Punevski v The Queen - [2000] WASCA 71

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: PUNEVSKI -v- THE QUEEN [2000] WASCA 71

CORAM: KENNEDY J
WALLWORK J
ANDERSON J

HEARD: 3 DECEMBER 1

PUBLISHED : 28 MARCH 2000

FILE NO/S: CCA 123 of 1999

BETWEEN: TRAJCE PUNEVSKI
Applicant
AND
THE QUEEN
Respondent

Catchwords:

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. Schubert was stopped by customs officers at the airport, searched and found to be carrying the drugs in question in the form of a large quantity of small tablets. The matter was handed over to the Federal Police. Schubert agreed to assist them. They ascertained from him that he had a booking at the Mercure Hotel, in Irwin Street in Perth. On 31 March, they took Schubert to the hotel and police officers stayed close to him thereafter. In circumstances that I will describe in a little detail, at about 8 pm on 1 April 1998, in a restaurant attached to the hotel, Schubert, whilst under police surveillance, handed a package to Mustafa in exchange for money; shortly thereafter, Mustafa, Ruvinovski and the applicant were arrested.

The scene of the crime

All of the events about to be related happened in or near the Mercure Hotel. The street lay-out in this part of the city is more or less in a grid pattern. St George's Terrace, Hay Street and Murray Street are parallel, running east/west. Irwin Street and Pier Street run from St George's Terrace north across Hay Street to Murray Street. The Mercure Hotel is

located on the eastern side of Irwin Street between St George's Terrace and Hay Street, with its main entrance on Irwin Street.

On the ground floor of the hotel complex there are bars and restaurants off the main lobby or foyer, as appears from exhibit 14G. One of these is a bar/restaurant/coffee shop called the Topiary. It extends from the hotel lobby area out onto Hay Street. It was in this restaurant that the exchange took place between Mustafa and Schubert. As appears from exhibit 14A, the Topiary offers outside table seating, on a paved area adjacent to the Hay Street footpath a short distance from the Irwin Street corner. There are shops, not part of the hotel, between the Topiary and Irwin Street, on the Hay Street frontage. Immediately across Hay Street to the north is the central Fire Station. It occupies the north east corner of the intersection of Hay and Irwin Streets. On the footpath outside the Fire Station, more or less on the corner of Hay Street and Irwin Street there are (or were) two public telephone booths. They were of the modern see‑through perspex type. The photograph exhibit 17 depicts one of the booths occupied by Mustafa on the day in question.
To the west of the intersection, on the northern side of Hay Street, there is a cafe called the Black Swan. It is a short walk from that cafe to the phone booths. The booths are about 80 metres from the main entrance to the Mercure Hotel, and much closer than that to the Topiary. Opposite the Black Swan cafe, on the other side of Hay Street, at the intersection of Hay and Pier Streets, is the Kings Hotel. To the east along Hay Street on the northern side is the city's No 10 car park which offers public parking. Behind the Mercure Hotel is a laneway connecting Hay Street and St George's Terrace.

The surveillance and the telephone evidence: 10:53 am to 3:25 pm, 1 April 1998.

Both Ruvinovski and the applicant were resident in Western Australia. Ruvinovski lived at Joondanna and the applicant lived at Balcatta. There was evidence that at 10:53 am on the day in question, 1 April 1998, Ruvinovski made a 24‑second telephone call on his mobile phone to the applicant's mobile phone. At this time neither Ruvinovski nor the applicant had been observed to be in the city. About an hour after the call, at about midday, Ruvinovski arrived at the Mercure Hotel in the company of Mustafa. There was evidence that, a few minutes after midday, when Ruvinovski and Mustafa were observed to be in the Mercure Hotel, the applicant made an 18‑second telephone call to Ruvinovski's mobile phone. At about 12:15 pm, Ruvinovski went up to Schubert's room (which was then room 521) and knocked on the door. The door was not opened, but the knock was answered by a female police officer. Ruvinovski asked for Schubert. The police officer, pretending to be the occupant of the room, told Ruvinovski that, in effect, he had the wrong room. Ruvinovski then left.
Meanwhile, the police had taken control of adjoining rooms on the eighth floor, which were connected by a door. These were rooms 801 and 802. Schubert was relocated to room 802 and a recording device was installed in that room and the police took up occupation of the adjoining room 801.
There was evidence that at about 1:30 pm, the applicant came into a bar off the foyer of the Mercure Hotel and sat at a table by a window facing Irwin Street. After a short time, the applicant got up, went out the main entrance and walked down towards St George's Terrace. A short time later, the applicant walked back up the other side of Irwin Street, towards Hay Street. He was observed to turn right into Hay Street and walk in the direction of the Topiary restaurant. A few minutes later, the applicant was observed to be seated at one of the restaurant tables on the pavement in Hay Street. The applicant appeared to be reading a newspaper. The surveillance evidence was to the effect that he appeared to look over the newspaper along Hay Street in both directions and to frequently look about. There was telephone evidence that after a little more than half an hour, at 2:09:57 pm, the applicant made an 18‑second telephone call from his mobile phone to Ruvinovski's mobile phone and immediately got up from the table and walked west along Hay Street away from the Mercure Hotel in the direction of the Kings Hotel. About 20 minutes later, at approximately 2:30 pm, he was seen in the company of both Ruvinovski and Mustafa in Hay Street. The evidence was that the three men went into the Black Swan cafe and sat down at a table at about 2:35 pm. After a couple of minutes Mustafa got up and walked to the telephone booths on the corner of Hay and Irwin Streets. The booths are numbered 922131X2 and 922132X2 and, for convenience, these numbers can be reduced to 31 and 32. Between 2:41 pm and 2:56 pm Mustafa made four telephone calls from booth 32 to Macedonia. These calls lasted from a few seconds to six minutes. He then rejoined the applicant and Ruvinovski at the Black Swan cafe. A few minutes later Mustafa went again to the telephone booths and made another call to Macedonia lasting about three minutes. He again rejoined the applicant and Ruvinovski at the cafe. The surveillance evidence was that he appeared to hand a piece of paper to the applicant.
The applicant then at about 3:25 pm left the cafe and went to the telephone booths where he remained until about 3:31 pm.

