Niculescu v The Queen
[2004] WASCA 126
•11 JUNE 2004
NICULESCU -v- THE QUEEN [2004] WASCA 126
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 126 | |
| COURT OF CRIMINAL APPEAL | 11/06/2004 | ||
| Case No: | CCA:141/2003 | 17 FEBRUARY 2004 | |
| Coram: | WHEELER J MCKECHNIE J EM HEENAN J | 17/02/04 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | DIONISIE NICULESCU THE QUEEN SAMUEL GHINEA |
Catchwords: | Criminal law and procedure Appeal against conviction Lies direction Turns on own facts |
Legislation: | Nil |
Case References: | Edwards v The Queen (1993) 178 CLR 193 Mule v The Queen [2004] WASCA 7 Zoneff v The Queen (2000) 200 CLR 234 Davis v The Queen (1991) 5 WAR 269 Giorgianni v The Queen (1985) 156 CLR 473 Houghton v The Queen [2004] WASCA 20 Maniaci v The Queen [2000] WASCA 195 Narkle v The Queen [2003] WASCA 233 R v Grein [1989] WAR 178 Winmar v The Queen [2001] WASCA 239 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : NICULESCU -v- THE QUEEN [2004] WASCA 126 CORAM : WHEELER J
- MCKECHNIE J
EM HEENAN J
- Appellant
AND
THE QUEEN
Respondent
- Appellant
AND
THE QUEEN
Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : FENBURY DCJ
File Number : IND 1827 of 2001
Catchwords:
Criminal law and procedure - Appeal against conviction - Lies direction - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed
Category: B
Representation:
CCA 141 of 2003
Counsel:
Appellant : Mr J J Scudds
Respondent : Mr R E Cock QC & Ms S E Wisbey
Solicitors:
Appellant : Porter Scudds
Respondent : State Director of Public Prosecutions
(Page 3)
CCA 143 of 2003
Counsel:
Appellant : Mr D Grace QC
Respondent : Mr R E Cock QC & Ms S E Wisbey
Solicitors:
Appellant : Cannon Bowden & Co
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Edwards v The Queen (1993) 178 CLR 193
Mule v The Queen [2004] WASCA 7
Zoneff v The Queen (2000) 200 CLR 234
Case(s) also cited:
Davis v The Queen (1991) 5 WAR 269
Giorgianni v The Queen (1985) 156 CLR 473
Houghton v The Queen [2004] WASCA 20
Maniaci v The Queen [2000] WASCA 195
Narkle v The Queen [2003] WASCA 233
R v Grein [1989] WAR 178
Winmar v The Queen [2001] WASCA 239
(Page 4)
1 WHEELER J: On 17 February 2004 this Court allowed the appeals of both Niculescu and Ghinea against their convictions in respect of one count of possession of heroin with intent to sell or supply. The Court ordered that the appellants be retried in relation to that indictment. These are my reasons for allowing the appeals.
2 The Crown case was that in November 2000 one Popa flew to Perth from Sydney carrying a black sports type bag. When he walked out of the airport terminal into the car park he was observed to make some calls on a mobile telephone and was observed to enter a vehicle driven by Niculescu. About 10 minutes after the vehicle had collected Popa it was stopped by police who then searched the black bag carried by Popa and found two blocks wrapped in packing tape containing altogether approximately 1 kilogram of heroin. The police also found $1,400 in $50 notes on Niculescu. When interviewed, he said that $1,000 was to pay for Popa's return flight to Sydney, Popa being due to leave on a return flight at about 11.30 that night (only a short time after he had arrived).
3 So far as Ghinea was concerned, it was alleged that he and his girlfriend had travelled to Perth on the previous day, staying at a hotel in Perth. Police searched his hotel room and found in his possession a mobile phone and other mobile phone SIM cards, each representing a different telephone number and each subscribed for in the names of different persons. Police relied upon interceptions of telephone calls made by Ghinea using one of those sim cards and interceptions of Popa's mobile telephone. It was submitted that, from the conversations intercepted, inferences could be drawn about Ghinea's involvement in an enterprise with Niculescu and Popa to bring the heroin to Perth. The telephone intercepts do not, of course, use the word "heroin", and the Crown case was that the jury should understand them in a particular way.
