Punevski v The Queen

[2000] HCATrans 485

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P36 of 2000

B e t w e e n -

TRAJCE PUNEVSKI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 27 OCTOBER 2000, AT 12.51 PM

Copyright in the High Court of Australia

MR R.L.B. VAN DE WIEL, QC:   If the Court pleases, I appear on behalf of Mr Punevski.  (instructed by Tully & Co)

MR. H.G. DEMBO:   May it please the Court, with MR. D.W.L. RENTON, I appear for the respondent.  (instructed by the Commonwealth Director of Public Prosecutions)

KIRBY J:   Yes, Mr van de Wiel.

MR VAN DE WIEL:   If your Honours please.  Mr Punevski on 1 April, which seems to be, perhaps, an inauspicious day, was in Perth with two men, Mustafa and Ruvinovski.

KIRBY J:   We are familiar with the facts and the written submissions very clearly point out the chronology and the very vivid piece of evidence that your client telephoned the hotel twice.  It was not disputed, I think, that the second call was made.  The dispute was whether he ever got through to anybody but the significance would seem to be the fact that the call was made at all.

MR VAN DE WIEL:   I certainly would agree that there is significance to the fact that there was a call made to the hotel, purportedly by Punevski.

KIRBY J:   I thought that was conceded in the Full Court.

MR VAN DE WIEL:   No, I said it probably was.  Probably, that is all.  No more than that because the witness who attended that, Jefferson, certainly did not give evidence as to the attendance of Punevski at that particular telephone booth.  They were joint boxes, if you like, one on one side and one on the other.

Now, whatever the position about that call is, the Court of Appeal took the view that that call did get through to Schubert, the courier, and that it was Punevski who made the request for the description of Schubert in order that there would be a further meeting.  Indeed, the court seemed to have taken the view that there was no monitoring of the calls in room 802, which was contrary to the evidence of two witnesses, Girling and Townsend - I do not think I need to bother you with the page references - and indeed the witness, Schubert, later on in his evidence at page 728, makes it very plain that the description that he was asked was from a male person who spoke German with a Dutch accent.  It was certainly not Mr Punevski.

So the phone call of one minute 56 seconds instead, in my submission, of taking the view that his Honour Mr Justice Anderson seems to have taken in the Court of Appeal that it was damning evidence is perhaps very – if indeed, it was Punevski that made that call – evidence ‑ ‑ ‑

KIRBY J:   Let us start from the probability that it was because that was conceded.

MR VAN DE WIEL:   Okay, let us start from that probability.

KIRBY J:   Of all the millions of phone calls that he could have made around the world – and many were made to his home country – of all the hundreds of thousands of phone calls that could have been made in Perth, he happened to make a phone call to this particular hotel.

MR VAN DE WIEL:   I accept what your Honour has said to me.  Let us take the probability that he did.  For one minute 50 seconds ‑ ‑ ‑

KIRBY J:   It is not the time, it is the fact.

MR VAN DE WIEL:   No, it is the time and I say that the time is significant because the time of that phone call is precisely, when examined, indicates that he was not making contact or seeking to make contact with Schubert.  No operator could have taken that amount of time to put a call through to room 802.

KIRBY J:   But what is he telephoning?  He gives no evidence so we have no version of him of some innocent or he does not have to give evidence but there is no such countervailing – he just happens to telephone the particular room.

MR VAN DE WIEL:   No, he does not call a room.

KIRBY J:   The particular hotel.

MR VAN DE WIEL:   He calls the hotel.

KIRBY J:   He telephones the particular hotel.

MR VAN DE WIEL:   That is right, he calls the hotel.

KIRBY J:   And he is seen in the company of the other offenders.

MR VAN DE WIEL:   Yes.

KIRBY J:   He is seen in the vicinity of the hotel when he signals to them as he walks away to his own car and he just happens to telephone the hotel.  I mean we live in the real world.