The applicant telephones the Mercure Hotel

The surveillance and telephone evidence about this visit by the applicant to the phone booths is of some importance. Based on it, the jury was entitled to conclude that the applicant made two calls to the Mercure Hotel from the phone booths, one from each booth. I make particular mention of this at this stage in the chronology because one of the main points made to this Court on behalf of the applicant by his counsel, Mr Van De Wiel QC, was that there was no evidence of any contact or communication between the applicant and the courier, Schubert. This submission was made in support of a contention that there was no reasonable evidence implicating the applicant in a preconcert. The submission was sought to be supported by reference to the telephone evidence. Mr Van De Wiel contended that the telephone evidence was that the applicant made only one call to the Mercure Hotel that day, which lasted for only one second, during which nothing could have been said. He submitted, in effect, that this call was therefore not relevant and should be disregarded and evidence of it should not have been admitted
In my opinion, the submission is misconceived for two reasons. In the first place, even if the evidence was that the applicant only made one call to the Mercure Hotel and hung up as soon as the call was answered, that evidence was highly material to the question of the applicant's participation in the enterprise. The telephone call - the fact that the applicant made it - connected the applicant to the scene of the crime, so to speak, at the material time. There is nothing in the evidence, including the applicant's record of interview, which provides any innocent explanation for why the applicant would telephone the Mercure Hotel at that particular time from a public telephone booth just across the street. Whatever the duration of the call and however unfruitful it may have been, the mere fact that the applicant made it at the time that he did and in the circumstances as they existed at that time tended to connect him to the enterprise involving Mustafa, Ruvinovski and Schubert. The circumstances to which I refer include the fact that the courier, Schubert, was at the Mercure Hotel waiting to be contacted for the purpose of making his delivery and the applicant was in the company of Mustafa and Ruvinovski, both of whom later that day dealt with Schubert for the purpose of obtaining delivery.
The other fallacy in the submission is the proposition that the evidence was that the one‑second call was the only call made by the applicant to the Mercure Hotel. That submission is not in accordance with the uncontradicted surveillance and telephone evidence. The evidence of the surveillance witness, Jefferson, was as follows (trial t/s page 522):
"About 3 minutes past 3 I saw Shorts; that is, Mr Punevski, leave the table and walked across Hay Street to a newsagency which is situated in the Kings Hotel on Hay Street directly opposite the Black Swan. About 6 minutes past 3 I saw him exit the newsagency and return across the road - that's Hay Street - back to the table and rejoin the other two men. About 14 minutes past 3 I saw Whitey, Mr Mustafa, stand up and leave the table and he walked across Irwin Street to the telephone boxes which are situated on that corner and he appeared to make some phone calls - several phone calls … Shortly afterwards, about 18 minutes past 3, I saw Mr Mustafa leave the telephone and return to the Black Swan cafe where he sat down with the other two men … About 25 minutes past 3 I saw Shorts [the applicant] stand up from the table and he walked across Irwin Street, went to a public telephone box, the number of which is recorded as (08) 9221-31X2 [booth 31]. I saw him appear to make several phone calls. About 31 minutes past 3 I saw Shorts leave the telephone and saw him walk back to the Black Swan cafe. About 3.36 I saw Whitey stand up and leave the table. He walked across Irwin Street to the public telephone number (08) 9221-32X2 and I saw him make what appeared to be several phone calls … " (Emphasis added)
(I pause to explain that the sobriquets "Shorts" and "Whitey" were derived from how these men were dressed. The applicant was wearing shorts at this time. Mustafa was wearing a white shirt. Ruvinovski was referred to as "Stripes" because he was wearing a striped shirt.)
As I have said, this surveillance evidence was not contradicted and the emboldened part is clear evidence that the applicant went alone to the public phone booths where, between 3:25 pm and 3:31 pm, he appeared to make more than one phone call. The uncontradicted telephone evidence is that, between those times, two calls were indeed made from the booths in question; one at 3:26:46 pm and one at 3:27:46 pm. See exhibit 21, items E6 and G1. Both of these calls were made to the Mercure Hotel. The first was timed to last for one second and it is not now in dispute that this call was made by the applicant. The second, made one minute later, was timed to last for one minute and 55 seconds. The inescapable inference is that the applicant made the second call also. At this time, both Ruvinovski and Mustafa were at the Black Swan cafe. There is no evidence that there was anyone else involved in the enterprise. No‑one but the applicant could have made the call. It would be fanciful to suggest, and it was never suggested to the jury, that some stranger to this enterprise happened to telephone the hotel from these booths at about the time that the applicant was doing so.
I should say, only to show that it has not gone unnoticed, that there is an inconsistency between the surveillance evidence of the officer, Jefferson, and the telephone evidence. According to Jefferson's evidence set out above, the applicant was seen to enter only one of the booths, whereas the telephone evidence is that the two calls in question, made one minute apart, were made from different booths. In my opinion, no significance can be attached to this inconsistency. The design of the pair of booths was such that a movement by the applicant from one booth to the other might have gone unnoticed. In any event, the inconsistency is of no assistance to the applicant. The evidence of Jefferson puts the applicant in booth 31 at the material time. It was from that booth that the call lasting one minute and 55 seconds was made. See exhibit 21, item G1.
There was evidence from which the jury could conclude that the second of the two calls made by the applicant to the Mercure Hotel reached Schubert and that the applicant spoke to Schubert and asked him to describe himself, and that Schubert did so. Schubert gave evidence to the effect that he received a call from a male person asking him to describe his appearance, (t/s 678) for the purpose of arranging a meeting at which he would be required to hand over "the drugs". He was told that he would be shown an identification number. Schubert did not give evidence of the time that he received this call. There is no evidence that the police monitored the time of incoming calls to Schubert. However, according to the evidence of calls made, the calls that were made at 3:26:46 pm and 3:27:46 pm were the first calls made by any of the three men to the Mercure Hotel and it is clear from Schubert's evidence that it was in the first of the local calls he received with regard to the delivery of the drugs that he was asked to describe himself. On the whole of the evidence, the compelling inference is that the call in which Schubert was asked to describe himself was the call made at 3:27:46 pm by the applicant from public telephone booth 31.
I now return to the chronology.

