Criminal law and procedure - Attempt to possess a prohibited import - Evidence - Admissibility of acts and conversations of alleged co-offenders - Whether conviction on circumstantial evidence open - Use of alleged lies as indicating consciousness of guilt

Legislation:

Nil

Result:

Application for leave to appeal granted
Appeal dismissed

Representation:

Counsel:

Applicant: Mr R L B Van De Wiel QC
Respondent: Mr J A Scholz

Solicitors:

Applicant: Tully & Co
Respondent: Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Ahern v The Queen (1988) 165 CLR 87
Chai (1992) 60 A Crim R 305
Masters, Richards & Wunderlich (1992) 59 A Crim R 445
Morris vThe Queen (1987) 163 CLR 454
R v Minuzzo & Williams [1984] VR 417
R v Pektas & Ors [1989] VR 239
Smith, Ashford & Schevella (1990) 50 A Crim R 434
The King and Attorney‑General of the Commonwealth v The Associated Northern Collieries & Ors (1911) 14 CLR 387
Tripodi v The Queen (1961) 104 CLR 1
Whitehorn v The Queen (1983) 152 CLR 657

Case(s) also cited:

Kural v The Queen (1987) 162 CLR 502
Edwards v The Queen (1993) 178 CLR 193
Jones v The Queen (1997) 191 CLR 439
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1
Saad v The Queen (1987) 61 ALJR 243
The Queen v Bilick and Starke (1984) 36 SASR 321

KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Anderson J, with which I am in agreement. For those reasons, although I would grant the applicant leave to appeal against his conviction, I would dismiss the appeal.
WALLWORK J: I agree with Anderson J and for the reasons given by his Honour that the appeal against conviction should be dismissed.
ANDERSON J: The applicant was convicted upon one count of attempting to obtain possession of a prohibited import, namely, narcotic goods known as ecstasy and was sentenced to 13 years' imprisonment with an 8‑year non‑parole period. He was indicted and tried together with one Ruvinovski, who was also convicted and received an identical sentence. The case against the applicant was that he had engaged in a common enterprise with Ruvinovski and one Mustafa to obtain possession of the drugs imported into Australia by a courier named Schubert. The applicant appeals against his conviction.
There was evidence that Schubert arrived at Perth International Airport on a Malaysian Airlines flight from Amsterdam through Kuala Lumpur on 30 March 1998. Mustafa also arrived in Perth from the USA via Sydney at about the same time.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Punevski v The Queen

Details

AGLC: Punevski v The Queen [2000] WASCA 71
Case: [2000] WASCA 71
Decision Date: 28 MARCH 2000

CaseChat Overview and Summary

In the matter of Punevski against The Queen, the High Court of Australia was called upon to examine the admissibility of evidence derived from conversations between alleged co-conspirators in a criminal case. The central issue revolved around the defendant's conviction for attempting to possess a prohibited import. The crux of the legal inquiry was whether the court could rely on the statements of co-offenders as circumstantial evidence to affirm the defendant's guilt, particularly in the absence of direct evidence linking him to the crime. Furthermore, the court had to consider whether the defendant's alleged false statements could serve as an indicator of his consciousness of guilt.

The court meticulously examined the nature of the evidence in question, distinguishing between direct and circumstantial evidence. It underscored that while direct evidence is more compelling, a conviction can still be validly based on circumstantial evidence if it is sufficient to establish the defendant's guilt beyond reasonable doubt. In this instance, the court concluded that the statements of the co-conspirators, when considered alongside other circumstantial evidence, were sufficient to support the conviction. The court also deliberated on the use of alleged lies as a marker of consciousness of guilt, finding that such behaviour, when combined with other evidence, could reinforce the inference of guilt. Ultimately, the court upheld the conviction, affirming the trial court's decision.

Orders