Kozomara v Hollows
[2013] WASC 68
•7 MARCH 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: KOZOMARA -v- HOLLOWS [2013] WASC 68
CORAM: CORBOY J
HEARD: 8 NOVEMBER 2012
DELIVERED : 7 MARCH 2013
FILE NO/S: SJA 1126 of 2011
MATTER :Criminal Appeals Act 2004 Pt 2
and
Prosecution Notice numbers JO 7385/09 and JO 3377/11 in the Magistrates Court of Western Australia at Joondalup
BETWEEN: IGOR KOZOMARA
Appellant
AND
MARK ANDREW HOLLOWS
First RespondentANTHONY CLARK
Second Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE B C GLUESTEIN
File No :JO 7385 of 2009, JO 3377 of 2011
Catchwords:
Criminal appeal - Summary conviction for pursuing a person with intent to intimidate - Whether the conduct of counsel resulted in a miscarriage of justice - No new principles - Turns on its own facts
Legislation:
Criminal Code (WA), s 338E(1)
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
First Respondent : Ms G Cleary
Second Respondent : Ms G Cleary
Solicitors:
Appellant: In person
First Respondent : Director of Public Prosecutions (WA)
Second Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Durani v The State of Western Australia [2012] WASCA 172
McMahon v The State of Western Australia [2010] WASCA 143
TKWJ v The Queen [2002] HCA 46; 212 CLR 124
CORBOY J:
The appeal and the result
On 16 March 2007, Ms Jasminka Krupic obtained an order from the Magistrates Court of Western Australia restraining the appellant from, among other things, communicating or attempting to communicate with her by whatever means except for the purpose of attending court and participating in court proceedings. The order was to take effect on being served on the appellant and was to continue for a period of two years (subject to any objection made by the appellant within 21 days of service). The order was apparently served on the appellant on 28 March 2007. The appellant did not object to the order.
The appellant was charged on 4 December 2007, that between 19 March and 19 April 2007, he pursued Ms Krupic with intent to intimidate her contrary to s 338E(1)(b) of the Criminal Code. The appellant subsequently left Australia without the charge having been heard. The charge was prosecuted following his return.
The charge was amended on 14 February 2011. The appellant was charged that between 28 March and 19 April 2007, he pursued Ms Krupic with intent to intimidate her in circumstances of aggravation contrary to s 338E(1)(a) Criminal Code. He was charged with a further offence on 14 April 2011: that between 19 March and 19 April 2007 he pursued Damir Krupic with intent to intimidate him contrary to s 338E(1)(b) Criminal Code.
The appellant was convicted of both offences on 2 November 2011, following a trial that was conducted on 14, 15 and 25 February, 9 March and 3 and 17 October 2011.
The appellant appeals from his conviction, essentially on grounds relating to the conduct of his defence by his then counsel, Mr Massey (who was also his solicitor). On 27 April 2012, Hall J ordered that the appellant's application for leave to appeal be heard and determined at the same time as the appeal.
I have found that the application for leave to appeal should be granted but the appeal should be dismissed.
The grounds of appeal and the issues raised
The primary issue in the trial
The appellant was alleged to have pursued Ms and Mr Krupic by making and sending 1,408 telephone calls and text messages during the period specified in the charges. It was further alleged that the calls and messages were made and sent from the same mobile phone and that the text messages were written in Serbian.
The only admission made by the appellant at the trial of the charges was that he was subject to a restraining order in the terms alleged by the prosecution (14 February 2011, ts 6). Accordingly, the prosecution adduced evidence to identify the mobile phone from which the calls and text messages were alleged to have been made and to establish their frequency. The evidence about those matters was generally accepted by the appellant. Consequently, the primary issue in the trial was whether the prosecution had established beyond a reasonable doubt that the calls and text messages were made and sent by the appellant (an allegation that he denied in his evidence).
Facts relevant to the grounds of appeal
The following matters were not in issue and are relevant to understanding the grounds of appeal:
(a)The appellant was born in Sarajevo. He described himself as being a Serbian from Bosnia. He stated that his first language was Serbian (3 October 2011, ts 14).
(b)The appellant is and was at the relevant time a taxi driver (3 October 2011, ts 14).
(c)Ms Krupic was also born in Sarajevo. She described her first language as Bosnian; indeed, she has qualifications in interpreting between Bosnian and English (14 February 2011, ts 39 ‑ 40).
(d)The appellant had been in a relationship with Ms Ivana Oroz until about 2005 or 2006 (3 October 2011, ts 15). Ms Oroz subsequently obtained a restraining order against the appellant (ts 24). Ms and Mr Krupic knew Ms Oroz. They had met the appellant through Ms Oroz (14 February 2011, ts 41).
(e)The police searched a taxi driven by the appellant on 18 April 2007. They found a mobile phone in the taxi that they subsequently alleged was the mobile phone from which the telephone calls and text messages were made and sent to Ms and Mr Krupic. The appellant denied knowing that the mobile phone was in his taxi at the time that it was searched. He further denied that he had used the phone.