The surveillance and telephone evidence: 3:31 pm to 8:00 pm, 1 April 1998

There was evidence that after leaving the telephone booths at about 3:31 pm the applicant rejoined Ruvinovski and Mustafa at the Black Swan cafe and five minutes later, at 3:36 pm, Mustafa went to booth 32 and made a call to Macedonia lasting five minutes nine seconds. He then returned to the cafe where he rejoined Ruvinovski and the applicant at their table. At about 3:46 pm, Mustafa returned to the telephone booths and made another call to Macedonia lasting 51 seconds. He then rejoined Ruvinovski and the applicant at their table.
At 4:04 pm Ruvinovski left the table at the Black Swan and went to the telephone booths and made a call to the Mercure Hotel lasting 58 seconds and he then crossed Hay Street to the Topiary and sat at a table on the pavement. The applicant also left the table at the Black Swan at about this time and walked slowly east along Hay Street to the No 10 car park.
Schubert gave evidence that, some time after he had received the call asking him to provide a description of himself, he received a call telling him to go downstairs to meet somebody in the hotel lobby. It was open to conclude that this was the call made by Ruvinovski at about 4:04 pm. Schubert agreed to do so but there was some short delay while he was "wired" for sound by the police and given instruction how to operate the device strapped to his body. He entered the lobby shortly before 4:20 pm, but saw no one who seemed interested in him. He went into the Topiary and sat at a table. The surveillance evidence is that he came into the Topiary at about 4:20 pm. At about this time (actually 4:19 pm) whilst Ruvinovski was at his table outside, Mustafa made a call to Ruvinovski's mobile phone from one of the public phone booths. It is to be remembered that these booths were just across the street from the hotel. The two men did not need to communicate by telephone. They could easily have come together and spoken personally. This call lasted 29 seconds. Schubert gave evidence that whilst he was seated in the Topiary he saw Ruvinovski watching him and after some watching and waiting they spoke to each other inside the hotel complex, "in front of the toilet room". Ruvinovski showed Schubert a cigarette packet with a number or numbers written on the inside and asked if Schubert had something for him. Schubert's evidence was that he told Ruvinovski that he did have something but could not give it to Ruvinovski until "later".
The surveillance evidence was to the effect that Mustafa left the telephone booths following his call to Ruvinovski at 4:19 pm, crossed Irwin Street walking west and went into the Kings Hotel, which, as has been recounted, is on the corner of Hay Street and Pier Street. Some time later he re‑emerged from the Kings Hotel and walked back towards the Topiary. In the context of the evidence as a whole it is open to conclude that it was during this interval that Ruvinovski spoke to Schubert and was told by Schubert that Schubert could not give him what he had until "later". By the time Mustafa reached the Topiary Ruvinovski was again seated at an outside table and Mustafa walked straight past him. Ruvinovski got up and followed him and they stopped together and spoke for one or two minutes at the head of the laneway running down to St George's Terrace behind the Mercure Hotel. This was about 4:40 pm.