MR VAN DE WIEL:   Okay, let us live in the real world and if we live in the real world we have Mr Punevski with these people.  These two people have, as his Honour Mr Justice Anderson rightly pointed out, before Punevski is even in their presence, Ruvinovski and Mustafa have gone into the Mercure Hotel, gone to room 521 I think it is, sought out Schubert, been told by a police officer that he is not there, that he is not in that room.  This has all occurred in the absence of Punevski.

Mustafa calls Macedonia.  Presumably Macedonia is making contact with the people in Amsterdam because that is the phone numbers that we have consistent with that.  At no stage is Punevski with Mustafa when those calls are made nor indeed, is Punevski with Ruvinovski and Mustafa when they are attempting to make the contacts with Schubert.  He is away.  Yes, he remains in the vicinity of the hotel.  He sits on the grass near the car park.  He meets up with them later for coffee.  What does that all suggest?  It suggests no more than that he is friends with these people.  They are engaged in a venture.  The mere call to the Mercure Hotel at 15.26 or shortly thereafter does not make him a party to the attempt to obtain a quantity of Ecstasy and he never sees it as your Honour has indicated.  He is there when Mustafa leaves the hotel and comes back to the car.  He is not shown it, he does not get into the car with these people.

KIRBY J:   He signals to them as he walks away.

MR VAN DE WIEL:   There is a suggestion that he waves.

KIRBY J:   Yes.

MR VAN DE WIEL:   Waving goodbye.

KIRBY J:   Friendly wave.

MR VAN DE WIEL:   No more, and from that a person is convicted and sentenced to a period of imprisonment of 13 years and 8 months.  In my submission, that does not make sense and if you examine individually everything that his Honour Mr Justice Anderson says as reasons for saying that he is party to this joint venture, when examined even in totality, in my submission, is no more than a social meeting with these people in town to have coffee with them, spend the day with them.  That is what he said in the record of interview.

HAYNE J:   What significance do we attach to the phone call to the Mercure?

MR VAN DE WIEL:   I say, with respect, he may well have been asked by Mustafa, “Ring the hotel”.

KIRBY J:   Why, just to say what are your rates?

MR VAN DE WIEL:   Because Mustafa might have reasons of his own.

KIRBY J:   What, to ask “Are you a member of the Mercure international chain?  Do you offer special rates for people” ‑ ‑ ‑

MR VAN DE WIEL:   It would not take one minute 56 seconds.

KIRBY J:   No, but it is just unrealistic.  It is unrealistic.

MR VAN DE WIEL:   With respect, in my submission, it is not unrealistic.  What is unrealistic is what his Honour Mr Justice Anderson does and that is put a construct on this case which was never there.  There was never any evidence of that phone call getting through to anybody that was remotely relevant to this case.

HAYNE J:   What was the Crown case at trial against this man?

MR VAN DE WIEL:   The Crown case at trial as put by the prosecutor was he was available to be called on.  They gave no specific role to him.  It was suggested perhaps he was a cockatoo.  Perhaps he was there to take delivery.  Perhaps he was there for some purpose but he was there as a member of a team to be called on if required.  That was the Crown case.

HAYNE J:   Did the Crown at trial make anything of the call to the Mercure in relation to your client?

MR VAN DE WIEL:   The Crown said the fact that he made the call was significant.

HAYNE J:   Thus the jury had before it the argument which Mr Justice Anderson considered.

MR VAN DE WIEL:   Not the one that he created for himself.  They had the argument about the one second phone call, yes.  Certainly not the one minute 56 second phone call.  They did not have that and they did not have the suggestion that Schubert received that call from anybody in Australia and, indeed, the learned prosecutor at trial went to the jury on the basis of that there was no direct evidence of any contact between Punevski and Schubert.  There was no issue about that.  It was never an issue in the trial and there was no issue before the Court of Appeal as to that either.  That was something that his Honour Mr Justice Kennedy decided ‑ ‑ ‑

KIRBY J:   But there was a concession in the Full Court.  There was a concession.  Now tell me exactly what that concession was.

MR VAN DE WIEL:   That concession was that his Honour Mr Justice Anderson, after the case was argued, wrote and indicated that there was evidence from another chart of a phone call being made from the phone number – and I am sorry, forgive me, one is number 31X2 and the other one is number 32X2. 

