R v Bandulla
[2001] VSCA 202
•31 October 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 307 of 2000
| THE QUEEN |
| v. |
| LUZLIM BANDULLA |
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JUDGES: | WINNEKE, P., BROOKING, J.A. and O'BRYAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 October 2001 | |
DATE OF JUDGMENT: | 31 October 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 202 | |
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Criminal law - Application for leave to appeal against conviction - Numerous grounds -
But application unsuccessful.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A.Coghlan, Q.C. (DPP) and Mr M.J.Croucher | K.Robertson, Solicitor for Public Prosecutions |
| For the Applicant | In person |
WINNEKE, P.:
I will invite Brooking, J.A. to give the first judgment in this matter.
BROOKING, J.A.:
Luzlim Bandulla, by his own account, is an Albanian who came here in February 1996 on a false passport he had bought in Italy. Two months later he applied to the Australian authorities for refugee status. In May 1996, when his application was still pending, the authorities told him that if he was having difficulty meeting his basic living expenses the Australian Red Cross might be able to help him. At about the same time he started getting the dole. But Luzlim Bandulla was, so the Crown says, even at that early stage of his career in this country, in need neither of charity nor of unemployment benefits. For he was already hard at work, beginning to establish his business as a merchant. He dealt in heroin. Some 12 months ago he was found guilty of trafficking in that drug during the 28 months between August 1996 and November 1998 and sentenced to six years' imprisonment with a non-parole period of four years six months. Now he wants to appeal against that conviction.
Luzlim Bandulla was, so the Crown says, a cautious man, as heroin merchants tend to be. He was keenly aware of the danger that he would find he had been selling to the police. He wanted to see the scars of injections as the credentials of a new customer. The mobile telephones he used were bought for him by someone else in her own name. When he drove to Adelaide, as the Crown alleges, to buy the stock for the nine-ounce deal that was to lead to his arrest, he took, not his own car, or one which he himself had rented, but one rented for him by a friend who was engaged in repatriating large amounts of cash to Albania for him, as his private superannuation fund.
Luzlim Bandulla chose to stand mute. On the evidence led on his trial, including that which he called, no sensible and properly instructed jury would have
had any doubt about his guilt. The transcript records that the jury's retirement lasted only ten minutes, although they may in fact have been out longer than that. The evidence was most damning. It has been summarised for us by the Crown in written form, and so I need not say much about it. The evidence was that Bandulla had been supplying an addict, Rosemary Camilleri, who lived with another addict, David King. The couple had a little child, whose doings and sayings give a remarkable domestic note of authenticity to recorded conversations with Bandulla at their home. He visited them often, sometimes daily, bringing with him heroin for her to buy and on one occasion heroin for her to sell. Time passed, and a detective arranged for Rosemary Camilleri to record, or have recorded, conversations with Bandulla, both at her home and on the telephone. At the detective's suggestion, she introduced two covert operatives to Bandulla. The first of these, "Emma", saw Bandulla dealing with Camilleri and dealt with him herself. The second operative, "Tracey", bought from him nine ounces of heroin - it was 80% pure - for $63,000. Bandulla was caught red-handed with the heroin when the deal was being consummated.
There was a great deal of oral and documentary evidence confirmatory of the evidence tending to implicate him, which again I need not summarise. One of the witnesses called by the Crown was his Vietnamese girlfriend, who helped him make his drug distributions from time to time. As regards betterment, in addition to the bundles of notes used to create the Albanian retirement fund, large quantities of cash were used to buy a car. As well as the great body of oral and documentary evidence against him, the accused had to contend with numerous recordings of what he and Camilleri had said in their telephone conversations, of what they had said at her home and of what had been said in his conversations with "Emma" and "Tracey". The transcripts are all there to be read. It is enough to say, without giving examples, that the recordings were extremely damaging to the accused man.
Having dispensed with the services of his legal advisers more than once, he appeared for himself both on an aborted trial (almost exclusively concerned with preliminary questions dealt with from 29 August until 14 September, before the jury was empanelled) and on the trial ending in his conviction. It is also worth noting, as regards the use of lawyers, that, Bandulla having himself signed the notice of application for leave to appeal, a solicitor appeared on the scene fleetingly last month to make an application on his behalf for leave to amend the grounds of appeal. There was evidently some disagreement between that solicitor and the applicant about how his case should be put and the solicitor no longer acts for him. From 29 August until 14 September the judge, most patiently, heard argument from the applicant on a host of questions, many of them concerning statutory provisions relied on by him which had nothing to do with the case.
The notice of application for leave to appeal contains 28 grounds. In July the applicant filed a 50-page submission which proceeded on the basis that there was or would be 34 grounds of appeal, differing substantially from the original 28. The application made by the solicitor in September -it was not granted - sought to tack on another three grounds, all complaining of the applicant's lack of legal representation at the trial.
