Halmi v R

[2008] NSWCCA 259

New South Wales
Court of Criminal Appeal

CITATION:	Halmi v R [2008] NSWCCA 259
HEARING DATE(S):	29 April 2008
JUDGMENT DATE:	11 November 2008
JUDGMENT OF:	Campbell JA at 1; Grove J at 2; Johnson J at 3
DECISION:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - appeal against conviction - supply large commercial quantity of heroin - Appellant drove co-offender to area where supply to occur - Crown case that both engaged in joint criminal enterprise to supply heroin - heroin supplied to third party - fingerprints of Appellant and co-offender found on plastic wrapping enclosing heroin - circumstantial case - whether verdict unreasonable and not supported by the evidence - whether error in directions to jury - verdict was reasonable and supported by evidence - no error in directions to jury - appeal dismissed
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1986 (NSW) Criminal Appeal Act 1912
CATEGORY:	Principal judgment
CASES CITED:	R v Halmi (2005) 62 NSWLR 263 R v Kaldor (2004) 150 A Crim R 271 R v Chahine [2006] NSWCCA 179 M v Queen (1994) 181 CLR 487 MFA v The Queen [2002] 213 CLR 606 R v Cable (1947) 47 SR 183 The Queen v Hillier [2007] 228 CLR 618 Shepherd v The Queen (1990) 170 CLR 573 Papakosmas v The Queen (1999) 196 CLR 297 R v Wilson (2005) 62 NSWLR 346
PARTIES:	Nicolae Halmi (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/2793
COUNSEL:	Mr DG Dalton SC (Appellant) Ms NJ Adams (Respondent)
SOLICITORS:	Andrew Solicitors (Appellant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/11/0743
LOWER COURT JUDICIAL OFFICER:	His Honour Judge BHK Donovan QC
LOWER COURT DATE OF DECISION:	9 February 2007

2007/2793

CAMPBELL JA
GROVE J
JOHNSON J

11 November 2008

Nicolae Halmi v Regina

Judgment

1 CAMPBELL JA: I agree with Johnson J.

2 GROVE J: I agree with Johnson J.

3 JOHNSON J: The Appellant, Nicolae Halmi, appeals against his conviction for supplying a large commercial quantity of heroin contrary to s.25(2) Drug Misuse and Trafficking Act 1986 (NSW).

4 The Appellant stood trial in the Sydney District Court before his Honour Judge Donovan QC and a jury between 14 and 31 January 2007. On the last mentioned day, the jury returned a verdict of guilty.

5 On 9 February 2007, his Honour Judge Donovan QC sentenced the Appellant to a term of imprisonment comprising a non-parole period of two years and six months to commence on that day and to expire on 8 August 2009 with a balance of term of 12 months to expire on 8 August 2010. In passing this sentence, his Honour took into account periods which the Appellant had spent in custody between 2000 and 2007 before and after his conviction for the offence at an earlier trial. That conviction was quashed by this Court on a ground which is not relevant to the present appeal: R v Halmi (2005) 62 NSWLR 263.

6 The grounds of appeal relate only to conviction. No appeal is brought in relation to sentence.

The Offence Charged

7 The Appellant stood trial upon an indictment alleging that, on 8 May 2000, at Bass Hill in the State of New South Wales, he did supply a prohibited drug, namely heroin, in an amount that was not less than the large commercial quantity for that drug.

8 The Crown alleged that, on 8 May 2000 at Bass Hill, the Appellant and a co-offender, Mile Stojkov, supplied five blocks of heroin weighing 1.789 kilograms to Skalidi Ilievski and Robert Stransky.

Grounds of Appeal

9 The Appellant relies upon two grounds of appeal:

(a) the jury’s verdict is unreasonable and/or cannot be supported having regard to the evidence pursuant to s.6(1) Criminal Appeal Act 1912 ;

(b) his Honour erred in failing to direct the jury that, before they could convict, they would have to find proved beyond reasonable doubt as an indispensable intermediate fact that the heroin had been driven to Bass Hill in the motor vehicle occupied by the Appellant and Mile Stojkov.

Uncontroversial Facts

10 The following summarises those parts of the evidence at the trial of the Appellant which were not in dispute.

11 Some time before 8 May 2000, a person named “Joe” informed police that he had arranged to receive heroin from two persons known to him as “Stevo” and “Roberto”, at the Rydges Hotel at Bass Hill some time during the afternoon and evening of 8 May 2000. “Stevo” and “Roberto” were Ilievski and Stransky.

