Mikulic v The State of Western Australia
[2011] WASCA 14
•18 JANUARY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MIKULIC -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 14
CORAM: McLURE P
BUSS JA
MAZZA J
HEARD: 21 DECEMBER 2010
DELIVERED : 18 JANUARY 2011
FILE NO/S: CACR 156 of 2009
BETWEEN: TONY MIKULIC
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :WISBEY DCJ
File No :IND 250 of 2008
Catchwords:
Criminal law - Appeal against conviction - Challenge to interlocutory decision upholding claim of public interest immunity after subsequent plea of guilty - Whether a miscarriage of justice - Turns on own facts
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: No appearance
Solicitors:
Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Borsa v The Queen [2003] WASCA 254
Davies v The State of Western Australia [2005] WASCA 47
Hogue v The State of Western Australia [2005] WASCA 102
Maxwell v The Queen (1996) 184 CLR 501
R v Day [2002] SASC 95
R v Vasic (2005) 11 VR 380
McLURE P: The appellant applies for leave to appeal against his conviction on his own plea of guilty of:
(a)on 27 June 2007 at Eucla, attempting to possess MDMA (8.832 kg) with intent to sell or supply it to another (count 2);
(b)on 27 June 2007 at Eucla, attempting to possess methylamphetamine (3.108 kg at a purity of between 23% ‑ 26%) with intent to sell or supply it to another (count 4);
(c)on or about 27 June 2007 at Connolly, possessing MDMA (1.23 kg) with intent to sell or supply it to another (count 5);
(d)on or about 27 June 2007 at Connolly, possessing MDMA (1.921 kg) with intent to sell or supply it to another (count 6);
(e)on or about 27 June 2007 at Connolly, possessing cocaine (19.15 g at a purity of between 76% ‑ 80%) with intent to sell or supply it to another (count 7);
(f)on or about 27 June 2007 at Connolly, possessing methylamphetamine (2.07 g at 26% ‑ 27% purity) with intent to sell or supply it another (count 8);
(g)on or about 29 June 2007 at Lancelin, possessing MDMA (8.59 g) with intent to sell or supply it to another (count 9);
(h)on or about 29 June 2007 at Lancelin, possessing methylamphetamine (2.98 g at 25% purity) with intent to sell or supply it to another (count 10).
The counts were the subject of Indictment 250 of 2008 (the Indictment). They alleged a breach of s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). As to the scope of the offence, see Davies v The State of Western Australia [2005] WASCA 47.
Counts 2 and 4 relate to drugs in the possession of the appellant's brother, Charlie Mikulic, who was in a vehicle being driven by a Glenn Olston. The drugs were located after the vehicle was stopped and searched by police at Eucla on 27 June 2007. The drugs were hidden in a steel tube which had to be cut open. Olston had driven the vehicle to Sydney with a very large quantity of cash hidden in the steel tube which cash was used to purchase the drugs located by police on the return journey to Perth.
After the police located the drugs at Eucla, police searched the appellant's residence in Connolly where the drugs the subject of count 5 were found. Police also found note books detailing drug names, measurements and notations consistent with drug prices and more than $30,000 in cash.
On 25 July 2007, a member of the public found a brown handbag in bushland near the edge of the Joondalup Golf Course. This location was 7 m or 8 m from the rear fence of the appellant's residence in Connolly. The handbag contained the drugs the subject of counts 6, 7 and 8.
On 29 June 2007, police searched a property in Lancelin owned by the appellant. Police located the drugs the subject of counts 9 and 10 at that address. Police also located a heat sealing machine, digital scales, note books and various papers detailing drug weights and transactions. Police also located fire arms and steel tubes similar to that found in the vehicle searched in Eucla.
In June 2007, members of the Organised Crime Squad commenced Operation Cadiz. That operation was directed at events surrounding the collection, purchase and transport of the drugs the subject of counts 2 and 4. Counts 2 and 4 were added at the commencement of the trial and were in the alternative to counts 1 and 3 which charged that on 27 June 2007 at Eucla, the appellant (and his wife) possessed the relevant drugs with intent to sell or supply. The appellant and his wife initially pleaded not guilty to all charges.