The Crown has made a helpful written attempt, in the form of two schedules, to group the original grounds and the proposed grounds and to compare them.
The grounds in the applicant's written submission, and that submission itself, make difficult reading. Within the prison system human resources and computer facilities combine to enable an applicant or appellant to put together, or have put together by another prisoner, a set of grounds of appeal and accompanying legal argument invoking many decided cases, statutory provisions and actual or supposed legal principles or rules. The present set of grounds and accompanying submissions seems to draw on a variety of sources. Some of the grounds or submissions are plainly inappropriate. So it is said at p.37 of the document that the case is one of inconsistent verdicts. Yet there was but a single count and so but a single verdict. Ground 20, at p.37 of the document, is an example of a ground containing a farrago of allegations:
"The learned judge erred in law by allowing the prosecution to tender the allegation of the charges against the accused. The prosecution indictment was bad for duplicity. There was not evidence to support the indictment. The verdict of the jury was unsafe and unsatisfactory. The trial was unfair for the accused and a miscarriage of the justice occurred on several grounds during the trial. The prosecution witnesses were convicted for attempt to pervert course of justice and such statements made by them were unreliable."
To give another example, reliance is placed on legislation of another State as if it were in force in Victoria. It is unnecessary to give more instances: a mere glance at the document will show the difficulties it presents.
Although in what follows I do not by any means deal in terms with all the applicant's numerous submissions, I have done my best to understand and consider each of them. As the Crown did in its outline of argument, I treat the "grounds" set out in the applicant's written submission as if they were all grounds of appeal.
Grounds 1 - 6, 8, 18 and 19 -
These complain of illegally recorded conversations, the execution of a search warrant and other matters. A search warrant was executed at the applicant's home at 33 Glendin Avenue, St Albans East on 25 November 1998. Leaving aside complaints of unnecessary damage, his complaint was that the warrant had been executed by a person other than the person to whom it was directed. I see no reason to differ from his Honour's conclusion that there was no illegality in the execution of the search warrant and that in any event the suggested illegality should not lead, as a matter of discretion, to the exclusion of evidence.
A great deal of time was consumed during the very long voir dires as a result of the applicant's arguments based on the Commonwealth Telecommunications (Interception) Act 1979. But on the uncontradicted evidence led on the trial there was no interception of any communication in its passage over a telecommunications system. The device used to record telephone conversations - a micro-cassette recorder and earpiece - was designed for use and used so as not to record or receive any sound until after it had left the telecommunications system.
In addition to the device used to record sounds which were no longer passing over the telecommunications system, face to face conversations in the flat where the telephone was installed were recorded as a result of the secreting of another device in the livingroom.
The Listening Devices Act 1969 (still in force at the relevant time) is invoked and it is said that the provisions of that Act have been contravened. A warrant under s.4A was granted on 25 November 1998, near the end of the period covered by the presentment. Of course this warrant. granted only two days before the applicant's arrest, could not support the use of a listening device during the major part of the period in which the police were interesting themselves in the applicant's activities and so could not support the recording of telephone conversations or face-to-face conversations in Camilleri's flat which preceded the last three days of the investigation. According to the officer in charge of the investigation, no warrant under the Listening Devices Act was sought in respect of those conversations, since it was considered that recording was not prohibited by s.4 of that Act. Section 4(1)(a) was inapplicable, since the conversations were recorded by Camilleri, who was a party to them, and s.4(1)(b) prohibited, subject to s.4(2), not the use of a listening device, but the communication or publication of the substance or meaning of a conversation. Para.(b) of s.4(1) begins with the words "except in the course of any legal proceedings or in accordance with the provisions of sub-section (2)". Sub-s.(2) reads:
"4.
(2) Notwithstanding anything in paragraph (b) of sub-section (1) it is not an offence for a person who was a party to a private conversation to communicate or publish the substance or meaning of the private conversation which he has recorded by means of a listening device if the communication or publication is no more than is reasonably necessary in the public interest or in the course of his duty or for the protection of his lawful interests."
The judge accepted this view and ruled that communication or publication by Camilleri was reasonably necessary in the public interest and added that the "lawful interests" provision might also be applicable. One could add that the provision about duty might also fall for consideration. In any event, s.4(1)(b) begins with an exception relating to legal proceedings. The judge also said that if there had been some illegality he would not in the exercise of his discretion exclude the evidence. I see no reason to differ from his Honour's conclusions. I would add that it should be borne in mind that all these conversations with the applicant were had by persons called as witnesses and it would be remarkable if they could not give oral evidence of these conversations.