Meanwhile, at 4:29:05 pm, the applicant had made a call from his mobile to Ruvinovski's mobile. This call must have been received by Ruvinovski while he was in the Mercure Hotel or the Topiary either watching Schubert or actually dealing with Schubert. According to the surveillance evidence the applicant was at this time still in the vicinity of the No 10 car park, just up the street, so to speak.
After talking to Mustafa at the head of the lane, Ruvinovski returned to the Topiary and went in. Mustafa walked back that way too but continued on to Irwin Street and turned left down Irwin Street towards St George's Terrace. At 4:43 pm, Ruvinovski emerged from the main entrance of the hotel in Irwin Street, this evidence indicating that he had simply walked through from the Hay Street entrance to the Irwin Street entrance. He then walked down Irwin Street past Mustafa, who was standing in Irwin Street. They did not acknowledge each other. Ruvinovski turned left into St George's Terrace. Mustafa followed him and they came together in St George's Terrace where they had a short conversation. Ruvinovski then retraced his steps, walking up Irwin Street to Hay Street and Mustafa followed behind. Ruvinovski was seen to enter the Mercure Hotel. Mustafa was seen to continue up Irwin Street to Hay Street towards the phone booths. This was about 4:48 pm. The evidence is that Ruvinovski went up to Schubert's room, that is, room 802 and knocked but Schubert had not returned to the room and his knock was not answered.
As to the surveillance evidence and telephone evidence relating to the applicant, there is evidence that while all this was going on the applicant was close by. It will be remembered that he had parted company with Ruvinovski and Mustafa at the Black Swan cafe shortly after 4 pm and had been seen walking slowly east in Hay Street towards the No 10 car park which he reached at about 4:15 pm. He was still there at 4:51 pm. At that time he was seen seated on a bench near the car park speaking on his mobile phone. The telephone evidence is that this was a call from Mustafa from the public phone booths opposite the Mercure Hotel - this was shortly after Ruvinovski and Mustafa had conversed in St George's Terrace and when Ruvinovski was back in the Mercure Hotel looking for Schubert in room 802. The car park was a very short walk from the phone booths. It will also be remembered that the applicant had made a call to Ruvinovski's mobile at 4:29:05 pm, at which time, on the evidence as a whole, Ruvinovski was with Schubert, trying to persuade Schubert to hand over the drugs.
After Ruvinovski's unsuccessful attempt to raise Schubert in room 802 Ruvinovski and Schubert met again in the Topiary. At 5:10 pm, Ruvinovski and Schubert were observed to be in the Topiary, conversing. Mustafa had been seen to enter the Topiary from Hay Street at about 5:05 pm. The evidence is that at about 5:20 pm Ruvinovski and Schubert went up to Schubert's room and there was a conversation which was recorded. They discussed the handing over of the drugs. Schubert's evidence was that Ruvinovski was demanding the drugs. While they were together in Schubert's room Mustafa made several calls to Ruvinovski on his mobile phone from the telephone booths across Hay Street, as well as calls to Macedonia. By arrangement with the police, Schubert stalled Ruvinovski by telling him that he had hidden the "package" elsewhere and wanted to wait until dark to pick it up and that he would not hand it over "without money".
Mustafa remained at the phone booths for some time making calls. Between 5:18 pm and 5:43 pm he made eight calls. Three were to Ruvinovski's mobile while Ruvinovski was with Schubert and the rest were to Macedonia. While he was making these calls, at about 5:40 pm, the applicant was observed to be at or near the booth occupied by Mustafa. They appeared to converse before the applicant walked off along Hay Street to the west. A minute or so later, Ruvinovski came out of the Mercure Hotel and he and Mustafa met at the corner of Hay and Irwin Streets and were seen walking together first one way and then the other in Hay Street. At 5:52:48 pm Ruvinovski made a call on his mobile phone to the applicant's mobile phone. At 5:55 pm the three men, that is Ruvinovski, Mustafa and the applicant, were seen to be together and conversing outside the Kings Hotel in Hay Street. Shortly after, they were observed to enter the Kings Hotel cafe and take up a table where they had coffee and talked until 6:05 pm when the applicant left them. He was seen to get in his car at the No 10 car park and drive away. There is evidence that he drove to his home in Balcatta.
Mustafa and Ruvinovski were kept under observation. It is sufficient to say that they remained in the area. Between 6:12 pm and 6:43 pm they, between them, made a total of five telephone calls to Macedonia from the public phone booths, and they were both sighted in Hay Street continuously, mostly at the Kings Hotel cafe.
At 6:45:52 pm Ruvinovski made a call from his mobile to the applicant's mobile phone. The applicant was then on his way back to the city from his home. At 6:50 pm the applicant's vehicle was seen driving into the No 10 car park from Hay Street. Shortly before 7 pm, the applicant himself was seen to be in Hay Street. He had changed his clothes. He was seen to walk up to the table occupied by Ruvinovski and Mustafa at the Kings Hotel cafe and sit down with them. At 6:52:25 pm, probably while the applicant was with Ruvinovski and Mustafa, but anyway only a few minutes after Ruvinovski and he had spoken by mobile phone, Ruvinovski used his mobile phone to call Schubert in his room at the Mercure Hotel. Schubert gave evidence that Ruvinovski told him, during what must have been this telephone call, that Schubert should be in the Topiary at 8 pm with the "package", if he had the package by then. The applicant remained at the table with Ruvinovski and Mustafa until 7:02 pm when he walked away along Hay Street. At 7:15 pm Mustafa entered the Topiary, looked about and took a table. Shortly after, Ruvinovski came in and the two men spoke briefly and Ruvinovski left. He was followed to the No 10 car park where he got into the driver's seat of a silver Commodore sedan which he then drove to a position on St George's Terrace, parking the vehicle at the foot of the lane which ran down behind the Mercure Hotel. He got out of the vehicle and looked up and down the Terrace continually, before sitting on the steps of an office building near the vehicle. At 7:45:51 pm Ruvinovski made a call on his mobile phone to the applicant on his mobile phone. Ten minutes later, at 7:55 pm the applicant was seen to be sitting with Ruvinovski on the office steps in St George's Terrace. There was evidence that he had parked his vehicle in Irwin Street near the entrance to the Mercure Hotel.
At this time Mustafa was in the Topiary. At 8 pm Schubert entered the Topiary and sat at Mustafa's table. By a series of surreptitious manoeuvres that do not need to be described he delivered a yellow plastic bag to Mustafa and received two packets of money in exchange. Mustafa then left. Shortly after he was seen to emerge from the lane on St George's Terrace. The applicant and Ruvinovski stood up and Mustafa went to the vehicle and got into the passenger side and Ruvinovski got into the driver's seat and started the car. The applicant did not try to get into the car. There was evidence that he walked past the car as the other two men got in, and that after he had passed it he turned and waved to them before continuing to his own vehicle which, as has been noted, was parked near the entrance to the Mercure Hotel in Irwin Street.
As Ruvinovski commenced to drive away, his vehicle was stopped by police and the two men were arrested. The applicant was arrested a short time later.

The grounds of appeal

There are nine grounds of appeal, but two were abandoned at the commencement of the hearing, they being grounds 6 and 8.

