Milenkovski v The State of Western Australia
[2004] WASCA 85
•30 APRIL 2004
MILENKOVSKI -v- THE STATE OF WESTERN AUSTRALIA [2004] WASCA 85
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 85 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:199/2003 | 8 APRIL 2004 | |
| Coram: | MURRAY J WHEELER J MILLER J | 30/04/04 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | KIRO MILENKOVSKI THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Attempt to possess prohibited drug Whether open to jury to conclude that appellant did an act more than merely preparatory to commission of offence Error of trial Judge on question of fact Whether verdict of conviction unreasonable Turns on own facts |
Legislation: | Nil |
Case References: | Brennan v The King (1936) 55 CLR 253 Davey v Lee [1968] 1 QB 366 DPP v Stonehouse [1978] AC 55 R v Eagleton (1855) Dears CC 515 Reynolds v Grealish, unreported; SCt of WA; Library No 0733; 28 October 1988 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : MILENKOVSKI -v- THE STATE OF WESTERN AUSTRALIA [2004] WASCA 85 CORAM : MURRAY J
- WHEELER J
MILLER J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : NISBET DCJ
File Number : IND 657 of 2002
Catchwords:
Criminal law - Attempt to possess prohibited drug - Whether open to jury to conclude that appellant did an act more than merely preparatory to commission
(Page 2)
of offence - Error of trial Judge on question of fact - Whether verdict of conviction unreasonable - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S A Shireffs SC
Respondent : Mr B Fiannaca
Solicitors:
Appellant : Laurie Levy & Associates
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Brennan v The King (1936) 55 CLR 253
Davey v Lee [1968] 1 QB 366
DPP v Stonehouse [1978] AC 55
R v Eagleton (1855) Dears CC 515
Reynolds v Grealish, unreported; SCt of WA; Library No 0733; 28 October 1988
Case(s) also cited:
Nil
(Page 3)
1 MURRAY J: I respectfully agree with Wheeler and Miller JJ. The appeal should be dismissed.
2 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Miller J. I agree with them, and would add only one observation in relation to ground 2. Before us, the State contended that it was open to the jury to form the view that when the appellant offered to pick up Kiraly, he already knew (or supposed) that Kiraly had methylamphetamine for him. That was said to be an inference open, having regard to the context and the whole content of the telephone conversation in which the offer was made. While this inference was not expressly contended for in the prosecution's closing submission, it was said to be an inference which that submission left open. I agree that a jury might consider, having regard to the context, that the reference to the "speedboat" was confirmatory of an assumption which the appellant may have made. On that view, his Honour's only error lay in attributing to the prosecution a submission open on the evidence but not expressly made by the prosecution. I would dismiss the appeal.
3 MILLER J: The appellant was indicted in the District Court at Perth on an indictment which alleged two counts. The first was an allegation of conspiracy to supply a prohibited drug to another and the second, an allegation that on 3 April 2001 at Perth, the appellant attempted to possess a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to the provisions of s 61(a) and s 33(1) of the Misuse of Drugs Act 1981 (WA). The appellant was acquitted of the first count on the indictment but convicted of the second.
Appeal
4 The appellant appeals against his conviction for attempting to possess a prohibited drug with intent to sell or supply it to another on two grounds. The first ground, absent some particulars, is in the following terms:
"1. The jury's verdict of guilty is unreasonable or cannot be supported having regard to the evidence.
Particulars
It was not open for the jury to conclude that the Applicant (sic) did an act that was more than merely preparatory to
(Page 4)
- the commission of the offence of possession of a prohibited drug with intent to sell or supply to another."
5 The second ground, leave which was granted at the hearing of the appeal, is in the following terms:
"2. The trial miscarried as a result of the erroneous summing up by the learned trial Judge of the evidence relied upon by the Prosecution in proof of count two on the indictment.
PARTICULARS
The learned trial judge mistakenly informed the jury that the conversation between the applicant and Darren Hafner, as relied on by the prosecution, revealed that when the applicant 'offers to pick up Kiraly [the courier] he is doing so in the knowledge that he is picking up his courier who has got his methylamphetamine."
6 There are "further and better particulars" which have been given in relation to the first ground of appeal, which set out the appellant's argument as to why it was not open to the jury to conclude that the appellant had done an act more than merely preparatory to the commission of the offence.
The facts
7 The facts upon which the Crown relied are conveniently summarised in the outline of argument filed on behalf of the appellant. The appellant's arrest followed a police operation during which telephone calls of one Hafner were monitored during the months of February, March and April 2001. Hafner lived in Melbourne and was a supplier of drugs to persons in Perth. According to the calls, he agreed to supply one Cardile in Perth with heroin. He also had an association with the appellant. It involved supplying the appellant in Perth with motor vehicles, as well as ecstasy and/or methylamphetamine.