Grounds 25 - 30 and 32 and 33:
These concern attacks made on the written instructions given under s.51 of the Drugs, Poisons and Controlled Substances Act 1981. The evidence was that the persons to whom these written instructions were given included Camilleri, King, "Emma" and "Tracey". His Honour ruled that all the instructions answered the requirements of s.51 and in particular were sufficiently specific and I see no reason to doubt the correctness of his Honour's view on this question, on the other arguments put in relation to s.51 and on the question whether in any event the evidence concerned should as a matter of discretion be excluded.
Ground 7:
The judge rightly declined the applicant's applications that he should reserve questions of law under s.446(2) of the Crimes Act. There was no reason to believe that there was "a question of difficulty in point of law" which had arisen, since the matters either were well settled in this State or related to the exercise of a discretion. Again, as the Director further contended, there was no reason to assume that there was any question of law "such that its determination could render the conduct of the trial unnecessary". There was not the slightest reason to suppose that the applicant would have pleaded guilty if he had failed on a question, nor on the other hand was it to be thought that if the evidentiary point had been resolved in his favour the Crown would not have had evidence on which it would have proceeded.
Grounds 9 - 11, 14 and 15 and 25:
These allege criminal behaviour by Camilleri and King, incited by the police. The Director rightly contends that there was no basis for the exclusion of evidence in the behaviour of Camilleri, King or police officers.
Ground 12:
As regards the evidence of Thuy Beng Ngo (a youthful Crown witness) and s.464E of the Crimes Act, the judge was correct in ruling that the section dealing with the interrogation of persons under 17 in custody was inapplicable and that even if it did apply the evidence should not have been excluded in the exercise of a discretion.
Ground 13:
Here the allegation is of perjury by police witnesses. This ground has no substance.
Ground 17:
This ground complains that covert operatives were permitted to testify under assumed names. Again the ground has no substance. The law in Victoria is settled: Jarvie v. Shoukan[1]. The judge applied this decision and was plainly right in his determination.
Ground 21:
[1][1995] 1 V.R. 84.
The applicant refers to a passage in the transcript, apparently to show that the witness Le Phuoc's statement was taken when she was under duress by the police. It does not show this. This complaint has no substance at all. The witness gave evidence and the applicant was at liberty to cross-examine on any relevant matter.
Ground 23:
This alleges failure to instruct about prior inconsistent statements, about the judge's saying that the case was overwhelming and about the failure to warn about prosecution witnesses. The judge correctly and adequately instructed the jury about the use to be made of prior inconsistent statements. In summarising the Crown case his Honour said that the prosecutor "says that this is an overwhelming case". This was very plainly not a comment by the judge but a reminder by him to the jury of one of counsel's submissions. In his charge his Honour drew attention to the fact that two of the Crown witnesses (Camilleri and King) were criminals with prior convictions for dishonesty and that they had been indemnified and told the jury that they should take those things into account in assessing their credibility. He did not deal with the question whether they were accomplices or give any warning about the evidence of accomplices and corroboration. Once Camilleri was enlisted by the police, her own activities and those of King - if it matters in relation to King - were covered by written instructions given under s.51 of the Drugs, Poisons and Controlled Substances Act 1981, so that an accomplice warning would not have been appropriate. I shall assume that Camilleri was the applicant's accomplice before she began to assist the police. King seems to have been a mere bystander rather than an accomplice, but my view on this ground would be the same even if he should have attracted an accomplice warning. In my opinion, if his Honour had given a full accomplice warning in relation to the evidence of both these witnesses, and a more detailed and emphatic warning in relation to their indemnification and their criminal records, the applicant would not have been advantaged and the verdict would have been the same. Detailed directions about corroboration would have done the applicant much more harm than good. So much material was available for the jury's consideration as possible corroboration that reference to it by the judge could only have served to emphasise to the jury the overwhelming force of the Crown case. One could perhaps say, without resort to the proviso to s.568(1) of the Crimes Act, that a miscarriage of justice has not been affirmatively shown by the applicant, since the omitted directions if given would not have assisted him. But if one is to speak in terms of the proviso to s.568(1), not the body of the sub-section, then I would say that the Crown case was overwhelming and that the non-direction has not deprived the applicant of the chance of an acquittal, since conviction by a properly directed jury was inevitable.
Ground 31:
This concerns the affidavits supporting applications for the search warrant and the listening device warrant and the claim to public interest immunity. The judge was right in refusing to release the material. It did concern an ongoing investigation into the activities of persons who had not yet been charged. In any event the judge observed that nothing in the documents could possibly have assisted any defence that he could imagine the applicant might have.