Grounds 1 and 3

Grounds 1 and 3 were argued together, those grounds being that:
1.Her Honour erred in finding evidence of preconcert.
3.Her Honour erred in admitting evidence of the actions and conversations of:
(a)Mustafa and Ruvinovski;
(b)Mustafa and Schubert; and
(c)Ruvinovski and Schubert; not in the presence of Punevski, as evidence against Punevski.
In considering these grounds of appeal, the starting‑point is that there is no evidence that the applicant himself attempted to obtain physical possession of the drugs either from Schubert or from Ruvinovski or Mustafa. The elements of the offence itself could only be proved against the applicant by evidence of the conduct and utterances of Ruvinovski and Mustafa in their dealings with the courier Schubert, culminating in the handing‑over by Schubert to Mustafa of the yellow package in return for money. All of this took place in the absence of the applicant.
The general rule is that the words and conduct of others spoken and done in the absence of the accused are not admissible against the accused to prove the truth of what was said, or to prove the truth of assertions implied by the conduct: Tripodi v The Queen (1961) 104 CLR 1 at 7; Ahern v The Queen (1988) 165 CLR 87 at 92 ‑ 93. Application of that general rule would mean that none of the evidence of dealings between Ruvinovski and Mustafa on the one hand and Schubert on the other could be considered by the jury in its consideration of the guilt of the applicant. In this case, the evidence was admitted against the applicant and the jury was permitted to consider it in determining whether the applicant was guilty of the offence charged. The grounds of appeal now under consideration plead, in effect, that that was wrong and the trial miscarried.
It is clear that when the case for the prosecution is that an accused is guilty by participation in an arrangement, combination or preconcert to commit the offence, certain evidence not otherwise admissible against the accused may be admissible: Tripodi (loc cit). The evidence that may become admissible is evidence of the utterances and acts of the other parties "in furtherance of the common purpose … ": Tripodi (loc cit). The reason why the acts and words of others done and spoken in the accused's absence in furtherance of the common purpose may become admissible against the accused in cases of preconcert is that "the combination implies an authority in each to act or speak on behalf of the other": Ahern at 95; Tripodi (loc cit). As the High Court said in Ahern:
"The principle lying behind the rule is one of agency and the closest analogy is with partners in a partnership business. Indeed, conspirators have been described as partners in crime."
So two things must be established before the guilty conduct of the other parties is admissible against an accused who was not present.
First there must be evidence of a combination or preconcert of the type alleged. The evidence must go further than supporting a finding that there was some understanding or agreement. The evidence must go so far as to support a finding that the combination was for an unlawful purpose of the same general character as the offence charged: R v Minuzzo & Williams [1984] VR 417 per Starke J at 436; R v Pektas & Ors [1989] VR 239 per Vincent J at 270. In this case, there is no suggestion that the Crown had failed to prove this fact. Schubert's testimony and the evidence of the acts of Mustafa, Schubert and Ruvinovski provides abundant proof that there was a preconcert to obtain possession of drugs illegally imported into Australia. The evidence of the conduct and utterances of Mustafa and Ruvinovski was admissible to prove that fact, whether the applicant was present or not when the acts and statements were done and made.
Second, it must be made to appear that the accused was a participant in the combination, preconcert or arrangement. At this point, a number of questions arise. To whom (judge or jury) must that be made to appear? Upon what evidence? To what standard of proof? These questions, too, have now been settled and there is not much controversy about them in this case. Before Ahern, the issue of the accused's participation in the preconcert was treated as a jury question. It was laid down in Ahern, however, that, because it was essentially a question of admissibility of evidence and therefore a legal question, it was not a jury question at all, but was exclusively for the judge to decide: Ahern at 103 ‑ 104.
The evidence that may be considered by the trial judge in deciding whether the accused was a participant in the combination must be "independent" evidence. In this context, independent evidence means no more than evidence admissible in the ordinary way against the accused and, by that definition, excludes evidence of the acts (insofar as they imply a hearsay assertion) and hearsay declarations of the alleged co‑offenders: Masters, Richards & Wunderlich (1992) 59 A Crim R 445 at 454.
The standard of proof at this point (as to the accused's participation in the conspiracy or combination) is the prima facie standard. There must be reasonable evidence in the sense of evidence on which a tribunal of fact could lawfully and properly reach the conclusion that the accused was a participant in the preconcert: Ahern at 93; Smith, Ashford & Schevella (1990) 50 A Crim R 434 at 442 ‑ 443; Chai (1992) 60 A Crim R 305 at 336 ‑ 337.
If the above prerequisites are satisfied, the evidence of the acts and statements of other participants in the arrangement, which were performed or uttered in furtherance of the common purpose, may be admitted against the accused as additional proof of his guilt of the offence even although those acts were done and statements made in his absence.
Senior counsel for the applicant submitted that there was no reasonable independent evidence that the applicant was in preconcert with Ruvinovski and Mustafa and consequently none of the evidence of the acts and utterances of Ruvinovski and Mustafa in furtherance of their combination to commit the offence ought to have been admitted against the applicant. With all due respect, this submission is entirely without foundation. The evidence of the applicant's own behaviour - his own acts - provides abundant independent evidence that he was engaged with Mustafa and Ruvinovski in the same enterprise; that is, in the attempt to get hold of the ecstasy which Schubert had imported. It is the only rational explanation for the conduct of the applicant that has been described.
The applicant's conduct is not to be considered in isolation. His conduct is to be considered in relation to the coincident conduct of his alleged co‑offenders: Masters, Richards & Wunderlich at 460. As Young CJ said in R v Minuzzo & Williams (supra) at 430:
"If one finds two persons doing a number of acts independently and it is regarded as too coincidental that the two persons should have acted in such a way unless there were an agreement between them to do so, it would be an affront to common sense to say that the agreement could not be inferred even though there was no evidence that either was present when the acts of the other were done."
Some of the "independent evidence" that the applicant was engaged in a common enterprise with Ruvinovski and Mustafa to get possession of the drugs is as follows:
1.Some time before Ruvinovski and the applicant were first observed in the city, Ruvinovski made a short telephone call to the applicant.
2.Shortly after midday, when Ruvinovski was at the Mercure Hotel in the company of Mustafa seeking out Schubert, the applicant made a short telephone call to Ruvinovski.
3.At about 1:30 pm, the applicant himself attended at the Mercure Hotel alone. He then went for a walk which took him by an apparently aimless route to one of the Topiary's outside tables where he behaved in a watchful manner.
4.After some time seated at that table, he made telephone contact with Ruvinovski.
5.Minutes later, he was in company with Ruvinovski and Mustafa.
6.The applicant remained in their company while Mustafa went to and from the public telephone booths, making telephone calls to Macedonia.
7.After the last of those calls, Mustafa handed a piece of paper to the applicant.
8.The applicant then went to the telephone booth and made two calls to the Mercure Hotel, which was just across the street.
9.The applicant had a mobile telephone and there was no apparent reason to use a public phone booth to call the Mercure Hotel except to prevent the call being traced to him.
10.The second of the two calls made by the applicant from the public phone booth lasted one minute and 55 seconds.
11.The courier Schubert was at the Mercure Hotel and there is no evidence that anyone else of any interest to any of these three men was at the Mercure Hotel.
12.After telephoning the Mercure Hotel, the applicant rejoined Ruvinovski and Mustafa at the cafe.
13.Shortly after 4 pm, the applicant walked slowly towards the No 10 car park where his vehicle was parked. He did not get into his vehicle, but remained in the vicinity of the No 10 car park and at about half past four (4:29:05 pm) he called Ruvinovski from his mobile while Ruvinovski was in the Mercure Hotel or the Topiary, either watching Schubert or dealing with Schubert.
14.The applicant was still in the vicinity of the No 10 car park at 4:51 pm at about which time he received a call from Mustafa from the public phone booth a short distance away.
15.At 5:40 pm the applicant was still in the area. At that time, he was observed to be at or near the phone booth occupied by Mustafa and conversing with Mustafa. This was at about the time Mustafa was making calls to Ruvinovski while Ruvinovski was with Schubert.
16.A short time after Ruvinovski had spoken with Schubert in an attempt to persuade him to hand over the drugs, and while Ruvinovski and Mustafa were together, Ruvinovski made contact with the applicant by mobile phone (5:52:48 pm).
17.A few minutes later, the three men were again together conversing outside the Kings Hotel and remained together until 6:05 pm, when the applicant went home.
18.As the applicant was driving back to the No 10 car park from his home, at about 6:45:52 pm, he received a call from Ruvinovski on his mobile phone. This was shortly before Ruvinovski telephoned Schubert and instructed Schubert to be in the Topiary at 8 pm with the drugs.
19.The applicant was back in the city at the No 10 car park by 6:50 pm. He rejoined Ruvinovski and Mustafa at the Kings Hotel cafe at about 7 pm.
20.After Ruvinovski had driven a motor vehicle to the parking spot at the bottom of the lane in St George's Terrace, Ruvinovski made a call on his mobile phone to the applicant and the applicant drove his vehicle to Irwin Street and parked it near the entrance to the Mercure Hotel before walking down to join Ruvinovski where he was sitting on the steps of an office building. There they waited.
21.Within a short time, Mustafa appeared from the lane carrying the bag he had obtained from Schubert.
22.After Mustafa and Ruvinovski got into Ruvinovski's car, the applicant walked back to his parked vehicle and drove off.
The behaviour of the applicant provided reasonable evidence both of the fact of a combination and his participation in it. As Isaacs J pointed out in The King and Attorney‑General of the Commonwealth v The Associated Northern Collieries & Ors (1911) 14 CLR 387, both the fact of combination and the participation of the participants may be proved by the same evidence. He said, at p 400:
" … though primarily each set of acts is attributable to the person whose acts they are, and him alone, there may be such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of pre‑concert, or some mutual contemporaneous engagement, or that they were themselves the manifestations of mutual consent to carry out a common purpose, thus forming as well as evidencing a combination to effect the one object towards which the separate acts are found to converge."

