above at AB 135: "Q. You'd sent money to Mr Dinic in Amsterdam in order to pay for the drugs hadn't you? A. Is not true."

[AB 121] "Q. So when you told the police that you did not know his surname you were trying to protect him, is that right? A. I say I been shocked and tired that time, I don't know why I say that.

Q. You told the police because you wanted to distance yourself from him, didn't you? A. Distance?"

[AB 121] "Q. You were actually there because you were going to get the drugs from Mr Dinic weren't you? A. No."

[AB 122] "Q. Might Mr Doncev be shown exhibit B please, the transcript of the record of interview. Mr Doncev would you look at question 212 please, which is on page 26 of the record of interview. Look first at question 211. You were asked by Mr Nelson, 'why did you withdraw $10,000 yesterday?' and the answer was, 'for the races', do you see that? A. Yes..."

And linked with the above question at AB 123: "Q. You had that money to pay to Mr Dinic, didn't you on that night? A. No.

Q. No? A. No." 34 It is clear from the above extracts from the evidence that the Crown Prosecutor cross examined the appellant upon the elements of the Crown case and elements as to which the appellant had proffered in evidence some innocent explanation. The cross examination went to the credibility of the appellant's evidence in response to the circumstantial case presented against him. Had any of the responses in cross examination been relied upon by the Crown as some independent evidence of guilt in the sense discussed in Edwards v The Queen ((1993) 178 CLR 193 at 208 and following), then the need would have arisen for the jury to have been instructed concerning those matters to be considered, as identified in Edwards, before the jury could have used any such response or responses as going to the proof of the Crown case. However, whilst the appeal book does not contain a transcript of the final addresses of counsel, it appears to be clear that the jury was not asked to consider the responses in cross examination other than as going to credit. Counsel appearing for the appellant at the trial did seek a direction as to lies, but the terms of his request indicate that the Crown Prosecutor had not invited the jury to use any alleged lies as probative of the Crown case. In seeking a direction on lies, counsel for the appellant said this (AB 176): "And the third thing that I'd like to raise with your Honour is that the Crown in his address referred to both of the accused telling lies and the Crown of course also conceded that even if you found that, that doesn't necessarily mean that they're guilty and of course there's a particular way the law deals with that issue. Would your Honour consider that direction…" 35 The way that the Crown put its case against the appellant is to be ascertained by reference to the summing up. In the course of the summing up, the trial judge instructed the jury that the Crown relied upon circumstantial evidence and the judge later summarised the Crown case for the jury, identifying the circumstances upon which the Crown relied and also the appellant's responses to these various circumstances (AB 169-173). The review of the elements of the Crown case contained no indication that the Crown was relying upon any alleged lie as probative of guilt. After identifying the various circumstances put forward by the Crown and the responses by the appellant, his Honour proceeded to give the following directions (and the instruction was given in the context of considering not only the case against the appellant but the case against the other accused, Dimitriyevich) (AB 173): "Members of the jury once again I have attempted to summarise what the case is for the Crown in respect of Mr Doncev and what is said in response by Mr Doncev. You have heard Mr Doncev give evidence in the witness box. Once again if I have not referred to all of the evidence, either for the Crown or for Mr Doncev or to all of the matters that have been put to you by the Crown or by Mr Baffsky in respect of the case against Mr Doncev, do not think it is because I have deliberately ignored it or that it is not of any significance. You should pay attention to all of the matters that you have heard and all of the matters that have been put to you. Bear in mind when you consider those circumstances relied upon by the Crown that you may, if you think fit, rely upon some but perhaps not all of those circumstances as supporting the Crown case but in the end in respect of…the accused it can only be if you think the only reasonable conclusion from those circumstances is as the Crown contends against…the accused, that you should find the accused guilty .

His Honour went on to give some directions concerning the case against Dimitriyevich before returning to the case against the appellant.

