Punevski v The Queen
[2002] WASCA 268
•25 SEPTEMBER 2002
PUNEVSKI -v- THE QUEEN [2002] WASCA 268
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 268 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:102/2001 | 4 SEPTEMBER 2002 | |
| Coram: | MURRAY J SCOTT J WHEELER J | 25/09/02 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal against conviction dismissed | ||
| B | |||
| PDF Version |
| Parties: | TRAJCE PUNEVSKI THE QUEEN |
Catchwords: | Criminal law Appeal against conviction Whether verdict of jury unreasonable Competence of counsel Conduct of trial Turns on own facts |
Legislation: | Nil |
Case References: | Ella v The Queen (1991) 103 FLR 8 Fitzgerald v The Queen (1992) 106 FLR 331 R v Birks (1990) 19 NSWLR 677 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : PUNEVSKI -v- THE QUEEN [2002] WASCA 268 CORAM : MURRAY J
- SCOTT J
WHEELER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Appeal against conviction - Whether verdict of jury unreasonable - Competence of counsel - Conduct of trial - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal against conviction dismissed
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Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr K P Bates
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Ella v The Queen (1991) 103 FLR 8
Fitzgerald v The Queen (1992) 106 FLR 331
R v Birks (1990) 19 NSWLR 677
Case(s) also cited:
Nil
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1 MURRAY J: I agree with Scott and Wheeler JJ, for the reasons given by their Honours, to which I have nothing to add, that leave to appeal should be refused.
2 SCOTT J: In this matter I have had the opportunity of reading a draft of the reasons prepared by Wheeler J. I agree with those reasons. In my opinion, leave to appeal should be refused.
3 The one area that I would wish to comment upon is the ground of appeal challenging the way in which defence counsel conducted this trial on behalf of the applicant. As Wheeler J has explained, there were areas of the evidence upon which counsel did not cross-examine. In particular, Constable Dunjey was not cross-examined about the surveillance that he conducted in relation to the applicant on the day in question. In that respect it is important to note that defence counsel had the opportunity to peruse Constable Dunjey's notes concerning his surveillance of the applicant, and it may well have been that cross-examination on that area of the case would have strengthened the Crown's position and possibly prejudiced the position of the applicant. That was a matter for counsel to resolve in the light of his instructions and bearing in mind the potential prejudice to the applicant from such a line of cross-examination.
4 The applicant, in his submissions to this Court, said:
"Why would this police officer put the surveillance on a person with no criminal charge whatsoever, be getting suspicious whatsoever and nobody knew what's going to happen that night?"
5 As I understand the applicant's contention, he complains that Constable Dunjey was not cross-examined as to why he had the applicant under surveillance on the day in question. The answer to that proposition, in my view, is quite clear. The applicant, being non-legally qualified, may find it difficult to understand why this line of cross-examination was not pursued. It may be, however, that it was in his best interests for that issue to be left alone.
6 This is not a case where there can be said to be "flagrant incompetence" on the part of the applicant's counsel: R v Birks (1990) 19 NSWLR 677 at 684 - 685; Ella v The Queen (1991) 103 FLR 8; Fitzgerald v The Queen (1992) 106 FLR 331 at 337.
7 It is understandable why the applicant, appearing in person, would formulate the grounds of appeal as he has. However, he should
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- understand that counsel acting for him was required to make tactical decisions in the best interests of his case.
8 WHEELER J: On 13 June 2001 the applicant was convicted, on a retrial, of one count of having sold or supplied a quantity of a prohibited drug, namely heroin, to another. He was acquitted of one count of possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply. He seeks leave to appeal against his conviction in respect of the heroin count on the basis that the jury's verdict was unreasonable. The particulars of that allegation of unreasonableness are:-
"1. My counsel did not carry out my instructions, failed to call relevant witnesses appropriately and I believe that I was not properly represented.
2. The verdict was predicated upon the jury's belief and the police evidence. The police evidence was contrary to evidence given in my previous trial and was therefore inherently incredible. The verdict is therefore unsustainable on the evidence."
9 So far as the evidence at this trial was concerned, in relation to the sale or supply of heroin, the principal evidence was as follows. Senior Constable Dunjey said that he followed the applicant to the Northlands Tavern in Balcatta and saw two persons, being Vasko and Jovan Velkovski enter the tavern and sit with the applicant. Dunjey saw the applicant pass a small brown package under the table to Vasko. Vasko Velkovski gave evidence that two Asian men asked him to get some heroin, as a consequence of which he rang the applicant. He went with his brother to the Northlands Tavern and met the applicant. He asked the applicant for some drugs and the applicant gave him a package. He went with his brother to a house in Marangaroo and gave the package to the Asian men who had asked for the drugs. One Asian man started unwrapping it and the police burst in. Detective Senior Sergeant MacIntosh gave evidence that in Marangaroo as a result of information received he went to a house and forced entry to it. He saw two Asian people and two others; one of whom he subsequently learnt was Vasko Velkovski. Vasko was leaning over a table and it looked like he was unwrapping something in front of him, with an Asian male person opposite him. The item was seized, and was later found to be a package containing heroin. Jovan Velkovski gave evidence which was consistent with that of Vasko Velkovski in many respects, but his evidence was that he did not know why they were going to the Northlands Tavern and that
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- he went to the bar to buy some drinks at first when his brother went to see the applicant. He did not see any parcel exchange hands.