12 On 8 May 2000, a police surveillance operation was set up in and around the Rydges Hotel at Bass Hill. The operation involved officers from various State and federal law enforcement agencies.

13 The focus of the police operation was the Rydges Hotel. “Joe” and an undercover police officer named “Nick” occupied Room 508 of the Rydges Hotel. Police officers occupied Rooms 507 and 510 nearby. Video and listening surveillance devices had been placed inside Room 508 by police, who could see and hear what was occurring inside that room throughout the afternoon and evening.

14 At 3.28 pm, Ilievski and Stransky arrived at Sydney Airport having travelled from Melbourne earlier in the day. The pair got into a taxi in the vicinity of the Domestic Terminal at Mascot and made their way to Bass Hill.

15 At approximately 4.00 pm, Ilievski and Stransky arrived at Bass Hill and checked into Room 42 at the Gardenia Motor Inn which was located east of the Rydges Hotel on the Hume Highway.

16 At 4.27 pm, Ilievski placed a phone call to Stojkov. Ilievski then made a second telephone call to “Joe” who was waiting in Room 508 at the Rydges Hotel. Ilievski and “Joe” arranged to meet at a McDonalds restaurant located immediately adjacent to the Rydges Hotel. The car park of the McDonalds restaurant was connected to the car park of the Rydges Hotel by a walkway.

17 Ilievski and Stransky met “Joe” at McDonalds and accompanied him back to Room 508. Once inside, “Joe” and the undercover police officer “Nick” showed Ilievski and Stransky $280,000.00 in cash. The four men remained in Room 508 for some time.

18 At 5.47 pm, Ilievski received a phone call from Stojkov, which indicated that Stojkov had arrived in the Bass Hill area. The listening device inside Room 508 recorded the following exchange (Exhibit J):

“Ilievski (answering phone): Yeah…yeah…ah…are you close…yeah alright…ah go down there at Mcdonalds…at forty two…yeah…

Ilievski (to Robert [Stransky] ): Go, go inside, take it…

Joe: Take it and bring it here.”

19 Stransky immediately left Room 508 and made his way east across the McDonalds car park to Room 42 at the Gardenia Motor Inn.

20 Back inside Room 508 at the Rydges Hotel, Ilievski attempted a number of times to contact Stojkov on the telephone without success. At 5.54 pm, Ilievski successfully contacted Stojkov. Ilievski said to Stojkov (Exhibit J):

“Ilievski (on the phone): Yeah, yeah, you are here, yeah, you come here [sic] me, hello! Yeah, you can hear me, yeah, you are already there…, just go upstairs, in forty two, my mate, my mate, this is my mate that came with me. Yeah, and you give, pass to him and five minutes wait there…alright. Give to him, he come out and you wait there five minutes. Yeah…yeah…(not clear) Alright I come down. Alright I’m coming down.
Ilievski (to Joe): He wants to see me. ”

21 Ilievski immediately left Room 508 and made his way along the Hume Highway towards a Shell Service Station. He crossed to the other side of the highway where, at 6.03 pm, he met Stojkov. It was, by this time, dark.

22 At 6.06 pm, while still on the side of the highway with Stojkov, Ilievski received a phone call from Stransky. The following exchange was recorded (Exhibit K):

“M1 [Ilievski] : Hello

M2 [Stransky] : Tell me.

M1: Yeah, alright, wait there.

M2: To wait, uh.

M1: Or come here.

M2: What now, to wait or come?

M1: Wait. Wait.

M2: Is he going to come?

M1: Yeah, wait there, okay? Bye.”

23 At 6.07 pm, Ilievski and Stojkov separated on the side of the highway. Ilievski began making his way back to the Rydges Hotel.

24 Stojkov walked along the highway in a westerly direction to the car park of the Bass Hill Plaza, where he met the Appellant, who was driving a white Holden Commodore sedan. As will be seen, there was no issue at the trial that the Appellant had earlier driven Stojkov to the Bass Hill area in the late afternoon. Stojkov and the Appellant drove from the Bass Hill Plaza to the McDonalds restaurant adjacent to the Rydges Hotel. They arrived at the McDonalds car park at 6.17 pm.

25 The pair got out of the car. Stojkov made his way to the walkway connecting the McDonalds car park and the Rydges Hotel car park. The Appellant went inside McDonalds and purchased some food.