In respect of Mr Doncev it will only be if you are satisfied beyond reasonable doubt that the only reasonable inference to be drawn from the circumstances relied upon by the Crown is that he was in possession of the drugs in the car in a sense to which I've referred to as possession , that is that in the context of this case that he was knowingly taking apart that parcel so as to get the tablets, the ecstasy tablets out of the albums while he was in the car for that two or three minutes in Ocean Street that you would find him guilty. If you think there is another reasonable explanation for the circumstances, or in respect of the circumstances that the Crown replies [sic] upon, whether it is the explanation given by Mr Doncev or some other explanation, then you will find him not guilty ." (Emphasis added) 36 It does not appear to have been any part of the Crown case to rely upon any allegedly untruthful response by the appellant as affording proof of his guilt and I do not consider that the appellant has established that there was a need in this case for an Edwards direction as to lies. 37 Mr Thangaraj submitted that even if that be so, the trial judge should have given a direction such as was expressed in Zoneff v The Queen (2000) 200 CLR 234 at 245. 38 The present case is very different from Zoneff. In Zoneff the accused appeared unrepresented at his trial by jury on charges of false pretences and fraudulent conversion. He gave evidence denying the charges and the Crown Prosecutor cross examined him. The questioning attributed lies to the appellant. The Crown Prosecutor did not address the jury. In his summing up the judge gave a direction to the jury concerning the significance of lies, referring to the possibility that the telling of lies indicated a consciousness of guilt but reminding the jury, consistently with Edwards, that there were many reasons why people lie, some of which are not consistent with guilt. The prosecution had not presented the case as one in which the jury would be entitled to treat lies found as probative of guilt. The convictions of the appellant were quashed and a new trial was ordered because it was determined that the Edwards direction should not have been given. 39 In their joint judgment in Zoneff, Gleeson CJ, Gaudron, Gummow and Callinan JJ said at 245 (paras 20-21): "It follows in our opinion that it was unnecessary, indeed undesirable, that a direction of the kind with which Edwards was concerned be given in the circumstances of this case. In order to give it in this case the trial judge would have had to decide which of the appellant's answers were or were not capable of being regarded as lies indicative of a consciousness of guilt. Such a direction here could have had the effect of raising an issue or issues upon which the parties were not joined, and of highlighting issues of credibility so as to give them an undeserved prominence in the jury's mind to the prejudice of the appellant. Because the Crown did not put, either in cross-examination or in any submission at the trial that there was any material capable of being regarded as a lie stemming from a consciousness of guilt, the direction that the majority in the Court of Criminal Appeal quoted and which is set out above, should not have been given." 40 Their Honours went on to express the terms of the direction which Mr Thangaraj submitted, (in the alternative), should have been given in the present case but did so in the following context: "The trial judge was evidently concerned that, having regard to some of the cross-examination, there was a serious risk that the jury might engage in an impermissible process of reasoning in relation to the matter of lies. Unfortunately, his response was to give a direction which, as Olsson J observed, raised the topic and then left it largely up in the air. A direction which might have appropriately been given and which would have allayed any concerns which the trial judge may have had, in this unusual case, in which the issues may not have been defined as they might have been had the prosecutor made a speech to the jury, is one in these terms: 'You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.' 41 It is to be observed that, unlike Zoneff, the present case was one in which the Crown Prosecutor had addressed the jury and in which the issues were defined for the jury, as reflected in the summary of the Crown case in the summing up. 42 The court did not decide in Zoneff that the direction then suggested should be given in every case in which questioning of an accused by the Crown Prosecutor attacked his credit. Having expressed the direction, their Honours went on to say (at para 24): "A direction in such terms may well be adaptable to other cases in which there is a risk of a misunderstanding about the significance of possible lies even though the prosecution has not suggested that the accused told certain lies because he or she knew the truth would implicate him or her in the commission of the offence." 43 Returning to the present case, in declining to give any direction concerning lies, the trial judge said (AB 177): "HIS HONOUR: I am not going to give the direction on lies, Mr Baffsky. I think that just completely confuses the issue quite frankly." 44 In my opinion, his Honour's refusal did not involve error. I am not persuaded that there was, in the circumstances of this case, a risk of a misunderstanding about the significance of any answers here given in cross examination if the jury found such answers to be untruthful. The jury had been given instruction in the summing up, and in particular in the passage set out at para 35 above, which sufficiently alerted the jury as to how it should go about its task in this case. 45 This Court was referred to R v GJH [2001] NSWCCA 128, a case in which a new trial was ordered, inter alia, upon the ground that the judge had failed to give appropriate directions on the subject of lies. On appeal the Crown conceded that some of the matters focussed on by the Crown Prosecutor at the trial did address the issue of consciousness of guilt. The need for the jury to be assisted by the judge by appropriate instructions on lies was made apparent in the analysis by Wood CJ at CL of the final address of the Crown Prosecutor, where his Honour said (at para 64): "Few if any of the 'lies' identified related to a material aspect, being very much concerned with peripheral detail. The clear and strong thrust of what the Crown Prosecutor was putting, however, was that the appellant 'would sooner slide off a question than face up to it and answer it', because he had a 'guilty conscience', because he knew 'he had a lot to hide' and because he knew 'ultimately that the truth (would) reveal his guilt.' 46 The present case, to my mind, is clearly distinguishable from GJH. 47 Mr Thangaraj also referred to the decision of this court in R v Patterson [2001] NSWCCA 316. Having considered this decision, it does not seem to me that it assists the appellant. This was a case in which the appellant was charged with being knowingly concerned with the importation of prohibited imports in contravention of s 223B(1) of the Customs Act. The issue in the case was whether the appellant knew that what was being imported was a prohibited drug; the appellant's contention was he believed he was involved in a legitimate importation of equipment. The appellant gave detailed evidence of his involvement in the importation and the Crown response was that the whole account was a fabrication. The judge, in summing up, referred to many alleged lies the subject of submissions in the Crown Prosecutor's final address, but the judge gave no direction to the jury on lies and it was submitted on appeal that there should either have been a direction of the type discussed in Edwards concerning consciousness of guilt, or at the very least a more general direction as discussed in Zoneff. Those submissions were rejected and, in the course of his judgment, Hodgson JA, with whom the other members of the court agreed, said this: "In my opinion, in submitting that these aspects of the evidence were unbelievable and were lies, the Crown was not relying on the lies purely as going to the credit of the appellant, or as disclosing consciousness of guilt, but rather as part of what the Crown contended to be an unbelievable account of the appellant's involvement. A finding beyond reasonable doubt that the appellant was guilty necessarily required a finding that the history he gave was a deliberate fabrication; and on the other hand, a finding that the history was a deliberate fabrication meant, in my opinion, that there could not be a rational decision other than that he knew the importation was of cannabis. Because the other evidence in the case very strongly supported an inference of knowledge, the additional circumstance of a deliberately false account of his understanding and involvement in the transaction could not in my opinion, be given any rational explanation consistent with innocence. So, for those reasons, it seems to me that lies in his case were not relied on either as affecting credibility or as showing consciousness of guilt, but rather as matters going directly to the essential issue. In my opinion it was sufficient in this case that the judge made it abundantly clear that there was no onus on the accused to prove anything, and that the Crown had to prove every element in the case, including the appellant's knowledge, beyond reasonable doubt." 48 Patterson affords no support for the submission that the jury should here have been instructed concerning lies. 49 In my opinion, ground 3 has not been established. 50 In the result I consider that this appeal against conviction should be dismissed. 51 IRELAND AJ: I agree with Studdert J for the reasons given by his Honour. **********

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