UNGUREANU -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 174 (28 November 2025)

1. The appellant seeks orders that leave to appeal be granted, the appeal be allowed, the judgments of conviction be set aside and that there be an order for a retrial.
2. At the commencement of the hearing of the appeal, the court confirmed with senior counsel for the appellant that these orders were not intended to apply to the plea of guilty entered in respect of count 2.[2] There is no reason why that plea of guilty should not stand.
3. As well, it is difficult to see how these grounds have any bearing upon the conviction for count 7, regarding the appellant's failure to comply with a data access order. The appellant's senior counsel accepted this.[3]
4. Consequently, the ground of appeal concerning the alleged incompetence of the appellant's legal representatives should be understood as relating only to the convictions entered in respect of counts 4, 5 and 6. That is consistent with the way in which the appellant's written[4] and oral submissions are formulated.

1. The appellant's case originally contained two grounds of appeal. Ground 1 concerned the incompetence of the appellant's legal representatives, while ground 2 related to a direction by the trial judge about the use which could be made of lies told by the appellant, if the jury concluded that the appellant had been untruthful.
2. At the commencement of the hearing of the appeal, the appellant's senior counsel indicated that the appellant abandoned ground 2.[5]

A miscarriage of justice was occasioned by the incompetent conduct of the Appellant's Counsel at trial and the Appellant's solicitor in the preparation of the matter for trial.

1. At the hearing of the appeal, the appellant applied for leave to add particulars of this ground, which was granted. The particulars were in the following terms:

(i) The Appellant was advised that he should not give evidence as if he did, the Prosecutor would tell the jury about his previous convictions.

(ii) Counsel failed to advise the Appellant that if he did not give evidence, there would be no evidence of his explanation in relation to the ambiguous admission recorded in the telephone intercept.

(iii) As a result of the above, the Appellant was not able to make an informed decision regarding whether he should give evidence.

(iv) If the Appellant had been properly informed as to the above, he would have chosen to give evidence at the trial.

(v) The failure of Counsel to properly inform the Appellant of the above, deprived the Appellant of having critical evidence before the trier of fact. He may thereby have lost the chance of an acquittal.

(vi) No competent Defence Counsel would have advised the Appellant that he should not give evidence.

(vii) Counsel, having advised the instructing solicitor by emails dated 1 December 2023 and 9 January 2024 of the need to obtain a Proof of Evidence and instructions, failed to return their Briefs and proceeded to appear, notwithstanding the absence of instructions, on behalf of the Appellant on 15 January 2024 and at the arraignment on 16 January 2024.

1. Two points should be made about the additional particulars.
2. First, the appellant accepted at the appeal hearing that the provision of these particulars confined his case on ground 1.[6] This was significant, as the appellant's written submissions were filed before the provision of these particulars. To the extent that these written submissions travelled beyond the particulars, the court confirmed with the appellant's senior counsel that these submissions were abandoned. For example, the appellant alleged in the written submissions that the appellant's trial counsel acted incompetently by making remarks before the jury about adding three names to the list of witnesses to be called by the appellant, but then advising the appellant not to adduce any evidence.[7] That is not an allegation now reflected in the new particulars. The appellant's senior counsel on appeal agreed that it had been abandoned.
3. Secondly, in the course of submissions made during the appeal hearing,[8] senior counsel for the appellant sought to expand particular (iv) so that it would read as follows:

If the Appellant had been properly informed as to the above the consequences of failing to give evidence, he would have chosen to give evidence at the trial. (emphasis added)

1. The court did not make any formal order amending particular (iv), but the court was prepared to address the case on this alternative basis. Ultimately, it makes no difference.

1. Affidavits were tendered by the appellant and the State at the appeal hearing. The State tendered affidavits from the appellant's legal representatives at the trial. These were Mr Anthony Elliot, who acted as lead barrister, Mr Paul Holmes, who acted as second counsel, and Mr Victor Lo, who was the appellant's solicitor. The State also relied upon an affidavit of Senior Sergeant Micklewright, which the State was given leave to adduce, in circumstances where the appellant did not wish to cross‑examine Senior Sergeant Micklewright.[9]
2. There were aspects of the affidavit evidence which were contentious. Consequently, the court did not receive evidence of the contents of certain paragraphs in the affidavits as part of the affidavit material, but granted leave to each deponent to supplement the affidavit with oral evidence about the subject matter of these paragraphs. This occurred, and the deponents were cross‑examined on the affidavit material and their oral evidence.
3. The affidavit material contained a number of documents which provide a framework within which to consider the allegations now made by the appellant.