26 While this was happening, Stransky had made his way back to the Rydges Hotel from the Gardenia Motor Inn. He had departed the Gardenia Motor Inn at 6.12 pm and was captured on closed-circuit television (“CCTV”) a few minutes later re-entering the Rydges Hotel. Police had been watching Stransky since he departed the Rydges Hotel at 5.47 pm He was not observed at any time carrying anything. Approximately two minutes later, at 6.19 pm, Ilievski was captured by CCTV re-entering the Rydges Hotel. He had in his possession a black shopping bag.

27 Once back inside Room 508, Ilievski showed “Joe” the heroin, which was inside the black shopping bag. Ilievski was recorded as commenting (Exhibit J):

“I come from shopping. He goes no bring down the money. I said, … up and down fucking…”

28 At this point, armed police officers intervened arresting Ilievski, Stransky, “Joe” and “Nick” inside Room 508 and Stojkov near the walkway connecting the McDonalds car park and the Rydges Hotel car park.

29 Moments later, the Appellant emerged from McDonalds with a bag of food and observed the arrest of Stojkov taking place. The Appellant moved in the opposite direction from where Stojkov was being arrested. He was arrested moments later by police.

30 Forensic analysis was undertaken on the five blocks of heroin. Fingerprints of the Appellant were found on two pieces of the plastic used to wrap the heroin (Exhibit G). One of the Appellant’s fingerprints was found on the outer plastic wrapping of one of the blocks of heroin. Three further fingerprints of the Appellant were found on the inner plastic wrapping of another of the blocks of heroin. Stojkov’s fingerprints were also found on the plastic wrappings.

The Crown Case

31 It was the Crown case that the Appellant and Stojkov were engaged in a joint criminal enterprise to supply heroin and that they had travelled to Bass Hill on 8 May 2000 for that purpose.

32 The Crown case against the Appellant was circumstantial. Despite extensive police surveillance of the geographic area in and around the Rydges Hotel, no witness at the trial of the Appellant gave evidence of actually observing the heroin in the black shopping bag being given to Ilievski or Stransky by either Stojkov or the Appellant.

33 The Crown contended that Ilievski and Stransky had been waiting for a third party to arrive at Bass Hill with the heroin. This was supported by the fact that after Ilievski and Stransky first inspected the money in Room 508, they then waited in the room with “Joe” and “Nick” for about an hour. During this time, the following exchange was recorded (Exhibit J):

“Joe (to Ilievski): Can you ring those people, you know, so we don’t have to wait.

Ilievski: (not clear)

Joe: Oh, when they are near, they will call, OK.”

34 It was only after Ilievski received the telephone call from Stojkov at 5.47 pm, alerting Ilievski to the fact that he had arrived in Bass Hill, that the exchange of the money and heroin proceeded to finality.

35 Apart from Stransky and “Joe”, Ilievski did not attempt to contact any person other than Stojkov on 8 May 2000. Telephone records tendered at the trial of the Appellant showed that between 3 May and 7 May 2000, Ilievski had been in contact with Stojkov on six occasions (Exhibit M; T293). On 8 May 2000, Ilievski was in contact with Stojkov on 13 occasions (Exhibit M). The Crown invited the jury to conclude that the reason for the volume of communication between Ilievski and Stojkov in this period was indicative of Stojkov being directly involved in the proposed heroin supply.

36 There was direct evidence that the Appellant had driven Stojkov to Bass Hill and that he later drove Stojkov from the Bass Hill Plaza car park to the McDonalds car park. There was evidence that the Appellant had not used his own car (a red Ford Fairlane with mag wheels) for this purpose, but rather, had used his brother-in-law’s white Holden Commodore. The Crown contended that a less prominent vehicle was used by the Appellant, being one which was less likely to draw police attention.

37 When confronted with the arrest of Stojkov as the Appellant exited McDonalds, it was the Crown case that the Appellant had attempted to flee the scene, and that this was evidence of the Appellant's consciousness of guilt. The Crown pointed to the fact that the arresting police were wearing clothing with the word “Police” displayed clearly on them.

38 The Crown asserted that the presence of the Appellant’s fingerprints on outer and inner plastic wrappings around the heroin indicated that the Appellant had been involved in the preparation and packaging of the heroin for supply.