The applicant's conduct is to be looked at in relation to the conduct of the other men and, when looked at in relation to that conduct, it can plainly be seen to manifest a joint enterprise centred upon the Mercure Hotel and Schubert and having the object of obtaining delivery of the package in question.
The learned trial Judge gave reasons for concluding that there was reasonable evidence that the applicant was a participant in this common enterprise. She said:
"So far as Punevski was concerned, he too spent a great deal of time in the area bounded by Hay, Irwin, Barrack Streets and St George's Terrace. In his case the period was approximately 5‑1/2 hours, with a break of a little under an hour during which he went home and changed, and a couple of other periods in which police lost sight of him. He explained in his record of interview, that during that period he walked around 'for amusement'; this is not an inherently convincing explanation, but may be said to be no more than unusual. He was observed to spend a considerable period of time in the company of Mustafa and Ruvinovski. Although the answers which he gave to questions about his activities in Perth were literally true, it is, in my view, open to consider the whole of the portion of the record of interview in which he discussed that period as misleading. He admitted only to knowing Ruvinovski when the evidence was that he had sent a sum of money to Mustafa some 5 weeks previously and had plainly spent a great deal of the day in his company. Despite saying in the record of interview that Ruvinovski was not a very good friend of his, and that he had just bumped into him in Perth, the telephone records show that Punevski telephoned Ruvinovski on three occasions during that day, while Ruvinovski telephoned him on four occasions, one of which was at 11 am, which appears to have been well before he was sighted in Perth, with Ruvinovski. He did not mention the calls in his record of interview. Although the question is not happily phrased, the record of interview may be read as containing a denial by Punevski that he had sent money to Mustafa. During the course of the day he received a telephone call from Mustafa, and had been given a piece of paper by Mustafa following which he made a telephone call to the Mercure Hotel. He was, on the evidence of one witness, together with Ruvinovski when Mustafa emerged from the laneway behind the Mercure Hotel carrying the drugs, and had a short conversation with Mustafa and Ruvinovski before the two men got into their vehicle."
It is apparent, therefore, that her Honour relied on matters additional to those which I would regard as more than sufficient to establish both the combination and the applicant's participation in it. Senior counsel for the applicant criticised her Honour's reliance on some of these other matters. It was submitted that her Honour took a wrong view of the applicant's record of interview and it was submitted that the fact that the applicant had sent a sum of money to Mustafa some five weeks previously was quite irrelevant to the issue whether, on the day in question, the parties were engaged in a preconcert to obtain possession of drugs from Schubert.
If there clearly was a combination, there is no point criticising the precise reasons given by the trial Judge for so concluding. If the evidence of the acts and words of the other parties in furtherance of the common purpose was properly admitted against the applicant, there can be no unfairness arising from errors (if any) in the articulated basis upon which it was admitted. But, anyway, I agree entirely with her Honour's characterisation of the applicant's record of interview as deliberately misleading. In the record of interview, the applicant explained his encounter with Ruvinovski as "just bump into him" while the applicant was "there to amuse myself. Just walking around". He denied any dealings with Ruvinovski that day except for "having coffee and a chat" on two occasions, once at the Black Swan cafe and once at the Kings Hotel. He denied otherwise being in Ruvinovski's company. He admitted "talking to a couple of guys". When he was asked who they were, he said "One was my friend", obviously intending to imply that he did not know Mustafa. That was untrue. The evidence of the applicant's prior dealing with Mustafa (the transmission by the applicant of a sizeable amount of money to Mustafa in New York) proves he knew Mustafa.
It was submitted on behalf of the applicant that it was wrong to use a failure to disclose a prior association with Mustafa in a manner which was adverse to the applicant, as to do so would be to impose upon the accused a duty of disclosure when there was none. It is, of course, accepted that there was no duty of disclosure upon the applicant during questioning, but that is not how her Honour used this evidence. Her Honour examined the applicant's response to questioning as to the identity of the "couple of guys" and found it to be false, not merely non‑responsive. It was open to her Honour to make that finding.
Grounds 1 and 3 are not made out.