1. On 27 November 2023, Mr Elliott sent an email to Mr Lo in which he referred to a conversation earlier that day, when Mr Lo indicated that the appellant wished to retain Mr Elliott and Mr Holmes as counsel.[10] Mr Elliott attached a copy of his costs estimate for the trial, having previously provided his costs agreement by letter dated 14 November 2023.
2. Subsequently, on the same day, Mr Elliott sent Mr Lo a further email, which attached a general information sheet about giving instructions and developing a case theory.[11] This email also referred to a plea proposal which had been received from the State. The email concluded with this paragraph:[12]

While I am reviewing the prosecution brief looking for holes in their case, I wish to task Mr Holmes to look for evidence which positively supports any factual assertions that we rely upon as part of any defence.

Consequently, we need those broad instructions now. It is imperative for you to prepare a detailed proof of evidence over the next two weeks.

Please confirm that the client has a copy of the prosecution brief and the disclosure. (original emphasis)

1. By email dated 28 November 2023, Mr Lo retained Mr Holmes to assist Mr Elliott in the conduct of the defence case.[13]
2. By email dated 1 December 2023,[14] Mr Elliott sent an email to Mr Lo, which was copied to Mr Holmes, which explained that he would review the evidence 'looking for holes or weaknesses', while Mr Holmes would look specifically for evidence which supports any positive assertions which the defence might seek to establish. Mr Elliott specifically stated that it was necessary for Mr Lo to obtain instructions about positive defences.
3. In particular, this email contained the following section:[15]

At this stage, we don't know whether there is a positive defence to be run.

A positive defence might be to the effect that the drugs belonged to a particularly named person (Mr Ungureanu would still have to explain how they came to be where they were) or that monies were received for a legitimate purpose (and the purpose would have to be identified, as would the donor of the money) or suchlike.

I recognise that Mr Ungureanu might wish to sit down and take his barristers through each page of the prosecution brief. That is not how it works. If Mr Ungureanu has any pieces of evidentiary gold to offer, he can tell them to you and Mr Holmes and I will review them in the light of our independent review of the brief. It is not efficient for two or three of us to be sitting listening to Mr Ungureanu tell his story.

Mr Holmes and I can digest his instructions much faster when they are written down for us to review. It also means that we have a permanent record of those instructions that we can use in court. This also makes it easier for us to reflect on the significance of any instructions which we are given.

...

I urge you to start taking instructions in the manner I have outlined as soon as possible. (original emphasis)

1. By email dated 3 December 2023,[16] from Mr Holmes to Mr Lo (and copied to Mr Elliott), Mr Holmes asked Mr Lo to provide him with all electronic disclosure, including material relating to telephone intercepts. He also concluded his email with the following words:[17]

I join Mr Elliot in the position as to requiring on an expedited basis, a signed proof from the client as to what if any, positive defences he is to/or may rely on.

1. There is a two page document signed by the appellant headed 'Instructions to Counsel', which has a typewritten date of 'November, 2023' at its foot.[18] It is unclear when this was signed. In oral evidence, Mr Elliott said that it was provided in late November or early December, and must have been signed between then and early January.[19]
2. This document sets out instructions from the appellant to Mr Lo and Mr Elliott. It sets out the following matters:[20]

1. This is an important decision to be made in the context of my trial;
2. Every accused has the right to silence, and that is a right which I enjoy in these proceedings;
3. I do not have to give evidence;
4. I have a right to give evidence if I wish to, and I have a right to call evidence;
5. The decision to give evidence, or not to give evidence, is one entirely for me;
6. The decision whether or not to give evidence is a complex one;
7. A court will normally direct itself to the effect that an accused person has a right to silence, and that no adverse inference can be drawn against the accused for choosing not to give evidence;
8. When dealing with the circumstantial evidence, a court will direct itself that it should not draw an inference which is adverse to an accused unless it is the only inference which is reasonably open from the circumstances;
9. They expect the trial judge to direct the jury in those terms in this case;
10. Generally speaking there is no onus on an accused to prove anything; and
11. The only reasons why I should give evidence are to prove something in respect of which I carry the onus of proof, or to give rebuttal testimony where the prosecution has led evidence which is sufficient to prove its case against me.
12. This document then refers to the appellant's legal representatives having explained to him that the jury will be directed that the prosecution carries the burden of proof and that it is not incumbent upon him to prove anything.
13. The document contains the following paragraph:[21]