39 The Crown contended that it was an irresistible inference that Stojkov delivered the heroin to Ilievski. The Crown said that the heroin had arrived at Bass Hill via a third party, and that the jury were entitled to infer that that third party was Stojkov, with the assistance of the Appellant. The Crown Prosecutor submitted in his closing address (T608):

“Everything they [Ilievski and Stransky] do is indicative of there being a third party. You might ask yourself this, if Ilievski, being in a position but for one fact, the supply of drugs, he could supply, grab that bag with 280 thousand dollars and leave. Why is the person he is preoccupied with that day Stojkov? I suggest to you the only reason he is preoccupied with speaking to Stojkov, meeting with Stojkov is because Stojkov is the source of the drugs. The other point about that I would ask you to give some thought to is if you accept that the accused and Stojkov travelled from Kingsford to Bass Hill and if you accept that Stojkov had to have been the source of the drugs that Ilievski takes into the hotel it must also follow, you might think, that those drugs must have been in the vehicle at some point. They must have been in the vehicle at a time when the accused and Stojkov were in the vehicle.”

The Appellant’s Case

40 The Appellant gave evidence at trial and proffered innocent explanations for a number of the matters relied on by the Crown.

41 In evidence, the Appellant said that Stojkov had left his car at the Appellant’s home on the evening of 7 May 2000 because he had been drinking, and made his way back to his home by way of public transport. It was arranged that the Appellant would collect Stojkov from his home in Kingsford on 8 May 2000 and drive him back to where his car was located so that he may pick it up.

42 At around lunchtime on 8 May 2000, the Appellant and Stojkov departed from Stojkov’s home in Kingsford. The Appellant said that once they were inside the car, Stojkov raised the possibility of stopping for a short period of time at Bass Hill so that he may see a friend. He directed the Appellant to drive to the Hume Highway at Bass Hill.

43 In evidence, the Appellant said that Stojkov had a number of telephone conversations in a Yugoslavian language whilst in the car with him. The evidence established that these conversations were between Stojkov and Ilievski (Exhibit M). The Appellant asserted that he was not able to understand the conversations between Stojkov and Ilievski spoken in Yugoslavian, as he only spoke English and Romanian (T423-424).

44 The Appellant said that when he and Stojkov arrived at Bass Hill, they parked in the Bass Hill Plaza car park. Stojkov told the Appellant that he would be gone for a while and that he would see him in a short time (T454). The Appellant said that he went into the Bass Hill Plaza and bought some bread rolls (T455). A short time later, Stojkov returned and asked the Appellant to drive to the McDonalds restaurant adjacent to the Rydges Hotel to see his friend again.

45 When the two men arrived at McDonalds, the Appellant went inside to buy food. It was the Appellant’s evidence that he did not see where Stojkov went. As he emerged from McDonalds, the Appellant said he heard and saw cars arrive and people with guns jump out screaming. The Appellant said that he moved in the other direction when he saw Stojkov being set upon by these people, because he did not know that they were police and he was frightened.

46 The Appellant ran a fruit and vegetable shop in Concord, and had known Stojkov for four or five years. During cross-examination, the Appellant agreed that Stojkov was a friend (T496). Stojkov had worked in the Appellant’s fruit and vegetable shop in the past, although not on a regular basis.

47 The Appellant said that he was driving his brother-in-law’s white Holden Commodore because his own vehicle was having heating problems and he had left it with a mechanic friend to examine. In cross-examination, the Appellant said that his Ford Fairlane was parked at the back of his shop and he was waiting for the mechanic to pick it up (T471-472).

48 The Appellant could not explain how his fingerprints came to be on the plastic wrapping around the heroin. He denied that his fingerprints were on the wrapping because he had assisted Stojkov to wrap the heroin (T526). The Appellant said that the freezer-type plastic bags used to wrap the heroin were similar to those used in his fruit and vegetable shop, but he did not know whether the plastic had come from his shop (T526).

49 The Appellant denied that he knowingly participated in the transport of heroin to the Bass Hill area on the day in question. He said that he had no knowledge of any drug deal, or of any delivery of drugs to Ilievski.

50 Trial counsel for the Appellant emphasised the fact that, from the time Stojkov met Ilievski on the side of the Hume Highway at 6.03 pm to the point at which police arrested Stojkov and the Appellant in the McDonalds car park, the two men had been under police surveillance. It was the Appellant’s case that no transfer of the drugs could have occurred in this period.