Ground 2

By this ground of appeal, the applicant pleads that:
"Her Honour erred in admitting evidence of:
(a)money sent to the United States;
(b)a telephone call to the Mercure Hotel; and
(c)being present at the Mercure Hotel."
Dealing first with ground of 2(a), the Crown produced documentary evidence (exhibit 22) that, on 20 February 1998, about five weeks before the day of the offence in question, the applicant had sent $2,897 to Mustafa in New York. This evidence was objected to, but it was admitted. It has already been adverted to. Senior counsel for the applicant submitted that evidence of this financial transaction was irrelevant and prejudicial. It was said to be irrelevant because it was unconnected with the offence charged. It was said to be prejudicial because it may have raised in the mind of the jury a suspicion that the funds were in connection with an illicit drug transaction.
In my opinion, the evidence was relevant and its prejudicial effect did not outweigh its probative value. One basis upon which the evidence was relevant was that it was capable of proving at least two lies. The first was the applicant's out‑of‑court statement implying that he did not know Mustafa. The second was the applicant's out‑of‑court statement that he had not sent $2,897 overseas on 20 February 1998. The first matter has already been dealt with.
As to the second matter, on behalf of the applicant, it was submitted that the applicant had not in fact denied sending the money overseas on 20 February 1998. I do not accept that submission. This part of the record of interview is as follows:
"Q259:Okay. I've done some research and information I've obtained as a result of that research indicates to me that a person with a name very similar to yours on the 20th of February, 1998, sent overseas an amount of $2,897 Australian dollars. Can you tell me anything about that?
Answer:No."
In my opinion, this was clearly a false denial on the part of the applicant that he had had anything to do with such a transaction.
Counsel for the applicant argued that the question was ambiguous and unclear and the answer "No" might well have been simply a response to some such question as whether the applicant knew anything about the research referred to in the question. This submission cannot be accepted. It must have been very clear to the applicant that he was being asked whether he knew anything about the transmission of this money and the answer "No" was simply untrue. It was an answer which the jury was entitled to regard as a guilty lie, told for the purpose of distancing the applicant from Mustafa.
The other basis upon which the evidence was relevant was that it tended to prove a prior association between the applicant and Mustafa - and a close association, at that. It is entirely unlikely that the applicant would have sent this sizeable amount of money to Mustafa unless the men had done business or unless they had a very close personal relationship. Evidence of a prior association was relevant to the question whether they were engaged in a common enterprise on 1 April 1998. It is less likely that complete strangers would be engaged in this enterprise. It was an enterprise that did involve some degree of trust and confidence between the conspirators.
As to grounds of appeal 2(b) and 2(c), the evidence of the telephone call(s) to the Mercure Hotel and the presence of the applicant in the Mercure Hotel at about 1:30 pm is evidence which connects the applicant to the scene of the crime at a time when the crime was being committed; that is, at a time when Ruvinovski was attempting to obtain physical possession of the drugs. In my opinion, the evidence was clearly relevant.
As I have noted, the appeal was initially argued on behalf of the applicant by Mr Van De Wiel as if the evidence was that the applicant had made only one telephone call (the one‑second call) to the Mercure Hotel. As I have tried to explain, the evidence shows that he made two. The first call was of one second. The second call was much longer (one minute and 55 seconds) and, as I have also tried to explain, putting that evidence together with Schubert's evidence as to the local calls he received with regard to delivery of the drugs and the sequence of them, the jury was entitled to be satisfied that in that call (the applicant's second call) to the Mercure Hotel the applicant made contact with Schubert and obtained his description. The critical importance and damning effect of that evidence against the applicant needs no expatiation.
There is no need to speculate about the first call; ie, the call lasting only one second. If the applicant was calling Schubert, there are obvious explanations as to why he might have aborted the first call. He might have simply not liked the look of an approaching pedestrian.
Ground 2 has not been made out.
I should say that after the hearing of the appeal, the court invited counsel for the parties to make further submissions with respect to the evidence of the applicant's second call and the inferences available from that evidence. Those submissions have been received and considered. I am not persuaded by them that the evidence and the inferences available from the evidence relating to the second call is other than I have stated it to be.