4 Ghinea and Niculescu each participated in videotaped records of interview. They made certain admissions but also gave explanations for what might otherwise have been seen as circumstances pointing to their guilt of the offence charged.
5 The appellants did not give evidence at their trial. The defence case was essentially that: first, the Crown case taken at its highest could not lead to a finding of guilt beyond reasonable doubt; and further, that certain exculpatory statements made by the accused during the course of their videotaped records of interview should be accepted by the jury as pointing to inferences incompatible with their guilt.
(Page 5)
6 There are two grounds of appeal common to each appellant. In relation to the exculpatory statements, the appellants submit that his Honour erroneously directed the jury as to the weight to be given to those portions of the videotaped records of interview. They accept that so far as this Court is concerned, that issue is determined against them by the decision of Mule v The Queen [2004] WASCA 7. However, it appears that Mr Mule has sought special leave to appeal against that decision, so that the ground was raised as a way of keeping that issue live for these appellants.
7 Because the Court was unanimously of the view that the appellants' appeal should be upheld on the basis of the other ground common to them, it is not in the end necessary for them to rely upon the Mule point. That other ground concerns his Honour's direction to the jury in relation to possible lies told by each of the appellants.
8 During the closing address the prosecutor had suggested that at a number of points during their videotaped records of interview, the appellants had been "less than frank" with the police, particularly about their knowledge of each other and their knowledge of Mr Popa. So far as Ghinea was concerned, there was a suggestion that his explanation as to the way in which he had come by the SIM cards left something to be desired. Those were submissions which it was proper to make, and which the jury would have been entitled to consider. Since the appellants relied upon the exculpatory statements made by them during those interviews, a suggestion that they had been less than frank, or that they had been untruthful, at various points in those interviews, would be something the jury could consider in deciding whether to accept any, and if so which, of the exculpatory statements.
9 However, the prosecutor did not rely upon anything said by either man as being a lie capable of demonstrating a consciousness of guilt. Indeed, it was quite properly conceded before us that there was no lie of that kind in issue in this case. Unfortunately, his Honour gave the jury the following direction:
"I mention that the prosecution argues that the videos show each accused was less than frank with police, even lied to police, when answers are compared with the telephone intercepts and the prosecution says that this shows a consciousness of guilt.
I won't detail this material because you can look at it yourself but I refer, for example, to Mr Niculescu's answers to police at
(Page 6)
- the roadside about knowing and picking up Popa. With respect to Mr Ghinea I refer, for example, to answers he gave about the names in which SIM cards were required. You can see for yourselves when you look at the videos and look at the telephone intercept evidence.
Before evidence of that kind which, according to the prosecution, shows consciousness of guilt can be used in the way urged, four conditions must be met before you can use the evidence in that way. Firstly, in relation to the telling of a lie, for example, you need to be convinced beyond reasonable doubt that it was indeed a lie, that is, that the material was indeed a lie, was indeed an untruth – which is the same thing I suppose – was indeed an example of somebody being less than frank. If you're not convinced it was then this evidence can't be used in this way.
The second condition you must be satisfied about is that it was a deliberate answer, deliberate thing said; not blurted out casually but something deliberate, a deliberate lie, a deliberate untruth or lack of frankness. Thirdly, the issue being mentioned or the issue covered by what it is that was said must be relevant to the matter, relevant to the trial, it must be relevant to a material issue in the case, not about something that is of no consequence. It's got to be important in other words.
Fourthly and most importantly – they're all important but particularly importantly, you must conclude that the motive for the lie … was a realisation of guilt and a fear of the truth. Now you need to bear in mind of course that as a matter of commonsense there can be other motives for telling lies or lack of – giving answers that are less than frank, lack of candour."
10 His Honour went on to explain that such motives might include fear or embarrassment or surprise.
11 After the jury had commenced its deliberations, counsel for Mr Ghinea raised with his Honour the question whether that direction should have been given, since the Crown had not relied upon any lies as the basis of a consciousness of guilt. His Honour appeared to recognise that the direction was one which should not have been given, but considered that by that stage the direction could not be undone.
