Doncev v The State of Western Australia - [2012] WASCA 178

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: DONCEV -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 178

CORAM: McLURE P
BUSS JA
MAZZA JA

HEARD: 1 MAY 2012

DELIVERED : 11 SEPTEMBER 2012

FILE NO/S: CACR 211 of 2011

BETWEEN: KOSTA DONCEV
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :SCOTT DCJ
File No  :IND 683 of 2008

Catchwords:

Criminal law - Application for leave to appeal against conviction - Conspiracy to possess ecstasy with intent to sell or supply - Attempt to possess ecstasy with intent to sell or supply - Whether trial judge failed to direct jury about difference between assisting others to possess and agreement to jointly possess - Whether trial judge failed to direct jury on DNA evidence

Legislation:

Criminal Appeals Act 2004 (WA), s 27(2), s 27(3)
Misuse of Drugs Act 1981 (WA)

Result:

Appeal dismissed

Category: D

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: No appearance

Solicitors:

Appellant: Andrew Maughan & Associates
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166
Mahmood v The State of Western Australia [2009] WASCA 220
Marinovic, Romeo & Ricciardello v The Queen (1990) 46 A Crim R 282
Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193
Oakley v The State of Western Australia [2005] WASCA 65
Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573

McLURE P: I agree with Mazza JA.
BUSS JA: I agree with Mazza JA.
MAZZA JA: This is an application for leave to appeal against conviction.
The appellant was charged on indictment in the District Court with two offences as follows:
(1)Between 10 April 2007 and 8 December 2007 at Safety Bay and other places Kosta Doncev conspired together with Dusko Gligorovski and Igor Gligorovski to possess a prohibited drug, namely [ecstasy], with intent to sell or supply it to another.
(2)On 8 December 2007 at Safety Bay Kosta Doncev attempted to possess a prohibited drug, namely [ecstasy], with intent to sell or supply it to another.
On 29 July 2011, after a trial before Scott DCJ and a jury, the appellant was convicted as charged. Subsequently, he was sentenced to 13 years' imprisonment on each charge to be served concurrently.

Background

The appellant and Dusko Gligorovski (Dusko) grew up together in Macedonia and are related. Igor Gligorovski (Igor) is Dusko's son. At the relevant time, the appellant was living in Sydney and Dusko and Igor were living in Perth. The State case was that the appellant had the dominant role in the alleged offences.
The State's case was that Dusko rented residential premises situated in Charthouse Road, Safety Bay, for two six‑month periods commencing on 16 April 2007 until 17 April 2008: exhibit 8. These premises were not occupied, but were kept, according to the State, as a safe house to store drugs.
On 27 November 2007, a plumber employed by the owner of the premises commenced work at the rear of the property. After removing some concrete slabs, he discovered, buried in the ground, a drum which contained four vacuum‑sealed bags of cream‑coloured powder. The plumber and the owner alerted the police: ts 746 ‑ 748.
At 12.15 pm, police officers executed a search warrant issued under the Misuse of Drugs Act 1981 (WA). The four bags were removed from

the drum. A subsequent analysis showed that the bag contained, in total, 19.708 kg of ecstasy with a purity of between 71% and 79%.

The drugs were substituted with a harmless substance and the concrete slabs and soil which had been disturbed were replaced. The police installed surveillance cameras at the premises and arranged for Dusko's mobile telephone service, with the number 0418 958 810 (810), to be intercepted: ts 752.
On 8 December 2007, at the behest of the police, the landlord's property manager telephoned Dusko and informed him that on the following Monday, 10 December 2007, plumbing works would be carried out at the rear of the premises which involved earthmoving. The State's case was that this news caused Dusko to telephone the appellant.
The State relied, in particular, on three telephone conversations said to have been between Dusko and the appellant on 8 December 2007, all of which were in Macedonian. The person said to be the appellant used two mobile telephones with the numbers 0420 980 550 (550) and 0423 364 342 (342). The appellant admitted at trial that these were his mobile telephones: exhibit 39. Each conversation was later translated by Mr Rufov, an accredited translator. Transcripts of these conversations were produced and were ultimately tendered in evidence: exhibit 37.
The first of these conversations occurred at 2.47 pm, the relevant parts of which are as follows:
The appellant: No 550
Dusko: No 810