My lawyers have emphasised that one of the key considerations in the decision whether or not to give evidence is whether I am able to give positive evidence which either supports an aspect of my defence or which negates a piece of evidence upon which the prosecution rely. They have also informed me that poor performance in the witness box can dramatically influence a jury against me in the trial. Further, I have been informed that should I happen to give evidence which demonstrates that some prior statement attributed to me which is in evidence is a lie, or should I say something in giving evidence which is demonstrably untrue, then the prosecution may seek to use either of those things against me as an 'Edwards lie'. My lawyers have told me that such lies can be utilised by the jury as demonstrating a consciousness of guilt and have also informed me that this type of evidence is particularly damaging to an accused. (original emphasis)

1. The document continues and refers to the instructions contained within it not being final instructions. It sets out that the appellant's lawyers are yet to make any recommendations whether he should or should not testify in his own defence. However, in the part of the document which contains instructions, a circle has been drawn around the instructions expressed as follows:[22]

I DO NOT wish to give evidence in my own defence.

1. There is then a caveat which records that the appellant understands that his instructions may be reviewed by him as the conclusion of the prosecution case draws closer.
2. There was somewhat of a hiatus over the Christmas period, but on Tuesday 9 January 2024 Mr Elliott sent an email to Mr Lo and Mr Holmes[23] and specifically asked Mr Lo whether he had received any commentary on the prosecution brief, and whether he had a proof of evidence, or even a rough draft of a proof of evidence from the appellant.
3. There was a further email, about 30 minutes later, from Mr Holmes to Mr Lo, which was copied to Mr Elliott. This email stated:[24]

Would you please advise that you have the proof from the client and that he has considered the prosecution brief.

It is imperative that we have the proof by close of business tomorrow to ensure that our focus is on any issues that may be raised, alternative inferences that could be drawn and to bring to the attention of myself and [Mr Elliott], matters known only to the client.

It may be that a large portion of the evidence is considered by defence, that proof will assist [Mr Elliott] as to what (if any) formal admissions may be made.

This is a circumstantial case, an inferences direction will need to be given. Whilst I can't speak for [Mr Elliott], he may choose to (and most likely will) direct the jury's attention to alternative inferences, that a jury must follow if they are reasonably open. A proof may assist in that position.

Would you please confirm that this can be achieved. (original emphasis)

1. Mr Lo replied later that day.[25] He explained that the appellant needed more time to provide the information which he had been requested to do before the Christmas break. He was due to see the appellant the following morning and would obtain the proof from the client.
2. Over the course of preparing for trial, Mr Holmes developed a number of matrices expressing the case theory. He sent an amended case theory to Mr Elliott and Mr Lo by email dated Sunday, 14 January 2024.[26]
3. Significantly, the case theory which Mr Holmes developed was that the appellant should plead guilty to counts 1 and 2, which concerned dealing with money which was the proceeds of an offence, unless evidence supporting those charges could be excluded. A case could then be advanced by the appellant in respect of counts 4, 5 and 6 that the appellant knew of cash at the property, but not drugs. This would potentially explain the statements in the telephone intercept evidence that 'they bust me' and that the appellant was in 'big trouble'.
4. Mr Elliott responded to the email from Mr Holmes on 14 January 2024 on the same day, stating:[27]

I have spoken to Victor briefly about this. I agree that it is something to think about.

We need to assess our chances of knocking out the seizures, and search interviews.

But this approach does have the benefit which you have outlined.

Victor says that Mr Ungureanu doesn't want to give evidence ‑ he is worried about the prosecutor.

Victor is unsure where Yumi is. Perhaps the police are too! (emphasis added)

1. There is a further six page document entitled 'Advice, Recommendation, and Instructions to Counsel' dated 16 January 2024.[28] This was the first day of trial. From its contents, it is plain that this document was authored by Mr Elliott. For example, the author says that 'Mr Holmes and I have given very careful thought to this strategy'. Mr Elliott verified this in oral evidence.[29]
2. The document sets out the charges, the prosecution witnesses to be called, and a summary of the relevant facts and evidence. It then has a section which refers to various incriminating admissions made by the appellant. There is then a discussion of the evidence and prospects of success.
3. In relation to counts 4, 5 and 6, the document states:[30]

As I have already intimated, there are a number of statements in phone calls and admissions in Mr Ungureanu['s] police interview that need to be addressed. Mr Ungureanu does not wish to give evidence. There is a strong argument that it is imperative that Mr Ungureanu do so.