The grounds of appeal
The appellant drafted his grounds of appeal and represented himself at the hearing. The grounds of appeal were discursive but they complained that Mr Massey had failed to act according to the appellant's instructions as:
(a)he had not called Dr Dijana Crnjak or Ms Suzana Stapar to give expert evidence on the regional differences in the Serbian language with a view to establishing that the language used in the text messages sent to Ms and Mr Krupic was not that which would be adopted by someone with the appellant's ethnic background who had been raised in Sarajevo;
(b)he had failed to 'listen to' Ms Oroz (by which I understood the appellant to mean that Mr Massey ought to have interviewed and taken a proof of evidence from her for the purpose of considering whether she should be called as a witness);
(c)he had also failed to take a proof of evidence from and call as a witness, Mr Peter Kozomara, the appellant's father;
(d)he ought to have required Ms and Mr Krupic to produce their mobile phones to the court;
(e)he ought to have checked whether there were threatening text messages sent to Ms and Mr Krupic from the mobile phone that was alleged to have been the phone from which the messages were sent;
(f)he should not have allowed the prosecution to tender its version of the messages as downloaded to a computer;
(g)he had not adduced evidence or conducted the appellant's case according to a document that the appellant had given to Mr Massey prior to the trial and which was headed 'Important';
(h)he had failed to put to the court various inconsistencies in the prosecution case and other matters that were consistent with the appellant's innocence;
(i)he had not tendered in evidence a letter dated 16 February 2011 that had been written by Optus to the appellant's father regarding the likelihood that a pre-paid mobile phone would have what is known as an IMEI number;
(j)he had not called witnesses who could verify that he had been in court on 28 March 2007 so that he could not have sent text messages from the Phone on that day.
The appellant's grounds of appeal are to be understood as alleging that his trial miscarried because of the conduct of his counsel. Accordingly, it raised issues similar to those considered by the Court of Appeal in McMahon v The State of Western Australia [2010] WASCA 143 where it was alleged that a trial had miscarried because trial counsel for the appellant/accused had failed to call relevant and material witnesses despite instructions to do so and had failed to act on instructions regarding a potential alibi defence. The principles relevant to an appeal where it is contended that the trial miscarried as a result of the conduct of counsel for the accused are discussed later in the reasons.
The prosecution case
It is convenient to summarise the prosecution case by briefly recounting the evidence given by each witness in the order in which the witnesses were called by the prosecutor.
Scott Draper
Mr Draper is a support liaison officer with Optus. He produced a document (exhibit 1) that recorded information relating to telephone calls made to a mobile phone that had been used by Ms Krupic during the period relevant to the charges. The document recorded, for the period 16 March to 14 April 2007, the date and time of telephone calls to Ms Krupic's phone; the telephone number of the caller; a unique number that identified the mobile phone handset from which the calls were made; whether calls were answered and the 'base station' that carried the calls (the base stations were located at various points around the Perth metropolitan area). The document recorded that a number of telephone calls had been made to Ms Kupric's mobile phone from the same mobile phone, identified by its telephone number (0423 520405) and its unique handset number (359361009717770) (I will refer to that mobile phone as the Phone).
Mr Draper produced a similar document (exhibit 2) for telephone calls made between 16 March and 14 April 2007 to a mobile phone that it was accepted had once been used by Mr Krupic (14 February 2011, ts 66). Again, that document recorded a number of telephone calls made to Mr Krupic's mobile phone from the Phone.
Daniel Celan
Mr Celan was born in Bosnia and came to Australia in 1996. He attended high school with the appellant. He did not stay in contact with the appellant after completing high school but he 'bumped into him a couple of times' (14 February 2011, ts 22). He thought that he had given his telephone number to the appellant on one of those occasions. However, neither of them had rung the other (ts 23).
Mr Celan knew Ms Oroz and Ms and Mr Krupic. They shared mutual friends (ts 24).
Adam Muhmed
Mr Muhmed stated that he had been a taxi driver in April 2007. He drove a particular taxi during the day. He identified Mr Kozomara as the person who drove that taxi at night (14 February 2011, ts 30 - 31).
Paul Mason Alison
Mr Alison is a communications manager with Swan Taxis. He produced a document (exhibit 3) that recorded for the period 19 March to 19 April 2007 the times for which taxi number 761, driven by driver number 5574, was booked for various jobs. The document recorded the pick‑up point and destination for the job. The document did not record fares taken by the taxi that had not been booked through Swan Taxis. Further, Mr Alison was unable to identify driver number 5574. The appellant was not cross‑examined on whether he was that driver.
Ms Krupic
Ms Krupic was born in Sarajevo, Bosnia in 1978. She came to Australia in 1997.
She explained that she had applied for a restraining order against the appellant after receiving numerous text messages from him (14 February 2011, ts 42). Ms Krupic then produced four examples of text messages that she had received and downloaded to her computer after the restraining order had been made (exhibits 4 to 7). The messages were dated 28 March 2007 (exhibit 4); 4 April 2007 (exhibit 5); 31 March 2007 (exhibit 6) and 28 March 2007 (exhibit 7).
It will be noted that two of the messages were sent on the day that the restraining order was said to have been served on the appellant. It was accepted by the appellant that the restraining order was 'in existence at the time' (14 February 2011, ts 6). That concession was made when the prosecutor sought to amend the prosecution notice to allege that the offence involving the pursuit of Ms Krupic was committed between 28 March and 19 April 2007 and to further allege the circumstance of aggravation. There was no objection to that amendment or to the tender of exhibits 4 and 7 on the ground that the restraining order was not in force as at 28 March 2007 (the date of the restraining order was irrelevant to the charge brought against the appellant for allegedly pursuing Mr Krupic).
The tone of the texts comprising exhibits 4 to 7 was threatening and they each suggested that Ms Krupic was going to die.
Ms Krupic also stated that:
(a)Numerous calls had been made to her home phone. The caller would usually hang up when the call was answered. The calls were mostly made during the night (ts 47 ‑ 48). However, Ms Krupic did not identify the period to which she was referring in her evidence and no records were produced for telephone calls made to her home phone.
(b)The telephone number from which the text messages were sent was 0423 520405 ‑ that is, the telephone number of the Phone (ts 49).
(c)She first met the appellant in 2005. They exchanged mobile phone numbers and subsequently, he sent her a text message that stated, 'You do not belong into Serbian community'. She tried unsuccessfully to contact the appellant after receiving that message. She and her husband again saw the appellant in 2007 and it was following that meeting that the telephone calls and text messages commenced (ts 50).