51 It was the Appellant’s case that although Stojkov may have been involved in the heroin supply, the transfer may have involved another party who delivered the heroin to Ilievski at some point between the time when Ilievski left Room 508 and the time that he was captured on CCTV re-entering the Rydges Hotel carrying the black shopping bag. It was put on behalf of the Appellant that the other party might have been the “Chinese”. The Appellant relied on a reference to “Chinese” during discussions between Ilievski, Stransky, “Joe” and “Nick” in Room 508 (Exhibit J):

“Joe: What are these people, one of us or different.

Ilievski: Chinese and there will be one of my people.

Joe: Chinese, that’s alright.”

Determination of Appeal

52 I turn to consider the grounds of appeal. The Appellant submitted that Ground 2 (a retrial point) would only be reached by the Court if Ground 1 (an acquittal point) was rejected.

Ground 1 – The Jury’s Verdict is Unreasonable and/or Cannot be Supported Having Regard to the Evidence

Appellant’s Submissions

53 Mr Dalton SC, for the Appellant (who did not appear at the trial), submitted that the evidence presented by the Crown against the Appellant was “equivocal” as to his guilt. He submitted that it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the Appellant. He submitted that the jury’s verdict of guilty was contrary to the evidence and that the Appellant should be acquitted.

54 Mr Dalton SC developed a number of arguments in support of Ground 1 in written and oral submissions.

55 It was submitted that a critical part of the Crown case against the Appellant was the fingerprint evidence recovered from the plastic wrappings encasing the heroin blocks (Exhibit E). The plastic was said to be of a similar type to that used in the Appellant’s fruit and vegetable shop. Stojkov, as an occasional employee of the Appellant’s shop, would conceivably have had access to the plastic without the Appellant’s knowledge. The Appellant's fingerprints may have been left on the plastic in the course of his work at the shop.

56 It was submitted that the fingerprints of the Appellant recovered from two pieces of plastic used in wrapping the heroin indicated that the Appellant might only have touched the plastic wrappings twice. The three fingerprints recovered from the inner plastic wrapping of one of the blocks of heroin were overlayed in such a fashion as to be consistent with a single touch of the plastic by the Appellant’s left hand. The other fingerprint recovered from the outer wrapping of another block of heroin indicated a second touch. No fingerprints were recovered from the adhesive tape used to secure the plastic around the heroin.

57 It was submitted that the presence of the Appellant’s fingerprints on only two pieces of the plastic wrapping, and the nature of those fingerprints, was consistent with innocent touches of the plastic by the Appellant in the course of his work at his fruit and vegetable shop.

58 On one piece of plastic, a fingerprint of Stojkov was recovered in close proximity to that of the Appellant. It was submitted that this assisted the proposition that the Appellant may have innocently touched the plastic wrapping prior to it being used to wrap the heroin, as it was unlikely that the two men would have double handled the plastic in the course of wrapping the heroin if they were engaged in that exercise together.

59 It was submitted that the fact that no fingerprints were recovered from the adhesive tape used to secure the plastic around the heroin, was consistent with the proposition that someone wearing gloves had wrapped the heroin.

60 Mr Dalton SC submitted that another critical component of the Crown case was that Stojkov had supplied the heroin to Ilievski at Bass Hill, and that it had therefore made its way to Bass Hill in the white Holden Commodore driven by the Appellant. Mr Dalton SC sought to develop a submission in oral argument that such a transfer was not possible, given the extent of police surveillance of Stojkov and the Appellant from the time Stojkov met Ilievski on the side of the Hume Highway to the moment the pair were arrested in the McDonalds car park.

61 A further matter was cited in support of this submission, which related to the Crown hypothesis that Stojkov may have transferred the heroin to Ilievski through the walkway connecting the car parks of McDonalds and the Rydges Hotel moments after arriving in the McDonalds car park with the Appellant.

62 Observations made by police officers throughout the afternoon, as part of the surveillance operation, were called in over a communication frequency. The times of their observations were recorded by reference to a central timepiece. However, the CCTV recording of the Rydges Hotel foyer was not consistent with the police’s central timepiece - it was between two and four minutes in front. It was submitted that this discrepancy in time was crucial.

63 It was the evidence of police officers involved in the surveillance operation that the Appellant and Stojkov arrived in the McDonalds car park at 6.17 pm. According to the time displayed on the CCTV recording, Ilievski re-entered the Rydges Hotel at 6.19 pm. It was submitted that, allowing for a minimum discrepancy of two minutes between the time kept by the police’s central timepiece and the CCTV footage inside the Rydges Hotel, no transfer could have taken place in the period between the Appellant and Stojkov arriving in the McDonalds car park and Ilievski re-entering the Rydges Hotel carrying the black shopping bag. This was so, it was submitted, because the two events would have occurred simultaneously.