The reason why that is imperative is that Mr Ungureanu has clearly indicated some connection with the criminal activity. The ultimate question is: 'what is that connection?'.

The connection might only be delivering money for someone else. If Mr Ungureanu was aware of the buried drugs, why would he go to the address on 21 August? By the same token, why would Mr Ungureanu talk about people finding things unless he knew something was buried.

Without the defence team giving the jury a reason to think that Mr Ungureanu's involvement was limited, it is likely that they will conclude that his involvement was absolute. In my opinion, the only way that Mr Ungureanu can persuade the jury is by saying something to them. That could be done in a direct manner, by testifying, or it could be done by pleading guilty to counts 1 and 2, leaving the way open for Mr Holmes and I to present an argument that those guilty pleas help to explain what Mr Ungureanu's interest in the premises was, and why he was talking about something being hidden (namely the money on count 3). The argument will be that he knew that money would be hidden, even though he didn't know how much money, or where it was hidden. (emphasis added)

1. At the end of the document, there is a section entitled 'Recommendation' and another section entitled 'Instructions'. Although the advice in the document relates to all of the counts, the immediate recommendation and instructions concern counts 1 and 2. They concern whether to argue for the exclusion of evidence in respect of counts 1 and 2, and whether to plead guilty to either of those counts if the relevant evidence is not excluded.
2. Lastly, there is a further document entitled 'Instructions to Counsel'.[31] This document is dated 22 January 2024. This is at a point when the appellant had to elect finally whether to go into evidence or not.
3. The document is signed by the appellant, and sets out the advice which has been provided to him. At the end of the document there is a section entitled 'Timing of these Instructions'. This section contains the following discussion:[32]

These instructions are being given after the close of the prosecution case and after Mr Elliott has made a no case submission in respect of count 8 in the indictment.

I have heard the entirety of the prosecution case. I have also heard the evidence given on the voire dire and the entirety of the legal arguments.

I have given my lawyers instructions at the beginning of the trial to the effect that I would plead guilty to the money laundering charge occurring on 9 July, 2021. I entered a guilty plea at the beginning of the trial.

I have previously indicated that I do not wish to give evidence in my own defence nor do I wish to call evidence in my own defence. I recognise that it is necessary for my lawyers to explain the admissions which I made to the police and things that I said in the telephone calls which were intercepted by police. That issue has been the subject of discussion in the advice given by my lawyers at the beginning of the trial which led to me deciding to plead guilty to count 2.

My lawyers have advised me that they do not believe that I will be a convincing witness. More to the point, they believe that in light of my history of saying things which are adverse to my own interests, I will be a harmful witness in the case.

My lawyers have again asked me to tell them whether I wish to give evidence or not.

They have reminded me of all the matters set out in the two previous documents where I gave instructions about how the trial was to be conducted.

1. This section in the document is followed by a recommendation from the appellant's lawyers that 'notwithstanding the many issues which I need to answer, I should choose not to give evidence'.[33]
2. A circle has been drawn around that part of the instructions which states:[34]

I DO NOT wish to give evidence in my own defence.

1. The document is then signed by the appellant, and apparently dated by him as well.

1. The appellant's counsel at trial conducted a defence consistent with the case theory developed by Mr Holmes. The prosecution evidence in relation to count 1 was excluded, but not in relation to count 2. As a result, the appellant pleaded guilty to count 2.
2. In respect of counts 4, 5 and 6, the defence then endeavoured to explain away the telephone intercept evidence. For example, in his closing address to the jury, Mr Elliott made the following comments (among others) about the telephone intercept evidence:[35]

The evidence about everything is mine, only works if you assume that Mr Ungureanu is guilty. It only works if you assume that he knew about the drugs. Only if you assume those things, you can say, 'Drugs were there, he must have been talking about those drugs'. That's not, can I say respectfully to you all, how your job works.

If you start from the premise that the drugs were there, so he must have known about them. Then you aren't doing your job in the way you have sworn or affirmed to do so ...

What you do know about him is that he was involved in the $170,000 going to the post office. Why wasn't the very thing that he was talking about ‑ the money, or some other money ‑ how do we know that, that afternoon or the day before there wasn't 50, 60, 70 or $80,000 in a drawer or a wardrobe.