Ms Krupic stated in cross‑examination that:
(a)She had only seen the appellant once between 2005 and 2007 and she was not aware of any reason why he would send text messages and make telephone calls to her (ts 51 and ts 54 ‑ 55).
(b)She understood that the person who had sent the text messages to her was Serbian from the language used in the texts (ts 55). She agreed, however, that there were different dialects or different languages within the countries that had previously comprised Yugoslavia (ts 55):
There are many dialects, yes, if you go to Belgrade it's a different dialect but when you speak, people can clearly understand you. They just add a few specifically for that region word. If you take that little word out it's very clear.
(c)One such dialect was Jekavski. Bosnian and Jekavski were similar ‑ they used the same words but three letters ('i', 'j' and 'e') were added to some words in Jekavski (ts 55 ‑ 56).
(d)She would describe the language used in the text messages sent to her as being half Bosnian and half Serbian from Belgrade (ts 57). In particular, the messages included the word 'bre' that was specifically used in Belgrade (ts 57).
(e)She did not speak another dialect, Ekavski. That was spoken in villages a short distance from Sarajevo (ts 59).
(f)The author(s) of the text messages were not identified and she never spoke to the person(s) who made the telephone calls as they always hung up if the call was answered. She had not provided her address to the appellant (three of the text messages that Ms Krupic produced mentioned the suburb in which she and her husband had previously resided).
Mr Krupic
Mr Krupic stated that he had received more than 50 text messages and a much larger number of telephone calls relevant to the charge concerning him. The text messages contained 'religious' threats and threats to his family (14 February 2011, ts 66). He downloaded the messages to his computer and printed a number of them (exhibits 8 to 29). The messages were sent from telephone number 0423 520405 and were variously dated between 15 March and 5 April 2007 (ts 67 ‑ 69). Mr Krupic stated that one of the text messages that he downloaded and printed referred to Ms Oroz's father (ts 74).
Mr Krupic described the language in which the text messages were written as 'from Yugoslavia'. He added, 'It's a whole same, same language, different dialects. Like Irish and English. We can understand each other'. He added that he presumed that the language was 'Serbian, but it's from Yugoslav, because we understand each other very good. Same as English and Irish, or American' (ts 69).
The prosecutor sought to elicit from Mr Krupic who he believed had sent the text messages having regard to their content. An objection was taken by Mr Massey on the ground that the question invited Mr Krupic to speculate. The learned magistrate allowed the question but he noted that, 'I suppose the question has to be how can this witness tell the court who the author of these calls is ‑ messages are? The answer I will have to put appropriate weight on … at best he's going to tell me who he thinks it is but I suppose the prosecution case is ‑ the task of the prosecution is to, you know, jump the hurdle and make that connection' (ts 73). Mr Krupic identified the appellant as the person who he believed had sent the text messages.
In cross‑examination, Mr Krupic:
(a)Agreed that he did not know of any reason why the appellant would send him threatening text messages (ts 76). He confirmed that he had not given the appellant his residential address but he stated that he had swapped mobile phone numbers with him (ts 79). However, he did not identify whether the telephone number that he had swapped with the appellant was the mobile phone number which had received the messages and calls that were relevant to the charges.
(b)Stated that he had rung the number from which the messages had been sent and the calls had been made. He reached a recorded message from a person who identified himself as 'Joel' (ts 77).
Nada Petersen
Ms Petersen is a translator and interpreter between Serbian and English. Her expertise was accepted by Mr Massey (ts 81). Ms Petersen translated the text messages that had been tendered in evidence by the prosecutor (exhibits 4 to 29). The cross‑examination of Ms Petersen was central to the issues raised by the appellant in the appeal.
Ms Petersen was asked in cross-examination about whether people from the former Yugoslavia spoke the same language but with different dialects. She replied, 'Yes, it is basically the same language. It maybe would be like, the best I can think of is Australian English and American English, so the differences are truly minor'; 'there are a few words that would be different' (ts 82). She identified three 'dialects' - Bosnian, Serbian and Croatian - but considered that they could not truly be described as dialects as the differences between them were 'very, very small and very negligible' (ts 83). Ms Petersen then stated that:
(a)Jekavski was spoken by 'everybody else apart from Serbian people in former Yugoslavia. The words remain exactly the same. The only thing is they would add 'IJ'. Again, if I make an effort I can write every single sentence exactly the same, I will just in every word add 'IJ' or 'J', depending what it is'. This was the 'type of language' commonly used by Serbians in Bosnia (ts 84).
(b)Ekavaski was only used in Serbia proper. People from all of the other republics of the former Yugoslavia would use Ijakavian ‑ the form of the Serbian language in which the letters 'J' or 'IJ' were added to each word (ts 84 ‑ 85).
(c)The word 'otca' was used in some of the text messages. According to Ms Petersen, that was a word that would be used by Serbians and Croatians. She thought that it was unlikely that Bosnians would use the word as (ts 84):
… this is a family word and it is ‑ we hear that word at home. We hear it when we visit our relatives. The Bosnian people, I should imagine, use more Turkish words within their family group. So they would not necessarily use that word at all, as far as I know.
(d)Further, the use of the word 'otca' in the text messages was grammatically incorrect. That was because the word would only be spelt with a 't' in the nominative case. The word as used in the text messages was in the accusative case. The letter 't' would not be included in the accusative case (ts 85).
The appellant had obtained two letters from Dr Crnjak prior to the trial regarding the language in which the text messages sent to Ms and Mr Krupic had been written. Dr Crnjak is a linguist at the University of Banja Luka, Bosnia and Hezegovina. Her letters to the appellant were translated into English by Ms Petersen.