In March 2009, the appellant's wife made an application under s 97 of the Criminal Procedure Act 2004 (WA) for disclosure of specified documents. The application was supported by an affidavit sworn by her lawyer, David Walls. The affidavit discloses that on 26 February 2009, he served a witness summons seeking documents from the Commissioner of Police. A number of documents were disclosed, some of which were edited (redacted). Further, Mr Walls foreshadowed in his affidavit that Mrs Mikulic's defence would substantially hinge on the jury's assessment of the character and credibility of a State witness, Mr Stephen Andrijasevich.
At a directions hearing before Martino DCJ on 7 April 2009, Mrs Mikulic and the appellant sought disclosure of 12 categories of documents. They were:
(i)unedited running sheets (actually titled 'information reports');
(ii)unedited briefing notes;
(iii)any notes, information or documents created prior to 4.00 pm on 12 June 2007 (the first running sheet entry);
(iv)research notes;
(v)IDM requests for information;
(vi)information from special projects;
(vii)monthly situation reports;
(viii)intelligence reports including 2007 to 28608;
(ix)unedited copies of all journal entries by Detectives West and Hitchinson;
(x)further surveillance reports including 'airport surveillance';
(xi)handwritten statement of Mr Andrijasevich;
(xii)fingerprint results referred to in information report entry on 30 August 2007.
A review of the transcript of the directions hearing shows that there were no research notes (ts 19), that the information from special projects had been disclosed (ts 20), that the claims the subject of items (viii), (ix), (x), (xi) and (xii) fell away and were not pursued for various reasons (see ts 10 and 17). At the conclusion of the hearing on 7 April 2009, the primary judge ordered the disclosure of item (vii), the monthly situation reports and dismissed the balance of the application. The primary judge upheld the claim made on behalf of the Commissioner of Police for public interest immunity only in relation to items (i), (ii) and (iii). He had inspected the documents, the subject of those claims and ruled as follows:
(i)Unedited running sheets: An unedited running sheet was included in the confidential material provided to me. I am satisfied that to disclose the material would disclose sensitive police information and that public interest immunity does apply. I am satisfied that the public interest in not disclosing the information requires the material not to be disclosed to the defence legal practitioners even on the condition that they keep it confidential.
…
(ii)Unedited briefing notes. An unedited briefing note was included in the confidential material provided to me. I am satisfied that to disclose the material would disclose sensitive police information, that public interest immunity applies and that it cannot be disclosed to the accused or even to their lawyers on condition that it be kept confidential.
(iii)Any notes, information or documents created prior to 4 pm on 12 June 2007, the first running sheet entry. Some material in an edited form as to investigations prior to June 2007 is contained in the summary contained in the briefing note that has been disclosed. What Ms Mikulic seeks in this item is very broadly described.
I am not satisfied that there was a legitimate forensic interest in the disclosure of any further documentation. And further, in relation to the material that is contained in the summary in the briefing notes to which I have referred, I am satisfied that public interest immunity applies to it and that extends even to disclosure to legal practitioners on condition that it be kept confidential.
There was no application on behalf of the appellant (or his wife) for any stay of proceedings arising from the decision of Martino DCJ. The trial of the appellant and his wife commenced on 11 May 2009. The State indicated in opening that '[i]n the course of this trial, you'll hear evidence from Stephen Andrijasevich about his history with the Mikulics' and his knowledge of their history of drug dealing' (ts 44).
After five days of trial and after hearing from 12 prosecution witnesses but before the State called Mr Andrijasevich, counsel for the appellant informed the trial judge that the State and the appellant had reached an understanding which was intended to be reflected in a memorandum of understanding pursuant to which the appellant would plead guilty to counts 2, 4 and 5 ‑ 10 (ts 225, 226). A memorandum of understanding dated 19 May 2009 was signed by each of the appellant, his counsel Mr Vickridge, counsel for the State and a police officer in respect of certain summary matters. The memorandum of understanding relevantly provides:
This Memorandum of Understanding is between The Director of Public Prosecutions (DPP), Tony Mikulic (TM) and Western Australia Police (WAP).