(Page 7)
12 It was conceded by the respondent at the hearing of this appeal that there were two errors in his Honour's direction. The first was that there was no attempt to identify relevant lies other than by way of example. However, where a trial Judge does give a direction in relation to lies which may demonstrate a consciousness of guilt, he or she is required to identify precisely the lie in question, as well as the circumstances and events that are said to indicate that the lie constitutes an admission against interest: Edwards v The Queen (1993) 178 CLR 193 at 210 – 211. More fundamentally, however, the direction should not have been given at all, there being no such lie. The only question, then, which arose was whether this was an appropriate case for the application of the proviso.
13 Had there been lies which were capable of being relied upon directly to prove guilt, then there may, in my view, have been scope for the application of the proviso, depending upon the particular circumstances. The difficulty with the direction in the present case, however, was that it positively invited the jury to look for lies from which, in their view, they could reason directly to a finding of guilt. Implicitly, his Honour had lent his authority to the proposition that there were such lies and that this was a case in which it might be permissible to reason in that way.
14 That direction, then, was almost precisely the opposite of the direction which has been identified as the appropriate one to be given where lies may be in issue but where the lies do not go so far as to demonstrate consciousness of guilt. That would be a warning to the effect that the jury was not entitled to follow a process of reasoning that just because a person is shown to have told a lie about something that that is evidence of guilt: Zoneff v The Queen (2000) 200 CLR 234, at [23] per Gleeson CJ, Gaudron, Gummow and Callinan JJ. In those circumstances, it was my view that it was not possible to reach a conclusion that there had been no miscarriage of justice.
15 So far as Ghinea is concerned, the grounds which I have mentioned above were the only grounds of appeal. So far as Niculescu was concerned, there were a number of other grounds, which I briefly mention. Ground 2 complained of an insufficiently detailed direction in relation to inferences, while ground 3 complained of an erroneous or inadequate definition of possession. Both were but faintly pressed, although they were not formally abandoned. To the extent that there is any substance in either of them, they rest upon what appear to me to be no more than infelicities of language, and not to reveal any error which requires correction.
(Page 8)
16 The final ground of appeal in relation to Niculescu related to the direction about what the prosecution was required to establish in order to demonstrate that the appellant was a party to the offence as an aider pursuant to s 7 of the Code. It appears that the Crown put its case on two bases. One was that Niculescu and Popa were jointly in possession of the heroin discovered in the vehicle. If that was the case, then the quantity of heroin was sufficient to give rise to a rebuttable presumption of an intention to sell or supply on the part of each of the joint possessors.
17 However, so far as the other basis, that of aiding, was concerned, his Honour only directed that the appellant would need to know of the offence committed by the principal, saying: "Knowledge is essential obviously. If he had no knowledge then he wouldn't be guilty." His Honour appeared not to have directed the jury that in order for the Crown to establish that the appellant was an aider in the offence charged, it had to satisfy the jury beyond reasonable doubt not only that he knew that the principal offender had the prohibited drug, but that the principal offender had it for the purpose of selling or supplying it.
18 That omission was, in my view, an error. Whether it was a significant one in the context of this case is another question. In a practical sense, if the jury accepted that Niculescu had been aiding, he had plainly been aiding in an enterprise which was a relatively elaborate one involving the importation of a significant quantity of drugs from another State. It is difficult to see how the jury could have had a doubt about the purpose of that enterprise. However, it is not necessary finally to determine this issue, since the error identified in relation to the lies direction requires the appeal to be allowed in any event. For the purpose of any future trial, I observe only that it is obviously desirable that the Judge identify with precision the knowledge on Niculescu's part of which the jury must be satisfied.
19 MCKECHNIE J: The reasons published by Wheeler J, with which I am in agreement, reflect my reasons for joining in the decision to allow the appeal.
20 EM HEENAN J: I agree with the reasons published by Wheeler J explaining why this Court allowed the appeals of both Niculescu and Ghinea against their convictions on 17 February 2004. Those reasons set out why I, too, agreed that these appeals should be allowed.
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