...
The appellant: What is it?
Dusko: Go outside. Go outside.
The appellant: I'm outside. What is it?
Dusko: Listen. Now they are going to ......[not very clear]........I was here......when you come through the gate, from the side, for the [not very clear, something about the driveway or the driver]........they dug out everything, they put in another pipe. At the back.....behind that, behind our thing they removed bricks.......
The appellant: Yes.
Dusko: About a metre, a metre and a half from where that thing of ours is they've dug out.......from the toilet, it seems, where the crap pipes are coming from the toilet, it seems they are going to make a connection from there, from behind......they'll be drilling, it looks to me they're going to be drilling with water under the driveway concrete so they can reach on the other side......
The appellant: And so what.....
Dusko: .......huh?
The appellant: Remove them. What can you do about it?
Dusko: Where can I take them, man?
The appellant: To a cousin, that's where. To a cousin.
...
Dusko [Transcribed in error at trial as the appellant]: A day before, they called me one day before I was to go to Bali, that slut called me, fuck her mother, and she says to let you know they're going to be doing something outside, just to let you know that. And I'm thinking it's going to be outside, in front of the house, but they are digging inside. Fuck their mothers.
Dusko: ...[not very clear, it sounds something like the name Roger being mentioned]....
The appellant: And you? When are you going to come George?
The appellant: I'll come quickly. C'mon you.......
Dusko: Hey, listen.....
The appellant: Huh?
Dusko: Come tonight or tomorrow morning, while it's still a Sunday.........
The appellant: Yeh, c'mon, and? What? What for?
Dusko: Come. Maybe there won't be a need to take it out.
The appellant: What do you need me for whether we do take it out or not since we don't have the thing over there as yet...............and what am I going to do............
...
The appellant: Remove it if you think so, but there is no need to remove it on its own. Why remove it on its own from there.
Dusko: Look here if they make a connection between....[not clear very clear]........in front of the rear door. And then............
The appellant: Go and take it out then, if you think so. If it's going to be safe that way.
Dusko: No. Maybe they are just going to knock it down. Now I don't really know. I'm just guessing. I don't know what they are going to do. I wanted the entire Monday to be here. To be the whole day here, to see what they are going to do. This is what I'm going to do. I'll go early Monday morning, since the work............
The appellant: Sleep over there. Sleep there.
Dusko: OK, we'll see.
The appellant: Sleep over there. Much better. (emphasis added)

During the second call, which commenced at 3.10 pm, the following exchange took place:
The appellant: No 550
Dusko: No 810

The appellant: Huh?
Dusko: Just the agency called me and Drazo called me as well,.......
...
Dusko: They were looking for me! Luckily I came,....[not very clear]..........they were after me even at work. Anyway, I will have to remove that, they'll pull out everything in the back, they'll be uprooting everything...so, don't......[not very clear]........I'll take it out. OK?
The appellant: You better go and move that. Go, go quickly.......
Dusko: OK.
The appellant: ....And we'll see after. C'mon.
Dusko: C'mon, bye. (emphasis added)