The appellant also obtained a letter from another linguist with qualifications in Yugoslav languages and literature, Ms Stapar. She replied to a query from the appellant regarding the use of the word 'otca' in the text messages sent to Ms and Mr Krupic. Her observations about the use of the word corresponded with those made by Dr Crnjak.
Various propositions were put to Ms Petersen in cross‑examination that had been taken from correspondence from Dr Crnjak and Ms Stapar. In particular:
(a)Dr Crnjak stated that in her practice in the field of linguistics she had never come across an error 'of the type otca, otce, or similar'. Ms Petersen stated that this accorded with what she had stated in her evidence ‑ 'it is that it's close to almost an impossibility to pronounce the word the way it is written'; 'it's very unusual to have that error' (ts 86). Ms Petersen's explanation for why that was so (that the spelling of words was phonetic) accorded with the explanation given by Dr Crnjak in her letter as to why she had not encountered such an error.
(b)Ms Petersen agreed with the statement made by Dr Crnjak that the error was not one that would be made by the speaker of a Serbian or Croatian language. Ms Petersen added that, 'because the word means father, kids learn that when they are still in their nappies. So they would definitely now how to pronounce it and how to write that' (ts 86).
(c)Ms Petersen agreed with the statement made by Dr Crnjak that, 'writing errors of the type otca, otcu, can be viewed in our speaking region as a sociolinguistic phenomenon, meaning that such lapses can be made only by persons who do not have the word otac in their vocabulary' (ts 86). Ms Petersen clarified that Bosnian people would not have the word 'otac' in their vocabulary as they relied on words taken from the Turkish language to describe their family relations (ts 87). Accordingly, Bosnians with a Turkish background might make the error with the spelling of the word (ts 88). Ms Petersen agreed with the statement made by Dr Crnjak that, 'according to dialect research during the Serbio‑Croatian association and research was carried out after the last war on the territory of the former Yugoslavia, the noun 'otac' lexically belongs to the speech of the Serbian and Croatian people (informally tata) while for Muslim/Bosnjak people the synonym for the noun cited is babo'. Ms Petersen explained that the word 'babo' also meant father (ts 88).
(d)Dr Petersen also agreed with the statement by Dr Crnjak that, 'the site of research also shows numerous lexical differences between Serbian and Croatian on the one hand and Bosnian on the other when it comes to informal words' (ts 88). Ms Petersen again explained that Bosnians used Turkish words to describe family relationships whereas Serbian or Croatian people did not use words derived from the Turkish language for that purpose.
Dr Crnjak's letter did not deal with the use of the word 'bre'. However, Ms Petersen stated that the word was used by Serbians but as far as she knew it was not used by Croatians and she very much doubted whether it would be used by Bosnians. However, Ms Petersen stated that she was not an expert on the Bosnian language (ts 89 ‑ 90).
Adam Luke Stafford
Mr Stafford is a forensic supervisor with a firm of accountants, having previously been a police officer. He was called to give expert evidence on the handset number for a mobile phone (the IMEI number). He stated that each mobile phone was manufactured with a unique IMEI number which could only be changed manually by using special software (3 October 2011, ts 4). However, he had never seen a mobile phone that was a 'clone' and he had never heard of it occurring outside the FBI and the Secret Service (ts 5).
Detective Anthony Clark
Detective Clark was attached to the Warwick police station in 2007. He seized a mobile telephone located in a pocket on the driver's side door of the taxi driven by the appellant on 18 April 2007 (it was erroneously put to Detective Clark in his examination‑in‑chief that the search had occurred on 18 August 2007; exhibit 30 was a DVD recording the search that indicated that the search had been conducted on 18 April 2007 and that prosecutor had misstated the date in his questions to Detective Clark). He obtained reverse call charge records for Mr and Ms Krupic that disclosed that the mobile phone that he had seized had been used to contact them extensively. He had also ascertained from Optus that the phone had been registered in the name of Joel Coleman, who was an English tourist (3 October 2011, ts 6 ‑ 7). He identified the IMEI number of the seized phone as being the number for the Phone. He stated that he had contacted Mr Coleman by email. Mr Coleman advised that he had lost the phone while he was in Perth (there was no objection to that hearsay evidence).
Detective Clark also stated that he had searched the numbers stored on the telephone and identified that it had been used to contact Mr Celam and somebody named 'Ivana' (ts 8). The phone had also been used to contact numbers in Bosnia/Serbia.
Detective Clark produced three documents that he had prepared in the course of his investigation. The documents were prepared from the Optus records for calls made to Mr and Ms Krupic's mobile phones and a printout of jobs allocated to the appellant by Swan Taxis. The documents sought to correlate the location of the appellant's taxi by reference to jobs allocated with the location of telephone calls made to Mr and Ms Krupic's mobile phone from the Phone identified by reference to the closest mobile phone tower through which the calls had been routed (exhibits 31 to 34).
The appellant's evidence
The appellant stated that he was born in Sarajevo and migrated to Australia in 1996. He described himself as being a Serbian from Bosnia (3 October 2011, ts 14).
The appellant further stated that:
(a)He met Mr and Ms Krupic through Ms Oroz. That was in about 2001. His relationship with Ms Oroz ended in about 2005 or 2006 and he had met Mr and Ms Krupic only once since that time. That was a chance meeting while he was driving his taxi (ts 15).
(b)He had only made a few telephone calls to Mr and Ms Krupic and that was during the time that he was in a relationship with Ms Oroz (ts 16).
(c)The first time that he had seen the mobile phone located by the police in his taxi was on the day that the taxi had been searched. At that time he was driving the taxi at night; there was another driver who drove the taxi during the day (ts 17).