In respect of Perth District Court Indictment 250 of 2008, TM undertakes to:
(1)plead guilty to counts 2, 4, 5 ‑ 10;
(2)give the WAP a full and frank statement regarding the counts and any other ancillary matters of which he has knowledge;
(3)participate in a visually‑recorded interview in respect of the matters referred to in paragraph (2) including an agreement to give evidence in any trial arising from such matters; and
(4)plead guilty to the summary charges of possessing unlicensed firearms relating to the two rifles found in the tool box in the garage at Lancelin.
In respect of Perth District Court Indictment 250 of 2008, the DPP and WAP undertake:
(5)to accept the pleas of guilty of TM to counts 2, 4, 5 ‑ 10 in full and final satisfaction of the indictment;
(6)to accept the plea of guilty of TM to the charge of possession of firearms to which paragraph (4) refers in full and final satisfaction of all summary charges;
(7)to acknowledge that TM has entered pleas of guilty which has saved the State of Western Australia a three week trial which entitles TM to a discount of sentence;
(8)to agree that any terms of immediate imprisonment imposed should be back‑dated to the date of his arrest on 27 June 2007;
(9)that on receipt of any request for immunity from TM, the DPP will undertake to give consideration to same in accordance with the standard draft document as attached and marked 'A';
(10)that, subject to the content of the statement and visually recorded interview referred to in paragraphs (2) and (3), the DPP will advise the judge at the sentencing of TM, the police view on the cooperation which has been provided by TM; and
(11)acknowledge that the statements made by Stephen John Andrijasevich are in dispute.
On 19 May 2009, the appellant entered an unequivocal (and unconditional) plea of guilty to counts 2, 4, 5, 6, 7, 8, 9 and 10 on the Indictment. The trial judge entered judgments of conviction in respect of the nominated counts (ts 235).
Sentencing submissions were made to the trial (now sentencing) judge on 8 September 2009. The appellant was represented by new counsel, Mr S Rafferty. The State tendered the papers comprising the State brief and the evidence adduced at the trial.
The appellant disputed the State claim (which was based on inferences from the evidence adduced at trial) that he was the 'main man' in the criminal enterprise. The appellant's counsel stated that the appellant accepted criminal responsibility for the charges to which he had pleaded guilty on a particular factual basis which he claimed was open on the evidence, being in substance that it was Mr Andrijasevich's criminal enterprise not that of the appellant. Mr Rafferty went into considerable detail concerning the appellant's alleged role in the offences to which he pleaded guilty (the substance of which is described in the sentencing judge's reasons set out below).
The sentencing judge reserved his decision. On 11 September 2009 he informed the appellant's counsel of his tentative view that he would not accept the defence case theory and that if the appellant wished to pursue it, a trial of issues would be necessary (ts 2). In the absence of a trial of the issues the sentencing judge said he was able to determine the facts on the material before him (ts 4). There being no application for a trial of issues, the sentencing judge made findings of fact in respect of the individual offences. He continued:
On your behalf, Mr Mikulic, it's urged upon me the criminal enterprise was that of Mr Stephen Andrijasevich from start to finish. Your counsel pointed out that Operation Cadiz targeted two people, being yourself and Andrijasevich. He pointed out that the vehicle being used by Olston to transport the money to Sydney and to return with the drugs was registered to Andrijasevich. It was submitted that not only was the drug run Mr Andrijasevich's enterprise, but that all the drugs found at Connolly were his.
It is asserted that Mr Andrijasevich was responsible for placing the money into the steel beam for the trip to Sydney, although it is acknowledged that you were responsible for close welding it. It's said that you were in fear of Andrijasevich and intended to take possession of the drugs so that you could effectively blackmail him by saying, as your counsel put it, 'Well, you want your gear back, get out of our lives'. It was your intention to take possession of the drugs for that purpose alone and that there was no commercial intent.
Your counsel described that alleged plan as poorly conceived, but I would describe it as a fanciful concept, perhaps ludicrous. The explanation given on your behalf for the large sum of cash in your possession and for the extraordinarily large amount used for the previous purchase of a boat was that it came from legitimate commercial activity. That I entirely reject.