8 There were a number of telephone calls from Hafner to the appellant which were intercepted. In those calls, Hafner and the appellant used a code to refer to various drugs. Methylamphetamine was referred to as "speedboat", whilst ecstasy had a number of descriptions, including "little ones".
(Page 5)
9 It was clearly established from the intercepted telephone calls that Hafner utilised the services of the appellant to deal with Cardile. The appellant deposited at Hafner's request varying amounts of cash into different bank accounts. That cash had been provided to the appellant by Cardile.
10 In a critical telephone call on 3 April 2001, Hafner informed the appellant that the courier for a deal with Cardile would be arriving at Perth airport that night. In response the appellant asked Hafner "Do you want me to grab him or are you going to be all right?". To this, Hafner responded, "If you want to grab him you can grab him". The appellant then said "Yeah" and Hafner responded, "I've got a speedboat for you".
11 This telephone call was critical because it raised the question whether the appellant went to Perth airport on the night of 3 April 2001 with the intention of attempting to possess methylamphetamine with intent to sell or supply, or whether he went there merely for the purpose of collecting the courier without any intention on his part to take possession or attempt to take possession of any methylamphetamine.
12 On the evening of 3 April 2001 the courier arrived in Perth. His name was Kiraly. He was intercepted by police and searched and he was found to be carrying two packages, one of which contained heroin and another (a smaller packet) powder containing methylamphetamine. Kiraly agreed to cooperate with police. He was fitted with a tape recording device and two substitute packages, the smaller of which (the methylamphetamine substitute) was in his jeans pocket.
13 Kiraly was met at the front of the Perth airport terminal by the appellant and driven away. At about 12.13 am on 4 April 2001, the appellant and Kiraly were apprehended by police at a Caltex service station in Morley, at which time the substitute packages were still in the possession of Kiraly. The appellant was arrested and later charged with the offences the subject of the indictment.
The prosecution case
14 The prosecution case on count 2 on the indictment was put by the Crown prosecutor prior to the commencement of the trial in this way:
"DIXON, MR: Your Honour, the crown case in respect of count 2 will be that the offence commenced at the point in time when the accused left wherever he was to go to the airport to pick up Kiraly. The crown would say that count 2 is a
(Page 6)
- continuing offence. It continued after the accused left the Perth Airport, right up until the accused was apprehended at Morley. The crown case will be that the accused was driving Kiraly to some other location but he got intercepted at Morley before he arrived at that location.
The position I take, your Honour, is that it is a state offence but in the sequential course of committing that offence, there was a portion of time when the accused was on a Commonwealth place but it still is a state offence."
15 In further exchange between defence counsel and the trial Judge, it was made clear that the prosecution contended that the offence committed by the appellant was a State offence, which started at a place outside a Commonwealth place and ended up at a place also outside a Commonwealth place. It was said that if during the course of the journey from one to the other the attempt happened to traverse a Commonwealth place, it still remained a State offence.
16 When the prosecutor came to open the Crown case to the jury, in relation to count 2 he said:
"The crown case in its essence is that the accused attempted to possess the 21.1 grams of methylamphetamine that Kiraly was found in possession of when police apprehended him at the airport. Now, in a call between Hafner and the accused on 3 April, which was the day that Kiraly arrived later that day - Kiraly arrived just before midnight on 3 April 2001 - in this call between Hafner and the accused it is clear that they were discussing the arrival of Kiraly to Perth. Hafner tells the accused that he has a speedboat for the accused. This, the prosecution say, is a reference to methylamphetamine.
The crown case is that although the heroin in Kiraly's possession was for Cardile, the methylamphetamine was for the accused. The crown say that the accused committed this offence when he started to drive to the airport to pick up Kiraly, it continued when he drove from the airport with Kiraly intending to drive to another destination with Kiraly, and he never actually came into possession, the crown would say, because the police apprehended the accused in the suburb of Morley at the service station. But, the crown say, the accused
(Page 7)
- attempted to possess the methylamphetamine by going to the airport, driving away from the airport with Kiraly."
17 At the conclusion of the prosecution case, counsel for the appellant submitted there was no case to answer on count 2 on the indictment because the evidence was incapable of establishing that the appellant's conduct was more than merely preparatory to the commission of the offence. This submission was rejected.
Grounds of appeal
Ground 1- Was it open to the jury to conclude that the appellant did an act more than merely preparatory to the commission of the offence?