Grounds 4, 5 and 7

By these grounds, the applicant pleads:
"4.Her Honour erred in allowing the case to go to the jury when there was no evidence of knowledge of the prohibited import.
5.Her Honour erred in allowing the case to go to the jury when there was no evidence sufficient to amount to participation in the attempt to possess the prohibited import.
7.The conviction is unsafe and unsatisfactory."
The conclusion that has already been reached, that there was ample evidence of the accused's participation in the arrangement to gain possession of goods from Schubert, substantially disposes of these grounds of appeal which essentially complain of the Judge's refusal to direct a verdict of acquittal. The additional argument that was put in support of these grounds was that it was not proved that the applicant knew that what was involved in the joint enterprise was drugs.
In my opinion, the evidence clearly left it open to the jury to infer that the applicant knew or was at least aware of the likelihood that the enterprise in which he was participating involved narcotics. It is the first thing that would occur to the mind of a person of average intelligence in the position of the applicant.
As to the ground of appeal which pleads that the verdict was unsafe and unsatisfactory, this was developed by Mr Van De Wiel in the following way. There was no evidence that the applicant was in the company of either Mustafa or Ruvinovski when they dealt with Schubert. There was no evidence that the applicant himself dealt with Schubert or attempted to physically obtain possession of the drugs. The evidence against him is of activities on his part which were "peripheral" and capable of an innocent explanation.
The first thing to say is that this overlooks the evidence of the call to the Mercure Hotel at 3:27:46 pm of one minute and 55 seconds. Putting that evidence with the other evidence, it was evidence of direct dealing between the applicant and the courier, Schubert. But, even if that piece of evidence is put to one side, there was an abundance of evidence on which to find that the applicant was acting in concert with Ruvinovski and Mustafa to get hold of the drugs which Schubert had brought in. In my opinion, the sufficiency and the quality of the evidence which has been set out above does not lead to the conclusion that the jury, acting reasonably, should have (in the sense of ought to have) entertained a sufficient doubt as to the guilt of the accused so as to have entitled the accused to be acquitted: Whitehorn v The Queen (1983) 152 CLR 657 at 687; Morris v The Queen (1987) 163 CLR 454 at 463 ‑ 464; Masters, Richards & Wunderlich (supra) at 461.
The applicant's submission comes down to the submission that, because it was a purely circumstantial case and another explanation of the applicant's conduct was available, the jury was not entitled to be satisfied beyond reasonable doubt that the applicant was guilty. For very much the same reasons as were given in Masters, Richards & Wunderlich at 461 for rejecting the submission in that case to the effect that the verdicts were unsafe and unsatisfactory, I would reject the submission in this case. The applicant did not give evidence. He gave the "innocent" explanation for his conduct in his out‑of‑court statement and, in my opinion, the jury was entitled to come to the conclusion beyond a reasonable doubt that, in the circumstances, the explanation was not reasonable. The applicant did not give evidence that his meeting with Ruvinovski and Mustafa in Perth was simply coincidental and not by pre‑arrangement, that his long period hovering about the Mercure Hotel, during which he was frequently in company with Ruvinovski and Mustafa, was simply "for amusement" and "to have coffee and a chat". As the Court of Criminal Appeal of New South Wales said in Masters, Richards & Wunderlich at 461:
"The absence of such evidence given either by or on behalf of an appellant frequently proves to be a serious obstacle to the success of the 'unsafe and unsatisfactory' ground of appeal."
The circumstantial case against the applicant was very strong, as I have attempted to explain. I am by no means persuaded that the jury, acting reasonably, ought to have entertained a sufficient doubt as to the guilt of the accused as to have entitled the accused to an acquittal. None of these grounds of appeal have been made out.

Ground 9

By this ground of appeal, the applicant pleads that:
"Her Honour erred in allowing questions in Punevski's record of interview to be considered as lies as consciousness of guilt."
In my opinion, there is no substance in this ground of appeal. During the course of the prosecutor's address to the jury, the prosecutor invited the jury to consider certain answers made by the accused in his record of interview as lies. Her Honour instructed the jury that "first, you have to be satisfied that a lie was told by the accused, and that's important in this case, and I will go to the things that are said to be lies in a moment and deal with that issue".
Thereafter, her Honour took the jury through those answers which the Crown alleged were lies and made it perfectly clear to the jury that it was for them and them alone to decide that question. She specifically instructed them that "you need to be very cautious in reaching a conclusion that someone is lying when what they appear to be doing is answering the question directly, but in a limited way". Included in her direction was a direction in these terms:
"It may well be, and it's a matter for you to consider, that in that situation [police interview] either because of distress or alarm or because he thought that was the procedure, that you would just answer the question and that was it. You mightn't run off at the mouth. You mightn't try and guess what the questioner wanted. Perhaps you shouldn't. You just might say what was literally true and not go on. That's a matter for you, but it seems to me that it's an important thing you need to think about before you reach a conclusion that there was a lie."
There is no complaint about her Honour's direction on the issue of lies and as to what use the jury might make of lies told by the applicant should they conclude that he had told lies to the police. Nor is there any complaint about the extent of the warning given by her Honour in respect to the process of reasoning which the jury had to engage in before they could come to the conclusion that a lie was told. It seems to me that what the applicant's complaint amounts to is that her Honour should have directed the jury that the applicant's out‑of‑court statements contained no lies - that the answers relied on by the Crown for the submission that lies had been told could not, as a matter of law, be lies.
I do not accept that her Honour was under any such duty. Whether or not the answers alleged by the Crown to be lies were in fact lies and whether they were such as to indicate a consciousness of guilt were questions for the jury, properly instructed as they were.
Ground 9 has not been made out.
For the above reasons, I would grant leave to appeal against conviction, but dismiss the appeal.