The footage from the covert exercise, exhibit 31, shows that there was cash left in a drawer. We don't know how much cash it was. It didn't look like it was very much, but there was cash in a drawer. And in that same drawer were the tick lists. The police didn't bother to see by surveillance devices inside, who was in there or what they were doing.

How do we know that he wasn't talking about 50, 60, or 70, or 80, or $20,000 that he had seen there in the days before? As I've said, the simple fact is, the police never asked him what he was talking about on the telephone when he said, 'Everything is mine'. They just assumed, because that meant they had less work to do. ...

1. As explained, at the hearing of the appeal, the court heard oral evidence from the appellant, Mr Elliott, Mr Holmes and Mr Lo. It also received affidavit evidence from each of them.
2. Prior to the oral testimony of the witnesses, senior counsel for the appellant was asked to identify the factual propositions which he set out to establish. In effect, these corresponded to the particulars which had been added to ground 1.
3. The factual matters upon which senior counsel for the appellant based his case were as follows:

(a) first, whether the appellant was advised by his legal representatives that he should not give evidence because, if he did so, the prosecution would tell the jury about his previous convictions. This is the subject of particular (i) to ground 1. The appellant says that he was given this information, but his legal representatives say that this is not correct;

(b) secondly, trial counsel failed to advise the appellant that if he did not give evidence, there would be no evidence of his explanation in relation to the ambiguous admission recorded in the telephone intercept. This is particular (ii) to ground 1;

(c) thirdly, whether the appellant was not able to make an informed decision about whether he should give evidence at trial, as a result of the two factual controversies referred to in particulars (i) and (ii). This is the gravamen of particular (iii) to ground 1; and

(d) fourthly, whether, if the appellant had been properly informed about the matters in particulars (i) and (ii) to ground 1, he would have chosen to give evidence at the trial, and that he was deprived of the opportunity of placing critical evidence before the jury. This controversy arises in particulars (iv) and (v) of ground 1. The critical evidence which the appellant says he would have placed before the jury is that the contraband material, which he referred to generically as 'it' in the telephone intercept recordings, was a combination of about 150 cartons of unlawfully imported cigarettes and 2,000 to 3,000 small packets of Viagra jelly, rather than cocaine and heroin.

1. The remaining issues raised by particulars (vi) and (vii) do not involve questions of fact. Rather, they depend upon the legal duties of counsel. The issues raised by these particulars were:

(a) whether no competent counsel acting for the appellant would have advised that he should not give evidence;[36] and

(b) whether trial counsel should have returned their briefs, and should not have proceeded to appear on behalf of the appellant on 15 January 2024, and at the trial commencing on 16 January 2024.[37]

1. After the court had received the evidence of the witnesses on the appeal, senior counsel for the appellant was asked to identify which factual issues remained in contention. Senior counsel accepted that the appellant had not succeeded on any factual issue.[38] That concession was properly made and should be accepted for the reasons that follow.
2. On the first issue, the appellant's senior counsel accepted that the appellant was not advised by his legal representatives that he should not give evidence for the reason that, if he did so, the prosecution would tell the jury about his previous convictions. Mr Elliott gave evidence in chief that he did not provide such advice.[39] The appellant's version of what occurred was not put to Mr Elliott, Mr Holmes or Mr Lo in cross‑examination by the appellant's senior counsel. We have no hesitation in accepting Mr Elliott's evidence that the appellant was not advised in the terms contended for by particular (i) of ground 1.
3. On the second issue, the appellant's senior counsel accepted that trial counsel advised the appellant that, if he did not give evidence, there would be no evidence of his explanation in relation to the ambiguous admission recorded in the telephone intercept. That is obviously a correct concession having regard to the terms of the document set out previously,[40] which was entitled 'Advice, Recommendation and Instructions to Counsel'.
4. The third issue had to be conceded by the appellant, given the concessions made in respect of the first and second issues. That is because the third issue was based upon the first and second issues.
5. The fourth issue concerned whether the appellant had informed his legal representatives prior to trial that the implied admissions in the telephone intercept evidence related to packets of Viagra jelly and contraband cigarettes. The appellant's senior counsel accepted that the court could not find that the appellant had told his legal representatives of this version of events.[41] However, senior counsel stopped short of accepting that this meant that the version of events which the appellant now advanced, about the Viagra jelly and the cigarettes, was recent invention.[42]
6. We do not need to conclude whether the new version is a matter of recent invention. It is sufficient to say that, apart from the testimony of the appellant given at the appeal hearing, there was absolutely no evidence that this version was ever suggested to the appellant's legal representatives prior to trial. The contemporaneous documentary record demonstrates that the question of explaining the telephone intercept evidence was a critical issue in the mind of the appellant's legal representatives during preparation for trial. We are unable to accept that, in the context of carefully considering this issue, the appellant's legal representatives would have ignored a contemporaneous suggestion by the appellant that he was speaking of Viagra jelly and contraband cigarettes in considering how to explain the telephone intercept evidence, had this suggestion been made by the appellant prior to trial. We also observe that the unchallenged evidence of Senior Sergeant Micklewright at the hearing of the appeal was that no Viagra jelly or contraband cigarettes were located at the property when it was searched on 21 August 2021. We infer that no Viagra jelly or contraband cigarettes, in the significant quantities suggested by the appellant, were at the property on that date.
7. The appellant's senior counsel therefore correctly conceded the fourth factual issue.