A third conversation occurred at 6.52 pm:
Dusko: No 810
The appellant: No 342
The appellant: Why didn't you tell immediately?
Dusko: When immediately?
The appellant: When you saw. Before you went.
Dusko: To do what?
The appellant: To call me. To say so and so.
Dusko: I didn't see it. I saw it now. Before I went……
The appellant: If I didn't see it you telling me they called you!?
Dusko: Well, the[y] called me one day before they went saying they were to do, to do something in front of the house …
The appellant: Well, how come they say in front of the house and yet they do it in the back if [sic] the house?
Dusko: Hey, come over tonight.
The appellant: C'mon you dick, go! Go there, now!
Dusko: Huh?
The appellant: Go over there.
Dusko: When? Now?
The appellant: And let me know. C'mon.
Dusko: Well, yes, yes, now I will go. I was waiting to get darker because the door is open......[not very clear]……..
The appellant: How dare they enter without your permission!?
Dusko: Hey, they told. They told me they'll do something. I said OK no problem. Now they called that they will remove the paving bricks in the back. In one spot they have already been removed and don't think those things. Come tonight. Come tonight. Come tomorrow. The last time you will…… [not very clear]……
The appellant: .....[not very clear]... .Why should I come again!? [sic] So I could return immediately? You are talking stupidities.
Dusko: Why do need to go back?
…
The appellant: Fucking!
Dusko: You clear up your head from such things.
The appellant: You stupid! Why didn't you let me know such is the case immediately. They'll come... [not very clear]…..
Dusko: …… [not very clear]…… look at you? Immediately?
The appellant: No, no. Since they told you they'll do something!
Dusko: I thought they'll do it in front of the house. And they not a house, they started on the side of the house, like …. [not very clear]….. from the toilets, from the toilet, it seems the pipe comes out. Now, the pipe goes to the back and from the back has to go to the side and now... [not very clear]….
The appellant: You allowed him that without your presence?
Dusko: Huh?
The appellant: Fuck his mother's cunt! How dare they enter?
Dusko: Well, George. I told him OK, no problem. I thought they'll do it in the front and I left. I left the next day.
The appellant: Did you tell him that you're leaving?
Dusko: No. Why should I tell him that I'm leaving?
The appellant: Well then how come 'I left'?
Dusko: I told him no, work then, saying whatever work you have to do. And now they were looking for me, and Drazo as well. Today they called me twice. After I got home that woman called again, from......from that agency. Their mothers' cunt. And I told her there's no problem. I said after that I'll go. But, I'll go tonight and snatch it from there.
The appellant: Fuck the mother in the cunt.
Dusko: Anyway. I'll get the thing. Roger, Roger is coming here at seven. Tomorrow night he is coming back But. I'll take.…..[not very clear].....here. OK? So, you would know.
The appellant: Go. Go and let me know.
Dusko: OK. I'll let you know tonight.
The appellant: C'mon.
Dusko: And I'll finish the business. (emphasis added)
At 8 pm on 8 December 2007, Dusko and Igor went to the premises and a video camera installed by the police recorded them digging up the drum. The drum was placed in a vehicle and, at 10 pm, both men were arrested.
In the early hours of 9 December 2007, the police discovered in the roof of the house two sets of scales and a yellow‑handled shovel. Police also discovered a pair of gardening gloves in the house: ts 852. A subsequent DNA analysis revealed a partial DNA profile matching the appellant in the right‑hand glove: ts 1537.
On 17 December 2007, the appellant was arrested just before he departed Sydney airport, in an attempt to fly to Hungary. He possessed a return ticket and $10,000 in cash. Two mobile telephones and a SIM card were seized from the appellant. The two mobile telephones were the ones allegedly used by the appellant in the intercepted telephone conversations: (550) and (342). The mobile telephones and the SIM card were subsequently analysed for DNA by Mr Ross Hedley. On each of these objects he found a DNA profile which matched the appellant: ts 939.
The appellant, Dusko and Igor were all charged with conspiracy and with an attempt to possess ecstasy with intent to sell or supply it to another. Their joint trial was set down to commence on 21 April 2009. On 21 January 2009, Mr Hedley produced a report which revealed the appellant's DNA on the right‑hand gardening glove found at the premises: ts 959. The appellant did not appear at the trial which proceeded with respect to Dusko and Igor. Dusko was convicted, but Igor was acquitted: ts 708. A bench warrant was issued for the appellant's arrest.
The appellant admitted through his counsel that in 1995, he committed an offence in respect of receiving a package of 1,900 ecstasy tablets weighing 509.7 g: exhibit 39.
The State's case against the appellant in respect of each charge was circumstantial and relied strongly upon the telephone intercepts that I have referred to, supported by the evidence of the appellant's DNA profile on the gardening glove and the appellant's post‑offence conduct.
The State led evidence from a Macedonian interpreter, Mr Cvetkoski, who listened to all of the intercepted telephone conversations and identified the voice using Dusko's mobile telephone as being the same and the voice using the appellant's two mobile telephones as the same.
The State's case was that the jury should infer from the telephone intercepts that an agreement had been reached between the appellant and at least Dusko to possess the ecstasy which was buried at the premises. Further, the appellant was a party to the attempted possession of the drug by telling Dusko to remove it from the premises and take it elsewhere. The State's case was that the appellant and Dusko were engaged in a joint enterprise to possess the drug with an intention to sell or supply it to another.
The appellant did not give evidence, but he adduced expert evidence from a consultant molecular geneticist, Dr Brian McDonald, in respect of the DNA evidence. He suggested that there was a possibility that the appellant's DNA may have come into contact with the items examined by Mr Hedley as a result of contamination. Igor also gave evidence for the defence. He denied speaking to his father or the appellant about the ecstasy. He said he had not seen the appellant in Western Australia during the period of the alleged conspiracy.
The defence case was that:
(a)the appellant was not a party to any conspiracy, nor did he have any knowledge of the ecstasy found at the premises. It has said that the police investigation was infected by what trial counsel described as 'tunnel vision' and that the true culprits were Dusko and a 'Serbian drug distribution network known as Zvezdera': ts 734;
(b)with respect to the telephone intercepts, the person to whom Dusko spoke was not the appellant. Insofar as the evidence of the voice said to be the appellant was concerned, the evidence of the interpreter, Mr Cvetkoski, could not be relied upon, due to his inexperience as an interpreter and his lack of knowledge of the appellant's voice;
(c)in any event, the three telephone conversations of 8 December could not be construed as a direction by the appellant to Dusko to remove the drugs;
(d)with respect to the DNA analysis of the gardening glove, based on the evidence of Dr McDonald, there was a possibility that the appellant's DNA profile was as a result of contamination. With respect to the mobile phones and SIM card, the DNA found on those items could also be as a result of contamination from a TAB betting slip belonging to the appellant which had been seized from his home and which had been put in the same exhibit bag by the police as the mobile phones and SIM card; and
(e)the ticket to Budapest was not a one‑way ticket and therefore this showed that he was not trying to flee the country.