18 At the hearing of the appeal counsel for the appellant suggested that s 4 of the Criminal Code1913 (WA) ("the Code") reflects the common law. Section 4 (so far as is relevant) is in the following terms:
"When a person, intending to commit an offence, begins to put his intention into execution by doing an act that is more than merely preparatory to the commission of the offence but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence."
19 Section 4 of the Code was amended by Act No 106 of 1987 (s 5). It had previously read as follows:
"When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is said to commit the offence."
20 The provisions of the Code are not to be interpreted by reference to the pre-existing law. Reference may, of course, be made to that law where the Code contains provisions of doubtful import or uses language which has acquired a technical meaning, but it has been said that it is erroneous to approach the Code with the presumption that it was intended to do no more than restate the existing law: Brennan v The King (1936) 55 CLR 253 at 263.
21 In dealing with the earlier section in Reynolds v Grealish, unreported; SCt of WA; Library No 0733; 28 October 1988, Walsh J appears to have taken the view that common law authorities governed the
(Page 8)
- meaning of the section as it then stood. His Honour (at pages 9 - 12) made reference to a number of English authorities upon which counsel for the appellant relied. They included Davey v Lee [1968] 1 QB 366 and DPP v Stonehouse [1978] AC 55. In each of those cases the formulation of Parke B in R v Eagleton (1855) Dears CC 515 at 518, that acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are, was adopted.
22 In my view, nothing turns on whether or not s 4 of the Code, as it was before 1988 or as it is now, reflects the common law position. The words of the Code are clear. An attempt to commit an offence is established if it is proven that the offender (a) had an intention to commit an offence; (b) began to put that intention into execution by doing an act that is more than merely preparatory to the commission of the offence, and (c) did not fulfil his intention to the extent of committing the offence.
23 It can be accepted that the acts relied on as constituting the attempt must be proximate to the commission of the offence, that is, immediately and not remotely connected with the completed offence. Perhaps it can also be accepted (as Lord Diplock put it in DPP v Stonehouse) that the offender "must have crossed the Rubicon and burnt his boats," but in the end it is a question of fact whether the offender had an intention to commit the offence, began to put that intention into execution by doing an act more than merely preparatory to the commission of the offence, and did not fulfil his intention to the extent of committing the offence.
24 In the present case, counsel for the appellant submits that the prosecution case put at its highest, failed to establish that the appellant had done an act more than merely preparatory to the commission of the offence alleged. The primary reasons for that submission were that the appellant had offered to collect the courier from Perth airport before Hafner had said anything to him about a "speedboat" and in driving to the airport to collect the courier without more, the appellant had not made an attempt to commit the offence alleged.
25 Attention was focused by counsel for the appellant upon a number of telephone calls between Hafner and the applicant, the details of which it is unnecessary to set out. It is sufficient to note that there was a history of drug dealing between Hafner and the appellant and undoubtedly the appellant was performing a role for Hafner by depositing moneys at his request into different bank accounts.
(Page 9)
26 The call of 3 April 2001 was made at 1319 hours EST and it first made reference to a bank account and a deposit of certain moneys. The important passage from the prosecution point of view was the following:
"HAFNER And my mate will be, um, probably picking you up, or I'll tell you what time roughly. It'll be 7.30, I think.
MILENKOVSKI Yeah. Did you want me to grab him, or are you going to be right?
HAFNER Oh, it's up to you, if you want to grab him, you can grab him. Like, all he had to do -- yeah, I'll tell you later, but he had to do fuck-all --
MILENKOVSKI Yeah.
HAFNER -- but, um, I've got a speed boat for you. That's no worries.
MILENKOVSKI Yeah.
HAFNER And I'm just waiting for Montana to pop around.
MILENKOVSKI All right. No worries. So -- But that's just -- we're going to keep it for a couple of days, eh, and then wait on another guy, eh?
HAFNER Yeah, yeah, like I'm going to see him this afternoon --
MILENKOVSKI Yeah.
HAFNER -- and, um, yeah, I'll know for sure then, too, you know when --
MILENKOVSKI Yeah.
HAFNER -- … (indistinct) …
MILENKOVSKI So you'll know how we're going to go for Friday, anyway, because that's my big day, you know what I mean?
(Page 10)
- HAFNER Yeah, yeah, no worries.
MILENKOVSKI All right. No worries, champ. Well, I'll get this done now, all right? I've just got someone tinting the windows here for the next hour or so and then I'm going to go straightaway, all right?"