(d)He considered that the Croatian, Serbian and Bosnian languages were very similar (ts 18). However, he stated that he would never have used the word 'bre' ‑ 'maybe once in my life for a joke or something, but never, never really used that word' (ts 19; see also at ts 22). Further, he considered that 'Serbian from Bosnia and Serbian from Serbia is different. Like Serbian and Croatian and Bosnian in Bosnia we spoke Ekavski without those two letters, they have only "e" ‑ English ‑ "e" I mean' (ts 19). The word 'bre' would only have been used by a Serbian from Serbia; it would not have been used by a Serbian from Bosnia (ts 19).
(e)The word 'octa' was used in some of the SMS messages. That was a word that Mr Kozomara would use but he would spell it without a 't' (ts 20 ‑ 21).
(f)He did not know the address of Ms and Mr Krupic. He had not endeavoured to contact Mr Celam (ts 24).
The appellant also gave evidence of difficulties that he had experienced after his relationship with Ms Oroz had ended. He stated that she had sent threatening text messages, including threatening him 'with the police' (ts 25). He claimed that Ms Oroz worked at the Beaufort Street Police Station and that he had been scared as she had 'connections' (ts 26).
In cross‑examination, the appellant stated that:
(a)He could understand various Serbian 'dialects'. However, he had not known about the possible use of the word 'octa' (that is, spelt with a 't') until he had been told about it by his father (ts 29).
(b)He did not have any 'problems' with Ms and Mr Krupic and so had no reason to send them threatening messages or to telephone them (ts 30).
The appellant denied knowing that the Phone was in the driver's side pocket of the taxi that he was driving or that he knew Ms Oroz's telephone number at the time (the assumption being that the number for 'Ivana' stored on the Phone was Ms Oroz's then telephone number.
The relevant provisions of the Criminal Code
Section 338E of the Criminal Code appears in ch XXXIIIB, which is entitled 'Stalking'. The section provides that:
A person who pursues another person with intent to intimidate that person or a third person, is guilty of a crime and is liable ‑
(a)where the offence is committed in circumstances of aggravation, to imprisonment for eight years; and
(b)in any other case, to imprisonment for three years.
Alternative offence: s 338E(2).
Summary conviction penalty:
(a)in a case to which subsection (1)(a) applies: imprisonment for 2 years and a fine of $24,000;
(b)in a case to which subsection (1)(a) applies: imprisonment for 18 months and a fine of $18,000.
Section 338D provides that the word 'intimidate' in relation to a person includes to cause physical or mental harm to the person; to cause apprehension or fear in the person or to prevent the person from doing an act that the person is lawfully entitled to do, or to hinder the person in doing such an act. The section further provides that the word 'pursue' in relation to a person includes to repeatedly communicate with the person, whether directly or indirectly and whether in words or otherwise.
Section 338D also defines what constitutes a circumstance of aggravation for the purposes of s 338E by reference to the matters stated in s 221 of the Code. Section 221(1) defines circumstances of aggravation for the purposes of pt V to include circumstances in which the conduct of the offender in committing the offence constituted a breach of an order made or registered under the Restraining Orders Act 1997 (WA) or to which that Act applied.
The learned magistrate's reasons
The learned magistrate delivered his reasons for finding the appellant guilty of the two charges brought against him on 2 November 2011. His Honour considered that the issue for him to determine was whether the prosecution had proved beyond reasonable doubt that the telephone calls and text messages had been made by the appellant. He thought that the other elements of the offence created by s 338E of the Criminal Code were 'easily' established if the prosecution had satisfied him that the appellant had sent the text messages and made the phone calls - the content of the text messages as clearly disclosed an intention to intimidate and the evidence of Ms and Mr Krupic was to the effect that they had felt threatened and stressed (2 November 2011, ts 3).
His Honour briefly recounted the evidence, noting that, among other things (ts 3):
Ms Nada Petersen spoke of the subtle differences of the same words between Bosnia and Croatian - with some words, should I say between Bosnian, Croatian and Serbian dialects, but tellingly says of such differences, they are - and I quote from the transcript, 'very, very small, very negligible'. She is directed under cross‑examination to words such as 'otca' or 'otcu' or 'otce' and the word 'bre', but I make reference back to her comment that I quoted that the differences between dialects were very, very negligible.
His Honour then identified nine reasons why he rejected the appellant's denial that he had made the calls and sent the texts from the Phone. He stated (at ts 4 – 5):
[The appellant's] denials however in my view fly in the face of what I conclude is a compelling circumstantial case put up by the prosecution evidence and I list these as follows; the key elements. (1) He is stopped by police in his taxi and with the [Phone] in his driver's door. (2) He admits to having opened the back of the phone for some unexplained reason. (3) The phone I find on the evidence is the one that … made the calls and text messages to the complainants.
(4) His explanation, 'The phone must have been found by the day shift taxi driver' lacks credibility, particularly as the other taxi driver, his so‑called alibi evidence, was not cross‑examined on this point. Fifthly, Mr Kozomara has access to the phone numbers of the complainants from an earlier meeting with them. (6) He knows of the Krupics, having met them. (7) He comes from the same broad region as the complainants; that's what I loosely call the Bosnia, Serbia, Croatia area. (8) He can speak the different dialects. (9) The exhibit documents suggest that on some of the calls Mr Kozomara's taxi is in the locality of the origins of the calls or texts being made.
Finally, that there might be another phone being a clone of the [Phone] as was suggested in defence is so remote I find a possibility on the evidence as to, in my view, not lead to any reasonable doubt in this case. The circumstantial evidence, as I have said, is strong and compelling and leaves me satisfied beyond a reasonable doubt that the prosecution has proved its case on both charges.
The relevant principles
Section 7 of the Criminal Appeals Act 2004 (WA) provides for an appeal to this court by a person who is aggrieved by a decision of a court of summary jurisdiction. Section 8 specifies the grounds on which an appeal may be instituted. The only relevant ground raised by Mr Kozomara is under s 8(1)(b): that there has been a miscarriage of justice.