Grounds 16, 20 and 24:
These allege that the trial miscarried, that the verdict was unsafe, that the applicant should have been represented at the trial, and other matters. Most of the points raised form the basis of complaints under other grounds and need not be separately dealt with here. As regards ground 16, the applicant was unrepresented by his own choice. The matter was listed before his Honour Judge Hassett on 4 November 1999. At that time counsel briefed to appear for him retired from the case on the basis that the applicant declined to accept his advice. On 2 December 1999 the matter was listed again, before the Chief Judge, who made an order under s.360A of the Crimes Act for the provision to the applicant of legal assistance -
"on the following conditions: First, that it be wholly within the discretion of Victoria Legal Aid whether or not to assign this particular matter to the criminal law division of Victoria Legal Aid. Secondly, that it be wholly within the discretion of Victoria Legal Aid as to the member of counsel who is to be briefed on the trial. Thirdly, in the event of the accused being dissatisfied with any decision made by Victoria Legal Aid, or by any counsel briefed by it, and the accused not wishing Victoria Legal Aid to continue in the matter or counsel so briefed to continue in the matter, that the matter proceed without the accused being represented."
I should also refer to what took place at the outset of the series of voir dires and discussions which occupied such a long time at what might be called the first trial. Pages 3 to 18 of the transcript of that trial bear on the question of representation. His Honour was told that there were five transcripts, that there had been three barristers appointed and that there had been two solicitors, one a private firm and one Legal Aid, and that the applicant had dispensed with their services in one way or another. His Honour asked whether it was the fact that he had dispensed with the services of those who were to represent him and that he came to court ready and able to defend himself, and the applicant replied that that was so and that he preferred to defend himself and was already prepared. A little later he repeated that he accepted that, as the Crown had said, he had dispensed for one reason or another with the services of his lawyers. His Honour said that he would read the transcripts which bore on the circumstance that the applicant was not represented. It is plain that the judge did so, and he told the applicant that the trial would proceed without his being represented unless he wished to put some submissions to the judge about the need for representation. The applicant replied that there was no problem with his not being represented. His Honour conducted the trial in a way which painstakingly took into account the applicant's lack of representation, time and again explaining procedure to him, telling him of his rights and giving him clear and manifestly sound warnings against the adoption of courses which might cause evidence prejudicial to him to get before the jury. His Honour made all reasonable efforts to assist the applicant and showed very great patience and conspicuous fairness in extremely trying circumstances. There is nothing in the grounds concerning the absence of representation.
Ground 20:
This complains of duplicity. The presentment was not bad for duplicity. This was a Giretti count[2]. As regards the rest of the ground, the verdict was, as I have said, amply supported by the evidence. Indeed, it was inevitable.
Ground 24:
[2]R. v. Giretti (1986) 24 A.Crim.R.112.
The Director rightly observes that the complaints here include assertions contrary to the evidence and that the evidence was that the transactions alleged by the Crown occurred. The point concerning ss. 43 and 44 of the Drugs, Poisons and Controlled Substances Act 1981 was discussed at some length during the first trial. There is, as the transcript shows, nothing in the point.
None of the existing or proposed grounds of appeal is made out, and there is no reason for interfering with this conviction.
The applicant argued that he had subsequently to the present conviction been convicted of trafficking in heroin and that this subsequent conviction concerned trafficking alleged to have taken place during the period covered by the presentment with which we are concerned. If this is so, and I emphasise that it has not been shown that this has occurred, then the applicant's complaint that he has been dealt with twice for the same criminal conduct cannot affect the present conviction. The "further presentment" in the present case alleged a conviction for trafficking in heroin sustained in November 1997. But the applicant did not, when we discussed the matter with him, suggest to us that that conviction related to the period covered by the count which led to the present conviction, nor did he make any complaint with regard to it. There is a period of about six months during which that offence may have been committed and which precedes the commencement of the period alleged in the Giretti count, and, as I have said, the applicant does not contend that that conviction means that he has been dealt with twice for the same conduct.
There is no application for leave to appeal against sentence. The Director has drawn our attention to the fact that the applicant was wrongly dealt with as a "serious drug offender", and hence a "serious offender", within the meaning of Part 2A of the Sentencing Act 1991. I would have proposed that we enlarge the time for an application for leave to appeal against sentence if I had thought that this error had, or might have, led to a miscarriage of justice in sentencing. But in my view this sentence was a moderate one, and if the applicant were to be re-sentenced he could not expect to be more leniently dealt with than he has been. I therefore consider that we should do nothing in relation to the sentence passed beyond suggesting that steps be taken to have the quadruplicate corrected by deleting the direction about the recording of the fact that the applicant had been sentenced as a serious offender.
WINNEKE, P.:
I agree.
O'BRYAN, A.J.A.:
I agree.
WINNEKE, P.:
The formal order of the Court will be that the application for leave to appeal against conviction is dismissed.
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