The proposed grounds of appeal

The appellant's case contained three proposed grounds of appeal. Ground 2 was abandoned at the hearing: appeal ts 11. The grounds that the appellant pursued are:
Ground 1
The trial Judge erred when he failed to direct the jury there was a contrast between a willingness on the part of the Appellant to assist others to possess the MDMA with an intention to sell or supply and an agreement to jointly possess MDMA with intent to sell or supply.
…
Ground 3
There was a miscarriage of justice when the learned trial Judge failed to effectively direct the jury concerning the evidence regarding mobile telephones and a gardening glove ('the DNA evidence');
Particulars:
3.1His Honour failed to effectively address the issues that arose regarding the handling and/or possible contamination by the prosecuting agencies of the DNA evidence;
3.2His Honour failed to adequately explain the 'prosecutor's fallacy' regarding the mathematical probabilities linking the DNA evidence to the Appellant.
Leave to appeal is required in relation to each of these grounds of appeal. Leave to appeal cannot be granted unless the ground has a reasonable prospect of succeeding. If neither ground reaches this threshold, the appeal is taken to be dismissed: s 27(2) and (3) of the Criminal Appeals Act 2004 (WA).
Ground 3 does not clearly articulate the error said to have been committed by the learned trial judge. In his oral submissions, Mr Watters, on behalf of the appellant, submitted that his Honour erred by failing to instruct the jury that, if it was not satisfied beyond reasonable doubt that the appellant's DNA found on the gardening glove and one of the telephones was not as a result of contamination, that would be fatal to the prosecution case: appeal ts 12.
The appellant's trial counsel did not seek the directions which the appellant now says the learned trial judge should have given. Although this is not fatal to the appellant's proposed grounds of appeal, it is a reason to pause before embracing a conclusion that his Honour's failures occasioned a miscarriage of justice: Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 [73] (Kirby J); Mahmood v The State of Western Australia [2009] WASCA 220 [65] (Owen JA).