64 In support of this submission, Mr Dalton SC pointed to the fact that the Appellant and Stojkov were under surveillance for the whole of the period after Stojkov met with Ilievski on the side of the Hume Highway. However, Ilievski was not observed outside the Rydges Hotel from the time when he left Stojkov on the side of the Hume Highway until he re-entered the Rydges Hotel at 6.19 pm, as captured by CCTV.

65 Mr Dalton SC pointed to other pieces of evidence, namely, the evidence of the Appellant’s flight in the McDonalds car park in the moments after the arrest of Stojkov, his presence at the scene and his association with Stojkov on the day in question. It was submitted that each of these pieces of evidence was capable of rational explanation consistent with the Appellant’s innocence.

66 It was also submitted that there was evidence suggesting that the “Chinese” may have been involved in the transfer of the heroin, and that this was significant in raising doubt as to the Appellant’s guilt.

67 It was submitted that the equivocal nature of the evidence against the Appellant, coupled with the fact that there was no evidence available which proved that the Appellant had been a party to the transfer of the heroin to Ilievski, meant that there was insufficient evidence to support the verdict of the jury. Mr Dalton SC submitted that the jury’s verdict was contrary to the evidence and that the Appellant should accordingly be acquitted.

Crown Submissions

68 The Crown submitted that it had never been the Crown case that the Appellant had handed over the heroin to Ilievski. Rather, the Crown case was based on the notion that the Appellant was a party to a joint criminal enterprise with Stojkov.

69 The Crown case that Stojkov supplied the heroin to Ilievski was a circumstantial one. The circumstances relied on by the Crown to satisfy the jury beyond reasonable doubt that it was Stojkov who supplied the heroin to Ilievski included:

(a) that Ilievski and Stransky were waiting at Bass Hill for another party to arrive with the heroin;

(b) that Ilievski was in contact with Stojkov by telephone a number of times on 8 May 2000, and the only other people Ilievski contacted were Stransky and “Joe” ;

(c) that after Stojkov and the Appellant arrived in Bass Hill, Stojkov contacted Ilievski and an arrangement was made in relation to Room 42 at the Gardenia Motor Inn - Stransky then left Room 508 of the Rydges Hotel and made his way to the Gardenia Motor Inn, however, minutes later a further arrangement was made for Ilievski to meet Stojkov;

(d) that Ilievski and Stojkov met on the Hume Highway shortly before Ilievski was seen re-entering the Rydges Hotel with the heroin in the black shopping bag; and

(e) that forensic examination of the heroin found Stojkov’s fingerprints on the plastic used to wrap the heroin.

70 The Crown submitted that it was clearly open to the jury to be satisfied beyond reasonable doubt that it was Stojkov who delivered the heroin to Ilievski. It was submitted that it was then clearly open to the jury to be satisfied beyond reasonable doubt that the Appellant was a party to a joint criminal enterprise with Stojkov to supply the heroin. The Crown relied on the following circumstances in this regard:

(a) that the Appellant’s fingerprints were found on the plastic used to wrap the heroin;

(b) that the Appellant drove Stojkov to Bass Hill and was in the vicinity of the McDonalds car park;

(c) that the Appellant was in the vicinity of the sale of the heroin inside Room 508 of the Rydges Hotel; and

(d) that when police arrived, the Appellant attempted to flee the scene, thereby demonstrating consciousness of guilt.

71 In his final address to the jury, the Crown Prosecutor pointed to a series of matters in support of the conclusion that the Appellant was a party to a joint criminal enterprise to supply heroin (T610):

“The Crown case is further that it is not a coincidence that on 8 May the accused finds himself at Bass Hill nearby a place where two men, Ilievski and Stransky, are waiting for a heroin delivery and it is not a coincidence that the … heroin delivered happens to be heroin that is wrapped in plastic that contains the accused’s fingerprints. Is it at all likely that Stojkov would have wanted the accused to be present, assuming the accused has nothing to do with what Stojkov is up to, but is it all likely that Stojkov would have wanted the accused present in circumstances where he is engaged in the supply of heroin? Is it likely that Stojkov would have so badly organised himself that on the day he is to supply the heroin he happens to leave his car up at Mt Pritchard and he chooses to, it appears on the evidence, rather than arrange to travel that extra short time from Bass Hill to Mt Pritchard to get his car, that is the thing that he chooses not to do.”