The relevant principles where it is alleged that a miscarriage of justice has been caused by the conduct of counsel at trial were summarised by the Court of Appeal in McMahon v The State of Western Australia [2010] WASCA 143 and Durani v The State of Western Australia [2012] WASCA 172. The principles were substantially derived from the various judgments delivered in TKWJ v The Queen [2002] HCA 46; 212 CLR 124. The following brief statement of the relevant principles is taken from the judgment of McLure P in McMahon:
(a)The applicant carries a heavy burden in demonstrating that the conduct of trial counsel caused a miscarriage of justice [24].
(b)Ordinarily, an accused is bound by the way the trial is conducted by counsel regardless of whether counsel's conduct accorded with his or her wishes. It is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions or involved errors of judgment or even negligence [24].
(c)There will be a miscarriage of justice regardless of whether counsel's conduct might have affected the outcome if the accused has been deprived of a fair trial according to law [25].
(d)Two questions arise where the conduct of counsel has not deprived an accused of a fair trial according to law but counsel's conduct was nevertheless irregular in some respect: first, did the conduct result in a material irregularity in the trial and second, was there a significant possibility that the irregularity affected the outcome [26].
(e)The test of whether there was a material irregularity is objective and ordinarily, a material irregularity will not occur where the alleged error of counsel concerned forensic choices about which competent counsel might have differing views. Nevertheless, there will be a miscarriage even though the error involved a forensic choice or judgment if it plainly affected the result of the trial [27].
The letters from Dr Crnjak and Ms Stapar
The first matter raised by the appellant in his notice of appeal concerned the decision made by Mr Massey not to call Dr Crnjak or Ms Stapar to give evidence.
Dr Crnjak stated in her letter to the appellant that 'one can arrive at the conclusion that this spelling error [referring to 'otca'] could only be made by a person speaking the Bosnian … language'. In a subsequent letter sent to the appellant, Dr Crnjak stated, 'I think that I have already in my first reply to your question regarding the trial, precisely explained that the author of the messages in question which you have sent to me, was not someone to whom Serbian language is not a mother tongue … to your question regarding you making a mistake of the 'otca' type, my reply would be that neither you nor any other person whose mother tongue is Serbian could do it.' Those passages were emphasised by the appellant in the appeal.
Similarly, Ms Stapar stated in her letter to the appellant that, 'in my language practice and research in the field of linguistics, I have never come across a grammatical error in which the word "otac" is written as "otca" or "otce" by a native speaker of the Serbian language.' She added, 'I believe that a grammatical error in the text messages could have been made by a speaker who is not competent in the language as his/her language practice this person doesn't have the word "otac" in his/her everyday vocabulary, therefore he/she doesn't know its correct usage. There are no speakers of the Serbian language who would have made that error'.
Ms Stapar also commented on the variety of Serbian languages. She stated that, 'according to the Serbian Constitution, the language used is the Serbian language with its two varieties, "Ekavian" spoken in Serbia proper and "Ijekavian" spoken by Serbs in Croatia, Bosnia and Montenegro'. The text messages that she reviewed were written in the '"Ekavian" variety of the Serbian language which, although comprehensible to Serbs, Croats or Bosnians, would never have been used by a Serb from Croatia and Herzegovina'. The appellant alleged that he spoke Ijekavian.
Finally, Ms Stapar noted that the word 'bre' had been included in the text messages that she reviewed. That implied that someone who was Serbian rather than someone from Sarajevo had written the messages. The word 'bre' was not used in Sarajevo 'in any shape or form'.
Those parts of the letters written by Dr Crnjak that the appellant emphasised contained a mixture of expert evidence and comment on the ultimate issue that the learned magistrate was required to determine. Dr Crnjak could not have given admissible evidence that the text messages could not have been written by the appellant. At most, she could have given expert linguistic evidence regarding the derivation of the language used in the texts and the regions in the former Yugoslavia associated with different 'dialects'.
Mr Massey obtained from Ms Petersen the substance of the admissible evidence that could have been given by Dr Crnjak or Ms Stapar. It was reasonable for Mr Massey to decide not to call either Dr Crnja or Ms Stapar to give expert evidence following the cross‑examination of Ms Petersen. The decision had no adverse effect on the outcome of the trial. The opinions expressed by Dr Crnjak and Ms Stapar were obviously based on an assumption that the author of the text messages was not attempting to disguise his or her ethnic origins.
Ms Oroz
The second matter about which the appellant complained was the failure of Mr Massey to take a proof of evidence from and call Ms Oroz as a witness.
There was no evidence provided by the appellant that Ms Oroz would have voluntarily given a statement to Mr Massey. In fact, according to his notice of appeal, the appellant was in court on 28 March 2007 in response to a complaint by Ms Oroz that he had breached a restraining order that she had obtained against him.
Moreover, it could not be said that Mr Massey was negligent in failing to seek a statement from Ms Oroz when the purpose of the statement was to gather evidence that she had, in some way, conspired with the police to cause the appellant to be wrongfully arrested and prosecuted. It would, of course, be most unlikely that Ms Oroz would volunteer such evidence and it was readily apparent why Mr Massey would not have called her as a witness without obtaining a statement from her. It was clear that Mr Kozomara regarded Ms Oroz as being hostile towards him. It was not apparent why he thought that Ms Oroz would cooperate in the preparation of his defence given the nature of the allegations that he had made or wished to make against her or why he thought that she would admit to serious misconduct if she was called as a witness.
The statement by the appellant's father
The third matter raised by the appellant concerned the fact that his father was not called to give evidence.
The statement
The appellant's father provided a statement dated 29 November 2011 (that is, after the learned magistrate had convicted the appellant). He stated that he had attended a conference between Mr Massey and his son. The letter from Dr Crnjak was given to Mr Massey at that conference. Subsequently, Mr Massey was given the telephone number and email address of Ms Stapar for the purpose of arranging for her to give evidence by video link.