You are to be sentenced on the basis that you were actively involved in drug dealing at a high level, that you planned, financed and facilitated the acquisition and transportation of the drugs seized at Eucla, and it was your intention to take possession of those drugs if they had not been intercepted by the police, and that it was your intention to distribute them in the community to your considerable financial advantage.
In my view, that is the only conclusion that can be rationally be drawn from the material before the court. You possessed the drugs found at Connolly with the same intent and purpose. The telephone intercept product is eloquent of your involvement in drug dealing and inconsistent with the alleged state of your relationship with Andrijasevich. It is on that basis that you are to be sentenced (ts 12 ‑ 13).
Although the appellant has appealed against his sentence, we were informed by his counsel that the appellant makes no challenge to the factual findings made by the sentencing judge. I have examined the evidence adduced at trial, including the summary of intercepted telephone conversations between the appellant and third parties. The State case was overwhelming.
The grounds of appeal on which the appellant relies are as follows:
(1)The presiding judge erred both in law and fact, and there was a miscarriage of justice, when he denied a request by defence counsel for disclosure of material in the possession of the prosecution:
Particulars
(a)the appellant applied for disclosure of documents over which the State claimed public interest immunity ('PII') ('the documents');
(b)the documents were vital to the appellant's case;
(c)without the documents the appellant could not receive a fair trial;
(d)his Honour ruled PII attach to the documents [specially items (i), (ii) and (iii)] ('the ruling');
(e)his Honour should have permitted, at least, defence counsel with the opportunity to view the documents;
(f)his Honour, having ruled the documents could not be disclosed because they were the subject of PII, should have ordered a permanent stay of the proceedings;
(g)as a consequence of the ruling, the appellant entered pleas of guilty to certain offences he faced.
(2)The presiding judge erred both in law and fact, and there was a miscarriage of justice, when he denied a request by defence counsel for disclosure of six items in the possession of the prosecution, over which the State claimed public interest immunity ('the items'):
Particulars
(a)the appellant applied for disclosure of the items;
(b)his Honour determined no legitimate forensic purpose attached to the items ('the determination');
(c)the items were vital to the appellant's case;
(d)his Honour should have found the items had a legitimate forensic purpose and ordered disclosure to the defence;
(e)as a consequence of the determination, the appellant entered pleas of guilty to certain offences he faced.
The appellant relied on three affidavits, two sworn by himself dated 28 January 2010 and 11 March 2010 and one sworn by Peter Cassidy on 12 March 2010. Specific reliance was placed on pars 11 ‑ 16 of the appellant's affidavit of 28 January 2010 which are in the following terms:
11.In the time between DCJ Martino's refusal to allow disclosure of the PII material, even to my lawyer, and my trial commencing on 11 May 2009 it weighed heavily on my mind that I would not be able to mount a credible defence to establish that it was [Stephen] Andrijasevich and not me who was the relevant offender.
12.At the commencement of my trial my counsel, Mr Geoff Vickridge, was informed the charges on the Indictment would be amended by the DPP to attempted possession; which was done on the first day of trial.
13.At trial the State opened their case with reference to the evidence Mr Andrijasevich would give about the 'Mikulics and his knowledge of their history of drug dealing'.
14.I believe the police running sheets, that also formed part of the PII material, will show the police investigation was focussed on Stephen Andrijasevich. I believe the PII material will also reveal that Stephen Andrijasevich was the subject of two drug‑related search warrants executed at his home prior to my arrest and, in addition, will establish that he has previously been caught by the police with drugs on him and subsequently released. This information would have provided fertile ground for my counsel to cross‑examine him as to his involvement in the drugs the subject of the indictment and to his credibility generally.
15.While my trial was in progress I believe that, without my counsel having the benefit of being able to cross‑examine and/or summons witnesses based upon information contained in the PII material, my defence would be, and was, greatly hampered.
16.Specifically, I felt that if Stephen Andrijasevich gave evidence he would falsely testify on the basis opened by the prosecution and would either deny any involvement or state he was working on my behalf and at my request. Such statements could not have been effectively challenged by my counsel due to the non‑disclosure of the PII material. As a result of DCJ Martino's ruling, it appeared inevitable I would be convicted.