72 In reply to the Appellant’s submission that the “Chinese” may have been involved together with Stojkov in the supply and not the Appellant, the Crown submitted that there was no evidence of any contact between Ilievski and anyone other than Stojkov, Stransky and “Joe” in the relevant period. It was further submitted that the hypothesis that the “Chinese” were involved was not consistent with the available fingerprint evidence, together with the fact that Stojkov and the Appellant were in the vicinity of Bass Hill at the relevant time. There was no evidence of the presence of any other party said to be involved in the transfer.

73 The Crown submitted that it was apparent that the “Chinese” hypothesis, for want of a better phrase, did not cause the jury to have a reasonable doubt as to the guilt of the Appellant.

74 Upon the whole of the evidence, the Crown submitted that it was clearly open to the jury to be satisfied beyond reasonable doubt that the Appellant was party to a joint criminal enterprise to supply heroin.

Decision

75 The Crown case was reliant upon circumstantial evidence to establish:

(a) that Stojkov supplied the heroin to Ilievski;

(b) that the Appellant was a knowing participant in a joint criminal enterprise with Stojkov to supply heroin.

76 It has been observed that a jury brings to its consideration of a circumstantial case the common experience of members of the community comprising men and women of different backgrounds, of different ages and with different experiences in life, who apply to the case their collective knowledge of human affairs and their common sense: R v Kaldor (2004) 150 A Crim R 271 per Dunford J at 272-273 [2] and Howie J at 293-294 [86]; R v Chahine [2006] NSWCCA 179 at [88].

77 Where it is contended that a verdict of a jury is unreasonable or cannot be supported having regard to the evidence for the purpose of s.6(1) Criminal Appeal Act 1912, the question which this Court must ask itself is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the Appellant in this case was guilty: M v Queen (1994) 181 CLR 487 at 493; MFA v The Queen [2002] 213 CLR 606 at 614-615 [25], 623 [55]-[57]. This Court’s function under s.6(1) is to be performed within a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of accused persons in criminal trials: MFA v The Queen at 624 [59]. The jury had the benefit of seeing and hearing the witnesses, including the Appellant: M v The Queen at 493.

78 There was a strong body of circumstantial evidence supporting the conclusion that Stojkov supplied the heroin to Ilievski. There was regular contact between Stojkov and Ilievski on the days leading up to 8 May 2000 and on that day. Stojkov had travelled to Bass Hill, as had Ilievski, with a meeting to take place between them at that location. Ilievski took possession of a black shopping bag containing the heroin wrapped in plastic which bore Stojkov’s fingerprints.

79 In my view, any question arising from the variation in times recorded and the absence of direct evidence of observation of Stojkov handing the bag to Ilievski, does not greatly assist the Appellant’s case. The Crown did not assert that there was a complete and unbroken observation of all events which, in any case, took place in the dark of an early evening in winter. Nor does the somewhat cryptic isolated reference to “Chinese” assist the Appellant’s case. The evidence, including the telephone and other electronic surveillance evidence, did not point to the involvement of any other party in a manner which served to undermine the powerful and damaging inference that it was Stojkov who handed the heroin to Ilievski.

80 The evidence of the Appellant’s fingerprints being found on the plastic used to wrap the heroin was powerful circumstantial evidence adverse to the Appellant. It connected him directly to the heroin. That he transported Stojkov to the Bass Hill area and remained there, that he was with him in the McDonalds car park when Stojkov positioned himself in the walkway connecting the McDonalds car park to the Rydges Hotel car park, and, when confronted with arrest, that he attempted to flee the scene, were all damaging to the Appellant.

81 It has been observed that circumstantial evidence may often be more reliable than direct evidence, which can be subject to the fallibility of human observation and memory: R v Cable (1947) 47 SR 183 at 184 per Jordan CJ; R v Chahine at [95]. Fingerprint evidence is powerful and cogent evidence of identification of an offender in a manner which links him to the crime: R v Chahine at [96].

82 This was not a case where the Crown case was dependent on an isolated fingerprint of the Appellant being located on the heroin package. The fingerprint evidence was to be considered with other evidence which saw the Appellant and Stojkov travelling together to Bass Hill, and remaining in the area for a period of time, leading up to the supply by Stojkov to Ilievski of a substantial quantity of heroin. The Appellant’s reaction to Stojkov’s arrest pointed to a guilty mind on his part.