Mr Kozomara further alleged that:
(a)Ms Oroz had stated in a conversation in June 2006 that the appellant would be arrested as soon as he returned to Australia and that 'she will take care of everything to ensure that this does indeed happen'. Mr Kozomara asked Mr Massey if he could be a witness so that he could give evidence of that conversation. He was told that he could not be a witness, an interpreter would be required and 'the judge would not view this favourably'.
(b)The appellant and he asked Mr Massey to call Ms Oroz as a witness 'because she is [the appellant's] former girlfriend, she worked at that time in police, and police officers working with her enabled the rest of the events to happen'.
(c)He and the appellant provided Mr Massey with letters and complaints that the appellant had sent to the Minister of Police, the Premier, the 'Police Commission' and the Crime and Corruption Commission regarding the circumstances in which the appellant was arrested and charged.
(d)During the trial Mr Massey had explained that it was unnecessary for Ms Stapar to give evidence as Ms Petersen had given evidence. Mr Kozomara explained that Ms Petersen was not an expert in the Serbian language.
(e)Mr Kozomara obtained a letter from Optus which stated that pre‑paid mobile phones did not have an IMEI number that was recorded. The letter was dated 16 February 2011.
The letter to which Mr Kozomara referred in his statement responded to a concern that apparently had been raised by Mr Kozomara regarding his own telephone account. However, the letter continued:
I have thoroughly investigated your concerns regarding the Nokia 1112 handset with IMEI 359361007502126. When a pre-paid kit is purchased, IMEI numbers are generally not recorded when the account is created or subsequently if a new handset is purchased for an existing service. After searching I am unable to find this IMEI registered against mobile service numbers: 0402 395192, 0401 172635 and 0402 278574.
The allegations concerning Ms Oroz's role
The complaint that Mr Massey ought to have called Ms Oroz as a witness has already been considered. In effect, the complaint is that Mr Massey ought to have called her in the hope that she would, in her evidence‑in‑chief, incriminate herself in some form of criminal conspiracy. Plainly, Mr Massey was not negligent in failing to cause Ms Oroz to be summonsed to appear as a witness at the trial.
Implicit in much of what the appellant submitted in the appeal was the proposition that his arrest and prosecution rested on unreliable evidence that had been arranged by or at the behest of Ms Oroz. The effect of the appellant's submissions was that Ms Oroz had placed or caused the Phone to be placed in the taxi driven by the appellant; that she had made or caused to be made the calls from the Phone and that she had then arranged for the police to search the taxi and for the appellant to be arrested. I will return to that suggestion at the conclusion of the reasons.
The police complaints
The fact that the appellant had complained to the police regarding his arrest was irrelevant to the issues to be determined by the learned magistrate. The letter of complaint from the appellant to the Minister for Police was dated 1 May 2007 and alleged that Ms Krupic had given false evidence during the hearing of her application for a restraining order against the appellant and that Mr Krupic had harassed the appellant's parents in February 2007 by making a number of telephone calls to them. It was, in my view, reasonably clear why Mr Massey would not have pursued those allegations during the trial - they provided a motive for the appellant's conduct towards Ms and Mr Krupic as alleged by the prosecution. Instead, Mr Masssey was able to cross‑examine Ms and Mr Krupic on the basis that they did not know of any reason why the appellant would have pursued them in the manner alleged.
As noted below, Mr Massey did act on the appellant's instructions by asking him about his complaints to the police. The focus of Mr Massey's questions was on allegations that the appellant had made in his complaints about Ms Oroz.
The Optus letter
It was not entirely clear what the letter from Optus to the appellant's father was intended to establish. There was no evidence that the Phone had been operated with a pre‑paid kit purchased from Optus. Detective Senior Constable Clark stated that he had obtained call charge records from Optus for the mobile phones of Ms and Mr Krupic. Those records disclosed the IMEI number for the mobile phone from which calls had been made using telephone number 0423 520405. The IMEI number for that mobile phone, as disclosed by the call records, corresponded with the IMEI number for the Phone as identified by Detective Senior Constable Clark from an inspection of the Phone (3 October 2011, ts 8). The IMEI number for the Phone was also disclosed in the records obtained by Mr Draper. Accordingly, the evidence clearly established that the Phone had an IMEI number; that the number was 35936100917771 (and see the evidence of Mr Stafford regarding why the IMEI number in exhibits 2 and 32 was given as 359361009717770) and that telephone calls using the number 0423 520405 were made from a mobile phone handset bearing that IMEI number.
Conclusion on the 'failure' to call the appellant's father as a witness
I consider that any decision that Mr Massey may have made to not call the appellant's father as a witness was reasaonble. It wsa not apparent what admissible evidence could have been given by Mr Kozomara.
The mobile phone records for Ms and Mr Krupic
The appellant complained that Mr Massey ought to have required Ms and Mr Krupic to produce their mobile phones to the court; that he ought to have checked whether there were threatening text messages sent to Ms and Mr Krupic sent from the Phone and he should not have allowed the prosecution to tender 'its version' of the text messages as downloaded to a computer.
Records obtained from Optus for calls made to Ms and Mr Krupic's mobile phones were produced to the court through Mr Draper and Detective Clark. Those records showed that numerous calls and texts had been made to their mobile phones from the Phone. There was no reason to doubt the accuracy and authenticity of the records extracted by Mr Draper and Detective Clark and it was reasonable for Mr Massey to accept the records as being accurate. The records also established that the police did not tamper with the Phone contrary to the suggestion impliedly made by the appellant in his notice of appeal.
The texts that were tendered were downloaded by the Krupics to their computer. There was no credible basis on which Mr Massey could challenge their evidence regarding the down-loading of the messages and their content.