KIRBY J:   That is right.

MR VAN DE WIEL:   They are adjoining phone boxes.

KIRBY J:   Yes.

MR VAN DE WIEL:   What his Honour Mr Justice Anderson, after the case had been argued, said, “There is evidence of this other call.”  My concession was that call was probably made by my client.

HAYNE J:   That is the concession recorded at page 56 paragraph 3, is it?

MR VAN DE WIEL:   I am not sure, your Honour.

HAYNE J:  

The fact that the Mercure Hotel was rung, according to the records, from both telephone boxes and probably by Punevski can be inferred from these facts.

Is that the concession you are speaking of?

MR VAN DE WIEL:   That is the concession I make, yes.

HAYNE J:   Yes.

KIRBY J:   That seems to have been a proper concession to have made and it was before his Honour when he wrote his reasons.

MR VAN DE WIEL:   That is true, but I say even that concession does not raise the issue of knowledge.  What his Honour does, in my submission, in terms of an examination of these facts ‑ ‑ ‑

KIRBY J:   I am still trying to conceive in my mind an innocent reason for your client to making this probable phone call to the Mercure Hotel, the very hotel where the person with the prohibited import is.

MR VAN DE WIEL:   Let us see if I can assist your Honour.  Punevski is there.  He is not party to the scheme that Ruvinovski and Mustafa have.  He is in their presence and Mustafa says, “Do me a favour.  Ring the hotel.  Just go and ring them” for reasons known to Mustafa because he wants to see what the reaction will be, whether the police will come out, whether there is a tap to that telephone because Ruvinovski ‑ ‑ ‑

KIRBY J:   Was there any evidence given at trial or any suggestion or argument before the jury along those lines?

MR VAN DE WIEL:   Unfortunately not.

KIRBY J:   It is a bit late to be trying to propound that theory now, is it not?

MR VAN DE WIEL:   I agree.  We are stuck with the fact that there is a phone call and in probability made by Punevski.  What I am still concerned to submit to your Honours is there is not sufficient evidence to say that he was ever party to the combination or that he had any knowledge of what their purpose was.  The fact that he has assisted them by making that phone call does not elevate what he has done into being a party with knowledge because, in my submission, what is significant is that Ruvinovski and Mustafa are the ones who go there on their own initially.  They are the ones who communicate with each other in the course of attempting to make contact with Schubert and they are the ones who make contact with Schubert in the absence of Punevski.

So he is certainly not an adviser.  Whatever else he is, he is not an adviser.  He is with them, not for the whole of the duration but as her Honour calculated, approximately three hours.  They are in town for some eight hours.  Even if he knew that something suspicious was happening by the request to make the phone call to the Mercure Hotel, so what?  That does not make him guilty of this offence.

Further, in my submission, what this Court is required to do is to look globally at the evidence to see whether or not a jury should have convicted this man and I say, with respect, in relation to that, it is my submission, firstly, that there was insufficient evidence to allow the tape recording of discussions between Schubert and Ruvinovski in as against Mr Punevski.  Similarly, Mustafa’s conversation with Schubert also would not be admissible because there was not a proper foundation for it.

But leave that aside for the moment.  We then also have the record of interview where, in my submission, what the Court of Appeal does is to really elevate that record of interview into an essay created by the applicant in the company of the police and say, “We find it wanting.  In fact, because it is so wanting, we think that it is, in fact, false denials.”  In my submission, there was no proper basis at trial for the utterances of the applicant to be treated as lies and her Honour ought not to have allowed the prosecutor to address the jury on lies.  Her direction on lies I take no issue with.  They are very full.  They are very helpful and, indeed, they might well be said to provide a model basis for those sorts of directions.  But the fact that it was allowed to happen.