83 In considering a circumstantial case, all the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. A circumstantial case ought not be considered piecemeal at trial or on appeal: The Queen v Hillier [2007] 228 CLR 618 at 637-638 [46]-[48].

84 The Appellant’s submissions invited a type of piecemeal assessment of the circumstantial case. It is necessary to assess the evidence by reference to all the circumstances established.

85 Upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the Appellant’s guilt. It has not been demonstrated that the verdict of the jury is unreasonable or cannot be supported by the evidence. I would reject the first ground of appeal.

Ground 2 - The Indispensable Intermediate Fact Ground

Appellant’s Submissions

86 Mr Dalton SC submitted that it was foundational to the Crown case against the Appellant that the heroin had been brought to the Bass Hill area in the vehicle occupied by the Appellant and Stojkov.

87 It was submitted that the jury was not properly directed by the trial judge in relation to this aspect of the Crown case being an indispensable intermediate fact, which required proof beyond reasonable doubt, before the jury could convict: Shepherd v The Queen (1990) 170 CLR 573 at 589. It was submitted that the direction given in this respect was not in explicit enough terms as to leave the jury in no doubt that this was a critical finding of fact that needed to be made before the jury could convict.

88 It was submitted that failure on the part of the trial judge to construct a direction on this point, in explicit enough terms, was so fundamental in the circumstances of the case that it caused the trial to miscarry.

Crown Submissions

89 The Crown submitted that, although express reference was not made to the heroin being in the vehicle, the trial judge did treat the question of whether Stojkov brought the heroin to Ilievski as an indispensable intermediate fact and gave a direction to the jury accordingly.

90 It was also submitted that trial counsel for the Appellant did not seek any further direction on this point, and that leave under Rule 4 Criminal Appeal Rules should not be granted to the Appellant to raise the point on appeal.

Decision

91 The relevant direction given to the jury by the trial judge was expressed in the following terms (SU18):

“The Crown took you through a lot of the detail which the Crown relies on to say that Stojkov did bring the heroin to Ilievski which is finally found in Room 508. The Crown’s case is circumstantial. If you are to conclude that Stojkov did bring it then that must be the only rational explanation. The Crown relies upon the fact that Ilievski is waiting. The Crown relies upon all the contact between Ilievski and Stojkov and the Crown rely in particular upon the fingerprints of Stojkov. And the Crown says that particularly with the fingerprints of Stojkov there you would find there is no other rational explanation other than Stojkov brought the heroin to Ilievski which was later found in the room.

But it is a matter for you and you have to decide that again beyond reasonable doubt, you have to decide that beyond reasonable doubt before you can conclude that it is what happened. The Crown has to prove that one beyond reasonable doubt and it has to be the only rational explanation.”

92 Although trial counsel sought further directions on a range of matters at the conclusion of the summing up, no further direction was sought in accordance with the proposition contained in Ground 2. Accordingly, the Appellant requires leave under Rule 4 to rely upon this ground.

93 I am satisfied that the direction given to the jury by the trial judge was appropriate and sufficient in the circumstances of the trial. The jury was directed, in no uncertain terms, that it was for the Crown to prove beyond reasonable doubt that Stojkov brought the heroin to Ilievski. Stojkov had been transported to Bass Hill in the vehicle driven by the Appellant. In the context of this trial, the issue was clearly enough whether the jury was satisfied beyond reasonable doubt that Stojkov had supplied Ilievski with heroin which had been conveyed to Bass Hill in the vehicle driven by the Appellant. It is pertinent that the heroin was wrapped in plastic which bore the fingerprints of both Stojkov and the Appellant. The absence of any application for a further direction by experienced trial counsel reinforces the conclusion that this issue was clearly left to the jury in the summing up.

94 There is no case for the grant of leave under Rule 4 unless the Court of Criminal Appeal is satisfied that the Appellant has an arguable case that the trial judge has made an error or is satisfied that the Appellant’s conviction is otherwise a miscarriage of justice: Papakosmas v The Queen (1999) 196 CLR 297 at 319; R v Wilson (2005) 62 NSWLR 346 at 352-353 [19]-[24]. With respect to Ground 2, the Appellant has not demonstrated an arguable case that the trial judge fell into error or that the Appellant’s conviction is otherwise a miscarriage of justice.

95 Leave to argue Ground 2 ought be refused.

96 I reject the second ground of appeal.

Conclusion

97 I propose that the appeal against conviction ought be dismissed.

**********