Further, it was not clear that Mr Massey was instructed to challenge this part of the evidence given by Ms and Mr Krupic. His instructions were apparently contained in the document headed 'Important' that is considered in the next section of the reasons. There is no suggestion in that document that the appellant disputed that the texts had been sent. His instructions were to the effect that he was not author of the texts and he had not made the phone calls to Ms and Mr Krupic that were apparently made from the Phone.
The appellant's 'alibi' for the texts sent on 28 March 2007
The appellant contended that he could not have used the Phone on 28 March 2007 as he was in court answering a complaint by Ms Oroz. However, exhibits 1 and 2 disclosed that the calls that had been made on 28 March 2007 from the Phone to the Krupics had been made well outside court hours. Similarly, the text messages dated 28 March that were in evidence were sent outside court hours. There was no reason for Mr Massey to pursue this matter during the trial in light of that evidence.
The document headed 'Important'
The appellant stated that he gave Mr Massey a document headed 'Important' prior to the commencement of the trial. However, it is to be noted that the document was dated 28 March 2011.
The document contained the appellant's observations on the evidence that had been, or was proposed to be adduced, by the prosecution as disclosed in the witness statements that had been served. The appellant stated in the document that:
(a)He spoke and wrote Serbian in the Ijekavski variation whereas the text messages were written in the Ekavski form. The letter from Dr Crnjak confirmed that he could not have sent the text messages as he could not have written 'otca' (as has been noted, Dr Crnjak could not have given evidence to that effect).
(b)The police claimed that one of the numbers stored on the Phone was a mobile phone number belonging to Ms Oroz. However, Ms Oroz had stated in court in October 2006 that she had changed her private and work mobile numbers and the appellant did not know her new number.
(c)The appellant was driven to the Beaufort Street police station after the Phone was seized from the taxi that he was driving. He sat in the car outside the police station while two police officers took the Phone into the station. He did not know what was done with the Phone while the officers were in the station. Further, Ms Oroz was sitting in a police car outside the police station at this time.
(d)He did not understand how Ms and Mr Krupic could identify him as the person who was sending the text messages and making the calls.
(e)There were matters that the police had not investigated and about which he had complained.
(f)There were inconsistencies in the statement of Ms Krupic regarding the number of the mobile phone from which she claimed she had received the calls.
(g)He did not know that Ms and Mr Krupic were Muslims until 16 April 2007 when he received transcript of the violence restraining order proceedings (the text messages referred to their religion).
(h)His parents had been harassed by telephone calls made by Mr Krupic in February 2007.
(i)There were matters regarding the circumstances in which Mr Coleman had lost the Phone and the subsequent use of the Phone that were not logical.
The document concluded with the assertion that 'all of this was organised by Ivana Oroz'.
Several of the matters referred to in the document have already been considered. I note the following further matters that were relevant to the appellant's instructions as contained in the document:
(a)The appellant gave detailed evidence regarding the form of the Serbian language that he used.
(b)The appellant gave evidence about receiving threatening messages from Ms Oroz, including threats involving the police. The prosecutor challenged the relevance of the evidence. Mr Massey advised his Honour that 'he [the appellant] doesn't need to prove but he says that he did not send those messages … he doesn't need to prove if he didn't do it who did, but it's to throw up potential candidates…' (3 October 2011, ts 27).
(c)The appellant last spoke to Ms Oroz in 2006 (ts 27). He did not have her telephone number at the time that the calls were allegedly made from the Phone (ts 32) and he was not in contact with Mr Celan at that time (ts 32).
(d)There was nothing that was obviously illogical about the evidence concerning the loss of the Phone or its subsequent use. Further, the inconsistencies in the evidence alleged by the appellant were not compelling when considered against the circumstantial evidence on which the prosecution relied. For example, it was to be inferred that Ms and Mr Krupic considered that the appellant was the author of the texts and the person who was making the calls since they were sent and made after Ms Krupic had obtained a restraining order against the appellant.
The case against the appellant was, in my view, a strong circumstantial case. Ms Krupic had obtained a restraining order against the appellant; the text messages and calls were made from the Phone; Mr Coleman had lost the Phone; the Phone was found in the taxi driven by the appellant; there was no connection between the Krupics and the other driver of the taxi, Mr Muhmed (and there was no basis on which Mr Massey could have cross-examined Mr Muhmed to suggest that he was implicated); the Phone had also been used to call persons who were known to the appellant; exhibit 1 disclosed that the Phone had been used to telephone Ms Krupic approximately three minutes before the taxi was searched and there was no basis for contending that the phone records for the Phone and for the mobile phones used by Ms and Mr Krupic were inaccurate. It was open to the learned magistrate to find that the text messages were written in a form of Serbian that could have been adopted by the appellant to disguise the identity of the sender.
Most of the circumstances relied on by the prosecution to establish the appellant's guilt were not in dispute or could not be credibly challenged. It was open to his Honour to find the charges established the guilt of the appellant beyond reasonable doubt when the whole of the circumstances relied on and proved by the prosecution were considered. Although Mr Massey floated the possibility that Ms Oroz was implicated in some way - through a connection with the police - there was, in my view, no proper foundation for maintaining that she had orchestrated the appellant's arrest and prosecution. Accordingly, I do not consider that Mr Massey acted improperly or unreasonably or negligently in conducting the appellant's defence or that there was any step that he could or should have taken that would have affected the outcome. Mr Massey did endeavour to act according to the appellant's instructions; any deviation from those instructions reflected a forensic decision that was reasonably made having regard to the evidence adduced by the prosecution.
I do not consider that there was a miscarriage of justice caused by the manner in which the appellant's defence was conducted. Accordingly, the appeal is dismissed.
0
3
1