1. Particular (vi) of ground 1 is that no competent counsel for the appellant would have advised the appellant that he should not give evidence.
2. At the hearing of the appeal, the appellant's senior counsel accepted that this particular could not be sustained. We consider that this concession was correctly made.
3. It is plain that the question of how to deal with the telephone intercept evidence was well appreciated by the appellant's trial counsel. The appellant's legal representatives for the trial devised a strategy about how to address that evidence, in the context of being told by the appellant that he would be a 'terrible witness'. The admissions in the telephone intercept evidence were ambiguous.
4. In these circumstances, we do not think that it could not be said that the appellant should have been advised that he ought to testify. A cardinal principle in an adversarial system of justice is that a witness should not be called by a party if that witness is likely to do more harm than good to a case. There was a real prospect that this would occur in the present case.
5. Further, having seen the appellant testify, we are of the view that the appellant's trial counsel were fully justified in their concern that the appellant's testimony would do more harm to the case than good. We had significant difficulty in accepting much of what the appellant said in his oral evidence. Two examples suffice.
6. First, we could not accept the appellant's evidence that he had told his trial counsel and solicitor of the Viagra jelly and contraband cigarettes prior to trial. If he had done so, we would have expected this to be reflected in the contemporaneous documentary record. The existence of this alternative explanation to answer the telephone intercept evidence was a critical contention which the appellant advanced on the appeal. Our view that the appellant's testimony on this matter should be rejected fundamentally affects his credibility.
7. As well, the appellant testified before us that he had not been to the property on Leach Highway between Easter (in April 2021) and August 2021, and that he had only gone to the property before Easter to use the services of a prostitute, as the property was run as a brothel. Yet under cross‑examination by the respondent's counsel, the appellant accepted that he had keys for the property in his pocket when he was arrested going there on 21 August 2021.[43] It is inexplicable that he should have keys to the property readily available, when he claimed only to have gone there some time previously to use the services of a prostitute, as payment for some painting work which he had carried out at the property. The ability to access the property was an important aspect of the prosecution case to establish control of the drugs and cash buried at the property.
8. For these reasons, the appellant's senior counsel was correct to concede particular (vi).

1. Particular (vii) alleges that there was a miscarriage of justice occasioned by incompetent conduct because the appellant's trial counsel failed to return their briefs and proceeded to appear on behalf of the appellant on 15 January 2024 and at the arraignment on 16 January 2024. This is said to be in the context of trial counsel having advised the instructing solicitor that they required a proof of evidence and instructions, but no proof of evidence had been taken and instructions had not been obtained.
2. In our view, this particular cannot be made out.
3. It is not necessarily a miscarriage of justice for counsel to appear without a proof of evidence having been obtained. In Lange v The State of Western Australia,[44] the court said:

Whether adequate preparation for a trial requires that defence counsel have a signed proof of evidence will depend entirely upon the circumstances of the case. In many cases, of course, good practice will require counsel to have a proof of evidence in order to facilitate defence counsel's formulation of an appropriate strategy to be followed at the trial and guide defence counsel's approach to the cross‑examination of the State's witnesses and, if the accused gives evidence, facilitate the orderly unfolding of his or her evidence‑in‑chief. (citations omitted)