There is, in my submission, in an examination of his utterances to the police no basis at all to conclude any falsity in his utterances.  The record of interview consists, in my submission, unfortunately, and I say this kindly to the police officers, either a display of lack of experience of asking the right questions or framing the questions appropriately.  What the applicant attempted to do was to answer the questions.  When he did they did not necessarily follow up nor, indeed, did they seem to make much sense in some instances, particularly the question about money.  “Research has indicated that somebody with a name like yours sent some money overseas.  What can you tell me about that?”  What is he answering?  Is he answering to the research?  Is he answering questions about anything or is he even answering the question specifically?  “What can you tell me about the money?”  He says “No” because, indeed, there was evidence before the trial that it was not his money anyway.  He was sending this over as a favour so either he does not know of that ‑ ‑ ‑

KIRBY J:   But all of that was before the jury.

MR VAN DE WIEL:   It was.

KIRBY J:   It is a matter on which the jury was entitled to reach its own conclusion, so long as there were no misdirections in respect of the use that they might make of the conclusion that it was a lie.

MR VAN DE WIEL:   I say, with respect, they should never have been allowed to consider that it was a lie and what has happened here is a procedural series of failures.  The Court of Appeal never properly looked at the evidence to determine whether, firstly, was there sufficient evidence to say there was a combination.  Secondly, what evidence in terms of the combination was there that the applicant had any knowledge of the venture sufficient to have knowledge of the fact that there were drugs because certainly, it could not be said that he had any knowledge of the existence of Schubert.  The mere fact of the call to the hotel with no request for Schubert underscores the fact that there is no evidence that he knew of Schubert.

KIRBY J:   It just happened that Schubert was in residence at the hotel.  That is purely coincidental?

MR VAN DE WIEL:   If he was requested to make the phone call to the hotel to contact Schubert ‑ ‑ ‑

KIRBY J:   It is a theory.  There was no evidence to suggest that - - -

MR VAN DE WIEL:   But there is no evidence to suggest that this phone call did anything at all other than to advance the potential of the success of Mustafa and Ruvinovski without Punevski’s knowledge of their venture.  If I, together with counsel for the respondent, are engaged in a venture and we are concerned with the presence of the police so we ask the prosecutor’s learned junior to go across the road and to come back ‑ ‑ ‑

KIRBY J:   I come to the conclusion that you are all involved in the venture or at least it would be open to a jury to say that you were.

MR VAN DE WIEL:   But he knows nothing of it.  There is no evidence that he does.  He is just with us having a cup of coffee and we say, “Do us a favour, go across the road and come back” and because he is that sort of person he does it.

KIRBY J:   Yes.

MR VAN DE WIEL:   In my submission, him merely walking across the road cannot make him culpable for our criminality.  He is not party to it.  He is not in any way concerned in it and that is the position that Punevski is in in this case.  He is just there on the day and then he is interviewed by some, either inexperienced or not particularly attentive police officer and that creates suspicion.  What this case, in my submission, your Honours, is about is about suspicion and theory and not about evidence and that is where the Court of Appeal have gone wrong.  They have felt that and that is why Mr Justice Anderson went on his venture on his own to gather this evidence which does not exist because at page 728 Schubert makes it very plain.

KIRBY J:   Yes, you have already said that.

MR VAN DE WIEL:   Yes.

KIRBY J:   Is there anything new or additional that you feel you ought to say?

MR VAN DE WIEL:   I do not think, your Honour, there is.  I just say, with respect, all of this evidence together is not a proper foundation to convict anybody.

KIRBY J:   Thank you, Mr van de Wiel.  The Court does not need the assistance of the Crown.

This application for special leave to appeal follows the conviction of the applicant at trial upon a count of attempting to obtain possession of a prohibited import, namely, narcotic goods known as the drug “Ecstasy”.  The Court of Criminal Appeal of Western Australia granted leave to appeal but dismissed the applicant’s appeal against his conviction.  He now seeks to appeal to this Court.

We are not convinced that there was any material misdirection at the trial.  It was accepted, properly, that the directions by the trial judge on lies were full and appropriate.  Nor do we consider that the claim of a departure from procedural fairness has been made out.  Nor was any miscarriage of justice shown in the applicant’s conviction of the charge presented against him.  The application is, therefore, refused.

AT 1.13 PM THE MATTER WAS CONCLUDED