10 The applicant accepted that he had been at the Northlands Tavern at the same time as the Velkovski brothers, and had been sitting at a table with them. He said that a person called Tome Jenevski was also at the table. He said that earlier in the evening he had been with Jenevski when a person called Vasko telephoned and asked to speak to Jenevski and that it was as a result of that conversation that Jenevski asked the applicant to take him to the Northlands Tavern. The applicant said that he did not hand anything to either of the Velkovskis or discuss drugs with them. He also gave evidence about the time at which he was in a variety of places, and about his movements before and after the Northlands Tavern, which evidence was inconsistent with that given by Senior Constable Dunjey. In particular, it seemed to be his evidence that he was at the Northlands Tavern at a time much later than that given by Dunjey.
11 The applicant's complaints about his representation fall into two broad categories, they being failure to call relevant witnesses, and failure adequately to cross-examine Crown witnesses. So far as the failure to call witnesses is concerned, those witnesses fall into two categories, they being the witnesses present at the Macedonian Club on the date in question, and the two Asian men who sought to buy drugs through Velkovski.
12 It was said by the applicant that a Mr Jacovceski and a Mr Spirkovski would each have been able to give evidence as to the applicant's attendance at the Macedonian Club on the date in question. It was said that that evidence would have been consistent with the evidence which the applicant himself gave at his trial about his movements and about the time of his movements during that day. As the Crown points out, the applicant has provided no affidavits or other material coming from either of those gentlemen setting out the substance of the evidence which they would have been able to give. There is therefore strictly no evidence upon which the Court could conclude that defence counsel failed to call witnesses who could provide that evidence.
13 For the purpose of the application, however, I am prepared to assume that those persons could have given evidence broadly along the lines indicated by the applicant. The difficulty the applicant's submission then faces is that his attendance at the Macedonian Club on the day in question, and the time of his attendance at the Northlands Tavern, was peripheral to the question of whether he had sold or supplied a quantity of heroin to Velkovski at the Northlands Tavern. There was, as I have noted, no
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- dispute about his being at the Northlands Tavern at the same time as Velkovski on the relevant day. Evidence that he had been at the Macedonian Club at a time at which Dunjey's evidence suggested he had been at the Northlands Tavern might have had some effect upon the credibility of Dunjey. However, there was also a potential risk in exploring this issue, to which I will refer in a moment.
14 So far as the two Asian men are concerned, at its highest the applicant's argument appears to run in the following way. Velkovski had said that he had had no previous experience dealing in drugs. He had said that he had only attempted to obtain the heroin in response to a request from the Asian man. If that evidence could be demonstrated to be untrue, it would reveal Velkovski as a person having a closer involvement in heroin trafficking than his evidence tended to suggest, and it might have affected his credit. The effect, if any, upon Velkovski's credit appears to me to be limited. Velkovski was on his own admission, a person who was prepared to try to obtain heroin for the purpose of supplying it to another; whether he had done this on only one or on more than one occasion is unlikely to have made a very significant difference to the jury's assessment of him. In any event, the issue seems to be one going only to credit and it appears to me from the applicant's argument that all of the issues which he wished his counsel to explore with the Asian men were issues which would in any event have been regarded as collateral, and in relation to which they would not have been permitted to give evidence.
15 Turning to the failure to cross-examine, Dunjey in relation to some matters, the applicant points out that Dunjey's was the only one of the witness statements served upon him which did not bear at its foot the date on which the witness statement was made. He also points out that Dunjey did not say at the applicant's previous trial in relation to the same events that Dunjey had been following him for effectively the whole of the day. These matters, he suggested, helped to demonstrate that Dunjey had fabricated his evidence to fit in with the evidence of other witnesses. He complained that Dunjey had not been cross-examined about his running sheet or notes made at the time which he was allegedly following the applicant, that he was not cross-examined about why he had not said at the previous trial that he had followed the applicant for the whole day, and that his counsel should have explored with Dunjey the question of why Dunjey would have been following the applicant, since there was no evidence of any allegations made about the applicant prior to the day in question.
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16 It also appeared, from comments made by the applicant at the hearing of this application, that his counsel had at some stage had disclosed to him by the Crown Dunjey's running sheet or contemporaneous notes which he had made when following the applicant. This might well explain why a decision was made by counsel not to cross-examine on this issue, and not to explore in detail with witnesses suggested by the applicant or with the prosecution witnesses, the precise timing of the applicant's movements. There was clearly a possibility that such cross-examination might merely have reinforced Dunjey's credibility, since he did have notes, which apparently supported his evidence and cross-examination would therefore have acted to the applicant's detriment. As to the first issue raised by the applicant, any counsel with any experience of police intelligence gathering, particularly in relation to drug trafficking offences, would be aware of the potentially fatal consequences of inviting a police officer to explain why that counsel's client was considered worthy of surveillance. Any failure to explore that issue was no doubt based on counsel's experience and was a decision which had a sound tactical basis.
17 So far as incompetence of counsel is concerned, the relevant principles were conveniently summarised by Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 685. As a general rule, an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client. It is not a ground for setting aside a conviction that decisions made by counsel were made without or contrary to instructions, or even that they involve errors of judgment or negligence. However, there may be cases where something has occurred in the running of a trial, perhaps as the result of "flagrant incompetence" of counsel, which will be recognised as involving or causing a miscarriage of justice. It is impossible to attempt to define such cases with precision, but when they arise they will attract appellate intervention. Applying those principles to the present case, the applicant was bound by the way in which the trial was conducted by his counsel, even if that was not in accordance with his wishes in some respects. Far from demonstrating incompetence on counsel's part, each of the decisions made by his counsel can be seen to be the type of tactical decision based on experience of criminal trials and an understanding of the relevant law, which might be expected of counsel competently representing his clients' interests. There is nothing which suggests any miscarriage of justice in the applicant's case. In my view, leave to appeal against conviction should be refused.
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