1. In the present case, we do not consider that there was any miscarriage of justice occasioned by defence counsel not having a proof of evidence. Quite obviously, defence counsel had sought a proof of evidence. The appellant had failed to provide one, but had made it clear that he did not wish to lead a positive explanation of the events in the case. That is what underpinned development of the strategy which defence counsel adopted in endeavouring to address the telephone intercept evidence.
2. Moreover, we do not consider that this is a case where no instructions had been obtained. The written record demonstrates that the appellant approved the strategy recommended by defence counsel, namely to put the prosecution to proof and to provide an alternative explanation for the telephone intercept evidence based upon a plea of guilty in relation to count 2.
3. It would be a different matter if no instructions at all had been forthcoming from the appellant. However, it is evident that his legal representatives met with him on each day of the trial, and sought his instructions. The appellant signed the documents which we have referred to previously. The appellant was clearly aware of what was happening in the trial, while he was present and watching.
4. There was some suggestion by the appellant's senior counsel at the appeal hearing that if there was prosecution evidence of an admission or admissions made by an accused, and the accused, having been requested, refused to provide a positive set of instructions about how to address the admission or admissions as part of the defence case, trial counsel would be obliged to return their brief. In our view, an accused may, in this situation, provide instructions simply to test the prosecution case and put the prosecution to proof. The provision of such instructions poses no legal or ethical difficulty for defence counsel. The point of difficulty is only reached if an accused provides instructions which are positively inconsistent with what they have admitted to their legal representatives, or if the accused refuses to provide any instructions at all.
5. For these reasons, the one remaining particular which was not conceded by the appellant's senior counsel, is not sustainable.

1. For all of the reasons which we have set out above, none of the particulars of ground 1 have been made out. The ground fails. We consider leave to appeal should be refused and that the appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Transcript of Telephone Intercept, Ion Ungureanu, 21 August 2021. See also Transcript, District Court of Western Australia, 24 January 2024, 618. (Trial ts)

[4] Combined WAB, BAB and GAB 17 (Appellant's Case, Appellant's Submissions [24]) (AS).

[10] YAB 82 (Elliott's affidavit, 20 June 2025, 16). Appeal Exhibit 5.

[11] YAB 84 ‑ 85 (Elliott's affidavit, 20 June 2025, 18 ‑ 19).

[12] YAB 84 ‑ 85 (Elliott's affidavit, 20 June 2025, 18 ‑ 19).

[13] YAB 27 (Holmes' affidavit, 22 May 2025, 6). Appeal Exhibit 4.

[14] YAB 28 ‑ 29 (Holmes' affidavit, 22 May 2025, 7 ‑ 8).

[15] YAB 28 ‑ 29 (Holmes' affidavit, 22 May 2025, 7 ‑ 8).

[16] YAB 31 (Holmes' affidavit, 22 May 2025, 10).

[17] YAB 31 (Holmes' affidavit, 22 May 2025, 10).

[18] YAB 122 ‑ 123 (Elliott's affidavit, 20 June 2025, 56 - 57).

[20] YAB 122 (Elliott's affidavit, 20 June 2025, 56).

[21] YAB 122 ‑ 123 (Elliott's affidavit, 20 June 2025, 56 - 57).

[22] YAB 123 (Elliott's affidavit, 20 June 2025, 57).

[23] YAB 102 (Elliott's affidavit, 20 June 2025, 36).

[24] YAB 103 ‑ 104 (Elliott's affidavit, 20 June 2025, 37 ‑ 38).

[25] YAB 103 (Elliott's affidavit, 20 June 2025, 37).

[26] YAB 37 ‑ 38 (Holmes' affidavit, 22 May 2025, 16 ‑ 17).

[27] YAB 114 (Elliott's affidavit, 20 June 2025, 48).

[28] YAB 124 ‑ 129 (Elliott's affidavit, 20 June 2025, 58 ‑ 63).

[30] YAB 128 (Elliott's affidavit, 20 June 2025, 62).

[31] YAB 130 ‑ 133 (Elliott's affidavit, 20 June 2025, 64 ‑ 67).

[32] YAB 132 ‑ 133 (Elliott's affidavit, 20 June 2025, 66 ‑ 67).

[33] YAB 133 (Elliott's affidavit, 20 June 2025, 67).

[34] YAB 133 (Elliott's affidavit, 20 June 2025, 67).

[44] Lange v The State of Western Australia [2021] WASCA 165 [115] (Quinlan CJ, Mazza & Beech JJA).