Mr Mikulic's second affidavit swears to matters said to be within his personal knowledge which relate to Mr Andrijasevich's involvement in drug dealing. Mr Cassidy's affidavit annexes a 'deposition' signed by a Craig Anthony Ugle dated 6 October 2008 relating to his engagement by Mr Andrijasevich in connection with Mr Andrijasevich's drug dealing activities.
No weight ought be given to the appellant's belief as to the content of the material the subject of the successful claim of public interest immunity. It must of its nature be speculative. Moreover, it appears from the affidavit evidence that the appellant and his advisers had information in their possession with which to challenge Mr Andrijasevich's credibility in cross‑examination (even if the appellant exercised his right not to adduce affirmative evidence in his defence).
It will not have escaped notice that the appellant is seeking to challenge the correctness of the interlocutory decision of Martino DCJ notwithstanding his subsequent plea of guilty to the counts in the indictment. The appeal can have no prospect of succeeding unless there are proper grounds for setting aside the convictions which are based on pleas of guilty. A plea of guilty constitutes an admission of all the essential elements of an offence: Maxwell v The Queen (1996) 184 CLR 501, 510.
It is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. The appellant must show that there has been a miscarriage of justice. The three well recognised circumstances (albeit not exhaustive) that will amount to a miscarriage of justice and result in a plea of guilty being set aside are (1) where the appellant did not understand the nature of the charge, or did not intend to admit guilt; (2) where upon the admitted facts, the appellant could not in law have been guilty of the offence; (3) where the guilty plea has been obtained by improper inducement, fraud or intimidation and the like: Hogue v The State of Western Australia [2005] WASCA 102 [22]; Borsa v The Queen [2003] WASCA 254 [20] (Steytler J). The appellant does not bring himself within any of the established categories.
It has also been said that if an accused enters a plea of guilty, as a result of acting on an erroneous ruling of law from the trial judge that a proposed defence must fail, that would constitute exceptional circumstances justifying the court not holding the accused to the plea of guilty: R v Vasic (2005) 11 VR 380.
The practice of an accused pleading guilty but reserving his or her right to appeal against conviction following an unfavourable ruling on a voir dire (relating to the admissibility of out of court admissions) was disapproved by the South Australian Court of Criminal Appeal in R v Day [2002] SASC 95 [40], [74]. No such practice (of reserving a right of appeal against a conviction entered as a result of a plea of guilty) exists in this jurisdiction.
The objective facts compel the following conclusions. The evidence adduced by the State at the appellant's trial, particularly the telephone intercept evidence, presented a very strong case against the appellant. That was so even without the evidence of Mr Andrijasevich who had not been called by the State when the appellant entered his pleas of guilty.
The strength of the State case would have been clear to the appellant's counsel, who was an experienced criminal trial lawyer. Counsel would have advised his client accordingly. An assessment of the strength of the defence would also have been undertaken and the appellant advised as to the prospects of guilty verdicts after trial. The decision was then taken to attempt to secure advantages to the appellant by pleading guilty before there were jury verdicts to that effect. A formal memorandum of understanding was negotiated with the State and was signed by the appellant personally. The appellant was able to secure very significant advantages, as is evident from the terms of the memorandum of understanding.
Crucially, in making his decision on whether to plead guilty, the appellant had access to all relevant information required for his legal advisers to determine and advise him as to whether or not he was guilty of the offences to which he subsequently pleaded guilty. Any information which was protected by public interest immunity could only ever potentially impact on tactical forensic matters affecting the prospects of
the appellant being able to cast doubt on the State case in a trial before a jury. The option of challenging Martino DCJ's interlocutory decision on public interest immunity to see if there was indeed any material which might have been used to the appellant's forensic advantage in a trial is completely and irreversibly foreclosed to the appellant as a result of his informed decision to plead guilty and secure the negotiated advantages. Against that factual background, there can be no arguable claim of any miscarriage of justice.
The appellant has failed to demonstrate that he has any reasonable prospect of setting aside the convictions based on his own plea of guilty. Accordingly, the grounds of appeal have no reasonable prospect of succeeding. Leave to appeal should be refused and the appeal dismissed.
BUSS JA: I agree with McLure P.
MAZZA J: I agree with McLure P.
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