27 Counsel for the appellant contended that it was not open for the jury to infer from Hafner's words "I've got a speedboat for you" that the courier would be arriving with a speedboat. This submission was put because during the balance of the conversation between Hafner and the appellant there was reference to motor vehicles and the arrival in Perth of a motor vehicle on the following Friday.
28 Counsel for the respondent contended that the conversation when analysed in its entirety, left it readily open to the jury to conclude that the appellant knew that the courier was travelling to Perth with methylamphetamine (for which "speedboat" is a code name) and that the appellant intended to eventually gain possession of that drug from the courier. Counsel for the respondent submitted that use of the words "I've got a speedboat for you" after the appellant had actually offered to collect the courier from the airport, was irrelevant and that it was clear from the conversation that Hafner was complaining about the conduct of the courier, not that the courier would be bringing a speedboat for the appellant. It was submitted that if anything, the words "I've got a speedboat for you" meant that Hafner himself had the "speedboat" for the appellant.
29 In my view, it was clearly open to the jury to conclude that the appellant travelled to the airport to collect the courier for the purpose (inter alia) of obtaining from him at some time after he had been picked up, a quantity of methylamphetamine which he knew the courier had in his possession, notwithstanding the fact that Hafner mentioned that he had a "speedboat" for the appellant after the appellant had offered to collect the courier. I consider it to be an artificial analysis of the conversation to suggest that the only interpretation open is that the appellant had made up his mind to go to the airport to collect the courier for reasons other than to obtain methylamphetamine from him, and that being told by Hafner that he had a speedboat for him had nothing to do whatever with the possession by the courier of methylamphetamine, that being a drug which the appellant, on all of the evidence, had in the past been dealing with.
(Page 11)
30 The fact that the appellant, having collected the courier, said nothing to him prior to the police interception of the car about methylamphetamine and/or had made no attempt to take possession of it, does not, in my view, take away from the fact that it was open to the jury to conclude (from the conversation between Hafner and the appellant) that the appellant went to the airport to collect the courier for the purpose of obtaining methylamphetamine . As it happened, the offence of obtaining possession of the drug did not occur, but, in my view, it was open to the jury to conclude that in doing what he did the appellant had an intention to commit the offence of obtaining possession with intent to sell or supply and had begun to put that intention into execution by doing an act more than merely preparatory to the commission of the offence, although he did not fulfil his intention to the extent of committing it. I can therefore see no substance in ground 1 of the grounds of appeal.
Ground 2 - The learned trial Judge's direction on the words used in the conversation
31 This ground contends that the learned trial Judge made a serious error in recounting the text of the critical conversation between Hafner and the appellant. The passage which is complained of is as follows:
"What is it then that the prosecution says constitutes this count of attempt? What takes it out of mere preparation to get possession and what takes it into the country of an attempt to possess? The prosecution says that the telephone calls clearly evince an interest in methylamphetamine. They clearly evince a desire to get methylamphetamine. They evince on the prosecution case not just a promise but a statement by Hafner that he is sending him methylamphetamine and that he is sending it with his courier Kiraly who is arriving or leaving at about 7.30 their time to travel to Perth by plane.
When Milenkovski, the accused, offers to pick up Kiraly he is doing so in the knowledge that he is picking up his courier who has got his methylamphetamine for him. That's the prosecution case." (Emphasis added)
32 It was not the prosecution case that it could be said from the telephone call that the appellant, when he offered to pick up the courier, was doing so in the knowledge that he was picking up the courier who had methylamphetamine for him. The learned trial Judge's interpretation of the conversation presupposes that Hafner had said that he had the speedboat for the appellant prior to the appellant deciding to collect the
(Page 12)
- courier. In fact, as I have indicated, it is true that the appellant first offered to collect the courier and was then told by Hafner that he had a speedboat for him. As I have concluded, it was open to the jury to conclude from all of this that the appellant nevertheless went to the airport to collect the courier in the knowledge that he had methylamphetamine and with the intention of obtaining possession of it.
33 The learned trial Judge was asked to correct the way in which he had put it, but declined to do so. However, I am unable to conclude that the error in the way in which the learned trial Judge put the content of the call in this passage was such an error as to constitute a miscarriage of justice, calling for the conviction of the appellant to be set aside. Immediately before making this observation, the learned trial Judge had set out in full the relevant portion of the conversation and, of course, the jury had the tape and a transcript of the tape to assist it in its deliberations. In my opinion, the blemish, being the only blemish upon which counsel for the appellant relied, could not be said to be such as to constitute an error which gave rise to a miscarriage of justice. I would therefore reject the second ground of appeal.
34 It follows that, in my view, neither ground of appeal has substance and I would dismiss the appeal.
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