Ground 1

Mr Watters, on behalf of the appellant, submitted that if the jury concluded that the appellant was a party to the intercepted telephone conversations, they were susceptible to an interpretation that the ecstasy was jointly possessed by Dusko and Igor only and that the appellant was doing no more than advising them what to do with the drug as a consequence of the plumbing works. This interpretation, Mr Watters asserted, was inconsistent with the appellant being guilty of conspiracy, relying upon the cases of Marinovic, Romeo & Ricciardello v The Queen (1990) 46 A Crim R 282, 313 ‑ 315 (Malcolm CJ & Kennedy J); Oakley v The State of Western Australia [2005] WASCA 65 [5] (Roberts‑Smith JA), [19] ‑ [20] (McLure JA, Malcolm CJ agreeing).
Mr Watter's interpretation of the intercepted telephone conversations was not relied upon by the appellant's trial counsel. This is hardly surprising having regard to their content.
Igor is not referred to in any of the conversations.
In the first conversation, the word 'thing' is undoubtedly a reference to the ecstasy hidden in the buried drum. The expressions 'our thing' and 'that thing of ours' in the context of a conversation involving the appellant and Dusko can only reasonably mean that it was their drug. It is not credible to suggest, as Mr Watters did, that these expressions referred to the drug being possessed by Dusko and Igor. It is clear from this conversation and the third conversation, that Dusko was urging the appellant to come to Western Australia to deal with the situation. This is highly suggestive of the appellant having an interest in the drugs beyond merely giving advice in respect of them. Furthermore, the reactions of the appellant in the intercepted telephone conversations are only reasonably consistent with someone who has a possessory interest in the drugs. For example, in the third conversation, the appellant admonished Dusko for not letting him know immediately of the plumbing works. Earlier in that conversation the appellant urged Dusko to go to the premises 'now' to remove the drug and then let him know what happened. The level of concern exhibited by the appellant throughout the intercepted telephone conversations is palpable and is inconsistent with the appellant not having a possessory interest in the ecstasy.

If the appellant was a party to the conversations, they plainly incriminated him in respect of both offences. Thus, at trial, the defence case in relation to them, was that he was not a party to them.
A trial judge must be astute to secure a fair trial according to law for the accused. This requires a trial judge, where the evidence reasonably justifies it, to alert a jury to a defence regardless of the way the accused has conducted his or her case: Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107, 117 ‑ 118 (Barwick CJ); Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 [83] (McHugh J). However, a trial judge is not required to look for fanciful interpretations of the evidence which may advantage the accused and then direct the jury accordingly.
The real issue for the jury to decide in relation to the telephone conversations, was whether the appellant was a party to them. If he was, the implications of their content were clear. There was no need for his Honour to give the direction now contended for by Mr Watters. Accordingly, the appellant has suffered no miscarriage of justice by his Honour's omission to give such a direction.
Ground 1 has no reasonable prospect of succeeding.

Ground 3

The proposition put by Mr Watters in oral argument with respect to ground 3 cannot be accepted.
Implicit in Mr Watters' argument is that the DNA evidence, as it related to the glove and the two mobile telephones, was an indispensible link in the chain of circumstantial reasoning leading to the appellant's guilt. This is because a direction of the kind now urged by him would only be necessary in such circumstances: Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573.
The DNA evidence the subject of this ground was adduced to show that:
(a)in the case of the glove, the appellant had, at some point, been present at the premises; and
(b)in the case of the mobile telephones, that they were the appellant's.
In relation to the glove, this was not an indispensible link to the appellant's guilt. The appellant could still have been found guilty, on the basis of what he said in the course of the intercepted telephone conversations to which I have already referred.
In any event, Dr McDonald's evidence as to the possible contamination of the gardening glove was pure speculation. He testified that, from his knowledge, there had been instances where, as a result of procedures adopted by the fingerprint bureau of the Western Australian Police, items which had been examined by officers at that bureau, had become inadvertently contaminated with the suspect's DNA.
There was no evidence that the gardening glove had been examined for fingerprints. Indeed, the evidence was to the contrary. Mr Hedley testified that the bag which contained the gardening gloves had been given to PathWest by the police officer connected with the investigation of the offences and there was nothing to indicate that it had been opened for the purposes of a fingerprint examination.
As to whether the two mobile telephones were the appellant's, the stark fact is that he admitted that they were his. The matter was not in issue, the admission being sufficient proof of the fact. Therefore, the existence of the appellant's DNA on the telephones and how it might have got there were, in truth, red herrings. In light of the appellant's admission, there was no necessity for his Honour to give the direction which the appellant now contends should have been given. In any event, I am not satisfied that the ownership of the mobile telephones was an indispensible link to the appellant's guilt, again having regard to what was said in the intercepted telephone conversations.
For these reasons, ground 3 has no reasonable prospect of succeeding.

Conclusion

Neither ground 1 nor ground 3 have any reasonable prospects of success. Leave to appeal must therefore be refused and the appeal dismissed.

Orders

1.Leave to appeal is refused.
2.The appeal is dismissed.